B-147759, MARCH 20, 1962, 41 COMP. GEN. 599

B-147759: Mar 20, 1962

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NOT ONLY DOES NOT PERMIT BIDDERS TO COMPETE ON A DEFINITE AND EQUAL BASIS BUT HAS THE EFFECT OF PERMITTING THE CONTRACTING OFFICER TO DETERMINE THE BASIS FOR EVALUATION AFTER BIDS ARE OPENED. THE INVITATION SHOULD PROVIDE THAT ONLY IN THE EVENT THAT NO ACCEPTABLE BID IS RECEIVED. WILL CONSIDERATION BE GIVEN TO BIDS OFFERING LATER DELIVERY. WHEN EARLIER DELIVERY IS MERELY DESCRIBED. BIDS OFFERING LATER DELIVERY WITHIN A MAXIMUM PERIOD ARE TO BE CONSIDERED ON AN EQUAL BASIS. WERE IMPROPER. CANCELLATION IS NOT WARRANTED. THE INVITATIONS FOR BIDS SHOULD CLEARLY AND SPECIFICALLY SET FORTH THE FACTORS UPON WHICH BIDS WILL BE EVALUATED AND AWARD MADE. 1962: REFERENCE IS MADE TO LETTER DATED JANUARY 16.

B-147759, MARCH 20, 1962, 41 COMP. GEN. 599

BIDS - EVALUATION - DELIVERY PROVISIONS--- BIDS - EVALUATION - DELIVERY PROVISIONS--- CONTRACTS - AWARDS - CANCELLATION - ERRONEOUS AWARDS AN INVITATION WHICH PERMITTED BIDDERS TO OFFER AN ALTERNATE DELIVERY PERIOD TO THE ONE SPECIFIED, BUT DID NOT INDICATE THE EVALUATION FACTOR THAT WOULD BE APPLIED BETWEEN BIDS OFFERING DELIVERY WITHIN THE PRESCRIBED PERIOD AND THOSE OFFERING LATER DELIVERY, NOT ONLY DOES NOT PERMIT BIDDERS TO COMPETE ON A DEFINITE AND EQUAL BASIS BUT HAS THE EFFECT OF PERMITTING THE CONTRACTING OFFICER TO DETERMINE THE BASIS FOR EVALUATION AFTER BIDS ARE OPENED; THEREFORE, TO THE EXTENT THAT SUCH AN AMBIGUOUS DELIVERY PROVISION IN AN INVITATION MAY BE AUTHORIZED UNDER THE PROCUREMENT REGULATIONS, THE REGULATIONS SHOULD BE REVISED. WHEN A PROCUREMENT AGENCY REQUIRES DELIVERY WITHIN A PRESCRIBED TIME, THE INVITATION SHOULD PROVIDE THAT ONLY IN THE EVENT THAT NO ACCEPTABLE BID IS RECEIVED, WHICH MEETS THE DELIVERY REQUIREMENT, WILL CONSIDERATION BE GIVEN TO BIDS OFFERING LATER DELIVERY, BUT WHEN EARLIER DELIVERY IS MERELY DESCRIBED, RATHER THAN REQUIRED, AND BIDS OFFERING LATER DELIVERY WITHIN A MAXIMUM PERIOD ARE TO BE CONSIDERED ON AN EQUAL BASIS, THE BIDDERS SHOULD BE SO ADVISED IN THE INVITATION. ALTHOUGH AWARDS OF CONTRACTS UNDER INVITATIONS WHICH CONTAINED AMBIGUOUS AND INDEFINITE TIME OF DELIVERY PROVISIONS, WHICH RESERVED TO THE CONTRACTING OFFICER THE RIGHT TO DETERMINE AT THE TIME OF AWARD WHETHER TIME OF DELIVERY WOULD BE A FACTOR IN MAKING AWARD, WERE IMPROPER, IN VIEW OF THE COMPLETION OR SUBSTANTIAL COMPLETION OF DELIVERIES, UNDER THE RESULTANT CONTRACTS, CANCELLATION IS NOT WARRANTED; HOWEVER, IN FUTURE PROCUREMENTS INVOLVING TIME OF DELIVERY CONSIDERATIONS, THE INVITATIONS FOR BIDS SHOULD CLEARLY AND SPECIFICALLY SET FORTH THE FACTORS UPON WHICH BIDS WILL BE EVALUATED AND AWARD MADE.

