B-162871, APR. 11, 1968

B-162871, APR. 11, 1968

TO CRESCENT COMMUNICATIONS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 4, 1967, AND LETTERS DATED NOVEMBER 6, 1967, AND MARCH 13, 1968, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION N00600-67-B-0737-S, ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE INVITATION FOR BIDS, ISSUED APRIL 19, 1967, CONTEMPLATED A TWO YEAR MULTI-YEAR PROCUREMENT (FY 1967 - FY 1968) OF A QUANTITY OF AN/SAR-7 ( ( INFRARED VIEWING SETS WITH RELATED PARTS AND DATA. BIDDERS WERE ADVISED ON PAGE 2 OF THE SCHEDULE THAT THEY "SHOULD QUOTE UNIT PRICES FOR EACH OF THE QUANTITIES LISTED UNDER ITEM 1 AND ARE ADVISED THAT IF AWARD IS MADE FOR A QUANTITY OF ITEM 1 FOR WHICH A BIDDER HAS NOT QUOTED PRICES, AWARD CAN NOT BE MADE TO THAT BIDDER". THE INVITATION FURTHER PROVIDED THAT AWARD WOULD BE MADE TO ONLY ONE BIDDER ON ALL ITEMS TO BE AWARDED. PAGES 2 AND 3 OF THE SCHEDULE ALSO STATED IN PART AS FOLLOWS:

"* * * ANY AWARD UNDER THIS INVITATION FOR BIDS WILL BE MADE ON THE BASIS OF MULTI-YEAR PROCUREMENT. * * * THE REQUIREMENTS FOR EACH PROGRAM YEAR ARE SET FORTH BELOW:

ITEM FY 1967 FY 1968 TOTAL

1 1304 (FIRM QUANTITY) 636 (FIRM

QUANTITY)

1325 (STEPLADDER QTY)

1346 (STEPLADDER QTY)

1367 (STEPLADDER QTY)

1388 (STEPLADDER QTY)

4 20 0 20" HOWEVER, THE BIDDING SCHEDULE ON PAGES 4 AND 5 WHILE PROVIDING SPACE FOR THE INSERTION OF BID PRICES, FOR THE FIRST YEAR'S QUANTITIES, OMITTED SPACES OR ANY OTHER PROVISION FOR BIDDING ON THE SECOND YEAR'S REQUIREMENTS. THIS WAS APPARENTLY DUE TO INADVERTENCE. AMENDMENTS NO. 1 AND NO. 2 MADE FIRM THE STEPLADDER QUANTITIES FOR FY 1967 AND CERTAIN CHANGES IN THE SPECIFICATIONS, BUT DID NOT CORRECT THIS OMISSION.

PRIOR TO THE OPENING OF BIDS ON MAY 19, 1967, ALL BIDDERS WERE NOTIFIED BY TELEGRAM THAT THE OPENING DATE OF THE IFB WAS EXTENDED TO MAY 26, 1967, AND THAT ALL BIDDERS WOULD RECEIVE A FORMAL AMENDMENT NO. 3 REQUIRING A BID ON THE TOTAL MULTI-YEAR QUANTITY OF 2044 EQUIPMENTS, AS FOLLOWS:

"SECTION A - SUPPLIES AND/OR SERVICES AND PRICES

THE TOTAL FIRM QUANTITY FOR FY 1967 REQUIREMENTS IS 1408.

THE TOTAL FIRM QUANTITY FOR FY 1968 REQUIREMENTS IS 636.

