B-150264, JANUARY 10, 1963, 42 COMP. GEN. 355

B-150264: Jan 10, 1963

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SHOULD NOT HAVE BEEN HELD NONRESPONSIVE. ALTHOUGH THE BID AND THE DATA SHOULD NOT HAVE BEEN INTERPRETED WITHOUT CLARIFICATION AS QUALIFYING THE DELIVERY SCHEDULE SPECIFIED IN THE INVITATION. THE MANUFACTURER'S LETTER WAS SUSCEPTIBLE OF THE INTERPRETATION MADE BY THE CONTRACTING OFFICER AND. THE ENCLOSURES TO WHICH ARE RETURNED. DELIVERY TIME IS MANDATORY. A BID OFFERING A LATER DELIVERY TIME THAN THAT SPECIFIED ABOVE WILL BE CONSIDERED NONRESPONSIVE. BIDS WERE OPENED AS SCHEDULED ON SEPTEMBER 24. WAS ACCOMPANIED BY A LETTER DATED SEPTEMBER 20 WHICH STATED IN PERTINENT PART: SUBJECT BID INVITATION IS PREDICATED UPON OUR FURNISHING KSP51EL12 SUBJECT BID INVITATION IS PREDICATED UPON OUR FURNISHING KSP51EL12 MOTORS IN LIEU OF 5KSP51EL553.

B-150264, JANUARY 10, 1963, 42 COMP. GEN. 355

BIDS - EVALUATION - DELIVERY PROVISIONS - BID AND DATA IN CONFLICT A LOW BID THAT DID NOT TAKE EXCEPTION TO THE MANDATORY DELIVERY TIME OF THE INVITATION, BUT THE MANUFACTURER'S LETTER FURNISHED PRIOR TO THE BID OPENING TO IDENTIFY THE CHANGE IN THE EQUIPMENT OFFERED, AS PROVIDED IN THE BID, INDICATED A LONGER DELIVERY PERIOD, WHICH THE CONTRACTING OFFICER WITHOUT VERIFICATION CONSIDERED AS QUALIFYING THE BID, SHOULD NOT HAVE BEEN HELD NONRESPONSIVE, THE INTENT OF THE DATA SUBMITTED PRIOR TO THE BID OPENING BEING ONLY TO ESTABLISH THE ACCEPTABILITY OF THE EQUIPMENT OFFERED IN LIEU OF THE SPECIFICATION REQUIREMENT; HOWEVER, ALTHOUGH THE BID AND THE DATA SHOULD NOT HAVE BEEN INTERPRETED WITHOUT CLARIFICATION AS QUALIFYING THE DELIVERY SCHEDULE SPECIFIED IN THE INVITATION, THE MANUFACTURER'S LETTER WAS SUSCEPTIBLE OF THE INTERPRETATION MADE BY THE CONTRACTING OFFICER AND, THEREFORE, IN VIEW OF THE TIME THAT HAS EXPIRED, THE AWARD TO THE SECOND LOW BIDDER NEED NOT BE CANCELED.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, JANUARY 10, 1963:

WE REFER TO A LETTER OF DECEMBER 11, 1962, THE ENCLOSURES TO WHICH ARE RETURNED, SIGNED BY THE ACTING DIRECTOR, INSTALLATION AND MATERIEL SERVICE, TRANSMITTING A REPORT PURSUANT TO OUR REQUEST OF NOVEMBER 16 CONCERNING A PROTEST BY EMTEX, A DIVISION OF MISSILE SYSTEMS CORPORATION, AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER PURSUANT TO INVITATION NO. 87-3-18-B1 FOR BLOWER KITS AND RELATED ITEMS.

THE INVITATION, ISSUED AUGUST 24, 1962, CONTAINED THE FOLLOWING PROVISION WITH RESPECT TO TIME OF DELIVERY:

DELIVERY TIME: THE GOVERNMENT REQUIRES DELIVERY WITHIN THE TIME SPECIFIED BELOW:

(A) ONE HUNDRED (100) UNITS SHALL BE DELIVERED WITHIN ONE HUNDRED TWENTY (120) CALENDAR DAYS FROM THE EFFECTIVE DATE OF THE NOTICE TO PROCEED.

(B) THE REMAINDER OF THE UNITS ORDERED SHALL BE DELIVERED AT THE MINIMUM RATE OF TWO HUNDRED (200) UNITS EACH SEVEN (7) CALENDAR DAY PERIOD THEREAFTER UNTIL COMPLETION.

DELIVERY TIME IS MANDATORY. A BID OFFERING A LATER DELIVERY TIME THAN THAT SPECIFIED ABOVE WILL BE CONSIDERED NONRESPONSIVE.

