B-162355, MAR. 8, 1968

B-162355, MAR. 8, 1968

BIDS - LATE DECISION DENYING PROTEST OF AMERICAN MACHINE AND FOUNDRY CO., AGAINST AWARD TO ITT-JENNINGS BY PHILADELPHIA NAVAL SHIPYARD FOR CO AXIAL SWITCHING MATRICES. LOW BID WHICH WAS SENT AS REGISTERED MATERIAL AIRMAIL SPECIAL DELIVERY IN SUFFICIENT TIME FOR ARRIVAL BEFORE BID OPENING BUT WAS NOT RECEIVED IN THE BID OPENING OFFICE UNTIL 12 MINUTES AFTER OPENING ALTHOUGH IT HAD BEEN DELIVERED TO THE PROCURING INSTALLATION FOUR HOURS EARLIER MUST BE CONSIDERED TO HAVE BEEN TIMELY MAILED. ASPR 2-303.3 IN EVALUATION DOES NOT REQUIRE REJECTION OR PREVENT CONSIDERATION AT SUCH MAXIMUM PRICE.

TO HART, MOSS AND TAVENNER:

REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 25, 1967, AND SUBSEQUENT LETTERS PROTESTING ON BEHALF OF AMERICAN MACHINE AND FOUNDRY COMPANY A CONTRACT FOR CO-AXIAL SWITCHING MATRICES AND ASSOCIATED ITEMS AWARDED TO ITT-JENNINGS (JENNINGS RADIO MANUFACTURING CORPORATION, A DIVISION OF INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION), UNDER PHILADELPHIA NAVAL SHIPYARD IFB NO. N00151-68-B 0114.

YOU PROTEST THE AWARD TO ITT-JENNINGS ON THE GROUNDS (1) THAT THE CONTRACTING OFFICER OPENED AND CONSIDERED THAT FIRM'S LATE BID IN VIOLATION OF THE PROVISIONS OF PARAGRAPH 2-303.2 OF THE ARMED SERVICES PROCUREMENT REGULATION; (2) THAT ITT-JENNINGS FAILED TO BID A FIXED PRICE ON ITEM 8 (DRAWINGS) AND ITS BID WAS THEREFORE NONRESPONSIVE; (3) THAT AS ITEMS 9 AND 10 PRELIMINARY AND FINAL EQUIPMENT MANUALS) REQUIRED COMPLIANCE WITH MILITARY SPECIFICATION MIL-M-15071 WHICH PROVIDES THAT THE INSTALLATION DRAWINGS CONFORM TO MIL-D-963, THE ITT JENNINGS QUALIFICATION OF BID ITEM 8 HAD AN AMBIGUOUS EFFECT ON ITS BIDS ON ITEMS 9 AND 10; AND (4) THAT "IT APPEARS THAT A QUESTION OF RESPONSIBILITY AS DISTINGUISHED FROM RESPONSIVENESS IS PRESENTED BY THE JENNINGS BID. IF JENNINGS PLANS TO USE A -SHORT-CUT- IN SUPPLYING THE MATRICES CALLED FOR BY ITEMS 2, 3 AND 4 OF THE SOLICITATION CONTRARY TO THE REQUIREMENTS OF THE SPECIFICATIONS, THIS ACCOUNTS FOR THE LOW JENNINGS BID.'

