B-153868, MAY 8, 1964

B-153868: May 8, 1964

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DARRAGH AND CLOSE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 31. AFTER RECEIPT BY THE CONTRACTOR OF WRITTEN NOTICE OF AWARD SPECIFIED IMMEDIATELY BELOW: "BIDDERS ARE CAUTIONED TO CONSIDER CAREFULLY THE GOVERNMENT'S REQUIRED DELIVERY SCHEDULE. AS BIDS SPECIFYING DELIVERY AFTER THE TIME SPECIFIED ABOVE WILL BE CONSIDERED ONLY IN THE EVENT THAT NO ACCEPTABLE BID IS RECEIVED WHICH MEETS THE DELIVERY REQUIREMENTS: * * *" THE MILLS MANUFACTURING CORPORATION DID NOT OFFER TO MEET THE "REQUIRED" DELIVERY SCHEDULE BUT DID ON THE BASIS OF MAKING DELIVERIES AT A LATER TIME. WAS CONTINGENT UPON WHETHER ANOTHER BIDDER OFFERED TO MEET THE . SUCH AN OFFER WAS RECEIVED FROM THE SWITLIK PARACHUTE COMPANY.

B-153868, MAY 8, 1964

TO DAHLGREN, DARRAGH AND CLOSE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1964, ON BEHALF OF THE MILLS MANUFACTURING CORPORATION, PROTESTING REJECTION OF ITS OFFER UNDER INVITATION FOR BIDS 36-600-64-445, ISSUED BY THE MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, TO FURNISH PERSONNEL PARACHUTES.

ITEM "N" OF THE INVITATION SCHEDULE, ENTITLED "DELIVERY," ADVISED THAT:

"THE GOVERNMENT REQUIRES DELIVERY OF THE SUPPLIES CALLED FOR HEREUNDER IN THE QUANTITIES, TO THE DESTINATIONS, AND WITHIN THE NUMBER OF DAYS, AFTER RECEIPT BY THE CONTRACTOR OF WRITTEN NOTICE OF AWARD SPECIFIED IMMEDIATELY BELOW:

"BIDDERS ARE CAUTIONED TO CONSIDER CAREFULLY THE GOVERNMENT'S REQUIRED DELIVERY SCHEDULE, AS BIDS SPECIFYING DELIVERY AFTER THE TIME SPECIFIED ABOVE WILL BE CONSIDERED ONLY IN THE EVENT THAT NO ACCEPTABLE BID IS RECEIVED WHICH MEETS THE DELIVERY REQUIREMENTS: * * *"

THE MILLS MANUFACTURING CORPORATION DID NOT OFFER TO MEET THE "REQUIRED" DELIVERY SCHEDULE BUT DID ON THE BASIS OF MAKING DELIVERIES AT A LATER TIME. THUS, IN ACCORDANCE WITH THE CONDITIONS IMPOSED BY THE GOVERNMENT IN ITEM "N," THE RESPONSIVENESS OF ITS BID, AND THEREFORE ITS ELIGIBILITY FOR CONSIDERATION, WAS CONTINGENT UPON WHETHER ANOTHER BIDDER OFFERED TO MEET THE ,REQUIRED" DELIVERY SCHEDULE. SUCH AN OFFER WAS RECEIVED FROM THE SWITLIK PARACHUTE COMPANY, NC., ALTHOUGH THE PRICE QUOTED BY IT WAS SLIGHTLY HIGHER THAN THAT QUOTED BY THE MILLS MANUFACTURING CORPORATION FOR LATER DELIVERY.

YOU SUGGEST THAT THERE IS A SERIOUS SHORTAGE OF PERSONNEL PARACHUTE MATERIAL IN THE INDUSTRY AND THAT THE SHORT DELIVERY REQUIREMENT OF THE INVITATION IS UNREALISTIC, PARTICULARLY IN VIEW OF THE FACT THAT ADMINISTRATIVE DELAYS IN COMPLETING PROCUREMENT ARE EXTENSIVE. YOU CONCLUDE THAT THE LOW BID OF THE MILLS MANUFACTURING CORPORATION IS THE MOST ADVANTAGEOUS TO THE GOVERNMENT WHEN THESE FACTORS ARE TAKEN INTO ACCOUNT AND THAT AWARD SHOULD BE MADE TO IT. HOWEVER, SUCH FACTORS ARE TAKEN INTO CONSIDERATION IN PLANNING FOR AND IN FIXING THE TERMS OF PROCUREMENT. OBVIOUSLY, A PROSPECTIVE SUPPLIER CANNOT DICTATE EITHER THE IMMEDIACY OF THE GOVERNMENT'S NEEDS OR THE TERMS AND CONDITIONS OF ITS PURCHASE. THE METHOD OF SOLICITING AND EVALUATING BIDS USED IN THE INVITATION FOR BIDS IN THIS INSTANCE IS WELL ESTABLISHED. AS STATED IN 41 COMP. GEN. 599, 602---

"WE HAVE HELD THAT TIME OF DELIVERY PROPERLY MAY BE CONSIDERED IN MAKING AN AWARD, PRICE ALONE NOT BEING CONTROLLING, WHEN EARLY DELIVERY IS REQUIRED IN THE GOVERNMENT'S INTEREST AND WHEN THE INVITATION SO PROVIDES, ALL BIDDERS THUS BEING PLACED ON NOTICE AND GIVEN AN EQUAL OPPORTUNITY TO COMPETE FOR THE GOVERNMENT'S BUSINESS. * * *"

SINCE THE TERMS OF THE INVITATION CLEARLY ADVISED ALL BIDDERS AS TO THE EXACT TERMS ON WHICH THEIR OFFERS WOULD BE EVALUATED, AND SINCE THE BID OF YOUR CLIENT WAS NOT RESPONSIVE TO "REQUIRED" DELIVERY, WE ARE COMPELLED TO DENY THE PROTEST.