BIDS-Continued
Evaluation-Continued
Factors other than price-Continued
Cost of changing contractors-Continued
reduction in price, but in event of negative determination, award of
requirements contract to low bidder, found satisfactory in preaward
survey, would not be prejudicial to other bidders, even though cost of
changing contractors-highly speculative factor that was not provided
in invitation-was not included in evaluation of bids....
Intangible economic costs
In evaluation of bid to furnish gas fuel to replace use of coal, railroad
revenue losses due to diminution of coal traffic, additional unemployment
benefit costs to Federal Govt., and adverse economic impact of ga
contract on State Govt. are not pertinent factors for consideration in
determining award most advantageous to U.S., price and other factors
considered, and although costs over and above bid prices may be con-
sidered when amount is ascertainable with reasonable certainty, under
Armed Services Procurement Act (10 U.S.C. 2305(c)), establishing
standard for making award of contract, imposition of intangible cost
factors to reflect economic changes that possibly might result from
particular award is not required......
Patent infringement liability
Omission in invitation to bid on radio equipment of provisions for
patent indemnification and evaluation of patent infringement liability in
accordance with 10 U.S.C. 2305(c), providing for consideration of "price
and other factors" in ascertaining low bid, does not invalidate invitation
for in addition to absence of patent indemnity provision contributing to
reduction in price, end product, including "basic circuitry" of equip-
ment-component of end product on which Govt. has royalty-free
license having been developed for military use, par. 9-103, Armed
Services Procurement Reg., prescribing patent indemnity coverage for
supplies sold or offered for sale to public in commercial market, has no
application, and matter of patent infringement is for resolution by Court
of Claims as provided by 28 U.S.C. 1498, except when administratively
settled pursuant to 10 U.S.C. 2386............
Government equipment, etc.
Use authorization
Although bidder subsequent to bid opening is granted permission for
rent-free use of Govt-owned property in its possession, rental equivalent
or rent charge to be considered in bid evaluation, failure to comply with
invitation requirement for submission prior to bid opening of written
authorization for use of property from contracting officer having cog-
nizance of property may not be waived as minor deviation under author-
ity of par. 2-405 of Armed Services Procurement Reg., use of Govt-owned
property in performance of contract materially affecting contract price,
and bidder unable to furnish exact data on property proposed to be used
has submitted nonresponsive bid that should be rejected, and prior
written use approval affording some safeguard against possible abuses by
bidders having Govt. property, requirement for pre-existing written
authorization is justified and is reasonable.....
Low bids on two procurement lots to be purchased separately, one
bidder representing Govt-owned facilities would be used, but failing to
BIDS Continued
Evaluation-Continued
Government equipment, etc.—Continued
Use authorization—Continued
furnish written use authorization required under invitation, and other
bidder not indicating use of Govt. facilities, may be accepted without
prejudice to only other bidder, who also did not furnish use authorization,
bidders not indicating use of Govt. facilities although technically not
required to furnish use authorization, unable to accomplish contract
without employing manufacturers making use of Govt. facilities, could
not accurately represent Govt. facilities would not be used, and all
bidders equally deficient in not having furnished authorization to use
Govt-furnished property, low bid on each procurement lot may be
accepted as no bidder should be allowed to circumvent obvious require-
ment for advance use authorization by indicating none is required.----
Negotiation
Factors other than price
Propriety
Under request for proposals soliciting offers for research and develop-
ment on equipment in accordance with purchase description that invited
proposals deviating from design of "preliminary engineering" model,
fact that low bidder on procurement negotiated pursuant to 10 U.S.C.
2304(a)(11) met minimum requirements of purchase description but
cost negotiations were conducted solely with second low bidder offering
superior product does not convert competitive procurement to sole
source procurement that was without higher authority approval, and
second low bidder, firm permitted by RFP to deviate from design of
preliminary model, responsive to performance characteristics of model,
as well as technical requirements of purchase description, having offered
superior product that demonstrated understanding of problem and
scope of project, meaningful negotiations could only be conducted with
that firm, and contract award pursuant to those negotiations was proper.
