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B-161086, APR. 2, 1968

B-161086 Apr 02, 1968
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TO EMPIRE GENERATOR CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18. THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. NOTE THAT DIESEL ENGINE IS MADE IN ENGLAND.'. ADVISED ATLAS GENERATOR THAT ALTHOUGH ITS BID WAS LOW BY THE AMOUNT OF $57.10 (LESS THAN ONE PERCENT). THAT A CORRECT SPECIFICATION SHEET WAS INCLUDED WITH YOUR LETTER. HE WOULD AGREE THAT ATLAS GENERATOR'S BID SHOULD NOT HAVE BEEN REJECTED ON THAT BASIS ALONE. IT WAS POINTED OUT THAT THE SPECIFICATION SHEET WHICH ACCOMPANIED ATLAS GENERATOR'S BID INDICATED THAT THE EQUIPMENT OFFERED DID NOT MEET THE ADVERTISED SPECIFICATIONS AND. ATLAS GENERATOR'S BID WOULD HAVE BEEN REJECTED BECAUSE THE GENERATOR OFFERED HAD A ROTATING ARMATURE AND A MINUS 5 PERCENT VOLTAGE REGULATION RATHER THAN A (1) REVOLVING FIELD AND (2) A MINUS 2 PERCENT VOLTAGE REGULATION AS SPECIFIED.

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B-161086, APR. 2, 1968

TO EMPIRE GENERATOR CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1967, IN CONNECTION WITH THE AWARD MADE UNDER INVITATION FOR BIDS NO. 07-67-16, ISSUED BY THE UNITED STATES FOREST SERVICE, SANTA BARBARA, CALIFORNIA.

THE INVITATION REQUESTED BIDS FOR THREE ELECTRIC GENERATING PLANTS, ONAN MODEL NO. 15RDJC-3R8, OR EQUAL, FOR DELIVERY IN CALIFORNIA. THE SPECIFICATIONS AT CLAUSE 5 SPECIFICALLY PROVIDED, AMONG OTHER THINGS, FOR A 1800 RPM, 4-CYLINDER, 4-CYCLE, LIQUID-COOLED DIESEL ENGINE, AND FOR A GENERATOR WITH AUTOMATIC VOLTAGE REGULATION WITHIN PLUS OR MINUS 2 PERCENT FROM NO LOAD TO FULL LOAD AT CONTINUOUS RATING.

THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. SWEINHART ELECTRIC COMPANY (BIDDING ON KATOLIGHT PLANTS) SUBMITTED A TOTAL NET BID OF $9,740; EQUIPMENT SERVICE COMPANY (BIDDING ON ONAN PLANTS) BID A TOTAL NET OF $8,565.46; AND ATLAS GENERATOR MANUFACTURING-AND-SUPPLY COMPANY (BIDDING ON EMPIRE PLANTS) BID A TOTAL NET OF $8,508.36.

ATLAS GENERATOR, YOUR DISTRIBUTOR, INCLUDED A STATEMENT ON ITS BID SCHEDULE AS FOLLOWS: "UNDER PARAGRAPH 4, NOTE THAT DIESEL ENGINE IS MADE IN ENGLAND.' THE CONTRACTING OFFICER BY LETTER DATED APRIL 27, 1967, ADVISED ATLAS GENERATOR THAT ALTHOUGH ITS BID WAS LOW BY THE AMOUNT OF $57.10 (LESS THAN ONE PERCENT), AWARD COULD NOT BE MADE TO ATLAS GENERATOR IN VIEW OF THE TERMS OF THE EXECUTIVE ORDER IMPLEMENTING THE BUY AMERICAN ACT, 41 U.S.C. 10A-10B, WHICH PROVIDE THAT A 6 PERCENT OR GREATER PRICE DIFFERENTIAL MUST EXIST BEFORE AN AWARD CAN BE MADE FOR A FOREIGN PRODUCT OVER A DOMESTIC PRODUCT.

