B-163018, DEC. 19, 1967

B-163018, DEC. 19, 1967

TO HAGGETT ENGINEERING COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 24, 1967, ADDRESSED TO MR. WILLIAM F. O-GRADY, CONTRACTING OFFICER, VETERANS ADMINISTRATION HOSPITAL, BROCKTON, MASSACHUSETTS, IN WHICH YOU PROTESTED THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS (IFB) NO. 68-23 WHICH WAS ISSUED ON OCTOBER 25, 1967, FOR THE INSTALLATION OF AN AIR-CONDITIONING AND HEATING SYSTEM AT THE HOSPITAL. PAGE ONE OF STANDARD FORM (SF) (20), PARAGRAPH 1 (G) OF THE IFB, STATED AS FOLLOWS: "/G). WORK IS TO BE COMPLETED WITHIN 60 CALENDAR DAYS AFTER RECEIPT OF NOTICE TO PROCEED.' PAGE TWO OF THE BID FORM (STANDARD FORM 21), ALSO A PART OF THE SUBJECT IFB, CONTAINED A BLANK SPACE IN WHICH BIDDERS WERE TO INSERT THEIR PROJECTED COMPLETION TIMES AS FOLLOWS:

"THE UNDERSIGNED AGREES, IF AWARDED THE CONTRACT, TO COMMENCE THE WORK WITHIN 10 CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED, AND TO COMPLETE THE AWARD WITHIN --- CALENDAR DAYS AFTER THE RECEIPT OF NOTICE TO PROCEED.' YOU INSERTED "90" WITHIN THE BLANK SPACE; SUBSEQUENTLY, YOUR BID WAS DECLARED NONRESPONSIVE BECAUSE OF FAILURE TO COMPLY WITH THE 60 DAY COMPLETION LIMIT PRESCRIBED IN SF 20.

YOU CONTEND THAT THE FAILURE OF THE PROCURING ACTIVITY TO INSERT 60 DAYS IN THE BLANK SPACE PROVIDED ON PAGE 2 OF SF 21 CREATED SUFFICIENT AMBIGUITY TO ENABLE YOU TO INSERT 90 DAYS IN THE SPACE PROVIDED WITHOUT THE RISK OF BEING DECLARED NONRESPONSIVE, NOTWITHSTANDING THE 60 DAYS SPECIFIED IN SF 20. IF YOUR INTERPRETATION WERE TO BE ADOPTED THE CONSEQUENCE WOULD BE THAT THE BID LOWEST IN PRICE WOULD HAVE TO BE ACCEPTED REGARDLESS OF THE COMPLETION DATE. THIS WOULD BE CONTRARY TO THE MANDATES OF THE STATUTES GOVERNING COMPETITIVE BIDDING, WHICH REQUIRE THAT ALL BIDDERS BE ALLOWED TO COMPETE ON EQUAL TERMS (B 144587, JANUARY 6, 1961) SINCE YOUR BID WOULD NOT BE ON THE SAME BASIS AND COULD NOT BE EVALUATED EQUALLY WITH THE BIDS OF BIDDERS WHO INTERPRETED THE COMPLETION TIME SPECIFIED IN SF 20 AS REQUIRING THEM TO CONFORM THEIR PRICES TO THAT PERIOD.

