B-172723(1), JUN 16, 1971

B-172723(1): Jun 16, 1971

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EVEN IF "O/A" IS CONCEDED TO MEAN ON OR ABOUT. RENDERED THE BID AMBIGUOUS AND NONRESPONSIVE AND WAS. IT IS BEING RECOMMENDED TO GENERAL EARL C. THE SUBJECT IFB WAS ISSUED ON MARCH 12. TWENTY-ONE SOURCES WERE SOLICITED. FOUR BIDS WERE RECEIVED. THE LOWEST WAS FROM YOUR FIRM AT A UNIT PRICE OF $2.10. THE NEXT LOWEST WAS RECEIVED FROM MCNEIL AT A UNIT PRICE OF $2.30. YOUR FIRM'S BID WAS DETERMINED TO BE NONRESPONSIVE DUE TO ITS FAILURE TO COMPLY WITH THE DELIVERY SCHEDULE SPECIFIED BY THE IFB. WAS DETERMINED TO BE RESPONSIVE AND WAS AWARDED THE CONTRACT ON APRIL 16. YOU CONTEND THAT YOUR BID WAS IN FACT RESPONSIVE TO THE DELIVERY SCHEDULE CONTAINED IN THE IFB AND THAT THE CONTRACTING OFFICER ACTED ARBITRARILY IN REJECTING YOUR BID.

B-172723(1), JUN 16, 1971

BID PROTEST - BID RESPONSIVENESS - AMBIGUITY DENIAL OF PROTEST OF WARNER-LAMBERT COMPANY, LOW BIDDER, AGAINST AWARD OF CONTRACT TO MCNEIL LABORATORIES, SECOND LOW BIDDER, UNDER IFB ISSUED BY DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PA., FOR FURNISHING A SUPPLY OF ACETAMINOPHEN TABLETS. CONTRARY TO THE OPINION OF PROTESTANT, USE OF "O/A 30 JUNE 1971" AS THE DELIVERY DATE, EVEN IF "O/A" IS CONCEDED TO MEAN ON OR ABOUT, RENDERED THE BID AMBIGUOUS AND NONRESPONSIVE AND WAS, THEREFORE, PROPERLY REJECTED. ALTHOUGH THE USE OF "O/A" DOES NOT APPEAR TRACEABLE TO THE COMPLEXITY OF THE DELIVERY SCHEDULE, IT IS BEING RECOMMENDED TO GENERAL EARL C. HEDLUND, DIRECTOR, DEFENSE SUPPLY AGENCY, THAT THE PROVISION BE SIMPLIFIED IN FUTURE PROCUREMENTS.

TO WARNER-LAMBERT COMPANY:

WE REFER TO YOUR TELEGRAM OF APRIL 19 AND LETTER OF APRIL 20, 1971, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO MCNEIL LABORATORIES (MCNEIL) UNDER INVITATION FOR BIDS (IFB) NO. DSA-120-71-B 2098, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT IFB WAS ISSUED ON MARCH 12, 1971, FOR THE FURNISHING OF 14,880 BOTTLES OF ACETAMINOPHEN TABLETS WITH AN OPENING DATE OF MARCH 30, 1971. TWENTY-ONE SOURCES WERE SOLICITED. FOUR BIDS WERE RECEIVED, THE LOWEST WAS FROM YOUR FIRM AT A UNIT PRICE OF $2.10; THE NEXT LOWEST WAS RECEIVED FROM MCNEIL AT A UNIT PRICE OF $2.30. AFTER EVALUATION, YOUR FIRM'S BID WAS DETERMINED TO BE NONRESPONSIVE DUE TO ITS FAILURE TO COMPLY WITH THE DELIVERY SCHEDULE SPECIFIED BY THE IFB. THE SECOND LOW BIDDER, MCNEIL, WAS DETERMINED TO BE RESPONSIVE AND WAS AWARDED THE CONTRACT ON APRIL 16, 1971.

YOU CONTEND THAT YOUR BID WAS IN FACT RESPONSIVE TO THE DELIVERY SCHEDULE CONTAINED IN THE IFB AND THAT THE CONTRACTING OFFICER ACTED ARBITRARILY IN REJECTING YOUR BID.

