B-141803, FEBRUARY 10, 1960, 39 COMP. GEN. 570

B-141803, FEBRUARY 10, 1960, 39 COMP. GEN. 570

CONTRACTS - SPECIFICATIONS - DEFINITENESS - AWARDS AS BEING VOID AN AWARD UNDER AN INVITATION WHICH PERMITS THE BIDDERS TO OFFER EQUIPMENT VARYING FROM THE SPECIFICATIONS TO SOME UNDEFINED EXTENT SO THAT THERE IS NO BASIS FOR THE BIDDERS TO KNOW WHAT THEY ARE BIDDING FOR OR AGAINST, ALTHOUGH THEY MAY LOOSELY BE SAID TO BE IN A POSITION OF EQUALITY IN THAT EACH MAY OFFER WHAT HE CHOOSES, MAY NOT BE REGARDED AS HAVING BEEN MADE ON THE BASIS OF THE FULL AND FREE COMPETITION REQUISITE TO THE PROCUREMENT, WHICH COMPETITION CAN BE OBTAINED ONLY WHEN THE INVITATION AND SPECIFICATIONS ARE SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS; AND, THEREFORE, AN AWARD OF A CONTRACT UNDER SUCH INVITATION IS VOID.

TO THE SECRETARY OF THE ARMY, FEBRUARY 10, 1960:

WE REFER TO A LETTER OF JANUARY 22, 1960, SIGNED BY THE CHIEF, CONTRACTS BRANCH, REQUESTING OUR DECISION WITH RESPECT TO THE APPROPRIATE DISPOSITION OF A PROTEST BY THE ERIE FOUNDRY COMPANY AGAINST AWARD OF CONTACT NO. DA-19-058-504-ORD-663 TO THE LOBKOWITZ MACHINERY COMPANY, ON THE BASIS THAT THE CONTRACT SPECIFICATIONS ARE UNDULY RESTRICTIVE.

INVITATION NO. ORD-19-058-60-13, CALLING FOR THREE HOT TRIM PRESSES WAS ISSUED BY THE SPRINGFIELD ARMORY ON SEPTEMBER 1, 1959, AND DISSEMINATED TO 23 PROSPECTIVE BIDDERS. THE SEVEN BIDS RECEIVED WERE OPENED ON OCTOBER 1, 1959. THE THREE LOW BIDS WERE AS FOLLOWS: ERIE FOUNDRY COMPANY, $41,900; JOSEPH T. RYERSON AND COMPANY, INC., $61,040; LOBKOWITZ MACHINERY COMPANY, $63,970. THE TWO LOWEST BIDS WERE REJECTED AS NOT IN CONFORMITY WITH THE SPECIFICATIONS AND AWARD WAS MADE TO THE LOBKOWITZ MACHINERY COMPANY ON NOVEMBER 16, 1959. BECAUSE OF THE RECEIPT OF THE PROTEST AND THE POSSIBILITY THAT THE AWARD MAY BE VOIDED, THE CONTRACTOR WAS DIRECTED ON DECEMBER 11, 1959, TO STOP ALL WORK UNDER THE CONTRACT.

PARAGRAPH 4.1 OF THE SPECIFICATIONS REQUIRES THE USE OF ONE PIECE TYPE MAIN CASTING OF CLOSE GRAIN GRAY IRON OR EQUAL. PARAGRAPH 4.2 REQUIRES ASIDE FRAMES OR UPRIGHTS OF FORGED STEEL, WITH HIGH TENSILE IRON SIDE FRAME SEPARATORS. PARAGRAPH 4.3 REQUIRES THE YOKE OR CROSS SUPPORT AT THE TOP OF THE MACHINE TO BE A REINFORCED I BEAM SECTION OF HIGH TENSILE IRON CASTING. PARAGRAPH 4.4 REQUIRES THE BED TO BE A MASSIVE TENSILE IRON CASTING WITH OUTBOARD SUPPORTS FOR SPRUE CUTTER AND GEARING CAST INTEGRAL. PARAGRAPH 4.10 REQUIRES THAT THE MACHINE BE EQUIPPED WITH PNEUMATIC CONSTANT PRESSURE COUNTER-BALANCES. THE LOW BID FROM THE ERIE FOUNDRY COMPANY OFFERED WELDED STRUCTURAL STEEL FRAMES, TONGUED AND BOLTED UPRIGHTS, AND A WELDMENT FRAME ARRANGEMENT. IT WAS REJECTED ON THE BASIS THAT THE SPECIFICATION REQUIREMENTS OF PARAGRAPH 4.1 THROUGH 4.4, AND POSSIBLY OF 4.10, WERE NOT MET.

