B-146080, NOV. 28, 1961

B-146080, NOV. 28, 1961

TO GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO LETTERS OF YOUR ADMINISTRATION DATED JULY 24 AND OCTOBER 17, 1961, REPLYING TO OFFICE LETTERS OF JUNE 14 AND JULY 28, 1961, CONCERNING THE PROTEST BY JAMES H. MICHAEL AND D-ARCY LECK CONSTRUCTION COMPANY, PARTNERS, AGAINST THE AWARD OF A LEASE TO THE CALLEGARI-KAHN COMPANY FOR A BUILDING TO BE CONSTRUCTED IN MINNEAPOLIS, MINNESOTA, FOR OCCUPANCY BY THE FOOD AND DRUG ADMINISTRATION.

BY INVITATION NO. AD-6-385, DATED FEBRUARY 7, 1961, BIDS, TO BE OPENED ON MARCH 20, 1961, WERE INVITED FOR THE LEASING OF A TWO-STORY AND BASEMENT, NEWLY CONSTRUCTED BUILDING CONTAINING ABOUT 41,750 NET SQUARE FEET TO BE LOCATED ON A DESIGNATED SITE REQUIRED TO BE PURCHASED BY THE SUCCESSFUL BIDDER. THE BUILDING WAS TO BE CONSTRUCTED IN ACCORDANCE WITH PLANS AND SPECIFICATIONS ATTACHED TO THE INVITATION AND WAS INTENDED TO PROVIDE LABORATORY, OFFICE, GARAGE AND STORAGE SPACE FOR USE BY THE FOOD AND DRUG ADMINISTRATION.

PARAGRAPH 1, PART I OF THE INSTRUCTIONS TO BIDDERS CONCERNING THE SPACE AND SERVICE REQUIREMENTS STATES THAT---

"BIDDERS MUST COMPLY STRICTLY WITH THE BUILDING REQUIREMENTS RELATING TO THE OVERALL DIMENSIONS, INTERIOR ROOM DIMENSIONS AND LAYOUT AS SHOWN ON ATTACHED DRAWINGS MARKED A-2 THROUGH A-5 ATTACHED HERETO AS A PART OF THE INVITATION FOR BIDS.

"THE BUILDING MUST STRICTLY CONFORM TO THE SPECIFICATIONS ATTACHED HERETO AS PART OF THIS INVITATION FOR BIDS. * * *.'

PARAGRAPH 3 (B) REQUIRED THE BIDDERS TO SUBMIT A SET OF ELEVATION DRAWINGS AND FLOOR PLANS SHOWING COLUMN SPACING ON EACH FLOOR, AND A PLAN SHOWING ORIENTATION OF THE BUILDING ON THE SITE, ETC. IT PROVIDED THAT "BIDS WHICH CONTAIN DRAWINGS SHOWING ANY DEVIATION FROM THE ATTACHED DRAWINGS AND/OR THE REQUIREMENTS OF THIS INVITATION WILL BE REJECTED.'

PARAGRAPH L, PAGE 10, SECTION I OF THE REQUIREMENTS STATES:

"STEPS AT THE PUBLIC ENTRANCE SHALL BE AVOIDED. IF STEPS ARE ABSOLUTELY UNAVOIDABLE, DUE TO TOPOGRAPHY OR LACK OF STORM DRAINAGE, THEY SHALL BE PLACED WITHIN THE BUILDING. EXTERIOR STEPS ARE PROHIBITED.'

PARAGRAPH D1. (A), PAGE 18, OF THE TECHNICAL INSTRUCTIONS UNDER SECTION II STATES THAT---

"* * * THE BASEMENT WILL BE USED TO ACCOMMODATE ABOUT 50 CARS, AND IN ADDITION IT MUST INCLUDE A RECEIVING AND SHIPPING AREA, * * * AND AN INCINERATOR.'

PARAGRAPH D1. (E) (2), PAGE 19, STATES,"CEILINGS THROUGHOUT THE BUILDING SHALL BE TEN (10) FEET IN HEIGHT FROM FLOOR TO FINISHED CEILINGS.'

DRAWING NO. LF-8 INDICATES A 10 FEET - 0 INCHES DIMENSION FROM FINISHED FLOOR TO FINISHED CEILING IN BASEMENT WORK SPACES.

