B-165411, DEC. 16, 1968

B-165411: Dec 16, 1968

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DELINQUENT DELIVERIES BY OJUS UNDER A CONTRACT FOR THE SAME PROCUREMENT ITEM WHICH WAS AWARDED UNDER A THIRD IFB ISSUED AFTER THE CANCELLATION OF IFB DSA-700-67-B-4316. YOU STATE THAT WHILE YOUR BID OF $14.50 PER CONCERTINA UNDER THE CANCELLED IFB WAS CONSIDERED TOO HIGH. THIS LAST STATEMENT IS APPARENTLY INTENDED TO INDICATE THAT DCSC HAS BEEN INCONSISTENT IN ITS VIEWS AS TO WHAT CONSTITUTES A REASONABLE PRICE. BIDDERS WERE ADVISED THAT THE ITEMS WERE TO BE SHIPPED TO OVERSEAS DESTINATIONS AND WERE REQUESTED TO QUOTE PRICES ON AN F.O.B. TO THE EFFECT THAT THE CLAUSE ENTITLED "PATENT INDEMNITY" PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 9-103.1 WOULD NOT APPLY TO THE SOLICITATION SINCE THE GOVERNMENT WAS ATTEMPTING TO NEGOTIATE A LICENSE WITH THE HOLDER OF A PATENT RELATIVE TO THE SUPPLIES COVERED BY THE SOLICITATION.

B-165411, DEC. 16, 1968

TO BARBED TAPE PRODUCTS, INC.:

WE REFER TO YOUR PROTEST BY TELEGRAM DATED OCTOBER 7, 1968, CONCERNING A PROCUREMENT OF BARBED CONCERTINA TYPE UNDER INVITATION FOR BIDS (IFB) DSA- 700-69-B-0330, ISSUED AUGUST 14, 1968, BY THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), DEFENSE SUPPLY AGENCY (DSA), COLUMBUS, OHIO.

THE PROTEST, AS DETAILED IN YOUR LETTER DATED OCTOBER 4 TO DCSC, COVERS THE MATTER OF AN EXTENSION OF THE PERIOD FOR SUBMISSION OF BIDS UNDER THE ABOVE IFB; IMPROPER BID OPENING PROCEDURES UNDER BOTH THAT IFB AND IFB DSA -700-67-B-4316, ISSUED MARCH 13, 1967; CONSIDERATION OF BID MODIFICATIONS SUBMITTED BY ONE PARTICULAR BIDDER, OJUS INDUSTRIES, INC. OJUS, FORMERLY MONTGOMERY PIPE AND TUBE CO. OF FLORIDA); CORRECTION OF MISTAKES IN THE OJUS BIDS UNDER BOTH FB-S; AND DELINQUENT DELIVERIES BY OJUS UNDER A CONTRACT FOR THE SAME PROCUREMENT ITEM WHICH WAS AWARDED UNDER A THIRD IFB ISSUED AFTER THE CANCELLATION OF IFB DSA-700-67-B-4316. IN ADDITION, YOU STATE THAT WHILE YOUR BID OF $14.50 PER CONCERTINA UNDER THE CANCELLED IFB WAS CONSIDERED TOO HIGH, THE GOVERNMENT SUBSEQUENTLY AWARDED YOU A CONTRACT AT A PRICE OF $14.25 PER CONCERTINA. THIS LAST STATEMENT IS APPARENTLY INTENDED TO INDICATE THAT DCSC HAS BEEN INCONSISTENT IN ITS VIEWS AS TO WHAT CONSTITUTES A REASONABLE PRICE.

IFB DSA-700-69-B-0330 SPECIFIED A BID OPENING TIME OF 10:30 A.M., EDST, AUGUST 27 (A TUESDAY). THE PURCHASE DESCRIPTION LISTED TWO ITEMS OF BARBED CONCERTINA TAPE TO BE MANUFACTURED IN ACCORDANCE WITH MILITARY SPECIFICATIONS WITH CERTAIN CHANGES SET FORTH IN THE IFB. BIDDERS WERE ADVISED THAT THE ITEMS WERE TO BE SHIPPED TO OVERSEAS DESTINATIONS AND WERE REQUESTED TO QUOTE PRICES ON AN F.O.B. ORIGIN BASIS.

