B-147980, APR. 9, 1962

B-147980, APR. 9, 1962

TO THE SECRETARY OF THE NAVY:

THIS REFERS TO THE PROTEST OF RMF, INC., AND CONTROL METHODS CORPORATION, UNDER INVITATION FOR BIDS NO. 600-352-62, WHICH MATTER IS THE SUBJECT OF A REPORT FROM YOUR DEPARTMENT OF FEBRUARY 12, 1962 (REF. R1.1), AND A SUPPLEMENTAL REPORT FROM YOUR DEPARTMENT OF MARCH 20, 1962 (REF. PL.2 (MMB:MT) ).

THE SUBJECT INVITATION WAS ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON 25, D.C., ON OCTOBER 11, 1961. BIDS WERE REQUESTED ON ITEM NO. 1, 720 EJECTOR BOMB RACKS, AERO 20A-1; ITEM NO. 2, 72 EJECTOR BOMB RACKS, AERO 20A-1; ITEM NO. 3, 1 SET OF ENGINEERING DRAWINGS AND MICROFILM; ITEM NO. 4, REVISIONS TO PUBLICATIONS; AND ITEM NO. 5, SPARE PARTS FOR ITEMS NOS. 1 AND 2. THE INVITATION PROVIDES THAT AWARD WILL BE MADE TO A SINGLE BIDDER.

AMENDMENT NO. 2 TO THE INVITATION ISSUED ON NOVEMBER 17, 1961, ADDED AN OPTION AS FOLLOWS:

"OPTION FOR INCREASED QUANTITIES:

THE GOVERNMENT RESERVES THE RIGHT TO INCREASE THE QUANTITY IN THE SCHEDULE BY ADDING THE FOLLOWING ITEMS EITHER AT THE TIME OF MAKING AWARD OR WITHIN 90 DAYS THEREAFTER, IN ACCORDANCE WITH THE CLAUSE HEREINAFTER ENTITLED "OPTION FOR INCREASED QUANTITIES: "

TABLE "ITEM QUANTITY UNIT UNIT PRICE AMOUNT 6. EJECTOR BOMB RACK, AERO 20A-1 120 EACH 7. EJECTOR BOMB RACK, AERO 20A-1 12

"OPTION FOR INCREASED QUANTITY:

"THE GOVERNMENT MAY INCREASE THE QUANTITY OF SUPPLIES CALLED FOR HEREIN BY REQUIRING THE DELIVERY OF THE NUMBERED LINE ITEM IDENTIFIED IN THE SCHEDULE AS AN OPTION ITEM IN THE QUANTITY AND AT THE PRICE SET FORTH THEREIN. THE CONTRACTING OFFICER MAY EXERCISE THIS OPTION, AT ANY TIME WITHIN THE PERIOD SPECIFIED IN THE SCHEDULE, BY GIVING WRITTEN NOTICE TO THE CONTRACTOR. DELIVERY OF THE ITEMS ADDED BY THE EXERCISE OF THIS OPTION SHALL CONTINUE IMMEDIATELY AFTER, AND AT THE SAME RATE AS, DELIVERY OF LIKE ITEMS CALLED FOR UNDER THIS CONTRACT UNLESS THE PARTIES OTHERWISE AGREE.'

BIDS WERE OPENED ON DECEMBER 13, 1961, AND THE 2 LOWEST EVALUATED BIDS ARE INDICATED AS OLLOWS:

CHART

TOTAL "COMPANY ITEM 1 ITEM 2 ITEM 3 ITEM 6 ITEM 7 ITEMS 1-3 CONTROL METHODS CORPORATION $1,095.83 $1,103.01 $5,350.00 $873,764.32 RMF INC.1,102.00 1,102.00 5,876.00 1,090.00 1,090.00 878,660.00"

IT IS NOTED THAT WHILE CONTROL METHODS HAD SIGNED AMENDMENT NO. 2, IT HAD NOT INSERTED A PRICE FOR THE OPTION ITEMS NOS. 6 AND 7 CONTAINED THEREIN.

