B-148129, MAR. 28, 1962

B-148129: Mar 28, 1962

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 7. WHICH WAS ISSUED ON DECEMBER 13. TWO OTHER ACCEPTABLE BIDS WERE RECEIVED IN THE AMOUNTS OF $35. YOUR BID WAS DETERMINED TO BE NONRESPONSIVE TO A PART OF THE DELIVERY SCHEDULE AND. AN AWARD WAS MADE ON JANUARY 31. "BIDDERS ARE CAUTIONED TO CONSIDER THE GOVERNMENT'S REQUIRED DELIVERY AS BIDS SPECIFYING DELIVERY AFTER THE TIME SPECIFIED ABOVE WILL BE REJECTED.'. WHICH IS A MATTER WITHIN THE DISCRETION OF THE ADMINISTRATIVE PROCUREMENT OFFICIALS. IT IS PRESUMED THAT THE SIGNIFICANT TERMS OF THE INVITATION. WE HAVE CONSISTENTLY HELD THAT WHERE AN INVITATION REQUIRES DELIVERY BY A STATED TIME AND A RESPONSIVE BID IS RECEIVED.

B-148129, MAR. 28, 1962

TO KINGS ELECTRONICS COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 7, 1962, PROTESTING AWARD OF CONTRACT UNDER DAYTON AIR FORCE DEPOT INVITATION NO. 33-604-62-255 TO ANY BIDDER OTHER THAN YOUR CORPORATION.

IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED ON DECEMBER 13, 1961, BY THE DEPOT, YOU SUBMITTED A BID DATED DECEMBER 20, 1961, OFFERING TO FURNISH ITEM NO. 1, COVERING 30,300 CONNECTOR RECEPTACLES AT $0.89 EACH, OR FOR A TOTAL PRICE OF $26,967. TWO OTHER ACCEPTABLE BIDS WERE RECEIVED IN THE AMOUNTS OF $35,754 AND $51,510. YOUR BID WAS DETERMINED TO BE NONRESPONSIVE TO A PART OF THE DELIVERY SCHEDULE AND, THEREFORE, AN AWARD WAS MADE ON JANUARY 31, 1962, TO FXR, A DIVISION OF THE AMPHENOL-BORG ELECTRONICS CORPORATION ON THE BASIS OF ITS SECOND LOW ACCEPTABLE BID OF $35,754.

IN THE LETTER OF FEBRUARY 7, 1962, YOU PROTEST THE RULING OF THE AIR FORCE DEPOT IN DECLARING YOUR BID NONRESPONSIVE AS BEING MORALLY WRONG. YOU CONTEND THAT DUE TO A SIMPLE TRANSCRIPTION ERROR YOU OFFERED TO FURNISH 4,000 CONNECTOR RECEPTACLES WITHIN 60 DAYS AFTER AWARD INSTEAD OF THE REQUIRED 5,000 UNITS, AND THAT THE FAILURE TO MAKE AN AWARD TO YOU FOR SUCH A SMALL ERROR RESULTS IN AN UNDUE PENALTY TO YOU AS WELL AS THE ADDITIONAL EXPENSE OF $8,700 TO THE GOVERNMENT.

PARAGRAPH H, DELIVERY, ON PAGE 5 OF THE SPECIAL PROVISIONS OF THE INVITATION PROVIDES, IN PERTINENT PART, THAT:

"THE GOVERNMENT REQUIRES THAT THE FIRST LOT OF 5,000 EACH TO BE DELIVERED WITHIN 60 DAYS AFTER RECEIPT BY THE CONTRACTOR OF EITHER A WRITTEN NOTICE OF AWARD OR OF A FULLY EXECUTED AND BINDING CONTRACT.

"BIDDERS ARE CAUTIONED TO CONSIDER THE GOVERNMENT'S REQUIRED DELIVERY AS BIDS SPECIFYING DELIVERY AFTER THE TIME SPECIFIED ABOVE WILL BE REJECTED.'

