B-164690, OCT. 15, 1968

B-164690: Oct 15, 1968

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TO POLARAD ELECTRONICS CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 24. DELIVERY OF THE EQUIPMENT UNDER THE INVITATION WAS DESIRED WITHIN 60 DAYS OF RECEIPT OF AWARD AND WAS REQUIRED WITHIN 90 DAYS OF RECEIPT OF AWARD. POLARAD'S BID WAS ACCOMPANIED BY A COVER LETTER DATED MAY 31. WHICH ADVISED IN PART: "DELIVERY OF THE ANALYZER CAN BE MADE IN JULY 1968 IF AN ORDER IS RAPIDLY EFFECTED. ONCE PRESENT STOCK IS DEPLETED DELIVERY WILL BE 180 DAYS AFTER RECEIPT OF ORDER.'. OR MAKING AMBIGUOUS THEIR PROPOSED DELIVERY SCHEDULE AS THERE WAS NO QUESTION POLARAD COULD DELIVER ON SCHEDULE CONSIDERING THE 60-DAY LIMIT ON ACCEPTANCE OF THE OFFER. THAT LETTER PROMISES DELIVERY IN JULY 1968 IF AWARD IS RAPIDLY EFFECTED BEFORE STOCK IS DEPLETED.

B-164690, OCT. 15, 1968

TO POLARAD ELECTRONICS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 24, 1968, PROTESTING AGAINST THE REJECTION OF YOUR BID BY THE CONTRACTING OFFICER AS NONRESPONSIVE TO THE DELIVERY SCHEDULE UNDER INVITATION FOR BIDS F19650-68 -B-1394 ISSUED AT L. G. HANSCOM FIELD, BEDFORD, MASSACHUSETTS, BY THE DEPARTMENT OF THE AIR FORCE.

THAT INVITATION REQUESTED BIDS FOR FURNISHING ONE ANALYZER, SPECTRUM, HEWLETT-PACKARD MODEL 851 B/855 1B, OR EQUAL. DELIVERY OF THE EQUIPMENT UNDER THE INVITATION WAS DESIRED WITHIN 60 DAYS OF RECEIPT OF AWARD AND WAS REQUIRED WITHIN 90 DAYS OF RECEIPT OF AWARD.

POLARAD SUBMITTED THE LOW BID IN RESPONSE TO THE INVITATION AND OFFERED DELIVERY WITHIN 60 DAYS OF RECEIPT OF AWARD. HOWEVER, POLARAD'S BID WAS ACCOMPANIED BY A COVER LETTER DATED MAY 31, 1968, WHICH ADVISED IN PART: "DELIVERY OF THE ANALYZER CAN BE MADE IN JULY 1968 IF AN ORDER IS RAPIDLY EFFECTED. ONCE PRESENT STOCK IS DEPLETED DELIVERY WILL BE 180 DAYS AFTER RECEIPT OF ORDER.' AS A RESULT OF THIS STATEMENT THE CONTRACTING OFFICER DETERMINED THE BID BY POLARAD TO BE NONRESPONSIVE TO THE DELIVERY SCHEDULE REQUIRED IN THE INVITATION AND ON JUNE 14, 1968, MADE AWARD TO THE BRAND NAME MANUFACTURER AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER. POLARAD CONTENDS THAT THE STATEMENT IN THE COVER LETTER SHOULD NOT BE INTERPRETED AS CONTRADICTING, ALTERING, OR MAKING AMBIGUOUS THEIR PROPOSED DELIVERY SCHEDULE AS THERE WAS NO QUESTION POLARAD COULD DELIVER ON SCHEDULE CONSIDERING THE 60-DAY LIMIT ON ACCEPTANCE OF THE OFFER.

