B-143576, NOV. 2, 1960

B-143576, NOV. 2, 1960

TO LEBRUM AND DOAK:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1960, AND LETTER OF OCTOBER 27, 1960, FROM MAYER AND RIGBY, ATTORNEYS, REQUESTING ON BEHALF OF HENRY PRODUCTS COMPANY RECONSIDERATION OF OUR DECISION OF SEPTEMBER 12, 1960, ADVISING THE SECRETARY OF THE NAVY THAT THE BID SUBMITTED BY CHAMBERS AIRCRAFT COMPANY IN RESPONSE TO INVITATION FOR BIDS NO. 600 1996- 60 SHOULD BE REGARDED AS A RESPONSIVE BID ENTITLING THAT COMPANY TO PARTICIPATE IN THE NEGOTIATION FOR AWARD OF THE SET-ASIDE PORTION OF THE PROCUREMENT.

IT IS URGED THAT THE DECISION WAS BASED ON A MISAPPREHENSION OF THE DECISIVE FACTS AND THAT A REVIEW THEREOF SHOULD DISCLOSE THAT THE CHAMBERS BID WAS NON-RESPONSIVE FOR THE REASONS THAT (1) IT DID NOT ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1 AND (2) IT DID NOT OFFER TO BE BOUND BY THE MONTHLY DELIVERY REQUIREMENTS.

THE INVITATION INVOLVED WAS ISSUED ON MAY 27, 1960, BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C., AND REQUESTED BIDS ON FOUR DIFFERENT QUANTITIES OF LAU-10/A ROCKET LAUNCHERS TO BE IN ACCORDANCE WITH THE REQUIREMENTS OF MIL-L-21910 (AER) DATED 15 FEBRUARY 1959. THE INVITATION PROVIDED THAT A SET OF APPLICABLE DRAWINGS WERE AVAILABLE FOR VIEWING PURPOSES AT THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., AND THAT A MODEL OF THE LAU-10/A ROCKET LAUNCHER WITH MANUFACTURING DRAWINGS WOULD BE AVAILABLE FOR INSPECTION BY PROSPECTIVE BIDDERS AT THE U.S. NAVAL AVIONICS FACILITY AT INDIANAPOLIS, INDIANA, FROM JUNE 1 TO 30, 1960. THE INVITATION FURTHER PROVIDED THAT BIDDERS COULD OBTAIN A SET OF APPLICABLE DRAWINGS AT A COST OF APPROXIMATELY $25 FROM THE U.S. NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA.

AS STATED IN THE DECISION OF SEPTEMBER 12, 1960, THE RECORD SHOWS THAT CHAMBERS WAS NOT ON THE BIDDERS LIST USED BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C., IN MAILING OUT THE INVITATIONS, BUT OBTAINED A COPY OF THE INVITATION AND SPECIFICATION AND PURCHASED THE APPLICABLE DRAWINGS FROM THE NAVAL AVIONICS FACILITY AT INDIANAPOLIS. THE FACILITY MAINTAINED A RECORD OF THE FIRMS WHICH OBTAINED COPIES OF THE DRAWINGS BUT IT DID NOT NOTIFY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C., NOR DID CHAMBERS REQUEST SUCH OFFICE TO INCLUDE ITS NAME ON THEIR BIDDERS LIST.

BY LETTER DATED JUNE 13, 1960, THE U.S. NAVAL AVIONICS FACILITY SENT CHAMBERS FIVE "ADDITIONAL DRAWINGS THAT WERE NOT AVAILABLE AT THE TIME YOUR DRAWINGS WERE SHIPPED" AND STATED THAT "THESE DRAWINGS ARE FURNISHED AT NO COST TO YOU IN AN ATTEMPT TO PROVIDE YOU WITH COMPLETE INFORMATION REQUIRED FOR AN ACCURATE BID.' A SIMILAR LETTER TOGETHER WITH FIVE DRAWINGS WAS SENT TO ALL FIRMS WHO HAD PREVIOUSLY OBTAINED DRAWINGS. THERE WAS NO MENTION IN SAID LETTER THAT ANY OF THE ENCLOSED DRAWINGS WERE REVISED DRAWINGS.