BIDS WERE OPENED AS SCHEDULED ON SEPTEMBER 24, 1962. THE LOW BID, SUBMITTED BY EMTEX, WAS ACCOMPANIED BY A LETTER DATED SEPTEMBER 20 WHICH STATED IN PERTINENT PART:

SUBJECT BID INVITATION IS PREDICATED UPON OUR FURNISHING KSP51EL12 SUBJECT BID INVITATION IS PREDICATED UPON OUR FURNISHING KSP51EL12 MOTORS IN LIEU OF 5KSP51EL553. GENERAL ELECTRIC ADVISED THAT BOTH MOTORS ARE EQUAL, AND THAT THE 5KSP51EL553 IS A REPLACEMENT MOTOR HANDLED BY DEALERS, WHICH CANNOT BE SOLD TO OEM MANUFACTURERS.

I WILL FORWARD A COPY OF THE GENERAL ELECTRIC LETTER IN THE NEXT FEW DAYS.

ANOTHER LETTER FROM EMTEX, DATED SEPTEMBER 21, 1962, PRESUMABLY RECEIVED PRIOR TO BID OPENING, CONTAINED THE FOLLOWING STATEMENT:

IN ACCORDANCE WITH OUR LETTER OF SEPTEMBER 20, 1962 WHICH WAS ENCLOSED WITH OUR BID ON THE SUBJECT INVITATION, WE ARE ENCLOSING HEREWITH TWO COPIES OF A LETTER FROM THE GENERAL ELECTRIC COMPANY. THIS EXPLAINS THEIR INABILITY TO SUPPLY THE MODEL KSP51EL553 MOTOR TO O.E.M. ACCOUNTS.

THE REFERENCED LETTER FROM GENERAL ELECTRIC STATED IN PART:

THIS LETTER WILL CONFIRM OUR TELEPHONE CONVERSATION OF TODAY, WHEREIN YOU REQUESTED ME TO QUOTE YOU A PRICE ON OUR MODEL KSP51EL553 MOTOR.

THIS MOTOR IS NOT MADE AVAILABLE TO O.E.M.'S BY GENERAL ELECTRIC COMPANY SINCE THIS MOTOR IS A UNIVERSAL REPLACEMENT MOTOR WHICH IS SUPPLIED TO OUR SMALL MOTOR SERVICE STATIONS FOR REPLACEMENT PURPOSES ONLY. IN ITS STEAD WE WOULD LIKE TO QUOTE OUR MODEL KSP51EL12 WHICH IS AN EQUIVALENT MOTOR. THE MOTOR HAS A NET PRICE OF $4.56 EACH NET IN 1,000 LOT SINGLE ORDERS FOR SHIPMENT WITHIN 180 DAYS FROM DATE OF INITIAL SHIPMENT AGAINST THE ORDER. SHIPMENT IS MADE F.O.B. JONESBORO, ARKANSAS WITH TRANSPORTATION ALLOWED TO ANY RAILROAD DESTINATION WITHIN THE CONTINENTAL UNITED STATES, EXCLUDING ALASKA, PROVIDED THE COMPANY IS ALLOWED TO SELECT THE POINT OF ORIGINAL SHIPMENT, THE METHOD OF TRANSPORTATION, AND THE ROUTING OF THE SHIPMENT. ANY ADDITIONAL DELIVERY EXPENSE INCURRED AT THE PURCHASER'S REQUEST WILL BE PAID BY THE PURCHASER.

THE CONTRACTING OFFICER DETERMINED THAT THE CORRESPONDENCE QUOTED ABOVE SHOULD BE INTERPRETED AS OFFERING INITIAL DELIVERY WITHIN APPROXIMATELY 180 CALENDAR DAYS RATHER THAN THE 120 CALENDAR DAYS SPECIFIED IN THE INVITATION. ACCORDINGLY, THE EMTEX BID WAS REJECTED AS NONRESPONSIVE, AND AWARD WAS MADE ON OCTOBER 26, 1962, FOR 1,250 BLOWER KITS PLUS RELATED ITEMS TO THE NEXT LOW BIDDER AT A PRICE OF $28,425, MORE THAN $2,000 HIGHER THAN THE PRICE OFFERED IN THE EMTEX BID.

IT IS REPORTED IN THE LETTER OF DECEMBER 11 THAT THE WASHINGTON REPRESENTATIVE FOR EMTEX RECEIVED AN EXPLANATION FOR THE REJECTION FROM THE CONTRACTING OFFICER ON OCTOBER 29, 1962, AND IS SAID TO HAVE AGREED THAT SUCH ACTION WAS PROPER. NEVERTHELESS THE AWARD WAS PROTESTED BY EMTEX BY LETTER OF NOVEMBER 1, 1962, AND SUBSEQUENT CORRESPONDENCE, ON THE GROUNDS THAT THE LETTER FROM THE GENERAL ELECTRIC COMPANY WAS INCLUDED IN THE BID DATA SOLELY IN EXPLANATION OF THE CHANGE IN THE IDENTIFICATION OF THE MOTOR OFFERED. FURTHER, BY LETTER OF NOVEMBER 15, WHICH ENCLOSED A LETTER OF THE SAME DATE FROM GENERAL ELECTRIC, IT WAS SHOWN THAT THE PRICE OFFERED WAS EFFECTIVE ONLY IF THE QUANTITY ORDERED WOULD BE TAKEN WITHIN 180 DAYS FROM INITIAL SHIPMENT. IT IS INDICATED FURTHER THAT THE ITEM IS NORMALLY SHIPPED FROM FACTORY STOCK, AND EVEN WHEN STOCK IS DEPLETED SHIPMENT CAN BE MADE WITHIN THREE TO FOUR WEEKS OF THE ORDER.

