B-140105, SEP. 29, 1959

B-140105, SEP. 29, 1959

TO HERMES ELECTRONICS CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 3, 1959, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE ACTION OF THE DEPARTMENT OF THE ARMY IN REJECTING YOUR OFFER TO FURNISH CERTAIN MATERIALS TO THE WHITE SANDS MISSILE RANGE, NEW MEXICO.

AS EXAMINATION OF THE RECORD NOW BEFORE US DISCLOSES THAT INVITATION NO. ORD-29-040-59-177, DATED MAY 26, 1959, REQUESTING BIDS FOR CERTAIN ELECTRICAL EQUIPMENT, SPECIFICALLY PROVIDED IN BOLD FACED TYPE ON PAGE ONE THAT DELIVERY WAS TO BE "F.O.B. WHITE SANDS MISSILE RANGE, NEW XICO.' RESPONSE THERETO, YOUR COMPANY BY LETTER DATED JUNE 22, 1959, QUOTED A FIXED PRICE OF $78,500 FOR THE EQUIPMENT AS SPECIFIED, BUT SPECIFICALLY PROVIDED THAT "ALL PRICES QUOTED ARE F.O.B. CAMBRIDGE, MASSACHUSETTS.' YOUR REPRESENTATIVE WAS PRESENT AT THE BID OPENING, BUT DID NOT INDICATE THAT THE F.O.B. POINT SPECIFIED IN YOUR BID WAS IN ERROR. FURTHERMORE, IN YOUR LETTER OF JUNE 25, 1959--- ONE DAY AFTER THE SCHEDULED BID OPENING--- TO THE PURCHASING AND CONTRACTING DIVISION, FURNISHING THE UNIT AND TOTAL PRICES TO BE INSERTED ON THE BID FORM, YOU STATED THAT ALL OTHER CONDITIONS OF THE PROPOSAL IN YOUR LETTER OF JUNE 22, 1959, "REMAIN THE SAME.'

IN THE LIGHT OF THE ABOVE, THE CONTRACTING OFFICER CONCLUDED THAT YOUR BID WAS NONRESPONSIVE AND, ACCORDINGLY, AWARDED THE CONTRACT TO THE SECOND LOW BIDDER ON THE PREMISE THAT SUCH ACTION WAS IN ACCORD WITH GOVERNING LAWS AND REGULATIONS AND IN THE BEST INTEREST OF THE GOVERNMENT'S COMPETITIVE BID SYSTEM. THIS CONCLUSION AND ACTION WAS CONCURRED IN BY THE ASSISTANT CHIEF OF ORDNANCE.

WE CONSISTENTLY HAVE HELD THAT A DEVIATION FROM ADVERTISED REQUIREMENTS IS MATERIAL IF IT AFFECTS EITHER THE PRICE, QUANTITY OR QUALITY OF THE ARTICLES OFFERED. 30 COMP. GEN. 179; 31 ID. 660; 33 ID. 421. WE LIKEWISE HAVE HELD THAT THE WITHDRAWAL OR WAIVER BY A BIDDER OF MATERIAL DEVIATIONS FROM ADVERTISED SPECIFICATIONS, AFTER THE OPENING OF BIDS, IS NOT PERMISSIBLE AS SUCH ACTION WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. THE INCLUSION IN YOUR BID -- AS CONFIRMED IN YOUR LETTER OF JUNE 25, 1959--- OF THE STIPULATION IN QUESTION OBVIOUSLY WOULD HAVE THE EFFECT OF VARYING YOUR OBLIGATION FROM THAT CONTEMPLATED BY THE INVITATION WITH RESPECT TO DELIVERY OF THE MATERIALS TO THE WHITE SANDS MISSILE RANGE, NEW MEXICO. ONCE YOUR BID WAS ACCEPTED, AS SO QUALIFIED, YOU COULD SATISFY THE DELIVERY REQUIREMENTS BY MERELY GIVING THE MATERIAL TO A COMMON CARRIER IN CAMBRIDGE, THUS RELIEVING YOUR COMPANY OF ANY FURTHER LIABILITY FOR LOSS OR DAMAGE EN ROUTE, AND AT THE SAME TIME PLACE UPON THE GOVERNMENT, AMONG OTHER THINGS, THE BURDEN AND EXPENSE OF ALL ACTIVITY INCIDENT TO THE DETERMINATION OF RESPONSIBILITY FOR SUCH POTENTIAL LOSS OR DAMAGE IN TRANSIT. CONSIDERING THESE AND OTHER FACTORS, IT BECOMES APPARENT THAT THE CHANGES IN THE CONTRACT TERMS PROPOSED BY YOUR COMPANY IN THE PRESENT MATTER COULD WELL AFFECT THE CONTRACT PRICE.

ACCORDINGLY, WE PERCEIVE NO LEGAL BASIS ON WHICH THIS OFFICE MAY QUESTION THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.