Options
Bid reservation not an option
Low bid quoting separate prices on each item of two lots of aerial
photographic services to be furnished under invitation providing for
award by lots or combination of lots, bids to be considered on both
individual lots basis or on "all or none" basis, which in accompanying
letter reserved right, not to be construed as mandatory, to accept "all
or none" award, is not precluded from consideration for award, reserva-
tion not constituting option to accept or reject award on either lot by
lot basis or "all or none" basis, separate prices submitted being firm bid
that could give low bidder option only in event one lot was awarded;
therefore, bid on each of two lots, both of which are to be awarded,
low whether considered on "all or none" or lot by lot basis and giving
bidder no option to refuse award may be considered for award of both
lots of work...
Qualified bids. (See Bids, qualified)
Savings to Government
Trade-in-allowance
Bid that failed to comply with invitation requirements to include
trade-in-allowance for old equipment being replaced by new equipment
to be purchased, or to submit cash bid, independent of trade-in-offer, on
BIDS Continued
Evaluation-Continued
Savings to Government-Continued
Trade-in-allowance-Continued
used equipment, where acceptance of guaranteed price made after bid
opening for used equipment if placed on sale would make bid lowest
received, was properly rejected, no cash bid having been received, use
of trade-in-method for disposal of used property, pursuant to regulations
issued under sec. 201(c) of Federal Property and Administrative Services
Act of 1949, obtains greater net return, and on basis of guarantee of
fixed amount upon sale of equipment, bid may not be reevaluated after
bid opening, guarantee constituting offer tendered after bid opening,
acceptance in effect would permit submission of second bid after dis-
closure of all bid prices contrary to well-established principles governing
bid procedures....
Failure to furnish something required. (See Contracts, specifications,
failure to furnish something required).
Notwithstanding late delivery to procurement office of proposal under
Letter Request for Technical Proposals of first step of two-step procure-
ment, directed to designated officer bearing required information, and
timely delivered by air freight to shipping and receiving area of installa-
tion, letter request failing to furnish procurement office information,
proposal should not be rejected and proposer may be afforded opportunity
to bid on second phase of procurement, strict cutoff date for acceptance
of proposal not being warranted in view of fact proposal was addressed
in conformity with letter request, proposals received containing no
prices could not become binding contracts by acceptance, no public
opening intended, proposals remained in sole knowledge of Govt. and
individual proposers, and no delay or interference had occurred in
orderly and expeditious evaluation of proposals for technical merit
only...
Invitation mailing requirements
High bid on surplus apartments offered for sale pursuant to sec. 604(g),
National Housing Act of 1934, as amended, 12 U.S.C. 1739(g), which
delayed in mails through no fault of bidder and delivered after bid
opening was rejected for not having been sent by certified or registered
mail pursuant to sec. 1-2.303, Federal Procurement Regs., may be con-
sidered for award, invitation for bids having failed to inform bidders of
certified or registered mail requirement, and although Federal Housing
Admin. usually complies with regulations implementing Federal Property
and Administrative Services Act, unless compliance would impair or
affect specific programs, appropriate regulation (Federal Property
Management) prescribing no procedure for handling late bids in the
disposal of real property, and absent regulation requiring compliance
with competitive bidding, invitation for bids for sale of surplus real
property should inform prospective bidders that bids will be rejected
unless sent by certified or registered mail...
BIDS Continued
Late-Continued
Processing and delivery by Government
Late bid forwarded by certified mail, which but for 3-day delay in
mails could have reached contract post office, located approximately
one-fifth of mile from bid opening office, 5 minutes before time sched-
uled for opening of bids, insufficient length of time for processing and
delivery of bid, may not qualify for consideration as late bid timely
mailed, par. 2-303, Armed Services Procurement Reg., and invitation
for bids requiring bids to be received in office designated not later than
exact time set for bid opening, and providing that to warrant consider-
ation of mailed bid received after bid opening but prior to award, bidder
must establish use of registered or certified mail and that failure of
timely arrival was due to delay in mails, or having timely arrived, bid
was mishandled at installation, and it is not sufficient to establish but
for mail delay bid would have timely arrived, but bidder must also
prove that his bid would have arrived sufficiently early to be delivered
on time to designated office under normal circumstances...–
Telegraphic
Delay due to Western Union
Late receipt of low telegraphic bid transmitted to Western Union
on punched tape over private wire leased from Western Union, which
would have been timely received at procurement office had delivery
not been delayed by Western Union to clarify extension prices that had
been recorded garbled on its page printer, is not chargeable to low bidder
and its bid may be considered for award, telegram having been filed in
sufficient time, whether filing is considered to have occurred when
punched tape was activated for transmission, or when received on
Western Union page printer, to allow for any normal, unusual, or fore-
seeable delay, or delays which might be expected or anticipated in
normal routine of accomplishing work of telegraph company, and garbled
message, understandable without clarification, having been caused on
Western Union equipment, delivery delay was unnecessary and bid
filed in ample time for timely delivery may be considered for award..