REGARDING YOUR CONTENTION THAT THE ITT-JENNINGS BID SHOULD NOT HAVE BEEN CONSIDERED FOR AWARD, COPIES OF THE COMPLETE ADMINISTRATIVE REPORTS IN THIS MATTER TOGETHER WITH COPIES OF STATEMENTS BY THE POSTAL AUTHORITIES RELATING TO THE MAILING OF THE ITT-JENNINGS BID HAVE BEEN FURNISHED YOU, AND IN THE INTEREST OF BREVITY WILL NOT BE REPEATED HERE. THE RECORD SHOWS THAT THE BID WAS MAILED AS A REGISTERED ARTICLE AIRMAIL SPECIAL DELIVERY AT STATION D, SAN JOSE, CALIFORNIA, AT APPROXIMATELY 5:30 P.M., AUGUST 16, 1967, AND WAS RECEIVED AT THE DESIGNATED OFFICE IN THE PHILADELPHIA NAVAL SHIPYARD AT 2:12 P.M., AUGUST 18, 1967, TWELVE MINUTES AFTER THE TIME SET FOR BID OPENING. WHILE PART 3, SECTION II, OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REQUIRES THAT BIDS BE SUBMITTED SO AS TO BE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION NOT LATER THAN THE EXACT TIME SET FOR OPENING OF BIDS, ASPR 2-303.2 PERMITS THE CONSIDERATION OF A LATE BID RECEIVED BEFORE AWARD IF IT WAS SENT BY REGISTERED OR CERTIFIED MAIL AND IT IS DETERMINED PURSUANT TO EVIDENCE PRESCRIBED IN ASPR 2-303.3 THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS; OR IF IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED. THE EVIDENCE PRESCRIBED IN ASPR 2-303.3 PERTAINS TO THE ESTABLISHMENT OF THE TIME OF MAILING AND OBTAINING INFORMATION CONCERNING THE NORMAL TIME FOR MAIL DELIVERY. BELIEVE THAT THE EVIDENCE OF RECORD SHOWS THAT THE BID WAS MAILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED UNDER NORMAL SCHEDULES TO THE PHILADELPHIA NAVAL SHIPYARD IN TIME FOR BID OPENING. WHILE YOU HAVE CONTENDED THAT THE EVIDENCE MUST PINPOINT THE ACTUAL FACTOR WHICH CAUSED THE DELAY IN ORDER TO COMPLY WITH THE ASPR PROVISION FOR A DETERMINATION THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS, IT IS OUR VIEW THAT THE PARTICULAR REGULATION REQUIRES IN SUCH A CASE NO MORE THAN THE OBTAINING OF SUFFICIENT EVIDENCE TO ESTABLISH A TIMELY MAILING UNDER REGULAR SCHEDULES OF SERVICE, AND THE INFORMATION OBTAINED BY THE PROCURING OFFICE PRIOR TO THE AWARD APPEARS TO HAVE BEEN SUFFICIENT TO ESTABLISH THIS ESSENTIAL FACT. IN ADDITION, IN RESPONSE TO AN INQUIRY BY THIS OFFICE AS THE RESULT OF YOUR OBJECTIONS TO THE SUFFICIENCY OF THE EVIDENCE OF THE NORMAL MAIL HANDLING SCHEDULE, THE POSTMASTER OF THE PHILADELPHIA POST OFFICE UNDER DATE OF JANUARY 2, 1968, REPORTED THAT THE RECORDS OF THAT OFFICE ESTABLISH THAT THE BID WAS ACTUALLY DELIVERED BY THE POSTAL AUTHORITIES AT THE NAVAL BASE STATION TO AN AUTHORIZED REPRESENTATIVE OF THE PHILADELPHIA NAVAL SHIPYARD BEFORE 9:45 A.M. ON AUGUST 18, OR MORE THAN FOUR HOURS BEFORE THE TIME FOR BID OPENING. HAVE HELD IN SIMILAR SITUATIONS THAT THE GOVERNMENT HAS AN OBLIGATION TO PROVIDE FACILITIES TO INSURE DELIVERY OF BID DOCUMENTS WITHIN A MILITARY INSTALLATION WITH REASONABLE PROMPTNESS, AND WE FIND NO INSTANCE IN WHICH A DELAY OF MORE THAN FOUR HOURS HAS BEEN CONSIDERED REASONABLE. SEE 43 COMP. GEN. 317; 42ID. 508; B-157176, AUGUST 30, 1965; B-151063, APRIL 24, 1963; B-150317, NOVEMBER 28, 1962; B-147312, NOVEMBER 16, 1961. WHILE THE CONTRACTING OFFICER MAY HAVE BEEN REMISS IN NOT CHECKING ON THE TIME OF ARRIVAL OF THE BID AT THE SHIPYARD, WE ARE SATISFIED THAT ITT-JENNINGS WAS CLEARLY ENTITLED TO HAVE ITS BID CONSIDERED.

