B-154821, SEP. 15, 1964

B-154821, SEP. 15, 1964

TO THE RUCKER COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 24, 1964, PROTESTING AGAINST THE AWARD OF A CONTRACT FOR HYDRAULIC POWER SUPPLIES AND RELATED LOOSE COMPONENTS BY THE NAVY SUPPLY CENTER, OAKLAND, CALIFORNIA, UNDER INVITATION FOR BIDS (IFB) 228-69742-64, TO ANY BIDDER OTHER THAN YOUR COMPANY.

THE INVITATION, AS AMENDED, CALLED FOR BIDS ON THE ABOVE EQUIPMENT TO BE OPENED JULY 13, 1964. BIDS WERE OPENED AS SCHEDULED AND YOU WERE THE APPARENT LOW BIDDER AT A PRICE OF $4,010.00. HOWEVER, THE CONTRACTING OFFICER DETERMINED YOUR BID WAS NONRESPONSIVE TO THE DELIVERY PROVISIONS OF THE INVITATION AND, THEREFORE, AWARD WAS MADE ON JULY 21, 1964, TO POWER-MAC, INC., ON THE BASIS OF ITS SECOND LOW BID OF $4,048.00. YOU FORMALLY PROTESTED AWARD OF CONTRACT N228 (217) 66253 TO ANY OTHER COMPANY BY TELEGRAM ON JULY 22, AND FOLLOWED THIS UP BY LETTERS ON JULY 23 AND 24, TO THE CONTRACTING ACTIVITY AND TO OUR OFFICE, RESPECTIVELY.

YOU WERE REPORTEDLY INFORMED IN SEVERAL TELEPHONE CONVERSATIONS WITH THE CONTRACTING ACTIVITY THAT YOUR BID WAS DETERMINED NONRESPONSIVE TO THE INVITATION, AND THUS REJECTED, BECAUSE OF THE PHRASE,"SHIPMENT: SIXTY (60) DAYS AFTER RECEIPT OF ORDER," APPEARING IN YOUR PROPOSAL NO. 1-6726-00, WHICH YOU PREPARED AS A SUPPLEMENT TO AND SUBMITTED WITH THE STANDARD INVITATION AND BID FORM. IT WAS EXPLAINED THAT THIS PHRASE CONFLICTED WITH THE DELIVERY SCHEDULE AND PROVISIONS OF THE INVITATION. YOU REJECTED THIS EXPLANATION AS BEING "NEITHER SOUND, CONSEQUENTIAL, NOR ANY LEGAL BASIS" TO REJECT YOUR BID AND INDICATE YOU FEEL THAT "DISCRIMINATION AND PREJUDICIAL PROCUREMENT WAS RESPONSIBLE" FOR YOUR COMPANY NOT GETTING THE AWARD.

THE SECTIONS OF THE INVITATION CONCERNING DELIVERY PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"4.2 TIME OF DELIVERY

THE GOVERNMENT DESIRES THAT DELIVERY BE MADE WITHIN 30 DAYS AFTER DATE OF CONTRACT. IF THE BIDDER IS UNABLE TO MEET THE DESIRED DELIVERY TIME, IT MAY, WITHOUT PREJUDICE IN THE EVALUATION OF ITS BID, OFFER TO MAKE DELIVERY AT ANOTHER TIME, PROVIDED THAT IN NO EVENT SHALL THE BIDDER'S DELIVERY SCHEDULE EXTEND BEYOND 60 DAYS AFTER DATE OF CONTRACT. BIDS OFFERING DELIVERY AFTER THAT TIME WILL BE CONSIDERED NONRESPONSIVE TO THE INVITATION AND WILL BE REJECTED.

"7.3 TIME REQUIRED FOR ACCEPTANCE OF AWARD

ATTENTION IS DIRECTED TO PARAGRAPH 8 (D) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, WHICH PROVIDES THAT A WRITTEN AWARD MAILED OR OTHERWISE FURNISHED TO THE SUCCESSFUL BIDDER RESULTS IN A BINDING CONTRACT. ANY AWARD HEREUNDER, OR A PRELIMINARY NOTICE THEREOF, WILL BE MAILED OR OTHERWISE FURNISHED TO THE SUCCESSFUL BIDDER THE DAY THE AWARD IS DATED. THEREFORE IN COMPUTING THE TIME AVAILABLE FOR PERFORMANCE, THE BIDDER SHOULD TAKE INTO CONSIDERATION THE TIME REQUIRED FOR THE NOTICE OF AWARD TO ARRIVE THROUGH ORDINARY MAILS. HOWEVER, 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 AWARD THROUGH THE ORDINARY MAILS. IF, AS SO COMPUTED, THE DELIVERY DATE OFFERED IS LATER THAN THE DELIVERY REQUIRED IN THE INVITATION, THE BID WILL BE CONSIDERED NONRESPONSIVE AND REJECTED.

BY APPLYING THE REQUIREMENTS OF THE ABOVE SECTIONS TO THE PHRASE IN QUESTION, IT IS READILY APPARENT THAT THE DELIVERY DATE OFFERED IS LATER THAN REQUIRED IN THE INVITATION AND, EREFORE,"THE BID WILL BE CONSIDERED NONRESPONSIVE AND REJECTED.'

