B-145868, JUL. 12, 1961

B-145868: Jul 12, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 11. WHICH WAS ISSUED BY THE REFORMATORY ON MARCH 31. ONE OTHER BID WAS RECEIVED FROM LEO GERLING. THE BID OF LEO GERLING WAS ACCEPTED BY THE REFORMATORY UNDER PARAGRAPH C. THAT "AS TIME IS OF THE ESSENCE OF THE CONTRACT. TIME SHOWN FOR COMPLETION OF THE WORK WILL BE EVALUATED IN MAKING AWARD.'. THE FORMAL CONTRACT LATER WAS EXECUTED. - NULLIFIED THE "TIME IS OF THE ESSENCE. THE AWARD COULD NOT HAVE BEEN JUSTIFIABLY MADE ON THAT BASIS. WE CANNOT AGREE WITH YOUR CONTENTION THAT THE AWARD OF THE CONTRACT WAS LEGALLY OBJECTIONABLE BECAUSE ONLY TWO BIDS WERE RECEIVED. THE FEDERAL REFORMATORY REPORTS THAT INVITATION NO. 5-6648 WAS MAILED TO NINE PROSPECTIVE BIDDERS AND SUCH CIRCULATION WOULD APPEAR TO BE SUFFICIENT PUBLICITY TO FULLY COMPLY WITH THE STATUTE REQUIRING FORMAL ADVERTISING.

B-145868, JUL. 12, 1961

TO MODULAR CONSTRUCTION COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 11, 1961, WITH ENCLOSURE, PROTESTING THE ACTION TAKEN BY THE FEDERAL REFORMATORY, CHILLICOTHE, OHIO, IN AWARDING A CONTRACT UNDER INVITATION NO. 5-6648.

IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED BY THE REFORMATORY ON MARCH 31, 1961, YOU SUBMITTED A BID OFFERING TO FURNISH ALL LABOR, EQUIPMENT AND MATERIALS, AND PERFORM ALL WORK, IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES, ETC., FOR THE CONSTRUCTION OF POWER PLANT BOILER FOUNDATIONS AND ADJACENT CONSTRUCTION FOR A TOTAL CONSIDERATION OF $21,453. IN YOUR BID YOU SET FORTH 90 CALENDAR DAYS AS THE TIME REQUIRED TO COMPLETE THE WORK. ONE OTHER BID WAS RECEIVED FROM LEO GERLING, CHILLICOTHE, OHIO, IN THE AMOUNT OF $22,570, WHICH SET FORTH A COMPLETION TIME OF 60 CALENDAR DAYS. IT APPEARS THAT ON OR ABOUT MAY 2, 1961, IMMEDIATELY AFTER AN ADDENDUM TO THE INVITATION HAD BEEN RETURNED BY YOU, THE BID OF LEO GERLING WAS ACCEPTED BY THE REFORMATORY UNDER PARAGRAPH C, STANDARD FORM NO. 21, WHICH PROVIDED, AMONG OTHERS, THAT "AS TIME IS OF THE ESSENCE OF THE CONTRACT, TIME SHOWN FOR COMPLETION OF THE WORK WILL BE EVALUATED IN MAKING AWARD.' THE FORMAL CONTRACT LATER WAS EXECUTED, NOTICE TO PROCEED ISSUED TO MR. GERLING ON MAY 12, 1961, AND THE WORK STARTED ON MAY 15, 1961.

YOU PROTEST THE AWARD OF THE CONTRACT TO LEO GERLING IN THIS CASE STATING THAT AN IRREGULARITY EXISTED IN MAKING AN AWARD WHEN ONLY TWO BIDS HAD BEEN RECEIVED. YOU ALSO CONTEND THAT THE DELAY BY THE GOVERNMENT IN ANNOUNCING THE RESULTS OF THE BIDS RECEIVED--- APPARENTLY CAUSED BY REASON OF THE LATE RECEIPT BY THE REFORMATORY FROM YOU OF THE ADDENDUM PERTAINING TO THE APPLICABLE WAGE RATES--- NULLIFIED THE "TIME IS OF THE ESSENCE," CLAUSE AS SET FORTH IN PARAGRAPH C, LIQUIDATED DAMAGES, OF THE BID FORM AND, THEREFORE, THE AWARD COULD NOT HAVE BEEN JUSTIFIABLY MADE ON THAT BASIS.

