B-175942(1), AUG 24, 1972

B-175942(1): Aug 24, 1972

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ALTHOUGH THE DELIVERY TERMS WERE NOT ENTIRELY COMPATIBLE. INASMUCH AS THE MAXIMUM TIME ALLOWED IN THE INVITATION FOR BIDS FOR FIRST ARTICLE TESTING WAS 90 DAYS AND THE MAXIMUM TIME ALLOWED FOR DELIVERY AFTER FIRST ARTICLE TESTING WAS 100 DAYS. PARTEK'S OFFERED DELIVERY WITHIN 134 DAYS OF THE CONTRACT DATE WAS WITHIN THE PROVIDED TIME FRAME. THE PROTEST IS DENIED. YOU CONTEND THAT THE PARTEK BID WAS NONRESPONSIVE AND. THE AWARD SHOULD HAVE BEEN MADE TO AMERICAN AERO INDUSTRIES AS SECOND LOW BIDDER. YOU CONTEND THAT THE INVITATION SHOULD HAVE BEEN CANCELED AND THE PROCUREMENT READVERTISED. THAT PARAGRAPH IT WAS STATED THAT THE GOVERNMENT DESIRED DELIVERY OF THE ARTICLES 70 DAYS AFTER THE EFFECTIVE DATE OF THE CONTRACT.

B-175942(1), AUG 24, 1972

BID PROTEST - DELIVERY SCHEDULES - COMPATIBILITY DENIAL OF PROTEST ON BEHALF OF AMERICAN AERO INDUSTRIES, INC., AGAINST AWARD OF A CONTRACT TO THE PARTEK CORPORATION OF HOUSTON, BY THE NAVAL REGIONAL PROCUREMENT OFFICE, LOS ANGELES, CALIF. ALTHOUGH THE DELIVERY TERMS WERE NOT ENTIRELY COMPATIBLE, NO BIDDER QUESTIONED THE SCHEDULE PRIOR TO THE OPENING OF BIDS. IN THE CIRCUMSTANCES, ALL BIDDERS ACQUIESCED IN THE DELIVERY SCHEDULE TERMS. 173879, OCTOBER 1, 1971. INASMUCH AS THE MAXIMUM TIME ALLOWED IN THE INVITATION FOR BIDS FOR FIRST ARTICLE TESTING WAS 90 DAYS AND THE MAXIMUM TIME ALLOWED FOR DELIVERY AFTER FIRST ARTICLE TESTING WAS 100 DAYS, A TOTAL OF 190 DAYS, PARTEK'S OFFERED DELIVERY WITHIN 134 DAYS OF THE CONTRACT DATE WAS WITHIN THE PROVIDED TIME FRAME. ACCORDINGLY, THE PROTEST IS DENIED.

TO VINSON, ELKINS, SEARLS & SMITH:

WE REFER TO YOUR LETTER OF JULY 12, 1972, AND PRIOR CORRESPONDENCE, PROTESTING ON BEHALF OF AMERICAN AERO INDUSTRIES, INC., AGAINST AWARD OF CONTRACT NO. N00123-72-C-1163 TO THE PARTEK CORPORATION OF HOUSTON BY THE NAVAL REGIONAL PROCUREMENT OFFICE, LOS ANGELES, CALIFORNIA.

THE CONTRACT COVERS THE PROCUREMENT OF HIGH PRESSURE TRAILER-MOUNTED WATER BLAST CLEANERS. YOU PROTEST, IN PARTICULAR, THE AWARD OF ITEM 0001AC FOR 33 OF THESE ARTICLES. YOU CONTEND THAT THE PARTEK BID WAS NONRESPONSIVE AND, THEREFORE, THE AWARD SHOULD HAVE BEEN MADE TO AMERICAN AERO INDUSTRIES AS SECOND LOW BIDDER. IN THE ALTERNATIVE, YOU CONTEND THAT THE INVITATION SHOULD HAVE BEEN CANCELED AND THE PROCUREMENT READVERTISED.