TO THE SECRETARY OF THE NAVY, MARCH 20, 1962:

REFERENCE IS MADE TO LETTER DATED JANUARY 16, 1962 (FILE REFERENCE R1.1), FROM THE ACTING ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, FORWARDING AN ADMINISTRATIVE REPORT ON THE PROTEST OF WESTLAKE PLASTICS COMPANY AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. 228-36926-62, DATED NOVEMBER 21, 1961, ISSUED BY THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA.

THE INVITATION, BEARING BID OPENING DATE OF DECEMBER 1, 1961, REQUESTED BIDS FOR THE FURNISHING, F.O.B. DESTINATION, OF PLASTIC POLYETHYLENE SHEETS IN VARYING SIZES AND QUANTITIES, LISTED UNDER ITEM NOS. 1 THROUGH 6. THE INVITATION PROVIDED THAT, WHILE AWARD WOULD GENERALLY BE MADE TO THE LOW AGGREGATE BIDDER FOR ALL ITEMS, THE GOVERNMENT RESERVED THE RIGHT TO AWARD BY ITEM IF DETERMINED TO BE MORE ADVANTAGEOUS TO THE GOVERNMENT. THE RECORD SHOWS THAT THE INVITATION WAS ISSUED PURSUANT TO REQUISITION DATED NOVEMBER 8, 1961, FROM MARE ISLAND NAVAL SHIPYARD, SHOWING THAT DESIGNATED QUANTITIES OF THE MATERIAL, FOR USE AS RADIATION SHIELDING, WERE REQUIRED BY DECEMBER 14 AND THE BALANCE BY DECEMBER 28, 1961, IN THE PRIORITY CONSTRUCTION OF THREE FLEET BALLISTIC MISSILE SUBMARINES UNDER THE POLARIS SHIPBUILDING PROGRAM. IN VIEW OF THE EMPHASIS PLACED ON TIME OF DELIVERY, THE INVITATION PROVIDED, IN PART, UNDER THE HEADING " DELIVERY INSTRUCTIONS" AS FOLLOWS:

B. TIME OF DELIVERY MAY BE A FACTOR IN MAKING AWARD:

THE ARTICLES TO BE FURNISHED SHALL BE DELIVERED WITHIN 30 DAYS AFTER DATE OF CONTRACT.

IF THE BIDDER IS UNABLE TO MAKE DELIVERY AS SPECIFIED ABOVE, THE BIDDER SHALL STATE AN ALTERNATE TIME FOR DELIVERY IN THE SPACE PROVIDED BELOW. BIDS OFFERING A GREATER TIME FOR DELIVERY THAN THAT SPECIFIED ABOVE WILL BE CONSIDERED PROVIDED THAT, IN NO EVENT WILL THE TIME FOR DELIVERY EXCEED 60 DAYS AFTER DATE OF CONTRACT. HOWEVER, SINCE TIME FOR DELIVERY IS AN IMPORTANT FACTOR, THE GOVERNMENT RESERVES THE RIGHT TO MAKE AWARD ON THE BASIS OF DELIVERY.

ALTERNATE DELIVERY TIME: WITHIN -------- DAYS AFTER DATE OF CONTRACT.

THE INVITATION ALSO PROVIDED, UNDER THE HEADING " DELAYS--- DAMAGES," THAT, IF AWARD WAS MADE TO OTHER THAN THE LOWEST ACCEPTABLE BIDDER, BASED ON A SHORTER TIME FOR DELIVERY, THE CONTRACT WOULD CONTAIN A PROVISION, IN THE EVENT OF INEXCUSABLE DELAYED DELIVERY, FOR A PRORATED DOWNWARD ADJUSTMENT OF THE CONTRACT PRICE, BASED ON THE DIFFERENCES BETWEEN THE LOW BIDDER'S AND THE CONTRACTOR'S PRICES AND TIMES OF DELIVERY.