BIDDERS ARE REQUIRED TO BID ON THE GRAND TOTAL QUANTITY OF 2044 ONLY, AS FOLLOWS:

BID A

ITEM QTY UNIT PRICE AMOUNT

1 2024 $ $

4 20 $ $

BID B

ITEM QTY UNIT PRICE AMOUNT

1 2024 $ $

4 20 $ $

THE ABOVE IS MERELY A RESTATEMENT OF THE QUANTITIES FOR

ITEMS 1 AND 4. ALL OTHER DETAILS OF THESE AND THE REMAINDER

OF THE ITEMS IN THE INVITATION FOR BIDS REMAIN UNCHANGED.' BID "A" BY THE TERMS OF THE IFB WAS TO BE ON THE BASIS OF WAIVER AND EXCLUSION OF FIRST ARTICLE REQUIREMENTS WHEREAS BID "B" WAS TO BE ON THE BASIS OF NON- WAIVER AND NON-EXCLUSION OF FIRST ARTICLE REQUIREMENTS.

BIDS WERE OPENED IN ACCORDANCE WITH THE AMENDED INVITATION AT 10:30 A.M., E.D.S.T., ON MAY 26, 1967. YOUR TELEGRAM SENT THAT DATE ACKNOWLEDGING RECEIPT OF AMENDMENT NO. 3 AND REDUCING YOUR UNIT PRICE BY $5.00, HAD NOT BEEN RECEIVED AT THAT TIME AND NOTHING IN EITHER YOUR PROTEST OR THE RECORD INDICATES THAT ITS TRANSMISSION SHOULD BE CONSIDERED AS A LATE AMENDMENT UNDER PARAGRAPH 6 OF THE TERMS AND CONDITIONS OF THE INVITATION.

YOUR BID WITHOUT AMENDMENT NO. 3, SHOWS A UNIT PRICE OF $394 WITH A TOTAL PRICE OF $554,752. THIS INCLUDED 1388 UNITS UNDER ITEM 1 AND 20 UNDER ITEM 4. NO BID IS SHOWN FOR THE ADDITIONAL 636 UNIT REQUIREMENT FOR A TOTAL OF 2044 CALLED FOR BY THE INVITATION AS AMENDED BY AMENDMENT NO. 3. YOUR UNIT BID PRICE WAS LOW EVEN WITHOUT THE REDUCTION OFFERED IN THE TELEGRAM.

AMENDMENT NO. 3 PROVIDED, AS DID THE OTHER AMENDMENTS, THAT THE BIDDER HAD TO ACKNOWLEDGE ITS RECEIPT PRIOR TO BID OPENING EITHER BY SIGNING AND RETURNING TWO COPIES, BY A WRITTEN ACKNOWLEDGMENT ON THE BID, OR BY SEPARATE LETTER OR TELEGRAM. BIDDERS WERE WARNED THAT A BID COULD BE REJECTED UNLESS ACKNOWLEDGMENT OF THE AMENDMENT WAS RECEIVED AT THE ISSUING OFFICE PRIOR TO THE TIME SET FOR BID OPENING.

SINCE, UNDER THE TERMS OF THE INVITATION AS AMENDED, AN AWARD COULD BE MADE ONLY ON A UNIT BASIS TO A LOW RESPONSIVE BIDDER FOR ALL QUANTITIES, AND SINCE YOU FAILED TO BID ON THE 636 UNITS FOR FY 1968 INCLUDED UNDER AMENDMENT NO. 3, YOUR BID WAS ADMINISTRATIVELY CONSIDERED AS NONRESPONSIVE. THE SAME DETERMINATION WAS MADE WITH RESPECT TO THE BID SUBMITTED BY DECITRON ELECTRIC CORPORATION.

YOU CONTEND THAT AMENDMENT NO. 3 WAS NOT SUBSTANTIVE IN NATURE AND THEREFORE ITS LATE RECEIPT SHOULD NOT BE USED TO RULE YOUR BID AS NONRESPONSIVE. SPECIFICALLY, IT IS YOUR POSITION THAT THE IFB AS ISSUED TOGETHER WITH THE FIRST TWO AMENDMENTS, WHICH YOU ACKNOWLEDGED, IMPOSED A REQUIREMENT FOR DELIVERY OF 2044 UNITS SO THAT NOTHING OF SUBSTANCE WAS ADDED, SO FAR AS CONCERNS PRICE, QUANTITY OR QUALITY, BY AMENDMENT NO. 3.

