B-150805, JUN. 20, 1963

B-150805, JUN. 20, 1963

TO THE EIMCO CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1963, REGARDING OUR DECISION OF MAY 10, 1963, WHICH DENIED YOUR PROTEST AGAINST THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. FNVM-H-29076-A-11-14-62 ISSUED BY THE FEDERAL SUPPLY SERVICE ON OCTOBER 24, 1962, FOR THE FURNISHING OF TRACTORS.

YOU REFER TO THE TRANSMITTAL OF YOUR BID BY MR. RUCKER TO THE CONTRACTING OFFICER AND AGAIN STATE THAT HE COULD NOT MODIFY THE "OFFICIAL BID DATED NOVEMBER 9, 1962 SIGNED BY D. M. SCHWARTZ, VICE PRESIDENT, THE PERSON AUTHORIZED TO SIGN THE BID.' AS WE POINTED OUT ON PAGE 2 OF OUR DECISION, THE BID WAS NOT TRANSMITTED TO THE GOVERNMENT BY MR. SCHWARTZ HIMSELF BUT BY MR. RUCKER WHO EXPLAINED THE BID WITH REGARD TO THE MATTER OF PNEUMATIC TIRES. ALSO, MR. RUCKER FURNISHED ADDITIONAL INFORMATION AS TO THE EQUIPMENT PROPOSED TO BE FURNISHED. THE MERE FACT THAT MR. RUCKER TRANSMITTED YOUR BID AND OFFERED ADDITIONAL INFORMATION INDICATES THAT HE HAD AUTHORITY TO MODIFY THE BID AS SIGNED BY SCHWARTZ.

YOU CONTEND THAT EVEN IF THE CONDITION STATED IN MR. RUCKER'S LETTER OF NOVEMBER 6, 1962, SHOULD BE CONSIDERED AS NOT ERRONEOUS, THE STATEMENT THAT YOU COULD "MAKE SHIPMENT EX-FACTORY ON THE ABOVE UNITS WITHIN 90 DAYS AFTER RECEIPT OF A FIRM ORDER AND A CONFIRMED LETTER OF CREDIT" WAS AN INFORMALITY AND SHOULD HAVE BEEN WAIVED. ALSO, YOU CONTEND THAT IT SHOULD NOT AFFECT THE PRICE. WHILE THERE IS NO SHOWING AS TO WHAT INDUCED MR. RUCKER TO CONDITION DELIVERY UPON RECEIPT OF "A CONFIRMED LETTER OF CREDIT" IT IS ASSUMED THAT SINCE SHIPMENT WAS TO BE MADE TO CAMEROON, AFRICA, AND SINCE THE INVITATION PROVIDED THAT THE INVOICE FOR PAYMENT WAS TO BE SUBMITTED AS SHOWN "ON ORDERS UNDER THIS CONTRACT" THERE MAY HAVE BEEN SOME DOUBT AS TO WHETHER PAYMENT WOULD BE MADE DIRECTLY BY THE GOVERNMENT. IN ANY EVENT IT WAS A CONDITION AFFECTING DELIVERY AND EVEN IF IT IS TO BE CONCEDED THAT THE ADMINISTRATIVE OFFICE IS IN ERROR IN REPORTING THAT THE COST OF THE LETTER OF CREDIT IS BORNE BY THE GOVERNMENT, THERE STILL REMAINS THE FACT THAT YOUR OFFER TO DELIVER WAS A CONDITIONAL ONE AND THEREFORE NOT RESPONSIVE TO THE INVITATION.

WITH REGARD TO THE FACT THAT YOU OFFERED TO "MAKE SHIPMENT EX FACTORY * * * WITHIN 90 DAYS AFTER RECEIPT OF A FIRM ORDER AND A CONFIRMED LETTER OF CREDIT, THIS OFFER DOES NOT COINCIDE WITH THE DESIRED DELIVERY TIME BUT, AS WE ADVISED YOU IN THE NEXT TO THE LAST PARAGRAPH OF OUR LETTER OF MAY 10, 1963, YOUR DELIVERY TIME WAS NOT CONSIDERED UNREASONABLE. IT IS UNDERSTOOD THAT THE CLAUSE IN THIS INVITATION REGARDING TIME OF DELIVERY HAS NOW BEEN ELIMINATED IN INVITATIONS FOR BIDS. THE ACTION OF THE ADMINISTRATIVE OFFICE IN REJECTING YOUR BID BECAUSE OF THE CONDITION IMPOSED BY YOUR REQUIREMENT FOR A LETTER OF CREDIT WAS NOT ERRONEOUS AND WE DO NOT CONSIDER THAT THERE HAS BEEN ANY DISCRIMINATION AGAINST YOU IN THIS CASE.