B-164711, SEP. 30, 1968

B-164711: Sep 30, 1968

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LIMITED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 25. WAS ISSUED ON MAY 22. BIDS WERE SOLICITED ON AN F.O.B. SIX BIDS WERE RECEIVED AND OPENED ON JUNE 11. AWARD WAS MADE TO THE NEXT LOWEST BIDDER ON JUNE 24. WHERE INSPECTION AND ACCEPTANCE WERE ALSO TO BE MADE. QUANTITY DELIVERY DESIRED 1 1 30 DAYS IF THE OFFEROR IS UNABLE TO MEET THE DESIRED DELIVERY SCHEDULE. PROVIDED THAT ANY OFFER OFFERING DELIVERY BEYOND THE MAXIMUM ACCEPTABLE TIME SET FORTH BELOW SHALL BE CONSIDERED NONRESPONSIVE TO THE INVITATION AND WILL BE REJECTED. THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE STATED ABOVE WILL APPLY. IMMEDIATE SHIPMENT FROM OUR STOCK IN OUR SAN FRANCISCO WAREHOUSE WOULD HAVE EFFECTED DELIVERY TO THE NAVY AT PEARL HARBOR IN A MAXIMUM TIME OF FOURTEEN DAYS AFTER RECEIPT OF AN ORDER.'.

B-164711, SEP. 30, 1968

TO TRADERS DISTRIBUTING COMPANY, LIMITED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 25, 1968, PROTESTING AGAINST REJECTION OF YOUR BID AND AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. N00604-68-B-0343, ISSUED BY THE UNITED STATES NAVAL SUPPLY CENTER, PEARL HARBOR, HAWAII.

THE SUBJECT INVITATION, CALLING FOR BIDS ON ONE SPLIT SYSTEM AIR CONDITIONER, YORK MODEL EB 240, OR EQUAL, WAS ISSUED ON MAY 22, 1968, TO 16 FIRMS IN HAWAII AND TO 5 CONUS FIRMS. BIDS WERE SOLICITED ON AN F.O.B. DESTINATION BASIS. SIX BIDS WERE RECEIVED AND OPENED ON JUNE 11, 1968. YOU SUBMITTED THE LOWEST BID IN THE AMOUNT OF $3,121.25. HOWEVER, THE CONTRACTING OFFICER DETERMINED YOUR BID NONRESPONSIVE TO THE SECTION OF THE INVITATION SCHEDULE ENTITLED DELIVERIES". ACCORDINGLY, AWARD WAS MADE TO THE NEXT LOWEST BIDDER ON JUNE 24, 1968, IN THE AMOUNT OF $3,397.

THE INVITATION PROVIDED THAT THE CONTRACTOR WOULD BE RESPONSIBLE FOR DELIVERY OF THE AIR CONDITIONER, ALL TRANSPORTATION CHARGES PAID, TO THE NAVAL AMMUNITION DEPOT, OAHU, HAWAII, WHERE INSPECTION AND ACCEPTANCE WERE ALSO TO BE MADE. AS TO THE TIME OF DELIVERY, THE INVITATION PROVIDED AS FOLLOWS:

"4.1 TIME OF DELIVERY

THE GOVERNMENT DESIRES THAT DELIVERY BE MADE IN THE QUANTITIES AND WITHIN THE NUMBER OF DAYS AFTER DATE OF CONTRACT STATED BELOW.

ITEM NO. QUANTITY DELIVERY DESIRED

1 1 30 DAYS

IF THE OFFEROR IS UNABLE TO MEET THE DESIRED DELIVERY SCHEDULE, IT MAY, WITHOUT PREJUDICE IN THE EVALUATION OF ITS OFFER, OFFER AN ALTERNATE TIME FOR DELIVERY FOR EACH ITEM OFFERED IN THE SPACE PROVIDED BELOW, ENTITLED - OFFEROR'S PROPOSED DELIVERY SCHEDULE-, PROVIDED THAT ANY OFFER OFFERING DELIVERY BEYOND THE MAXIMUM ACCEPTABLE TIME SET FORTH BELOW SHALL BE CONSIDERED NONRESPONSIVE TO THE INVITATION AND WILL BE REJECTED.