THE RECORD SHOWS THAT THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. TWO OF THE BIDDERS, ST. REGIS PAPER COMPANY AND WESTINGHOUSE ELECTRIC CORPORATION, OFFERED DELIVERY WITHIN 30 DAYS AFTER DATE OF CONTRACT. THE REMAINING BIDDER, WESTLAKE PLASTICS COMPANY, INSERTED IN THE SPACE PROVIDED THEREFOR THE ALTERNATE DELIVERY TIME OF 60 DAYS AFTER DATE OF CONTRACT. ITS BID, WITH THE EXCEPTION OF THE PRICE QUOTED BY WESTINGHOUSE ON ITEM NO. 3, WAS THE LOWEST AS TO PRICE ON EACH ITEM OF THE INVITATION.

IT IS REPORTED BY THE CONTRACTING OFFICER THAT, UPON REFERRAL OF THE BIDS TO THE REQUISITIONING ACTIVITY FOR ITS CONSIDERATION, HE WAS ORALLY REQUESTED TO MAKE AWARDS ON AN ITEM BASIS TO THE BIDDERS OFFERING THE LOWEST PRICE FOR DELIVERY WITHIN 30 DAYS, NAMELY, ITEM NO. 3 TO WESTINGHOUSE AS THE LOW BIDDER THEREON, AND THE BALANCE OF THE ITEMS TO ST. REGIS UNDER A CONTRACT CONTAINING THE PRESCRIBED DELAYS DAMAGES CLAUSE. THIS ACTION WAS TENTATIVELY APPROVED BY THE LOCAL CONTRACT REVIEW BOARD SUBJECT TO RECEIPT OF WRITTEN CONFORMATION OF URGENCY OF DELIVERY FROM THE REQUISITIONING ACTIVITY.

THE RECORD FURTHER SHOWS THAT, UPON BEING APPRAISED OF THE PROPOSED AWARDS, THE WESTLAKE PLASTICS COMPANY ENTERED PROTEST THERETO CONTENDING, IN MATERIAL PART, THAT IT WAS QUESTIONABLE WHETHER THE MATERIAL WAS, IN FACT, REQUIRED WITHIN 30 DAYS; THAT IT DOUBTED THAT DELIVERY WOULD BE MADE WITHIN THAT TIME; AND THAT, UNDER THE CIRCUMSTANCES, THE PAYMENT OF A PREMIUM FOR EARLIER DELIVERY WOULD RESULT IN A NEEDLESS WASTE OF GOVERNMENT FUNDS. ALSO, AS A FURTHER BASIS FOR QUESTIONING THE PROPOSED AWARDS, WESTLAKE PLASTICS COMPANY, IN ITS LETTER TO THIS OFFICE OF DECEMBER 12, 1961, STATED THAT UNDER A PREVIOUS SIMILAR INVITATION IT HAD BEEN AWARDED THE CONTRACT ON THE BASIS OF THE LOWEST PRICE QUOTED NOTWITHSTANDING ITS OFFER, AS IN THIS CASE, TO EFFECT DELIVERY WITHIN 60 DAYS AFTER DATE OF CONTRACT.

