B-173956, NOV 24, 1971

B-173956: Nov 24, 1971

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TIME WAS OF THE ESSENCE. THE BID WAS PROPERLY REJECTED. REFERENCE IS MADE TO YOUR LETTER OF AUGUST 20. BIDS WERE OPENED ON MAY 26. YOUR BID QUOTING $47.33 PER UNIT WAS THE LOWEST. PROVIDED THAT THE DESIRED DELIVERY SCHEDULE WAS 120 DAYS AFTER THE DATE OF THE CONTRACT AND THE REQUIRED DELIVERY SCHEDULE WAS 150 DAYS AFTER THE DATE OF THE CONTRACT. THE CLAUSE STATED: "OFFERS OFFERING DELIVERY BEYOND THE NUMBER OF DAYS STATED IN THE COLUMN ENTITLED 'REQUIRED DELIVERY' WILL BE CONSIDERED NON-RESPONSIVE TO THE SOLICITATION AND WILL BE REJECTED. ANY OFFER OFFERING AN INDEFINITE TIME OF DELIVERY OR OFFERING DELIVERY CONTINGENT UPON THE AVAILABILITY OR RECEIPT OF MATERIAL WILL BE REJECTED.". THERE WAS THE FOLLOWING PROVISION: " *** HOWEVER.

B-173956, NOV 24, 1971

BID PROTEST - BID RESPONSIVENESS - DELIVERY DATE DECISION DENYING PROTEST OF SRM MANUFACTURING COMPANY, LOW BIDDER, AGAINST REJECTION OF ITS BID AS NONRESPONSIVE BY THE NAVY SHIPS PARTS CONTROL CENTER. PROTESTANT PROPOSED TO MAKE DELIVERY "150 DAYS ARO." THE IFB STATED THE DESIRED DELIVERY DATE AS 120 DAYS AFTER DATE OF CONTRACT, BUT IN ALL CASES NO LATER THAN 150 DAYS OF THIS DATE. FURTHER, THE INVITATION STATED THAT ANY BID WITH A DATE OF DELIVERY BASED UPON DATE OF RECEIPT OF ORDER WOULD BE REJECTED AS NONRESPONSIVE, IF - BY ADDING NORMAL MAILING TIME - THE PROPOSED DATE EXCEEDED THE 150-DAY PERIOD FROM THE DATE OF CONTRACT. TIME WAS OF THE ESSENCE. PROTESTANT'S BID DATE BASED ON RECEIPT OF ORDER WITH NORMAL MAILING TIME, THREE DAYS, EXCEEDED THE 150-DAY PERIOD. ACCORDINGLY, THE BID WAS PROPERLY REJECTED.

TO SRM MANUFACTURING CO.

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 20, 1971, PROTESTING AGAINST THE REJECTION OF YOUR BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS NO. N00N04-71-B-1852, ISSUED BY THE NAVY SHIPS PARTS CONTROL CENTER.

THE INVITATION SOLICITED BIDS TO FURNISH A MINIMUM QUANTITY OF 150 MK18 HANDLING BEAMS WITH THE RIGHT OF THE GOVERNMENT TO ORDER AN ADDITIONAL 1,328 UNITS DURING THE TERM OF THE CONTRACT. BIDS WERE OPENED ON MAY 26, 1971, AS SCHEDULED. OF THE 39 BIDS RECEIVED, YOUR BID QUOTING $47.33 PER UNIT WAS THE LOWEST.

CLAUSE 6.19, TIME OF DELIVERY, ON PAGE 13 OF THE SOLICITATION, PROVIDED THAT THE DESIRED DELIVERY SCHEDULE WAS 120 DAYS AFTER THE DATE OF THE CONTRACT AND THE REQUIRED DELIVERY SCHEDULE WAS 150 DAYS AFTER THE DATE OF THE CONTRACT. WITH RESPECT TO THE USE OF THE REQUIRED DELIVERY SCHEDULE, THE CLAUSE STATED:

"OFFERS OFFERING DELIVERY BEYOND THE NUMBER OF DAYS STATED IN THE COLUMN ENTITLED 'REQUIRED DELIVERY' WILL BE CONSIDERED NON-RESPONSIVE TO THE SOLICITATION AND WILL BE REJECTED. IN ADDITION, ANY OFFER OFFERING AN INDEFINITE TIME OF DELIVERY OR OFFERING DELIVERY CONTINGENT UPON THE AVAILABILITY OR RECEIPT OF MATERIAL WILL BE REJECTED."

