B-165177, NOV. 21, 1968

B-165177, NOV. 21, 1968

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER OF OCTOBER 21, 1968, AFSPPCA, WITH ENCLOSURES, FURNISHING A REPORT ON THE PROTEST OF THE GENERAL ELECTRIC COMPANY UNDER INVITATION FOR BIDS F41608-68-B-1785, ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA (SAAMA), KELLY AIR FORCE BASE, TEXAS.

THE FACTS CONCERNING THE ABOVE PROCUREMENT WERE ADMINISTRATIVELY REPORTED AS FOLLOWS:

"THIS SOLICITATION WAS INTENDED TO COVER THE REQUIREMENTS FOR ONE TYPE OF NICKEL-CADMIUM STORAGE BATTERY THAT WOULD BE GENERATED DURING THE ENSUING YEAR FOR USE IN VARIOUS AIRCRAFT AND AEROSPACE GROUND EQUIPMENT (AGE). MACHINE COMPUTATION FORECASTED A TOTAL QUANTITY REQUIREMENT OF 1,423 FOR THIS PARTICULAR BATTERY FOR THE ONE YEAR PERIOD. SAAMA ESTIMATED THAT A MINIMUM OF 300 WOULD BE NEEDED DURING ANY ONE NINETY-DAY PERIOD, AND THEREFORE USED THE 300 AS THE MINIMUM REQUIRED. THE FIGURE OF 1,500 WAS SELECTED AS THE PROBABLE MAXIMUM AGGREGATE AMOUNT.

"IN JUNE 1968, AN IFB WAS ASSEMBLED AND PREPARED, ENCOMPASSING A REQUIREMENTS TYPE CONTRACT. THROUGH AN OVERSIGHT, THE BUYER NEGLECTED TO ADD, AT LEAST, THE WORD -ESTIMATED- TO THE -1423- QUANTITY FIGURE APPEARING IN THE SCHEDULE. CONSEQUENTLY, THE FIRST PAGE OF THE SCHEDULE, STANDING ALONE, OSTENSIBLY CALLED FOR A PRICE ON THE SPECIFIC QUANTITY OF 1,423 BATTERIES. HOWEVER, PAGE 4 OF THIS SAME SECTION OF THE IFB, WAS APPLICABLE ONLY TO A REQUIREMENTS TYPE CONTRACT. MINIMUM AND MAXIMUM QUANTITIES HAD BEEN FILLED IN ON THIS PAGE4 BY TYPING -300 EACH- AND -1500 EACH- IN THE RESPECTIVE BLANK SPACES OF THE PREPRINTED PAGE. ANOTHER PROVISION STATED THAT DELIVERY ORDERS WOULD BE ISSUED FOR A PERIOD OF ONE YEAR BEGINNING WITH THE EFFECTIVE DATE APPEARING ON THE FACE OF THE RESULTANT CONTRACT. PROVISION ENTITLED -PART VI - REQUIREMENTS, ALSO APPEARING ON THIS SAME PAGE 4, READS, IN PART, AS FOLLOWS:

-THIS IS A REQUIREMENTS CONTRACT FOR THE SUPPLIES OR SERVICES SPECIFIED IN THE SCHEDULE, AND FOR THE PERIOD SET FORTH THEREIN. * * * THE QUANTITIES OF SUPPLIES OR SERVICES SPECIFIED HEREIN ARE ESTIMATES ONLY, AND ARE NOT PURCHASED HEREBY. * * *-

"THE IFB WAS DISTRIBUTED ON 2 JULY 1968 TO 18 POTENTIAL SUPPLIERS OF THIS QUALIFIED PRODUCT. ON 26 JULY 1968, AN AMENDMENT TO THE IFB WAS ISSUED TO EXTEND THE OPENING DATE FROM 1 AUGUST TO 7 AUGUST. ADDITIONALLY, THE FIGURE OF -1423- WAS QUALIFIED TO READ:

-BEST ESTIMATED QUANTITY (BEQ) IS 1,423 EACH- "THE AMENDMENT ALSO ADDED - 300 THROUGH 1,500- TO THE FIRST PAGE OF THE SCHEDULE TO INDICATE THE RANGE OF QUANTITY VARIATION IN AGREEMENT WITH THE FIGURES APPEARING ON PAGE 4 OF THE SCHEDULE, MENTIONED ABOVE. THE LANGUAGE, AND THE POSITIONING OF THE WORDS, AS QUOTED, LEFT MUCH TO BE DESIRED, CONSIDERING ONE OF THE PURPOSES OF THE AMENDMENT WAS TO CORRECT THE INEXACT DESCRIPTION OF THE QUANTITIES INVOLVED. HOWEVER, IN OUR OPINION, NOTHING WAS CHANGED BY THIS AMENDMENT EXCEPT THE BID OPENING DATE.'

WHEN BIDS WERE OPENED ON AUGUST 7, 1968, THE CONTRACTING OFFICER NOTED THAT THE LOW BIDDER, GENERAL ELECTRIC, HAD NOT ACKNOWLEDGED THE AMENDMENT ISSUED ON JULY 26, 1968, AND ON ADVICE OF LEGAL COUNSEL REJECTED THAT BID.

THE PROPRIETY OF THE CONTRACTING OFFICER'S ACTION CLEARLY DEPENDS UPON THE SIGNIFICANCE ATTACHED TO THE AMENDMENT OF JULY 26, 1968. AS NOTED ABOVE THAT AMENDMENT IS NOW CONSIDERED AS CHANGING ONLY THE DATE OF BID OPENING AND NOT AS AFFECTING PRICE, QUALITY, QUANTITY OR DELIVERY. THIS OFFICE CONCURS IN THAT CONCLUSION. WHILE THAT AMENDMENT DID PERTAIN TO THE QUANTITY ESTIMATED TO BE FURNISHED, IT DID NOT CHANGE OR ALTER THAT QUANTITY BUT MERELY RESTATED THE SAME IN ANOTHER FORM ON THE FACE OF THE INVITATION. FAILURE TO ACKNOWLEDGE THIS AMENDMENT WAS A MINOR INFORMALITY IN THAT ALL BIDDERS WHETHER THEY HAD RECEIVED THE AMENDMENT OR NOT, LET ALONE ACKNOWLEDGED THE SAME, WERE BOUND TO FURNISH THE SAME QUANTITIES, A MINIMUM OF 300, A MAXIMUM OF 1,500, AND AN ESTIMATED AMOUNT OF 1,423. THE CIRCUMSTANCES HERE INVOLVED COMPLETELY SATISFY THE REASONS FOR WAIVING AS MINOR SUCH FAILURES. SEE 33 COMP. GEN. 508, 510; 30 COMP. GEN. 179, 182.

ACCORDINGLY, AS RECOMMENDED, THE PROTEST OF GENERAL ELECTRIC IS SUSTAINED AND AWARD MAY BE MADE TO THAT COMPANY IF OTHERWISE ELIGIBLE.