THE CONTRACTING OFFICER FURTHER REPORTS THAT, SUBSEQUENT TO THE PROTEST BUT PRIOR TO THE PROPOSED AWARDS, THE REQUISITIONING ACTIVITY, BY WRITTEN CONFIRMATION OF URGENCY, CERTIFIED THAT ONLY DESIGNATED PARTIAL QUANTITIES OF EACH ITEM OF THE INVITATION, INCLUDING 43,582 POUNDS OF A TOTAL QUANTITY OF 109,956 POUNDS OF THE MATERIAL COVERED BY ITEM NO. 1 WERE URGENTLY REQUIRED WITHIN 30 DAYS AFTER DATE OF CONTRACT. ON THE BASIS OF THIS CERTIFICATION, THE BIDS WERE REEVALUATED AND, BY CONTRACTS DATED DECEMBER 13, 1961, AWARDS ON THE ITEMS COVERED BY THE INVITATION WERE MADE, AS FOLLOWS: (1) ITEM NO. 3 TO WESTINGHOUSE WHOSE BID THEREON NOT ONLY OFFERED DELIVERY WITHIN 30 DAYS AFTER DATE OF CONTRACT BUT ALSO WAS THE LOWEST RECEIVED; (2) 66,374 POUNDS OF THE MATERIAL COVERED BY ITEM NO. 1 TO WESTLAKE; AND (3) THE BALANCE OF ITEM NO. 1 AND ALL OF ITEM NOS. 2, 4, 5 AND 6 TO ST. REGIS, SUBJECT TO THE DELAYS-DAMAGES PROVISION FOR FAILURE TO DELIVER WITHIN THE PRESCRIBED 30-DAY PERIOD. EXAMINATION OF THE BID OF WESTLAKE CONFIRMS, AS REPORTED BY THE CONTRACTING OFFICER, THAT THE "ALL OR NONE" QUALIFICATION CONTAINED THEREIN ON ITEM NOS. 2 THROUGH 6 PRECLUDED AWARD TO IT OF THE NON-URGENT PORTION OF THE MATERIAL COVERED THEREBY.

IN OUR CONSIDERATION OF BIDDERS' PROTESTS TO AWARDS EITHER MADE OR PROPOSED BY CONTRACTING AGENCIES, WE HAVE FOUND THAT TIME OF DELIVERY PROVISIONS IN INVITATIONS FOR BIDS, BECAUSE SUCH PROVISIONS WERE INDEFINITE, AMBIGUOUS, AND IMPROPERLY RESERVED TO THE AGENCIES THE RIGHT TO DECIDE, AFTER BIDS WERE RECEIVED AND OPENED, THE RELATIVE WEIGHT TO BE GIVEN THE PRICE AND DELIVERY TERMS OFFERED BY BIDDERS, HAVE PROVIDED A MOST FERTILE FIELD FOR PROTEST. THE INVITATION FOR BIDS HERE INVOLVED IS NO EXCEPTION.

WE HAVE HELD THAT TIME OF DELIVERY PROPERLY MAY BE CONSIDERED IN MAKING AN AWARD, PRICE ALONE NOT BEING CONTROLLING, WHEN EARLY DELIVERY IS REQUIRED IN THE GOVERNMENT'S INTEREST AND WHEN THE INVITATION SO PROVIDES, ALL BIDDERS THUS BEING PLACED ON NOTICE AND GIVEN AN EQUAL OPPORTUNITY TO COMPETE FOR THE GOVERNMENT'S BUSINESS. B-128405, AUGUST 3, 1956. HAVE, ALSO, HELD IN OUR NUMEROUS DECISIONS ON THIS SUBJECT THAT, IN FAIRNESS TO BIDDERS, IN THE INTEREST OF THE MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM, AND IN COMPLIANCE WITH THE STATUTORY REQUIREMENTS, INVITATIONS FOR BIDS SHOULD BE AS CLEAR, PRECISE AND EXACT AS POSSIBLE IN ADVISING BIDDERS OF THE BASIS ON WHICH THEIR BIDS WILL BE EVALUATED. 36 COMP. GEN. 380. FURTHER, IN THIS CONNECTION, IN OUR DECISION OF NOVEMBER 8, 1956, B-129678, TO THE THEN SECRETARY OF THE NAVY, WE STATED, CONCERNING THE TIME OF DELIVERY PROVISION THERE INVOLVED, IN PART, THAT---

WE HAVE CONSISTENTLY HELD THAT BIDDERS CANNOT COMPETE ON AN EQUAL BASIS, AS REQUIRED BY LAW, UNLESS THEY KNOW IN ADVANCE THE BASIS ON WHICH THEIR BIDS WILL BE EVALUATED. FOR THIS REASON IT IS OUR VIEW THAT A CONTRACTING AGENCY CANNOT PROPERLY RESERVE THE RIGHT TO DETERMINE AFTER THE BIDS ARE SUBMITTED WHETHER TIME OF DELIVERY WILL BE A FACTOR IN EVALUATING BIDS.