WE CANNOT CONSIDER THE SUBJECT PROVISIONS AS PERMITTING THE INTERPRETATION YOU HAVE ADVANCED; MOREOVER, WE BELIEVE THAT IF YOU HAD ANY DOUBT AS TO THE EFFECTIVENESS OF THE 60 DAY COMPLETION REQUIREMENT YOU SHOULD HAVE REQUESTED AN INTERPRETATION FROM THE PROCURING ACTIVITY BEFORE YOUR BID WAS SUBMITTED. B-155835, AUGUST 31, 1965. TO ACCEDE TO YOUR VIEW ONE MUST COMPLETELY DISREGARD THE EXISTENCE OF THE 60 DAY LIMITATION STATED IN SF 20; TO GIVE THE STIPULATION ANY SIGNIFICANCE AT ALL IT MUST BE READ AS PLACING A MAXIMUM TIME LIMITATION ON THE NUMBER OF DAYS THAT BIDDERS COULD INSERT IN THE BLANK SPACE PROVIDED IN SF 21. CLEARLY, THE FORM OF THE BID PERMITTED BIDDERS TO INSERT COMPLETION DATES OF LESS THAN 60 DAYS IN THE BLANK SPACE IF THEY SO DESIRED, AND THEREFORE WE CANNOT HOLD THAT THE GOVERNMENT WAS OBLIGATED TO INSERT THE MAXIMUM PERIOD OF 60 DAYS IN THIS SPACE, SINCE SUCH MAXIMUM COMPLETION TIME WAS SPECIFIED ELSEWHERE IN THE IFB IN CLEAR AND UNAMBIGUOUS TERMS.

UNDER THE STATED COMPLETION PROVISIONS OF THE INVITATION, YOUR INSERTION OF 90 DAYS MUST BE VIEWED AS A DEVIATION FROM OR EXCEPTION TO THE PRESCRIBED DELIVERY SCHEDULE. FEDERAL PROCUREMENT REGULATION (FPR) 1- 2.404-2 (A) REQUIRES THE REJECTION OF ANY BID WHICH FAILS TO CONFORM TO THE SPECIFICATIONS REGARDING DELIVERY SCHEDULE, AS FOLLOWS: "SEC. 1-2.404 -2 REJECTION OF INDIVIDUAL BIDS.

"/A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE, OR PERMISSIBLE ALTERNATES THERETO, SHALL BE REJECTED AS NONRESPONSIVE.' OUR OFFICE HAS CONSISTENTLY MAINTAINED THAT WHERE AN IFB REQUIRES DELIVERY OR PERFORMANCE WITHIN A STATED PERIOD, TIME MUST BE REGARDED "AS OF THE ESSENCE" OF THE CONTRACT TO BE ENTERED INTO, NOTWITHSTANDING THE LACK OF AN EXPRESS STATEMENT TO THAT EFFECT IN THE IFB. 36 COMP. GEN. 181. SINCE YOUR BID FAILED TO COMPLY WITH AN ESSENTIAL PROVISION OF THE INVITATION IT MUST BE REJECTED AS NONRESPONSIVE. B-155278, NOVEMBER 5, 1964. THIS RESULT IS NECESSITATED BY CONSIDERATIONS PREVIOUSLY DISCUSSED RELATING TO THE POSSIBLE DISADVANTAGES SUFFERED BY BIDDERS WHO PRICED THEIR BIDS IN STRICT ACCORD WITH THE COMPLETION SCHEDULE STATED IN THE IFB.

YOU ALSO CONTEND THAT A 60 DAY COMPLETION PERIOD IS UNREALISTIC BASED UPON INFORMATION SUBMITTED TO YOU BY YOUR SUPPLIERS. IN THIS REGARD THE CONTRACTING OFFICER HAS INFORMED US AS FOLLOWS:

"* * * FOR YOUR INFORMATION, THE SIXTY (60) DAYS COMPLETION TIME REQUIREMENT WAS ARRIVED AT AFTER CONSIDERATION OF SEVERAL FACTORS, E.G., AVAILABILITY OF SUPPLIES AND EQUIPMENT, AND THE NEED FOR COMPLETION OF THE PROJECT, AND WE BELIEVE THE REQUIREMENT IS, IN FACT, REALISTIC.' WHERE THERE IS A DISPUTE OF THIS NATURE, WHICH CANNOT BE RESOLVED BY THE WRITTEN RECORD, IT IS THE LONG-ESTABLISHED POLICY OF OUR OFFICE TO ACCEPT THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICE, UNLESS THERE IS SUFFICIENT EVIDENCE TO ESTABLISH BEYOND ANY REASONABLE DOUBT THAT THE REPORTED FACTS ARE INCORRECT. 37 COMP. GEN. 568. WE DO NOT FIND SUCH EVIDENCE IN THE PRESENT RECORD.