PARAGRAPH 12, SECTION III, PART III, MECHANICAL, PAGE 35 STATES THAT THE INCINERATOR SHOULD NOT BE LOCATED CLOSE TO THE VOLATILE SOLVENTS ROOM AND THAT A LOCATION SO THAT THE INCINERATOR COULD BE CONNECTED DIRECTLY TO THE BOILER SMOKE STACK WOULD BE PREFERRED. DRAWING NO. A 2 SHOWS THE INCINERATOR LOCATED BETWEEN THE VOLATILE SOLVENTS ROOM AND THE ELEVATOR AND SUBPARAGRAPH 1 (D) (7) OF PARAGRAPH D, TECHNICAL INSTRUCTIONS INCLUDES AN INCINERATOR AS ONE OF THE SPECIAL REQUIREMENTS OF THE USING SERVICE.

PARAGRAPH D. (5) GENERAL, SECTION II, TECHNICAL INSTRUCTIONS, PAGE 23, UNDER THE SAME SECTION STATES---

"A PAVED AND CURBED OFF-STREET PARKING AREA IS REQUIRED FOR FIFTEEN (15) AUTOMOBILES. AN ADDITIONAL AREA FOR TRUCK UNLOADING IS TO BE PROVIDED OR SUFFICIENT SIZE FOR A TRAILER TRUCK TO BACK INTO THE SHIPPING AND RECEIVING AREA OF THE FACILITY. ALL OTHER THINGS BEING EQUAL, PREFERENCE WILL BE GIVEN TO THE BIDDER OFFERING A PAVED AND CURBED OFF-STREET PARKING AREA FOR AN ADDITIONAL TWENTY-FIVE (25) AUTOMOBILES.

"THE BUILDING WILL BE IN OPERATION THROUGHOUT ALL SEASONS OF THE YEAR AND THE DESIGN AND LAYOUT OF THE PARKING AREA SHOULD PROVIDE, IN SO FAR AS POSSIBLE, FOR EASE OF SNOW REMOVAL AND OPERATION IN ICY WEATHER. DRIVEWAYS TO PARKING AREA AND RAMPS OF ENTRANCES AND EXITS TO GARAGE SHOULD NOT EXCEED A 6 PERCENT MAXIMUM SLOPE IN GRADE.'

BY PARAGRAPHS 6 AND 7 OF ADDENDUM NO. 1, DATED FEBRUARY 28, 1961, THE INVITATION WAS AMENDED AS FOLLOWS:

"/6) THE FOURTH PARAGRAPH UNDER ITEM 1, PAGE 2, REQUIRES THAT BIDDERS MUST COMPLY STRICTLY WITH THE BUILDING REQUIREMENTS RELATING TO THE OVERALL DIMENSIONS, INTERIOR ROOM DIMENSIONS AND LAYOUT AS SHOWN ON THE ATTACHED DRAWINGS MARKED A-2 THROUGH A-5. THIS PROVISION IS AMENDED TO PERMIT THE CHANGES COVERED IN THIS ADDENDUM AND PERTAINS ONLY TO DRAWING MARKED A-2.

"/7) THE RAMPS, REQUIRED IN THIS INVITATION, TO PROVIDE ACCESS TO THE BASEMENT GARAGE AREA SHALL BE EQUIPPED WITH A DE-ICING SYSTEM. HEAT TRANSFER OIL AND ELECTRICITY SHALL BE CONSIDERED THE ONLY SYSTEM ACCEPTABLE AS THE HEATING MEDIA. RADIANT HEATING, EITHER BURIED OR SUSPENDED TYPE ALSO SHALL BE FURNISHED FOR SNOW AND ICE MELTING ON SIDEWALKS AND ENTRANCES. THE SYSTEM USED MUST BE CAPABLE OF KEEPING THE RAMPS, (FREE FROM ICE AND SNOW AT ALL TIMES. THE BIDDER SHALL ALSO PROVIDE ADEQUATE DRAINS TO ASSURE QUICK DRAINAGE OF WATER FORMED AS A RESULT OF MELTING ICE, SNOW OR OTHER SOURCES OF EXCESS WATER.'

ELEVEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE TWO LOWEST BIDS WERE SUBMITTED BY THE REDMOND APARTMENT COMPANY AND JAMES H. MICHAEL AND D-ARCY LECK CONSTRUCTION COMPANY, PARTNERS, PROVIDING FOR ANNUAL RENTALS FOR THE ORIGINAL TERM IN THE RESPECTIVE AMOUNTS OF $121,152 AND $146.856. IT WAS ADMINISTRATIVELY DETERMINED, HOWEVER, THAT THESE TWO BIDS WERE NOT RESPONSIVE AND ON JUNE 2, 1961, THE BID OF CALLEGARI-KAHN OFFERING TO CONSTRUCT A BUILDING AND LEASE SAME FOR AN INITIAL TERM OF 10 YEARS AT AN ANNUAL RENTAL OF $165,000 WAS ACCEPTED.