IN OUR DECISION OF SEPTEMBER 15, 1956, B-128405, CITING IN SUPPORT THEREOF THE HOLDING OF THE COURT IN UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461, AFFIRMING 27 F.1SUPP. 909, WE HELD THAT CONTRACTS AWARDED UNDER INVITATIONS WHICH ARE NOT SO DRAWN AS TO PERMIT COMPETITION ON AN EQUAL BASIS, BY FAILING TO SET FORTH THE BASIS FOR EVALUATION AS BETWEEN PRICE AND TIME OF DELIVERY, ARE VOIDABLE. FINALLY, CONCERNING THE POSITION THAT SAVINGS COULD BE REALIZED BY THE GOVERNMENT IF THE BASIS FOR EVALUATION AS BETWEEN PRICE AND TIME OF DELIVERY WERE LEFT OPEN, WE HAVE STATED MANY TIMES THAT IN OUR OPINION THE PRESERVATION OF THE COMPETITIVE BIDDING SYSTEM IS MORE BENEFICIAL TO THE GOVERNMENT FROM A LONG-RANGE STANDPOINT THAN THE PECUNIARY SAVING WHICH MIGHT BE REALIZED IN AN INDIVIDUAL CASE.

UNDER THE TERMS OF THE INVITATION HERE INVOLVED, BIDDERS WERE NOT ADVISED OF THE MONETARY VALUE WHICH WOULD BE GIVEN TO EARLIER DELIVERY IN THE EVALUATION OF BIDS. IN THE ABSENCE OF SOME PRESCRIBED EVALUATION FACTOR TO BE APPLIED BETWEEN BIDS OFFERING DELIVERY WITHIN 30 DAYS AFTER DATE OF CONTRACT AND THOSE OFFERING LATER DELIVERY UP TO THE MAXIMUM ACCEPTABLE DELIVERY TIME OF 60 DAYS AFTER DATE OF CONTRACT, INTERESTED BIDDERS COULD NOT KNOW WHETHER TO SACRIFICE PRICE FOR DELIVERY WITHIN 30 DAYS AFTER DATE OF CONTRACT, WHETHER TO QUOTE A PRICE FOR DELIVERY BASED ON THE MAXIMUM PERIOD OF 60 DAYS AFTER DATE OF CONTRACT, OR WHETHER TO QUOTE A PRICE BASED ON DELIVERY TERMS BETWEEN 30 AND 60 DAYS AFTER DATE OF CONTRACT. SUCH AN AMBIGUOUS AND INDEFINITE PROVISION CAN HARDLY BE SAID TO AFFORD BIDDERS THE REQUIRED OPPORTUNITY TO COMPETE ON AN EQUAL BASIS. RATHER, THE NET EFFECT OF THE PROVISION, AS APPARENTLY INTENDED BY THE PROCUREMENT AGENCY, WAS TO PERMIT THE CONTRACTING OFFICER TO EVALUATE THE BIDS IN ALMOST ANY MANNER WHICH MIGHT BE DECIDED UPON AFTER THE BIDS WERE OPENED. SUCH PROCEDURE NOT ONLY IS CONTRARY TO THE PURPOSES OF THE STATUTES GOVERNING FORMALLY ADVERTISED PROCUREMENTS BUT ALSO, AS IS THE RESULT IN THIS CASE, INEVITABLY TENDS TO PRODUCE COMPLAINTS AND PROTESTS OF ARBITRARINESS AND INCONSISTENCY ON THE PART OF PROCUREMENT OFFICIALS. MOREOVER, CONCERNING THE PROTEST OF WESTLAKE TO AWARD BEING MADE ON THE BASIS OF EARLIER DELIVERY, IT IS OUR VIEW THAT THE BIDDERS QUOTING PRICES FOR DELIVERY WITHIN THE 30-DAY PERIOD STATED AS REQUIRED BY THE GOVERNMENT HAVE EQUAL, IF NOT GREATER, BASIS FOR PROTEST TO AWARD BEING MADE TO WESTLAKE ON THE BASIS OF PRICE ALONE. BOTH ST. REGIS AND WESTINGHOUSE MAY HAVE INCLUDED OVERTIME PAY AND OTHER ADDITIONAL COSTS TO MEET THE 30-DAY DELIVERY PERIOD. HAD THESE BIDDERS BID ON THE BASIS THAT PRICE ALONE, WITHOUT REGARD TO DELIVERY PERIODS OFFERED, WOULD BE CONSIDERED IN THE EVALUATION OF BIDS, THEY MIGHT HAVE QUOTED PRICES EVEN LOWER THAN THAT QUOTED BY WESTLAKE.

