B-158335, APR. 1, 1966

B-158335: Apr 1, 1966

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J. VAN SICKLE COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13. STANDARD FORM 36 (NOV. 1949 EDITION) WAS ATTACHED TO THE INVITATION AND CERTAIN PARTS THEREOF WERE MADE APPLICABLE THERETO. WAS MADE A PART OF THE INVITATION: "SECTION 4.0 - DELIVERIES "401 COMPUTATION OF TIME AVAILABLE FOR PERFORMANCE: ATTENTION IS DIRECTED TO PARAGRAPH 8 (D) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS WHICH PROVIDES THAT A WRITTEN AWARD MAILED OR OTHERWISE FURNISHED TO THE SUCCESSFUL BIDDER RESULTS IN A BINDING CONTRACT. WILL BE MAILED OR OTHERWISE FURNISHED TO THE BIDDER THE DAY THE AWARD IS DATED. A BID OFFERING DELIVERY BASED ON DATE OF RECEIPT BY THE CONTRACTOR OF THE CONTRACT OR NOTICE OF AWARD (RATHER THAN THE CONTRACT DATE) WILL BE EVALUATED BY ADDING THE MAXIMUM NUMBER OF DAYS NORMALLY REQUIRED FOR DELIVERY OF THE AWARD THROUGH THE ORDINARY MAILS.

B-158335, APR. 1, 1966

TO L. J. VAN SICKLE COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13, 1966, PROTESTING AGAINST THE AWARD OF A CONTRACT FOR ITEM 3 TO AERIAL MACHINE AND TOOL CORPORATION UNDER INVITATION NO. 383-178-66, ISSUED BY THE U.S. NAVY, AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION SOLICITED BIDS (TO BE OPENED OCTOBER 26, 1965), ON A PER UNIT-PACKAGE BASIS, FOR FURNISHING FIVE ITEMS (GROUPS OF ITEMS) OF SPARE PARTS FOR USE ON A-1, A-3, AND A-4 AIRCRAFT, FOR DELIVERY TO THE DESTINATIONS INDICATED. STANDARD FORM 36 (NOV. 1949 EDITION) WAS ATTACHED TO THE INVITATION AND CERTAIN PARTS THEREOF WERE MADE APPLICABLE THERETO. THE FOLLOWING PORTION OF THE FORM, AS WELL AS THE HANDWRITTEN INFORMATION SHOWN IN BRACKETS UNDER THE SUBHEAD "ITEM WITHIN NO. OF DAYS AFTER DATE OF CONTRACT" (AT THE PRECISE POSITION INDICATED), WAS MADE A PART OF THE INVITATION:

"SECTION 4.0 - DELIVERIES

"401 COMPUTATION OF TIME AVAILABLE FOR PERFORMANCE: ATTENTION IS DIRECTED TO PARAGRAPH 8 (D) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS WHICH PROVIDES THAT A WRITTEN AWARD MAILED OR OTHERWISE FURNISHED TO THE SUCCESSFUL BIDDER RESULTS IN A BINDING CONTRACT. ANY AWARD HEREUNDER, OR A PRELIMINARY NOTICE THEREOF, WILL BE MAILED OR OTHERWISE FURNISHED TO THE BIDDER THE DAY THE AWARD IS DATED. THEREFORE, IN COMPUTING THE TIME AVAILABLE FOR PERFORMANCE, THE BIDDER SHOULD TAKE INTO CONSIDERATION THE TIME REQUIRED FOR THE NOTICE OF AWARD TO ARRIVE THROUGH THE ORDINARY MAILS. HOWEVER, A BID OFFERING DELIVERY BASED ON DATE OF RECEIPT BY THE CONTRACTOR OF THE CONTRACT OR NOTICE OF AWARD (RATHER THAN THE CONTRACT DATE) WILL BE EVALUATED BY ADDING THE MAXIMUM NUMBER OF DAYS NORMALLY REQUIRED FOR DELIVERY OF THE AWARD THROUGH THE ORDINARY MAILS. IF, AS SO COMPUTED, THE DELIVERY DATE OFFERED IS LATER THAN THE DELIVERY DATE REQUIRED IN THE INVITATION, THE BID WILL BE CONSIDERED NONRESPONSIVE AND REJECTED

"411 TIME OF DELIVERY: THE GOVERNMENT REQUIRES THAT DELIVERY BE MADE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:

"ITEM WITHIN NO. OF DAYS AFTER DATE OF CONTRACT ITEM WITHIN * * *

(1 120 OR SOONER)

"A BID MAY OFFER DELIVERY OF ALL OR PART OF THE SUPPLIES COVERED BY THE INVITATION. A BID WHICH OFFERS A DELIVERY SCHEDULE NOT CONFORMING TO THE DELIVERY SCHEDULE SET FORTH ABOVE, OR WHICH OFFERS AN INDEFINITE DELIVERY SCHEDULE, OR WHICH OFFERS A DELIVERY CONTINGENT UPON THE AVAILABILITY OR RECEIPT OF MATERIAL, WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED, BUT ONLY TO THE EXTENT TO WHICH THE BID FAILS THUS TO CONFORM OR IS THUS INDEFINITE OR IS THUS CONTINGENT.'

