B-163230, MAR. 8, 1968

B-163230: Mar 8, 1968

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LOW BIDDER WHO STATED THAT BID WAS SUBMITTED ON F.O.B. LOW BIDDER WHO ASKS THAT PROCUREMENT ACTIVITY NEGOTIATE A CONTRACT BECAUSE HE HAS OFFERED TO ASSUME ALL SHIPPING COSTS WITHOUT AN INCREASE IN PRICE HAS NOT PRESENTED ANY BASIS FOR SUCH ACTION SINCE THERE IS NO STATUTE WHICH ALLOWS AGENCY TO NEGOTIATE WITH A BIDDER TO EXCLUSION OF OTHERS MERELY BECAUSE HE IS LOW. IT IS STATED THAT DELIVERY PROVISIONS IN CANCELLED INVITATION WERE NOT DEFINITE AND LEFT TO INGENUITY OF BIDDER THE ASCERTAINMENT OF GOVERNMENT'S EXACT DELIVERY REQUIREMENTS. IT IS RECOMMENDED THAT THE DELIVERY PROVISIONS BE REEXAMINED TO PRECLUDE RECURRENCE OF SITUATION. SECRETARY: REFERENCE IS MADE TO LETTER SUP 0232. THERE IS ENCLOSED A COPY OF OUR DECISION OF TODAY TO THE PROTESTANT DENYING THE PROTEST FOR THE REASONS STATED THEREIN.

B-163230, MAR. 8, 1968

BIDS - DEVIATIONS - DELIVERY PROVISIONS DECISION DENYING PROTEST OF ELECTROMAGNETIC TECHNOLOGY CORPORATION AGAINST REFUSAL TO OBTAIN AWARD AND AGAINST RESOLICITATION OF PROCUREMENT FOR TEST PRODS BY NAVY ELECTRONICS SUPPLY OFFICE. LOW BIDDER WHO STATED THAT BID WAS SUBMITTED ON F.O.B. ORIGIN BASIS WHEREAS INVITATION REQUIRED BOTH F.O.B. ORIGIN AND F.O.B. DESTINATION HAD BID PROPERLY REJECTED AS NONRESPONSIVE. LOW BIDDER WHO ASKS THAT PROCUREMENT ACTIVITY NEGOTIATE A CONTRACT BECAUSE HE HAS OFFERED TO ASSUME ALL SHIPPING COSTS WITHOUT AN INCREASE IN PRICE HAS NOT PRESENTED ANY BASIS FOR SUCH ACTION SINCE THERE IS NO STATUTE WHICH ALLOWS AGENCY TO NEGOTIATE WITH A BIDDER TO EXCLUSION OF OTHERS MERELY BECAUSE HE IS LOW. IN LETTER TO SECY. IT IS STATED THAT DELIVERY PROVISIONS IN CANCELLED INVITATION WERE NOT DEFINITE AND LEFT TO INGENUITY OF BIDDER THE ASCERTAINMENT OF GOVERNMENT'S EXACT DELIVERY REQUIREMENTS. IT IS RECOMMENDED THAT THE DELIVERY PROVISIONS BE REEXAMINED TO PRECLUDE RECURRENCE OF SITUATION.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER SUP 0232, DATED FEBRUARY 12, 1968, FROM THE DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND, REPORTING ON THE PROTEST OF ELECTROMAGNETIC TECHNOLOGY CORPORATION, UNDER INVITATION FOR BIDS NO. N00126-68-B-0214 AND REQUEST FOR PROPOSALS NO. 7X3902, BOTH ISSUED BY THE NAVY ELECTRONICS SUPPLY OFFICE.

THERE IS ENCLOSED A COPY OF OUR DECISION OF TODAY TO THE PROTESTANT DENYING THE PROTEST FOR THE REASONS STATED THEREIN.

ALTHOUGH WE FOUND NO LEGAL BASIS TO AFFORD RELIEF TO THE PROTESTING BIDDER, WE WISH TO POINT OUT THAT THE DELIVERY PROVISIONS OF THE CANCELED INVITATION WERE NOT CLEARLY DEFINED AND LEFT TO THE INGENUITY OF BIDDERS THE ASCERTAINMENT OF THE GOVERNMENT'S EXACT DELIVERY REQUIREMENTS. BELIEVE THAT SUCH REQUIREMENTS SHOULD BE FULLY SET OUT IN THE INVITATION RATHER THAN BEING LEFT TO THE POSSIBLE VARYING INTERPRETATIONS BY BIDDERS. ACCORDINGLY, WE SUGGEST THAT THESE DELIVERY PROVISIONS OF THE INVITATION BE REEXAMINED WITH A VIEW TO PROVIDING MORE POSITIVE DELIVERY REQUIREMENTS SO AS TO PRECLUDE A RECURRENCE OF THE SITUATION THAT GAVE RISE TO THE PROTEST.