ON JUNE 7, 1961, MICHAEL-LECK PROTESTED THE AWARD PRIMARILY ON THE GROUND THAT ITS BID WAS FULLY RESPONSIVE, AND THAT IN ANY EVENT THE CALLEGARI- KAHN BID WAS NONRESPONSIVE BECAUSE THE RAMPS PROVIDED FOR IN THE CALLEGARI -KAHN PROPOSAL EXCEED THE "6 PERCENT MAXIMUM SLOPE IN GRADE" REQUIREMENT OF THE INVITATION.

IN A LETTER OF JULY 24, 1961, FROM THE ACTING ADMINISTRATOR, IT WAS EMPHASIZED THAT SINCE THE BUILDING WAS INTENDED TO BE USED FOR SPECIAL PURPOSE ACTIVITIES IT WAS IMPERATIVE THAT THERE SHOULD BE STRICT COMPLIANCE WITH THE REQUIREMENTS OF THE INVITATION. SPECIFIC REFERENCE WAS MADE TO THE REQUIREMENTS RELATING TO THE OVERALL DIMENSIONS, INTERIOR ROOM DIMENSIONS AND LAYOUTS AS SHOWN ON THE DRAWINGS MARKED A-2 THROUGH A- 5 OF THE INVITATION AND THE REQUIREMENT FOR DEVELOPING FROM THE SPECIFICATIONS SET FORTH UNDER SECTION II OF THE INVITATION AND FROM THE SCHEMATIC DRAWINGS ATTACHED THERETO SPECIFICATIONS AND DRAWINGS IN ACCORDANCE WITH CUSTOMARY ARCHITECTURAL PRACTICES. IT WAS POINTED OUT, HOWEVER, THAT THE BIDDERS WERE RESPONSIBLE FOR THE DESIGN, LAYOUT, AND THE ORIENTATION OF THE BUILDING AND ITS APPEARANCE ON THE SITE.

AS TO THE "6 PERCENT MAXIMUM SLOPE IN GRADE" REQUIREMENT FOR THE RAMPS IT WAS STATED THAT THIS REQUIREMENT WAS INSERTED IN THE INVITATION SOLELY TO FURNISH A GUIDE LINE AND WAS NOT INTENDED TO BE A MANDATORY REQUIREMENT; THAT THE PURPOSE OF THIS PROVISION WAS TO REMIND THE BIDDERS THAT THE BUILDING WOULD BE USED YEAR-ROUND; THAT EXTRA CONSIDERATION SHOULD BE GIVEN IN THE DESIGN TO PROVIDE THE MOST EFFICIENT LAYOUT FOR OPERATION OF THE FACILITY WHEN SNOW AND ICE CONDITIONS PREVAILED; AND THAT IF SITE CONDITIONS PERMITTED, A 6 PERCENT MAXIMUM GRADE WOULD BE THE MOST DESIRABLE. IT WAS STATED THAT THE WORK "SHOULD" IN THE GRADE REQUIREMENT WAS USED TO INDICATE A DEGREE OF DESIRABILITY OR PREFERENCE AND THAT THE WORD DOES NOT CONNOTE A MANDATORY REQUIREMENT. IT WAS STATED FURTHER THAT SOME BIDDERS DISCUSSED THE GRADE REQUIREMENT WITH GSA PERSONNEL; THAT CONSIDERATION WAS GIVEN TO THE ISSUANCE OF AN ADDENDUM COVERING THIS POINT; THAT WITH A VIEW TO CLARIFYING THE MATTER A REQUIREMENT WAS INCLUDED IN ADDENDUM NO. 1, DATED FEBRUARY 28, 1961, FOR PROVIDING A DE- ICING SYSTEM ON ALL ACCESS RAMPS IN ORDER TO ELIMINATE THE BASIC PROBLEM OF KEEPING THE RAMPS FREE FROM ICE AND SNOW AT ALL TIMES AND THUS TO PERMIT YEAR-ROUND OPERATIONS; AND THAT THIS DE-ICING ARRANGEMENT WOULD ALLOW THE BIDDERS TO DESIGN THE RAMPS OUTSIDE THE BASEMENT INSOFAR AS POSSIBLE, SO THAT THE INSIDE GARAGE SPACE COULD BE MORE EFFICIENTLY UTILIZED.

