B-157638, DEC. 13, 1965

B-157638, DEC. 13, 1965

TO MAY MACHINE AND FOUNDRY COMPANY:

YOUR LETTER OF SEPTEMBER 7, 1965, REQUESTS OUR REVIEW OF THE AWARD OF A CONTRACT TO BRIGHT STAR INDUSTRIES, INC., UNDER INVITATION NO. AMC/E/-36- 039-65-773-6 BY THE UNITED STATES ARMY ELECTRONICS COMMAND, PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT INVITATION WAS MAILED TO SIXTY-FIVE FIRMS, AND REQUESTED BIDS ON SUPPLYING TWO BOTTOM WASHER MACHINES, ONE FOR INSERTING CARDBOARD WASHERS IN TYPE "D," AND ONE FOR TYPE "B," DRY CELL BATTERIES. THE ONLY RESPONSIVE BIDS RECEIVED BY JULY 6, 1965, THE BID OPENING DATE, WERE THOSE OF BRIGHT STAR INDUSTRIES, INC., IN THE AMOUNT OF $6,500 EACH, AND OF MAY MACHINE AND FOUNDRY COMPANY IN THE AMOUNT OF $4,750 EACH. THE INVITATION SPECIFIED THAT TIME WAS OF THE ESSENCE, AND IT SET OUT A PREFERRED DELIVERY SCHEDULE AND FOUR ALTERNATE DELIVERY SCHEDULES WITH THE EXPLANATION THAT THE AWARD WOULD BE MADE TO THE BIDDER OFFERING DELIVERY ON THE EARLIEST ALTERNATE SCHEDULE IF NO BIDS WERE RECEIVED ON THE PREFERRED SCHEDULE. THE INVITATION ALSO SPECIFIED FURTHER THAT LIQUIDATED DAMAGES WOULD APPLY TO ALL BUT THE FOURTH ALTERNATE DELIVERY SCHEDULE. THE AWARD WAS MADE TO BRIGHT STAR ON JULY 21, 1965, EVEN THOUGH ITS BID WAS HIGHER THAN THAT OF MAY MACHINE, BECAUSE THE EARLIEST DELIVERY PROMISED BY BRIGHT STAR WAS IN THE THIRD ALTERNATE SCHEDULE (150 DAYS) WHILE THE EARLIEST DELIVERY PROMISED BY MAY MACHINE WAS IN THE FOURTH ALTERNATE SCHEDULE (180 DAYS).

YOU CONTEND THAT THE CONTRACT SHOULD HAVE BEEN AWARDED TO YOUR FIRM BECAUSE (1) YOU SUBMITTED THE LOW BID AND THE DIFFERENCE OF 30 DAYS BETWEEN YOUR PROMISED DELIVERY AND THAT OF BRIGHT STAR IS NOT SUFFICIENT TO JUSTIFY AWARDING THE CONTRACT TO OTHER THAN THE LOW BIDDER, (2) YOUR FIRM HAS SUCCESSFULLY COMPLETED SIMILAR CONTRACTS IN THE PAST, (3) BRIGHT STAR'S PROMISED DELIVERY TIME IS MEANINGLESS BECAUSE OF ITS LACK OF EXPERIENCE WITH THIS PARTICULAR ITEM, AND (4) YOUR FIRM COULD HAVE DELIVERED IN 44 DAYS EVEN THOUGH YOUR BID LISTED 180 DAYS.

IT HAS CONSISTENTLY BEEN HELD BY THIS OFFICE THAT PRICE ALONE DOES NOT NECESSARILY CONTROL THE AWARD OF A CONTRACT, AND THAT TIME OF DELIVERY CAN BE CONSIDERED IN THOSE CASES WHERE EARLY DELIVERY IS REQUIRED SO LONG AS THE INVITATION CLEARLY INDICATES THAT EARLIER DELIVERIES WILL BE GIVEN PREFERENCE AND EQUAL TREATMENT FOR ALL BIDDERS IS ASSURED BY A STATEMENT IN THE INVITATION OF THE BASIS ON WHICH BIDS WILL BE EVALUATED. WE FEEL THAT THE INVITATION IN THIS CASE INDICATED WITH SUFFICIENT CLARITY THAT TIME OF DELIVERY WAS MORE IMPORTANT THAN PRICE, AND THAT BIDS WOULD BE EVALUATED ON THE BASIS OF THE EARLIEST DELIVERY SCHEDULE PROMISED. THE DELIVERY SCHEDULE SET OUT DEFINITE TIME PERIODS VARYING FROM 60 TO 180 DAYS, THEREBY GIVING EACH BIDDER A COMMON BASIS ON WHICH TO FORMULATE ITS BID. THE LIQUIDATED DAMAGES PROVISION, WHICH APPLIED TO ALL BUT THE FOURTH ALTERNATE DELIVERY SCHEDULE, WAS FURTHER EVIDENCE THAT TIME OF DELIVERY WOULD BE CONSIDERED IN MAKING THE AWARD, AND BY EXEMPTING THE FOURTH ALTERNATE SCHEDULE, THE INVITATION GAVE THOSE BIDDERS WHO DID NOT WANT TO EXPOSE THEMSELVES TO THE POSSIBILITY OF HAVING TO PAY DAMAGES FOR LATE DELIVERY AN OPPORTUNITY TO SUBMIT A BID FOR EVALUATION ON THE BASIS OF PRICE ALONE IN THE EVENT NO BIDS WERE SUBMITTED ON THE EARLIER SCHEDULES.

THE FACT THAT YOUR FIRM POSSIBLY COULD HAVE MADE DELIVERY WITHIN 44 DAYS COULD NOT PROPERLY BE CONSIDERED, SINCE AN EVALUATION OF THE BIDS COULD ONLY BE MADE ON THE BASIS OF THE INFORMATION CONTAINED IN THE BIDS THEMSELVES, AND THE TIME PROMISED IN YOUR BID WAS 180 DAYS. THE BID OF BRIGHT STAR, ALTHOUGH PROMISING DELIVERY ONLY 30 DAYS EARLIER THAN THE BID SUBMITTED BY YOUR COMPANY, AFFORDED THE ADDED PROTECTION TO THE GOVERNMENT OF SUBJECTING THE BIDDER TO A LIQUIDATED DAMAGES PROVISION, SO THAT IF THE DELIVERY TERMS WERE NOT MET THE COST TO THE GOVERNMENT WOULD BE REDUCED.

THE RECORD FORWARDED TO US BY THE DEPARTMENT OF THE ARMY SHOWS THAT THE ITEMS SPECIFIED IN THE INVITATION WERE, IN FACT, URGENTLY NEEDED AND THAT BRIGHT STAR WAS FOUND BY THE CONTRACTING AGENCY TO BE FINANCIALLY AND TECHNICALLY COMPETENT TO PERFORM THE CONTRACT. ITS BID WAS DETERMINED TO BEST SERVE THE GOVERNMENT'S INTEREST FROM THE STANDPOINT OF TIME AND PRICE, AND THE CONTRACT WAS AWARDED ON THAT BASIS.

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE AWARD WAS PROPERLY MADE TO BRIGHT STAR INDUSTRIES, INC., AND YOUR PROTEST THEREFORE MUST BE DENIED.