IN THE SPACE PROVIDED ON PAGE 13, UNDER "OFFEROR'S PROPOSED DELIVERY SCHEDULE," YOU INSERTED "150 DAYS ARO." DIRECTLY ABOVE THE SPACE PROVIDED FOR THE PROPOSED DELIVERY SCHEDULE, THERE WAS THE FOLLOWING PROVISION:

" *** HOWEVER, AN OFFER OFFERING DELIVERY BASED ON DATE OF RECEIPT BY THE CONTRACTOR OF THE CONTRACT OR NOTICE OF AWARD (RATHER THAN THE CONTRACT DATE) WILL BE EVALUATED BY ADDING THE MAXIMUM NUMBER OF DAYS NORMALLY REQUIRED FOR DELIVERY OF THE AWARD THROUGH THE ORDINARY MAILS. IF, AS SO COMPUTED, THE DELIVERY DATE OFFERED IS LATER THAN THE DELIVERY DATE REQUIRED IN THE SOLICITATION, THE OFFER WILL BE CONSIDERED NON-RESPONSIVE AND REJECTED. (ARMED SERVICES PROCUREMENT REGULATION) 1-305.3(C) (1967 AUG)."

PURSUANT TO THIS CLAUSE, NORMAL MAILING TIME OF 3 DAYS WAS ADDED TO THE PROPOSED 150-DAY PROPOSED DELIVERY SCHEDULE. AS A RESULT OF SUCH EVALUATION, THE BID WAS REJECTED AS NONRESPONSIVE TO A MATERIAL REQUIREMENT OF THE INVITATION.

THE APPLICABLE PROCUREMENT STATUTE, 10 U.S.C. 2305(C), REQUIRES THAT AWARDS IN FORMALLY ADVERTISED PROCUREMENTS BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.2(C), IMPLEMENTING THE PROCUREMENT STATUTE, REQUIRES THE REJECTION OF BIDS WHICH FAIL TO CONFORM TO THE DELIVERY SCHEDULE PROVIDED IN THE INVITATION.

WHERE THE INVITATION ON ITS FACE REQUIRES DELIVERY WITHIN A STATED PERIOD, TIME MUST BE REGARDED AS OF THE ESSENCE OF THE CONTRACT EVEN IF THE INVITATION DOES NOT EXPRESSLY SO STATE. 38 COMP. GEN. 876, 878 (1959); 35 ID. 181, 182 (1956); B-161921, SEPTEMBER 15, 1967. FAILURE OF A BID TO CONFORM TO A REQUIRED DELIVERY SCHEDULE MUST BE REGARDED AS A MATERIAL DEVIATION WHICH CANNOT BE WAIVED AND WHICH REQUIRES REJECTION OF SUCH BID. 34 COMP. GEN. 24, 26 (1954).

HOWEVER, YOU HAVE STATED THAT YOU USED THE SAME "ARO" LANGUAGE IN A NUMBER OF OTHER BIDS WITHOUT ANY ADVERSE EFFECT ON THEIR CONSIDERATION. EVEN IF THESE SITUATIONS WERE ANALOGOUS AND THE BIDS WERE ERRONEOUSLY ACCEPTED, SUCH CIRCUMSTANCE WOULD NOT REQUIRE THE SAME PROCEDURE TO BE FOLLOWED IN THIS CASE. 38 COMP. GEN. 876, 878 (1959).

A BID OFFERING DELIVERY WITHIN A GIVEN TIME AFTER RECEIPT OF NOTICE OF AWARD, WHETHER EMPLOYING THAT PHRASE OR SOME OTHER PHRASE HAVING SUBSTANTIALLY THE SAME EFFECT, MAY NOT BE REGARDED AS RESPONSIVE TO AN INVITATION REQUIRING DELIVERY WITHIN THE STATED TIME AFTER DATE OF CONTRACT. SEE 38 COMP. GEN. 98 (1959); B-162138, AUGUST 18, 1967.

YOU HAVE SUGGESTED THAT EVEN IF THE REJECTION OF THE BID TECHNICALLY WAS CORRECT, IT SHOULD NOT HAVE BEEN REJECTED SINCE THE GOVERNMENT COULD HAVE SAVED AS MUCH AS $8,800 BY PERMITTING A DELAY IN DELIVERY OF ABOUT THREE DAYS. HOWEVER, IN THAT REGARD, IN 17 COMP. GEN. 554, 558 559 (1938), IT WAS STATED:

"THESE ARE FUNDAMENTAL RULES GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. ***

FOR THE REASONS SET OUT ABOVE, WE CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED. ACCORDINGLY, THE ..END :