IN JUSTIFICATION OF THE REJECTION OF THE MICHAEL-LECK BID IT WAS STATED IN THE LETTER OF JULY 24, 1961, THAT THIS BID WAS CONSIDERED NONRESPONSIVE BECAUSE:

(1) IT DEVIATED IN DESIGN FROM THE SCHEMATIC DRAWINGS ATTACHED TO THE INVITATION FOR BIDS AND THAT THE BUILDING PROPOSED TO BE FURNISHED BY THE PROTESTING BIDDER WAS A SPLIT-LEVEL DESIGN WHICH WOULD REQUIRE A FLIGHT OF EIGHT STEPS FROM THE GROUND ENTRANCE TO THE FIRST FLOOR.

(2) THE BID SUBMITTED BY MICHAEL-LECK PROVIDED FOR INSIDE PARKING FOR 33 VEHICLES WHEREAS THE INVITATION REQUIRED INSIDE PARKING FOR ABOUT 50 VEHICLES. A DEVIATION OF 34 PERCENT WAS CONSIDERED EXCESSIVE.

(3) THE BIDDER DID NOT PROVIDE AN INCINERATOR AS REQUIRED IN THE INVITATION FOR BIDS. ADDITIONALLY, THE DESIGN WAS CONSIDERED UNSUITABLE FOR THE INTENDED USE CONSIDERING THE AWARD FACTOR "H" OF THE AWARD FACTORS ON PAGE 6, PART I OF THE INSTRUCTIONS TO BIDDERS WHICH PROVIDED THAT---

"SUSCEPTIBILITY OF THE DESIGN OF THE SPACE OFFERED TO EFFICIENT LAYOUT AND GOOD UTILIZATION, WITH RESPECT TO GARAGE PARKING SPACE, INCLUDING RAMPS AND/OR OTHER FACILITIES PROPOSED TO PROVIDE ADEQUATE INGRESS AND EGRESS THERETO.'

IT WAS STATED THAT A REVIEW OF THE PROPOSED DESIGN OFFERED BY MICHAEL- LECK INDICATED THAT:

(A) THE ACCESS RAMP TO THE INSIDE GARAGE PROVIDES FOR ONE-WAY TRAFFIC ONLY CREATING A DANGEROUS CONDITION.

(B) THE ACCESS DRIVE TO OUTSIDE SHIPPING AND RECEIVING DOCKS PROVIDES ONE -WAY TRAFFIC CAUSING DELIVERY TRUCKS TO BACK INTO THE LOADING DOCK FROM A MAIN TRAFFIC ARTERY AND TO BACK ACROSS A SIDEWALK ENDANGERING PEDESTRIANS.

(C) SUSCEPTIBILITY OF THE DESIGN OF BASEMENT GARAGE SPACE OFFERED DOES NOT LEND ITSELF TO EFFICIENT LAYOUT AND GOOD UTILIZATION.

IT WAS STATED FURTHER THAT, WHILE THE CALLEGARI-KAHN BID OF $165,000 WAS THE THIRD LOWEST BID AS TO PRICE IT WAS THE LOWEST RESPONSIVE BID OFFERING TO MEET ALL THE REQUIREMENTS OF THE SPECIFICATIONS; THAT NO BID WAS EITHER ACCEPTED OR REJECTED BECAUSE THE BIDDER DID OR DID NOT PROPOSE ACCESS RAMPS CONTAINING SLOPES IN GRADE IN EXCESS OF 6 PERCENT; THAT THE RAMP PROVIDING ACCESS TO WASHINGTON STREET PROPOSED BY THE SUCCESSFUL BIDDER WOULD BE A 9 TO 9 1/2 PERCENT SLOPE IN GRADE; THAT THE REAR RAMP WHICH IT PROPOSED WOULD BE EXTENDED INTO THE BASEMENT AND WOULD PROVIDE A 6 PERCENT MAXIMUM SLOPE IN GRADE; THAT THE RAMP FOR ACCESS TO WASHINGTON STREET COULD HAVE BEEN DESIGNED WITH A 6 PERCENT SLOPE IN GRADE BY RAISING THE FLOOR SLAB FOR 2 BAYS DIRECTLY IN FRONT OF THE OVERHEAD DOOR; AND THAT, WHILE MAXIMUM EFFICIENCY WOULD HAVE BEEN SACRIFICED BY SO DOING, SUCH SOLUTION WOULD HAVE COMPLIED WITH THE REQUIREMENT FOR PARKING SPACE TO ACCOMMODATE ABOUT 50 VEHICLES.

