B-144139, NOV. 3, 1960

B-144139: Nov 3, 1960

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28. THE SECOND LOW BID WAS SUBMITTED BY BRISTOL DYNAMICS. IS AS FOLLOWS: "NOTE TO BIDDERS CONCERNING TIME OF DELIVERY "THE PROVISIONS OF THE CLAUSE HEREOF ENTITLED "TIME OF DELIVERY" CONTEMPLATE THAT DELIVERY SCHEDULES BE STATED BY BIDDERS ON THE BASIS OF NUMBER OF DAYS AFTER DATE OF CONTRACT. BIDDERS ARE CAUTIONED THAT THE STATING BY A BIDDER OF A DELIVERY SCHEDULE ON ANOTHER BASIS. THERE WERE TYPED ON YOUR BID THE WORDS: "150 DAYS AFTER RECEIPT OF ORDER.'. WHICH DETERMINED THAT YOUR BID WAS NOT RESPONSIVE AND SHOULD BE REJECTED. AWARD WAS MADE TO BRISTOL DYNAMICS. IT WAS HELD (QUOTING SYLLABUS): "A DELIVERY SCHEDULE OFFERED IN TERMS OF A SPECIFIED TIME "AFTER RECEIPT OF CONTRACT" WHEN THE INVITATION REQUIRES DELIVERY WITHIN A SPECIFIED TIME "AFTER DATE OF CONTRACT" MAY NOT BE REGARDED AS IN COMPLIANCE WITH THE INVITATION.

B-144139, NOV. 3, 1960

TO STAFFORD MANUFACTURING CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28, 1960, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION NO. IFB-383-107-61 ISSUED BY THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION, DATED AUGUST 8, 1960, REQUESTED BIDS--- TO BE OPENED SEPTEMBER 6, 1960--- FOR FURNISHING 548 MOORING BASKETS. IN RESPONSE TO THE INVITATION, YOU SUBMITTED A BID IN THE TOTAL AMOUNT OF $10,543.52. THE SECOND LOW BID WAS SUBMITTED BY BRISTOL DYNAMICS, INC., IN THE TOTAL AMOUNT OF $12,110.80.

CLAUSE 104-1.1, PAGE 12 OF THE INVITATION, IS AS FOLLOWS:

"NOTE TO BIDDERS CONCERNING TIME OF DELIVERY

"THE PROVISIONS OF THE CLAUSE HEREOF ENTITLED "TIME OF DELIVERY" CONTEMPLATE THAT DELIVERY SCHEDULES BE STATED BY BIDDERS ON THE BASIS OF NUMBER OF DAYS AFTER DATE OF CONTRACT. BIDDERS ARE CAUTIONED THAT THE STATING BY A BIDDER OF A DELIVERY SCHEDULE ON ANOTHER BASIS, SUCH AS "DAYS AFTER RECEIPT OF CONTRACT" OR "DAYS AFTER RECEIPT OF AWARD" OR "DAYS AFTER RECEIPT OF ORDER" MAY REQUIRE REJECTION OF THE BID.'

CLAUSE 104-1.8 PROVIDES IN PART:

"TIME OF DELIVERY

"THE GOVERNMENT REQUIRES THAT DELIVERY BE MADE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:

"WITHIN NUMBER OF DAYS AFTER DATE OF CONTRACT

"ITEM

1 150 DAYS"

"BIDDER'S OFFERED DELIVERY SCHEDULE (TO BE COMPLETED BY BIDDER)

"THE ARTICLES TO BE FURNISHED SHALL BE DELIVERED IN THE QUANTITIES AND WITHIN THE NUMBER OF DAYS AS SET FORTH IN THE FOLLOWING SCHEDULE:

"WITHIN NUMBER OF DAYS AFTER DATE OF CONTRACT"

IMMEDIATELY FOLLOWING THE LAST-QUOTED SENTENCE, THERE WERE TYPED ON YOUR BID THE WORDS: "150 DAYS AFTER RECEIPT OF ORDER.'

THE CONTRACTING OFFICER SUBMITTED THE MATTER TO THE LOCAL CONTRACT REVIEW BOARD, WHICH DETERMINED THAT YOUR BID WAS NOT RESPONSIVE AND SHOULD BE REJECTED, SINCE THE DELIVERY TIME PROPOSED BY YOU EXCEEDED THE DELIVERY TIME REQUIRED BY THE INVITATION. THEREFORE, AWARD WAS MADE TO BRISTOL DYNAMICS, INC., THE SECOND LOW BIDDER, ON SEPTEMBER 30, 1960.

