B-152427, NOV. 18, 1963

B-152427, NOV. 18, 1963

TO BROOKPARK, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 5 AND 6, AND OCTOBER 26, 1963, RELATIVE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO PROLON PLASTICS UNDER GENERAL SERVICES ADMINISTRATION INVITATION FPNGC-B-29389-A- 8-8-63.

THE INVITATION SOLICITED BIDS FOR FURNISHING 200,000 PLASTICWARE DINNER PLATES. UNDER THE TERMS OF THE INVITATION IT WAS NOT NECESSARY FOR A BIDDER TO OFFER TO FURNISH THE ENTIRE QUANTITY. PARAGRAPH 8 (C) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDED THAT BIDS COULD BE SUBMITTED FOR LESS THAN THE ENTIRE QUANTITY AND PARAGRAPH 3 OF THE INVITATION SCHEDULE CONTEMPLATED THAT PROGRESSIVE AWARDS WOULD BE MADE IN THE EVENT BIDS WERE SUBMITTED TO FURNISH PARTIAL QUANTITIES.

WITH RESPECT TO DELIVERY OF THE PLATES, PARAGRAPH 4 OF THE INVITATION SCHEDULE PROVIDED:

"AVAILABILITY FOR INSPECTION AND SHIPMENT: THE GOVERNMENT DESIRES MATERIAL TO BE AVAILABLE FOR INSPECTION AND SHIPMENT AS FOLLOWS:

A. 100,000 PLATES WITHIN 30 DAYS AFTER NOTICE OF AWARD.

B. 100,000 PLATES WITHIN 60 DAYS AFTER NOTICE OF AWARD.

INSERT BELOW A DEFINITE NUMBER OF DAYS WITHIN WHICH SHIPMENTS WILL BE AVAILABLE. IF BIDDER DOES NOT INDICATE A SPECIFIC NUMBER OF DAYS, HIS BID WILL BE CONSIDERED AS MEETING ABOVE REQUESTS. TIME OF AVAILABILITY WILL NOT BE A FACTOR IN EVALUATING BIDS; BUT AVAILABILITY OFFERS IN EXCESS OF AFOREMENTIONED REQUIREMENTS WILL BE CONSIDERED UNREASONABLE.

BIDDER'S PROPOSED INSPECTION AND SHIPMENT:

A. ------ PLATES WITHIN ------ DAYS AFTER NOTICE OF AWARD.

B. ------ PLATES WITHIN ------ DAYS AFTER NOTICE OF AWARD.

TWO BIDDERS, INCLUDING YOUR COMPANY, OFFERED TO FURNISH THE TOTAL QUANTITIES WITHIN THE TIME SPECIFIED IN THE SCHEDULES. TWO OTHER BIDDERS OFFERED TO SUPPLY PARTIAL QUANTITIES IN EQUAL INCREMENTS IN EACH OF THE SPECIFIED DELIVERY PERIODS. A FIFTH BIDDER, PROLON PLASTICS, OFFERED DELIVERY AS FOLLOWS:

"A. 100,000 PLATES WITHIN 30 DAYS AFTER *START OF PRODUCTION.

B. 100,000 PLATES WITHIN 60 DAYS AFTER *START OF PRODUCTION.' THE ASTERISK (*) REFERRED TO A FOOTNOTE WHICH STATED:

"START OF PRODUCTION WILL BE THREE WEEKS AFTER DATE OF AWARD DUE TO TOOLING REQUIREMENTS FOR ALLIANCE FOR PROGRESS MOLDED EMBLEM AS SPECIFIED IN PARAGRAPH F. 12.'

THE GENERAL SERVICES ADMINISTRATION HAS REPORTED THAT SINCE THE "START OF PRODUCTION" WAS FIRM AT THREE WEEKS, OR 21 DAYS, AFTER DATE OF AWARD AND SHIPMENT OF 100,000 UNITS WOULD BE 30 DAYS THEREAFTER, A RESPONSIVE BID OF 100,000 UNITS FOR SHIPMENT IN 51 DAYS WAS DEEMED TO HAVE BEEN RECEIVED AND ON SEPTEMBER 3, 1963, AN AWARD WAS MADE TO PROLON FOR 100,000 DINNER PLATES FOR SHIPMENT IN 51 DAYS. THE ADMINISTRATIVE REPORT STATES THAT PARAGRAPH 8 (C) OF THE TERMS AND CONDITIONS OF THE INVITATION ARE RELEVANT ON THIS POINT. APPARENTLY THE REFERENCE IS TO THAT PART OF THE PARAGRAPH WHICH PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY BID UPON AT THE UNIT PRICES OFFERED.

