B-151737, JUL. 26, 1963

B-151737: Jul 26, 1963

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THE ESTIMATED ANNUAL REQUIREMENTS WERE STATED TO BE 12. THE ESTIMATED REQUIREMENTS ARE GIVEN FOR INFORMATION ONLY AND SHALL NOT RELIEVE THE CONTRACTOR OF HIS OBLIGATION TO FILL ANY AND ALL WRITTEN DELIVERY ORDERS ISSUED PURSUANT TO THE CONTRACT.'. MINIMUM ORDER THE CONTRACTOR WILL NOT BE OBLIGATED TO ACCEPT A DELIVERY ORDER FOR LESS THAN 100 UNITS OF ANY ITEM AWARDED. "2. MAXIMUM ORDER THE CONTRACTOR WILL NOT BE OBLIGATED TO ACCEPT A DELIVERY ORDER UNDER THE FOLLOWING CIRCUMSTANCES: (A) A QUANTITY IN EXCESS OF 5. WE DID NOT RECEIVE ANY AS OF THIS DATE AND THEREFORE ARE SUBMITTING THIS BID. THE BID ENCLOSED THEREWITH WAS: "WE QUOTE AS FOLLOWS ON THE FOLLOWING ITEMS:. WE ARE BIDDING ON A MINIMUM QUANTITY OF 1.

B-151737, JUL. 26, 1963

TO KENDRICK AND DAVIS COMPANY

THIS REFERS TO YOUR LETTER OF JUNE 6, 1963, WITH ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. 4-63-2318, ISSUED BY THE DEFENSE SUPPLY AGENCY.

THE SUBJECT INVITATION, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, ON MARCH 20, 1963, REQUESTED BIDS FOR THE AGENCY'S REQUIREMENTS, DURING THE PERIOD OF 12 MONTHS AFTER AWARD, FOR SWIVELKNOB JEWELER'S SCREWDRIVERS, IN ACCORDANCE WITH WESTERN ELECTRIC COMPANY P/N KS2348, OR EQUAL.

THE ESTIMATED ANNUAL REQUIREMENTS WERE STATED TO BE 12,300, BUT THE INVITATION PROVIDES THAT ,THE ESTIMATED REQUIREMENTS ARE GIVEN FOR INFORMATION ONLY AND SHALL NOT RELIEVE THE CONTRACTOR OF HIS OBLIGATION TO FILL ANY AND ALL WRITTEN DELIVERY ORDERS ISSUED PURSUANT TO THE CONTRACT.' ON PAGE NO. 3 OF THE SCHEDULE, UNDER THE HEADING "DELIVERY ORDER LIMITATIONS," IT FURTHER STATED AS FOLLOWS:

"1. MINIMUM ORDER

THE CONTRACTOR WILL NOT BE OBLIGATED TO ACCEPT A DELIVERY ORDER FOR LESS THAN 100 UNITS OF ANY ITEM AWARDED.

"2. MAXIMUM ORDER

THE CONTRACTOR WILL NOT BE OBLIGATED TO ACCEPT A DELIVERY ORDER UNDER THE FOLLOWING CIRCUMSTANCES:

(A) A QUANTITY IN EXCESS OF 5,000 UNITS OF ANY ITEM AWARDED ON A DELIVERY ORDER, OR

(B) A SERIES OF ORDERS WITHIN A 30-DAY PERIOD WHICH IN THE AGGREGATE EXCEED THE QUANTITY CITED IN 2 (A) ABOVE.'

IT APPEARS FROM THE RECORD THAT YOU WROTE A LETTER DATED MARCH 26, 1963, ADDRESSED TO THE ,DIRECTORATE FOR PROCUREMENT MGSA, RQMD UNITED STATES ARMY, RICHMOND 12, VIRGINIA," REQUESTING A COPY OF THE SUBJECT INVITATION. ON APRIL 17, 1963, YOU AGAIN WROTE TO THE SAME ADDRESS EFERENCE: "IFB-DSA-4-63-2318," STATING THAT:

"BACK ON MARCH 26, 1963 WE WROTE YOU AND ASKED FOR AN INVITE ON THIS PARTICULAR ITEM. WE DID NOT RECEIVE ANY AS OF THIS DATE AND THEREFORE ARE SUBMITTING THIS BID. THIS TOOL WOULD BE MADE IN ACCORDANCE TO THE ITEM ASKED FOR.'

THE BID ENCLOSED THEREWITH WAS:

"WE QUOTE AS FOLLOWS ON THE FOLLOWING ITEMS:---

FSN5120-240-8744

SCREWDRIVER, JEWELER-S, SWIVEL KNOB; STEEL KNURLED HANDLE W/WOODEN SWIVEL KNOB, RETRACTABLE PILOT PIN EXTENDING THRU CENTER OF BIT, 1/8 INCH TIP WIDTH. IN ACCORD. WITH WESTERN ELECTRIC P/N KS2348 OR EQUAL.

TABLE

MANUFACTURERS NAME BRAND:--- K. AND D. NO. 28-WE KENDRICK AND DAVIS COMPANY LEBANON, N.H.

WE QUOTE ?98 EACH. F.O.B. DESTINATION.

WE ARE BIDDING ON A MINIMUM QUANTITY OF 1,000, AND A MAXIMUM QUANTITY OF 15,000.'