IN 38 COMP. GEN. 876 (B-139521, JUNE 25, 1959), IT WAS HELD (QUOTING SYLLABUS):

"A DELIVERY SCHEDULE OFFERED IN TERMS OF A SPECIFIED TIME "AFTER RECEIPT OF CONTRACT" WHEN THE INVITATION REQUIRES DELIVERY WITHIN A SPECIFIED TIME "AFTER DATE OF CONTRACT" MAY NOT BE REGARDED AS IN COMPLIANCE WITH THE INVITATION, ON THE BASIS THAT THE MAILS MUST BE REGARDED AS THE AGENT OF THE BIDDER, IN VIEW OF THE DISTINCTION BETWEEN "MAILING" AND "RECEIPT" AND THE RULE THAT AN OFFER IS NOT ACCOMPLISHED UNTIL RECEIVED.

"UNDER AN INVITATION WHICH REQUIRES DELIVERY WITHIN A SPECIFIED TIME "AFTER DATE OF CONTRACT," TIME MUST BE REGARDED AS OF THE ESSENCE OF THE CONTRACT, AND A BID WHICH OFFERS DELIVERY WITHIN A STATED TIME "AFTER RECEIPT OF THE CONTRACT" DEVIATES FROM THE INVITATION IN A MATERIAL RESPECT EVEN THOUGH THE MAILING TIME IS INSIGNIFICANT WHEN COMPARED TO THE TIME FOR SCHEDULED DELIVERY; AND, THEREFORE, THE BID MUST BE REJECTED AS NONRESPONSIVE TO THE INVITATION.'

IN THAT DECISION IT WAS STATED:

"* * * SINCE THE MAILING TIME IS INSIGNIFICANT AS COMPARED TO THE SCHEDULE REQUIREMENT OF DELIVERIES WITHIN 10 TO 32 WEEKS YOU CONCLUDE THAT THE DIFFERENCE BETWEEN THE REQUIRED DELIVERY SCHEDULE AND THAT OFFERED IN YOUR BID SHOULD BE WAIVED BY THE CONTRACTING OFFICER AS A MINOR INFORMALITY ESPECIALLY IN VIEW OF THE MORE THAN $40,000 DIFFERENCE BETWEEN YOUR BID AND THAT OF THE NEXT HIGHER BIDDER. WHERE THE INVITATION ON ITS FACE REQUIRES DELIVERY WITHIN A STATED PERIOD, TIME MUST BE REGARDED AS OF THE ESSENCE OF THE CONTRACT EVEN IF THE INVITATION DOES NOT EXPRESSLY SO STATE. 36 COMP. GEN. 181. FAILURE OF A BID TO CONFORM TO THE REQUIRED DELIVERY SCHEDULE MUST BE REGARDED AS MATERIAL DEVIATION WHICH CANNOT BE WAIVED AND WHICH REQUIRES REJECTION OF SUCH BID. 34 COMP. GEN. 24.

"YOU NEXT ALLEGE THAT THE USE OF THE TERM "AFTER RECEIPT OF CONTRACT" IN YOUR BID WAS AN ERROR WHICH SHOULD BE SUBJECT TO CORRECTION UNDER THE RULES GOVERNING MISTAKES IN BID. ERRORS IN BID WHICH MAY BE CORRECTED AFTER OPENING ARE THOSE WHICH DO NOT AFFECT THE RESPONSIVENESS OF THE BID. B-139132, MAY 14, 1959. SINCE YOUR BID, AS INDICATED ABOVE, IS NOT RESPONSIVE IN THE FORM SUBMITTED, IT MAY NOT BE CONSIDERED FOR CORRECTION.'

SEE, ALSO, 34 COMP. GEN. 24; ID. 82; ID. 119; 36 ID. 181; 37 ID. 110; 39 ID. 259.

IT SEEMS CLEAR THAT THE QUOTED LANGUAGE AND THE DECISIONS ABOVE REFERRED TO ARE APPLICABLE TO THE INSTANT MATTER. ACCORDINGLY, IT MUST BE HELD THAT YOUR BID WAS NOT RESPONSIVE AND THERE IS NOT FOUND ANY LEGAL BASIS FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE ADMINISTRATIVE OFFICE IN REJECTING YOUR BID AND MAKING THE AWARD TO THE SECOND LOW BIDDER.