B-123622, JUN. 3, 1955

B-123622, JUN. 3, 1955

TO THE ATLANTIC MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1955, CONCERNING THE PROPRIETY OF MAKING AN AWARD OF A CONTRACT TO THE ELECTRIC SERVICES ENGINEERING COMPANY, JOLIET, ILLINOIS, AS THE LOW BIDDER UNDER INVITATION NO. 4D-54492-R-4-4-55, WHEREIN THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, REGION 3, REQUESTED BIDS FOR THE FURNISHING OF 531 GENERATORS, COMPLETELY HOUSED AND EQUIPPED WITH GASOLINE ENGINES.

IT IS ALLEGED IN YOUR LETTER THAT THE BID OF THE ELECTRIC SERVICE ENGINEERING COMPANY, QUOTING A PRICE OF $1,090 EACH, AND THE BID OF YOUR COMPANY, QUOTING ALTERNATE PRICES OF $1,165 AND $1,148 EACH, WERE THE TWO LOWEST OF 25 BIDS RECEIVED IN RESPONSE TO THE INVITATION. THE LOW BID IS DESCRIBED AS PROVIDING FOR EIGHT DIFFERENT ENGINES, INCLUDING THE WILLYS L -6, ALL AT THE SAME PRICE, WHILE YOUR BID IS DESCRIBED AS QUOTING A PRICE OF $1,165 EACH FOR GENERATORS EQUIPPED WITH CONTINENTAL ENGINES AND A PRICE OF $1,148 EACH FOR GENERATORS EQUIPPED WITH WILLYS L-6 ENGINES. HOWEVER, YOU CONTEND, IN EFFECT, THAT THE LOW BID SHOULD BE REJECTED SINCE YOU UNDERSTAND THAT THE BIDDER FAILED TO SUBMIT ANY DESCRIPTIVE LITERATURE AND INSERTED THE FOLLOWING STATEMENT IN ITS BID WITH RESPECT TO ITS LISTING OF EIGHT ENGINE MODELS AND FIVE GENERATOR MODELS:

"DETAILED DESIGN CONSIDERATIONS HAVE MADE IT IMPRACTICAL TO SELECT, AT THIS TIME, THE SPECIFIC ENGINE AND GENERATOR TO BE USED. FOLLOWING, HOWEVER, IS A LIST OF ENGINES AND GENERATORS WHICH WE ARE CONSIDERING AND ANY OF WHICH WILL MEET THE REQUIREMENTS OF THIS INVITATION.'

IT HAS BEEN REPORTED BY THE GENERAL SERVICES ADMINISTRATION THAT NO AWARD HAS BEEN MADE UNDER THE INVITATION. THE ADMINISTRATION REPORTS, ALSO THAT ITS RECORDS DISCLOSE THAT DESCRIPTIVE LITERATURE WAS SUBMITTED WITH THE LOW BID BUT THAT, AS STATED IN YOUR LETTER, THE BIDDER OFFERED EIGHT ENGINES AND FIVE DIFFERENT GENERATORS BY MANUFACTURERS' MODEL NUMBERS. TELEGRAM OF APRIL 12, 1955, THE BIDDER WAS REQUESTED TO "ADVISE COMBINATION YOU PROPOSE FURNISHING," AND IN REPLY, BY TELEGRAM OF APRIL 15, THE BIDDER STATED THAT IT PROPOSED TO USE "CONTINENTAL FA-162 ENGINE AND MARATHON L-326 GENERATOR.'

THE CONTINENTAL FA-162 ENGINE HAS BEEN FOUND TO MEET THE REQUIREMENTS OF THE BID SPECIFICATIONS AND IT IS STATED IN THE REPORT OF THE GENERAL SERVICES ADMINISTRATION THAT ALL GENERATORS OFFERED BY THE LOW BIDDER COMPLY WITH THE SPECIFICATIONS. HOWEVER, THE ENGINEERS OF THE GENERAL SERVICES ADMINISTRATION HAVE QUESTIONED THE CAPABILITY OF THE WILLYS L-6 ENGINE AND THE CONTINENTAL F-162 ENGINE EACH OF WHICH IS MENTIONED IN TWO OF THE COMBINATIONS SET FORTH IN YOUR BID. ALSO, THE GENERAL SERVICES ADMINISTRATION HAS INVITED ATTENTION TO THE FACT THAT IN THE SPACE RESERVED IN THE INVITATION FOR THE MANUFACTURER'S NAME AND MODEL NUMBER OF THE GENERATOR AND ENGINE TO BE FURNISHED THE COMBINATIONS OF THE EQUIPMENT WHICH YOU PROPOSED TO FURNISH ARE QUALIFIED BY THE WORDS "OR EQUAL," INDICATING THAT, IF YOUR COMPANY HAD SUBMITTED THE LOWEST BID THE CONTRACTING OFFICER WOULD HAVE BEEN REQUIRED TO OBTAIN INFORMATION AS TO WHAT COMBINATIONS OF EQUIPMENT YOU HAD IN MIND AS THE EQUAL OF THE COMBINATIONS MENTIONED.

OF COURSE, IT IS THE FUNDAMENTAL RULE THAT COMPETITIVE BIDS FOR GOVERNMENT CONTRACTS MAY NOT BE CHANGED AFTER BIDS ARE OPENED. THIS DOES NOT MEAN, HOWEVER, THAT A LOW BIDDER SHOULD NOT BE AFFORDED AN OPPORTUNITY TO FURNISH ADDITIONAL INFORMATION RELATING TO ITS BID WHERE, AS APPEARS TO HAVE BEEN THE SITUATION IN THE PRESENT CASE, THE BIDDER HAD EVIDENCED AN INTENTION TO FURNISH EQUIPMENT WHICH WOULD FULLY MEET THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS AND, IN FACT, HAD OFFERED SUCH EQUIPMENT.

ASSUMING THAT NO DESCRIPTIVE LITERATURE HAD BEEN FURNISHED WITH THE BID OF THE ELECTRIC SERVICE ENGINEERING COMPANY, THE SPECIFICATIONS MADE A PART OF THE ADVERTISEMENT FOR BIDS ARE CONTROLLING AND THE STATED REQUIREMENT THAT DESCRIPTIVE LITERATURE BE FURNISHED COULD, THEREFORE, HAVE BEEN WAIVED AS A MERE INFORMALITY OR IRREGULARITY PURSUANT TO THAT PART OF PARAGRAPH 1 OF THE TERMS AND CONDITIONS OF THE INVITATION WHEREIN THERE WAS RESERVED THE RIGHT, "AS THE INTEREST OF THE GOVERNMENT MAY REQUIRE, TO REJECT ANY AND ALL BIDS AND TO WAIVE ANY MINOR INFORMALITY OR IRREGULARITY IN BIDS RECEIVED.' SEE 16 COMP. GEN. 65; AND 17 ID. 940.

ACCORDINGLY, YOU ARE ADVISED THAT THERE HAS BEEN FOUND NO LEGAL BASIS FOR TAKING EXCEPTION TO AN AWARD OF THE CONTRACT TO THE ELECTRIC SERVICE ENGINEERING COMPANY AS THE LOW BIDDER UNDER THE ABOVE INVITATION FOR BIDS.