B-155119, DEC. 1, 1964

B-155119: Dec 1, 1964

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INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 4. CONSIDERATION OF LATE MAILED BIDS WAS PROHIBITED UNLESS THEY WERE TIMELY MAILED BY REGISTERED MAIL. OR BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT WAS OBTAINED. OR WERE MISHANDLED AFTER RECEIPT. THE SUBMISSION OF TELEGRAPHIC BIDS WAS AUTHORIZED AS FOLLOWS: "TELEGRAPHIC RESPONSE MAY BE SUBMITTED IN REPLY TO THIS SOLICITATION. TELEGRAMS WILL BE RECEIVED IN THIS OFFICE PRIOR TO THE TIME SPECIFIED FOR OPENING. "TELEGRAPHIC RESPONSE WILL SPECIFICALLY REFER TO THE FOLLOWING: 1.SOLICITATION NUMBER. OF THE 30 BIDS WHICH WERE RECEIVED AND OPENED ON AUGUST 31. YOUR TELEGRAPHIC BID DATED AUGUST 30 WAS LOWEST. THE TEST OF YOUR BID IS AS FOLLOWS: "REF IFB 163-9199-01 OPENING 2 PM EST 31 AUG 1964 WE ARE PLEASED TO QUOTE AS FOLLOWS ITEM 1 AN/APQ 107 1190 EACH 513.01 EACH 853. 2 DESIGN DATA FOR ITEM 1 LOT 3500 DOLLARS ITEM 3 PUBLICATIONS LOT 5000 DOLLARS ITEM 4 SPECIAL SUPPORT EQUIPMENT TO BE ESTABLISHED ITEM 5 OPTION AN/APQ 107 O TO 650 EACH 496.79 EACH ACCEPTANCE 60 DAYS TERMS ONE TENTH PERCENT 30 DAYS DELIVERY AS REQUIRED FOB AUDUBON NEW JERSEY SMALL BUSINESS ACKNOWLEDGE AMENDMENTS 1 AND 2 PROGRESS PAYMENTS REQUESTED CONFIRMING BID SET TO FOLLOW AIR MAIL DISPATCHED 30 AUG 1964" ON SEPTEMBER 1.

B-155119, DEC. 1, 1964

TO WEST ELECTRONICS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 4, 1964, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. 163/9199-0-1, ISSUED AUGUST 8, 1964, BY THE UNITED STATES NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA.

THE IFB, WHICH SOLICITED BIDS TO FURNISH RADAR ALTIMETER WARNING SETS, TOGETHER WITH DESIGN DATA, PUBLICATIONS, AND SPECIAL SUPPORT EQUIPMENT, STIPULATED THAT BIDS WOULD BE OPENED AT 2:00 P.M., EASTERN STANDARD TIME, AUGUST 31, 1964 (A MONDAY). CONSIDERATION OF LATE MAILED BIDS WAS PROHIBITED UNLESS THEY WERE TIMELY MAILED BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT WAS OBTAINED, OR WERE MISHANDLED AFTER RECEIPT. PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 2-202.2, THE SUBMISSION OF TELEGRAPHIC BIDS WAS AUTHORIZED AS FOLLOWS:

"TELEGRAPHIC RESPONSE MAY BE SUBMITTED IN REPLY TO THIS SOLICITATION. TELEGRAMS WILL BE RECEIVED IN THIS OFFICE PRIOR TO THE TIME SPECIFIED FOR OPENING.

"TELEGRAPHIC RESPONSE WILL SPECIFICALLY REFER TO THE FOLLOWING:

1.SOLICITATION NUMBER, ITEMS OR SUB-ITEMS, QUANTITIES AND UNIT PRICES.

2. TIME AND PLACE OF DELIVERY.

3. REPRESENTATIONS AND OTHER INFORMATION REQUIRED.

4. A STATEMENT OF AGREEMENT TO ALL THE TERMS, CONDITIONS AND PROVISIONS.

"FAILURE TO FURNISH, IN THE TELEGRAPHIC RESPONSE, THE REPRESENTATIONS AND INFORMATION REQUIRED BY THE SOLICITATION MAY NECESSITATE REJECTION. CONFIRMATION OF THE TELEGRAM SHALL BE SUBMITTED PROMPTLY ON THE PRESCRIBED FORM, TO THE CONTRACTING OFFICER.'