FOLLOWING OUR ORIGINAL REQUEST TO YOU FOR A REPORT THERE WAS RECEIVED IN THIS OFFICE A COPY OF A LETTER DATED JUNE 15, 1961, FROM BRANDHORST AND LEADHOLM, ARCHITECTS FOR MICHAEL-LECK, SETTING FORTH THE ARCHITECTS' VIEWS AS TO WHY THE BID OF CALLEGARI-KAHN WAS NOT RESPONSIVE TO THE INVITATION, TOGETHER WITH THE REASONS WHY THEY CONSIDERED THE MICHAEL-LECK BID WAS RESPONSIVE. AMONG OTHER THINGS, THE ARCHITECTS ASSERTED THAT, WHILE THE RAMP PROVIDED FOR IN THE MICHAEL-LECK PROPOSAL UNDER THE REQUIREMENT IN PARAGRAPH (5) GENERAL OF THE TECHNICAL INSTRUCTIONS DID NOT EXCEED THE 6 PERCENT MAXIMUM REQUIREMENT, THE RAMPS PROVIDED FOR IN THE CALLEGARI-KAHN PROPOSAL PROVIDED FOR OPEN RAMPS OF 20 AND 17.9 PERCENT GRADES, RESPECTIVELY.

THEY FURTHER ASSERTED THAT ON JUNE 2, 1961 (THE DATE OF THE AWARD), THEY WERE INFORMED BY MR. KNIGHT OF YOUR KANSAS CITY REGIONAL OFFICE THAT THE 6 PERCENT MAXIMUM GRADE REQUIREMENT HAD BEEN WAIVED. THE ARCHITECTS ALSO QUESTIONED CALLEGARI-KAHN'S CONFORMITY TO THE RECITAL IN PARAGRAPH D1. (A), PAGE 18 OF THE TECHNICAL INSTRUCTIONS UNDER SECTION II, THAT THE BASEMENT WOULD BE USED TO ACCOMMODATE ABOUT 50 CARS; AND TO THE PROVISIONS OF PARAGRAPH D. (5) GENERAL, SECTION II, TECHNICAL INSTRUCTIONS, REQUIRING (1) A PAVED AND CURBED OFF-STREET PARKING FOR 15 AUTOMOBILES, AND (2) AN ADDITIONAL TRUCK UNLOADING AREA OF SUFFICIENT SIZE FOR A TRUCK-TRAILER TO BACK INTO THE SHIPPING AREA, AND (3) RECITING THAT PREFERENCE WOULD BE GIVEN TO THE BIDDER OFFERING A PAVED AND CURBED OFF-STREET PARKING AREA FOR AN ADDITIONAL 25 AUTOMOBILES. IT WAS POINTED OUT THAT, WHILE THE CALLEGARI-KAHN PROPOSAL INDICATED 62 PARKING STALLS IN THE BASEMENT, 24 OF THESE SPACES WOULD REQUIRE AISLE PARKING; THAT THEIR PROPOSAL PROVIDED FOR ONLY 7 SURFACE PARKING STALLS; AND THAT UNDER THEIR PROPOSAL TRUCKS WOULD BE REQUIRED TO DRIVE THROUGH THE BASEMENT GARAGE. IN SUBSEQUENT COMMUNICATIONS THE PROTESTING BIDDERS ASSERTED THAT, WHILE OTHER BIDDERS WERE AFFORDED AN OPPORTUNITY TO DISCUSS THEIR BIDS BETWEEN THE SUBMISSION THEREOF AND THE AWARD OF THE CONTRACT, THEY WERE DENIED ANY OPPORTUNITY TO CLARIFY OR EVEN DISCUSS THEIR BID. THEY CONTENDED THAT IT WAS ABSOLUTELY IMPOSSIBLE TO MEET THE REQUIREMENTS OF THE INVITATION WITH RESPECT TO THE RAMP SLOPES AND HAVE THE BUILDING'S FIRST FLOOR LEVEL WITH THE GROUND. WITH RESPECT TO THE INCINERATOR THEY ASSERTED THAT THEIR DRAWINGS DO HAVE THE WORD "INCINERATOR" ON THEM; THAT THEIR ARCHITECTS HAVE INFORMED THEM THAT ON THE OVERLAY DURING THE PREPARATION OF THE DRAWINGS THE WORD DID NOT COME OUT CLEARLY; THAT THEY INTENDED TO PROVIDE AN INCINERATOR; AND THAT THIS CLERICAL OMISSION SHOULD BE GIVEN CONSIDERATION. IN THIS CONNECTION, THEY REFER TO PARAGRAPH 8 OF THE INSTRUCTIONS TO BIDDERS WHERE EACH BIDDER WAS NOTIFIED THAT HIS BID WOULD BE CONSTRUED TO BE IN FULL AND COMPLETE COMPLIANCE WITH THE TERMS, PROVISIONS, AND SPECIFICATIONS OF THE INVITATION, UNLESS HE CLEARLY DESCRIBED IN HIS BID ANY DEVIATION THEREFROM.

