B-161921, SEP. 15, 1967

B-161921: Sep 15, 1967

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THEREFORE THE BID WAS PROPERLY REJECTED. TO TECHNICAL MEASUREMENT CORPORATION: REFERENCE IS MADE TO YOUR PROTEST AGAINST THE REJECTION OF YOUR BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS NO. IT WAS FOR THIS REASON THAT YOUR BID WAS REJECTED AS NONRESPONSIVE. IT IS CONTENDED THAT YOU QUOTED DELIVERY WITHIN 180 DAYS AFTER RECEIPT OF ORDER. THAT IT WAS NOT YOUR INTENT TO DEVIATE FROM THAT REQUIREMENT BUT THAT THE OFFERING OF SUCH SCHEDULE WAS MERELY AN OVERSIGHT OR CLERICAL ERROR. REQUIRES THAT AWARDS IN FORMALLY ADVERTISED PROCUREMENTS BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES. CONTENTIONS SIMILAR TO THOSE ADVANCED BY YOU HAVE BEEN CONSIDERED BY OUR OFFICE PREVIOUSLY AND WHAT WAS HELD IN THOSE CASES IS EQUALLY APPLICABLE HERE.

B-161921, SEP. 15, 1967

BIDS - DEVIATIONS - DELIVERY PROVISIONS DECISION TO TECHNICAL MEASUREMENT CORP. CONCERNING PROTEST TO REJECTION OF BID FOR TWO-STEP PROCUREMENT OF A MULTI-CHANNEL PULSE HEIGHT ANALYZER AND RELATED ITEMS BY PURCHASING AND CONTRACTING DIRECTORATE, WHITE SANDS MISSILE RANGE, DEPT. OF ARMY. A BIDDER WHO IN A LETTER ACCOMPANYING A BID INDICATED THAT DELIVERY WOULD BE MADE WITHIN 180 DAYS AFTER RECEIPT OF ORDER WHEN INVITATION REQUIRED DELIVERY WITHIN 180 DAYS AFTER DATE OF CONTRACT HAS SUBMITTED A BID DEVIATING FROM THE REQUIREMENTS AND, THEREFORE THE BID WAS PROPERLY REJECTED.

TO TECHNICAL MEASUREMENT CORPORATION:

REFERENCE IS MADE TO YOUR PROTEST AGAINST THE REJECTION OF YOUR BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS NO. DAAD07-67-B-0170, ISSUED BY THE PURCHASING AND CONTRACTING DIRECTORATE, WHITE SANDS MISSILE RANGE, DEPARTMENT OF THE ARMY.

THE SUBJECT INVITATION, ISSUED ON MAY 1, 1967, AS THE SECOND STEP OF A TWO-STEP FORMALLY ADVERTISED PROCUREMENT, SOLICITED BIDS FOR THE FURNISHING OF A MULTI-CHANNEL PULSE HEIGHT ANALYZER AND OPTIONAL RELATED ITEMS. ALTHOUGH THE INVITATION IN MANDATORY TERMS REQUIRED DELIVERY WITHIN 180 DAYS AFTER THE DATE OF THE CONTRACT, YOUR BID DEVIATED FROM THIS PROVISION BY OFFERING DELIVERY WITHIN 180 DAYS AFTER RECEIPT OF ORDER. IT WAS FOR THIS REASON THAT YOUR BID WAS REJECTED AS NONRESPONSIVE.

THE WRITTEN PROPOSAL ACCOMPANYING YOUR BID STATED THAT "DELIVERY OF THE EQUIPMENT LISTED ON THE PRECEDING PAGES CAN BE MADE WITHIN 180 DAYS AFTER RECEIPT OF YOUR ORDER.' IT IS CONTENDED THAT YOU QUOTED DELIVERY WITHIN 180 DAYS AFTER RECEIPT OF ORDER, AS OPPOSED TO THE INVITATION REQUIREMENT OF 180 DAYS AFTER DATE OF CONTRACT, IN THE COURSE OF STANDARD BUSINESS PRACTICE, AND THAT IT WAS NOT YOUR INTENT TO DEVIATE FROM THAT REQUIREMENT BUT THAT THE OFFERING OF SUCH SCHEDULE WAS MERELY AN OVERSIGHT OR CLERICAL ERROR.