UNDER DATE OF JUNE 15, 1960, THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C., ISSUED AMENDMENT NO. 1 TO IFB NO. 600-1996-60 ADVISING THAT THREE DRAWINGS LISTED THEREIN HAD BEEN REVISED TO PROVIDE FOR THE INCORPORATION OF A DIODE AND RESISTOR IN THE INTERVALOMETER. IT WAS PROVIDED THAT BIDDERS MUST ACKNOWLEDGE RECEIPT OF THE AMENDMENT PRIOR TO THE HOUR AND DATE SET FOR THE OPENING OF BIDS. SINCE CHAMBERS WAS NOT ON THE NAVY PURCHASING OFFICE BIDDERS LIST, A COPY OF THE AMENDMENT WAS NOT SENT TO CHAMBERS. THE THREE REVISED DRAWINGS LISTED IN THE AMENDMENT WERE INCLUDED IN THE FIVE DRAWINGS SENT TO CHAMBERS AND OTHER FIRMS BY THE NAVAL AVIONICS FACILITY BY THE LETTER OF JUNE 13, 1960, REFERRED TO ABOVE. SINCE CHAMBERS WAS NOT AWARE OF THE AMENDMENT IT DID NOT ACKNOWLEDGE RECEIPT THEREOF NOR MAKE REFERENCE THERETO IN ITS BID PRIOR TO BID OPENING.

YOU URGE THAT SINCE CHAMBERS DID NOT ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1 ITS BID AS SUBMITTED DID NOT CONFORM TO THE REQUIREMENTS OF THE NAVY PURCHASING OFFICE AND "INDEED WAS NOT A PROPOSAL TO FURNISH THE ITEMS REQUIRED BY THAT OFFICE. MOREOVER, IT WAS A PROPOSAL DIFFERENT FROM THAT REQUIRED OF AND RECEIVED FROM ALL OTHER BIDDERS, SO THAT IT WAS NOT ONLY NON-RESPONSIVE BUT ALSO NON COMPETITIVE. WE THINK YOU WILL NOW AGREE THAT IT IS NOT THE FUNCTION OF ANY CONTRACTOR OR ANY OTHER GOVERNMENT AGENCY TO DETERMINE THAT THE ADDITIONS AND IMPROVEMENTS SPECIFIED IN AMENDMENT NO. 1 WERE NOT SIGNIFICANT.'

WE CANNOT AGREE THAT THE GOVERNMENT MAY NOT CONSIDER THE MATERIALITY OF THE AMENDMENT, AND PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS SPECIFICALLY PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS RECEIVED. WITH RESPECT TO THE AMENDMENT THE DEPARTMENT OF THE NAVY EPORTS:

"1. AMENDMENT NO. 1 TO NPO I.F.B. 600-1996-60 CALLS FOR MINOR MODIFICATION TO THE SLIDE SHORTING DEVICE, THE ADDITION OF A RESISTOR AND THE EXCHANGE OF ONE DIODE FOR ANOTHER DIODE IN THE INTERVALOMETER.

"2. THE CHANGE TO THE SLIDE SHORTING DEVICE SHOULD NOT AFFECT PRICE.

"3. THE FOLLOWING COMPONENTS WERE ADDED TO THE INTERVALOMETER:

A. 1N91 DIODE. MATERIAL COST .55

B. 27 OHM 2 WATT RESISTOR. MATERIAL COST .12

C. BOARD TO MOUNT A. AND B. MATERIAL COST .40

D. CLIPS TO MOUNT BOARD. MATERIAL COST . 4

TOTAL INCREASE IN MATERIAL COST -------------------------- $1.11

"4. THE FOLLOWING DIODE WAS REMOVED FROM THE INTERVALOMETER:

A. JAN 1N538. MATERIAL COST $1.19.'

WITH RESPECT TO THE MODIFICATION OF THE INTERVALOMETER, INCORPORATED IN DRAWING NO. 55A27D90, WE ARE INFORMALLY ADVISED THAT IN THE ORIGINAL SET OF DRAWINGS, DISTRIBUTED BEFORE ADOPTION OF REVISION D, THERE WAS NO DRAWING OF THIS ASSEMBLY, THE DRAWINGS HAVING CONTAINED A NOTATION TO THE EFFECT THAT THIS DRAWING WAS NOT AVAILABLE BUT WOULD BE FURNISHED AS SOON AS IT BECAME AVAILABLE. IT WAS FURNISHED TO ALL PURCHASERS OF THE DRAWINGS, AS ABOVE INDICATED, BY THE NAVY'S LETTER OF JUNE 13, AND THEN INCLUDED THE MODIFICATIONS. IN THESE CIRCUMSTANCES, OF WHICH THE CONTRACTING OFFICER MUST BE CONSIDERED TO HAVE BEEN ON NOTICE, WE CAN SEE NO BASIS FOR DOUBT THAT CHAMBERS BASED ITS BID UPON THE REVISED ASSEMBLY AND THAT IT COULD NOT, EVEN IF IT WISHED, SUCCESSFULLY MAINTAIN THAT ITS BID DID NOT COMMIT IT TO FURNISH THAT ITEM IN ACCORDANCE WITH THE REVISION. IN VIEW OF THE FACT THAT THE OTHER CHANGE EFFECTED BY THE AMENDMENT IS ADMITTEDLY MINOR AND WITHOUT EFFECT ON PRICE, WE ARE CONFIRMED IN THE CONCLUSION PREVIOUSLY STATED, THAT THE FAILURE TO ACKNOWLEDGE THE ADDENDUM SHOULD NOT BE REGARDED AS AFFECTING THE RESPONSIVENESS OF THE BID.