THE SUBJECT IFB STATES THAT DELIVERY IS DESIRED NOT EARLIER THAN 60 DAYS NOR LATER THAN 90 DAYS AFTER DATE OF CONTRACT, BUT IS REQUIRED NOT EARLIER THAN 90 DAYS NOR LATER THAN 120 DAYS AFTER DATE OF AWARD. BIDDERS ARE ADVISED THAT THEY MAY PROPOSE A DELIVERY SCHEDULE DIFFERENT FROM THE DESIRED SCHEDULE WITHOUT PREJUDICE TO THE EVALUATION OF THEIR BIDS, BUT ARE WARRED THAT THE SCHEDULE SPECIFIED CANNOT EXTEND IN ANY CASE BEYOND THE LIMITS IMPOSED BY THE REQUIRED SCHEDULE. IN ADDITION, BIDDERS ARE WARNED:

"BIDS OFFERING DELIVERY OF A QUANTITY UNDER SUCH TERMS OR CONDITIONS THAT DELIVERY WILL NOT CLEARLY FALL WITHIN THE APPLICABLE REQUIRED DELIVERY PERIOD SPECIFIED ABOVE WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED *** . IF THE BIDDER DOES NOT PROPOSE A DIFFERENT DELIVERY SCHEDULE, THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE SHALL APPLY. THE BIDDER/OFFEROR IS ADVISED THAT THE GOVERNMENT EXPECTS TO MAKE AN AWARD WITHIN 30 DAYS AFTER THE OPENING/CLOSING DATE OF THE SOLICITATION."

AT THE END OF THE SCHEDULE, A SPACE IS PROVIDED FOR THE BIDDER TO INSERT HIS PROPOSED SCHEDULE, IF ANY. IN THIS SPACE YOUR FIRM INSERTED A PROPOSED DELIVERY SCHEDULE CONSISTING ONLY OF THE NOTATIONS "O/A 30 JUNE 1971." THE CONTRACTING OFFICER CONCLUDED THAT THIS INSERTION WAS VAGUE AND UNCERTAIN. THEREFORE, HE DETERMINED YOUR BID TO BE NONRESPONSIVE.

YOUR FIRM CONTENDS THAT THE SYMBOL "O/A" STANDS FOR "ON OR ABOUT" AND THEREFORE YOUR BID IS RESPONSIVE IN THAT YOUR SPECIFIED DELIVERY DATE OF "O/A 30 JUNE 1971" DOES IN FACT FALL WITHIN BOTH THE DESIRED AND REQUIRED DELIVERY SCHEDULES CONTAINED IN THE IFB.

THE CONTRACTING OFFICER TAKES THE POSITION THAT THE SYMBOL "O/A" WITH WHICH YOU PREFACED YOUR DELIVERY DATE IS SUSPECTIBLE OF VARYING INTERPRETATIONS. IN ADDITION, HE STATES THAT EVEN IF YOUR INTERPRETATION OF THE SYMBOL IS ACCEPTED, YOUR BID IS STILL NONRESPONSIVE IN THAT THE PHRASE RENDERS YOUR DELIVERY SCHEDULE INDEFINITE AND THEREFORE, NONRESPONSIVE TO THE IFB.

THE USE OF THE SYMBOL "O/A" IN YOUR DELIVERY SCHEDULE IS AT BEST AMBIGUOUS. WE AGREE WITH THE CONTRACTING OFFICER THAT IT IS SUBJECT TO VARYING INTERPRETATIONS. WE NOTE THAT IT IS NOT DEFINED IN SUCH COMMON SOURCES AS THE UNIFORM COMMERCIAL CODE, BLACK'S AND BOUVIER'S LAW DICTIONARIES AND WEBSTER'S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, SECOND EDITION, UNABRIDGED. ALTHOUGH YOU EXPLAIN ITS MEANING AS "ON OR ABOUT" IN YOUR PROTEST LETTER, WE CANNOT SAY THAT ITS MEANING WAS CLEAR AT THE TIME OF BID OPENING. IT COULD AS READILY HAVE BEEN ARGUED THAT "O/A" WAS INTENDED TO MEAN "ON OR AFTER." SUCH A MEANING WOULD CLEARLY HAVE MADE YOUR BID NONRESPONSIVE SINCE IT WOULD HAVE PERMITTED DELIVERY AFTER THE REQUIRED DEADLINE.

