B-158871, JUL. 11, 1966

B-158871, JUL. 11, 1966

TO JACOB H. FISCHMAN:

WE REFER TO YOUR LETTER OF APRIL 6, 1966, PROTESTING ON BEHALF OF CHEMICAL COMPOUNDING CORPORATION AGAINST THE REJECTION OF ITS BID UNDER ITEM B OF INVITATION FOR BIDS NO. DSA-4-66-2643, ISSUED ON NOVEMBER 30, 1965, BY THE DEFENSE SUPPLY AGENCY, RICHMOND, VIRGINIA.

THE INVITATION CALLED FOR BIDS ON VARIOUS ITEMS OF DECONTAMINATING AGENT. ITEM B WAS FOR 3,500 DRUMS OF DECONTAMINATING AGENT ON AN F.O.B. ORIGIN BASIS ONLY. BIDS WERE TO BE EVALUATED ON THE BASIS OF SHIPMENT TO GUAM (1,500 DRUMS), JAPAN (500 DRUMS), OKINAWA (500 DRUMS) AND THE PHILIPPINE ISLANDS (1,000 DRUMS). UNDER TELEGRAPHIC BID CLAUSE (238) AT PAGE 8 OF THE INVITATION TELEGRAPHIC BIDS WERE PERMITTED PROVIDED THAT (A) ANY SUCH TELEGRAPHIC BID WAS RECEIVED IN TIME; (B) A SPECIFIC REFERENCE WAS MADE TO THE INVITATION; (C) THE ITEM OR SUB ITEMS, QUANTITIES AND UNIT PRICES AND THE TIME AND PLACE OF DELIVERY WERE INCLUDED IN THE TELEGRAPHIC BID; (D) THE BID CONTAINED "ALL THE REPRESENTATIONS AND OTHER INFORMATION REQUIRED BY THE INVITATION FOR BIDS TOGETHER WITH A STATEMENT THAT THE BIDDER AGREES TO ALL THE TERMS, CONDITIONS AND PROVISIONS OF THE INVITATION.' BIDDERS WERE ADMONISHED THAT THE FAILURE "TO FURNISH, IN THE TELEGRAPHIC BID, THE REPRESENTATIONS AND INFORMATION REQUIRED BY THE INVITATION FOR BIDS MAY NECESSITATE REJECTION OF THE BID * * *," AND THEY WERE REQUIRED TO FURNISH SIGNED COPIES OF THE INVITATIONS IN CONFIRMATION OF THE TELEGRAPHIC BIDS.

ONE OF THE BIDS RECEIVED BY BID OPENING, WHICH WAS HELD AT 10:30 A.M., DECEMBER 22, 1965, WAS A TELEGRAPHIC BID FROM CHEMICAL STATING:

"REIFB DSA-4-66-2643 OPENING 1030 AM EST 22 DEC 65 ENTER OUR BID FOR FSN 6850-297-6653 ITEMS B-0004 THRU B-0009 FOB OUR PLANT JERSEY CITY NJ $9.00/DRUM FOR ANY OR ALL QUANTITIES. TERMS 1/4 OF 1 PERCENT 10 DAYS DELIVERY AS REQUIRED. THIS IS A SMALL BUSINESS MANUFACTURER. END PRODUCT MEETS ALL REQUIREMENTS OF DOMESTIC MATERIAL. CONFIRMATION OF BID WILL BE FORWARDED ON SIGNED BID FORMS AND AMENDMENT NO 1 TO IFB"

THE TELEGRAPHIC BID QUOTE OF $9.00 PER DRUM ON ITEM B WAS LOW. OCTAGON PROCESS, INCORPORATED, SUBMITTED, ON THE FORMAL BID FORM, THE SECOND LOW BID AT $9.64 PER DRUM.