WE HAVE YOUR TELEGRAM STATING THAT YOUR MANUFACTURER ADVISES THAT THE DIODE AND RESISTOR ADDED TO THE INTERVALOMETER BY THE REVISION "IS MORE EXPENSIVE BY $1.38 EACH THAN THE INTERVALOMETER WITHOUT DIODE AND RESISTOR.' IN VIEW OF THE PRICES FURNISHED BY THE DEPARTMENT OF THE NAVY AS QUOTED ABOVE, WE MUST ASSUME THAT YOUR MANUFACTURER FAILED TO NOTE THE EFFECT OF THE OMISSION OF ANOTHER TYPE OF DIODE PREVIOUSLY REQUIRED. ANY EVENT, IF WE ARE TO CONSIDER THIS INFORMATION, WE FEEL THAT CONSIDERATION SHOULD ALSO BE GIVEN TO THE FACT THAT THE OAK MANUFACTURING COMPANY, WHICH IS LISTED ON THE DRAWINGS AS A SOURCE FOR THE INTERVALOMETER ASSEMBLY, HAS STATED IN WRITING THAT IT FURNISHED TO CHAMBERS, PRIOR TO THE DATE OF THE CHAMBERS BID, A PRICE BASED UPON THE REVISED DRAWING.

IT IS FURTHER URGED THAT THE MANNER IN WHICH CHAMBERS FILLED IN THE BLANKS FOR "BIDDER'S PROPOSED DELIVERY SCHEDULE" DID NOT CONSTITUTE AN OFFER BY CHAMBERS TO BE BOUND BY THE MONTHLY DELIVERIES REQUIRED BY THE INVITATION.

THE DELIVERY PROVISIONS OF THE INVITATION ARE, IN OUR OPINION, SO DRAFTED AS TO CONFUSE BIDDERS HONESTLY ATTEMPTING TO FURNISH THE INFORMATION DESIRED. THOSE PROVISIONS ARE AS FOLLOWS:

"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:

TABLE

(APPLICABLE TO ITEM 1)

100 UNITS WITHIN 180 DAYS AFTER DATE OF CONTRACT

150 UNITS WITHIN 210 DAYS AFTER DATE OF CONTRACT

300 UNITS WITHIN 240 DAYS AFTER DATE OF CONTRACT

500 UNITS WITHIN 270 DAYS AFTER DATE OF CONTRACT

600 UNITS WITHIN 300 DAYS AFTER DATE OF CONTRACT

"IN THE EVENT AWARD IS MADE FOR OTHER THAN ITEM 1 (A), DELIVERIES OF EQUIPMENT IN EXCESS OF 1,650 SHALL BE MADE AT THE RATE OF 500 PER MONTH FOR THE ADDITIONAL QUANTITY AND CONTINUE AT THAT RATE UNTIL COMPLETION.

"EARLIER DELIVERY THAN THAT STATED ABOVE WILL BE ACCEPTABLE. BIDDERS TO INDICATE BELOW THE EARLIER DELIVERY SCHEDULE.

"FOR ITEM 1 (A)

TABLE

QUANTITY DAYS

-------- ---- AFTER DATE OF CONTRACT

-------- ---- AFTER DATE OF CONTRACT

-------- ---- AFTER DATE OF CONTRACT

-------- ---- AFTER DATE OF CONTRACT

-------- ---- AFTER DATE OF CONTRACT

"IF THE BIDDER IS UNABLE TO MEET THE DESIRED DELIVERY SCHEDULE, IT MAY, WITHOUT PREJUDICE IN THE EVALUATION OF ITS BID, OFFER AN ALTERNATE TIME FOR DELIVERY FOR EACH ITEM BID IN THE SPACE PROVIDED BELOW, ENTITLED "BIDDER'S PROPOSED DELIVERY SCHEDULE," PROVIDED THAT ANY BID OFFERING DELIVERY BEYOND THE MAXIMUM ACCEPTABLE TIME SET FORTH BELOW SHALL BE CONSIDERED NON-RESPONSIVE TO THE INVITATION AND WILL BE REJECTED.