THE RULE IS WELL SETTLED THAT RESPONSIVENESS MUST BE DETERMINED SOLELY ON THE BASIS OF THE BID ITSELF. IF A BID IS SO PREPARED AS TO CREATE DOUBT CONCERNING THE BIDDER'S INTENTION TO COMPLY WITH THE INVITATION REQUIREMENTS, THE BIDDER MAY NOT BE ALLOWED TO EXPLAIN HIS MEANING AFTER OPENING WHEN HE IS IN A POSITION THEREBY TO PREJUDICE OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS BID. 45 COMP. GEN. 800 (1966). THEREFORE, IT IS CLEAR THAT THE CONTRACTING OFFICER WOULD NOT HAVE ACTED IMPROPERLY IF HE HAD BASED HIS REJECTION SOLELY ON THE AMBIGUITY OF THE SYMBOL "O/A."

EVEN CONCEDING THAT "O/A" SHOULD BE RECOGNIZED TO MEAN "ON OR ABOUT," THE CONTRACTING OFFICER CONTENDS YOUR BID IS STILL NONRESPONSIVE UNDER THE RULE PROMULGATED BY THIS OFFICE IN B-170287, DECEMBER 4, 1970, 50 COMP. GEN. , IN WHICH WE HELD THAT A DELIVERY DATE PREFACED BY "APPROXIMATELY" WAS TOO INDEFINITE TO BE RESPONSIVE TO A DELIVERY SCHEDULE SIMILAR TO THE ONE UTILIZED IN THE SUBJECT IFB. WE BELIEVE THE PHRASE "ON OR ABOUT" HAS THE SAME EFFECT OF INDICATING A TIME-FRAME OF UNCERTAIN DURATION BEFORE AND AFTER A FIXED TIME AS DOES "APPROXIMATELY." SINCE "ON OR ABOUT" CONNOTES AN INDEFINITE TIME PERIOD, ITS USE CLEARLY BRINGS INTO PLAY THE PROVISION OF THE SUBJECT IFB WHICH STATES THAT DELIVERY SCHEDULES WHICH DO NOT CLEARLY FALL WITHIN THE REQUIRED PERIOD WILL RESULT IN REJECTION OF THE BID. ALTHOUGH 30 JUNE CLEARLY FALLS WITHIN THE PERIOD, THE ADDITION OF THE QUALIFICATION "ON OR ABOUT" INTRODUCES A VARIATION WHICH MAKES IMPOSSIBLE A SPECIFIC DETERMINATION OF WHETHER YOUR SCHEDULE WOULD FALL WITHIN OR WITHOUT THE REQUIRED PERIOD. THEREFORE, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER WAS INCORRECT IN DETERMINING THAT YOUR BID WAS NONRESPONSIVE DUE TO THE IMPRECISION OF YOUR FIRM'S SPECIFIED DELIVERY SCHEDULE.

THE DEFENSE SUPPLY AGENCY HAS RECOMMENDED THAT THE PROCUREMENT ACTIVITY REEXAMINE THE USE OF THIS RATHER COMPLEX DELIVERY SCHEDULE PROVISION. CONCUR IN THE RECOMMENDATION. HOWEVER, WE DO NOT BELIEVE ANY OF THE BIDDERS WERE MISLED OR PREJUDICED IN THIS PARTICULAR PROCUREMENT. THE INSERTION OF THE SYMBOL "O/A" WHICH RENDERED YOUR BID NONRESPONSIVE DOES NOT APPEAR TRACEABLE TO THE SCHEDULE'S COMPLEXITY OR TO THE IMPROPER INSERTION IN CLAUSE H10.84 OF APRIL 15 AS THE PROPOSED AWARD DATE.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.