B-152475, OCT. 7, 1963

B-152475: Oct 7, 1963

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FRANK AND KAMPELMAN: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11. THE SUBJECT INVITATION FOR BIDS WAS ISSUED ON JUNE 3. THIS DATE WAS EXTENDED TO JULY 12. BIDDERS WERE REQUIRED TO ALLOW A MINIMUM OF 60 DAYS FOLLOWING THE BID OPENING DATE FOR ACCEPTANCE BY THE GOVERNMENT. IT WAS DETERMINED THAT THE OPTION FOR THE ADDITIONAL 27 UNITS WOULD BE EXERCISED BY THE GOVERNMENT AT TIME OF AWARD OF THE BASIC QUANTITY. IT IS REPORTED THAT INVITATIONS WERE ISSUED TO 48 COMPANIES AND FIVE BIDS WERE RECEIVED WITH PRICES FOR THE TOTAL QUANTITY TO BE AWARDED AS SUMMARIZED BELOW: TABLE BIDDER TOTAL PRICE POLARTRON. THAT ALTHOUGH ALL BIDDERS OFFERED A BID ACCEPTANCE PERIOD OF 60 DAYS NO AWARD WAS MADE PRIOR TO SEPTEMBER 10.

B-152475, OCT. 7, 1963

TO STRASSER, SPIEGELBERG, FRIED, FRANK AND KAMPELMAN:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1963, PROTESTING ON BEHALF OF YOUR CLIENT, NAPCO INDUSTRIES, INC. (NAPCO), HOPKINS, MINNESOTA, AGAINST THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN NAPCO UNDER INVITATION FOR BIDS NO. 600-1065-63-S.

THE SUBJECT INVITATION FOR BIDS WAS ISSUED ON JUNE 3, 1963, BY THE UNITED STATES NAVY PURCHASING OFFICE AND CALLED FOR FURNISHING 49 MODEL TED-9 RADIO TRANSMITTING SETS WITH AN OPTION QUANTITY OF 27 ADDITIONAL UNITS TOGETHER WITH RELATED SUPPLIES. THE INVITATION PROVIDED A BID OPENING DATE OF JULY 8, 1963. HOWEVER, THIS DATE WAS EXTENDED TO JULY 12, 1963, BY AMENDMENT NO. 2. BIDDERS WERE REQUIRED TO ALLOW A MINIMUM OF 60 DAYS FOLLOWING THE BID OPENING DATE FOR ACCEPTANCE BY THE GOVERNMENT. LETTER DATED OCTOBER 1, 1963, THE DEPARTMENT OF THE NAVY REPORTS THAT PRIOR TO BID OPENING, ON JULY 3, 1963, IT WAS DETERMINED THAT THE OPTION FOR THE ADDITIONAL 27 UNITS WOULD BE EXERCISED BY THE GOVERNMENT AT TIME OF AWARD OF THE BASIC QUANTITY.

IT IS REPORTED THAT INVITATIONS WERE ISSUED TO 48 COMPANIES AND FIVE BIDS WERE RECEIVED WITH PRICES FOR THE TOTAL QUANTITY TO BE AWARDED AS SUMMARIZED BELOW:

TABLE

BIDDER TOTAL PRICE

POLARTRON, INC. $117,560.00

DECITRON ELECTRONICS CORPORATION 125,400.00

DUBROW ELECTRONICS INDUSTRIES 143,640.00

NAPCO INDUSTRIES, INC. 150,426.80

RAVLAND-BORG CORPORATION 192,670.46

IN YOUR LETTER OF SEPTEMBER 11 YOU STATE THAT THE INVITATION FOR BIDS REQUIRED A BID ACCEPTANCE PERIOD OF AT LEAST 60 DAYS FROM THE DATE OF OPENING (WHICH WOULD BE SEPTEMBER 10, 1963), AND THAT ALTHOUGH ALL BIDDERS OFFERED A BID ACCEPTANCE PERIOD OF 60 DAYS NO AWARD WAS MADE PRIOR TO SEPTEMBER 10. YOU ALSO STATE THAT BY LETTER DATED SEPTEMBER 6, 1963, NAPCO EXTENDED ITS BID ACCEPTANCE PERIOD FOR AN ADDITIONAL 30 DAYS BUT THAT "NAPCO IS OF THE INFORMATION AND BELIEF THAT NO OTHER BIDDER EXTENDED ITS BID ACCEPTANCE PERIOD ON OR BEFORE SEPTEMBER 10, 1963, THE DATE ON WHICH ALL ORIGINAL BID ACCEPTANCE PERIODS EXPIRED.' YOUR LETTER CONTINUES, IN PERTINENT PART, AS FOLLOWS:

"* * * NAPCO SUBMITS THAT IT IS THE ONLY BIDDER WITH AN EXISTING BID ON THIS PROCUREMENT AND THUS MUST BE AWARDED ANY RESULTANT CONTRACT ON THIS INVITATION. WHEN ALL OTHER BIDS EXPIRED WITHOUT AN EXTENSION, THE LEGAL EFFECT NOW IS THE SAME AS IF THESE BIDS HAD NEVER BEEN SUBMITTED. AWARD TO ANY OTHER BIDDER THAN NAPCO ON THIS INVITATION WOULD THEREFORE BE IMPROPER SINCE IT WOULD REQUIRE A REINSTATEMENT OF AN EXPIRED BID WHICH IS THE SAME AS THE SUBMISSION OF AN ENTIRELY NEW BID AND IN FACT WOULD THEN BE NEGOTIATION IN VIOLATION OF THE STATUTES AND REGULATIONS GOVERNING A FORMAL ADVERTISING PROCUREMENT. (SEE 35 COMPTROLLER GENERAL 255 (1955)

ALTHOUGH WE THINK THAT THE DECISION REPORTED AT 35 COMP. GEN. 255 IS CLEARLY DISTINGUISHABLE FROM THE FACTS OF THE PRESENT CASE AND THUS NOT CONTROLLING ON THE QUESTION BEFORE US HERE (SEE THE ENCLOSED COPY OF B- 136251, AUGUST 29, 1958, AND DECISIONS CITED THEREIN), WE NEED NOT, AND DO NOT, REACH OUR CONCLUSION HEREIN ON THAT BASIS. IT IS REPORTED BY THE DEPARTMENT OF THE NAVY THAT ON SEPTEMBER 9, 1963, THE CONTRACT NEGOTIATOR REPRESENTING THE BUREAU OF SHIPS, TELEPHONED THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER DECITRON ELECTRONICS (POLARTRON, INC., HAVING BEEN FOUND NOT RESPONSIBLE), AND OBTAINED FROM THE PRESIDENT OF THAT COMPANY AN EXTENSION OF THE BID ACCEPTANCE PERIOD UNTIL OCTOBER 9, 1963, WHICH WAS CONFIRMED IN WRITING. IN VIEW OF SUCH TIMELY EXTENSION BY DECITRON, TO WHOM THE NAVY PROPOSES TO AWARD THE CONTRACT, THE QUESTIONS RAISED BY YOUR PROTEST ARE ACADEMIC AND NEED NOT BE RESOLVED.