THE FOLLOWING BIDS WERE CONSIDERED FOR AWARD:

ITT-JENNINGS $253,072.83 (INCLUDING $10,000

AS MAXIMUM PRICE

OF ITEM 8)

AMERICAN MACHINE AND FOUNDRY CO. $284,950.00 IN THE BID COLUMN FOR ITEM 8 OF THE IFB CALLING FOR DRAWINGS, ITT-JENNINGS INSERTED "SEE ATTACHED LETTER.' THE SUBJECT LETTER PROVIDED AS FOLLOWS:

"WE ARE SUBMITTING OUR FIRM PRICE PROPOSAL FOR THE ABOVE REFERENCED IFB. THIS PROPOSAL ALSO INCLUDES THE CHANGE CALLED FOR IN AMENDMENT THREE (3) FOR ITEMS SIX (6) AND SEVEN (7).

WE ALSO WISH TO ADVISE THAT WE HAVE ELECTED TO OFFER AN OPTION ON ITEM EIGHT (8) TO MIL-D-70327. THIS IS IN THE INTEREST OF COST CONSERVATION IN WHICH WE PROPOSE TO SUPPLY COMMERCIAL DRAWINGS UP-DATED TO REFLECT THE FINAL CONFIGURATION. IN THE EVENT THAT THE COMMERCIAL DRAWINGS ARE NOT ACCEPTABLE OUR COMPANY AGREES TO NEGOTIATE PRICE FOR PREPARING MILITARY TYPE DRAWINGS WITH COST NOT TO EXCEED $10,000.' THE CONTRACTING OFFICER REPORTS HIS VIEWS CONCERNING YOUR OTHER CONTENTIONS AS FOLLOWS:

"THIS OFFICE HAS USED THE SUM OF $10,000 AS THE MAXIMUM PRICE OF ITEM 8 IN EVALUATING THE BID RECEIVED FROM ITT-JENNINGS. THE BID PRICE OF ITT- JENNINGS, PREVIOUSLY SHOWN HEREIN, INCLUDES THE SUM OF $10,000 FOR ITEM 8. THE CONTRACT, AS AWARDED, STATES FOR ITEM 8 -COST FOR THIS ITEM NOT TO EXCEED $10,000 AND WILL BE SUBJECT TO FARTHER NEGOTIATION-. THE CONTRACTING OFFICER DOES NOT BELIEVE THAT THERE IS ANY AMBIGUITY PRESENT. FROM A READING OF THE PARAGRAPH IT CAN BE DETERMINED THAT UPDATED COMMERCIAL DRAWINGS WILL BE SUPPLIED AT NO ADDITIONAL COST TO THE GOVERNMENT AND, IF THAT ALTERNATIVE IS NOT ACCEPTABLE, THEN MILITARY TYPE DRAWINGS WILL BE SUPPLIED AT A PRICE NOT EXCEEDING $10,000. THERE CAN BE NO OTHER INTERPRETATION OF THIS PARAGRAPH. THE GOVERNMENT DOES REQUIRE MILITARY TYPE DRAWINGS AND ITT JENNINGS WILL SUPPLY SAME. ITEM 8 OF THE CONTRACT WILL BE NEGOTIATED AT A LATER DATE BUT IN NO EVENT WILL THE COST TO THE GOVERNMENT FOR THESE DRAWINGS EXCEED $10,000.

"15. THE CONTRACTING OFFICER CAN FIND NO AMBIGUITY IN THE RESPONSIVENESS OF ITT-JENNINGS TO ITEMS 9 AND 10, PRELIMINARY AND FINAL EQUIPMENT MANUALS. THE SPECIFICATIONS FOR THESE REQUIREMENTS ARE CLEAR AND ITT- JENNINGS HAS, IN ITS BID, STATED A PRICE FOR THESE TWO ITEMS. THE COST OF THE DRAWINGS DOES NOT ENTER INTO THE COST OF ITEMS 9 AND 10 BECAUSE THESE WOULD BE THE SAME DRAWINGS AS REQUIRED UNDER ITEM 8, SIMPLY REDUCED IN SIZE FOR INCLUSION IN THE EQUIPMENT MANUALS.