IF DELIVERY WITHIN THE REQUIRED TIME OF 30 DAYS AFTER DATE OF CONTRACT WAS IN FACT REQUIRED AT THE TIME OF THE ISSUANCE OF THE INVITATION--- AND BASED UPON THE REQUISITION SUCH WAS THE CASE--- THE INVITATION SHOULD HAVE PROVIDED THAT, ONLY IN THE EVENT NO ACCEPTABLE BID WAS RECEIVED WHICH MET THIS DELIVERY REQUIREMENT, WOULD CONSIDERATION BE GIVEN TO BIDS OFFERING LATER DELIVERY. IF, IN THE CONSIDERATION BY A PROCUREMENT AGENCY OF THE URGENCY OF DELIVERY, IT IS DETERMINED THAT DELIVERY WITHIN A STATED PERIOD IS MERELY DESIRED, RATHER THAN REQUIRED, AND BIDS OFFERING LATER DELIVERY WITHIN A MAXIMUM ACCEPTABLE DELIVERY PERIOD ARE TO BE CONSIDERED ON AN EQUAL BASIS, BIDDERS SHOULD BE SO ADVISED OR, IN THE ALTERNATIVE, A BASIS FOR EVALUATING BIDS OFFERING LONGER PERIODS OF DELIVERY SHOULD BE STATED IN THE INVITATION. IN NO EVENT SHOULD AN INVITATION RESERVE TO THE CONTRACTING OFFICER, BASED UPON REVIEW OF DELIVERY REQUIREMENTS AT TIME OF AWARD, THE RIGHT TO DETERMINE AT THAT TIME WHETHER TIME OF DELIVERY WILL BE A FACTOR IN MAKING AWARD. TO THE EXTENT THAT SUCH ACTION MAY BE AUTHORIZED BY EXISTING REGULATIONS, THEY SHOULD BE APPROPRIATELY REVISED.

CONCERNING THE PREVIOUS INVITATION REFERRED TO BY WESTLAKE IN ITS LETTER OF DECEMBER 12, 1961, WHICH IT STATES CONTAINED IDENTICAL DELIVERY PROVISIONS AND ON WHICH IT WAS THE SUCCESSFUL BIDDER NOTWITHSTANDING ITS OFFER TO EFFECT DELIVERY WITHIN THE MAXIMUM ACCEPTABLE DELIVERY PERIOD OF 60 DAYS, RATHER THAN THE STATED REQUIRED DELIVERY PERIOD OF 30 DAYS, AFTER DATE OF CONTRACT, THE ADMINISTRATIVE REPORT CONFIRMS THAT SUCH AWARD ACTION WAS TAKEN. HOWEVER, IN JUSTIFICATION FOR SUCH ACTION, IT IS REPORTED BY THE CONTRACTING OFFICER THAT URGENCY OF DELIVERY OF THE MATERIAL COVERED BY THAT INVITATION WAS NOT PRESENT TO THE SAME EXTENT IN THAT CASE AS IN THE PRESENT ONE; THAT THE REQUISITION THERE INVOLVED, COVERING MATERIAL FOR A DIFFERENT SUBMARINE, SHOWED THAT THE MATERIAL WAS REQUIRED AT A LATER DATE; AND THAT, ALTHOUGH TWO HIGHER BIDS RECEIVED OFFERED 30-DAY DELIVERY, AWARD ON A TIME OF DELIVERY BASIS WAS NOT REQUESTED BY THE REQUISITIONING ACTIVITY AND THEREFORE THE LOW BID WAS ACCEPTED.

