B-144930, APR. 21, 1961

B-144930: Apr 21, 1961

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THE SCHEDULE OF DELIVERIES OF THE MOTOR CLOSURES COVERED BY ITEM 1 WAS AS FOLLOWS: 21. IT IS REPORTED THAT ALTHOUGH YOU SUBMITTED THE LOWEST BID ON ITEM 1 OF INVITATION CML-30-070-61-93 YOU RETAINED FOR YOUR OWN FILES THE FOLLOWING PAGES WHICH WERE ATTACHED TO AND MADE A PART OF THE INVITATION FOR BIDS: GENERAL PROVISION NO. 30. IT IS FURTHER REPORTED THAT THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE BECAUSE YOU NOT ONLY FAILED TO RETURN GENERAL PROVISION NO. 32. 156.25 WAS AWARDED TO THE J. BIDS WERE REQUESTED FOR FURNISHING 7. COMPLETE DELIVERY OF THE ITEM WAS REQUIRED ON OR BEFORE APRIL 14. IT IS REPORTED THAT IN SUBMITTING A BID YOU RETAINED FOR YOUR OWN FILES THE FOLLOWING PAGES WHICH WERE ATTACHED TO AND MADE A PART OF THE INVITATION FOR BIDS: GENERAL PROVISION NO. 30.

B-144930, APR. 21, 1961

TO ALTON IRON WORKS, INC.:

YOUR LETTERS OF JANUARY 28, 1961, PROTEST THE AWARD OF A CONTRACT TO J. H. SMITH MANUFACTURING COMPANY, NEWBURGH, NEW YORK, UNDER INVITATION NO. CML-30-070-61-93, AND THE AWARD OF A CONTRACT TO BRISTOL DYNAMICS, INC., BROOKLYN, NEW YORK, UNDER INVITATION NO. CML-30-070-61 101.

BY INVITATION NO. CML-30-070-61-93, THE U.S. ARMY CHEMICAL PROCUREMENT DISTRICT, NEW YORK, NEW YORK, REQUESTED BIDS FOR FURNISHING, AMONG OTHER ITEMS, 151,875 MOTOR CLOSURES. THE SCHEDULE OF DELIVERIES OF THE MOTOR CLOSURES COVERED BY ITEM 1 WAS AS FOLLOWS: 21,725 DURING APRIL 1961, 25,000 PER MONTH DURING THE MONTHS OF MAY, JUNE, JULY, AUGUST AND SEPTEMBER 1961, AND 5,150 DURING OCTOBER 1961.

IT IS REPORTED THAT ALTHOUGH YOU SUBMITTED THE LOWEST BID ON ITEM 1 OF INVITATION CML-30-070-61-93 YOU RETAINED FOR YOUR OWN FILES THE FOLLOWING PAGES WHICH WERE ATTACHED TO AND MADE A PART OF THE INVITATION FOR BIDS:

GENERAL PROVISION NO. 30--- FEDERAL, STATE, AND LOCAL TAXES

GENERAL PROVISION NO. 31--- STATUS OF PERFORMANCE

GENERAL PROVISION NO. 32--- SPECIAL TOOLING

GENERAL PROVISION NO. 33--- ALTERATIONS, WHICH SUBSTITUTED A CURRENT CLAUSE FOR GENERAL PROVISION NO. 21 (UTILIZATION OF CONCERNS IN LABOR SURPLUS AREAS).

APPENDIX I--- WHICH CONTAINED THE LIST OF DRAWINGS AND SPECIFICATIONS FOR THE ITEM.

APPENDIX II--- WHICH CONTAINED THE ENGINEERING MODIFICATIONS TO THE DRAWINGS AND SPECIFICATIONS.

APPENDIX III--- WHICH CONTAINED THE INSPECTION REQUIREMENTS.

IT IS FURTHER REPORTED THAT THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE BECAUSE YOU NOT ONLY FAILED TO RETURN GENERAL PROVISION NO. 32, SPECIAL TOOLING, WHICH HAD A SIGNIFICANT EFFECT ON THE PRICE OF THE ITEMS, BUT ALSO THE APPENDICES WHICH THE CONTRACTING OFFICER STATES EFFECTED A MATERIAL CHANGE TO THE INVITATION FOR BIDS. ON DECEMBER 30, 1960, CONTRACT NO. DA-30-070-CML 1361 IN THE AMOUNT OF $53,156.25 WAS AWARDED TO THE J. H. SMITH MANUFACTURING COMPANY.