BY LETTER DATED DECEMBER 16, 1961, CONTROL METHODS NOTIFIED THE PURCHASING OFFICE WITH REFERENCE TO THE SUBJECT INVITATION, THAT THE OMISSION OF PRICES IN THE AMENDMENT WAS DUE TO A DISRUPTION OF OFFICE ROUTINE CAUSED BY AN INJURY TO THE PRESIDENT OF THE FIRM. UNIT PRICES OF $1,067.56 ON ITEM NO. 6, AND $1,074.74 ON ITEM NO. 7 WERE SUBMITTED IN THE LETTER. THE BIDDER REQUESTED THAT THE LETTER BE TREATED AS A LATE BID MODIFICATION PROPER FOR CONSIDERATION. THE BIDS SUBMITTED ON ITEMS 6 AND 7 VARIED IN PRICE IN ACCORDANCE WITH DIFFERENCES IN PACKAGING REQUIREMENTS WHICH WERE ALSO APPLICABLE TO ITEMS 1 AND 2, RESPECTIVELY.

BY LETTER OF MARCH 20, 1962, THE NAVY PURCHASING OFFICE, WASHINGTON, D.C. (THE CONTRACTING OFFICE), ADVISED US THAT IN ADDITION TO THE BASIC QUANTITIES, THE OPTION QUANTITIES TOTALING 132 RACKS UNDER ITEMS 6 AND 7 ARE URGENTLY NEEDED. THEREFORE, IT IS THE ADMINISTRATIVE INTENTION TO MAKE AN AWARD WHICH WILL INCLUDE THE OPTION QUANTITY AS WELL AS THE BASIC QUANTITY. IT IS THE CONTRACTING OFFICER'S OPINION THAT TO PROCURE THE OPTIONAL QUANTITY OF 132 SEPARATELY BY FORMAL ADVERTISING WOULD UNDULY DELAY THE RECEIPT OF NEEDED ITEMS; THAT IT MIGHT RESULT IN HIGHER PRICES BECAUSE OF THE SMALLER QUANTITY; AND THAT IT WOULD RESULT IN INCREASED ADMINISTRATIVE, INSPECTION, CONTRACT ADMINISTRATION AND PREPRODUCTION COSTS.

FOR THE FOREGOING REASONS THE CONTRACTING OFFICE PROPOSES TO MAKE AWARD TO RMF FOR THE 924 UNITS NEEDED. RMF IS THE LOW BIDDER ON THIS QUANTITY UNLESS IT CAN BE CONSIDERED THAT CONTROL METHODS SUBMITTED A TIMELY AND RESPONSIVE BID ON ITEMS 6 AND 7.

IT IS CONTENDED THAT THE PRICES QUOTED BY CONTROL METHODS CORPORATION ON ITEMS 6 AND 7 IN ITS LETTER OF DECEMBER 16, 1961 (AFTER THE DECEMBER 13 BID OPENING), MAY BE CONSIDERED AS A MODIFICATION TO ITS BID FOR CONSIDERATION UNDER THE CLAUSE CONTAINED ON PAGE 13 OF THE INVITATION HEADED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS.' THAT CLAUSE READS AS FOLLOWS:

"BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF THE BIDS WILL NOT BE CONSIDERED, UNLESS THEY ARE RECEIVED BEFORE AWARD IS MADE AND (I) ARE SUBMITTED BY MAIL (OR BY TELEGRAPH IF AUTHORIZED), AND (II) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (A) DELAY IN THE MAILS (OR BY THE TELEGRAPH COMPANY IF TELEGRAPHIC BIDS ARE AUTHORIZED) FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (B) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. HOWEVER, A MODIFICATION WHICH IS RECEIVED FROM AN OTHERWISE SUCCESSFUL BIDDER AND WHICH MAKES THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.'

SINCE THE LETTER WAS PREPARED THREE DAYS AFTER THE BID OPENING, IT IS CLEAR THAT LATE RECEIPT WAS NOT DUE SOLEY TO EITHER DELAY IN THE MAILS OF GOVERNMENT MISHANDLING. NOR DOES THE LAST SENTENCE OF THE CLAUSE APPLY HERE SINCE WE DO NOT HAVE THE CASE OF A MODIFICATION RECEIVED FROM A SUCCESSFUL BIDDER. THE LETTER OF DECEMBER 16 CONSTITUTED AN ATTEMPT BY THE BIDDER TO QUALIFY FOR THE AWARD BY THE SUBMISSION OF A BID AFTER THE BID OPENING ON ITEMS NOT PREVIOUSLY BID ON.

YOU ARE ADVISED THAT THE BID OF CONTROL METHODS CANNOT BE CONSIDERED FOR AWARD OF THE NEEDED QUANTITY OF 924 UNITS, AND IT IS OUR VIEW THAT AWARD PROPERLY MAY BE MADE TO THE LOWEST RESPONSIBLE BIDDER ON THAT QUANTITY. CF. B-143404, SEPTEMBER 15, 1960.