B-177258, FEB 7, 1973

B-177258: Feb 7, 1973

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SINCE AN ACCURATE DELIVERY DATE IS AN ESSENTIAL REQUIREMENT OF THE IFB. EVEN IN CASES WHERE COMPONENT PARTS ARE TO BE OBTAINED FROM DIRECTED SOURCES. THE PROTEST IS DENIED. TO JEPPSON AND BERMAN: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 11. THE IFB WAS ISSUED ON JUNE 15. THE PROPOSED INITIAL ORDER QUANTITY WAS FOR 566 UNITS. FOLLOW-ON ORDERS WERE STATED IN INCREMENTS RANGING BETWEEN 179 EACH AND 641 EACH WITH A BEST ESTIMATED QUANTITY (BEQ) OF 1. INCLUDED IN THE IFB ON PAGE II-4 WAS THE FOLLOWING PROVISION REGARDING DELIVERY OF THE INITIAL ORDER QUANTITY AND ANY SUBSEQUENT ORDERS: "SECTION H - DELIVERY OR PERFORMANCE "H-1. TIME OF DELIVERY (1960 MAY): "(A) DELIVERY IS DESIRED BY THE GOVERNMENT IN ACCORDANCE WITH THE FOLLOWING SCHEDULE: "179 EACH WITHIN 60 DAYS AFTER RECEIPT OF ORDER AND CONTINUE AT THE RATE OF 179 EACH PER MONTH THEREAFTER UNTIL COMPLETE.

B-177258, FEB 7, 1973

BID PROTEST - NON-RESPONSIVENESS - REQUIRED DELIVERY DATES - BIDDER'S RELATIONSHIP TO VENDOR DECISION CONCERNING A DENIAL OF PROTEST ON BEHALF OF SPACE PROJECTS ENGINEERING CO. AGAINST THE AWARD OF A CONTRACT TO H. N. BAILEY AND ASSOCIATES UNDER AN IFB ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA, KELLY AFB, TEX. SINCE AN ACCURATE DELIVERY DATE IS AN ESSENTIAL REQUIREMENT OF THE IFB, THE COMP. GEN. AGREES WITH THE PROCURING AGENCY'S DETERMINATION OF NON- RESPONSIVENESS DUE TO SPACE PROJECTS' AMBIGUOUS DELIVERY DATE. 36 COMP. GEN. 181 (1956). FURTHER, THE GOVERNMENT CANNOT CONTROL DEALINGS BETWEEN PROSPECTIVE BIDDERS AND THEIR VENDORS, EVEN IN CASES WHERE COMPONENT PARTS ARE TO BE OBTAINED FROM DIRECTED SOURCES. ACCORDINGLY, THE PROTEST IS DENIED.

TO JEPPSON AND BERMAN:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 11, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING ON BEHALF OF SPACE PROJECTS ENGINEERING COMPANY (SPACE PROJECTS) AGAINST THE REJECTION OF SPACE PROJECTS' BID AS NONRESPONSIVE AND THE AWARD OF A REQUIREMENTS-TYPE CONTRACT TO H. N. BAILEY & ASSOCIATES (BAILEY) UNDER INVITATION FOR BIDS (IFB) NO. F41608 72 -B-0744, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, DIRECTORATE OF PROCUREMENT AND PRODUCTION, SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS.

THE IFB WAS ISSUED ON JUNE 15, 1972, COVERING A REQUIREMENT FOR PARTS KIT NO. 1680-830-3285, APPLICABLE TO THE THROTTLE CABLE TENSION REGULATOR IN SUPPORT OF THE B-52 AIRCRAFT. THE PROPOSED INITIAL ORDER QUANTITY WAS FOR 566 UNITS. FOLLOW-ON ORDERS WERE STATED IN INCREMENTS RANGING BETWEEN 179 EACH AND 641 EACH WITH A BEST ESTIMATED QUANTITY (BEQ) OF 1,282 EACH. INCLUDED IN THE IFB ON PAGE II-4 WAS THE FOLLOWING PROVISION REGARDING DELIVERY OF THE INITIAL ORDER QUANTITY AND ANY SUBSEQUENT ORDERS:

"SECTION H - DELIVERY OR PERFORMANCE

"H-1. TIME OF DELIVERY (1960 MAY):

"(A) DELIVERY IS DESIRED BY THE GOVERNMENT IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:

"179 EACH WITHIN 60 DAYS AFTER RECEIPT OF ORDER AND CONTINUE AT THE RATE OF 179 EACH PER MONTH THEREAFTER UNTIL COMPLETE.