YOU SUBMITTED A BID UNDER DATE OF OCTOBER 23, 1965, IN WHICH YOU OFFERED TO SUPPLY THE 399 SUB-ITEMS COMPRISING ITEM 2 AT THE UNIT PRICE OF $5.22, OR A TOTAL CONSIDERATION OF $2,082.78, AND THE 729 SUB ITEMS COMPRISING ITEM 3 AT THE UNIT PRICE OF $18.00, OR A TOTAL CONSIDERATION OF $13,122. IT APPEARS FROM THE PHOTOSTAT OF YOUR BID (WITH PARTICULAR REFERENCE TO PAGE 12 THEREOF) WHICH WAS FURNISHED US BY THE DEPARTMENT OF THE NAVY THAT YOU INSERTED UNDER THE SUBHEAD "ITEM WITHIN NO. OF DAYS AFTER DATE OF CONTRACT," WHICH IS IN JUXTAPOSITION WITH THE IDENTICALLY TITLED SUBHEAD UNDER WHICH THE INFORMATION RELATING TO THE TIME OF DELIVERY SUPPLIED BY THE PROCURING ACTIVITY IS SHOWN, THE FOLLOWING HANDWRITTEN INFORMATION:

"2 AND 3 120 DAYS ARO"

ACCORDING TO THE STATEMENT SUBMITTED BY THE CONTRACTING OFFICER (MR. B. B. SARGRAD) WITH RESPECT TO YOUR PROTEST UNDER DATE OF FEBRUARY 4, 1966, THE PROCURING ACTIVITY INTERPRETED THE ABOVE-QUOTED INFORMATION AS AN OFFER TO DELIVERY THE ITEMS IN QUESTION WITHIN 120 DAYS AFTER RECEIPT OF ORDER. IN VIEW THEREOF, AND SINCE THE PROCURING ACTIVITY ALSO CONSIDERED THAT IT HAD FIXED A PERIOD OF 120 DAYS AFTER DATE OF CONTRACT AS THE TIME WITHIN WHICH ALL FIVE OF THE ITEMS INVOLVED WERE REQUIRED TO BE DELIVERED, YOUR BID WAS CONSIDERED NONRESPONSIVE, AND THE CONTRACT FOR ITEM 3 WAS AWARDED TO AERIAL MACHINE AND TOOL CORPORATION ON DECEMBER 6, 1965, AS THE NEXT LOW BIDDER, AT THE UNIT PRICE OF $18.20, OR A TOTAL CONSIDERATION OF $13,267.80. YOU WERE NOT THE LOW BIDDER ON ITEM 2, THE CONTRACT FOR THAT ITEM HAVING BEEN AWARDED TO P. AND J. ENGINEERING COMPANY AT THE UNIT PRICE OF $2.77, OR A TOTAL CONSIDERATION OF $1,105.23.

IN PROTESTING AGAINST THE AWARD OF THE CONTRACT FOR ITEM 3 TO AERIAL MACHINE AND TOOL CORPORATION, RATHER THAN TO YOU, AS THE LOW BIDDER, YOU CONTEND (1) THAT IF THE NOTATION "ARO" WAS ON YOUR BID, IT WAS ADDED AFTER THE BID WAS RECEIVED, AND (2) THAT THE DELIVERY TERMS OF THE CONTRACT, AS SET FORTH IN THE ABOVE-QUOTED PROVISIONS OF THE INVITATION, INCLUDED A TIME OF DELIVERY FOR ITEM I ONLY AND THEREFORE YOUR BID COULD NOT BE CONSIDERED TO HAVE BEEN NONRESPONSIVE WITH RESPECT TO THE TIME OF DELIVERY WHICH YOU MAY HAVE INSERTED FOR ANY OTHER ITEM IN ANY EVENT.