PAGE 5 OF THE IFB CARRIED A NOTATION, APPLICABLE TO ITEM 1 ONLY, TO THE EFFECT THAT THE CLAUSE ENTITLED "PATENT INDEMNITY" PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 9-103.1 WOULD NOT APPLY TO THE SOLICITATION SINCE THE GOVERNMENT WAS ATTEMPTING TO NEGOTIATE A LICENSE WITH THE HOLDER OF A PATENT RELATIVE TO THE SUPPLIES COVERED BY THE SOLICITATION.

FIVE AMENDMENTS TO THE IFB WERE ISSUED DURING THE PERIOD AUGUST 16 TO SEPTEMBER 3. PERTINENT TO YOUR PROTEST ARE AMENDMENT 0003, DATED AUGUST 26, WHICH CONFIRMED A TELEGRAPHIC NOTICE OF THE SAME DATE EXTENDING THE TIME FOR SUBMISSION OF BIDS TO 10:30 A.M., EDST, SEPTEMBER 10 (A UESDAY); AMENDMENT 0004, DATED AUGUST 30, WHICH MADE TWO ADDITIONAL CHANGES IN THE MILITARY SPECIFICATIONS SET FORTH ON PAGE 6 OF THE IFB APPLICABLE TO ITEM 2; AND AMENDMENT 0005, DATED SEPTEMBER 3, WHICH EXTENDED APPLICATION OF THE REFERENCED NOTATION ON PAGE 5 OF THE IFB TO ALL OF THE PROCUREMENT ITEMS.

WITH RESPECT TO THE POSTPONEMENT OF BID OPENING, YOU STATE THAT YOUR REPRESENTATIVE APPEARED AT DCSC ON AUGUST 27 PRIOR TO 10:30 A.M. AND WAS INFORMED BY A DSA REPRESENTATIVE THAT THE OPENING HAD BEEN POSTPONED AND TELEGRAPHIC NOTICE HAD BEEN GIVEN TO ALL SOLICITED SOURCES. YOU COMPLAIN THAT YOU DID NOT RECEIVE THE TELEGRAPHIC NOTICE UNTIL AUGUST 29, TWO DAYS LATER, AND YOU STATE THAT TO THE BEST OF YOUR KNOWLEDGE OJUS INDUSTRIES WAS THE ONLY BIDDER WHO HAD ADVANCE NOTICE OF THE POSTPONEMENT. FURTHER, YOU STATE THAT HAD YOUR REPRESENTATIVE NOT BEEN PRESENT AT DCSC ON AUGUST 27, THE BIDS WOULD HAVE BEEN OPENED AND THE BID PRICES EXPOSED. IN ANY EVENT, YOU ASSERT THAT THE SPECIFICATION CHANGES WHICH OCCASIONED THE POSTPONEMENT INVOLVED ONLY A MINOR DETAIL NOT PERTAINING TO COST OR DELIVERY.

THE CONTRACTING OFFICER, WHOSE STATEMENT OF FACTS WE MUST ACCEPT AS CORRECT ABSENT EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS, REPORTS THAT THE TELEGRAPHIC NOTICE OF BID OPENING POSTPONEMENT WAS PREPARED ON AUGUST 26, ONE DAY PRIOR TO THE ORIGINALLY SCHEDULED OPENING DATE, BUT DUE TO ADMINISTRATIVE PROBLEMS, OF WHICH THE CONTRACTING OFFICER HAD NO KNOWLEDGE, THE NOTICE WAS NOT DISPATCHED UNTIL AUGUST 28. HOWEVER, THE CONTRACTING OFFICER DISCLAIMS ANY KNOWLEDGE OF RECEIPT BY OJUS OF NOTICE, EITHER FORMAL OR INFORMAL, OF THE POSTPONEMENT IN ADVANCE OF NOTICE TO THE OTHER BIDDERS, AND FURTHER STATES THAT HE IS NOT AWARE OF ANY BASIS FOR YOUR STATEMENT THAT THE OPENING WOULD HAVE BEEN CONDUCTED ON AUGUST 27 BUT FOR THE PRESENCE OF YOUR REPRESENTATIVE AT DCSC. IN THIS CONNECTION, THE CONTRACTING OFFICER POINTS OUT THAT AS A MATTER OF FACT THE BIDS WERE NOT OPENED UNTIL SEPTEMBER 10. JUSTIFICATION FOR THE POSTPONEMENT, THE CONTRACTING OFFICER STATES THAT THE IMPACT OF THE SPECIFICATION CHANGES ON PRICE AND DELIVERY WAS NOT KNOWN; ALSO, THE LICENSE AGREEMENT WHICH THE GOVERNMENT WAS NEGOTIATING AT THE TIME (SEE PAGE 5 OF THE IFB) WOULD, IF CONSUMMATED, AFFECT THE PRICES OFFERED BY THE BIDDERS.