"(B) IF THE BIDDER IS UNABLE TO MEET THE ABOVE DELIVERY SCHEDULE, HE MAY, WITHOUT PREJUDICE TO THE EVALUATION OF HIS BID, SET FORTH HIS PROPOSED DELIVERY SCHEDULE BELOW BUT SUCH DELIVERY SCHEDULE MUST NOT EXTEND THE DELIVERY PERIOD BEYOND THE TIME FOR DELIVERY CALLED FOR IN THE FOLLOWING REQUIRED DELIVERY SCHEDULE SET FORTH BELOW:

"REQUIRED DELIVERY SCHEDULE

"179 EACH WITHIN 90 DAYS AFTER RECEIPT OF ORDER AND CONTINUE AT THE RATE OF 179 EACH PER MONTH THEREAFTER UNTIL COMPLETE.

"(I) BIDS OFFERING DELIVERY OF A QUANTITY UNDER SUCH TERMS OR CONDITIONS THAT DELIVERY WILL NOT CLEARLY FALL WITHIN THE APPLICABLE REQUIRED DELIVERY PERIOD SPECIFIED WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.

"(II) IF THE BIDDER DOES NOT PROPOSE A DIFFERENT DELIVERY SCHEDULE, THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE SHALL APPLY."

IN ADDITION, THE IFB PROVIDED THAT THE SOURCE OF PART NO. R7590 OF THE KIT IS THE PACIFIC SCIENTIFIC COMPANY, AIRCRAFT PRODUCTS DIVISION (PACIFIC).

AMENDMENT NO. 0001 WAS ISSUED ON JULY 10, 1972, EXTENDING THE OPENING DATE INDEFINITELY, DUE TO AN ERROR IN PART NUMBERS ON THE COMPONENT PART LIST. AMENDMENT NO. 0002 WAS ISSUED ON JULY 25, 1972, PROVIDING A CORRECTED COMPONENT PART LISTING AND ESTABLISHING AN OPENING DATE OF AUGUST 11, 1972. OF THE 46 SOURCES THAT WERE SOLICITED, THREE SUBMITTED BIDS. SPACE PROJECTS WAS THE APPARENT LOW BIDDER.

HOWEVER, UPON EXAMINATION OF SPACE PROJECTS' BID, IT WAS NOTED THAT IFB PAGE II-4 HAD BEEN FILLED IN AS FOLLOWS:

"(C) BIDDER'S PROPOSED DELIVERY SCHEDULE (TO BE COMPLETED BY BIDDER):

EACH WITHIN 120 DAYS AFTER RECEIPT OF ORDER AND CONTINUE AT THE RATE OF COMPLETE EACH PER MONTH THEREAFTER UNTIL COMPLETE."

SINCE IT WAS CONCLUDED THAT THIS SCHEDULE DID NOT COMPLY WITH THE REQUIRED DELIVERY SCHEDULE, SPACE PROJECTS' BID WAS REJECTED AS NONRESPONSIVE. BASED ON AN AFFIRMATIVE PREAWARD SURVEY (PAS) RECEIVED ON THE NEXT LOW BIDDER, BAILEY, AWARD WAS MADE TO THAT FIRM ON OCTOBER 2, 1972, AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER. SPACE PROJECTS WAS ADVISED OF THE AWARD ON OCTOBER 9 AND YOUR LETTER OF PROTEST FOLLOWED ON OCTOBER 11, 1972.

