B-155035, NOV. 20, 1964

B-155035: Nov 20, 1964

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 21. THE INVITATION FOR 100 RAILROAD WHEELS WAS ISSUED ON MAY 25. BIDS WERE OPENED ON JUNE 15. WHILE YOUR BID WAS THE LOWEST RECEIVED. SINCE THE SHIPPING WEIGHT OF ALL UNITS WAS STATED IN YOUR BID AS "50 TONS.'. INDICATED THAT OTHER BIDDERS WERE OFFERED WHEELS WEIGHING 1. YOUR PRODUCT WAS REJECTED BY THE REGIONAL OFFICE AS OFFERING RAILROAD WHEELS WHICH WERE NOT IN ACCORDANCE WITH THE SPECIFICATIONS. THE GENERAL SERVICES ADMINISTRATION IN ITS REPORT TO US HAS EXPRESSED THE VIEW THAT SINCE THE SPECIFICATIONS DID NOT STATE THE WEIGHT OF THE WHEELS BEING PROCURED YOUR BID WAS NOT NECESSARILY NONRESPONSIVE TO THE SPECIFICATIONS AND THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED FOR THAT REASON.

B-155035, NOV. 20, 1964

TO SUMITOMO SHOJI NEW YORK, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 21, 1964, PROTESTING THE AWARD UNDER INVITATION FOR BIDS NO. SE B-27916 FOR 40 INCH MULTIPLE-WEAR RAILROAD WHEELS, BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, SEATTLE, WASHINGTON.

THE INVITATION FOR 100 RAILROAD WHEELS WAS ISSUED ON MAY 25, 1964, AND BIDS WERE OPENED ON JUNE 15, 1964. WHILE YOUR BID WAS THE LOWEST RECEIVED, THE GENERAL SERVICES ADMINISTRATION REGIONAL OFFICE IN EVALUATING YOUR BID DETERMINED THAT IT SHOULD BE REJECTED AS AN ALTERNATE BID, SINCE THE SHIPPING WEIGHT OF ALL UNITS WAS STATED IN YOUR BID AS "50 TONS.' THE BUYING OFFICE UNDERSTOOD THIS TO MEAN THAT EACH WHEEL WOULD WEIGH NO MORE THAN ONE-HALF OF A SHORT TON, OR 1,000 POUNDS. SINCE ALL OTHER BIDS, ON THE BASIS OF THE SHIPPING WEIGHT STATED IN THOSE BIDS, INDICATED THAT OTHER BIDDERS WERE OFFERED WHEELS WEIGHING 1,100 POUNDS, YOUR PRODUCT WAS REJECTED BY THE REGIONAL OFFICE AS OFFERING RAILROAD WHEELS WHICH WERE NOT IN ACCORDANCE WITH THE SPECIFICATIONS.

THE GENERAL SERVICES ADMINISTRATION IN ITS REPORT TO US HAS EXPRESSED THE VIEW THAT SINCE THE SPECIFICATIONS DID NOT STATE THE WEIGHT OF THE WHEELS BEING PROCURED YOUR BID WAS NOT NECESSARILY NONRESPONSIVE TO THE SPECIFICATIONS AND THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED FOR THAT REASON. WE CONCUR WITH THIS VIEW. HOWEVER, THAT AGENCY NOW STATES THAT YOUR BID WAS NOT FOR CONSIDERATION FOR ANOTHER REASON. IT REFERS TO PARAGRAPH 7 OF THE SPECIAL CLAUSES OF THE INVITATION WHICH PROVIDES THAT "DELIVERY IS DESIRED AT THE ABOVE DESTINATION WITHIN FORTY-FIVE (45) DAYS AFTER RECEIPT OF PURCHASE ORDER," AND THE FACT THAT YOUR BID OFFERED DELIVERY NOT WITHIN 45 DAYS, BUT WITHIN 125 DAYS. THE ADMINISTRATION ALSO STATES THAT ALTHOUGH THE INVITATION DID NOT SPECIFICALLY PROVIDE THAT BIDS OFFERING DELIVERY BEYOND THE 45 DAYS DESIRED WOULD BE DEEMED NONRESPONSIVE, THE 45-DAY DESIRED DELIVERY DID TEND TO ESTABLISH A REASONABLE TIME WITHIN WHICH THE GOVERNMENT DESIRED PERFORMANCE OF THE CONTRACT. IN THAT CONNECTION, IN A LETTER TO THE REGIONAL OFFICE DATED JUNE 25, 1964, AN OFFICIAL OF THE ALASKA RAILROAD STATED THAT "THE 125 DAY DELIVERY IS OUT OF THE QUESTION AS THESE WHEELS ARE REQUIRED AS SOON AS POSSIBLE IN ORDER TO KEEP OUR LOCOMOTIVES IN SERVICE.'

SINCE THE DELIVERY TIME WAS NOT MANDATORY BUT ONLY "DESIRED," A BID STIPULATING A DELIVERY TIME THAT IS REASONABLE COULD BE DEEMED TO BE RESPONSIVE. B-147653, DATED JANUARY 23, 1962. OF COURSE, WHAT IS CONSIDERED TO BE A REASONABLE TIME MUST BE DETERMINED FROM ALL RELEVANT FACTORS AND SUCH TIME MUST BE REALISTIC. FPR 1-1.316-2. UNDER THE CIRCUMSTANCES WE THINK THERE IS SOME MERIT TO THE ADMINISTRATIVE VIEW THAT YOUR OFFER TO DELIVER 125 DAYS AFTER RECEIPT OF THE PURCHASE ORDER, WHERE 45 DAYS WAS STATED TO BE THE DESIRED DELIVERY PERIOD, WAS NOT A REASONABLE TIME.

FOR THESE REASONS, AND SINCE THE CONTRACT AWARDED PURSUANT TO THE INVITATION HAS BEEN COMPLETED, THERE IS NO ACTION WHICH THIS OFFICE MAY PROPERLY TAKE IN THE MATTER.