B-175342, MAR 27, 1972

B-175342, MAR 27, 1972

CONTRACTS - RESPONSIVENESS - DELIVERY REQUIREMENT - COMPLIANCE CONCERNING WHETHER THE BID OF BALKO TOOL AND MACHINE COMPANY (BALKO), SUBMITTED UNDER AN IFB THAT WAS ISSUED BY THE NAVY PURCHASING OFFICE FOR A 25-TON PRESS BRAKE WITH DATA, MAY BE CONSIDERED RESPONSIVE. THE USE OF AN EXPRESSION SUCH AS "APPROXIMATELY" IN DELIVERY OFFERS, SHOULD BE CONSTRUED TO MEAN WITHIN A REASONABLE TIME OF THE STATED DATE. SINCE THE INSTANT INVITATION FAILED TO SPECIFY A DELIVERY REQUIREMENT WITH RESPECT TO THE DATA ITEM, BALKO'S BID APPEARS TO OFFER DELIVERY WITHIN A REASONABLE TIME AND MUST BE CONSIDERED RESPONSIVE. B 155035, NOVEMBER 20, 1964.

TO MR. SECRETARY:

BY LETTER OF MARCH 1, 1972, SUP 0222A, THE NAVAL SUPPLY SYSTEMS COMMAND HAS ASKED WHETHER THE BID FROM BALKO TOOL AND MACHINE COMPANY (BALKO) UNDER INVITATION FOR BIDS (IFB) NO. N00600-72-B-0107, ISSUED ON NOVEMBER 24, 1972, BY THE NAVY PURCHASING OFFICE MAY BE ACCEPTED.

THE IFB CALLED FOR ONE 25-TON PRESS BRAKE WITH DATA. TWO BIDS WERE RECEIVED. BALKO'S BID IS LOW AT $7,000; THE OTHER BID, AT $7,749.75 IS FROM PHILLIPS MACHINERY & SUPPLY COMPANY. AWARD IS BEING WITHHELD PENDING OUR DECISION.

THE IFB TERMS REQUIRE DELIVERY OF THE PRESS BRAKE, ITEM 0001, WITHIN 90 DAYS AFTER DATE OF CONTRACT; DELIVERY OF ITEM 0001AA, THE DATA, IS TO BE IN ACCORDANCE WITH EXHIBIT A. EXHIBIT A MAKES NO MENTION OF DELIVERY OTHER THAN TO INDICATE THAT THE DATA SHOULD BE ATTACHED TO THE MACHINERY.

BALKO FILLED IN THE BIDDER'S PROPOSED DELIVERY SCHEDULE IN THE FOLLOWING MANNER:

"ITEM NO. QUANTITY TIME

0001 ALL

0001AA APPROXIMATELY 30 DAYS AFTER

RECEIPT OF ORDER."

THE INVITATION STATES THAT A BID OFFERING DELIVERY BASED ON DATE OF RECEIPT BY THE CONTRACTOR OF THE CONTRACT OR NOTICE OF AWARD (RATHER 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. THE PROCURING ACTIVITY HAS DETERMINED THAT THREE DAYS IS THE MAXIMUM TIME FOR THE NOTICE OF AWARD TO ARRIVE THROUGH THE ORDINARY COURSE OF THE MAILS.

WITH RESPECT TO ITEM 0001, BALKO'S BID DID NOT INCLUDE A PROPOSED DELIVERY SCHEDULE BUT LEFT THE SPACE BLANK. THE INVITATION CLEARLY PROVIDES THAT IF THE BID OFFERS NO OTHER DELIVERY SCHEDULE, THE IFB REQUIRED DELIVERY SCHEDULE SHALL APPLY. THEREFORE, WE CONCLUDE THAT BALKO WOULD BE OBLIGATED TO DELIVER ITEM 0001 IN ACCORDANCE WITH THE REQUIRED SCHEDULE.

BALKO'S DELIVERY OFFER INSERTED OPPOSITE THE DATA ITEM CLEARLY MEANS THAT BALKO PROPOSED TO FURNISH THE DATA "APPROXIMATELY 30 DAYS AFTER RECEIPT OF ORDER." THE ONLY REFERENCE TO EXHIBIT A WHICH COULD POSSIBLY HAVE APPLICATION TO TIME OF DELIVERY APPEARS IN BOX 16 UNDER THE CAPTION "REMARKS," AS FOLLOWS:

"ATTACH TO MACHINE (2 COPIES EACH)."