BY LETTER DATED MAY 2, 1967, YOU PROTESTED THE REJECTION OF ATLAS GENERATOR'S BID ON THE BASIS OF THE BUY AMERICAN ACT. YOU STATED THAT THE COMPONENTS MANUFACTURED IN THE UNITED STATES EXCEEDED 50 PERCENT OF THE TOTAL COMPONENT COST AND, THEREFORE, THAT THE EQUIPMENT OFFERED QUALIFIED UNDER THE BUY AMERICAN ACT, AND EXECUTIVE ORDER NO. 10582 DATED DECEMBER 17, 1954. YOU FURTHER STATED THAT ATLAS GENERATOR THROUGH ERROR HAD INCLUDED WITH ITS BID AN OBSOLETE SPECIFICATION SHEET, AND THAT A CORRECT SPECIFICATION SHEET WAS INCLUDED WITH YOUR LETTER.

BY LETTER DATED MAY 9, 1967, ADDRESSED TO ATLAS GENERATOR, WITH A COPY TO YOU, THE CONTRACTING OFFICER ACKNOWLEDGED YOUR PROTEST AGAINST THE REJECTION OF ATLAS GENERATOR'S BID. THE CONTRACTING OFFICER STATED THAT ASSUMING THE COST OF THE FOREIGN COMPONENTS DID NOT AMOUNT TO 50 PERCENT OF THE END PRODUCT, HE WOULD AGREE THAT ATLAS GENERATOR'S BID SHOULD NOT HAVE BEEN REJECTED ON THAT BASIS ALONE. HOWEVER, IT WAS POINTED OUT THAT THE SPECIFICATION SHEET WHICH ACCOMPANIED ATLAS GENERATOR'S BID INDICATED THAT THE EQUIPMENT OFFERED DID NOT MEET THE ADVERTISED SPECIFICATIONS AND, THEREFORE, THAT WITHOUT REGARD TO THE BUY AMERICAN ACT, ATLAS GENERATOR'S BID WOULD HAVE BEEN REJECTED BECAUSE THE GENERATOR OFFERED HAD A ROTATING ARMATURE AND A MINUS 5 PERCENT VOLTAGE REGULATION RATHER THAN A (1) REVOLVING FIELD AND (2) A MINUS 2 PERCENT VOLTAGE REGULATION AS SPECIFIED. ALSO THE ENGINE OFFERED WAS OF A THREE-CYLINDER DESIGN RATHER THAN A FOUR-CYLINDER ENGINE AS REQUIRED BY THE SPECIFICATIONS. IT WAS FURTHER STATED THAT THE DATA SUBMITTED WITH ATLAS GENERATOR'S BID HAD TO BE USED IN DECIDING WHETHER THE EQUIPMENT OFFERED WAS ACCEPTABLE, AND THAT TO ALLOW THE SUBMISSION, AFTER THE BID OPENING, OF SPECIFICATIONS THAT WERE DIFFERENT FROM THOSE THAT ACCOMPANIED THE BID WOULD IN EFFECT BE GIVING THE BIDDER A "SECOND CHANCE" TO BID AND THEREFORE WOULD NOT BE IN ACCORDANCE WITH THE COMPETITIVE BIDDING PROCEDURES.

ON THE BASIS OF THE FACTS SET FORTH ABOVE, IT IS CLEAR THAT, ASIDE FROM THE BUY AMERICAN ACT, THE EQUIPMENT ORIGINALLY OFFERED BY ATLAS GENERATOR WAS NOT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS. THE SUBMISSION OF A NEW SPECIFICATION SHEET AFTER THE OPENING OF THE BIDS COULD NOT BE ACCEPTED AS MODIFYING THE BID. IT CONSISTENTLY HAS BEEN HELD THAT A BID TO BE CONSIDERED FOR AWARD MUST COMPLY WITH THE REQUIREMENTS OF THE INVITATION AT THE TIME OF THE BID OPENING. A BIDDER MAY NOT BE PERMITTED TO CHANGE OR MODIFY ITS BID AFTER THE OPENING AND IT DOES NOT MATTER WHETHER THE FAILURE TO COMPLY WAS DUE TO INADVERTENCE, MISTAKE OR OTHERWISE. 38 COMP. GEN. 819, 42 ID. 725. ALLEGATION OF ERROR IS PROPERLY FOR CONSIDERATION ONLY WHERE THE BID AS SUBMITTED IS RESPONSIVE TO THE INVITATION. 40 COMP. GEN. 432, 435. UNDER THE CIRCUMSTANCES, WE FIND NO BASIS TO QUESTION THE REJECTION OF ATLAS GENERATOR'S BID.

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