B-154082, JUL. 24, 1964

B-154082, JUL. 24, 1964

TO BOONSHAFT AND FUCHS:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1964, ADDRESSED TO THE UNITED STATES ARMY, PICATINNY ARSENAL, PICATINNY, NEW JERSEY, WHEREIN YOU PROTEST AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. AMC/A/28- 017-64-365.

THE INVITATION, WHICH WAS ISSUED ON MARCH 23, 1964, SOLICITED BIDS TO FURNISH AND INSTALL AT THE PICATINNY ARSENAL AN ELECTROHYDRAULIC CONTROLLED VIBRATION AND ACCELERATION TEST FACILITY AND TO SUPPLY CONSTRUCTION AND MAINTENANCE MANUALS THEREFOR. TIME OF BID OPENING WAS SPECIFIED AS 2 P.M., EASTERN STANDARD TIME, APRIL 22, 1964, AT THE ARSENAL, BUT NO ROOM OR BUILDING WAS DESIGNATED FOR THE RECEIPT OF BIDS.

THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS (STANDARD FORM 30) READ, IN PART, AS FOLLOWS:

"2. SUBMISSION OF BIDS.--- (A) * * * TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION; HOWEVER, BIDS MAY BE MODIFIED BY TELEGRAPHIC NOTICE PROVIDED SUCH NOTICE IS RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS.

"8. AWARD OF CONTRACT.--- (A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.'

OF THE FIVE BIDS WHICH WERE RECEIVED AND OPENED AT THE SCHEDULED TIME, YOUR BID OF $164,938 WAS LOWEST. HOWEVER, AT 3 P.M., EASTERN STANDARD TIME, ON APRIL 22, 1964, ONE HOUR AFTER THE SCHEDULE BID OPENING TIME, THE PROCUREMENT OFFICER RECEIVED A TWX MESSAGE SUBMITTED BY THE SECOND LOW BIDDER, THE RUCKER COMPANY, REDUCING ITS BID FROM $241,348 TO $163,727, OR MORE THAN $1,000 LOWER THAN YOUR BID. MOREOVER, THE MESSAGE, WHICH HAD BEEN DISPATCHED FROM CALIFORNIA ON APRIL 22, 1964, AT 9:14 A.M., PACIFIC TIME (12:14 P.M., EASTERN STANDARD TIME), BORE A TIME STAMP INDICATING THAT IT HAD BEEN RECEIVED AT THE PICATINNY ARSENAL MESSAGE CENTER AT 12:22 P.M., APRIL 22, 1964. INVESTIGATION DISCLOSED THAT DELAY IN DELIVERY TO THE PROCUREMENT OFFICIALS WAS DUE TO ROUTINE HANDLING OF THE MESSAGE WITHIN THE ARSENAL AND FAILURE TO RECOGNIZE THE NECESSITY FOR ACCELERATED HANDLING.

YOU CONTEND THAT SINCE THE INVITATION DID NOT ALLOW TELEGRAPHIC BIDS, TELEGRAPHIC AMENDMENTS SHOULD NOT BE ALLOWED. HOWEVER, IN VIEW OF THE LANGUAGE QUOTED ABOVE FROM CLAUSE 2 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, TIMELY RECEIVED TELEGRAPHIC BID MODIFICATIONS ARE PROPERLY FOR CONSIDERATION. FURTHERMORE, UNDER ARMED SERVICES PROCUREMENT REGULATION 2-305, A LATE BID MODIFICATION SENT BY MAIL OR TELEGRAM MAY BE CONSIDERED UPON DETERMINATION THAT IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE PLACE DESIGNATED FOR BID OPENING BUT WAS DELAYED DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION. SINCE THE INVITATION DID NOT INDICATE A SPECIFIC ROOM OR BUILDING AT THE ARSENAL FOR BID SUBMISSION, THE RECEIPT OF RUCKER'S TELEGRAM AT THE ARSENAL MESSAGE CENTER MORE THAN ONE HOUR BEFORE THE TIME SET FOR THE OPENING OF BIDS MUST BE REGARDED AS CONSTITUTING COMPLIANCE WITH THE REQUIREMENTS OF BOTH THE INVITATION AND ASPR 2-305 FOR TIMELY SUBMISSION OF BID MODIFICATIONS, AND THE DELAY IN DELIVERY TO THE PROCUREMENT OFFICIALS MUST BE REGARDED AS DUE SOLELY TO MISHANDLING BY THE ARSENAL.

YOU ALSO CONTEND THAT THE TWX MODIFICATION CANNOT BE ALLOWED BECAUSE IT WAS NOT HANDLED BY A DISINTERESTED THIRD PARTY SUCH AS WESTERN UNION AND THAT THIS MINOR INFORMALITY CANNOT BE WAIVED IN ACCORDANCE WITH OUR DECISION B-153763, DATED APRIL 7, 1964. IN THIS CONNECTION, NEITHER THE BID MODIFICATION PROVISION IN THE INVITATION NOR ASPR 2-305 RESTRICTS BIDDERS TO THE USE OF COMMERCIAL FACILITIES FOR SUBMISSION OF TELEGRAPHIC BID MODIFICATIONS. THEREFORE, THE USE OF GOVERNMENT TELEGRAPHIC FACILITIES BY RUCKER DOES NOT PRECLUDE CONSIDERATION OF ITS TIMELY SENT MODIFICATION, ANY MORE THAN WOULD THE USE OF UNITED STATES MAIL SERVICE. THE SITUATION HERE IS TO BE DISTINGUISHED FROM THE CASE INVOLVED IN B- 153763, DATED APRIL 7, 1964, IN THAT ASPR 2-305 DOES NOT REQUIRE THE USE OF COMMERCIAL TELEGRAPHIC FACILITIES, WHEREAS THE CASE DECIDED IN B-153763 INVOLVED THE MANDATORY REQUIREMENT IN ASPR 2-303 FOR THE USE OF REGISTERED OR CERTIFIED MAIL IN ORDER TO PERMIT CONSIDERATION OF A LATE MAILED BID.