OF THE 30 BIDS WHICH WERE RECEIVED AND OPENED ON AUGUST 31, YOUR TELEGRAPHIC BID DATED AUGUST 30 WAS LOWEST. THE TEST OF YOUR BID IS AS FOLLOWS:

"REF IFB 163-9199-01 OPENING 2 PM EST 31 AUG 1964 WE ARE PLEASED TO QUOTE AS FOLLOWS ITEM 1 AN/APQ 107 1190 EACH 513.01 EACH 853. 2 DESIGN DATA FOR ITEM 1 LOT 3500 DOLLARS ITEM 3 PUBLICATIONS LOT 5000 DOLLARS ITEM 4 SPECIAL SUPPORT EQUIPMENT TO BE ESTABLISHED ITEM 5 OPTION AN/APQ 107 O TO 650 EACH 496.79 EACH ACCEPTANCE 60 DAYS TERMS ONE TENTH PERCENT 30 DAYS DELIVERY AS REQUIRED FOB AUDUBON NEW JERSEY SMALL BUSINESS ACKNOWLEDGE AMENDMENTS 1 AND 2 PROGRESS PAYMENTS REQUESTED CONFIRMING BID SET TO FOLLOW AIR MAIL DISPATCHED 30 AUG 1964"

ON SEPTEMBER 1, THE DAY AFTER BID OPENING, YOUR CONFIRMING BID, POSTMARKED AUGUST 30 AND TRANSMITTED BY REGULAR MAIL, WAS RECEIVED IN THE PROCURING INSTALLATIONS.

SINCE YOUR TELEGRAPHIC BID WAS NOT CONSIDERED AS INCLUDING THE REQUIRED STATEMENT OF AGREEMENT TO ALL THE TERMS, CONDITIONS AND PROVISIONS OF THE INVITATION, IT WAS REJECTED AS NONRESPONSIVE. YOUR MAILED BID SET COULD THEREFORE NOT BE CONSIDERED AS A CONFIRMATION BUT ONLY AS AN INDEPENDENT BID. SINCE IT WAS NOT RECEIVED ON TIME, AND HAD NOT BEEN TRANSMITTED BY EITHER REGISTERED OR CERTIFIED MAIL, IT WAS DETERMINED TO BE INELIGIBLE FOR CONSIDERATION AS A TIMELY MAILED LATE BID. ACCORDINGLY, UPON DETERMINATION BY THE CONTRACTING OFFICER FROM A PRICE ANALYSIS OF THE BIDS SUBMITTED, WHICH WAS SUPPORTED BY THE GOVERNMENT ESTIMATE MADE PRIOR TO THE ISSUANCE OF THE INVITATION, THAT THE SECOND LOW BID WAS FAIR AND REASONABLE, AWARD WAS MADE TO THE SECOND LOW BIDDER, A PREVIOUS PRODUCER OF SIMILAR ITEMS, ON SEPTEMBER 3, ONE DAY PRIOR TO THE DATE OF YOUR PROTEST.

IT IS YOUR CONTENTION THAT YOUR TELEGRAM, WHICH INCLUDED ACKNOWLEDGEMENT OF THE AMENDMENTS TO THE INVITATION, MUST BE CONSIDERED AS AGREEING TO ALL OF THE INVITATION CONDITIONS. ALSO YOU CLAIM THAT POSTAL SCHEDULES INDICATE YOUR CONFIRMING BID WAS MAILED IN TIME FOR OPENING ON AUGUST 31 AT 2:00 P.M., IN INDIANAPOLIS, AS SCHEDULED. FINALLY, YOU ASSERT, THE GOVERNMENT WOULD REALIZE AN APPROXIMATE SAVINGS OF $244,000 BY AWARD TO YOU.

