B-154626, AUG. 31, 1964

B-154626, AUG. 31, 1964

TO MCQUISTON ASSOCIATES:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER DATED JULY 31, 1964, IN REFERENCE TO OUR DECISION DATED JULY 17, 1964, TO THE SECRETARY OF THE ARMY REGARDING YOUR PROTEST OF THE REJECTION OF YOUR LOW BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. AMC/Z/-01-021-64-1125, ISSUED ON APRIL 6, 1964, BY REDSTONE ARSENAL, ALABAMA, FOR 52 TRANSFORMERS AND ONE PREPRODUCTION SAMPLE THEREOF.

YOU APPEAR TO BE SEEKING A FURTHER EXPLANATION NOT ONLY OF THE LAW APPLICABLE TO THE QUESTIONS NOW STRESSED BY YOU WITH RESPECT TO INVITATION FOR BIDS NO. AMC/Z/-01-021-64-1125, BUT ALSO IN CONNECTION WITH INVITATION NO. AMC/Z/-01-021-64-1111. IN REGARD TO INVITATION NO. AMC/Z/-01-021-64- 1125, YOU RAISE THE QUESTION AS TO WHETHER A SUBSTANTIVE DEVIATION AS TO DELIVERY TIME MAY BE SAID TO EXIST BY THE OMISSION OF PAGE 18 OF THE INVITATION SINCE ANY OF THE DELIVERY DATES REQUIRED CAN BE ARITHMETICALLY DETERMINED FROM THE INFORMATION SET FORTH ON PAGE 3. WHILE DELIVERY SCHEDULES ARE, OF COURSE, ONE OF THE MOST IMPORTANT CONTRACTUAL OBLIGATIONS REQUIRED IN ANY GOVERNMENT PROCUREMENT AND SHOULD LEAVE NO DOUBT AS TO THE PROPOSED DELIVERY TIME, YOUR ATTENTION IS CALLED TO THAT PART OF OUR DECISION DATED JULY 17, 1964, WHICH STATED THAT THE CLAUSES DEALING WITH THE MANDATORY USE OF MILITARY STANDARD TRANSPORTATION AND MOVEMENT PROCEDURES, DELIVERY TERMS, AND DELIVERY TO CARRIERS ARE ESSENTIAL REQUIREMENTS GOING TO THE SUBSTANCE OF THE BID. THUS, THERE WAS INVOLVED, AND FULLY CONSIDERED, IN OUR DECISION IN THIS CASE MANY OTHER MANDATORY REQUIREMENTS THAT WERE CONTAINED IN THE MISSING PAGES IN ADDITION TO THE DELIVERY SCHEDULES. YOU ALSO QUESTION THE IMPORTANCE, FROM A BID EVALUATION STANDPOINT, OF THE F.O.B. DEFINITIONS THAT WERE INCLUDED IN SOME OF THE MISSING PAGES. HERE AGAIN THE MISSING PAGES INVOLVED NOT ONLY SET FORTH F.O.B. DEFINITIONS THEMSELVES BUT SUCH DEFINITIONS ENCOMPASSED CERTAIN DETAILED REQUIREMENTS WHICH THE GOVERNMENT WAS VITALLY INTERESTED IN HAVING COMPLIANCE THEREWITH. THUS, THE MATTER AS A WHOLE SIMPLY RESOLVES ITSELF INTO A CASE WHERE WE BELIEVE THAT ON THE BASIS OF THE PAGES SUBMITTED WITH YOUR BID YOU COULD HAVE ELECTED TO BE BOUND ONLY BY THE REQUIREMENTS SET FORTH ON SUCH PAGES AND THAT YOU COULD NOT HAVE BEEN OBLIGATED TO ALL OF THE TERMS AND CONDITIONS OF THE INVITATION BY THE ACCEPTANCE OF YOUR BID, AS SUBMITTED, WITHOUT FURTHER CLARIFICATION. THEREFORE, SINCE THE MISSING PROVISIONS GO TO THE SUBSTANCE OF THE BID, WE CONCLUDED THAT THE BID WAS NOT RESPONSIVE AND WAS PROPERLY REJECTED.

WITH RESPECT TO THE QUESTION RAISED BY YOU IN REGARD TO INVITATION NO. AMC/Z/-01-021-64-1111, IT WAS STATED IN OUR DECISION DATED JULY 17, 1964, THAT WE COULD NOT COMMENT ON THE MERITS OF THE REJECTION OF YOUR BID UNDER THIS INVITATION SINCE NO FACTS OR PERTINENT PAPERS WERE REPORTED TO US AT THAT TIME. NEITHER ARE SUCH FACTS OR PAPERS BEFORE US AT THIS TIME. IS OBVIOUS, HOWEVER, THAT SINCE THE DEPARTMENT OF THE ARMY DID NOT REQUEST A DECISION FROM US AT OR ABOUT THE SAME TIME THAT IT REQUESTED OUR DECISION UNDER INVITATION NO. AMC/Z/-01-021 64-1125, THE DEPARTMENT DID NOT CONSIDER ANY QUESTION THAT MIGHT HAVE BEEN PREVIOUSLY RAISED BY YOU UNDER INVITATION NO. AMC/Z/-01-021-64 1111 AS A COMPLETE PROTEST OF THE AWARD THAT WAS MADE UNDER THAT INVITATION. THE DEPARTMENT OF THE ARMY DID COMMENT IN ITS REPORT TO US UNDER INVITATION NO. AMC/Z/-01-021-64-1125, HOWEVER, THAT YOUR LOW BID WAS REJECTED UNDER INVITATION NO. AMC/Z/-01-021 -64-1111 ON SUBSTANTIALLY THE SAME GROUNDS AS THE REJECTION OF YOUR BID UNDER INVITATION NO. AMC/Z/-01-021-64-1125.

ACCORDINGLY, OUR DECISION DATED JULY 17, 1964, TO THE SECRETARY OF THE ARMY, IS AFFIRMED.