B-155941, MAY 13, 1965

B-155941, MAY 13, 1965

TO ACE ELECTRONICS ASSOCIATES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 18, 1965, PROTESTING AWARD OF A CONTRACT TO ANY OTHER CONCERN UNDER INVITATION FOR BIDS NO. 163/B431-1- 879, ISSUED BY THE U.S. NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA.

UNDER THE IFB IN QUESTION BIDS WERE REQUESTED FOR FURNISHING 190 VARIABLE LINEAR RESISTORS WHICH WERE REQUIRED TO BE DELIVERED WITHIN 60 CALENDAR DAYS AFTER DATE OF AWARD. YOU WERE THE LOW BIDDER AT A UNIT PRICE OF $9.90, BUT THE CONTRACTING OFFICER DETERMINED THAT YOUR BID TOOK EXCEPTION TO THE DELIVERY REQUIREMENT OF THE INVITATION AND WAS THEREFORE NONRESPONSIVE AND NOT FOR CONSIDERATION.

THE INVITATION CONTAINED THE FOLLOWING PROVISIONS:

"DELIVERY SCHEDULE:

DELIVERY REQUIRED-WITHIN 60 CALENDAR DAYS AFTER DATE OF AWARD.

"TIME OF DELIVERY--- THE GOVERNMENT REQUIRES THAT DELIVERY BE MADE IN THE QUANTITIES AND WITHIN THE NUMBER OF DAYS AFTER DATE OF CONTRACT AS STATED ELSEWHERE IN THIS SCHEDULE, ENTITLED "DELIVERY SCHEDULE.' BIDS OFFERING DELIVERY OF EACH QUANTITY WITHIN SUCH DELIVERY SCHEDULE WILL BE EVALUATED EQUALLY AS REGARDS TIME OF DELIVERY. BIDS OFFERING DELIVERY OF A QUANTITY UNDER SUCH TERMS OR CONDITIONS THAT DELIVERY WILL NOT THEREBY FALL WITHIN SUCH DELIVERY SCHEDULE WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED. WHERE A BIDDER OFFERS AN EARLIER DELIVERY TIME THAN THAT CALLED FOR UNDER SUCH DELIVERY SCHEDULE, THE GOVERNMENT RESERVES THE RIGHT TO AWARD EITHER IN ACCORDANCE WITH THE REQUIRED SCHEDULE OR IN ACCORDANCE WITH THE DELIVERY TIME OFFERED BY THE BIDDER. IF THE BIDDER OFFERS NO OTHER DELIVERY TIME, THE DELIVERY SCHEDULE STATED ELSEWHERE IN THIS SCHEDULE SHALL APPLY.

CHART

"BIDDER'S PROPOSED DELIVERY SCHEDULE (TO BE COMPLETED

BY BIDDER) DELIVERY

DATE

ITEM QUANTITY OR SCHEDULE ------------- --- ------------------- ---------

"ATTENTION IS DIRECTED TO PARAGRAPH 8/D) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, WHICH PROVIDES THAT A WRITTEN AWARD MAILED OR OTHERWISE FURNISHED TO THE SUCCESSFUL BIDDER RESULTS IN A BINDING CONTRACT. ANY AWARD HEREUNDER, OR A PRELIMINARY NOTICE THEREOF, WILL BE MAILED OR OTHERWISE FURNISHED TO THE BIDDER THE DAY THE AWARD IS DATED. THEREFORE, IN COMPUTING THE TIME AVAILABLE FOR PERFORMANCE, THE BIDDER SHOULD TAKE INTO CONSIDERATION THE TIME REQUIRED FOR THE NOTICE OF AWARD TO ARRIVE THROUGH THE ORDINARY MAILS. HOWEVER, A BID OFFERING DELIVERY BASED ON DATE OF RECEIPT BY THE CONTRACTOR OF THE CONTRACT OR NOTICE OF AWARD (OTHER THAN THE CONTRACT DATE) WILL BE EVALUATED BY ADDING THE MAXIMUM NUMBER OF DAYS NORMALLY REQUIRED FOR DELIVERY OF THE AWARD THROUGH THE ORDINARY MAILS. IF, AS SO COMPUTED, THE DELIVERY DATE OFFERED IS LATER THAN THE DELIVERY DATE REQUIRED IN THE INVITATION, THE BID WILL BE CONSIDERED AS NON-RESPONSIVE AND REJECTED.'