TABLE

"MAXIMUM DELIVERY SCHEDULE

100 UNITS WITHIN 210 DAYS AFTER DATE OF CONTRACT

150 UNITS WITHIN 240 DAYS AFTER DATE OF CONTRACT

300 UNITS WITHIN 270 DAYS AFTER DATE OF CONTRACT

500 UNITS WITHIN 300 DAYS AFTER DATE OF CONTRACT

600 UNITS WITHIN 330 DAYS AFTER DATE OF CONTRACT

"ANY BID OFFERING AN INDEFINITE TIME FOR DELIVERY OR OFFERING DELIVERY CONTINGENT UPON THE AVAILABILITY OR RECEIPT OF MATERIAL SHALL BE REJECTED. UNLESS THE BIDDER OFFERS A DIFFERENT DELIVERY SCHEDULE, THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE STATED ABOVE WILL APPLY.

"THE ARTICLES TO BE FURNISHED SHALL BE DELIVERED IN THE QUANTITIES AND WITHIN THE NUMBER OF DAYS AFTER DATE OF CONTRACT STATED BELOW:

TABLE

ITEM QUANTITY DELIVERY OFFERED

1 A 1650 330 DAYS A.R.O.

1 B 2800 398 DAYS A.R.O.

1 C 3750 454 DAYS A.R.O.

1 D 4450 496 DAYS A.R.O.

IT IS OBVIOUS THAT THE BLANK SPACES PROVIDED BETWEEN THE SPECIFIED "DESIRED" AND "MAXIMUM" DELIVERY SCHEDULES WERE INTENDED TO BE USED, AND THE INVITATION SPECIFICALLY SO STATES, ONLY FOR A DELIVERY SCHEDULE EARLIER THAN THE DESIRED SCHEDULE. CHAMBERS DID NOT WISH TO OFFER SUCH EARLIER DELIVERY AND THEREFORE PROPERLY LEFT THESE SPACES BLANK.

BIDDERS WERE INFORMED THAT THE SECOND SET OF BLANK SPACES WAS FOR USE IN OFFERING A DELIVERY SCHEDULE LONGER THAN THAT DESIRED, PROVIDED IT WAS WITHIN THE PERMITTED MAXIMUM. THEY WERE TOLD ALSO TO OFFER A DELIVERY TIME "FOR EACH ITEM BID," AND WERE WARNED THAT THE DESIRED DELIVERY SCHEDULE WOULD APPLY UNLESS THEY DID OFFER A DIFFERENT SCHEDULE. IN OTHER WORDS, BIDDERS WILLING TO COMPLY WITH THE MAXIMUM DELIVERY SCHEDULE BUT NOT THE DESIRED SCHEDULE WERE COMPELLED TO FILL IN THE SECOND SET OF BLANK SPACES. IT IS TO BE NOTED THAT THE DESIRED SCHEDULE AND THE MAXIMUM SCHEDULE BOTH ITEMIZED ONLY MONTHLY QUANTITIES SUFFICIENT TO COMPRISE ITEM 1 (A), THAT IS, 1,650 UNITS. THE BLANK SPACES FOR SPECIFYING DELIVERY EARLIER THAN DESIRED FOLLOWED THE SAME PATTERN, AND ASKED ONLY FOR DELIVERY TIMES ON ITEM 1 (A), ALSO PRESUMABLY ON A MONTHLY BASIS, ALTHOUGH THIS IS NOT SPECIFICALLY REQUESTED.