A BID MAY BE REGARDED AS RESPONSIVE ONLY IF UPON ACCEPTANCE THE GOVERNMENT MAY REQUIRE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE INVITATION WHETHER OR NOT THE CONTRACTOR ELECTS SO TO PERFORM. COMP. GEN. 502. THE ISSUE HERE IS WHETHER UPON AWARD ON YOUR BID THE GOVERNMENT COULD REQUIRE DELIVERY OF 2044 UNITS. AS ALREADY NOTED, THE INVITATION PROVIDES IN ESSENCE THAT ANY AWARD UNDER THE INVITATION WILL BE MULTI YEAR AND WILL INCLUDE A FIRM QUANTITY OF 636 FOR THE SECOND FISCAL YEAR. THE FACT REMAINS, HOWEVER, THAT THERE IS NO BID FROM YOU ON THE SECOND YEAR'S QUANTITY. WHILE THIS OMISSION MAY WELL HAVE RESULTED FROM THE INADEQUACY IN THE INVITATION RATHER THAN ANY DELIBERATE OMISSION ON YOUR PART, THE QUESTION REMAINS WHETHER UPON ACCEPTANCE OF YOUR BID WITHOUT ACKNOWLEDGMENT OF AMENDMENT NO. 3, YOU COULD BE REQUIRED TO FURNISH THE SECOND YEAR'S REQUIREMENT AT THE PRICE BID ON THE FIRST YEAR- S. WE THINK THIS MUST BE ANSWERED IN THE NEGATIVE, OR AT THE VERY LEAST THAT THE MATTER IS SO QUESTIONABLE AS TO PRECLUDE A DETERMINATION ON OUR PART THAT THE ADMINISTRATIVE ACTION TAKEN SHOULD BE REGARDED AS INVALID.

YOU FURTHER CONTEND THAT EVEN IF AMENDMENT NO. 3 IS CONSIDERED SUBSTANTIVE, YOU WERE NOT ALLOWED SUFFICIENT TIME TO RESPOND AND SINCE YOUR ORIGINAL BID WAS LOW, AND YOUR TELEGRAM WAS SENT PRIOR TO BID OPENING TIME, YOU SHOULD RECEIVE THE AWARD. YOU STATE THAT YOU DID NOT RECEIVE THE AMENDMENT UNTIL THE MORNING SET FOR BID OPENING AND THAT YOU IMMEDIATELY ACKNOWLEDGED RECEIPT BY TELEGRAM WHICH ALSO REDUCED YOUR BID PRICE FOR THE FULL QUANTITY OF 2044 BY FIVE DOLLARS PER UNIT.

IT IS REGRETTABLE THAT THE ADMINISTRATION OF THIS INVITATION LEFT SOMETHING TO BE DESIRED. EVEN THOUGH YOUR RECEIPT OF THE AMENDMENT WAS NOT TIMELY, THE FACT REMAINS THAT YOU DID NOT, PRIOR TO THE SCHEDULED OPENING OF BIDS, BID UPON THE REQUIRED QUANTITIES OF EQUIPMENT CALLED FOR BY THE AMENDMENT AND, THEREFORE, THE BID WAS NONRESPONSIVE TO THE INVITATION, AS AMENDED. WHILE THE GOVERNMENT SHOULD MAKE EVERY EFFORT TO SEE THAT INTERESTED BIDDERS RECEIVE TIMELY COPIES OF THE INVITATIONS FOR BIDS AND AMENDMENTS THERETO, THE FACT THAT THERE WAS A FAILURE TO DO SO IN A PARTICULAR CASE DOES NOT WARRANT THE ACCEPTANCE OF A BID OR AN AMENDMENT THEREOF AFTER THE TIME FIXED FOR OPENING. 40 COMP. GEN. 126.