THIS COULD BE CONSTRUED TO MEAN THAT THE DATA SHOULD BE PHYSICALLY ATTACHED TO THE MACHINE WHEN DELIVERED. ON THE OTHER HAND, IT COULD BE CONSTRUED NOT TO BE APPLICABLE TO TIME OF DELIVERY. CERTAINLY, IT IS NOT SUFFICIENTLY CLEAR IN THIS REGARD TO JUSTIFY THE REJECTION OF A BID FOR FAILING TO COMPLY WITH IT AS A DELIVERY PROVISION. CF. 38 COMP. GEN. 190 (1958). CONSEQUENTLY, WE CONCLUDE THE INVITATION LEFT OPEN THE DELIVERY REQUIREMENTS WITH RESPECT TO THE DATA ITEM. WHERE THE INVITATION DOES NOT SPECIFY A REQUIRED DELIVERY SCHEDULE, A BID OFFERING DELIVERY WITHIN A REASONABLE TIME IS CONSIDERED RESPONSIVE. SEE B-155035, NOVEMBER 20, 1964, AND B-147653, JANUARY 23, 1962. BALKO'S PROPOSED DELIVERY OF THE DATA WITHIN APPROXIMATELY 30 DAYS AFTER RECEIPT OF ORDER CERTAINLY SEEMS TO BE REASONABLE IN THE CIRCUMSTANCES.

SINCE THE LACK OF CLARITY WITH REGARD TO THE REQUIRED DELIVERY SCHEDULE FOR THE DATA HAS NOT HAD ANY ADVERSE EFFECT ON COMPETITION, WE DO NOT FIND THAT CANCELLATION OF THE INVITATION IS REQUIRED. HOWEVER, WE RECOMMEND THAT IN FUTURE PROCUREMENTS THE INVITATION SHOULD CLEARLY SPECIFY WHEN DELIVERY OF AN ITEM IS REQUIRED.

EVEN IF EXHIBIT A WERE CONSTRUED TO REQUIRE THAT THE DATA AND THE MACHINE BE DELIVERED SIMULTANEOUSLY, BALKO'S PROPOSAL TO DELIVER THE DATA WITHIN "APPROXIMATELY 30 DAYS AFTER RECEIPT OF ORDER" WOULD CERTAINLY SEEM TO FIT WITHIN THE 90-DAY PERIOD ALLOWED FOR DELIVERY. BY INCLUDING THE TERM "APPROXIMATELY," THE BIDDER IS MAKING ITS PROPOSED DELIVERY SOMEWHAT INDEFINITE; HOWEVER, THE FACTS OF A CASE CAN BE SUCH THAT THE PERIOD BETWEEN THE APPROXIMATE PROPOSED DELIVERY AND THE REQUIRED DELIVERY IS SO GREAT THAT ANY DOUBT AS TO THE BIDDER'S OBLIGATION TO DELIVER WITHIN THE REQUIRED TIME IS REMOVED. WE THINK THIS CASE FALLS INTO THE LATTER CATEGORY.

THIS MATTER WAS SUBMITTED HERE IN VIEW OF OUR DECISION, B-170287, AUGUST 8, 1970; RECONSIDERED AND AFFIRMED ON DECEMBER 4, 1970 (50 COMP. GEN. 379). IN THAT CASE THE IFB STATED THAT DELIVERY WAS DESIRED WITHIN 120 DAYS AND REQUIRED WITHIN 150 DAYS; THAT BIDDERS COULD PROPOSE A DIFFERENT TIME NOT TO EXCEED 150 DAYS AND THAT IF NO DELIVERY DATE WAS OFFERED, THE DESIRED 120 DAYS WOULD APPLY. THE LOW BIDDER PROPOSED DELIVERY WITHIN "APPROXIMATELY 120 - DAYS (AS REQUESTED)." IN CONCLUDING THAT SUCH BID WAS NONRESPONSIVE WE STATED THAT THE RATIONALE IN 46 COMP. GEN. 745 (1967), MILITATING AGAINST THE USE OF A REASONABLENESS TEST WAS EQUALLY APPLICABLE TO THE FACTS THEN UNDER CONSIDERATION.

A THOROUGH REVIEW OF B-170287, SUPRA, AS AFFIRMED IN 50 COMP. GEN. 379 (1970) INDICATES THAT THE DECISION WAS BASED ON THE DOUBT WHETHER "APPROXIMATELY 120 DAYS" WAS WITHIN THE REQUIRED DELIVERY TIME OF 150 DAYS. THE USE OF EXPRESSIONS IN DELIVERY TERMS OFFERED SUCH AS "APPROXIMATELY" SHOULD PROPERLY BE CONSTRUED TO MEAN WITHIN A REASONABLE TIME OF THE SPECIFIC DATE OR TIME STATED. AS NOTED ABOVE, WHETHER AN APPROXIMATE DELIVERY OFFER IS WITHIN THE REQUIRED DELIVERY DEPENDS ON THE PARTICULAR FACTS. IN THIS CASE, WE NOTE THAT THE "APPROXIMATE" PERIOD OF OFFERED DELIVERY IS SIGNIFICANTLY GREATER IN THE INSTANT CASE THAN IN THE EARLIER CASE BOTH IN TERMS OF THE ABSOLUTE NUMBER OF DAYS BETWEEN THE APPROXIMATE DATE AND THE DEADLINE AND THE RELATIVE PERIODS INVOLVED.

ACCORDINGLY, WE CONCLUDE THAT BALKO'S DELIVERY OFFER DOES NOT RENDER ITS BID NONRESPONSIVE.