IN SUPPORT OF YOUR FIRST CONTENTION, YOU SUBMITTED TO THE U.S. NAVY, AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, BY LETTER OF DECEMBER 16, 1965, A PHOTOSTAT OF PAGE 12 OF THE "2D OPY" OF YOUR BID WHICH YOU HAD RETAINED. THE PHOTOSTAT INDICATES THAT YOU INSERTED ONLY THE FOLLOWING HARD-WRITTEN INFORMATION UNDER THE CRITICAL SUBHEAD "ITEM WITHIN NO. OF DAYS AFTER DATE OF CONTRACT: "

"2 AND 3 120 DAYS"

IN REPLYING TO YOUR CONTENTIONS IN THE PREMISES BY LETTER OF JANUARY 10, 1966, MR. B. B. SARGRAD, AS HEAD, BUYING SECTION 6, THE AVIATION SUPPLY OFFICE INVOLVED, ADVISED YOU AS FOLLOWS:

"I HAVE CAREFULLY EXAMINED YOUR BID AND I HAVE ALSO COMPARED IT WITH THE PHOTOCOPY OF THE PAGE OF THE BID WHICH YOU SAY IS A DUPLICATE. ON THE BASIS OF THE COMPARISON OF THE INK AND HANDWRITING RELATING TO YOUR ORIGINAL BID, I HAVE COME TO THE CONCLUSION THAT THE LETTERS ARO WERE INDEED A PART OF YOUR ORIGINAL BID, AND WERE MADE BY THE SAME PEN AND THE SAME HANDWRITING. CONTRARY TO YOUR CLAIMS, THE PAGE WHICH YOU HAVE SUBMITTED AS A DUPLICATE OF PAGE 12 OF YOUR ORIGINAL BID IS OBVIOUSLY DIFFERENT FROM YOUR ORIGINAL BID. IT THEREFORE CANNOT BE TREATED AS A DUPLICATE. I ASSUME THAT SINCE THE SIGNATURE OF L. J. VAN SICKLE APPEARS IN THE SIGNATURE BLOCK OF THE BID, THAT L. J. VAN SICKLE WAS THE PERSON WHO PREPARED THIS BID. SIGNIFICANTLY, YOU FAILED TO ADHERE TO THE REQUIREMENTS OF THE IFB IN FAILING TO SUBMIT A DUPLICATE BID TOGETHER WITH THE ORIGINAL SO THAT YOU ALLEGATIONS COULD BE SUBSTANTIATED.'

IN THE STATEMENT WHICH MR. SARGRAD (AS CONTRACTING OFFICER) SUBMITTED UNDER DATE OF FEBRUARY 4, 1966, HE CONFIRMED THE CONCLUSIONS EXPRESSED IN HIS LETTER OF JANUARY 10, 1966, CONCERNING YOUR FIRST CONTENTION, AND IN REGARD TO YOUR SECOND CONTENTION STATED:

"A. IT DOES APPEAR THAT THE DOCUMENT PRODUCTION CLERK INADVERTENTLY INCLUDED A "1" - OR A LINE OF SOME SORT - IN THE TIME OF DELIVERY CLAUSE. NORMAL PRACTICE IN FILLING OUT THIS CLAUSE BY ASO PERSONNEL IS NOT TO INSERT ANY ITEM NUMBERS WHEN ALL ITEMS CARRY THE SAME DELIVERY REQUIREMENTS. ON THE OTHER HAND, WHEN DIFFERENT DELIVERY DATES ARE TO BE SPECIFIED FOR MULTIPLE ITEMS, THE DELIVERY CLAUSE IS COMPLETED IN THE MANNER SET FORTH IN INVITATION FOR BIDS SBCS-IFB-386 611-66, A COPY OF PAGE 6 OF WHICH WAS FURNISHED THE COMPTROLLER GENERAL BY THE PROTESTANT AS AN ATTACHMENT TO ITS PROTEST LETTER. HOWEVER, THE CONTRACTING OFFICER BELIEVES THAT IT IS OBVIOUS THAT THE INCLUSION OF THE "1" - OR LINE WAS A CLERICAL ERROR. TO HOLD OTHERWISE WOULD BE TO CONCLUDE THAT NO DELIVERY DATE WAS SPECIFIED FOR ITEMS 2 AND 3, A POSITION THAT IS INCONSISTENT WITH THE PRACTICE OF ALL PROCURING ACTIVITIES IN THEIR CITATION OF DELIVERY DATE, AND, IN FACT, INCONSISTENT WITH PARAGRAPH 2 OF THE CLAUSE THAT PROVIDES THAT A BID WHICH OFFERS A DELIVERY SCHEDULE NOT CONFORMING TO THE DELIVERY SCHEDULE SET FORTH WILL BE REJECTED AS NON-RESPONSIVE. SINCE NO BIDDER (NOT EVEN THE PROTESTANT) QUESTIONED THE DELIVERY REQUIREMENTS, IT IS FAIR TO CONCLUDE THAT ALL BIDDERS RECOGNIZED THE DELIVERY REQUIREMENTS SPECIFIED AS BEING APPLICABLE TO ALL ITEMS.'

