B-156811, JUL. 8, 1965

B-156811, JUL. 8, 1965

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER DATED JUNE 14, 1965, FILE REFERENCE R1.1 FROM THE ACTING ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, FURNISHING AN ADMINISTRATIVE REPORT ON THE PROTEST OF FARMERS TOOL AND SUPPLY CORPORATION (FTS) AGAINST AWARD OF CONTRACT TO GUENTHER MFG. CO., INC. (GUENTHER), UNDER INVITATION FOR BIDS NO. 174 97-65B, ISSUED ON APRIL 7, 1965, BY THE UNITED STATES NAVAL PROPELLANT PLANT, INDIAN HEAD, MARYLAND.

THE SUBJECT INVITATION REQUESTED BIDS ON A QUANTITY OF 12,092 WING AND ROLLERON ASSEMBLIES, MK 1 MOD O. THE "TIME OF DELIVERY" CLAUSE ON PAGE 4 OF THE INVITATION PROVIDES AS FOLLOWS:

CHART

"4.1 - TIME OF DELIVERY

"THE GOVERNMENT DESIRES THAT DELIVERY BE MADE IN THE QUANTITIES AND WITHIN THE NUMBER OF DAYS STATED BELOW:

CHART

ITEM QUANTITY DELIVERY DESIRED FIRST ARTICLE REQUIREMENT 20 EACH 60 DAYS AFTER DATE OF

CONTRACT

1 200 EACH PER WEEK BEGINNING 1

OCTOBER 1965

1 200 EACH PER WEEK THEREAFTER

UNTIL COMPLETION OF

CONTRACT

"IF THE BIDDER IS UNABLE TO MEET THE DESIRED DELIVERY SCHEDULE, IT MAY, WITHOUT PREJUDICE IN THE EVALUATION OF ITS BID, OFFER AN ALTERNATE TIME FOR DELIVERY FOR EACH ITEM BID IN THE SPACE PROVIDED BELOW, ENTITLED "BIDDER'S PROPOSED DELIVERY SCHEDULE," PROVIDED THAT ANY BID OFFERING DELIVERY BEYOND THE MAXIMUM ACCEPTABLE TIME SET FORTH BELOW SHALL BE CONSIDERED NONRESPONSIVE TO THE INVITATION AND WILL BE REJECTED.

"MAXIMUM ACCEPTABLE DELIVERY SCHEDULE:

CHART

ITEM QUANTITY DELIVERY REQUIRED FIRST ARTICLE REQUIREMENT

20 EACH 75 DAYS AFTER DATE OF

CONTRACT

1 200 EACH PER WEEK BEGINNING 8 OCTOBER

1965

1 200 EACH PER WEEK THEREAFTER UNTIL

COMPLETION OF CONTRACT

"ANY BID OFFERING AN INDEFINITE TIME FOR DELIVERY OR OFFERING DELIVERY CONTINGENT UPON THE AVAILABILITY OR RECEIPT OF MATERIAL SHALL BE REJECTED. UNLESS THE BIDDER OFFERS A DIFFERENT DELIVERY SCHEDULE, THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE STATED ABOVE WILL APPLY.

"BIDDER'S PROPOSED DELIVERY SCHEDULE

(TO BE COMPLETED BY BIDDER)

"THE ARTICLES TO BE FURNISHED SHALL BE DELIVERED IN THE QUANTITIES AND WITHIN THE NUMBER OF DAYS STATED BELOW:

CHART

ITEM QUANTITY DELIVERY DATE FIRST ARTICLE REQUIREMENT

20 EACH ------ DAYS AFTER DATE OF

CONTRACT 1 200 EACH PER WEEK BEGINNING 8

OCTOBER 1965

1 200 EACH PER WEEK THEREAFTER UNTIL

COMPLETION OF CONTRACT"

IT IS REPORTED THAT TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. GUENTHER, THE LOW BIDDER, BID ON ONLY 6,046 UNITS, OR ONE HALF OF THE REQUIRED QUANTITY. IN SO DOING, GUENTHER, IN INK, STRUCK OUT THE "200 EACH PER WEEK" PROVISIONS RELATING TO QUANTITY IN THE MAXIMUM ACCEPTABLE DELIVERY SCHEDULE AND SUBSTITUTED THE FIGURE "100" AS THE QUANTITY TO BE FURNISHED PER WEEK COMMENCING OCTOBER 8, 1965. THE ONLY OTHER BIDDER, FTS, BID ON THE TOTAL QUANTITY OF 12,092 AND OFFERED DELIVERIES IN ACCORDANCE WITH THE INVITATION DELIVERY SCHEDULE. FTS DID NOT LIMIT ITS BID TO RECEIVING AWARD OF "ALL OR NONE" OF THE QUANTITY BID UPON.

AS POINTED OUT IN THE ADMINISTRATIVE REPORT, ARTICLE 8 (C) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDES:

"/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID, UNLESS THE BIDDER QUALIFIES HIS BID BY SPECIFIC LIMITATIONS. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, BIDS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED; AND THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY BID UPON AT THE UNIT PRICES OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN HIS BID.'