YOU STATE THEREIN THAT SPACE PROJECTS RECEIVED A QUOTE FROM PACIFIC FOR THE REQUIRED PART, WHICH PROVIDED THAT DELIVERY WOULD BE MADE WITHIN 90 DAYS. YOU CONTEND THAT IF BAILEY RECEIVED A SIMILAR QUOTE, IT CANNOT POSSIBLY ADHERE TO ITS AGREED DELIVERY SCHEDULE BECAUSE DELIVERY WILL NOT BE MADE PRIOR TO 90 DAYS FROM THE DATE OF AWARD. YOU FURTHER MAINTAIN THAT THE DELIVERY SCHEDULE SUBMITTED BY SPACE PROJECTS IS THE MINIMUM DELIVERY POSSIBLE CONSIDERING THE AVAILABILITY OF THE PART. ON THIS BASIS, YOU REQUEST THAT OUR OFFICE DIRECT THE PROCURING ACTIVITY TO CANCEL THE CONTRACT AWARDED TO BAILEY. YOU FURTHER CONTEND THAT IF PACIFIC QUOTED A SHORTER DELIVERY SCHEDULE TO BAILEY, SPACE PROJECTS HAS BEEN PREJUDICED. ON THIS BASIS, YOU REQUEST A RULING FROM OUR OFFICE THAT THIS PROCUREMENT BE RESOLICITED AND THAT A UNIFORM DELIVERY DATE BY PACIFIC BE ESTABLISHED FOR ALL BIDDERS.

ADDITIONALLY, YOU MAINTAIN IN YOUR LETTER OF DECEMBER 21, 1972, THAT SPACE PROJECTS' BID WAS RESPONSIVE AND CITE OUR DECISION B-143576, SEPTEMBER 12, 1960, IN SUPPORT OF YOUR POSITION.

INITIALLY, WE NOTE THAT THE FACTS OF RECORD DO NOT BEAR OUT YOUR ALLEGATION THAT BAILEY CANNOT ADHERE TO ITS AGREED DELIVERY SCHEDULE. THE FAVORABLE PAS REPORT DATED SEPTEMBER 14, 1972, INDICATES THAT ALL ITEMS RELATED TO THE SUBJECT KIT ARE PURCHASED FROM SEVEN SEPARATE SUPPLIERS AND THAT DELIVERY OF THE ITEMS RANGES FROM 2 WEEKS TO 6 WEEKS. IN VIEW OF THIS INFORMATION, THERE IS NO BASIS FOR OUR OFFICE TO QUESTION THE CONTRACTING OFFICER'S RESPONSIBILITY DETERMINATION. MOREOVER, THE FACT THAT SPACE PROJECTS MAY NOT HAVE RECEIVED AS FAVORABLE A QUOTE FROM PACIFIC AS BAILEY DID DOES NOT PRESENT A BASIS FOR A LEGAL OBJECTION. THIS CONNECTION, WE AGREE GENERALLY WITH THE PROCURING ACTIVITY THAT THE GOVERNMENT CANNOT CONTROL DEALINGS BETWEEN PROSPECTIVE BIDDERS AND THEIR VENDORS, EVEN IN CASES WHERE COMPONENT PARTS ARE TO BE OBTAINED FROM DIRECTED SOURCES. IT IS THE RESPONSIBILITY OF FIRMS WISHING TO BID ON GOVERNMENT CONTRACTS TO OBTAIN MATERIALS IN TIME TO MEET THE REQUIRED DELIVERY SCHEDULE.

SPACE PROJECTS' BID WAS REJECTED AS NONRESPONSIVE PURSUANT TO PARAGRAPH 2 -404.2(A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH PROVIDES THAT "ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS SHALL BE REJECTED." IN THE INSTANT CASE, THE PROVISION WITH RESPECT TO DELIVERY WAS AN ESSENTIAL REQUIREMENT OF THE IFB, SINCE IT REQUIRED DELIVERY WITHIN A STATED PERIOD. SEE 36 COMP. GEN. 181 (1956); 48 ID. 420, 422 (1968); ID. 775, 778-779 (1969).

WE BELIEVE THAT THE AIR FORCE ACTED PROPERLY IN REJECTING SPACE PROJECTS' BID AS NONRESPONSIVE. IN OUR VIEW, SPACE PROJECTS' USE OF THE TERM "120 DAYS COMPLETE" RENDERED ITS BID AMBIGUOUS. AT LEAST TWO REASONABLE INTERPRETATIONS OF THE ENTRY ARE POSSIBLE. THE ENTRY CAN BE VIEWED SIMPLY AS AN OFFER TO DELIVER ALL OF THE INITIAL ORDER QUANTITY OF 566 UNITS, AND ANY SUBSEQUENT ORDER QUANTITIES, WITHIN 120 DAYS AFTER RECEIPT OF THE ORDER. UNDER THIS INTERPRETATION, SPACE PROJECTS WOULD BE UNDER NO OBLIGATION TO FURNISH AT LEAST 179 UNITS WITHIN 90 DAYS AS REQUIRED BY THE GOVERNMENT'S REQUIRED DELIVERY SCHEDULE. ON THE OTHER HAND, THE ENTRY CAN BE INTERPRETED AS AN OFFER TO DELIVER AT LEAST 179 UNITS WITHIN 90 DAYS AFTER RECEIPT OF AN ORDER AND THE REMAINDER WITHIN 30 DAYS THEREAFTER. IS APPARENTLY IN SUPPORT OF THIS INTERPRETATION THAT YOU RELY ON B-143576, SUPRA, AFFIRMED ON RECONSIDERATION NOVEMBER 2, 1960.