ON A CAREFUL EXAMINATION OF THE RECORD, WE FIND NO BASIS FOR CONCLUDING THAT THE LETTERS "ARO" (WHICH APPEAR TO BE RECOGNIZED IN THE TRADE AS MEANING "AFTER RECEIPT OF ORDER") WERE INSERTED IN YOUR BID AFTER IT WAS RECEIVED BY THE PROCURING ACTIVITY.

WE AGREE THAT THE PRESENCE OF A HANDWRITTEN "1," OR LINE RESEMBLING A "1," PRECEDING THE INFORMATION "120 (DAYS AFTER DATE OF CONTRACT) OR SOONER" INJECTED AN AMBIGUITY INTO THE DELIVERY PROVISIONS OF THE INVITATION, IN THAT THE INVITATION COULD BE CONSTRUED AS FIXING A FIRM DELIVERY DATE FOR ITEM 1 ONLY. HOWEVER, IT WOULD APPEAR TO BE ENTIRELY UNREASONABLE TO ASSUME THAT THE PROCURING ACTIVITY INTENDED TO STIPULATE A FIRM DELIVERY DATE FOR ONE OF THE FIVE ITEMS FOR WHICH BIDS WERE SOLICITED WITHOUT MAKING ANY PROVISION FOR THE TIME WITHIN WHICH THE REMAINING ITEMS WERE REQUIRED TO BE DELIVERED, ALL OF THE ITEMS BEING OF A SIMILAR NATURE AND DESIGNED FOR THE SAME END USE. WE THEREFORE HAVE NO DIFFICULTY IN ACCEPTING THE CONTRACTING OFFICER'S STATEMENT THAT THE " "1" - OR A LINE OF SOME SORT " WAS INADVERTENTLY INCLUDED IN THE TIME OF DELIVERY CLAUSE.

MOREOVER, IT APPEARS FROM THE INFORMATION SHOWN IN THE ABSTRACT OF BIDS THAT NONE OF THE 16 BIDS SUBMITTED IN RESPONSE TO THE INVITATION (WITH THE REPORTED EXCEPTION OF YOURS) OFFERED A DELIVERY DATE FOR ANY OF THE ITEMS VARYING FROM THAT OF "120 (DAYS AFTER DATE OF CONTRACT) OR SOONER," WHICH IS A STRONG INDICATION THAT THE INVITATION WAS GENERALLY INTERPRETED AS CALLING FOR DELIVERY OF ALL ITEMS WITHIN THE TIME STATED, AND THAT THE BIDDERS WERE NOT MISLED BY THE FIGURE IN QUESTION. IN THIS CONNECTION IT IS NOTED THAT SECTION 2 OF THE BIDDING INSTRUCTIONS, TERMS AND CONDITIONS ADVISED BIDDERS TO SUBMIT A WRITTEN REQUEST IF ANY EXPLANATION REGARDING THE INTERPRETATION OF ANY PROVISION OF THE INVITATION WAS REQUIRED, IN WHICH EVENT THE PROVISION WOULD BE CLARIFIED BY AN AMENDMENT TO THE INVITATION. NO SUCH INTERPRETATION OF THE DELIVERY PROVISIONS WAS REQUESTED. FURTHERMORE, WE FEEL CONSTRAINED TO OBSERVE THAT YOU DO NOT CONTEND YOU INTERPRETED THE INVITATION ANY DIFFERENTLY FROM THE OTHER BIDDERS IN THIS RESPECT, YOUR PROTEST BEING BASED UPON THE ALLEGATION THAT THE LETTERS "ARO" WERE INSERTED IN YOUR BID AFTER IT WAS RECEIVED BY THE PROCURING ACTIVITY.

UNDER THE CIRCUMSTANCES, WE SEE NO VALID BASIS UPON WHICH IT MAY BE CONCLUDED THAT THE CONTRACTING OFFICER WAS REQUIRED TO ACCEPT YOUR BID OFFERING A DELIVERY SCHEDULE WHICH DID NOT CONFORM WITH THAT OFFERED BY ALL OTHER BIDDERS. IT FOLLOWS THAT WE WOULD NOT BE JUSTIFIED IN DIRECTING THAT THE CONTRACT AWARDED TO AERIAL MACHINE AND TOOL CORPORATION FOR ITEM 3 TO SET ASIDE AS INVALID, AND YOUR PROTEST MUST THEREFORE BE DENIED. SEE JOHN REINER V. UNITED STATES, 325 F.2D 438; WARREN BROTHERS ROAD COMPANY V. UNITED STATES, CT.CL. NO. 302-61, DECIDED DECEMBER 17, 1965.