IN THE ABSENCE OF A CONTRARY INTENT CLEARLY EXPRESSED ON THE FACE OF THE LETTER, THE COVER LETTER OF MAY 31, 1968, MUST BE CONSIDERED PART OF POLARAD'S BID. SEE 36 COMP. GEN. 535; 40 ID. 432; 45 ID. 397. THAT LETTER PROMISES DELIVERY IN JULY 1968 IF AWARD IS RAPIDLY EFFECTED BEFORE STOCK IS DEPLETED. IMPLIED IN THIS QUALIFICATION AND THE NEXT SENTENCE OF THE LETTER IS THE ADVICE THAT IF AWARD IS NOT RAPIDLY EFFECTED STOCK WILL BE DEPLETED AND DELIVERY WILL NOT BE UNTIL 180 DAYS AFTER AWARD. INASMUCH AS POLARAD'S OFFER BY ITS TERMS REMAINED AVAILABLE FOR ACCEPTANCE FOR 60 DAYS OR UNTIL AUGUST 6, 1968, THE QUALIFICATION IN THE COVER LETTER MUST MEAN THAT AT SOME POINT IN TIME DURING THE ACCEPTANCE PERIOD OF THE BID (PRIOR TO AUGUST 6, 1968) AWARD WOULD NOT BE RAPIDLY EFFECTED. IN THAT INSTANCE DELIVERY WOULD NOT BE MADE UNTIL 180 DAYS AFTER AWARD. IN ORDER TO RECEIVE DELIVERY WITHIN TIME REQUIRED IN THE INVITATION THE GOVERNMENT WAS REQUIRED TO MAKE AWARD BEFORE THAT UNCERTAIN POINT IN TIME DURING THE ACCEPTANCE PERIOD OF POLARAD'S BID AT WHICH AWARD WOULD BE CONSIDERED RAPIDLY EFFECTED.

CLEARLY IN THAT JULY DELIVERY WAS PROMISED IF AWARD WAS RAPIDLY EFFECTED, AWARD AFTER JULY MUST HAVE BEEN CONSIDERED NOT RAPIDLY EFFECTED. HOWEVER, THE POINT IN TIME BEFORE WHICH AWARD WOULD BE CONSIDERED RAPIDLY EFFECTED CANNOT BE ASCERTAINED. THEREFORE, THERE WAS NO DEFINITE TIME AT WHICH THE GOVERNMENT COULD MAKE AN AWARD WITH THE PROMISE BY POLARAD THAT IT WOULD PERFORM WITHIN THE REQUIRED DELIVERY SCHEDULE.

THIS OFFICE HAS CONSISTENTLY UNDERSTOOD TIME TO BE OF THE ESSENCE IN AN INVITATION WHICH ON ITS FACE REQUIRED DELIVERY WITHIN A STATED TIME. COMP. GEN. 181, 182; 41 ID. 788, 791. A BID WHICH FAILS TO MEET THE DELIVERY SCHEDULE SET IN THE INVITATION BY ALTERING, CHANGING OR CONDITIONING TERMS OF DELIVERY MUST BE REJECTED AS MATERIALLY DEVIATING FROM THE REQUIREMENTS OF THE INVITATION FOR BIDS. 33 COMP. GEN. 441; 34 ID. 24; ID. 119; 38 ID. 876. NOR MAY A BID REJECTED FOR FAILING TO MEET REQUIREMENT OF DELIVERY SCHEDULE BE MADE RESPONSIVE BY EXTRINSIC EVIDENCE AS TO WHAT IN FACT WAS INTENDED. 38 COMP. GEN. 819. POLARAD MAY HAVE IN FACT INTENDED TO CONFORM TO THE DELIVERY SCHEDULE BY DELIVERING WITHIN 60 DAYS, AND ONLY INTENDED TO ADVISE THE CONTRACTING OFFICER THAT WITH RAPID AWARD DELIVERY COULD BE MADE IN JULY 1968, AND THAT IF AWARD WAS NOT MADE WITHIN ACCEPTANCE PERIOD OR BY AUGUST 6, 1968, DELIVERY UNDER A NEW INVITATION MIGHT REQUIRE 180 DAYS DUE TO DEPLETION OF STOCK. HOWEVER, THE BID BY POLARAD DID NOT PROMISE DELIVERY IN CONFORMANCE WITH THE REQUIREMENT OF THE INVITATION. RATHER, DELIVERY WAS PROMISED WITHIN 180 DAYS UNLESS AWARD WAS RAPIDLY EFFECTED BEFORE STOCK WAS DEPLETED WHENEVER THAT MIGHT BE.

ACCORDINGLY, THE BID BY POLARAD WAS PROPERLY REJECTED AND YOUR PROTEST MUST BE DENIED.