THE BASIS OF YOUR PROTEST ARISES FROM THE WORDING OF THE DELIVERY PROVISIONS FOUND IN PARAGRAPH H-1.3 OF THE INVITATION, AS AMENDED. THAT PARAGRAPH IT WAS STATED THAT THE GOVERNMENT DESIRED DELIVERY OF THE ARTICLES 70 DAYS AFTER THE EFFECTIVE DATE OF THE CONTRACT, ALTHOUGH ANY DELIVERY WITHIN 100 DAYS AFTER GOVERNMENT APPROVAL OF FIRST ARTICLE TESTING WOULD BE ACCEPTABLE. THE PARAGRAPH PROVIDED FURTHER THAT IF A BIDDER IS UNABLE TO MEET THE DESIRED DELIVERY SCHEDULE, IT COULD STATE A TIME FOR DELIVERY NOT TO EXCEED THE ACCEPTABLE ALTERNATE. BIDDERS WERE ADMONISHED IN THE PARAGRAPH THAT BIDS OFFERING A DELIVERY SCHEDULE BEYOND THE ACCEPTABLE ALTERNATE WOULD BE NONRESPONSIVE TO THE INVITATION AND REJECTED. A BIDDER'S PROPOSED DELIVERY SCHEDULE WAS TO BE STATED IN TERMS OF THE NUMBER OF DAYS AFTER THE EFFECTIVE DATE OF THE CONTRACT. THE PARTEK BID PROPOSED DELIVERY 134 DAYS AFTER THE EFFECTIVE DATE OF THE CONTRACT.

IT IS YOUR CONTENTION THAT THE DELIVERY SCHEDULE PROPOSED BY THE PARTEK BID WAS NOT RESPONSIVE BECAUSE IT EXCEEDED THE MAXIMUM ALLOWABLE 100 DAYS. WHILE YOU RECOGNIZE THAT THE 100 DAYS PROVIDED IN THE INVITATION REFERRED TO DAYS AFTER APPROVAL OF THE FIRST ARTICLE, YOU STATE THAT:

"DESPITE THE INCONSISTENCIES IN THE WORDING OF PARAGRAPH H-1.3, IT IS CLEAR THAT THE INTENT AND SPIRIT OF THE PARAGRAPH IS THAT THE BIDDER'S PROPOSED DELIVERY DATE BE WITHIN 100 DAYS OF THE EFFECTIVE DATE OF THE CONTRACT. IF THIS WERE NOT SO, THE DELIVERY REQUIREMENT WOULD BE MEANINGLESS AS A BASIS FOR EVALUATING THE RELATIVE MERITS OF THE BIDS."

IN THIS RESPECT, YOU STATE FURTHER THAT:

"FOR THE BIDDER'S PROPOSED DELIVERY SCHEDULE AND THE MAXIMUM ACCEPTABLE DELIVERY SCHEDULE TO PROVIDE MEANINGFUL GUIDANCE *** IT IS OBVIOUS THAT THE DELIVERY DATE MUST BE REFERRED TO THE SAME BEGINNING DATE. IF THE REFERENCE TO THE BEGINNING DATE IS NOT CONSISTENT, THE CONTRACTING OFFICER HAS NO WAY OF KNOWING, PRIOR TO AWARD, WHETHER THE BIDDER'S PROPOSED DELIVERY DATE MEETS THE GOVERNMENT'S STATED MAXIMUM. THAT MATERIAL FACT CAN ONLY BE KNOWN AFTER THE FIRST ARTICLE HAS BEEN APPROVED, AND THUS ITS CONSIDERATION IN THE BIDDING PROCEEDING IS RENDERED MEANINGLESS."

YOU BUTTRESS YOUR CONTENTION THAT THE 100-DAY MAXIMUM WAS MEANT TO MEAN 100 DAYS AFTER THE EFFECTIVE DATE OF THE CONTRACT BY REFERENCE TO THE STANDARD CONTRACT CLAUSES PROVIDED FOR IN ARMED SERVICES PROCUREMENT REGULATION 1-305.4.

ALTHOUGH THE DELIVERY TERMS WERE NOT ENTIRELY COMPATIBLE, NO BIDDER QUESTIONED THE SCHEDULE PRIOR TO THE OPENING OF BIDS. IN THE CIRCUMSTANCES, ALL BIDDERS ACQUIESCED IN THE DELIVERY SCHEDULE TERMS. 173879, OCTOBER 1, 1972. INASMUCH AS THE MAXIMUM TIME ALLOWED IN THE INVITATION FOR BIDS FOR FIRST ARTICLE TESTING WAS 90 DAYS AND THE MAXIMUM TIME ALLOWED FOR DELIVERY AFTER FIRST ARTICLE TESTING WAS 100 DAYS, A TOTAL OF 190 DAYS. PARTEK'S OFFERED DELIVERY WITHIN 134 DAYS OF THE CONTRACT DATE WAS WITHIN THE PROVIDED TIME FRAME. THEREFORE, CONSIDERATION OF ITS BID AS RESPONSIVE WAS PROPER. THE EVALUATION OF THE PARTEK LOW BID IN THE MANNER UTILIZED WAS NOT PREJUDICIAL TO RESPONDING BIDDERS; NOR DID IT REPRESENT AN UNREASONABLE INTERPRETATION OF THE SOLICITATION. IN THESE CIRCUMSTANCES, NO GROUNDS EXIST FOR CORRECTIVE ACTION.

ACCORDINGLY, THE PROTEST IS DENIED.