THE APPLICABLE PROCUREMENT STATUTE, 10 U.S.C. 2305, REQUIRES THAT BIDS CONFORM TO THE TERMS OF THE ADVERTISED INVITATION, AND ASPR 2 404.2 (A) REQUIRES REJECTION OF BIDS WHICH FAIL TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION. THE PRIMARY QUESTION TO BE RESOLVED THEREFORE IS WHETHER THE REQUIREMENT FOR A STATEMENT IN THE TELEGRAPHIC BID AGREEING TO ALL TERMS OF THE INVITATION WAS AN "ESSENTIAL" REQUIREMENT WITHIN THE MEANING OF THE ABOVE-CITED REGULATION AND STATUTE. IN THIS CONNECTION, IT IS OUR OPINION THAT, IN THE EVENT YOUR "CONFIRMING" BID HAD TAKEN EXCEPTION TO ANY MATERIAL PROVISION OF THE INVITATION, ACCEPTANCE OF YOUR TELEGRAPHIC BID, EITHER BEFORE OR AFTER RECEIPT OF YOUR "CONFIRMING" BID, WOULD NOT HAVE BOUND YOU TO COMPLY WITH THOSE PORTIONS OF THE INVITATION TO WHICH YOU HAD EXCEPTED. CONVERSELY, IN THE EVENT YOUR TELEGRAPHIC BID HAD CONTAINED A STATEMENT AGREEING TO ALL TERMS OF THE INVITATION, AS REQUIRED BY THE INVITATION, ACCEPTANCE OF YOUR TELEGRAPHIC BID PRIOR TO RECEIPT OF A "CONFIRMING" BID WHICH TOOK EXCEPTION TO MATERIAL PROVISIONS OF THE INVITATION WOULD, WE BELIEVE, HAVE BOUND YOU TO PERFORM IN STRICT ACCORD WITH THE PROVISIONS OF THE INVITATION. IN VIEW THEREOF, THE REQUIREMENT FOR A ,STATEMENT OF AGREEMENT" IN THE TELEGRAPHIC BID MUST BE CONSIDERED ESSENTIAL, WITHIN THE MEANING OF THAT TERM AS USED IN ASPR 2-404.2 (A), AND AS CONTEMPLATED BY 10 U.S.C. 2305. THE OMISSION FROM YOUR TELEGRAPHIC BID OF THE STATEMENT REQUIRED BY BOTH THE INVITATION AND ASPR 2-202.2 THEREFORE RENDERED IT NONRESPONSIVE AND INELIGIBLE FOR CONSIDERATION.

ASPR 2-303 IS THE REGULATION WHICH GOVERNS THE CONSIDERATION OF LATE BIDS. BY THE TERMS OF ASPR 2-303 AND THE INVITATION PROVISION BASED THEREON, ONLY THOSE LATE MAILED BIDS WHICH WERE TIMELY TRANSMITTED BY REGISTERED MAIL OR BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT HAS BEEN OBTAINED COULD BE CONSIDERED FOR AWARD. A BID OTHERWISE MAILED WHICH ARRIVED AT THE PROCURING INSTALLATION SUBSEQUENT TO THE TIME FIXED FOR BID OPENING BUT BEFORE AWARD MAY BE CONSIDERED FOR AWARD ONLY IF IT WAS RECEIVED AT SUCH INSTALLATION IN GOOD TIME BUT WAS NOT DELIVERED TO THE DESIGNATED BID OPENING OFFICE SOLELY BY REASON OF MISHANDLING BY THE GOVERNMENT AT THE INSTALLATION, A CONDITION WHICH IS NOT APPLICABLE IN THIS INSTANCE. UNDER THE REGULATION, A BIDDER WHO FAILS TO USE EITHER REGISTERED OR CERTIFIED MAIL, EVEN THOUGH HE MAILS HIS BID IN AMPLE TIME TO PERMIT DELIVERY TO ITS DESTINATION AT THE REQUIRED TIME IN THE ORDINARY COURSE OF THE MAILS, ASSUMES THE RISK OF REJECTION OF HIS BID DUE TO DELAY IN THE MAILS. SEE 42 COMP. GEN. 255; B-153763, APRIL 7, 1964.

THE ARMED SERVICES PROCUREMENT REGULATION IS A STATUTORY REGULATION PROMULGATED PURSUANT TO 10 U.S.C. 2202. IT HAS THE FORCE AND EFFECT OF LAW, AND THERE IS NO AUTHORITY TO WAIVE ITS REQUIREMENTS EVEN WHEN SUCH ACTION MAY BE TO THE ADVANTAGE OF THE GOVERNMENT.

FOR THE FOREGOING REASONS, WE ARE UNABLE TO CONCLUDE THAT THE REJECTION OF YOUR BID WAS ..END :