UNDER "DELIVERY DATE OR SCHEDULE" YOU INSERTED "60 DAYS, A.R.O., " THE SIGNIFICANCE OF WHICH YOU CONFIRMED AS 60 DAYS "AFTER RECEIPT OF ORDER.' SINCE YOUR BID HAD TO BE EVALUATED "BY ADDING THE MAXIMUM NUMBER OF DAYS NORMALLY REQUIRED FOR DELIVERY OF THE AWARD THROUGH THE ORDINARY LS," AND SINCE, AS SO COMPUTED, THE DELIVERY DATE OFFERED BY YOU WAS LATER THAN THE DELIVERY DATE REQUIRED IN THE INVITATION, YOUR BID WAS CONSIDERED NONRESPONSIVE AND WAS REJECTED.

IN PROTESTING THE ABOVE ACTION YOU POINT OUT THAT OFFERING TO MAKE DELIVERY WITHIN A CERTAIN PERIOD "AFTER RECEIPT OF ORDER" IS COMMON COMMERCIAL PRACTICE, AND SINCE DELIVERY OF A NOTICE OF AWARD BY MAIL WOULD TAKE FOUR DAYS AT MOST, THE GOVERNMENT COULD SAVE APPROXIMATELY $1,000 BY ACCEPTING 64 DAYS DELIVERY INSTEAD OF 60 DAYS. YOU CONTEND FURTHER THAT WHERE THE POSSIBILITY OF A SUBSTANTIAL SAVING EXISTS AND ONLY A MINOR QUESTION REMAINS TO BE ANSWERED, THE BEST INTERESTS OF THE GOVERNMENT ARE TO BE SERVED BY ASKING THE BIDDER TO CLARIFY HIS BID, AND THAT SIMPLIFICATION OF THE LANGUAGE USED AND CONFORMANCE TO INDUSTRY PRACTICE WOULD HAVE ELIMINATED THE PROBLEM ENTIRELY.

A DEVIATION FROM THE ADVERTISED SPECIFICATIONS MAY BE WAIVED ONLY IF IT DOES NOT GO TO THE SUBSTANCE OF THE BID OR WORK AN INJUSTICE TO OTHER BIDDERS. TAKING EXCEPTION TO THE DELIVERY PROVISIONS DOES GO TO THE SUBSTANCE OF THE BID, AND TO PERMIT A BIDDER TO EXTEND THE MAXIMUM DELIVERY PERIOD ALLOWED BY THE INVITATION WOULD BE UNFAIR TO OTHER BIDDERS. SEE 34 COMP. GEN. 24.

THE LANGUAGE OF THE INVITATION WAS QUITE CLEAR AND YOUR BID DID NOT REQUIRE CLARIFICATION, OTHER THAN TO VERIFY THE MEANING OF "A.R.O., " WHICH RESULTED IN YOUR BID BEING DECLARED NONRESPONSIVE. SECTION 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION AUTHORIZES CORRECTION OR WAIVER OF MINOR INFORMALITIES OR IRREGULARITIES, BUT SPECIFICALLY EXCLUDES ANY EXCEPTION WHICH WOULD HAVE ANY EFFECT ON QUALITY, QUANTITY, OR "DELIVERY" OF THE SUPPLIES. SINCE YOUR BID TAKES EXCEPTION TO THE "DELIVERY" PROVISIONS OF THE INVITATION, THE IRREGULARITY MAY NOT BE CONSIDERED A MINOR ONE WHICH MAY BE WAIVED.

FOR THE REASONS STATED WE CONCLUDE THAT THE CONTRACTING OFFICER WAS JUSTIFIED IN REJECTING YOUR BID AND MAKING AWARD TO THE LOWEST RESPONSIVE BIDDER. YOUR PROTEST MUST THEREFORE BE DENIED.