B-158670, APR. 14, 1966

B-158670: Apr 14, 1966

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THE INVITATION WAS ISSUED JANUARY 11. IT WAS FOR THIS REASON THAT YOUR BID WAS REJECTED AS NONRESPONSIVE. IN YOUR LETTER YOU CONTEND THAT THE WORDS "AFTER DATE OF AWARD" AND "AFTER RECEIPT OF ORDER" BASICALLY HAVE THE SAME MEANING. BECAUSE A FIRM LEGALLY "RECEIVES" THE CONTRACT ON THAT DATE ON WHICH AN AWARD IS MADE. THE LANGUAGE "RECEIVING OF A CONTRACT ON THE DATE AWARD IS MADE. BECAUSE BIDDERS ARE NOT REQUIRED TO BE PRESENT FOR THE AWARD OF THE CONTRACT. THE LAW IS WELL SETTLED THAT THE RECEIPT OF AN ITEM INVOLVES AN ACTUAL DELIVERY TO THE PERSON. THERE ARE TWO SEPARATE AND DISTINCT DATES INVOLVED IN THIS SITUATION. ONE IS THE ACTUAL DATE PLACED UPON THE AWARD OF THE CONTRACT (STANDARD FORM 26.

B-158670, APR. 14, 1966

TO PRECISION PRODUCTS DIVISION, CABINET SPECIALTIES, INC.:

WE AGAIN REFER TO YOUR LETTER OF MARCH 3, 1966, IN WHICH YOU PROTEST THE REJECTION OF YOUR BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS NO. N00197 66 B 0050, ISSUED BY THE UNITED STATES NAVAL ORDNANCE PLANT, LOUISVILLE, KENTUCKY. THE INVITATION WAS ISSUED JANUARY 11, 1966, AND REQUESTED PRICES FOR THE PRODUCTION OF WIRE CUTTER ACTUATOR ASSEMBLIES. ALTHOUGH THE IFB REQUIRED DELIVERY WITHIN 95 DAYS AFTER THE DATE OF THE CONTRACT, YOUR BID DEVIATED FROM THIS PROVISION BY OFFERING DELIVERY WITHIN 95 DAYS AFTER RECEIPT OF ORDER. IT WAS FOR THIS REASON THAT YOUR BID WAS REJECTED AS NONRESPONSIVE.

IN YOUR LETTER YOU CONTEND THAT THE WORDS "AFTER DATE OF AWARD" AND "AFTER RECEIPT OF ORDER" BASICALLY HAVE THE SAME MEANING, BECAUSE A FIRM LEGALLY "RECEIVES" THE CONTRACT ON THAT DATE ON WHICH AN AWARD IS MADE.

THE LANGUAGE "RECEIVING OF A CONTRACT ON THE DATE AWARD IS MADE," AS YOU USE IT, MERELY MEANS THAT A VALID AND BINDING CONTRACT COMES INTO EXISTENCE ON THAT DATE. IT DOES NOT MEAN THAT THE BIDDER ACTUALLY RECEIVES THE CONTRACT, BECAUSE BIDDERS ARE NOT REQUIRED TO BE PRESENT FOR THE AWARD OF THE CONTRACT, AND THE LAW IS WELL SETTLED THAT THE RECEIPT OF AN ITEM INVOLVES AN ACTUAL DELIVERY TO THE PERSON, SPRAGG V. PRUDENTIAL INSURANCE CO., 198 N.E. 585; POSTAL TELEGRAPH CABLE CO. V. LOUISVILLE COTTON SEED OIL CO., 131 S.W. 277.

THERE ARE TWO SEPARATE AND DISTINCT DATES INVOLVED IN THIS SITUATION. ONE IS THE ACTUAL DATE PLACED UPON THE AWARD OF THE CONTRACT (STANDARD FORM 26, AWARD), WHICH IS ACTUALLY THE ACCEPTANCE OF THE BIDDER'S OFFER. SINCE THAT ACCEPTANCE CONSUMMATES A BINDING CONTRACT, THAT DATE OF AWARD IS THE DATE OF THE CONTRACT. THE IFB PROVIDES THAT ANY AWARD, OR PRELIMINARY NOTICE OF THE AWARD, WILL BE MAILED OR OTHERWISE FURNISHED TO THE BIDDER ON THE DATE THE AWARD, OR CONTRACT, IS DATED. THIS BRINGS UP THE SECOND DATE--- THE DATE THE AWARD, OR NOTICE THEREOF, IS ACTUALLY RECEIVED BY THE BIDDER. THIS MAY BE THE SAME DAY OR ONE OR MORE DAYS LATER, DEPENDING UPON THE MANNER OF TRANSMISSION AND THE DISTANCE BETWEEN THE PARTIES INVOLVED. THE DISTINCTION IN THESE DATES IS POINTED OUT ON PAGE 5 OF THE INVITATION BY THE FOLLOWING SENTENCES:

"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.'

AS STATED ABOVE,"RECEIPT," AS USED IN THIS PROVISION, MEANS ACTUAL DELIVERY OF THE DOCUMENT TO THE BIDDER. THIS OFFICE HAS PREVIOUSLY CONSIDERED AND REJECTED THE CONTENTION, MADE ON ANOTHER BASIS, THAT THE TERMS "AFTER DATE OF CONTRACT" AND "AFTER RECEIPT OF CONTRACT" ARE SYNONYMOUS. SEE 38 COMP. GEN. 876.

CONSEQUENTLY, SINCE THE TERM "AFTER RECEIPT OF ORDER" IS NOT SYNONYMOUS WITH "AFTER DATE OF CONTRACT," THE USE OF ARO IN THE DELIVERY SCHEDULE OF YOUR BID WAS A MATERIAL DEVIATION AND RENDERED IT NONRESPONSIVE, AND THE BID WAS PROPERLY REJECTED. SEE 38 COMP. GEN. 98; 43 ID. 813.