THE RECORD FORWARDED TO THIS OFFICE SHOWS THAT THE PREVIOUS INVITATION WAS ISSUED PURSUANT TO A REQUISITION BEARING THE SAME DATE-- NOVEMBER 8, 1961--- AS THAT HERE INVOLVED, STATING THAT THE REQUESTED MATERIAL WAS REQUIRED BY JANUARY 15, 1962, OR 42 DAYS AFTER THE BID OPENING DATE OF DECEMBER 4, 1961, OR 13 AND 27 DAYS AFTER THE BID OPENING DATE OF DECEMBER 1, 1961, UNDER THE PRESENT PROCUREMENT. THE VIEWS HEREINABOVE EXPRESSED WITH RESPECT TO THE DEFICIENCIES IN THE INVITATION IN THE INSTANT CASE AND THE QUESTIONABLE PROPRIETY OF THE AWARDS MADE THEREUNDER APPEAR EQUALLY APPLICABLE TO THE PREVIOUS INVITATION AND THE RESULTING AWARD. MOREOVER, SINCE THE RELATED REQUISITIONS DID NOT SHOW THE SAME DEGREE OF URGENCY IN DELIVERY REQUIREMENTS, IT IS NOT UNDERSTOOD WHY BOTH INVITATIONS CONTAINED THE SAME DELIVERY REQUIREMENT OF 30 DAYS AFTER DATE OF CONTRACT. DELIVERY SCHEDULES SHOULD BE ESTABLISHED SO AS TO PROMOTE FULL AND FREE COMPETITION CONSISTENT WITH THE NEED OF THE GOVERNMENT TO OBTAIN SUPPLIES OR SERVICES IN THE TIME ACTUALLY REQUIRED. IT SHOULD BE THE GENERAL POLICY OF PROCUREMENT AGENCIES TO ALLOW THE MAXIMUM DELIVERY TIME COMMENSURATE WITH THE NEEDS OF THE REQUIRING ACTIVITY. DELIVERY SCHEDULES WHICH UNNECESSARILY LIMIT THE TIME FOR DELIVERY TEND TO RESTRICT COMPETITION AND INCREASE COSTS. THEY ARE DETRIMENTAL TO THE INTERESTS OF BOTH THE GOVERNMENT AND INDUSTRY.

BASED ON THE DELIVERY PERIODS PRESCRIBED UNDER THE CONTRACTS AWARDED TO ST. REGIS AND WESTLAKE PURSUANT TO THESE INVITATIONS--- 30 OR 60 DAYS AFTER THE DATE OF THE CONTRACTS--- IT IS ASSUMED THAT DELIVERIES HAVE BEEN COMPLETED OR SUBSTANTIALLY COMPLETED THEREUNDER. ACCORDINGLY, WE DO NOT FEEL JUSTIFIED IN DIRECTING CANCELLATION THEREOF. IN FUTURE PROCUREMENTS, HOWEVER, INVOLVING TIME OF DELIVERY CONSIDERATIONS, THE COVERING INVITATIONS FOR BIDS, CONSISTENT WITH THE NEEDS OF THE REQUIRING ACTIVITY, SHOULD CLEARLY AND SPECIFICALLY SET FORTH THE FACTORS UPON WHICH EVALUATION AND AWARD WILL BE MADE.

THE ENCLOSURES FORWARDED WITH THE LETTER OF JANUARY 16, 1962, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S REPORT, ARE RETURNED AS REQUESTED.