AS ADMITTED BY YOU, THESE DELIVERY REQUIREMENTS STATED VERY CLEARLY THAT BIDS SPECIFYING A DELIVERY DATE LATER THAN THE TIME SPECIFIED WOULD BE REJECTED. YOU ALSO ADMIT THAT THROUGH ERROR YOUR BID SPECIFIED THAT YOU WOULD FURNISH ONLY 4,000 CONNECTOR RECEPTACLES WITHIN THE 60 DAYS PROVIDED IN THE DELIVERY SCHEDULE INSTEAD OF THE 5,000 UNITS SPECIFIED.

REGARDLESS OF THE JUSTIFICATION FOR THE DELIVERY REQUIREMENT HERE SPECIFIED, WHICH IS A MATTER WITHIN THE DISCRETION OF THE ADMINISTRATIVE PROCUREMENT OFFICIALS, IT IS PRESUMED THAT THE SIGNIFICANT TERMS OF THE INVITATION, INCLUDING THE DELIVERY SCHEDULE, REPRESENT THE ACTUAL NEEDS OF THE GOVERNMENT. WE HAVE CONSISTENTLY HELD THAT WHERE AN INVITATION REQUIRES DELIVERY BY A STATED TIME AND A RESPONSIVE BID IS RECEIVED, THE CONTRACTING OFFICER HAS NO AUTHORITY TO MAKE AN AWARD TO A LOWER BIDDER WHO DID NOT AGREE IN HIS BID TO MEET THE DELIVERY REQUIREMENTS. SEE, FOR EXAMPLE, 36 COMP. GEN. 181. THE PRINCIPLE IS EQUALLY APPLICABLE WHETHER THE LOW BID IS NOT IN ACCORDANCE WITH THE FINAL DELIVERY DATE OR ONE OR MORE OF THE INTERIM DELIVERY DATES. UNDER THE CIRCUMSTANCES, YOUR BID PROPERLY WAS DETERMINED TO BE NONRESPONSIVE.

IT APPEARS TO BE YOUR POSITION THAT CONSIDERATION SHOULD HAVE BEEN GIVEN TOWARD ALLOWING CORRECTION OF THE ERROR MADE IN THE DELIVERY TERMS OF YOUR BID UNDER THE GENERAL RULES RECOGNIZED BY THE GOVERNMENT AS GOVERNING MISTAKES IN BID. A SIMILAR CONTENTION IN THIS REGARD WAS CONSIDERED IN 38 COMP. GEN. 876 AND, IN DISPOSING OF THE ISSUE, IS WAS STATED AT PAGE 878:

"* * * ERRORS IN BID WHICH MAY BE CORRECTED AFTER OPENING ARE THOSE WHICH DO NOT AFFECT THE RESPONSIVENESS OF THE BID. B-139132, MAY 14, 1959. SINCE YOUR BID, AS INDICATED ABOVE, IS NOT RESPONSIVE IN THE FORM SUBMITTED, IT MAY NOT BE CONSIDERED FOR CORRECTION.'

YOU ALSO POINT OUT THAT FAILURE TO ALLOW CORRECTION OF THE SMALL ERROR AND AWARD THE CONTRACT TO YOU RESULTS IN THE ADDITIONAL EXPENSE OF $8,700 TO THE GOVERNMENT. IN 37 COMP. GEN. 110, AT PAGE 112, WE STATED:

"* * * INFORMALITIES WHICH PROPERLY MAY BE WAIVED ARE THOSE THAT DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, BUT MATERIAL CONDITIONS IMPOSED BY A BIDDER MAY NOT BE WAIVED AS AN INFORMALITY OR MINOR IRREGULARITY. SEE 20 COMP. GEN. 4. PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS, OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED, WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. CF. UNITED STATES V. BROOKRIDGE, 111 F.2D 461, 464, AND THE OPINION OF THE SUPREME COURT OF ILLINOIS IN CITY OF CHICAGO V. MOHR, 74 N.E. 1056.'

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL OBJECTION TO THE PROCEDURES FOLLOWED BY THE ..END :