THE APPLICABLE STATUTORY PROVISION, 10 U.S.C. 2305 (C), STATES THAT ALL BIDS SHALL BE PUBLICLY OPENED AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT. HOWEVER, WE KNOW OF NO LEGAL REQUIREMENT THAT THERE BE AN OPENING OF BIDS AT THE STATED TIME WHEN IT IS DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT TO POSTPONE SUCH ACTION. THEREFORE, EVEN WHEN THERE HAS BEEN A FAILURE TO COMPLY WITH THE REQUIREMENTS OF THE PROCUREMENT REGULATIONS FOR THE ISSUANCE OF FORMAL NOTIFICATION OF POSTPONEMENT OF BID OPENING, WE HAVE DECLINED TO UPSET AN AWARD MERELY ON THE BASIS OF A LATE BID OPENING WHERE SUCH ACTION WAS SHOWN TO BE IN THE BEST INTEREST OF THE GOVERNMENT AND THERE WAS NO EVIDENCE OF PREJUDICE TO THE RIGHTS OF ANY OF THE BIDDERS. B-153288, MARCH 19, 1964; B-158464, MARCH 28, 1966.

IN THE PRESENT CASE, THERE IS ALSO FOR CONSIDERATION THE FACT THAT ASPR 2 -208 (B) REQUIRES THAT THE NEED FOR POSTPONMENT OF BID OPENING BE CONSIDERED IN CONNECTION WITH THE ISSUANCE OF AMENDMENTS TO INVITATIONS FOR BIDS, PARTICLARLY WHERE ONLY A SHORT TIME REMAINS BETWEEN THE DATE OF ISSUANCE OF A PARTICULAR AMENDMENT AND THE TIME SET FOR BID OPENING, AND SPECIFICALLY AUTHORIZES THE USE OF TELEGRAPHIC OR TELEPHONIC NOTICES SUBJECT TO CONFIRMATION BY FORMAL AMENDMENT WHEN POSTPONEMENT IS DETERMINED TO BE DESIRABLE IN SUCH CIRCUMSTANCES.

