B-136251, JUN. 30, 1958

B-136251: Jun 30, 1958

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AKERMAN AND PICKETT: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MAY 21 AND MAY 23. BIDS WERE OPENED AS SCHEDULED ON MAY 19. 500 WAS SUBMITTED BY COSMOS. 510 WAS SUBMITTED BY ELDICO ELECTRONICS. IF BIDDER IS UNABLE TO MEET THE ABOVE DELIVERY SCHEDULE. SET FORTH BELOW THE DELIVERY SCHEDULE HE IS PREPARED TO MEET. AS BID PROPOSING DELIVERY AFTER THAT PERIOD OR PROPOSING DELIVERY FOR ITEM 2 OTHER THAN THAT STATED ABOVE WILL BE CONSIDERED NONRESPONSIVE TO THE INVITATION AND WILL BE REJECTED. THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE STATED ABOVE WILL APPLY.'. THE DELIVERY SCHEDULE PROPOSED BY COSMOS IN ITS BID WAS AS FOLLOWS: TABLE "ITEM 1 - 1ST ARTICLE 6 MONTH AFTER AWARD 125 EACH - 11 MONTHS AFTER 1ST ARTICLE APPROVAL 125 EACH - 12 MONTHS AFTER 1ST ARTICLE APPROVAL " SINCE THE COSMOS BID OFFERED FINAL DELIVERY BEYOND THE MAXIMUM TIME PROVIDED IN THE INVITATION IT WAS CONSIDERED TO BE NONRESPONSIVE AND THE BIDDER WAS SO ADVISED.

B-136251, JUN. 30, 1958

TO SHIPLEY, AKERMAN AND PICKETT:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MAY 21 AND MAY 23, 1958, WITH ENCLOSURES, SUBMITTING, ON BEHALF OF COSMOS INDUSTRIES, INC., AN ALLEGATION OF ERROR IN AND REQUEST FOR CORRECTION OF ITS BID FOR TRANSCEIVER SYSTEMS SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. 30-635- 58-389 ISSUED BY THE ROME AIR FORCE DEPOT ON APRIL 18, 1958.

BIDS WERE OPENED AS SCHEDULED ON MAY 19, 1958. THE LOW BID OF $253,500 WAS SUBMITTED BY COSMOS, THE SECOND LOW BID OF $267,510 WAS SUBMITTED BY ELDICO ELECTRONICS.

PARAGRAPH 25 OF THE INVITATION PROVIDES, IN PERTINENT PART:

"DELIVERY:

"THE GOVERNMENT DESIRES DELIVERY OF THE ARTICLES LISTED HEREIN AS FOLLOWS:

TABLE

"ITEM 1 - 1ST ARTICLE - 1 MONTH AFTER AWARD (ALLOW 30 DAYS FOR 1ST ARTICLE TESTING)

125 EACH - 2 MONTHS AFTER 1ST ARTICLE APPROVAL

125 EACH - 3 MONTHS DO. DO. DO. DO.

"ITEM 2 - IN ACCORDANCE WITH TABLE IV ATTACHED HERETO. IF BIDDER IS UNABLE TO MEET THE ABOVE DELIVERY SCHEDULE, HE MAY, WITHOUT PREJUDICE TO THE EVALUATION OF HIS BID, SET FORTH BELOW THE DELIVERY SCHEDULE HE IS PREPARED TO MEET, PROVIDED, IN NO EVENT SHALL THE BIDDER'S DELIVERY SCHEDULE EXTEND BEYOND 360 DAYS AFTER RECEIPT OF WRITTEN NOTICE OF AWARD, AS BID PROPOSING DELIVERY AFTER THAT PERIOD OR PROPOSING DELIVERY FOR ITEM 2 OTHER THAN THAT STATED ABOVE WILL BE CONSIDERED NONRESPONSIVE TO THE INVITATION AND WILL BE REJECTED. IF BIDDER DOES NOT STATE A DIFFERENT DELIVERY SCHEDULE, THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE STATED ABOVE WILL APPLY.' THE DELIVERY SCHEDULE PROPOSED BY COSMOS IN ITS BID WAS AS FOLLOWS:

TABLE

"ITEM 1 - 1ST ARTICLE 6 MONTH AFTER AWARD

125 EACH - 11 MONTHS AFTER 1ST ARTICLE APPROVAL

125 EACH - 12 MONTHS AFTER 1ST ARTICLE APPROVAL "

SINCE THE COSMOS BID OFFERED FINAL DELIVERY BEYOND THE MAXIMUM TIME PROVIDED IN THE INVITATION IT WAS CONSIDERED TO BE NONRESPONSIVE AND THE BIDDER WAS SO ADVISED. UPON RECEIPT OF THE INFORMATION, COSMOS, ON MAY 20, 1958, DISPATCHED A NIGHT LETTER TO THE CONTRACTING OFFICER ALLEGING THAT THE PROPOSED DELIVERY SCHEDULE WAS THE RESULT OF A CLERICAL ERROR AND THAT THE INTENDED SCHEDULE WAS---

"ITEM 1 - 1ST ARTICLE 6 MONTHS AFTER AWARD, 125 EACH 11TH MONTH AFTER AWARD AND 125 EACH 12TH MONTH AFTER AWARD THEREFORE COMPLETE IN 360 DAYS AS REQUIRED.'

THEREUPON, THE CONTRACTING OFFICER REQUESTED COSMOS TO SUBMIT WRITTEN EVIDENCE ESTABLISHING THE EXISTENCE OF A MISTAKE AND THE INTENDED BID. WITH YOUR LETTER OF MAY 23, THERE WERE SUBMITTED TWO SWORN AFFIDAVITS DATED MAY 21. THE FIRST OF THESE, BY PAUL FREEDMAN, STATES THAT HE IS THE CONTRACT ADMINISTRATOR AND OFFICE MANAGER FOR COSMOS. MR. FREEDMAN SWEARS THAT AT A CONFERENCE OF REPRESENTATIVES OF COSMOS. MR. FREEDMAN SWEARS THAT A CONFERENCE OF REPRESENTATIVES OF COSMOS HELD ON MAY 15, 1958, IT WAS AGREED TO OFFER THE FOLLOWING DELIVERY SCHEDULE:

TABLE

"1ST ARTICLE WITHIN 6 MONTHS AFTER RECEIPT OF AWARD

125 EACH WITHIN 11 MONTHS AFTER RECEIPT OF AWARD

125 EACH WITHIN 12 MONTHS AFTER RECEIPT OF AWARD.'

THE SECOND AFFIDAVIT BY TED KAUFMAN STATES THAT HE IS AN EMPLOYEE OF COSMOS INDUSTRIES AND IS RESPONSIBLE FOR PREPARATION COSTING OF ALL BIDS. MR. KAUFMAN FURTHER AVERS THAT, AT THE MEETING OF MAY 15, 1958, MR. GOODMAN, PRESIDENT OF COSMOS, MARKED UP THE WORKSHEETS TO SHOW THE FOLLOWING DELIVERY SCHEDULE:

TABLE

"1ST ARTICLE - WITHIN 6 MONTHS AFTER AWARD

125 EA. WITHIN 11 MONTHS AFTER AWARD

125 EA. WITHIN 12 MONTHS AFTER AWARD

COMPLETE 360 DAYS AFTER AWARD.'

MR. KAUFMAN FURTHER STATES THAT, DUE TO ANXIETY, HE INADVERTENTLY OVERLOOKED THE FACT THAT THE PROPOSED SCHEDULE FOR ALL BUT THE FIRST ARTICLE WAS STATED IN THE INVITATION IN TERMS OF MONTHS AFTER FIRST ARTICLE APPROVAL RATHER THAN AFTER AWARD.

ON THE BASIS OF THE EXPLANATION AND THE SWORN AFFIDAVITS, IT IS REQUESTED THAT THE COSMOS BID BE CONSIDERED AS CONTAINING THE INTENDED PROPOSED DELIVERY SCHEDULE RATHER THAN THAT ACTUALLY INCLUDED IN ITS BID.