WE AGREE WITH THE POSITION EXPRESSED IN THE REPORT THAT UNDER THE ABOVE- CITED ARTICLE 8 (C) GUENTHER WAS PERMITTED TO BID UPON LESS THAN THE TOTAL QUANTITY CALLED FOR UNDER ITEM 1. HOWEVER, THE CRUX OF THE MATTER BEFORE US FOR DECISION IS THE CONTENTION OF FTS IN ITS PROTEST THAT GUENTHER'S BID IS NONRESPONSIVE TO THE INVITATION DELIVERY SCHEDULE BECAUSE IT OFFERED 100 EACH OF ITEM 1 PER WEEK BEGINNING OCTOBER 8, 1965, IN LIEU OF 200 EACH WEEK.

IN ANSWER TO THIS CONTENTION, IT IS ADMINISTRATIVELY REPORTED THAT GUENTHER BID ON ONLY ONE HALF OF THE TOTAL REQUIREMENT, AND IT OFFERED TO DELIVER ONE HALF OF THE TOTAL REQUIREMENT IN ACCORDANCE WITH THE GOVERNMENT'S MAXIMUM ACCEPTABLE DELIVERY SCHEDULE. IT IS THEN STATED THAT SINCE THE INVITATION MADE NO PROVISIONS REGARDING A DELIVERY SCHEDULE FOR THE QUANTITIES TO BE DELIVERED IN THE EVENT THE BIDDER EXERCISED ITS PREROGATIVE TO BID ON LESS THAN THE QUANTITY STATED IN THE INVITATION, IT IS CONSIDERED REASONABLE FOR A BIDDER TO PRORATE ON AN EQUAL BASIS THE QUANTITY IT BID UPON USING THE INVITATION DELIVERY SCHEDULE SO LONG AS IT REMAINS WITHIN THE MAXIMUM ACCEPTABLE DELIVERY SCHEDULE.

WE DO NOT AGREE WITH THIS REASONING. THE SITUATION INVOLVED PRESENTS A SOMEWHAT NOVEL ASPECT IN THAT GUENTHER, IN THE PREPARATION OF ITS BID, HAS SET UPON THE VARIABLE OF QUANTITY WITHIN A TIME PERIOD AS THE FACTOR TO BE ALTERED TO FIT HIS SCHEDULE OF PRODUCTION. HE HAS DONE THIS BY STRIKING THROUGH, IN INK, THE 200 QUANTITY DESIRED BY THE GOVERNMENT, AND SUBSTITUTING THE 100 QUANTITY APPARENTLY ON THE BASIS THAT SINCE HE WAS ONLY BIDDING ON HALF THE PROCUREMENT, HE WAS ENTITLED TO HALVE THE QUANTITY INVOLVED IN THE DELIVERY INCREMENTS.

IT IS A CARDINAL RULE OF PROCUREMENT LAW THAT A CONTRACT AWARDED TO A SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS. WHERE ONE BIDDER RESERVES RIGHTS AND IMMUNITIES FROM RESPONSIBILITY NOT EXTENDED TO ALL BIDDERS BY THE ADVERTISED CONDITIONS AND SPECIFICATIONS, A CONTRACT AWARDED UPON THE BASIS OF THE CONDITIONAL BID WOULD NOT BE THE CONTRACT OFFERED TO ALL PROSPECTIVE BIDDERS. INFORMALITIES WHICH PROPERLY MAY BE WAIVED ARE THOSE THAT DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, BUT MATERIAL CONDITIONS IMPOSED BY A BIDDER MAY NOT BE WAIVED AS AN INFORMALITY OR MINOR IRREGULARITY. SEE 20 COMP. GEN. 4; 37 ID. 110. WE HAVE REPEATEDLY HELD THAT DEVIATIONS IN A BID FROM THE ADVERTISED PROVISION RELATIVE TO DELIVERY, AS WELL AS OTHER FACTORS AFFECTING PRICE, QUANTITY OR QUALITY, GO TO THE SUBSTANCE OF THE BID SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS AND MAY NOT BE WAIVED AS MERE INFORMALITIES. 36 COMP. GEN. 181; 38 ID. 98; ID. 612; ID. 876. WHILE GUENTHER DID NOT ADD TO THE NUMBER OF DAYS ALLOTTED TO EACH DELIVERY INCREMENT INVOLVED, HE DID ALTER THE MAXIMUM DELIVERY SCHEDULE BY HALVING THE QUANTITY STATED FOR DELIVERY, AND BY SO DOING, IT IS OUR VIEW THAT HE RENDERED HIS BID NONRESPONSIVE. IN THIS CONNECTION, WE HAVE HELD THAT A CONTRACTING OFFICER HAS NO AUTHORITY TO MAKE AN AWARD TO A LOWER BIDDER WHO DID NOT AGREE IN THIS BID TO MEET THE DELIVERY REQUIREMENTS SPECIFIED IN THE INVITATION. 36 COMP. GEN. 181.

IN VIEW OF THE FOREGOING CIRCUMSTANCES, THE BID OF GUENTHER SHOULD BE REJECTED AS NOT BEING RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION.

THE ENCLOSURES FORWARDED WITH THE LETTER OF JUNE 14, 1965, ARE RETURNED HEREWITH.