WE SEE NOTHING OF RECORD WHICH WOULD SUGGEST IMPROPRIETY OR BAD FAITH IN THE CONTRACTING OFFICER'S DETERMINATION THAT MORE TIME SHOULD BE AFFORDED TO THE BIDDERS FOR PREPARING THEIR BIDS INCIDENT TO THE SPECIFICATION CHANGES WHICH WERE CONTEMPLATED AND ULTIMATELY MADE BY AMENDMENT 0004 TO THE IFB, AS WELL AS THE CHANGE IN CONTRACT TERMS UNDER AMENDMENT 0005, IN VIEW OF THE POSSIBLE IMPACT OF SUCH CHANGES ON PRICE AND DELIVERY. CONVERSELY, THE FACT THAT OJUS REDUCED ITS PRICES AFTER THE ISSUANCE OF BOTH AMENDMENTS WOULD APPEAR TO CONFIRM THE JUDGMENT OF THE CONTRACTING OFFICER IN THIS REGARD. FURTHER, ALTHOUGH THROUGH ADMINISTRATIVE INADVERTENCE THE TELEGRAPHIC NOTICE PREPARED ON AUGUST 26 WAS NOT DISPATCHED TO ANY OF THE BIDDERS UNTIL AUGUST 28, IT MUST BE RECOGNIZED THAT THE CONTRACTING OFFICER DID TAKE ACTION TO COMPLY WITH THE NOTICE REQUIREMENTS OF ASPR 2-208 (B) AND THAT ACTUAL NOTICE OF THE POSTPONEMENT WAS GIVEN BY DCSC ON AUGUST 27 TO YOUR REPRESENTATIVE AND PRESUMABLY TO ANY OTHER BIDDERS OR REPRESENTATIVES WHO APPEARED AT DCSC ON THAT DATE FOR THE ORIGINALLY SCHEDULED OPENING. ACCORDINGLY, AND SINCE THE BIDS WERE NOT OPENED UNTIL SEPTEMBER 10, BY WHICH TIME A TELEGRAPHIC NOTICE AND A FORMAL AMENDMENT HAD BEEN FORWARDED TO THE SOLICITED BIDDERS, IT DOES NOT APPEAR THAT YOUR RIGHTS, OR THE RIGHTS OF ANY OF THE OTHER BIDDERS, WERE PREJUDICED BY THE POSTPONEMENT. CERTAINLY, YOU AND THE OTHER BIDDERS HAD SUFFICIENT TIME TO SUBMIT BID PRICE REDUCTIONS BEFORE SEPTEMBER 10, AS OJUS DID. IN OUR VIEW, THEREFORE, THE POSTPONEMENT OF BID OPENING OF ITSELF DOES NOT AFFORD A JUSTIFICATION FOR SETTING ASIDE AN AWARD UNDER THE IFB.

AS TO THE DCSC BID OPENING PROCEDURES, YOU STATE THAT THE BIDS UNDER BOTH IFB'S WERE OPENED PRIVATELY; THAT IS, THE BIDS WERE OPENED IN ANOTHER ROOM AND BIDDERS WAITED FOR OVER AN HOUR IN EACH INSTANCE FOR THE BID RESULTS. THIS COMPLAINT IS RELATED TO YOUR PROTEST AGAINST THE CONSIDERATION OF A MODIFICATION TO THE OJUS BID ON THE BASIS THAT THE MODIFICATION UNDER EACH IFB WAS MADE ON A DOCUMENT SEPARATE FROM THE ORIGINAL OJUS BID PAPERS, WHICH YOU CLAIM COULD HAVE BEEN ATTACHED TO THE BID AFTER OPENING OUT OF THE SIGHT OF THE OTHER BIDDERS. FURTHER, YOU STATE THAT IN EACH CASE IT WAS THE MODIFICATION WHICH MADE OJUS THE LOW BIDDER. WITH SPECIFIC REFERENCE TO THE OJUS BID MODIFICATION UNDER IFB DSA-700-69-B-0330, YOU STATE THAT THERE WERE HAND-WRITTEN FIGURES, AND YOU QUESTION WHY, IF THE MODIFICATION HAD BEEN MAILED, WAS IT NOT TYPED, OR, IF A LAST MINUTE PRE- BID OPENING CHANGE WAS DESIRED, WHY DID NOT THE OJUS REPRESENTATIVE, WHO WAS PRESENT AT DCSC IN ADVANCE OF THE OPENING, MAKE THE CHANGES ON THE BID PROPER AND INITIAL THEM.

THE CONTRACTING OFFICER REPORTS THAT ALL DCSC BID OPENINGS ARE SCHEDULED FOR THE SAME HOUR, 0:30 A.M., ON TUESDAYS THROUGH FRIDAYS, HOLIDAYS EXCEPTED, OF EACH WEEK; THAT DUE TO THE LARGE NUMBER OF OPENINGS USUALLY HELD (APPROXIMATELY 30 EACH DAY ACCORDING TO DSA HEADQUARTERS), IT IS NOT POSSIBLE TO OPEN ALL BIDS AT EXACTLY 10:30 A.M.; AND THAT OPENINGS ARE FIRST MADE UNDER THOSE INVITATIONS AS TO WHICH INTERESTED PARTIES ARE PRESENT AT THE OPENING PROCEDURES. THE ACTUAL BID OPENING, IT IS STATED, IS PERFORMED BY SEVERAL PEOPLE IN TWO ADJOINING ROOMS; THE BIDS, THOUGH NOT READ ALOUD, ARE OPENED PUBLICLY; AND THE DUPLICATE OF EACH BID IS MADE AVAILABLE TO ANY INTERESTED PARTY IN THE ORDER IN WHICH REQUESTED. IT IS FURTHER STATED THAT INTERESTED PARTIES NORMALLY WAIT IN ONE OF THE ROOMS FOR BID RESULTS BUT, UPON REQUEST, ARE PERMITTED TO OBSERVE A BID OPENING IN THE OTHER ROOM.