REGARDING RUCKER'S FAILURE TO SUBMIT WITH ITS BID EVIDENCE OF INSURANCE COVERAGE REQUIRED BY THE INVITATION, SUCH REQUIREMENT RELATES TO THE BIDDER'S FINANCIAL RESPONSIBILITY RATHER THAN THE RESPONSIVENESS OF ITS BID, AND IS THEREFORE ACCEPTABLE AFTER BID OPENING. ACCORDINGLY, THE FAILURE TO SUBMIT IT BEFORE BID OPENING IS A MINOR DEVIATION WHICH MAY BE WAIVED, AND THE SUBSEQUENT ACCEPTANCE OF THE INFORMATION PRIOR TO AWARD DOES NOT PREJUDICE THE RIGHTS OF OTHER BIDDERS. CF. 39 COMP. GEN. 881. THEREFORE, THE INSURANCE CERTIFICATE FORWARDED TO THE CONTRACTING OFFICER BY RUCKER'S LETTER OF APRIL 28, 1964, MAY BE ACCEPTED AS COMPLIANCE WITH THE INVITATION REQUIREMENT.

AS TO YOUR STATEMENT THAT YOUR OWN BID PRICE COULD HAVE BEEN REDUCED BY 1 PERCENT HAD THE INSURANCE DATA NOT BEEN REQUIRED AT THE TIME OF BID SUBMISSION, THE RECORD INDICATES THAT THE INSURANCE CERTIFICATE SUBMITTED WITH YOUR BID IS DATED APRIL 1, 1964, AND WAS INITIATED FOR THE DEPARTMENT OF THE NAVY. IT THEREFORE DOES NOT APPEAR THAT YOU INCURRED EXTRA EXPENSE OR SUBSTANTIAL EXPENDITURE TO COMPLY WITH THE INSURANCE COVERAGE EVIDENCE REQUIREMENT IN THIS ARMY PROCUREMENT.

IN REPLY TO YOUR ASSERTION THAT RUCKER MAY HAVE OBTAINED BY SOME UNKNOWN OR UNAUTHORIZED MEANS INFORMATION AS TO YOUR LOW BID, THE PROCURING AGENCY HAS INVESTIGATED THE HANDLING OF YOUR BID AND FOUND NO INDICATION WHATEVER OF ANY IRREGULARITY IN THAT CONNECTION. FURTHERMORE, RUCKER HAS EXPLAINED THAT THE CHANGE IN ITS BID PRICE WAS DUE TO A CHANGE IN THE DESIGN APPROACH--- THE PROCUREMENT BEING SUSCEPTIBLE OF A DUAL CONCEPT APPROACH-- - WITH A RESULTING REDUCTION IN BID PRICE ON THE SECOND CONCEPT ESTIMATE.

AS TO YOUR CONTENTION THAT YOUR LOCATION IN A LABOR SURPLUS AREA SHOULD BE CONSIDERED, NO LABOR SURPLUS SET-ASIDE IS INVOLVED IN THE PROCUREMENT. FURTHERMORE, ASPR 1-802--- IN CONFORMITY WITH SPECIFIC RESTRICTIONS IN APPROPRIATION LAWS--- PRECLUDES THE PAYMENT OF A PRICE DIFFERENTIAL TO ACCOMPLISH AWARD TO A BIDDER IN A LABOR SURPLUS AREA. ACCORDINGLY, SUCH FACTOR IS NOT FOR CONSIDERATION IN THIS PROCUREMENT.

YOU CONTEND, ALSO, THAT AWARD TO YOU WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT BECAUSE ONLY YOU HAVE SUFFICIENT EXPERIENCE TO MEET THE PERFORMANCE CRITERIA AND SPECIFIED DELIVERY REQUIREMENTS AND THAT RUCKER LACKS UNDERSTANDING OF THE TECHNICAL EQUIPMENT INVOLVED. HOWEVER, A PREAWARD SURVEY HAS SATISFIED THE CONTRACTING AGENCY THAT RUCKER HAS THE TECHNICAL QUALIFICATIONS, FINANCIAL RESPONSIBILITY, AND PRODUCTION CAPABILITY TO FURNISH THE REQUIRED EQUIPMENT, AND IT IS THEREFORE CONSIDERED RESPONSIBLE IN ACCORDANCE WITH ASPR 1-903.

UNDER THE APPLICABLE STATUTE, 10 U.S.C. 2305 (C), ASPR 2-407, AND THE LANGUAGE OF CLAUSE 3 (A) OF THE INVITATION QUOTED ABOVE, AWARD IS REQUIRED TO BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. ACCORDINGLY, AWARD TO ANY BIDDER OTHER THAN RUCKER, WHO HAS BEEN DETERMINED TO BE THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER, WOULD BE IMPROPER. SEE 37 COMP. GEN. 550. THEREFORE, YOUR PROTEST IS DENIED.