MAXIMUM ACCEPTABLE DELIVERY SCHEDULE

ITEM NO. QUANTITY DELIVERY REQUIRED

1 1 60 DAYS

ANY OFFER OFFERING AN INDEFINITE TIME FOR DELIVERY OR OFFERING DELIVERY CONTINGENT UPON THE AVAILABILITY OR RECEIPT OF MATERIAL SHALL BE REJECTED. UNLESS THE OFFEROR OFFERS A DIFFERENT DELIVERY SCHEDULE, THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE STATED ABOVE WILL APPLY.

OFFEROR'S PROPOSED DELIVERY SCHEDULE (TO BE COMPLETED BY OFFEROR)

THE ARTICLES TO BE FURNISHED SHALL BE DELIVERED IN THE QUANTITIES AND WITHIN THE NUMBER OF DAYS AFTER DATE OF CONTRACT STATED BELOW.

ITEM NO. QUANTITY DELIVERY DATE"

UNDER THAT PORTION OF SECTION 4.1 ENTITLED "OFFEROR'S PROPOSED DELIVERY SCHEDULE" , YOU INSERTED THE PHRASE,"IMMEDIATE SHIPMENT FROM STOCK". ELSEWHERE IN THE INVITATION, YOU ALSO INDICATED THAT THE AIR CONDITIONER WOULD BE FURNISHED FROM STOCK AND NOT FROM GOVERNMENT SURPLUS MATERIAL. YOU ALSO LISTED FEDDERS CORPORATION AS THE MANUFACTURER AND THE PLACE OF PRINCIPAL MANUFACTURE AS WOODRIDGE AVENUE, EDISON, NEW JERSEY.

IN YOUR LETTER TO OUR OFFICE YOU CONTEND THAT YOU TOOK NO EXCEPTION TO THE DESIRED DELIVERY SCHEDULE AS SET FORTH IN THE INVITATION FOR BIDS AND STATE THAT:

"* * * CERTAINLY IT MUST BE APPARENT THAT IT WOULD BE IMPOSSIBLE FOR THE NAVY AT PEARL HARBOR TO RECEIVE THESE GOODS AT A DATE EARLIER THAN THAT WHICH WE INDICATED IN PROPOSAL. IMMEDIATE SHIPMENT FROM OUR STOCK IN OUR SAN FRANCISCO WAREHOUSE WOULD HAVE EFFECTED DELIVERY TO THE NAVY AT PEARL HARBOR IN A MAXIMUM TIME OF FOURTEEN DAYS AFTER RECEIPT OF AN ORDER.'

THE CONTRACTING OFFICER TAKES THE POSITION THAT THE STATEMENT "IMMEDIATE SHIPMENT FROM STOCK" GAVE HIM NO INFORMATION AS TO WHERE THE STOCK WAS LOCATED. THE MATERIAL, HE STATES, COULD HAVE BEEN IN STOCK IN NEW JERSEY AT FEDDERS CORPORATION OR ANY OTHER LOCATION IN THE UNITED STATES AND HE HAD NO WAY OF KNOWING FROM YOUR BID THAT THE UNIT WAS IN SAN FRANCISCO AND COULD BE DELIVERED TO DESTINATION IN 14 DAYS. IN ADDITION, HE STATES THAT THE PHRASE "IMMEDIATE SHIPMENT" OFFERED DELIVERY OF THE UNIT ONLY TO A CARRIER FOR TRANSPORTATION AND DID NOT ESTABLISH A DEFINITE TIME OF DELIVERY TO THE SPECIFIED POINT OF DESTINATION. ACCORDINGLY, YOUR BID WAS CONSIDERED NONRESPONSIVE AND REJECTED.

THE RESPONSIVENESS OF A BID MUST BE DETERMINED SOLELY ON THE BASIS OF THE BID AND ANY EXPLANATORY INFORMATION SUBMITTED PRIOR TO BID OPENING. IF A BID IS SO PREPARED AS TO CREATE DOUBT CONCERNING THE BIDDER'S INTENTION TO COMPLY WITH THE INVITATION REQUIREMENTS, HE MAY NOT BE ALLOWED TO EXPLAIN HIS MEANING WHEN HE IS IN A POSITION THEREBY TO PREJUDICE OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS BID. 45 COMP. GEN. 800, 804.