IN YOUR LETTER OF OCTOBER 17, 1961, YOU STATED THAT THE TECHNICAL MATTERS PRESENTED IN THE LETTER OF JUNE 15, 1961, FROM THE ARCHITECTS FOR THE PROTESTING BIDDER HAD BEEN REVIEWED AND EVALUATED AND THAT WHILE IT WAS NOW RECOGNIZED THAT THERE WERE SEVERAL TECHNICAL DEVIATIONS IN THE PLANS OF BOTH THE BIDDERS IN QUESTION, IN YOUR JUDGMENT THE LEASE AWARD WAS MADE TO THE RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WAS THE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. HOWEVER, AS TO THE ARCHITECTS' FIRST CONTENTION CONCERNING THE GRADES IN THE RAMP SLOPED AS PROVIDED FOR IN THE CALLEGARI-KAHN PROPOSAL, IT WAS ADMITTED THAT INSTEAD OF THE 9 TO 9 1/2 PERCENT SLOPE IN THE RAMP PROVIDING ACCESS TO WASHINGTON STREET AND THE 6 PERCENT MAXIMUM SLOPE IN THE REAR RAMP AS ORIGINALLY REPORTED, FURTHER CONSIDERATION OF THE PRELIMINARY DRAWINGS INCLUDED IN THE CALLEGARI-KAHN PROPOSAL DISCLOSES THAT THE GRADES OF THE SLOPES WOULD BE AS FOLLOWS:

1. ALLEY AND WASHINGTON STREET RAMPS.

(A) WITHOUT TRANSITION SLOPES 25 PERCENT

(B) WITH TRANSITION SLOPES 34 PERCENT

2. WASHINGTON STREET RAMP-EXTENDING RAMP TO SIDEWALK.

(A) WITHOUT TRANSITION SLOPE 17 PERCENT

(B) WITH TRANSITION SLOPE 20 PERCENT

IT WAS STILL CONTENDED, HOWEVER, THAT THE 6 PERCENT GRADE MENTIONED ON PAGE 23 OF THE INVITATION WAS MERELY AN INDICATION OF THE GRADIENT DESIRED, RATHER THAN A MANDATORY REQUIREMENT, AS INTERPRETED BY THE ARCHITECTS FOR MICHAEL-LECK; AND THAT THE CALLEGARI-KAHN SUBMISSION IS RESPONSIVE EVEN THOUGH THE RAMPS PROPOSED BY IT EXCEED THE 6 PERCENT GRADE STIPULATED IN THE INVITATION. IN JUSTIFICATION OF THIS VIEW YOU STATE THAT THE PURPOSE OF PARAGRAPH 3 (B) OF THE INVITATION FOR BIDS WAS TO HAVE EACH BIDDER SUBMIT PRELIMINARY DRAWINGS WHICH, IN ADDITION TO HIS BID, COULD BE USED TO EVALUATE THOSE ITEMS ENUMERATED IN THE PARAGRAPH, INCLUDING THE RAMP SLOPES; THAT IT MUST BE RECOGNIZED THAT THE DRAWINGS REQUIRED TO BE SUBMITTED WITH THE BIDS ARE PRELIMINARY AND NOT FINAL WORKING DRAWINGS; AND THAT THIS IS RECOGNIZED IN PARAGRAPH A ON PAGE 15 OF THE INVITATION WHICH REQUIRED DEVELOPMENT OF DRAWINGS WHICH WOULD BE OF SUFFICIENT DETAIL TO ENABLE THE GOVERNMENT TO EVALUATE AND APPROVE THE PROPOSED BUILDING WITH RESPECT TO PERFORMANCE CAPABILITIES AND REQUIREMENTS OF THE GOVERNMENT.