ON THE DAY THAT IFB DSA-700-69-B-0330 WAS OPENED, ACCORDING TO THE CONTRACTING OFFICER, 21 OTHER BID OPENINGS WERE PROCESSED, AND THEREFORE A PERIOD OF ONE AND ONE-HALF HOURS COULD HAVE ELAPSED BEFORE YOUR REPRESENTATIVES WERE PERMITTED TO EXAMINE THE BIDS. HOWEVER, THE CONTRACTING OFFICER STATES, THERE IS NO EVIDENCE THAT EITHER THIS IFB OR IFB DSA-700-67-B-4316 WAS NOT OPENED IN ACCORDANCE WITH THE PROCEDURES PRESCRIBED IN ASPR 2-402.1 AND THE NORMAL PRACTICES EMPLOYED AT DCSC.

WHILE THE PROCEDURE FOLLOWED DOES NOT APPEAR TO BE AS WELL ADAPTED AS IT SHOULD BE TO THE CONVENIENCE OF BIDDERS OR TO THE OBSERVANCE OF THE INTENT OF THE PUBLIC OPENING DIRECTED BY LAW, ASPR 2-402.1 (A) REQUIRES THE READING ALOUD OF BIDS ONLY WHEN PRACTICABLE, AND THERE IS NO INDICATION THAT THE MANNER IN WHICH THE BIDS WERE OPENED BY DCSC UNDER THE TWO IFB'S WAS MOTIVATED BY ANY DESIRE ON THE PART OF THE CONTRACTING OFFICIALS TO VIOLATE THE PUBLIC OPENING REQUIREMENT OF THE PROCUREMENT STATUTE AND REGULATIONS. IT APPEARS RATHER TO HAVE BEEN ATTRIBUTABLE TO A LACK OF SUFFICIENT SPACE FOR THE VOLUME OF WORK WHICH WAS REQUIRED TO BE PERFORMED. HAD YOU MADE KNOWN TO THE BIDDING OFFICIALS, IN ADVANCE OF THE BID OPENINGS, OF YOUR DESIRE TO WITNESS THE OPENING OF THE PARTICULAR BIDS IN WHICH YOU WERE INTERESTED, YOU WOULD PRESUMABLY HAVE BEEN PERMITTED TO WAIT IN THE ROOM IN WHICH THOSE BIDS WERE OPENED. IN THE CIRCUMSTANCES IT APPEARS THAT THE PROCEDURE FOLLOWED REPRESENTED A REASONABLE EFFORT TO COMPLY WITH THE LAW IN THE FACE OF INADEQUATE FACILITIES, AND WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN REQUIRING CANCELLATION OF THE CONTRACT ON THAT GROUND. HOWEVER, DCSC REPORTS THAT IT PROPOSES HEREAFTER TO USE ONLY THE LARGER OF THE TWO AVAILABLE ROOMS FOR THE OPENING OF BIDS AND TO READ ALOUD BIDS ON PROCUREMENTS OF $50,000 OR MORE. IN ADDITION, DSA HEADQUARTERS STATES THAT IT IS MAKING A DETAILED REVIEW OF THE DCSC BID OPENING PROCEDURES TO DETERMINE WHAT ADDITIONAL CHANGES MIGHT BE MADE TO AVOID SITUATIONS SUCH AS YOU HAVE PROTESTED, AND WE ARE ADVISING THAT AGENCY OF OUR VIEWS AS TO THE NECESSITY OF SCHEDULING BID OPENINGS SO AS TO PERMIT INTERESTED BIDDERS TO BE PRESENT AT THE PROPER TIME AND PLACE, WITHOUT BEING REQUIRED TO WAIT FOR UNREASONABLY LONG PERIODS.

