B-147943, MAR. 23, 1962

B-147943: Mar 23, 1962

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ESQUIRE: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM RECEIVED IN OUR OFFICE ON JANUARY 15. YOU STATE THAT IT IS CONTROLLED BY A PARENT COMPANY AND THAT IT DID NOT PROVIDE THAT INFORMATION IN THE PLACE PROVIDED IN THE BID. IT IS YOUR CONTENTION. THAT EACH OF THESE BIDDERS HAD A MATERIAL DEVIATION IN ITS BID WHICH SHOULD HAVE REQUIRED THE REJECTION OF ITS BID. THE INFORMATION CONCERNING EACH BIDDER'S RELATIONSHIP TO OTHER COMPANIES IS NOT NEEDED FOR THE EVALUATION OF BIDS. THE FAILURE OF SPACE AERO TO FURNISH SUCH INFORMATION IN ITS BID WAS A MATTER WHICH PROPERLY COULD BE WAIVED. 39 COMP. ITEM 2 OF THE INVITATION IS DIVIDED INTO 11 SUBITEMS LISTING QUANTITIES FROM 10 TO 175 THAT TOTAL 961 UNITS.

B-147943, MAR. 23, 1962

TO WILLIAM H. PATTISON, JR., ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM RECEIVED IN OUR OFFICE ON JANUARY 15, 1962, AND COPY OF A LETTER OF THE SAME DATE TO THE AVIATION SUPPLY OFFICE, PROTESTING FOR R. E. DARLING CO., NC., AGAINST AN AWARD UNDER IFB-383-423-62 TO SPACE AERO PRODUCTS CO., INC., FOR ALL OF ITEM 1 AND TO STRATO-SAFETY EQUIPMENT CORPORATION FOR 611 UNITS OF ITEM 2.

AS TO SPACE AERO, YOU STATE THAT IT IS CONTROLLED BY A PARENT COMPANY AND THAT IT DID NOT PROVIDE THAT INFORMATION IN THE PLACE PROVIDED IN THE BID. AS TO STRATO-SAFETY, YOU STATE THAT ITS BID DID NOT COMPLY WITH THE REQUIRED DELIVERY SCHEDULE SPECIFIED IN THE INVITATION. IT IS YOUR CONTENTION, THEREFORE, THAT EACH OF THESE BIDDERS HAD A MATERIAL DEVIATION IN ITS BID WHICH SHOULD HAVE REQUIRED THE REJECTION OF ITS BID.

THE INFORMATION CONCERNING EACH BIDDER'S RELATIONSHIP TO OTHER COMPANIES IS NOT NEEDED FOR THE EVALUATION OF BIDS. THEREFORE, IT HAS NO BEARING UPON THE RESPONSIVENESS OF THE BIDS, AND THE FAILURE OF SPACE AERO TO FURNISH SUCH INFORMATION IN ITS BID WAS A MATTER WHICH PROPERLY COULD BE WAIVED. 39 COMP. GEN. 881.

ITEM 2 OF THE INVITATION IS DIVIDED INTO 11 SUBITEMS LISTING QUANTITIES FROM 10 TO 175 THAT TOTAL 961 UNITS. THE "TIME OF DELIVERY" CLAUSE STATES THAT THE GOVERNMENT REQUIRES THE UNITS TO BE DELIVERED WITHIN THE FOLLOWING NUMBER OF DAYS AFTER DATE OF CONTRACT:

TABLE

DAYS: 75 105 135 165

UNITS: 150 200 300 311

THE STRATO-SAFETY BID OFFERED DELIVERY WITHIN THE FOLLOWING NUMBER OF DAYS AFTER DATE OF CONTRACT:

TABLE

DAYS:105 135 165 195

UNITS: 111 250 250 350 THE DETERMINATION THAT THE BID OF STRATO-SAFETY WAS RESPONSIVE FOR 611 UNITS WAS BASED ON THE REASONING BY THE CONTRACTING OFFICE AS FOLLOWS:

"ITEM 2 OF THE IFB INCLUDED A TOTAL QUANTITY OF 961 UNITS. THE STRATO BID DID NOT OFFER TO DELIVERY ANY OF THE 150 UNITS REQUIRED BY THE IFB IN 75 DAYS, AND, ACCORDINGLY, AS TO SUCH 150 UNITS THE STRATO BID WAS NOT RESPONSIVE. OF THE QUANTITY OF 200 UNITS REQUIRED BY THE IFB IN 105 DAYS, THE STRATO BID OFFERED 111 UNITS IN 105 DAYS AND IS CONSIDERED RESPONSIVE AS TO SUCH 111 UNITS. OF THE QUANTITY OF 300 UNITS REQUIRED BY THE IFB IN 135 DAYS, THE STRATO BID OFFERED 250 UNITS IN 135 DAYS AND IS CONSIDERED RESPONSIVE AS TO SUCH 250 UNITS. OF THE QUANTITY OF 311 UNITS REQUIRED BY THE IFB IN 165 DAYS, THE STRATO BID OFFERED 250 UNITS IN 165 DAYS AND IS CONSIDERED RESPONSIBLE AS TO SUCH 250 UNITS. THUS, THE STRATO BID IS CONSIDERED RESPONSIVE AS TO A TOTAL OF 611 UNITS, WHICH IS THE QUANTITY AWARDED TO STRATO. THE BID OF STRATO WAS NOT CONSIDERED RESPONSIVE AS TO THE REMAINING 350 UNITS OF THE TOTAL 961 UNITS IN ITEM 2. SUCH REMAINING 350 UNITS WERE AWARDED TO R. E. DARLING CO., INC., THE SECOND LOW BIDDER ON ITEM 2. THE AWARD TO R. E. DARLING CALLED FOR DELIVERY OF 150 UNITS IN 75 DAYS AND 200 UNITS WITHIN 105 DAYS, WHICH WAS IN ACCORDANCE WITH THE OFFER OF DELIVERY MADE BY R. E. DARLING CO. IN ITS BID.'

THE "TIME OF DELIVERY" CLAUSE STATES SPECIFICALLY THAT A BID WHICH OFFERS A DELIVERY SCHEDULE NOT CONFORMING TO THE DELIVERY SCHEDULE SET OUT IN THE INVITATION WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED "ONLY TO THE EXTENT TO WHICH THE BID FAILS TO CONFORM.' CONSIDERING THAT THE "TIME OF DELIVERY" CLAUSE ALSO PROVIDES THAT A BIDDER MAY OFFER DELIVERY OF PART OF THE SUPPLIES AND THAT PARAGRAPH 8 OF THE INSTRUCTIONS TO BIDDERS PROVIDES THAT BIDS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED AND THAT THE "AWARD BY ITEM" CLAUSE OF THE INVITATION RESERVES TO THE CONTRACTING OFFICER THE RIGHT TO AWARD BY SUBITEM, THE "TIME OF DELIVERY" CLAUSE COULD REASONABLY BE CONSTRUED IN THE CONTEMPLATION OF THE OTHER RELATED TERMS AS PERMITTING A BIDDER TO OFFER ONLY A PORTION OF A UNIT QUANTITY FOR DELIVERY BY ONE OF THE DAYS SET OUT IN THE INVITATION SCHEDULE AND STILL BE RESPONSIVE TO THE INVITATION.

IN THE CIRCUMSTANCES, IT APPEARS AT STRATO-SAFETY WAS AWARDED A CONTRACT ONLY FOR THOSE ITEMS WHICH IT OFFERED TO DELIVERY BY THE DAYS SPECIFIED IN THE INVITATION. SINCE SUCH AN AWARD DOES NOT APPEAR TO BE CONTRARY TO THE OVER-ALL INTENTION OF THE INVITATION, WE WILL NOT OBJECT TO THE AWARD MADE TO THAT BIDDER.