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B-154691, NOV. 24, 1964

B-154691 Nov 24, 1964
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THERE WAS SOME DOUBT AS TO SOUTHLAND'S ABILITY TO PERFORM UNDER THE CIRCUMSTANCES THEN PRESENT AT THE CONTRACTOR'S PLANT. IT IS YOUR POSITION THAT THIS WAIVER AMOUNTED TO A MODIFICATION OF THE INVITATION. THE RECORD BEFORE US SHOWS THAT THE CONTRACTING OFFICER DETERMINED SOUTHLAND TO BE ELIGIBLE FOR AWARD BASED ON THE SECOND PREAWARD SURVEY REPORT WHICH CONCLUDED THAT THE LABOR SUPPLY WAS ADEQUATE. THE CONTRACTING OFFICER'S AFFIRMATIVE CONSIDERATION OF SOUTHLAND'S RESPONSIBILITY WAS NOT BASED ON SOUTHLAND'S ASSUMPTION OF THE RISK OF DELAY. IT REMAINS OUR VIEW THAT THE DETERMINATION OF RESPONSIBILITY ON THAT BASIS WAS VALID AND PROPER. SINCE SOUTHLAND WAS THEN IN LINE FOR THE AWARD.

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B-154691, NOV. 24, 1964

TO SOCIETY BRAND HAT COMPANY:

WE REFER TO YOUR LETTER DATED OCTOBER 31, 1964, ASKING REVIEW OF OUR DECISION OF OCTOBER 21, 1964, WHEREIN WE DENIED YOUR PROTEST IN CONNECTION WITH AN AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 1 64-1195.

YOU SUGGEST THAT SINCE THE CONTRACTING OFFICER REQUESTED THAT SOUTHLAND SIGN AN AGREEMENT TO ASSUME THE RISK OF DELAY OCCASIONED BY THE LABOR DIFFICULTY, THERE WAS SOME DOUBT AS TO SOUTHLAND'S ABILITY TO PERFORM UNDER THE CIRCUMSTANCES THEN PRESENT AT THE CONTRACTOR'S PLANT. IT IS YOUR POSITION THAT THIS WAIVER AMOUNTED TO A MODIFICATION OF THE INVITATION.

THE RECORD BEFORE US SHOWS THAT THE CONTRACTING OFFICER DETERMINED SOUTHLAND TO BE ELIGIBLE FOR AWARD BASED ON THE SECOND PREAWARD SURVEY REPORT WHICH CONCLUDED THAT THE LABOR SUPPLY WAS ADEQUATE. THE CONTRACTING OFFICER'S AFFIRMATIVE CONSIDERATION OF SOUTHLAND'S RESPONSIBILITY WAS NOT BASED ON SOUTHLAND'S ASSUMPTION OF THE RISK OF DELAY. IT REMAINS OUR VIEW THAT THE DETERMINATION OF RESPONSIBILITY ON THAT BASIS WAS VALID AND PROPER. SINCE SOUTHLAND WAS THEN IN LINE FOR THE AWARD, ITS OFFER TO ASSUME LIABILITY COULD BE ACCEPTED SINCE THE LOW RESPONSIBLE AND RESPONSIVE BIDDER MAY VOLUNTARILY INCREASE THE CONSIDERATION FLOWING TO THE GOVERNMENT AFTER BID OPENING. SEE ALECK LEITMAN V. UNITED STATES, (1945) 104, CT.CL. 324.

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