WITH RESPECT TO THE OJUS BID MODIFICATION UNDER IFB DSA-700-69-B-0330, THE CONTRACTING OFFICER STATES THAT SINCE ALL ENVELOPES CONTAINING TIMELY BIDS AND AMENDMENTS (MODIFICATIONS) ARE DESTROYED, IT CANNOT NOW BE ESTABLISHED WHETHER THE BID MODIFICATION, WHICH OJUS SUBMITTED ON SEPTEMBER 9, WAS MAILED OR HAND CARRIED, BUT THERE IS NO EVIDENCE THAT IT WAS RECEIVED AFTER 10:30 A.M., EDST, SEPTEMBER 10, 1968, OR WAS CHANGED OR ALTERED IN ANY MANNER AFTER SUCH TIME. FURTHER, THE CONTRACTING OFFICER OBSERVES THAT EVEN WITHOUT THE MODIFICATION OJUS WAS LOWEST BIDDER ON 50 PERCENT OF ITEM 1 (EUROPE), AND THEREFORE WOULD NOT HAVE BEEN LIKELY TO REDUCE ITS PRICE ON THIS PORTION OF THE PROCUREMENT HAD IT BEEN IN POSSESSION OF INSIDE KNOWLEDGE OF THE BID PRICES, AS YOU HAVE IMPLIED. TO THE FORM IN WHICH THIS MODIFICATION WAS SUBMITTED BY OJUS, YOUR ATTENTION IS DIRECTED TO THE FACT THAT NEITHER THE BID SUBMISSION PROVISIONS OF PARAGRAPH 3, STANDARD FORM 33-A, WHICH WAS INCORPORATED BY REFERENCE IN THE IFB, NOR THE BID MODIFICATION PROVISIONS OF ASPR 2-304, PRESCRIBE ANY PARTICULAR FORM FOR MODIFICATIONS. IN THE LIGHT OF THE FOREGOING, WE ARE UNABLE TO FIND ANY SUBSTANTIAL BASIS TO CONCLUDE THAT THE OJUS MODIFICATION WAS ATTACHED TO THE BID AFTER OPENING OR ALTERED AT SUCH TIME TO THE ADVANTAGE OF OJUS. THEREFORE, WE MUST ASSUME THAT THE MODIFICATION WAS TIMELY SUBMITTED TO DCSC, AS THE CONTRACTING OFFICER HAS STATED, AND ACCORDINGLY WAS PROPERLY CONSIDERED IN THE EVALUATION OF THE OJUS BID.

AS TO THE MISTAKE IN THE OJUS BID, THE CONTRACTING OFFICER REPORTS THAT THE BID SHOWED 360 UNITS PER SHIPPING CONTAINER AND 2,288 POUNDS AS THE WEIGHT OF EACH SHIPPING CONTAINER. SINCE THE PACKING SPECIFICATIONS, PARAGRAPH 5.1 OF MIL-B-52488/M01), REQUIRED 60 CASES PER LOAD CONSISTING OF 360 REELS (6 REELS PER CASE X 6 LAYERS X 10 CASES EQUALS 360), IT WAS APPARENT THAT THE WEIGHT AND DIMENSIONS STATED IN THE BID WERE FOR 360 REELS, OR 60 CASES, NOT 360 CASES. OJUS WAS THEREFORE REQUESTED TO CLARIFY THIS PORTION OF THE BID, AND ITS RESPONSE BY TELEGRAM OF SEPTEMBER 16 STATED THAT THE UNIT PER SHIPPING CONTAINER SHOULD READ 60 CASES IN LIEU OF 360 REELS AND THAT THE WEIGHT AND DIMENSIONS WERE APPLICABLE TO 60 CASES. IN VIEW THEREOF, THER APPEARS TO BE NO SUPPORT FOR YOUR THEORY THAT OJUS INTENDS TO OBTAIN A PRICE INCREASE BY ALLEGING A MISTAKE IN BID EITHER BEFORE OR AFTER AWARD.