IT IS YOUR CONTENTION THAT THE PROLON BID WAS NONRESPONSIVE AND SHOULD HAVE BEEN REJECTED. IN SUPPORT OF YOUR POSITION, YOU STATE THAT THE INVITATION REQUIRED BIDDERS TO BEGIN SHIPMENT WITHIN 30 DAYS, BUT THAT PROLON WAS ALLOWED 51 DAYS TO THE PREJUDICE OF OTHER BIDDERS. YOU SUGGEST THAT THERE HAS BEEN PREFERENTIAL TREATMENT FOR PROLON BECAUSE TIME OF DELIVERY WOULD BE A FACTOR IN ARRIVING AT PRICE. ALSO, BECAUSE TIME OF DELIVERY HAS A BEARING ON PRICE, YOU SUGGEST THAT THE PROLON BID WAS DEFECTIVE IN SUBSTANCE.

THE "AVAILABILITY FOR INSPECTION AND SHIPMENT" CLAUSE IN THE SCHEDULE IS NOT CRYSTAL CLEAR, BUT THERE ARE ELEMENTS IN IT THAT SUPPORT YOUR CONTENTION THAT BIDDERS WERE TO MAKE OFFERS UNDER BOTH THE 30- AND 60-DAY SCHEDULE. THE CLAUSE DIRECTS BIDDERS TO INDICATE THE NUMBER OF DAYS WITHIN WHICH "SHIPMENTS" WILL BE AVAILABLE. THIS SEEMS TO CONTEMPLATE THAT MORE THAN ONE SHIPMENT WILL BE MADE. AND SINCE THE INVITATION CALLS FOR AN EARLY AND A LATE SHIPMENT, IT SEEMS REASONABLE TO EXPECT THAT BIDDERS WILL INTERPRET THIS AS REQUIRING AN OFFER UNDER EACH SCHEDULE. THE SCHEDULE PROVIDED FOR THE BIDDERS TO INDICATE THEIR SHIPMENT CALLS FOR INFORMATION ON TWO DIFFERENT SHIPMENT PERIODS TOO. FURTHER SUPPORT FOR AN INTERPRETATION THAT BIDDERS ARE TO RESPOND TO EACH SHIPMENT SCHEDULE CAN BE FOUND IN THE STATEMENT IN THE CLAUSE THAT "AVAILABILITY OFFERS IN EXCESS OF AFOREMENTIONED REQUIREMENTS WILL BE CONSIDERED UNREASONABLE.' THE PLURAL REFERENCE AGAIN SEEMS TO INDICATE THAT AN OFFER TO EACH SCHEDULE IS INDICATED. AS A MATTER OF FACT, BIDDERS MUST HAVE INTERPRETED THE REQUIREMENTS IN THIS WAY BECAUSE EACH OF THEM OFFERED EQUAL INCREMENTS UNDER THE EARLY AND THE LATE SCHEDULE.

IN THE CIRCUMSTANCES, IT SEEMS THAT THE BIDDERS MAY HAVE BEEN PREJUDICED BY THE CONSIDERATION OF THE PROLON 51-DAY BID OFFERED UNDER PART "A" OF THE DELIVERY SCHEDULE, SINCE OTHER BIDDERS PROBABLY IN PREPARING THEIR BIDS DID TAKE INTO CONSIDERATION THE COST THAT WOULD BE ENTAILED IN MEETING THE 30-DAY REQUIREMENT. REASONABLY, IT MIGHT BE EXPECTED THAT IF OTHER BIDDERS WERE ALLOWED TO BID TO A MORE LIBERAL SCHEDULE AS PROLON DID THEY MIGHT HAVE BEEN ABLE TO PROVIDE BETTER PRICES. HOWEVER, IT IS NOT ESTABLISHED THAT THOSE PRICES WOULD HAVE NECESSARILY BETTERED THE PROLON PRICE.

IN VIEW OF THE FOREGOING, AND INASMUCH AS THE 100,000 PLATES HAVE PROBABLY BEEN DELIVERED BY THIS TIME--- 51 DAYS FROM SEPTEMBER 3, THE DATE OF AWARD, WOULD HAVE BEEN OCTOBER 24--- OUR OFFICE WILL NOT DISTURB THE AWARD THAT HAS BEEN MADE; HOWEVER, WITH A VIEW TOWARD PRECLUDING RECURRENCE OF THE IMMEDIATE SITUATION, WE ARE BRINGING IT TO THE ATTENTION OF THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION WITH A RECOMMENDATION THAT STEPS TO BE TAKEN TO STATE THE GOVERNMENT'SREQUIREMENTS IN FUTURE INVITATIONS FOR BIDS IN MORE PRECISE TERMS SO THAT IF DELIVERIES ARE NOT REQUIRED TO START WITHIN THE EARLIEST SCHEDULE PROVIDED BIDDERS WILL HAVE A CLEAR UNDERSTANDING OF THAT FACT AT THE TIME OF BIDDING.