BY INVITATION NO. CML-30-070-61-101, BIDS WERE REQUESTED FOR FURNISHING 7,560,"KEY, TEAR RIP.' COMPLETE DELIVERY OF THE ITEM WAS REQUIRED ON OR BEFORE APRIL 14, 1961. IT IS REPORTED THAT IN SUBMITTING A BID YOU RETAINED FOR YOUR OWN FILES THE FOLLOWING PAGES WHICH WERE ATTACHED TO AND MADE A PART OF THE INVITATION FOR BIDS:

GENERAL PROVISION NO. 30--- FEDERAL, STATE, AND LOCAL TAXES

GENERAL PROVISION NO. 31--- PATENT INDEMNITY, PREDETERMINED

GENERAL PROVISION NO. 32--- ALTERATIONS, WHICH SUBSTITUTED A CURRENT CLAUSE FOR GENERAL PROVISION NO. 21 (UTILIZATION OF CONCERNS IN LABOR SURPLUS AREAS).

APPENDIX I--- WHICH CONTAINED THE LIST OF DRAWINGS AND SPECIFICATIONS FOR THE ITEM CALLED FOR AND ENGINEERING MODIFICATIONS TO THE DRAWINGS AND SPECIFICATIONS.

IN THE ADMINISTRATIVE REPORT IT IS STATED THAT THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE BECAUSE THE FAILURE TO RETURN APPENDIX I EFFECTED A MATERIAL CHANGE TO THE INVITATION FOR BIDS. JANUARY 26, 1961, ORDER NO. NY 1-402-871 IN THE AMOUNT OF $2,721.60 WAS AWARDED TO BRISTOL DYNAMICS, INC.

THE PRIMARY QUESTION FOR DETERMINATION IN CASES SUCH AS THIS IS WHETHER THE ACCEPTANCE OF THE BID AS SUBMITTED WILL RESULT IN A CONTRACT BINDING ON THE BIDDER REQUIRING PERFORMANCE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE PARTICULAR INVITATION. SINCE YOU DID NOT SPECIFICALLY STATE THAT THE GENERAL PROVISIONS AND APPENDICES WHICH YOU DETACHED FROM THE INVITATIONS WERE NOT TO BE REGARDED AS A PART OF ANY CONTRACT WHICH MIGHT BE AWARDED TO YOU, IT COULD BE ARGUED, AND NOT WITHOUT SOME MERIT, THAT HAD THE CONTRACTS BEEN AWARDED TO YOU ON THE BASIS OF THE BIDS AS SUBMITTED THEY WOULD HAVE BY REFERENCE INCORPORATED THE GENERAL PROVISIONS AND APPENDICES.

ON THE OTHER HAND, THE RECORD SHOWS THAT PRIOR TO REJECTING YOUR BIDS THE CONTRACTING OFFICER REQUESTED AN OPINION FROM THE LEGAL DIVISION OF HIS DEPARTMENT REGARDING THE RESPONSIVENESS OF YOUR BIDS. AFTER A THOROUGH CONSIDERATION OF YOUR BIDS IT WAS CONCLUDED THAT THE WITHDRAWAL OF THE DOCUMENTS INVOLVED MATTERS OF SUBSTANCE AND THAT IF CONTRACTS WERE AWARDED TO YOU THE DOCUMENTS WOULD NOT BE INCORPORATED BY REFERENCE. IN VIEW OF THIS YOUR BIDS WERE CONSIDERED TO BE NONRESPONSIVE AND THEREFORE, FOR REJECTION.

WE ARE INFORMALLY ADVISED THAT BRISTOL DYNAMICS, INC., WHICH WAS AWARDED A CONTRACT UNDER INVITATION NO. CML-30-070-61-101, REQUIRING COMPLETE DELIVERY OF THE TEAR STRIP KEYS ON OR BEFORE APRIL 14, 1961, APPARENTLY WILL MEET THE REQUIRED DELIVERY DATE. ALSO, WE ARE ADVISED THAT THE FIRST DELIVERY DUE UNDER THE CONTRACT AWARDED TO J. H. SMITH MANUFACTURING COMPANY PURSUANT TO INVITATION NO. CML-30-070-61-93, WILL BE MADE DURING APRIL 1961, AS REQUIRED.

ACCORDINGLY, SINCE THE QUESTION AS TO THE RESPONSIVENESS OF YOUR BIDS IS NOT FREE FROM DOUBT AND HAVING REGARD FOR THE STATUS OF THE CONTRACTS AWARDED WE WOULD NOT BE WARRANTED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.