THE SITUATION IN THE INSTANT CASE IS DISTINGUISHABLE FROM THAT WHICH WAS PRESENTED IN B-143576, SUPRA. IN THAT CASE, THE INVITATION PROVISION RELATING TO A BIDDER'S PROPOSED DELIVERY SCHEDULE DID NOT REQUEST AN ITEMIZATION OF THE MONTHLY RATE OF DELIVERIES, WHILE THE SPECIFIED DESIRED AND MAXIMUM DELIVERY SCHEDULES LISTED IN THE INVITATION DID IDENTIFY MONTHLY DELIVERY REQUIREMENTS. IN OFFERING AN ALTERNATE DELIVERY SCHEDULE, ONE OF THE BIDDERS SIMPLY LISTED SPECIFIC QUANTITIES AND THE TIMES WITHIN WHICH THEY WERE TO BE DELIVERED. AS STATED IN OUR RECONSIDERATION OF NOVEMBER 2, 1960, "THE ONLY LITERAL WAY TO COMPLY WITH THE DIRECTIONS IN THE INVITATION WAS TO DO EXACTLY AS (THE BIDDER) DID *** THERE WERE NO SPACES PROVIDED FOR THE STATEMENT OF INTERMEDIATE DELIVERIES, AND WE THEREFORE CANNOT FIND FAULT WITH (THE BIDDER)." LIGHT OF THE TERMS OF THE INVITATION AND IN VIEW OF THE CONSISTENCY OF THE BIDDER'S RESPONSE, WE CONCLUDED THAT IT WOULD BE UNREASONABLE TO CONCLUDE THAT IT DID NOT INTEND TO COMPLY WITH THE REQUIRED MONTHLY DELIVERIES. CONTRAST, THE INSTANT INVITATION PROVIDED A METHOD FOR MANIFESTING AN INTENT TO FURNISH AT LEAST 179 UNITS WITHIN 90 DAYS. AND, IN OUR VIEW, SPACE PROJECTS' FAILURE TO RESPOND CONSISTENTLY PRECLUDES AN INFERENCE THAT THE ONLY REASONABLE INTERPRETATION OF THE ENTRY IS THE ONE ADVANCED BY YOU.

THUS, WHERE, AS HERE, A BID IS SUBJECT TO TWO REASONABLE INTERPRETATIONS, UNDER ONE OF WHICH IT WOULD BE RESPONSIVE AND UNDER THE OTHER, NONRESPONSIVE, WE HAVE CONSISTENTLY CONSIDERED THE BID TO BE NONRESPONSIVE. SEE B-172183, JUNE 29, 1971. BECAUSE OF THE AMBIGUITY IN SPACE PROJECTS' BID, ACCEPTANCE OF IT WOULD NOT CLEARLY REQUIRE SPACE PROJECTS TO PERFORM ACCORDING TO THE REQUIRED DELIVERY SCHEDULE. CONSEQUENTLY, SPACE PROJECTS' BID MUST BE CONSIDERED NONRESPONSIVE.

ALTHOUGH WE HAVE REACHED THE CONCLUSION THAT THE BID IS AMBIGUOUS FROM A CONSIDERATION OF THE BID ITSELF, WE NOTE, IN ANY EVENT, THAT THE INTERPRETATION OF SPACE PROJECTS' BID ADVANCED BY YOU IS INCONSISTENT WITH SPACE PROJECTS' ASSERTION THAT NO ONE COULD OBTAIN DELIVERY OF AN ESSENTIAL SOURCE-CONTROLLED PART WITHIN 90 DAYS AND THAT 120 DAYS WAS THE EARLIEST PRACTICABLE DELIVERY.

ACCORDINGLY, THE PROTEST IS DENIED.