B-148706, JUN 8, 1952

B-148706, JUN 8, 1952

ESTEE BATTERY CO.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE ACTION TAKEN BY THE GENERAL SERVICES ADMINISTRATION UNDER ITS INVITATION FOR BIDS FEDERAL SUPPLY SCHEDULE, ISSUED NOVEMBER 20, 1961, FOR SUPPLYING FSC GROUP 61, PART I, AUTOMOTIVE STORAGE BATTERIES, FSC CLASS 6140.

BY THE INVITATION GENERAL SERVICES ADMINISTRATION REQUESTED BIDS FOR FURNISHING DURING THE PERIOD OF MAY 1, 1962, THROUGH APRIL 30,1963, VARIOUS TYPES OF AUTOMOTIVE STORAGE BATTERIES AS SPECIFIED IN THE INVITATION, WITH DELIVERY AT THE DESTINATIONS, AS INDICATED. THE INVITATION CONTAINED THE FOLLOWING PROVISION:

"TIME OF DELIVERY. THE GOVERNMENT DESIRES DELIVERY BE MADE AT DESTINATION WITHIN 20 DAYS. ANY BID OFFERING DELIVERY WITHIN EXCESS OF 25 DAYS WILL NOT BE CONSIDERED FOR AWARD. THE TIME OF DELIVERY SHOWN FOR EACH ITEM MEANS THE TIME REQUIRED AFTER RECEIPT OF AN ORDER TO MAKE DELIVERY TO DESTINATION.'

THE RECORD SHOWS THAT NOTWITHSTANDING THAT PROVISION IN THE INVITATION YOU SUBMITTED A BID OFFERING DELIVERY "15-45" DAYS. YOUR BID, AS WELL AS OTHERS, WAS REJECTED FOR FAILURE TO MEET DELIVERY TERMS OF THE INVITATION.

IN MAKING YOUR PROTEST, YOU STATE THAT FOR THE PAST THREE YEARS YOU HAD BEEN THE SUCCESSFUL BIDDER ON FURNISHING STORAGE BATTERIES TO GENERAL SERVICES ADMINISTRATION AND THAT YOU HAD LIVED UP TO ALL TERMS AND CONDITIONS OF THE CONTRACTS, ESPECIALLY IN REGARD TO TIME OF DELIVERY. YOU STATE FURTHER THAT DURING THE EARLIER PERIOD WHEN YOU HAD CONTRACTS WITH GENERAL SERVICES ADMINISTRATION THE TIME OF DELIVERY REQUIREMENT REMAINED THE SAME, BUT FOR SOME REASON THE CONDITIONS WERE CHANGED IN THE INSTANT BID INVITATION. YOU STATE ALSO THAT, NOT BEING AWARE OF THE CHANGE, YOU ASSUMED THE TIME OF DELIVERY CONDITIONS WERE THE SAME AS IN THE PAST AND SUBMITTED YOUR BID WITH THE USUAL DELIVERY CONDITIONS WHICH HAD BEEN ACCEPTABLE IN THE PAST.

UNDER 10 U.S.C. 2305 (B) CONTRACTS ARE REQUIRED TO BE AWARDED TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.

SPECIFICATIONS FOR THE PROCUREMENT OF GOVERNMENT SUPPLIES AND EQUIPMENT, INCLUDING DELIVERY SCHEDULES, ARE DRAWN TO REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT. WE HAVE CONSISTENTLY HELD THAT WHERE AN INVITATION ON ITS FACE REQUIRES DELIVERY WITHIN A STATED PERIOD, TIME MUST BE REGARDED AS "OF THE ESSENCE" OF THE CONTRACT TO BE ENTERED INTO AND THE ACCEPTANCE OF A LOW BID OFFERING DELIVERY LATER THAN THAT SPECIFIED IN THE INVITATION WOULD BE CONTRARY TO THE SPIRIT AND PURPOSE OF THE LAW GOVERNING PROCUREMENTS MADE PURSUANT TO ADVERTISING. 36 COMP. GEN. 181.

IN THE PRESENT CASE BIDDERS WERE EXPRESSLY NOTIFIED BY THE SPECIAL PROVISION IN THE BID INVITATION, PARAGRAPH 4, THAT "ANY BID OFFERING DELIVERY WITHIN EXCESS OF 25 DAYS WILL NOT BE CONSIDERED FOR AWARD.'

CONSEQUENTLY, SINCE YOUR BID CONTAINED A DIFFERENT DELIVERY TIME WHICH WAS IN EXCESS OF THE 25-DAY LIMITATION, THE CONTRACTING OFFICER PROPERLY CONSIDERED YOUR BID TO BE NONRESPONSIVE TO THE INVITATION. ACCORDINGLY, WE ARE OF THE OPINION THAT THE REJECTION OF YOUR BID WAS PROPER. WE,