"16. WHILE AMF, IN ITS PROTEST, CONTINUOUSLY REFERS TO THE JENNINGS RADIO COMPANY, THE TRUE NAME OF THIS CONTRACTOR, AS AMF WELL KNOWS, IS ITT- JENNINGS, A DIVISION OF THE INTERNATIONAL TELEPHONE AND TELEGRAPH COMPANY. THIS ACTIVITY HAS ISSUED NUMEROUS CONTRACTS TO VARIOUS DIVISIONS OF ITT AND HAS ALWAYS FOUND THIS COMPANY TO BE A RESPONSIBLE CONTRACTOR. IN THE IFB THERE ARE SPECIFICATIONS WHICH MUST BE COMPLIED WITH AND ITT- JENNINGS HAS AGREED, BY ITS BID, TO PERFORM ALL OF THE ITEMS OF THE CONTRACT IN CONFORMANCE WITH THESE SPECIFICATIONS. THE CONTRACTING OFFICER HAS NO REASON TO SUSPECT OTHERWISE.

"17. AMF'S QUESTIONING OF THE RESPONSIBILITY OF ITT-JENNINGS IS BELIEVED TO BE PURE SUPPOSITION. IF ITT-JENNINGS WERE TO ATTEMPT TO TAKE -SHORT- CUTS' OR DEVIATE FROM THE SPECIFICATIONS, THE CONTRACTING OFFICER CAN THEN TAKE THE NECESSARY ACTION WHICH IS IMPLICIT IN THE CONTRACT TO REMEDY SUCH A SITUATION.'

YOU CONTEND THAT SINCE THE IFB SPECIFICALLY REMINDED BIDDERS TO ENTER A BID PRICE OR NOTATION OF "NO CHARGE" FOR EACH ITEM, THE ITT JENNINGS AGREEMENT TO NEGOTIATE A PRICE FOR PREPARING MILITARY TYPE DRAWINGS AT A COST NOT TO EXCEED $10,000 (IN THE EVENT ITS OPTIONAL OFFER TO SUPPLY COMMERCIAL DRAWINGS WAS REJECTED) DID NOT CONSTITUTE A BID ON ITEM 8. WHILE WE AGREE WITH YOUR VIEW THAT ITT-JENNINGS SHOULD HAVE STATED A DEFINITE PRICE FOR ITEM 8, IN ORDER TO ESTABLISH A FIRM FIXED PRICE FOR THE CONTRACT UPON ACCEPTANCE OF ITS BID, WE DO NOT PERCEIVE HOW THAT FIRM'S FAILURE TO DO SO OPERATED TO ITS ADVANTAGE OR PREJUDICED THE RIGHTS OF AMERICAN MACHINE AND FOUNDRY COMPANY IN THE MATTER. AS POINTED OUT BY THE CONTRACTING OFFICER, ITT-JENNINGS AGREED TO SUPPLY THE SPECIFIED MILITARY-TYPE DRAWINGS AT A MAXIMUM PRICE OF $10,000 AND THAT MAXIMUM PRICE FOR ITEM 8 WAS USED IN COMPARING THAT FIRM'S BID WITH THE BID OF AMERICAN MACHINE AND FOUNDRY COMPANY. THE FACT THAT THE ITT-JENNINGS BID AFFORDS THE GOVERNMENT AN OPPORTUNITY TO SECURE THE REQUIRED ITEMS AT A MORE FAVORABLE PRICE DOES NOT IN OUR VIEW REQUIRE REJECTION OF THE BID OR PREVENT ITS CONSIDERATION AND EVALUATION AT THE SPECIFIC MAXIMUM LIMIT STATED THEREIN. SEE 35 COMP. GEN. 684; 36ID. 259.

CONCERNING YOUR CONTENTIONS REGARDING ITEMS 9 AND 10, AND THE RESPONSIBILITY OF ITT-JENNINGS, WE BELIEVE THAT THE CONTRACTING OFFICER'S ANALYSIS AS SET OUT ABOVE IN HIS REPORT CONSTITUTES AN ADEQUATE RESPONSE THERETO.

IN VIEW OF THE FOREGOING, WE FIND NO SUBSTANTIAL BASIS ON WHICH TO CONCLUDE THAT THE AWARD TO ITT-JENNINGS WAS ILLEGAL, AND YOUR REQUEST THAT WE REQUIRE ITS CANCELLATION IS THEREFORE DENIED.