ALTHOUGH IT IS TRUE THAT THE BID FORM PROPERLY INDICATED DELIVERY WOULD BE MADE WITHIN 60 DAYS ,AFTER DATE OF CONTRACT," AS REQUIRED, YOUR SUPPLEMENTAL PROPOSAL QUALIFIED THIS TO THE EXTENT THAT, REGARDLESS OF WHAT MAY HAVE BEEN INTENDED, THE BID WAS SUSCEPTIBLE TO BEING INTERPRETED AS OBLIGATING YOU ONLY TO SHIP 60 DAYS AFTER RECEIPT OF ORDER. IN THIS CONNECTION, WE HAVE HELD THAT WHERE EITHER OF TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF A BID, THE BIDDER SHOULD NOT BE ALLOWED TO EXPLAIN HIS MEANING WHEN HE IS IN A POSITION THEREBY TO PREJUDICE OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS BID. 40 COMP. GEN. 393. IF YOUR OFFER OF DELIVERY IN THE SUPPLEMENTAL PROPOSAL WAS NOT INTENDED TO VARY THE CLEARLY STATED INVITATION REQUIREMENT, THERE WOULD APPEAR TO HAVE BEEN NO REASON FOR THE USE OF DIFFERENT LANGUAGE.

WHILE, AS YOU POINT OUT IN YOUR LETTER OF JULY 23, THE GOVERNMENT RESERVED THE RIGHT IN PARAGRAPH 8, AWARD OF CONTRACT, OF THE TERMS AND CONDITIONS OF THE IFB, TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS RECEIVED, THE INFORMALITIES WHICH MAY BE WAIVED ARE THOSE OF FORM AND NOT OF SUBSTANCE, OR OF SOME IMMATERIAL AND INCONSEQUENTIAL DEFECT IN/OR VARIATION OF A BID FROM THE EXACT REQUIREMENTS OF THE ADVERTISED INVITATION. WE HAVE REPEATEDLY HELD THAT DEVIATIONS IN A BID FROM THE ADVERTISED PROVISION RELATIVE TO DELIVERY, AS WELL AS OTHER FACTORS AFFECTING PRICE, QUANTITY OR QUALITY, GO TO THE SUBSTANCE OF THE BID SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS AND MAY NOT BE WAIVED AS MERE INFORMALITIES. 36 COMP. GEN. 181; 38 ID. 98; ID. 612; ID. 876.

FURTHERMORE, A BID OFFERING DELIVERY WITHIN A GIVEN TIME AFTER RECEIPT OF NOTICE OF AWARD, WHETHER EMPLOYING THAT PHRASE OR SOME OTHER PHRASE HAVING SUBSTANTIALLY THE SAME EFFECT, MAY NOT BE REGARDED AS RESPONSIVE TO AN INVITATION REQUIRING DELIVERY WITHIN A STATED TIME AFTER DATE OF CONTRACT. 38 COMP. GEN. 98. A NONRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID, CONTRARY TO THE ESTABLISHED RULES OF COMPETITIVE BIDDING. CONSIDERATION MAY BE GIVEN TO PERMITTING THE CHANGING, ADDING TO, OR DELETION OF A MATERIAL PART FROM A BID ONLY IN CASES WHERE THE BID IS RESPONSIVE IN THE FIRST PLACE AND AN ALLEGATION OF ERROR IS MADE. COMP. GEN. 819. YOUR BID, BEING NONRESPONSIVE, WAS CAPABLE NEITHER OF BEING ACCEPTED NOR IN ANY WAY CHANGED OR ALTERED TO MAKE IT RESPONSIVE. 38 ID. 876. WE HAVE CONSISTENTLY HELD THAT WHERE AN INVITATION REQUIRES DELIVERY BY A STATED TIME AND A RESPONSIVE BID IS RECEIVED, THE CONTRACTING OFFICER HAS NO AUTHORITY TO MAKE AN AWARD TO A LOWER BIDDER WHO DID NOT AGREE IN HIS BID TO MEET THE DELIVERY REQUIREMENTS. 36 COMP. GEN. 181.

THE CONTENTION ON THE FIRST PAGE OF YOUR LETTER OF JULY 23, THAT BECAUSE YOU HAD MAILED YOUR BID WHEN THE AMENDMENT EXTENDING THE OPENING DATE WAS RECEIVED, YOU WERE DENIED THE ADDITIONAL TIME ENJOYED BY OTHER BIDDERS TO PREPARE THEIR BIDS, IS WITHOUT MERIT. THE ANSWER TO THIS CHARGE IS IN THE AMENDMENT ITSELF, WHEREIN IT IS STATED:

"IF, BY VIRTUE OF THIS AMENDMENT, IT IS DESIRED TO MODIFY A BID ALREADY SUBMITTED, SUCH MODIFICATION MAY BE MADE BY TELEGRAM OR LETTER, PROVIDED SUCH TELEGRAM OR LETTER MAKES REFERENCE TO THIS AMENDMENT AND IS RECEIVED PRIOR TO THE OPENING HOUR AND DATE SPECIFIED ABOVE.'

FOR THE REASONS STATED WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN IN REJECTING THE BID AND YOUR PROTEST IS THEREFORE DENIED.