UNDER THE TERMS OF THE INVITATION, UNLESS A BIDDER OFFERED A DIFFERENT DELIVERY SCHEDULE THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE OF 30 DAYS WAS APPLICABLE. HAD YOU EITHER REFRAINED FROM MAKING ANY NOTATION OR INSERTED A SPECIFIC NUMBER OF DAYS UP TO 60, YOUR BID WOULD CLEARLY HAVE BEEN RESPONSIVE. HOWEVER, YOU CHOSE TO INSERT THE WORDS IN QUESTION UNDER "OFFEROR'S PROPOSED DELIVERY SCHEDULE" AND THE CONTRACTING OFFICER WAS REQUIRED TO CONSIDER THEIR MEANING AND EFFECT. AS STATED ABOVE, HE CONSIDERED THEM INDEFINITE AS TO THE TIME OF DELIVERY TO DESTINATION.

WE DO NOT QUESTION THE ASSERTION IN YOUR LETTER TO OUR OFFICE THAT THE GOODS WERE TO BE SHIPPED FROM YOUR STOCK IN SAN FRANCISCO AND WOULD HAVE BEEN RECEIVED BY THE NAVY IN PEARL HARBOR WITHIN 14 DAYS. HOWEVER, WE DO NOT THINK THIS FACT IS "APPARENT" FROM YOUR BID WHICH LISTS YOUR ADDRESS AS 119 MERCHANT STREET, HONOLULU, HAWAII, AND THE PLACE OF MANUFACTURE AS NEW JERSEY. MOREOVER, THE PHRASE "IMMEDIATE SHIPMENT" IS NOT SYNONOMOUS WITH "DELIVERY F.O.B. DESTINATION". IN FACT, THE TERM "SHIPMENT" HAS BEEN DEFINED AS CONTEMPLATING COMPLETE DELIVERY OF GOODS BY THE SHIPPER TO THE CARRIER FOR TRANSPORTATION. SEE 21 COMP. GEN. 776, AND COURT CASES CITED. WHILE WE RECOGNIZE THAT THE PHRASE IN QUESTION MAY HAVE BEEN INTENDED TO DO NO MORE THAN INFORM THE GOVERNMENT THAT THE DESIRED DELIVERY SCHEDULE WOULD PRESENT NO DIFFICULTY TO YOU AS THE GOODS WERE ON HAND AND COULD BE SHIPPED IMMEDIATELY, WE BELIEVE IT IS SUSCEPTIBLE TO THE INTERPRETATION PLACED ON IT BY THE CONTRACTING OFFICER AND, THEREFORE, THERE WAS A REASONABLE BASIS FOR HIS CONCLUSION THAT YOUR BID WAS NONRESPONSIVE. IN THESE CIRCUMSTANCES, CONSISTENT WITH OUR HOLDING IN 45 COMP. GEN. 800, 804, SUPRA, YOU COULD NOT BE PERMITTED TO EXPLAIN THE INTENDED MEANING OF THE PHRASE.

IT IS OUR OPINION THAT, AT THE VERY LEAST, YOU SUBMITTED AN AMBIGUOUS BID. ASIDE FROM THE CONTRACTING OFFICER'S INTERPRETATION OF THE PHRASE, WE BELIEVE IT IS REASONABLY SUSCEPTIBLE TO THE INTERPRETATION THAT YOUR DELIVERY OBLIGATION WAS CONDITIONED UPON THE UNSPECIFIED TIME REQUIRED TO SHIP THE GOODS FROM THE UNDESIGNATED LOCATION OF YOUR STOCK. WHERE A BID CONTAINS SUCH AN AMBIGUITY THAT IT IS NOT CLEAR WHETHER IT CONSTITUTES AN UNQUALIFIED OFFER TO COMPLY WITH THE SPECIFICATIONS, OUR OFFICE HAS HELD THAT CLARIFICATION AFTER BID OPENING IS NOT PROPER. SEE B-162082, NOVEMBER 15, 1967, AND CASES CITED.

ACCORDINGLY, WE CONCLUDE THAT IT WAS NOT IMPROPER FOR THE CONTRACTING OFFICER TO HAVE REJECTED YOUR BID.