THE SIGNED FORMAL BID OF CHEMICAL WAS RECEIVED AFTER BID OPENING IN AN ENVELOPE MARKED ,CONFIRMATION OF TELEGRAPHIC BID.' THE ENVELOPE WAS SENT BY CERTIFIED MAIL AND CONTAINED METER STAMPS DATED DECEMBER 21, 1965 (ONE DAY BEFORE BID OPENING). THE BIDDER WAS ASKED TO FURNISH ITS POSTMARKED RECEIPT FOR CERTIFIED MAIL IN ORDER TO ESTABLISH THE TIME OF MAILING, BUT ADVISED THAT IT HAD NOT OBTAINED A POSTMARKED RECEIPT FOR THE CERTIFIED MAIL.

ITEM B WAS AWARDED TO OCTAGON PROCESS ON MARCH 30, 1966, CHEMICAL BEING ADVISED THAT ITS TELEGRAPHIC BID HAD BEEN FOUND UNACCEPTABLE FOR FAILURE TO STATE THAT THE BIDDER AGREED TO ALL THE TERMS, CONDITIONS AND PROVISIONS OF THE INVITATION; AND THAT ITS SIGNED BID HAD NOT BEEN MAILED IN TIME TO BE CONSIDERED FOR AWARD.

YOU ADVISE THAT ON FEBRUARY 11, 1966, AND THEN AGAIN ON MARCH 14, 1966, CHEMICAL WAS ASKED, AND IT AGREED, TO EXTEND THE ACCEPTANCE PERIOD FOR ITS BID. IT IS YOUR CONTENTION THAT CHEMICAL'S FAILURE TO INCORPORATE THE PRESCRIBED STATEMENT OF AGREEMENT IN ITS TELEGRAPHIC BID GAVE THE CONTRACTING OFFICER, AT MOST, A PERMISSIVE RIGHT TO REJECT THE BID; AND THAT THIS RIGHT WAS WAIVED WHEN THE BIDDER WAS ASKED TO EXTEND THE ACCEPTANCE PERIOD FOR ITS BID. YOU FIND SUPPORT FOR YOUR VIEW FROM THE LANGUAGE OF THE TELEGRAPHIC BID CLAUSE STATING THAT THE FAILURE TO SUPPLY ALL OF THE INFORMATION "MAY NECESSITATE REJECTION OF THE BID.' YOU FEEL THAT A CONTRACTING OFFICER SHOULD NOT BE ALLOWED TO REQUEST BID EXTENSIONS UNDER THESE CIRCUMSTANCES ONLY TO FIND THAT THE BID IS NONRESPONSIVE.

WE DO NOT SHARE YOUR VIEW AS TO THE EFFECT OF THE TIME EXTENSION ON THE CHEMICAL BID. A BIDDER IS ASKED TO EXTEND THE ACCEPTANCE TIME ON HIS BID SIMPLY BECAUSE THE CONTRACTING OFFICER NEEDS ADDITIONAL TIME TO CONSIDER THE BID. THE BIDDER CAN REFUSE TO GRANT THE EXTENSION IF HE SO CHOOSES. THERE IS NO REASON WHY A BIDDER SHOULD BE MISLED BY THE REQUEST FOR AN EXTENSION. THE PHRASE "MAY NECESSITATE REJECTION OF THE BID" AS IT APPEARS IN THE TELEGRAPHIC BID CLAUSE DOES NOT SIGNIFY THAT THE CONTRACTING OFFICER HAS DISCRETION TO ACCEPT OR REJECT TELEGRAPHIC BIDS WITH OMISSIONS. RATHER IT MEANS THAT THE FAILURE TO FURNISH REQUIRED INFORMATION MAY RENDER THE BID NONRESPONSIVE AND INELIGIBLE FOR CONSIDERATION.

CHEMICAL'S TELEGRAPHIC BID WAS PROPERLY REJECTED IN ACCORDANCE WITH OUR DECISION B-155119, DECEMBER 1, 1964, (COPY ENCLOSED) HOLDING THAT THE ABSENCE OF THE PRESCRIBED STATEMENT OF AGREEMENT IN A TELEGRAPHIC BID MADE THE BID NONRESPONSIVE. ACCORDINGLY, YOUR PROTEST IS DENIED.