WE COME NEXT TO THE SECOND SET OF BLANK SPACES IN WHICH BIDDERS WERE REQUIRED TO STATE THEIR PROPOSED DELIVERY SCHEDULES IF THEY DID NOT WISH TO BE HELD TO THE DESIRED SCHEDULE. IT IS SIGNIFICANT THAT THESE BLANKS WERE ARRANGED AND TITLED IN A MANNER COMPLETELY DIFFERENT FROM THAT FOR EITHER THE DESIRED SCHEDULE, AN EARLIER SCHEDULE, OR THE MAXIMUM SCHEDULE. FOR ONE THING, BIDDERS WERE REQUIRED IN THE FIRST COLUMN TO DESIGNATE EACH "ITEM" BID ON. ACTUALLY, THERE IS ONLY ONE ITEM IN THE INVITATION, ALTHOUGH IT IS BROKEN DOWN INTO FOUR ALTERNATIVE SUBITEMS, THAT IS, (A) 1,650 UNITS, (B) 2,800 UNITS, (C) 3,750 UNITS, AND (D) 4,450 UNITS. THE ONLY LITERAL WAY TO COMPLY WITH THE DIRECTIONS IN THE INVITATION WAS TO DO EXACTLY AS CHAMBERS DID, NAMELY, TO LIST IN THAT COLUMN SUBITEMS 1 (A), 1 (B), 1 (C), AND 1 (D). HAVING DONE THIS, THE ONLY POSSIBLE FIGURES WHICH COULD BE PLACED IN THE SECOND COLUMN HEADED "QUANTITY" WERE THE QUANTITIES OF THOSE SUBITEMS, OR 1,650 UNITS, 2,800 UNITS, 3,750 UNITS, AND 4,450 UNITS. THIS LEFT ONLY ONE COLUMN, WHICH WAS HEADED "DELIVERY OFFERED.' THERE WERE NO SPACES PROVIDED FOR THE STATEMENT OF INTERMEDIATE DELIVERIES, AND WE THEREFORE CANNOT FIND FAULT WITH CHAMBERS; ASSUMPTION THAT THE INFORMATION DESIRED IN THE LAST COLUMN WAS THE TIME WITHIN WHICH ALL DELIVERIES ON EACH SUBITEM WOULD BE COMPLETED. AS WE STATED IN OUR DECISION OF SEPTEMBER 12, 1960, WE CANNOT, IN SUCH CIRCUMSTANCES, CONSTRUE CHAMBERS' LISTING OF ITS AGGREGATE DELIVERY TIME FOR THE QUANTITIES OF EACH SUBITEM AS NEGATING AN OBLIGATION TO COMPLY ALSO WITH THE REQUIRED INTERMEDIATE MONTHLY DELIVERIES. THERE REMAINS FOR CONSIDERATION THE QUESTION WHETHER CHAMBERS' QUALIFICATION OF ITS DELIVERY TIMES BY THE INITIALS "A.R.O.' MAKES ITS PROFFERED DELIVERY NON-RESPONSIVE AS EXCEEDING THE PERMITTED MAXIMUM. IT WILL BE NOTED THAT THE DELIVERY PERIODS OFFERED BY CHAMBERS WERE (EXCEPT FOR ITEM 1 (A) WHICH IS NOT TO BE AWARDED) TWO DAYS LESS THAN THE PERMITTED MAXIMUMS. IT IS UNDERSTOOD THAT THE ORDINARY MAIL TIME FROM THE PURCHASING OFFICE TO CHAMBERS' PLANT IS ONE DAY. THUS, EVEN IF "A.R.O.' IS DEEMED TO MEAN "AFTER RECEIPT OF ORDER," THE CHAMBERS' BID OBLIGATES IT TO COMPLETE DELIVERIES WITHIN THE PERMITTED MAXIMUM TIME, ABSENT UNUSUAL DELAY IN THE MAILS OF THE NOTICE OF AWARD. IT MAY BE NOTED IN THIS CONNECTION THAT NOTICE OF AWARD MAY BE FURNISHED OTHER THAN BY MAIL, AND IN VIEW OF THE FACT THAT THE SET-ASIDE PORTION OF THE AWARD MUST BE NEGOTIATED AS TO PRICE IT SEEMS LIKELY THAT NOTICE OF AWARD THEREON WILL BE GIVEN OTHER THAN BY MAIL. IT MAY ALSO BE NOTED THAT BIDDERS WERE TOLD TO TAKE INTO CONSIDERATION, IN COMPUTING THE TIME AVAILABLE FOR PERFORMANCE, ONLY ORDINARY MAIL TIME, AND IT IS THEREFORE PROBABLE THAT ANY UNUSUAL DELAY IN THE MAIL WOULD ENTITLE THE SUCCESSFUL BIDDER TO AN EQUIVALENT EXTENSION OF PERFORMANCE TIME.

FOR THESE REASONS, AFTER CAREFUL REVIEW OF THE FACTS IN THE CASE AND THE CONTENTIONS ADVANCED ON BEHALF OF HENRY PRODUCTS COMPANY, WE FIND NO REASON TO MODIFY THE CONCLUSION REACHED IN OUR DECISION OF SEPTEMBER 12, 1960.