WE CANNOT AGREE WITH YOUR CONTENTION THAT THE AWARD OF THE CONTRACT WAS LEGALLY OBJECTIONABLE BECAUSE ONLY TWO BIDS WERE RECEIVED. THE FEDERAL REFORMATORY REPORTS THAT INVITATION NO. 5-6648 WAS MAILED TO NINE PROSPECTIVE BIDDERS AND SUCH CIRCULATION WOULD APPEAR TO BE SUFFICIENT PUBLICITY TO FULLY COMPLY WITH THE STATUTE REQUIRING FORMAL ADVERTISING. SHOULD THE ADMINISTRATIVE OFFICE DETERMINE, AFTER THERE HAS BEEN SUCH A COMPLIANCE WITH THE STATUTE, THAT THE OVER-ALL INTEREST OF THE GOVERNMENT WOULD BEST BE SERVED, INSOFAR AS CONCERNS PRICE, TIME OF PERFORMANCE, ETC., BY THE ACCEPTANCE OF A CERTAIN RESPONSIVE BID, DOES NOT PRECLUDE SUCH AN ACCEPTANCE.

YOUR CONTENTION THAT THE "TIME IS OF THE ESSENCE" CLAUSE WAS NULLIFIED BY THE DELAY INVOLVED ALSO APPEARS TO BE WITHOUT MERIT. IF A BONA FIDE NEED EXISTS AT THE TIME AN INVITATION TO BID IS INITIATED FOR WORK TO BE EXPEDITIOUSLY PERFORMED, CERTAIN DELAYS WHICH MIGHT RESULT IN CONNECTION WITH THE RECEIPT AND EVALUATION OF THE BIDS SOLICITED MAY NOT BE REGARDED AS EVIDENCE TO SHOW THAT THE WORK NO LONGER IS URGENT. IN FACT, IT MIGHT VERY WELL BE ARGUED THAT ANY DELAY OF THIS KIND COULD MAKE THE NEED FOR EXPEDITIOUS PERFORMANCE EVEN STILL GREATER IN ORDER TO MEET CERTAIN TIME DEADLINES.

ACCORDINGLY, YOUR SPECIFIC PROTESTS TO THE ACTION TAKEN BY THE CHILLICOTHE FEDERAL REFORMATORY IN AWARDING THE CONTRACT TO LEO GERLING UNDER INVITATION NO. 5-6648 APPEAR TO FORM NO BASIS FOR LEGAL OBJECTION.

YOU MAY BE FURTHER ADVISED, HOWEVER, THAT WE DO NOT BELIEVE THAT THE "TIME IS OF THE ESSENCE" CLAUSE REFERRED TO ABOVE WAS SET FORTH SUFFICIENTLY DEFINITE IN THE BID FORM TO PERMIT THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS SINCE NO DEFINITE SCHEDULE, SUCH AS 30 DAYS, 60 DAYS, ETC., WAS USED AS A GUIDE TO THE TIME REQUIREMENT. THUS, THE MATTER IS BEING CALLED TO THE ATTENTION OF THE DIRECTOR, BUREAU OF PRISONS, IN ORDER THAT THE TIME REQUIREMENT MAY BE MORE PROPERLY SET FORTH ON ALL INVITATIONS OF THIS KIND IN THE FUTURE.

IN VIEW OF THE FOREGOING, AND SINCE THE CHILLICOTHE FEDERAL REFORMATORY REPORTS THAT 70 PERCENT OF THE WORK WAS COMPLETED AS OF JUNE 12, 1961, WE DO NOT CONSIDER IT TO BE IN THE INTERESTS OF THE GOVERNMENT TO CANCEL THE CONTRACT.