WE THINK IT PROPER TO NOTE INITIALLY THAT AN EXPLANATION SUBMITTED AFTER OPENING CANNOT RENDER A BID ACCEPTABLE BY EXPLAINING AWAY SOME APPARENT MATERIAL QUALIFICATION. RATHER, IF THE BID ON ITS FACE IS NOT RESPONSIVE TO THE MATERIAL PROVISIONS OF THE INVITATION, INCLUDING TIME OF DELIVERY, IT MUST BE REJECTED UNDER 41 U.S.C. 253 (B) REQUIRING AWARD TO THAT RESPONSIBLE BIDDER WHOSE BID "CONFORMING TO THE INVITATION FOR BIDS" WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT.

WHERE THE CIRCUMSTANCES ESTABLISH A REASONABLE INFERENCE THAT MATERIAL SUBMITTED WITH THE BID WAS INTENDED TO BE A PART THEREOF, IT SHOULD BE SO REGARDED. IN ESTABLISHING THE INTENT ALL OF THE LANGUAGE EMPLOYED SHOULD BE TAKEN INTO CONSIDERATION. SEE 39 COMP. GEN. 878, 879. IN THIS CASE THE LETTER OF SEPTEMBER 20 INDICATES THAT THE CORRESPONDENCE FROM GENERAL ELECTRIC WAS TO BE SUBMITTED FOR THE PURPOSE OF ESTABLISHING THE ACCEPTABILITY OF THE MOTOR OFFERED IN LIEU OF THAT PRESCRIBED IN THE SPECIFICATION. THE LETTER OF SEPTEMBER 21, WHICH TRANSMITTED THE COPY OF THE GENERAL ELECTRIC LETTER, AGAIN MAKES IT CLEAR THAT THE PURPOSE OF THE SUBMISSION IS SOLELY TO EXPLAIN THE OFFER OF A MOTOR OTHER THAN THE MODEL NUMBER STATED IN THE SPECIFICATIONS. AS TO THE SENTENCE IN THE GENERAL ELECTRIC LETTER OF SEPTEMBER 20, 1962, CONCERNING TIME OF DELIVERY, WE AGREE THAT IT IS SUSCEPTIBLE OF THE INTERPRETATION PLACED ON IT BY THE CONTRACTING OFFICER, I.E., THAT THE ENTIRE DELIVERY OF THE MOTORS WOULD NOT NECESSARILY BE MADE IN LESS THAN 180 DAYS FROM DATE OF INITIAL SHIPMENT. HOWEVER, THE LETTERS FROM EMTEX MAKE IT CLEAR, IN OUR JUDGMENT, THAT THIS PORTION OF THE GENERAL ELECTRIC LETTER WAS NO MORE INTENDED TO BE A PART OF THE BID THAN THE INFORMATION CONCERNING POINT OF DELIVERY, METHOD OF TRANSPORTATION, OR TERMS OF PAYMENT. FURTHERMORE, ANY DOUBT IN THE MATTER SHOULD HAVE BEEN RESOLVED, IN OUR JUDGMENT, ON THE BASIS OF THE FAILURE OF THE PROTESTING BIDDER TO TAKE EXCEPTION TO THE FOLLOWING STATEMENT ON PAGE 1 OF THE BID FORM: "IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES * * * TO FURNISH ANY OR ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED * * * WITHIN THE TIME SPECIFIED IN THE SCHEDULE.'

WE CONCLUDE THAT THE EMTEX BID, INCLUDING ALL DATA RECEIVED PRIOR TO BID OPENING, SHOULD NOT HAVE BEEN INTERPRETED AS QUALIFYING THE DELIVERY SCHEDULE SET OUT IN THE INVITATION, WITHOUT CLARIFICATION FROM EMTEX. HOWEVER, SINCE THE LETTER IN QUESTION WAS SUSCEPTIBLE OF THE CONTRACTING OFFICER'S INTERPRETATION OF IT AND IN VIEW OF THE TIME WHICH HAS EXPIRED SINCE AWARD, WE WILL NOT REQUIRE CANCELLATION OF THE CONTRACT.

WITH RESPECT TO YOUR STATEMENT THAT THE WASHINGTON REPRESENTATIVE OF EMTEX INDICATED HIS AGREEMENT WITH THE CONTRACTING OFFICER'S ACTION, WE NOTE THAT SUCH AGREEMENT AS REPORTED BY YOU WAS MADE SEVERAL DAYS AFTER AWARD, AND MORE THAN A MONTH AFTER BID OPENING. UNDER SUCH CIRCUMSTANCES SUCH STATEMENT COULD NO MORE DISQUALIFY A RESPONSIVE BID THAN IT COULD RENDER A NONRESPONSIVE BID ACCEPTABLE.