THE LOW BIDDER, HOWEVER, HAS CONTENDED THAT ITS BID SHOULD BE REGARDED AS RESPONSIVE ON THE BASIS OF PARAGRAPH 2.0 OF THE SPECIFICATIONS AS FOLLOWS:

2.0 THE FOLLOWING SPECIFICATIONS ARE INTENDED TO BE INFORMATIVE RATHER THAN RESTRICTIVE AND REPRESENT THE MINIMUM REQUIREMENT OF THE GOVERNMENT FOR A MACHINE OF THIS TYPE. THE CAPACITY AND PERFORMANCE OF THE EQUIPMENT SPECIFIED REPRESENTS THE MINIMUM NEEDS OF THE GOVERNMENT AND ARE, THEREFORE, OBLIGATORY. BIDS FOR EQUIPMENT DIFFERING IN MINOR DETAILS FROM THE EQUIPMENT DESCRIBED IN THIS SPECIFICATION WILL BE CONSIDERED, PROVIDING THE REQUIREMENTS AS TO CAPACITY AND RANGE ARE MET. FULL INFORMATION COVERING SUCH DETAILS SHALL ACCOMPANY THE BIDS.

IT IS CONTENDED BY ERIE THAT THE WELDED STEEL FRAME CONSTRUCTION USED IN ITS MACHINES IS EQUAL OR SUPERIOR TO THE CAST IRON CONSTRUCTION SPECIFIED.

THE CLEAR IMPORT OF PARAGRAPH 2.0 OF THE SPECIFICATIONS IS THAT, EXCEPT FOR THE REQUIREMENTS AS TO CAPACITY AND PERFORMANCE, BIDDERS MAY OFFER EQUIPMENT VARYING FROM THE SPECIFICATIONS IN "MINOR DETAILS.' WHILE A MINOR DETAIL IS NOT DEFINED, THAT TERM LOGICALLY SHOULD BE INTERPRETED IN RELATION TO THE DEPTH OF DETAIL PROVIDED IN THE SPECIFICATIONS. IF THE SPECIFICATIONS STATE THE REQUIREMENTS DOWN TO THE LAST DIMENSION AND CHARACTERISTIC, A VARIATION IN MINOR DETAIL MIGHT BE RESTRICTED TO A CHANGE IN THE LOCATION OF A BOLT OR THE TYPE OF A BOLT THREAD. WHERE, ON THE OTHER HAND, THE STRUCTURAL REQUIREMENTS STATED IN THE SPECIFICATIONS ARE LIMITED TO THE MORE SIGNIFICANT ASPECTS, AS THOSE OUTLINED ABOVE WITH RESPECT TO PARAGRAPHS 4.1 THROUGH 4.5, THE LANGUAGE OF PARAGRAPH 2.0 MAY WELL BE INTERPRETED TO PERMIT A MORE SIGNIFICANT VARIATION FROM THE SPECIFICATIONS. IN THIS INSTANCE WE THINK THAT THE BIDDERS MAY REASONABLY HAVE BEEN LED TO BELIEVE THAT THE SUBSTITUTION OF A WELDMENT FRAMED ARRANGEMENT FOR A MASSIVE IRON CASTING OR THE USE FOR FRAMING OF WELDED STEEL IN LIEU OF FORGED STEEL WOULD BE REGARDED AS A DIFFERENCE IN "MINOR TAIL.' THIS IS SUPPORTED BY THE FACT THAT OF THE SEVEN BIDDERS ONLY THE CONTRACTOR OFFERED TO MEET ALL OF THE STRUCTURAL REQUIREMENTS OF THE SPECIFICATIONS ALTHOUGH THE ADMINISTRATIVE RECORD INDICATES THAT THE REQUIREMENTS OF THE SPECIFICATIONS REGARDED AS ESSENTIAL BY THE PROCURING AGENCY COULD HAVE BEEN MET BY AT LEAST TWO OTHER FIRMS WHOSE PRODUCTS WERE OFFERED IN THE BIDDING. IT IS LIKELY THAT BUT FOR THE APPARENT LATITUDE AFFORDED BY PARAGRAPH 2.0, ONE OR MORE OTHER BIDDERS WOULD HAVE OFFERED PRESSES IN COMPLETE AND LITERAL CONFORMITY WITH THE SPECIFICATIONS.

THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THOSE NEEDS CAN BE MET BY A GIVEN PRODUCT ARE PRIMARILY WITH THE JURISDICTION OF THE PROCURING AGENCY. 38 COMP. GEN. 190. HOWEVER, PURCHASES SUCH AS THIS, ADVERTISED PURSUANT TO 10 U.S.C. 2305 (A), MUST PERMIT FULL AND FREE COMPETITION CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY. THE FULL AND FREE COMPETITION REQUIRED CANNOT BE OBTAINED UNLESS THE INVITATION AND THE SPECIFICATIONS ARE SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. 36 COMP. GEN. 380. THERE CAN BE NO LEGAL COMPETITION UNLESS BIDDERS ARE COMPETING ON A COMMON BASIS; NO INTELLIGENT BIDDING FOR A CONTRACT UNLESS ALL BIDDERS KNOW WHAT THE CONTRACT REQUIREMENTS WILL BE. IF BIDDERS ARE INVITED TO OFFER EQUIPMENT VARYING FROM THE SPECIFICATIONS TO SOME UNDEFINED EXTENT, THE BIDDERS MAY LOOSELY BE SAID TO BE IN A POSITION OF EQUALITY IN THAT EACH MAY OFFER WHAT HE CHOOSES, BUT THERE IS TOTALLY LACKING ANY BASIS FOR BIDDERS TO KNOW WHAT THEY ARE BIDDING FOR OR AGAINST. SINCE THE FULL AND FREE COMPETITION REQUIRED WAS NOT OBTAINED, IT IS OUR VIEW THAT THE PURPORTED AWARD IS VOID.

IT ALSO WAS CONTENDED BY THE PROTESTING BIDDER THAT THE SPECIFICATIONS, PARTICULARLY PARAGRAPH 4.4, ARE RESTRICTIVE IN THAT THEY ARE WRITTEN AROUND THE PRODUCT OF ONE MANUFACTURER. ON THE OTHER HAND, IT IS STATED IN A LETTER OF DECEMBER 15, 1959, FROM THE SPRINGFIELD ARMORY, THAT PRESSES WITH THE TYPE OF CAST CONSTRUCTED FEATURES SPECIFIED ARE BUILT BY AT LEAST THREE FIRMS. THE INFORMATION FURNISHED IS INSUFFICIENT TO DECIDE WHETHER THE SPECIFICATIONS ARE IN FACT RESTRICTIVE, AND, IN VIEW OF THE CONCLUSION REACHED ABOVE, SUCH DETERMINATION IS UNNECESSARY AT THIS TIME. IT MAY BE SAID, HOWEVER, THAT THE SPECIFICATIONS NEED NOT BE REGARDED AS UNDULY RESTRICTIVE IF THEY REASONABLY REPRESENT THE ACTUAL NEEDS OF THE GOVERNMENT, PARTICULARLY IF THREE FIRMS CURRENTLY MANUFACTURE EQUIPMENT WHICH WILL MEET SUCH SPECIFICATIONS.