B-166413, JUL. 16, 1969

B-166413, JUL. 16, 1969

BID PROTEST - IMPROPER AWARD DECISION TO HYDROMATICS, INC., LOW OFFEROR, SUSTAINING PROTEST THAT REJECTION OF BID FOR FURNISHING URGENTLY NEEDED PARTS FOR REPAIR OF VALVE FOR U.S.S. GRANT WAS IMPROPER. SINCE REQUEST FOR PROPOSALS FAILED TO STIPULATE A REQUIRED DELIVERY SCHEDULE REJECTION WAS IMPROPER. HOWEVER SINCE ONE OF ITEMS HAS BEEN DELIVERED AND OTHERS READY IT WOULD NOT BE IN INTEREST OF GOVERNMENT TO DIRECT PARTIAL CANCELLATION. ADMINISTRATIVE AGENCY SHOULD REVISE DELIVERY CLAUSES IN BOTH ADVERTISED AND NEGOTIATED PROCUREMENTS TO PREVENT RECURRENCE.

TO HYDROMATICS, INC.:

ON MARCH 10, 1969, YOU PROTESTED AGAINST THE REJECTION OF YOUR PROPOSAL UNDER REQUEST FOR PROPOSALS (RFP) NO. N00406-69-R-0174, ISSUED BY THE NAVAL SUPPLY CENTER, BREMERTON, WASHINGTON. THE RFP WAS ISSUED ON JANUARY 14, 1969, PURSUANT TO THE "PUBLIC EXIGENCY" NEGOTIATING AUTHORITY, SET FORTH IN 10 U.S.C. 2304 (A) (2) AND IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-202 FOR THE PROCUREMENT OR URGENTLY NEEDED PARTS REQUIRED FOR VALVE REPAIR ON THE U.S.S. GRANT. THE GOVERNMENT RESERVED THE RIGHT TO MAKE MORE THAN ONE AWARD FOR THE 45 ITEMS LISTED ON THE RFP SCHEDULE, IF MULTIPLE AWARDS RESULTED IN THE LOWEST AGGREGATE PRICE TO THE GOVERNMENT. SECTION 4.9 - TIME OF DELIVERY, OF THE RFP SET FORTH THE DELIVERY SCHEDULE OF THE REQUIREMENT AS FOLLOWS: "4.9 TIME OF DELIVERY: THE GOVERNMENT DESIRES THAT DELIVERY BE MADE IN THE QUANTITIES AND WITHIN THE NUMBER OF DAYS AFTER DATE OF CONTRACT STATED BELOW: IF THE BIDDER OFFERS NO OTHER DELIVERY SCHEDULE, THE DESIRED DELIVERY SCHEDULE STATED BELOW SHALL APPLY: ITEM/S) QUANTITY

DELIVERY (DAYS AFTER

DATE OF CONTRACT) 1-45 ALL

150 DAYS BIDDER'S PROPOSED DELIVERY SCHEDULE (TO BE COMPLETED BY BIDDER WHEN APPLICABLE): ITEM/S) QUANTITY DELIVERY (DAYS AFTER

DATE OF CONTRACT) WHEN PROPOSALS WERE OPENED AND RECORDED ON FEBRUARY 14, IT WAS NOTED THAT YOUR OFFERED PRICES ON ITEMS 5, 18, 34, AND 37 WERE THE LOWEST RECEIVED; HOWEVER, THE CONTRACTING OFFICER DETERMINED THAT YOUR PROPOSAL WAS NONRESPONSIVE TO THE DESIRED DELIVERY SCHEDULE SINCE YOU OFFERED DELIVERY TO BEGIN WITHIN 150 DAYS AND BE COMPLETED WITHIN 195 DAYS AFTER DATE OF CONTRACT. SINCE HE BELIEVED THIS EXCLUDED YOUR OFFER FROM CONSIDERATION FOR AWARD, THE CONTRACTING OFFICER THEREAFTER MADE THE FOLLOWING AWARDS ON MARCH 5, 1969: (1) P.J. HYDRAULICS, INC., FOR 12 ITEMS; (2) MORLAND TOOL COMPANY, INC., FOR 28 ITEMS, INCLUDING ITEMS 18, 34, AND 37; (3) BERGEN CARBIDE MANUFACTURING COMPANY FOR 5 ITEMS, INCLUDING ITEM 5.