THE APPLICABLE PROCUREMENT STATUTE, 10 U.S.C. 2305 (C), REQUIRES THAT AWARDS IN FORMALLY ADVERTISED PROCUREMENTS BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. IN THIS RESPECT, ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.2 (C), ISSUED IN IMPLEMENTATION OF THE PROCUREMENT STATUTE, REQUIRES REJECTION OF BIDS WHICH FAIL TO CONFORM TO THE DELIVERY SCHEDULE PROVIDED IN THE INVITATION.

CONTENTIONS SIMILAR TO THOSE ADVANCED BY YOU HAVE BEEN CONSIDERED BY OUR OFFICE PREVIOUSLY AND WHAT WAS HELD IN THOSE CASES IS EQUALLY APPLICABLE HERE. IN 38 COMP. GEN. 876, IT WAS HELD:

"A DELIVERY SCHEDULE OFFERED IN TERMS OF A SPECIFIED TIME -AFTER RECEIPT OF CONTRACT- WHEN THE INVITATION REQUIRES DELIVERY WITHIN A SPECIFIED TIME -AFTER DATE OF CONTRACT- MAY NOT BE REGARDED AS IN COMPLIANCE WITH THE INVITATION, ON THE BASIS THAT THE MAILS MUST BE REGARDED AS THE AGENT OF THE BIDDER, IN VIEW OF THE DISTINCTION BETWEEN -MAILING- AND -RECEIPT- AND THE RULE THAT AN OFFER IS NOT ACCOMPLISHED UNTIL RECEIVED.

"UNDER AN INVITATION WHICH REQUIRES DELIVERY WITHIN A SPECIFIED TIME - AFTER DATE OF CONTRACT,- TIME MUST BE REGARDED AS OF THE ESSENCE OF THE CONTRACT, AND A BID WHICH OFFERS DELIVERY WITHIN A STATED TIME AFTER RECEIPT OF THE CONTRACT- DEVIATES FROM THE INVITATION IN A MATERIAL RESPECT EVEN THOUGH THE MAILING TIME IS INSIGNIFICANT WHEN COMPARED TO THE TIME FOR SCHEDULED DELIVERY; AND, THEREFORE, THE BID MUST BE REJECTED AS NONRESPONSIVE TO THE INVITATION.'

IN THAT DECISION IT WAS STATED:

"* * * SINCE THE MAILING TIME IS INSIGNIFICANT AS COMPARED TO THE SCHEDULE REQUIREMENT OF DELIVERIES WITHIN 10 TO 32 WEEKS YOU CONCLUDE THAT THE DIFFERENCE BETWEEN THE REQUIRED DELIVERY SCHEDULE AND THAT OFFERED IN YOUR BID SHOULD BE WAIVED BY THE CONTRACTING OFFICER AS A MINOR INFORMALITY ESPECIALLY IN VIEW OF THE MORE THAN $40,000 DIFFERENCE BETWEEN YOUR BID AND THAT OF THE NEXT HIGHER BIDDER. WHERE THE INVITATION ON ITS FACE REQUIRES DELIVERY WITHIN A STATED PERIOD, TIME MUST BE REGARDED AS OF THE ESSENCE OF THE CONTRACT EVEN IF THE INVITATION DOES NOT EXPRESSLY SO STATE. 36 COMP. GEN. 181. FAILURE OF A BID TO CONFORM TO THE REQUIRED DELIVERY SCHEDULE MUST BE REGARDED AS MATERIAL DEVIATION WHICH CANNOT BE WAIVED AND WHICH REQUIRES REJECTION OF SUCH BID. 34 COMP. GEN. 24.

"YOU NEXT ALLEGE THAT THE USE OF THE TERM -AFTER RECEIPT OF CONTRACT- IN YOUR BID WAS AN ERROR WHICH SHOULD BE SUBJECT TO CORRECTION UNDER THE RULES GOVERNING MISTAKES IN BID. ERRORS IN BID WHICH MAY BE CORRECTED AFTER OPENING ARE THOSE WHICH DO NOT AFFECT THE RESPONSIVENESS OF THE BID. B-139132, MAY 14, 1959. SINCE YOUR BID, AS INDICATED ABOVE, IS NOT RESPONSIVE IN THE FORM SUBMITTED, IT MAY NOT BE CONSIDERED FOR CORRECTION.'

IN VIEW OF THE FOREGOING, WE FIND NO BASIS TO QUESTION THE PROCUREMENT AGENCY'S REJECTION OF YOUR BID AS NONRESPONSIVE. 38 COMP. GEN. 98; 43 ID. 813.