WITH RESPECT TO THE ARCHITECTS' SECOND CONTENTION CONCERNING THE STATEMENT THAT THE BASEMENT WOULD BE USED FOR A GARAGE TO ACCOMMODATE ABOUT 50 CARS, WHEREAS THE SCHEMATIC ALLOWS ONLY 29 UNBLOCKED SPACES, IT IS EXPLAINED THAT THE PURPOSE OF SCHEMATIC DRAWING NO. A-2, ALTHOUGH DRAWN TO SCALE, WAS MERELY INTENDED TO DEPICT THE GENERAL LAYOUT OF THE PARKING FACILITIES AND NOT FOR THE PURPOSE OF SHOWING THE EXACT NUMBER OF PARKING SPACES AND THAT THEREFORE, THE SCHEMATIC DRAWING MUST BE INTERPRETED IN CONJUNCTION WITH THE WRITTEN PORTION OF THE INVITATION RELATIVE TO THE SAME MATTER. YOU CONCEDE AS SUBSTANTIALLY CORRECT THE ARCHITECTS' STATEMENTS THAT (1) 24 OF THE 62 PARKING STALLS IN THE BASEMENT PROVIDED FOR IN THE CALLEGARI-KAHN BID ARE IN THE AISLES, (2) THAT ITS BID PROVIDES FOR ONLY 7 SURFACE PARKING STALLS, AND (3) THAT TRUCKS WILL BE REQUIRED TO DRIVE THROUGH THE BASEMENT GARAGE.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER THE ARTICLES OFFERED BY THE BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY, AND SUCH FACTUAL DETERMINATIONS ARE ORDINARILY QUESTIONED BY OUR OFFICE ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 17 COMP. GEN. 554; 36 ID. 251; 38 ID. 190. IT IS, HOWEVER, WITHIN THE PROVINCE OF THIS OFFICE TO DETERMINE THE MEANING OF THE ADVERTISED TERMS SUBMITTED FOR COMPETITION AND TO SAY WHETHER AS A MATTER OF LAW THE FACTS APPEARING BRING ONE OR THE OTHER OF THE BIDS WITHIN THESE TERMS. 17 COMP. GEN. 554, 557.

IN THE PRESENT INSTANCE IT IS YOUR POSITION THAT THE BID OF CALLEGARI- KAHN IS THE LOWEST RESPONSIVE BID CONFORMING TO THE INVITATION FOR BIDS AND THAT IT WAS THE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. AS INDICATED IN YOUR TWO LETTERS, IN MAKING SUCH DETERMINATION YOU HAVE CONCLUDED THAT THE PROVISION IN PARAGRAPH D. (5) GENERAL OF THE TECHNICAL INSTRUCTIONS ON PAGE 23 OF THE INVITATION STIPULATING THAT THE "DRIVEWAYS TO PARKING AREA AND RAMPS OF ENTRANCES AND EXITS TO GARAGE SHOULD NOT EXCEED A 6 PERCENT MAXIMUM SLOPE IN GRADE" WAS MERELY FOR INDICATING THE GRADIENT DESIRED AND THAT IT WAS NOT A MANDATORY REQUIREMENT AS CONTENDED BY THE PROTESTING BIDDER. WE CANNOT AGREE WITH YOUR CONCLUSION. PARAGRAPH 1, PART I, PAGE 2 OF THE INSTRUCTIONS TO BIDDERS STATES THAT "THE BUILDING MUST STRICTLY CONFORM TO THE SPECIFICATIONS ATTACHED HERETO AS A PART OF THIS INVITATION FOR BIDS.' WHILE THE USE OF THE WORD"SHOULD" HAS BEEN INTERPRETED IN SOME SITUATIONS AS NOT BEING MANDATORY BUT INDICATING ONLY DESIRABILITY, ACCORDING TO WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2D EDITION, IT IS THE PAST TENSE OF "SHALL" AND ITS USE AS AN AUXILIARY VERB MEANS "TO BE OBLIGED," OR "MUST.' IN THE CONSTRUCTION OF CONTRACTS THE WORD "SHALL" IS GENERALLY REGARDED AS IMPERATIVE. 17 C.J.S. CONTRACTS S 304. IF, AS CONTENDED IN YOUR LETTER OF OCTOBER 17, 1961, AND THE PRIOR LETTER OF JULY 24, 1961, THE WORD "SHOULD" WAS INTENDED MERELY TO INDICATE THE GRADIENT DESIRED, THAT INTENTION COULD EASILY HAVE BEEN CONVEYED BY SO STATING AS IN THE CASE OF PARAGRAPH 3 (C), PART I OF THE INSTRUCTIONS TO BIDDERS WHERE IT WAS STATED THAT "IT IS DESIRED BUT NOT MANDATORY THAT BIDDERS SUBMIT AN ARCHITECT'S RENDERING OF THE PROPOSED BUILDING.' IN THE SENTENCE IMMEDIATELY PRECEDING THE GRADIENT REQUIREMENT IT IS STATED THAT THE BUILDING WILL BE IN OPERATION THROUGHOUT ALL SEASONS OF THE YEAR AND THAT "THE DESIGN AND LAYOUT OF THE PARKING AREA SHOULD PROVIDE, IN SO FAR AS POSSIBLE, FOR EASE OF SNOW REMOVAL AND OPERATION IN ICY WEATHER.' IN THIS CONTEXT, WE CONCLUDE THAT THE UNQUALIFIED WORD "SHOULD" IN THE GRADIENT REQUIREMENT--- ESPECIALLY WHEN COUPLED WITH THE WORD "MAXIMUM"--- CANNOT REASONABLY BE INTERPRETED AS OTHER THAN AN IMPERATIVE REQUIREMENT.

