B-146139, AUG. 9, 1961

B-146139: Aug 9, 1961

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TO CHEMICAL COMPOUNDING CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 12. WHICH WAS ISSUED ON FEBRUARY 27. TWO OTHER BIDS WERE RECEIVED FOR THE DISINFECTANT IN THE AMOUNTS OF $0.40 AND $0.61 A UNIT. THE GOVERNMENT CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE IN THAT YOU HAD SPECIFIED A 20-DAY ACCEPTANCE PERIOD IN THE BID INSTEAD OF THE 60-DAY PERIOD SET FORTH IN THE INVITATION. AN AWARD OF CONTRACT WAS MADE ON APRIL 7. THAT YOUR BASIC PROTEST IS THE FACT THAT NOTWITHSTANDING YOUR BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE YOU HAD ALLOWED ONLY 20 DAYS. ACTUALLY WAS ACCEPTED WITHIN THE 20-DAY PERIOD. AS FOLLOWS: "BIDS OFFERING LESS THAN 60 DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE SET FOR OPENING OF BIDS WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED.'.

B-146139, AUG. 9, 1961

TO CHEMICAL COMPOUNDING CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 12, 1961, ENCLOSING A COPY OF YOUR LETTER DATED JUNE 6, 1961, TO THE MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, PROTESTING THE ACTION TAKEN BY THE AIR FORCE BASE UNDER INVITATION NO. 36-600-61-281.

IN RESPONSE TO THE INVITATION, AS AMENDED, WHICH WAS ISSUED ON FEBRUARY 27, 1961, BY HE MIDDLETOWN AIR MATERIEL AREA, YOU SUBMITTED A BID OFFERING TO FURNISH ITEM NO. 1, COVERING 60,000 UNITS--- 3.35 OUNCES PER UNIT--- OF A CERTAIN TYPE OF DISINFECTANT AT $0.369 A UNIT, OR FOR A TOTAL PRICE OF $22,140. TWO OTHER BIDS WERE RECEIVED FOR THE DISINFECTANT IN THE AMOUNTS OF $0.40 AND $0.61 A UNIT. IN EVALUATING THE BIDS, THE GOVERNMENT CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE IN THAT YOU HAD SPECIFIED A 20-DAY ACCEPTANCE PERIOD IN THE BID INSTEAD OF THE 60-DAY PERIOD SET FORTH IN THE INVITATION. THEREFORE, AN AWARD OF CONTRACT WAS MADE ON APRIL 7, 1961, TO WORTHY CHEMICALS, INC., BROOKLYN, NEW YORK, ON THE BASIS OF ITS BID OF $0.40 A UNIT FOR THE DISINFECTANT. THIS ACTION PROMPTED YOUR PROTEST.

IT APPEARS FROM THE COPY OF YOUR LETTER DATED JUNE 6, 1961, TO THE MIDDLETOWN AIR MATERIEL AREA, THAT YOUR BASIC PROTEST IS THE FACT THAT NOTWITHSTANDING YOUR BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE YOU HAD ALLOWED ONLY 20 DAYS, INSTEAD OF THE REQUIRED 60 DAYS, FOR THE ACCEPTANCE OF THE BID, THE SECOND LOW BID OF WORTHY CHEMICALS, INC., ACTUALLY WAS ACCEPTED WITHIN THE 20-DAY PERIOD--- 17 DAYS AFTER OPENING -- ALLOWED BY YOU.

PARAGRAPH D, SET FORTH ON PAGE 2 OF THE SCHEDULE, WHICH FORMED A PART OF INVITATION NO. 36-600-61-281, COVERED THE "BID ACCEPTANCE PERIOD," AND EXPRESSLY PROVIDED, AS FOLLOWS:

"BIDS OFFERING LESS THAN 60 DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE SET FOR OPENING OF BIDS WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED.'

THE GOVERNMENT CONTRACTING OFFICER ADVISES THAT THE 60-DAY ACCEPTANCE PERIOD WAS CONSIDERED TO BE A REASONABLE TIME SINCE THE ESTIMATED COST OF THE PROCUREMENT WAS IN EXCESS OF $20,000 AND, THEREFORE, REQUIRED THE PROCESSING OF ANY RESULTANT CONTRACT THROUGH PROCUREMENT CYCLES. STATES FURTHER THAT THE PACKAGING AND PACKING REQUIREMENTS ARE STRINGENT TO THE POINT OF POSSIBLY CAUSING A DELAY IN MAKING THE AWARD; ALSO, THAT THERE EXISTS IN THIS TYPE OF PROCUREMENT THE POSSIBILITY OF DELAY IN REQUESTING FACILITY CAPABILITY REPORTS ON BIDDERS WITH WHOM THE CONTRACTING AGENCY HAS HAD NO PREVIOUS PROCUREMENT EXPERIENCES. THUS, IT IS OBVIOUS THAT AT THE TIME OF THE ISSUANCE OF THE INVITATION THERE WERE BASICALLY SOUND REASONS FOR THE CONTRACTING OFFICER'S DETERMINATION THAT A MAXIMUM 60-DAY ACCEPTANCE PERIOD WAS NECESSARY AND REASONABLY REQUIRED FOR THE PROPER EVALUATION OF BIDS AND OTHER PREAWARD PROCESSING. THIS BEING THE CASE, THE FACT THAT CERTAIN CONDITIONS SUBSEQUENTLY DEVELOPED--- AMONG OTHERS, THAT WORTHY CHEMICALS, INC. HAD TWO PREVIOUS CONTRACTS INVOLVING SIMILAR PACKAGING AND PACKING REQUIREMENTS AND, THEREFORE, NO DELAYS WERE INVOLVED IN THIS REGARD--- THAT MADE POSSIBLE THE AWARD OF THE CONTRACT IN A MUCH LESSER TIME THAN THE 60 DAYS STIPULATED MAY NOT BE ACCEPTED TO SHOW THAT THE NEED FOR THE LONGER ACCEPTANCE PERIOD DID NOT EXIST IN THE FIRST INSTANCE. IN FACT, THERE IS NOTHING IN THE RECORD BEFORE US TO INDICATE THAT AN AWARD, IF OTHERWISE PROPER, COULD HAVE BEEN MADE TO YOU IN LESS THAN THE REQUIRED 60 DAYS. THEREFORE, SINCE THE ACCEPTANCE REQUIREMENT WAS CLEARLY SET FORTH IN THE INVITATION AND SINCE IT SPECIFICALLY PROVIDED THAT ANY BIDS OFFERING LESS THAN 60 DAYS FOR ACCEPTANCE WOULD BE CONSIDERED NONRESPONSIVE, THE GOVERNMENT CONTRACTING OFFICER, NOT ONLY PROPERLY REJECTED YOUR BID AS NOT CONFORMING TO THE APPLICABLE REQUIREMENTS BUT, IN FACT, WAS REQUIRED TO DO SO.

ACCORDINGLY, WE MUST CONCLUDE THAT THE AWARD ACTION TAKEN BY THE DEPARTMENT OF THE AIR FORCE IN THE MATTER IS NOT SUBJECT TO LEGAL OBJECTION.