THE RULE IS CLEAR THAT WHERE AN ERROR IN BID IS ALLEGED AFTER OPENING AND PRIOR TO AWARD, THE BID MAY BE CORRECTED ONLY UPON THE SUBMISSION OF EVIDENCE PRESENTING SUCH CONVINCING PROOF OF THE EXISTENCE AND CHARACTER OF THE ERROR AS TO LEAVE NO ROOM FOR DOUBT THAT THERE WAS A BONA FIDE MISTAKE IN THE BID AND TO REMOVE ANY REASONABLE SUSPICION THAT THE CLAIM OF ERROR WAS FOR THE PURPOSE OF OBTAINING SOME UNDUE ADVANTAGE OR AVOIDING THE CONSEQUENCE OF AN ILL ADVISED BID. 16 COMP. GEN. 565. SEE, ALSO 35 COMP. GEN. 279; 17 COMP. GEN. 532; 14 COMP. GEN. 78 AND 9 COMP. GEN. 39.

IN THIS CASE, THE SWORN AFFIDAVITS ARE INCONSISTENT: THAT SUBMITTED BY MR. FREEDMAN INDICATES THAT THE INTENDED SCHEDULE WOULD HAVE PROVIDED FOR COMPLETE DELIVERY WITHIN 12 MONTHS AFTER RECEIPT OF AWARD; WHILE MR. KAUFMAN'S AFFIDAVIT INDICATES THAT THERE WOULD HAVE BEEN ADDED THE ADDITIONAL STATEMENT "COMPLETE 360 DAYS AFTER AWARD.' EVEN ASSUMING THAT THE COSMOS BID HAD ACTUALLY CONTAINED THE PROPOSED DELIVERY SCHEDULE WHICH IT IS STATED IN MR. FREEDMAN'S AFFIDAVIT WAS INTENDED THE BID WOULD NEVERTHELESS BE NONRESPONSIVE SINCE THE INVITATION REQUIRED FINAL DELIVERY WITHIN 360 DAYS AND A YEAR IN CONTEMPLATION OF THE LAW IS 365 DAYS. ERWIN V. BENTON, 87 S.W. 291; PIPER V. EAST BATON ROUGE, 35 S.2D 804; AND EX PARTE JOHNSON 87 P.2D 107. SINCE THE TERMS "12 MONTHS" AND "1 YEAR" ARE USED INTERCHANGEABLY, WE MUST REGARD THE INTENDED SCHEDULE SHOWN IN MR. FREEDMAN'S AFFIDAVIT AS OFFERING DELIVERY WITHIN 365 DAYS OR FIVE DAYS BEYOND THAT PERMITTED IN THE INVITATION. STRONA V. BUSSEY, 51 F.SUPP. 996; MUSE V. LONDON ASSURANCE CORP., 13 S.E. 94.

IT MAY BE CONTENDED THAT THE INTENDED SCHEDULE PRESENTED IN MR. KAUFMAN'S AFFIDAVIT SHOULD BE REGARDED AS RESPONSIVE TO THE TERMS OF THE INVITATION. HOWEVER, THE FACT THAT THE PROOF SUBMITTED IS CONTRADICTORY WITH REGARD TO THE SCHEDULE ACTUALLY INTENDED, PRECLUDES ANY CONCLUSION THAT THE INTENDED BID HAS BEEN ESTABLISHED BY THE DEGREE OF PROOF REQUIRED UNDER THE PRINCIPLE CITED ABOVE.

THE CASE PRESENTED IS CLEARLY DISTINGUISHABLE FROM THE LEITMAN CASE, 104 C.CLS. 324, AND OUR DECISION IN 37 COMP. GEN. 251, BY THE FACT THAT IN BOTH THOSE CASES THE BID WHICH WAS AMENDED WAS THE LOWEST RESPONSIVE BID AND WOULD HAVE HAD TO BE ACCEPTED EVEN WITHOUT THE OFFERED MODIFICATION. IN THE INSTANT CASE THE BID AS SUBMITTED WAS NOT RESPONSIVE TO THE TERMS OF THE INVITATION ON WHICH BIDS WERE REQUESTED, AND TO PERMIT THE REQUESTED MODIFICATION WOULD OBVIOUSLY AFFECT THE INTERESTS OF OTHER BIDDERS.

FOR THE REASONS STATED, WE MUST CONCLUDE THAT THE COSMOS INDUSTRIES BID MAY NOT BE CONSIDERED FOR AWARD.