IN CONNECTION WITH THIS PROCUREMENT, WE HAVE BEEN ADVISED BY DSA, PURSUANT TO ASPR 2-407.9 (B) RELATING TO AWARDS PRIOR TO RESOLUTION OF PRE -AWARD PROTESTS, THAT INASMUCH AS THE PROCUREMENT ITEM IS OUT OF STOCK DCSC HAS MADE AN AWARD ON THE BASIS OF URGENCY TO OJUS UNDER ITS BID AS TIMELY MODIFIED.

AS TO IFB DSA-700-67-B-4316, A DISCUSSION OF THE PROPRIETY EITHER OF CONSIDERING THE TELEGRAPHIC MODIFICATION TO THE OJUS BID, WHICH THE RECORD SHOWS WAS RECEIVED BY DCSC APPROXIMATELY ONE HOUR BEFORE THE BID OPENING, OR OF CORRECTING WHAT HAS BEEN REPORTED AS AN OBVIOUS MISTAKE IN THE OJUS BID WOULD SERVE NO USEFUL PURPOSE IN VIEW OF THE FACT THAT THE BID WAS REJECTED AS NONRESPONSIVE, AND THE ADDITIONAL FACT THAT THE IFB WAS SUBSEQUENTLY CANCELLED AND THE ONLY RESPONSIVE BID (YOURS) WAS DISCARDED.

WITH REGARD TO YOUR COMMENT THAT SUBSEQUENT TO THE CANCELLATION OF THE IFB BECAUSE YOUR SOLE BID OF $14.50 PER CONCERTINA WAS TOO HIGH, YOU RECEIVED AN AWARD AT $14.25 PER CONCERTINA, DCSC REPORTS THAT THE ONLY SUBSEQUENT AWARD OF BARBED CONCERTINA TAPE (FSN 5660-921-5516) TO YOU, UNDER YOUR FORMER NAME OF U.S. MANUFACTURING CORPORATION, WAS AT A UNIT PRICE OF $12.78 FOR 13,340 ROLLS UNDER CONTRACT DSA-700-68-C 2635, DATED OCTOBER 16, 1967. FURTHER, OUR DECISION, B-161608, AUGUST 23, 1967, TO YOUR ATTORNEYS ON THE CANCELLATION OF THAT IFB INDICATES THAT YOUR LOWEST PRICE WAS $15.49 PER UNIT AS OPPOSED TO OJUS' LOWEST PRICE OF $12.50 PER UNIT AND THAT AN ADDITIONAL REASON FOR THE CANCELLATION WAS THE LACK OF COMPETITION DUE TO ABSENCE OF A PROGRESS PAYMENT PROVISION IN THE IFB.

CONCERNING THE DELIVERIES UNDER THE CONTRACT WHICH OJUS RECEIVED AFTER READVERTISEMENT OF THE PROCUREMENT INITIATED UNDER THE CANCELLED IFB, THE CONTRACTING OFFICER REPORTS THAT FOLLOWING INEXCUSABLE DELAYS BY OJUS THE ORIGINAL DELIVERY SCHEDULE WAS REVISED TO A PHASED DELIVERY SCHEDULE ENDING FIVE MONTHS AFTER THE ORIGINAL SCHEDULE, IN CONSIDERATION OF A PRICE REDUCTION IN THE APPROXIMATE AMOUNT OF $4,600. THE CONTRACT IS DSA- 700-68-C-1240, DATED AUGUST 4, 1967, AND THE PROVISIONS OF STANDARD FORM 32, WHICH INCLUDE A CHANGES CLAUSE PROVIDING, AMONG OTHER THINGS, FOR EQUITABLE ADJUSTMENT OF THE CONTRACT PRICE OR DELIVERY SCHEDULE, OR BOTH, INCIDENT TO CHANGES IN TIME OF DELIVERY, WERE INCORPORATED IN ITS TERMS BY REFERENCE. IT WOULD APPEAR, THEREFORE, THAT THERE HAS BEEN NO UNAUTHORIZED OR IMPROPER EXTENSION OF THE DELIVERY SCHEDULE.

FOR THE REASONS STATED, WE SEE NO COMPELLING LEGAL BASIS FOR OBJECTION TO THE AWARD TO OJUS UNDER IFB DSA-700-69-B-0330 ON THE BASIS OF ITS BID AS MODIFIED BEFORE BID OPENING, AND YOUR PROTEST IS THEREFORE DENIED.