B-156163, MAR. 29, 1965

B-156163, MAR. 29, 1965

TO COOPER, SPONG AND DAVIS:

WE REFER TO YOUR RECENT CORRESPONDENCE PROTESTING, ON BEHALF OF CUMBERLAND FARMS DAIRY, CHESAPEAKE, VIRGINIA, AWARD OF A CONTRACT UNDER NAVAL SUPPLY CENTER INVITATION FOR BIDS NO. 189-310-65, DATED JANUARY 15, 1965.

AS ORIGINALLY WRITTEN, THE ABOVE INVITATION PROVIDED THAT BIDS OFFERING AN ACCEPTANCE PERIOD OF LESS THAN TEN DAYS FROM THE DATE OF OPENING (FEBRUARY 2, 1965) WOULD BE CONSIDERED NONRESPONSIVE AND REJECTED. BECAUSE OF AN INCREASING BACKLOG OF WORK THE CONTRACTING OFFICER ON JANUARY 19, 1965, ISSUED AN AMENDMENT EXTENDING THE BID ACCEPTANCE PERIOD TO THIRTY DAYS. ALL BIDDERS EXCEPT CUMBERLAND FARMS DAIRY ACKNOWLEDGED RECEIPT OF THIS AMENDMENT. IN VIEW THEREOF, THE CONTRACTING OFFICER CONCLUDED THAT CUMBERLAND'S BID WAS NOT PROPER FOR CONSIDERATION EVEN THOUGH THEIR BID PROVIDED FOR A 26-DAY ACCEPTANCE PERIOD--- 16 DAYS MORE THAN THAT ORIGINALLY REQUIRED BY THE INVITATION PRIOR TO AMENDMENT. SEE, GENERALLY, B-148399, JULY 9, 1962.

IT IS YOUR POSITION THAT A THIRTY-DAY PERIOD FOR ACCEPTANCE WAS UNREASONABLE AND THAT HAD THE ORIGINAL 10-DAY ACCEPTANCE PERIOD REMAINED UNCHANGED, OR FOR THAT MATTER BEEN EXTENDED FOR AN ADDITIONAL SHORT TIME, AWARD WOULD HAVE BEEN MADE TO YOUR CLIENT AT A SAVING IN EXCESS OF $11,000. YOU CONTEND THAT IT WAS OBVIOUS THAT AWARD HAD TO BE MADE SOME TIME PRIOR TO MARCH 1 SINCE THE INVITATION INDICATED THAT PERFORMANCE WOULD COMMENCE ON THAT DATE. YOU ALSO POINT OUT THAT AWARD WAS IN FACT MADE ON FEBRUARY 10, 1965, TWO DAYS PRIOR TO THE EXPIRATION OF THE ORIGINAL 10-DAY ACCEPTANCE PERIOD.

IN ANSWER TO THE CONTRACTING OFFICER'S SUGGESTION THAT YOUR CLIENT WAS FULLY APPRISED OF THE FACT THAT HE HAD FAILED TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT, YOU STATE:

"AN EXAMINATION OF THE INVITATION TO THE SUBJECT CONTRACT WILL REVEAL THAT THERE ARE PHYSICALLY ANNEXED TO IT TWO PIECES OF PAPER, ONE REFERRING TO "PARENT COMPANY AND EMPLOYER IDENTIFICATION NUMBER" AND THE SECOND REFERRING TO "MANUFACTURING LOCATION--- LABOR SURPLUS AREA CONCERNS.' WAS TO THESE TWO PIECES OF PAPER THAT MR. LINDSAY HAD REFERENCE, AND NOT THE AMENDMENT TO THE ACCEPTANCE PERIOD. HE NEVER RECEIVED THIS LATTER DOCUMENT, AND THEREFORE WOULD NOT HAVE BEEN FAMILIAR WITH WHAT THE SECRETARY WAS SPEAKING OF. IN FACT, IT WAS NOT UNTIL A LATER CONVERSATION WITH THE PERSONNEL OF THE NAVAL SUPPLY CENTER THAT MR. LINDSAY REALIZED THAT AN AMENDMENT TO THE ACCEPTANCE PERIOD HAD BEEN SENT OUT, AT WHICH TIME A PROTEST AND APPEAL WAS FILED.

"ALONG THE SAME LINE, MR. LINDSAY HAS ALWAYS MAINTAINED THAT HE NEVER RECEIVED THIS AMENDMENT. I ENDEAVORED TO FIND OUT IF ONE WAS IN FACT MAILED TO CUMBERLAND FARMS DAIRY, AND WAS TOLD BY THE NAVAL SUPPLY CENTER THAT THERE WAS NOT ANY WAY THEY COULD TELL WHETHER AMENDMENTS WERE MAILED TO THOSE COMPANIES WHICH RECEIVED THE ORIGINAL INVITATION. I ENCLOSE ALSO, A COPY OF A LETTER I RECEIVED FROM ROBERT B. LYONS, SBA REPRESENTATIVE, NAVAL SUPPLY CENTER, WHEREIN HE STATES THAT HE HAS MET WITH THE SAME DIFFICULTY IN ATTEMPTING TO OBTAIN THIS INFORMATION.'

WHILE WE ARE INCLINED TO AGREE THAT EXTENSION OF THE BID ACCEPTANCE PERIOD BEYOND THE DATE SET FOR COMMENCEMENT OF PERFORMANCE WAS UNWISE, THE RECORD SUPPORTS THE CONCLUSION THAT ON JANUARY 19, 1965, THERE WAS A PROPER BASIS FOR EXTENDING THE BID OPENING DATE. ALTHOUGH HINDSIGHT INDICATES OTHERWISE, CONCEIVABLY THE AGENCY COULD HAVE MADE AWARD AFTER MARCH 1, 1965, WITHOUT CHANGING THE DATES FOR DELIVERY SINCE THE INVITATION MERELY STATED THAT MILK AND/OR RELATED ITEMS WOULD BE ORDERED DURING THE PERIOD BEGINNING MARCH 1, 1965, AND ENDING AUGUST 31, 1965. DID NOT STATE THAT DELIVERY WOULD IN FACT BE REQUIRED ON MARCH 1, 1965, NOR WAS THE GOVERNMENT OBLIGATED TO PURCHASE A SPECIFIC QUANTITY OF MILK DAILY. EXCEPT FOR EMERGENCY ORDERS, THE CONTRACTOR WAS GUARANTEED THAT HE WOULD HAVE AT LEAST 24 HOURS ADVANCE NOTICE BEFORE HE WAS REQUIRED TO MAKE DELIVERIES.

SINCE WE ARE NOW CONFRONTED WITH A SITUATION WHERE THERE IS A VALID AND BINDING CONTRACT IN EXISTENCE, WE DO NOT BELIEVE THAT CANCELLATION AT THIS TIME WOULD BE IN THE GOVERNMENT'S BEST INTEREST. THE FACT THAT YOUR CLIENT FAILED TO RECEIVE A COPY OF THE AMENDMENT DOES NOT AFFORD SUFFICIENT LEGAL JUSTIFICATION FOR ORDERING CANCELLATION. 40 COMP. GEN. 126; 37 ID. 785; 34 ID. 684.