Telegraphic modifications
Delay due to Western Union
Award to bidder, low upon consideration of telegraphic bid modi-
fication received 3 minutes after scheduled bid opening time, due to
unnecessary break in transmission by Western Union operator, need not
be canceled on basis modification was "entirely new bid" as contended
by displaced low bidder, record justifying contracting officer's conclusion
that modification was filed in time for receipt by normal transmission
procedure prior to time fixed in invitation, and that delay due to "bust-
ing" and repeating message was not fault of bidder, but was due solely
to abnormal delay in transmission, and fact that price reduction was
substantial does not transform modification into "entirely new bid"
under invitation prohibiting telegraphic bids, and requiring use of
furnished forms and supplying of information that had not been included
in bid modification...
Allegation after award. (See Contracts, mistakes)
BIDS Continued
Mistakes-Continued
Allegation after bid opening
Low bid of joint venture on construction project offering to sub-
contract 90 percent of work under invitation requiring successful con-
tractor to perform at least 20 percent of total work, unless percentage
reduction is authorized as advantageous to Govt., is nonresponsive
bid that is prejudicial to other bidders, deviation giving low bidder
option to perform and opportunity for "bid shopping," deviation
that is not corrected by information submitted after bid opening to
effect that subsidiary corporations, controlled by and part of joint
venture organization, had been included in subcontracting percentage,
and provision for reducing percentage of work required to be performed
by contractor when advantageous to Govt. applying to requests made
"during the progress of the work," deviation giving low bidder both
opportunity for bid shopping and option whether or not to perform
contract is material and may not be waived, therefore, requiring rejection
of bid of joint venture.........
Discrepancy between words and figures
Discrepancies between written words and figures inserted in unit
column in two alternate bids on pipe to be furnished under invitation
for bridge construction and providing that "in case of variation, prices
written in words shall govern," where written figures exceed by 1,000
times normal cost reflected in other bids received and prior contracts,
may be viewed as clerical errors and not ambiguities contemplated by
invitation, bid itself ascertaining intended bid prices, that is, written
words were patently in error and written figures constituted bid intended,
situation contemplated by par. 2-406.2, Armed Services Procurement
Reg. and sec. 1-2.406-2, Federal Procurement Regs., and workpapers
establishing figures and not words were intended bid price, bid is respon-
sive and may be considered in making award.........
Mistake in bid attributable to use of word "add" instead of "deduct"
on form inviting bids on alternates for purpose of obtaining reduced
prices in event base bid exceeded final limitation may be corrected as
clerical error, notwithstanding displacement of low bid, worksheets
substantiating intent to deduct cost of alternate and not to increase
total bid by adding cost of alternate, and majority of bidders having
bid on deductive basis for alternate; therefore, determination of con-
tracting officer to treat failure to change word "add" to "deduct" as
clerical error being reasonable and within principle that downward
correction that displaces one or more bids may be permitted when
mistake and intended bid are ascertainable from invitation and bid,
correction of error is acceptable and award on basis of corrected bid
is proper....
Under invitation providing for bidder to waive portion of any alleged
mistake in bid, excluding obvious errors, etc., and mistakes that would
result in bid price reduction, contract price to exclude any correction
that exceeds amount waived, amount that is evaluated in determining
low bid, small business concern that confirmed its low bid after denial
of bid correction for an omitted item of undetermined cost, may not
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