YOU MAINTAIN THAT THE REJECTION OF YOUR OFFER WAS IMPROPER BECAUSE NO FIRM DELIVERY DATE WAS LISTED IN THE RFP, AND YOU REQUEST OUR OFFICE TO DIRECT PARTIAL CANCELLATION OF THE PRESENT CONTRACTS WITH MORLAND TOOL COMPANY AND BERGEN CARBIDE MANUFACTURING COMPANY, NOTED ABOVE, FOR THOSE ITEMS ON WHICH YOU SUBMITTED THE LOWEST OFFERS, AND THAT WE INSTRUCT THE DEPARTMENT TO MAKE AN AWARD TO YOUR COMPANY FOR THESE PARTS. IN A REPORT DATED JUNE 6, 1969, THE NAVY DEPARTMENT HAS ADVISED US THAT YOUR OFFER WAS IMPROPERLY REJECTED BECAUSE THE RFP FAILED TO ALSO STIPULATE A REQUIRED DELIVERY SCHEDULE IN THE MANNER SET FORTH IN ASPR 1-305.4 (C), TIME OF DELIVERY CLAUSES, QUOTED IN PERTINENT PART AS FOLLOWS:

"/C) THE FOLLOWING CLAUSE MAY BE USED WHERE DELIVERY BY A CERTAIN TIME IS DESIRED, BUT NOT ESSENTIAL, AND DELIVERY BY A SPECIFIED LATER TIME IS NECESSARY TO MEET THE GOVERNMENT'S REQUIREMENTS. TIME OF DELIVERY (MAY 1960)

DELIVERY IS DESIRED BY THE GOVERNMENT IN ACCORDANCE WITH THE FOLLOWING SCHEDULE: ITEM NO.

QUANTITY TIME

(INSERT THE APPROPRIATE

PHRASE LISTED BELOW) * ---------- -------------------- ------------------

IF THE BIDDER IS UNABLE TO MEET THE ABOVE DELIVERY SCHEDULE, HE MAY, WITHOUT PREJUDICE TO THE EVALUATION OF HIS BID, SET FORTH HIS PROPOSED DELIVERY SCHEDULE BELOW BUT SUCH DELIVERY SCHEDULE MUST NOT EXTEND THE DELIVERY PERIOD BEYOND THE TIME FOR DELIVERY CALLED FOR IN THE FOLLOWING REQUIRED DELIVERY SCHEDULE SET FORTH BELOW:

REQUIRED DELIVERY SCHEDULE ITEM NO. QUANTITY

TIME

(INSERT THE APPROPRIATE

PHRASE LISTED BELOW) * ---------- -------------------- ------------------

BIDS OFFERING DELIVERY OF A QUANTITY UNDER SUCH TERMS OR CONDITIONS THAT DELIVERY WILL NOT CLEARLY FALL WITHIN THE APPLICABLE REQUIRED DELIVERY PERIOD SPECIFIED ABOVE WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.

IF THE BIDDER DOES NOT PROPOSE A DIFFERENT DELIVERY SCHEDULE, THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE SHALL APPLY.' IN VIEW OF THIS DEFICIENCY THE DEPARTMENT STATES THAT THE CONTRACTING OFFICER SHOULD HAVE ADVISED ALL OFFERORS OF THE GOVERNMENT'S REQUIRED DELIVERY SCHEDULE AND PERMITTED THEM TO SUBMIT REVISED PROPOSALS BASED ON SUCH KNOWLEDGE. CONCUR IN THIS CONCLUSION. ADDITIONALLY, THE DEPARTMENT HAS ADVISED US THAT THE PROCURING ACTIVITY HAS TAKEN ACTION TO REVISE APPLICABLE DELIVERY CLAUSES USED IN BOTH ADVERTISED AND NEGOTIATED SOLICITATIONS IN ORDER TO PERVENT RECURRENCE OF THIS SITUATION.

WE HAVE RECENTLY BEEN INFORMED THAT ONE OF THE FOUR ITEMS ON WHICH YOU SUBMITTED THE LOWEST PRICE OFFER HAS ALREADY BEEN DELIVERED TO THE GOVERNMENT AND THAT MANUFACTURE OF THE OTHER THREE ITEMS IS SCHEDULED WITHIN THE NEAR FUTURE, SINCE RAW MATERIALS HAVE ALREADY BEEN DELIVERED TO THE CONTRACTORS. BECAUSE OF THIS DATA, AND IN VIEW OF THE URGENT NATURE OF THE PROCUREMENT, WE DO NOT BELIEVE IT WOULD BE IN THE GOVERNMENT'S INTEREST TO DIRECT PARTIAL CANCELLATION OF THE EXISTING CONTRACTS FOR YOUR BENEFIT. WE TRUST, HOWEVER, THAT THE ACTION TAKEN BY THE DEPARTMENT WILL PREVENT RECURRENCE OF THIS SITUATION IN FUTURE PROCUREMENTS.