B-147620, JAN. 22, 1962

B-147620: Jan 22, 1962

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YOU HAVE PROTESTED THE AWARD OF A CONTRACT TO ANY OTHER BIDDER PURSUANT TO INVITATION NO. THAT BID WAS RECEIVED BY THE CONTRACTING AGENCY AT 8:00 A.M. THAT THE BID HAD BEEN MAILED IN TIME TO HAVE BEEN RECEIVED PRIOR TO BID OPENING AND THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. THE BERN KANE BID WAS AMENDED BY TELEGRAM RECEIVED PRIOR TO BID OPENING REDUCING THE F.O.B. NO CHANGE WAS MADE IN THE PROMPT PAYMENT DISCOUNT. THE CONTRACTING AGENCY DETERMINED THAT THE UNIT FREIGHT COST PROPERLY APPLICABLE TO THE BERN KANE BID WAS ?81275 PER UNIT. IF THE PROMPT PAYMENT DISCOUNT IS APPLIED TO THE UNIT PRICE. THE BERN KANE PRICE IS EVALUATED WITH THE FREIGHT AT $10.08775 PER UNIT.

B-147620, JAN. 22, 1962

TO N.S.D. MANUFACTURING DIVISION, DAVIDOFF ENTERPRISES, INC.:

BY TELEGRAM AND LETTER OF NOVEMBER 17, 1961, AND LETTER OF DECEMBER 22, 1961, YOU HAVE PROTESTED THE AWARD OF A CONTRACT TO ANY OTHER BIDDER PURSUANT TO INVITATION NO. QM/CTM/-36-243-62-538, ISSUED OCTOBER 31, 1961, BY THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY, PHILADELPHIA QUARTERMASTER CENTER, FOR THE PROCUREMENT OF 78,500 FOOT LOCKERS.

THE INVITATION SOLICITED BIDS F.O.B. ORIGIN AND/OR F.O.B. DESTINATION. BERN KANE PRODUCTS, C., SUBMITTED ONLY AN F.O.B. ORIGIN BID AT A UNIT PRICE OF $8.56 PLUS ?856 PER UNIT FEDERAL RETAILER'S EXCISE TAX, LESS A PROMPT PAYMENT DISCOUNT OF ONE-THIRD OF 1 PERCENT FOR PAYMENT WITHIN 20 DAYS. THAT BID WAS RECEIVED BY THE CONTRACTING AGENCY AT 8:00 A.M., NOVEMBER 17, 1961, SOME 17 HOURS AFTER THE DEADLINE STATED IN THE INVITATION. HOWEVER, THE CONTRACTING OFFICER DETERMINED, ON THE BASIS OF THE DATE STAMP ON THE ENVELOPE AND INFORMATION OBTAINED FROM THE POST OFFICE DEPARTMENT, THAT THE BID HAD BEEN MAILED IN TIME TO HAVE BEEN RECEIVED PRIOR TO BID OPENING AND THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. ACCORDINGLY, THE CONTRACTING OFFICER, PURSUANT TO PARAGRAPH 4 OF THE TERMS AND CONDITIONS, DETERMINED TO CONSIDER THE BID FOR AWARD. THE BERN KANE BID WAS AMENDED BY TELEGRAM RECEIVED PRIOR TO BID OPENING REDUCING THE F.O.B. ORIGIN UNIT PRICE TO $8.46 AND THE TAX TO ?846 FOR A TOTAL UNIT COST OF $9.306. NO CHANGE WAS MADE IN THE PROMPT PAYMENT DISCOUNT.

THE CONTRACTING AGENCY DETERMINED THAT THE UNIT FREIGHT COST PROPERLY APPLICABLE TO THE BERN KANE BID WAS ?81275 PER UNIT. IF THE PROMPT PAYMENT DISCOUNT IS APPLIED TO THE UNIT PRICE, INCLUDING TAX, THE BERN KANE PRICE IS EVALUATED WITH THE FREIGHT AT $10.08775 PER UNIT. YOUR F.O.B. ORIGIN BID INCLUDING TAX, PROMPT PAYMENT DISCOUNT AND FREIGHT AS COMPUTED BY YOU WOULD AMOUNT TO $10.1843. YOUR F.O.B. DESTINATION PRICE WOULD BE EVEN HIGHER. WE HAVE BEEN ADVISED THAT AWARD HAS BEEN MADE TO BERN KANE AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER.

IN YOUR LETTER OF NOVEMBER 17, 1961, YOU ALLEGED THAT THE BERN KANE BID WAS NONRESPONSIVE FOR FAILURE TO INCLUDE IN ITS TELEGRAM THE INFORMATION REQUIRED BY THE PROVISION APPEARING AT PAGE 11 OF THE SCHEDULE UNDER THE HEADING "TELEGRAPHIC BIDS.' YOUR ALLEGATION APPEARS TO HAVE BEEN BASED ON THE ASSUMPTION THAT THE TELEGRAM CONSTITUTED A BID RATHER THAN A BID MODIFICATION. THE CIRCUMSTANCES CONSTITUTED A BID RATHER THAN A BID MODIFICATION. THE CIRCUMSTANCES AND THE LANGUAGE OF THE TELEGRAM CLEARLY INDICATE THAT IT WAS INTENDED ONLY AS A BID MODIFICATION WHICH WOULD NOT BE SUBJECT TO THE CONDITIONS OF THE CITED PROVISION OF THE SCHEDULE.

IN YOUR LETTER OF DECEMBER 22, 1961, YOU CONTEND THAT BERN KANE CANNOT BE CLASSIFIED AS A MANUFACTURER UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT. THE CITED ACT AS AMENDED PROVIDES AT 41 U.S.C. 35 THAT ANY SUPPLY CONTRACT FOR OVER $10,000 SHALL INCLUDE A REPRESENTATION THAT THE CONTRACTOR IS THE MANUFACTURER OF, OR A REGULAR DEALER IN, THE MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT TO

BE MANUFACTURED OR USED IN THE PERFORMANCE OF THE CONTRACT. BERN KANE IN ITS BID REPRESENTED THAT IT IS A MANUFACTURER OF THE SUPPLIES BID UPON.

WE HAVE CONSISTENTLY TAKEN THE POSITION THAT THE QUESTION WHETHER A FIRM QUALIFIES AS A MANUFACTURER UNDER THE ACT IS ONE FOR DETERMINATION IN THE FIRST INSTANCE BY THE CONTRACTING OFFICER, SUBJECT TO REVIEW BY THE SECRETARY OF LABOR. NO AUTHORITY TO REVIEW THE CONTRACTING OFFICER'S DETERMINATION WITH REGARD TO THIS MATTER RESTS IN OUR OFFICE. B-144614, JANUARY 5, 961; B-123889, MAY 20, 1955.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS FOR QUESTIONING THE AWARD MADE TO BERN KANE.