B-121831, FEBRUARY 2, 1955, 34 COMP. GEN. 364

B-121831, FEBRUARY 2, 1955, 34 COMP. GEN. 364

BIDS - ACCEPTANCE OR REJECTION - AWARD TO HIGHER BIDDER BASED ON EARLY DELIVERY LOW BID WHICH OFFERED AN ALTERNATE DELIVERY SCHEDULE IN RESPONSE TO AN INVITATION SPECIFYING DEFINITE DELIVERY DATES MAY NOT BE ACCEPTED WHERE OTHER BIDS MEET THE ADVERTISED SPECIFICATIONS.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SMEAD MANUFACTURING COMPANY, FEBRUARY 2, 1955:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18, 1954, PROTESTING THE AWARD BY THE PUBLICATIONS BRANCH, ADJUTANT GENERAL'S OFFICE, DEPARTMENT OF THE ARMY, OF A CONTRACT FOR FURNISHING A QUANTITY OF " PERSONNEL RECORDS JACKET, UNITED STATES ARMY," DA FORM 201, AT A PRICE HIGHER THAN THAT BID BY YOU, UNDER INVITATION NO. AG-49-037-55-16.

A REPORT ON THE MATTER HAS BEEN RECEIVED FROM THE DEPARTMENT OF THE ARMY, FROM WHICH IT APPEARS THAT THE INVITATION FOR BIDS, ISSUED OCTOBER 1, 1954, FOR OPENING ON OCTOBER 12, CONTAINED A DETAILED DELIVERY SCHEDULE. WHILE THE BID FORM INCLUDED A PROVISION FOR THE BIDDERS TO INSERT THEIR BEST POSSIBLE DELIVERY DATES IF THEY WERE UNABLE TO QUOTE ON THE SCHEDULE SPECIFIED, THE IMPORTANCE AND MANDATORY NATURE OF THE DELIVERY DATES WAS EMPHASIZED BY THE STATEMENT: " DELIVERIES MUST BE MADE AT THE DESTINATIONS IN ACCORDANCE WITH THE FOLLOWING SCHEDULE.' THREE BIDS WERE RECEIVED IN THE AGGREGATE NET AMOUNTS OF $182,877.19, $188,607.67, AND $315,663.75. YOUR BID WAS THE LOWEST IN PRICE, BUT YOUR DELIVERY SCHEDULE DID NOT CONFORM WITH THE REQUIREMENTS OF THE INVITATION WHEREAS BOTH OTHER BIDS DID.

IN PREPARING SPECIFICATIONS, INCLUDING THE STATING OF DELIVERY DATES, FOR PROCUREMENT OF SUPPLIES, IT IS THE DUTY OF THE PROCURING OFFICIALS TO SET FORTH THE ACTUAL NEEDS OF THE GOVERNMENT. IN THIS INSTANCE IT IS STATED THAT THE DELIVERY DATES WERE FIXED ON THE BASIS OF ACTUAL NEEDS IN CONNECTION WITH A COMPLETE REVISION OF THE ENTIRE PERSONNEL RECORD SYSTEM OF THE ARMY. IF NO BIDDER HAD UNDERTAKEN TO MEET THE ADVERTISED SCHEDULE, IT WOULD HAVE BEEN PERMISSIBLE TO ACCEPT THE BEST AVAILABLE SUBSTITUTE, BUT WHERE ANY BIDDER OFFERED TO MEET THE SPECIFICATIONS, NO OTHER BID COULD PROPERLY HAVE BEEN ACCEPTED UNDER THE INVITATION. ALTHOUGH IT WOULD HAVE BEEN PROPER, IF DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT, TO REJECT ALL BIDS AND EITHER READVERTISE ON A DIFFERENT SCHEDULE OR NEGOTIATE A CONTRACT ON THE TERMS DEEMED MOST ADVANTAGEOUS UNDER THE AUTHORITY OF SECTION 2 (C) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 21, WHETHER THE POSSIBLE FINANCIAL SAVING FROM THE LATTER COURSE WOULD HAVE BEEN SUFFICIENTLY IN THE INTEREST OF THE GOVERNMENT TO OFFSET THE EFFECTS OF LATER DELIVERY WAS A QUESTION WITHIN THE PROPER SCOPE OF ADMINISTRATIVE DISCRETION, AND THE DECISION TO AWARD A CONTRACT UNDER THE INVITATION TO THE LOWEST BIDDER MEETING THE REQUESTED DELIVERY SCHEDULE DOES NOT APPEAR TO HAVE BEEN IN ANY WAY IMPROPER.

IT IS NOTED THAT BY A LETTER SUBSEQUENT TO THE BID OPENING YOU OFFERED A SOMEWHAT BETTER SCHEDULE THAN THAT SPECIFIED IN YOUR BID, BUT EVEN IF THIS OFFER HAD BEEN TO MEET THE SCHEDULE INCLUDED IN THE INVITATION IT WOULD NOT HAVE BEEN PROPER TO CONSIDER IT FOR AWARD UNDER THE INVITATION, SINCE MATERIAL AMENDMENT OF A BID AFTER OPENING IS NEVER PERMISSIBLE. 17 COMP. GEN. 54; 30 ID. 179.

FOR THE REASONS STATED, YOUR PROTEST MUST BE REJECTED. HOWEVER, ATTENTION IS INVITED TO THE ENCLOSED COPY OF LETTER OF TODAY TO THE SECRETARY OF THE ARMY.