B-162706, MAR. 5, 1968

B-162706, MAR. 5, 1968

BIDS - DEVIATIONS - DELIVERY PROVISIONS DECISION DENYING PROTEST OF J.R. CLINTON CO., INC. AGAINST REJECTION OF BID FOR REPAIRS TO WHARF AT HAINES, ALASKA BY DEPT. OF THE ARMY. BIDDER WHO QUALIFIED COMPLETION DEADLINE CONTRARY TO INVITATION REQUIRING BIDDERS TO STATE SPECIFIC NUMBER OF CALENDAR DAYS FOR COMPLETION HAD BID PROPERLY REJECTED AS NONRESPONSIVE AND AWARD TO BIDDER WHO SUBMITTED FULLY RESPONSIVE BID. HOWEVER, WHILE IT WOULD HAVE BEEN PREFERABLE TO HAVE CANCELLED INVITATION BECAUSE INVITATION GAVE BIDDERS OPTION OF STATING A COMPLETION DATE OTHER THAN THE DESIRED ONE, DEPT. HAS ADVISED THAT PROVISION WILL NOT BE USED IN FUTURE INVITATION. SINCE WORK IS 82 PERCENT COMPLETE, CANCELLATION AND READVERTISEMENT WOULD NOT BE IN GOVERNMENT'S INTEREST.

TO J.R. CLINTON COMPANY, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 16, 1967, AND LETTER OF THE SAME DATE WITH ENCLOSURES, WHEREIN YOU PROTEST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS (IFB) NO. DAFA-03-68-B-0007, ISSUED BY THE PURCHASING AND CONTRACTING DIVISION, FORT RICHARDSON, ALASKA.

THE INVITATION COVERED REPAIRS TO THE POL TERMINAL WHARF AT HAINES, ALASKA. PROVISION SC1 (COMMENCEMENT, PROSECUTION AND COMPLETION OF WORK) PROVIDED AS FOLLOWS:

"THE CONTRACTOR WILL BE REQUIRED TO COMMENCE WORK UNDER THIS CONTRACT WITHIN 10 CALENDAR DAYS AFTER THE DATE OF RECEIPT BY HIM OF NOTICE TO PROCEED, TO PROSECUTE SAID WORK DILIGENTLY, AND TO COMPLETE THE ENTIRE WORK READY FOR USE (WITH THE EXCEPTION OF PAINTING) NOT LATER THAN 30 NOVEMBER 1967. PAINTING SHALL BE COMPLETED BY 15 JUNE 1968. THE TIME STATED FOR COMPLETION SHALL INCLUDE FINAL CLEAN UP OF THE PREMISES.'

ADDITIONALLY, THE REVERSE SIDE OF THE BID FORM CONTAINED THE FOLLOWING PROVISION:

"THE UNDERSIGNED AGREES, IF AWARDED THE CONTRACT, TO COMMENCE THE WORK WITHIN CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED, AND TO COMPLETE THE WORK WITHIN CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED.

"IF NO ENTRY IS MADE HEREIN THE ENTRY IN SC1 WILL GOVERN.' IN RESPONSE TO THE LATTER PROVISION, YOU INSERTED THE FOLLOWING STATEMENT:

"*NOTE 1

"TIME OF COMPLETION WILL HAVE TO BE CONTINGENT UPON WHETHER OR NOT ANY OF THE BUMPER SPRINGS MUST BE REPLACED. THIS CANNOT BE KNOWN UNTIL THE BOXES ARE DISMANTLED FOR INSPECTION.' THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE TO THE COMPLETION DEADLINE STATED IN PROVISION SC1 BECAUSE OF THE QUALIFICATION IN NOTE 1, AND THEREFORE REJECTED THE BID.

YOU MAINTAIN THAT YOUR INSERTION WAS PERMISSIBLE UNDER THE OPTION GRANTED BIDDERS BY THE BID FORM PROVISION, QUOTED ABOVE; MOREOVER, YOU MAINTAIN THAT IT WOULD HAVE BEEN IMPOSSIBLE TO SPECIFY AN EXACT COMPLETION DATE WITHOUT KNOWLEDGE OF THE CONDITION OF THE BUMPER SPRINGS IN THE WHARF.

IN A REPORT DATED JANUARY 16, 1968, THE DEPARTMENT OF THE ARMY HAS ADVISED US THAT IT CONSIDERS THE SUBJECT IFB DEFECTIVE BECAUSE THE PROVISION, APPARENTLY CONFERRING ON BIDDERS THE OPTION OF INSERTING COMPLETION TIMES OTHER THAN THE DESIRED DATE OF NOVEMBER 30, 1967, PREVENTED THE ESTABLISHMENT OF A MAXIMUM COMPLETION DATE FOR THE PROJECT AND COULD BE CONSTRUED AS AN AGREEMENT BY THE GOVERNMENT TO ACCEPT ANY REASONABLE TIME OF PERFORMANCE OFFERED BY THE LOWEST BIDDER. SINCE THE PROCURING ACTIVITY CONSIDERED IT IMPERATIVE THAT THE WORK BE PERFORMED AT THE EARLIEST POSSIBLE TIME, IT DID NOT INTEND THAT BIDDERS SHOULD BE ALLOWED SUCH LATITUDE, AND IT IS THE DEPARTMENT'S VIEW THAT CONSIDERATION SHOULD HAVE BEEN GIVEN TO CANCELLATION OF THE INVITATION. WE ARE FURTHER ADVISED THAT INSTRUCTIONS HAVE BEEN ISSUED TO DISCONTINUE USE OF THE NOTATION APPENDED TO THE BID FORM WHICH GAVE RISE TO THE AMBIGUITY HERE.

HOWEVER, WHILE WE ARE INCLINED TO AGREE THAT CANCELLATION OF THE IFB WOULD HAVE BEEN PROPER, WE CANNOT HOLD THAT YOUR BID WAS ENTITLED TO CONSIDERATION AS A RESPONSIVE BID UNDER ANY INTERPRETATION. THE PROVISION ALLOWING BIDDERS THE OPTION OF STATING THEIR OWN COMPLETION TIME CALLED FOR THE INSERTION OF A SPECIFIC NUMBER OF CALENDAR DAYS. YOUR QUALIFICATION NOT ONLY DID NOT CONFORM TO THIS REQUIREMENT, BUT DID NOT IN ANY WAY FIX A TIME FOR COMPLETION OF THE WORK. AS TO THE QUALIFICATION INSERTED, IF YOU WERE NOT WILLING TO UNDERTAKE PERFORMANCE WITHIN ANY DEFINITE TIME WITHOUT ADDITIONAL INFORMATION AS TO THE CONDITION OF THE BUMPER SPRINGS, YOU COULD HAVE REQUESTED THE CONTRACTING OFFICER TO HAVE THE SPRINGS DISMANTLED FOR INSPECTION OR TO WARRANT THEIR CONDITION, AND REFRAINED FROM BIDDING IF HE WOULD DO NEITHER.

IN THE CIRCUMSTANCES, SINCE AWARD WAS MADE TO A BIDDER WHO SUBMITTED A FULLY RESPONSIVE BID, AND IT IS REPORTED THAT 82 PERCENT OF THE SCHEDULED WORK HAD BEEN COMPLETED BY DECEMBER 22, 1967, WE CANNOT CONCLUDE THAT THE CANCELLATION OF THE CONTRACT AWARDED AND READVERTISEMENT OF THE PROCUREMENT WOULD BE IN THE GOVERNMENT'S INTEREST. SEE B-159616, SEPTEMBER 15, 1966; 43 COMP. GEN. 326.