BIDS WERE OPENED ON APRIL 19, 1963, AND 9 PRICE QUOTATIONS WERE RECEIVED. YOUR QUOTE OF ?98 EACH WAS LOW, CENTURY TOOL COMPANY'S QUOTE OF $1.08 EACH WAS NEXT LOW, AND THE OTHER SEVEN BIDS RANGED FROM $1.19 TO $7.60. THE CONTRACTING OFFICER CONCLUDED THAT YOUR LOW BID WAS NONRESPONSIVE ON THE GROUNDS THAT YOUR BID FAILED TO INDICATE ACCEPTANCE OF THE TERMS AND CONDITIONS OF THE INVITATION AND CONTAINED AN EXCEPTION TO THE INVITATION PROVISIONS REGARDING THE QUANTITY OF UNITS TO BE SUPPLIED. HE PROPOSES TO MAKE THE AWARD TO THE NEXT LOW BIDDER, AT $1.08 EACH FOR THE ITEM.

YOU QUESTION THE REJECTION OF YOUR LOW BID.

ASPR 2-301 (C) PROVIDES THAT IF A BIDDER USES A LETTER TO SUBMIT A BID, "THE BID MAY BE CONSIDERED ONLY IF (I) THE BIDDER ACCEPTS ALL THE TERMS AND CONDITIONS OF THE INVITATION, AND (II) AWARD ON THE BID WOULD RESULT IN A BINDING CONTRACT THE TERMS AND CONDITIONS OF WHICH DO NOT VARY FROM THE TERMS AND CONDITIONS OF THE INVITATION.' IT IS CLEAR THAT YOU HAVE IMPOSED ABSOLUTE MINIMUM AND MAXIMUM QUANTITY LIMITATIONS IN YOUR BID WHICH VARY FROM THE STATED TERMS OF THE INVITATION; AND THAT YOUR BID MAY NOT BE ACCEPTED. UNDER THE TERMS OF THE INVITATION, THE CONTRACTOR MAY BE REQUIRED TO FURNISH ANY QUANTITY OVER 100, AND UP TO 5000 UNITS EVERY 30- DAY PERIOD (OVER THE 12 MONTH CONTRACT PERIOD), AND THE GOVERNMENT DOES NOT PROMISE TO ORDER ANY QUANTITY.

YOU STATE THAT IF YOUR LOW BID IS NONRESPONSIVE, THIS IS SO ONLY BECAUSE THE ADMINISTRATIVE ACTIVITY FAILED TO PROVIDE YOU WITH A COPY OF THE INVITATION, DESPITE YOUR TIMELY REQUEST. YOU CONTEND THAT THE PROCUREMENT WAS THEREFORE IMPROPERLY ADVERTISED AND SHOULD BE CANCELLED.

THE CONTRACTING OFFICER REPORTS THAT THE RECORDS AT THE PROCURING CENTER DO NOT DISCLOSE ANY EVIDENCE OF RECEIPT OF THE MARCH 26 LETTER OR ANY LETTER FROM YOUR FIRM PRIOR TO THE TIME OF THE BID OPENING, REQUESTING A COPY OF THE INVITATION. HE FURTHER REPORTS THE CENTER RECORDS SHOW THAT YOUR FIRM NEVER SUBMITTED A BID ON THE ITEM IN QUESTION NOR INDICATED AN INTEREST IN BIDDING ON THE ITEM PRIOR TO THE PRESENT PROCUREMENT; AND THAT YOUR CURRENT CATALOGUES DO NOT CONTAIN INFORMATION INDICATING THAT YOUR FIRM WOULD HAVE BEEN INTERESTED IN BIDDING ON THIS PROCUREMENT. HE STATES THAT FOR THESE REASONS YOUR FIRM WAS NOT INCLUDED IN THE ORIGINAL BIDDERS LIST TO WHICH INVITATIONS WERE SENT.

ON THE OTHER HAND, THE CONTRACTING OFFICER REPORTS THAT INVITATIONS WERE MAILED TO ALL 40 FIRMS WHICH DID APPEAR ON THE BIDDER'S MAILING LIST FOR THE ITEM; NOTICE OF THE INVITATION WAS PUBLISHED IN THE DEPARTMENT OF COMMERCE SYNOPSIS OF PROPOSED PROCUREMENT; AND THE INVITATION WAS PUBLICLY DISPLAYED AT THE PROCUREMENT CENTER.

SECTION I, PART 10 OF THE ASPR SETS FORTH THE PROCEDURES GENERALLY TO BE FOLLOWED IN PUBLICIZING PROCUREMENT ACTIONS, AND IT APPEARS THAT THESE PROCEDURES WERE FOLLOWED BY THE PROCURING OFFICE IN THIS PROCUREMENT. WHILE IT IS REGRETTABLE THAT YOUR FIRM DID NOT OBTAIN A COPY OF THE BID INVITATION PRIOR TO BID OPENING, IT DOES NOT APPEAR THAT THE PROCURING ACTIVITY WAS AWARE OF YOUR INTEREST IN THE PROCUREMENT UNTIL AFTER IT RECEIVED YOUR LETTER BID, AND THERE IS NO INDICATION THAT THERE WAS ANY CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE YOU FROM THE PROCUREMENT.

UNDER THESE CIRCUMSTANCES, THERE IS NO PROPER BASIS FOR REQUIRING THAT THE PROCUREMENT BE CANCELLED AND READVERTISED. SEE 34 COMP. GEN. 684. ALTHOUGH SUCH ACTION MIGHT RESULT IN SOME BENEFIT TO YOU AND TO THE GOVERNMENT, IT WOULD BE CLEARLY PREJUDICIAL TO THE BIDDERS WHOSE PRICES HAVE NOW BEEN DISCLOSED, AND TO THE BASIC PRINCIPLES OF PROCUREMENT BY COMPETITIVE SEALED BIDS.