NOT ONLY DID THE RAMPS AS PROPOSED IN THE CALLEGARI-KAHN BID EXCEED THE 6 PERCENT GRADIENT REQUIREMENT, BUT ACCORDING TO A MEMORANDUM OF SEPTEMBER 14, 1961, BY THE DIRECTOR OF THE DESIGN DIVISION OF YOUR AGENCY THEY EXCEEDED BY FAR WHAT HE STATES IS AN ACCEPTABLE STANDARD MAXIMUM AND ALSO FAILED TO MEET OTHER REQUIREMENTS OF THE SPECIFICATIONS OR TO PROVIDE FOR A SATISFACTORY SOLUTION, FOR THE FOLLOWING REASONS (QUOTING FROM THE MEMORANDUM):

"D. IF THE CALLIGARI-KAHN SOLUTION PROVIDES THE DESIRED 2 FEET - 6 INCHES DIFFERENTIAL BETWEEN THE LOADING DOCK AND THE GARAGE FLOOR (THE SMALL STAIRWAY IN THE RECEIVING AND SHIPPING AREA PROMPTS US TO BELIEVE THIS WAS INTENDED. (, IT WOULD ALSO REQUIRE A 16 FOOT - 0 INCHES DIFFERENCE BETWEEN THE GARAGE FLOOR AND THE FIRST FLOOR. THIS WOULD NECESSITATE A 15 FOOT - 6 INCH DIFFERENCE BETWEEN THE TOP AND THE BOTTOM OF THE RAMPS. THE CENTERLINE LENGTH OF BOTH RAMPS IS ABOUT 61 OR 62 FEET. THESE DIMENSIONS, WITH THE APPROPRIATE TRANSITION SLOPES WILL NECESSITATE A MAXIMUM RAMP SLOPE IN EXCESS OF 34 PERCENT GRADE. * * *

"E. A RAMP SLOPE OF 12 PERCENT TO 15 PERCENT IS AN ACCEPTABLE STANDARD MAXIMUM GRADIENT FOR VEHICULAR RAMPS, PROVIDED THERE ARE APPROPRIATE TRANSITION SLOPES TO PREVENT SCRAPING. A MAXIMUM OF 6 PERCENT SLOPE IS AN UNCOMMONLY SHALLOW GRADIENT. THE YEAR-ROUND USEFULNESS OF A DEEP, NORTH FACING, EXTERIOR VEHICULAR RAMP, IN MINNEAPOLIS, WHERE THE AVERAGE ANNUAL SNOW FALL IS OVER 42 INCHES AND WHERE AS MUCH AS 16 INCHES OF SNOW HAS FALLEN IN A 24-HOUR PERIOD, IS CERTAINLY OPEN TO QUESTION. * * *

"D. THE ESTIMATED 20 PERCENT AND 17.9 PERCENT SLOPES DO NOT INCLUDE REQUIREMENTS FOR TRANSITIONS NOR FOR DEPRESSING THE GARAGE FLOOR BELOW THE LOADING DOCK.

"E.THE 34 PERCENT RAMPS DO NOT PROVIDE "ADEQUATE INGRESS AND EGRESS.'

OBVIOUSLY, ADDENDUM NO. 1, DATED FEBRUARY 28, 1961, MAY NOT BE INTERPRETED AS MODIFYING OR CHANGING IN ANY WAY THE "6 PERCENT MAXIMUM SLOPE IN GRADE" REQUIREMENT. IT MERELY ADDED ANOTHER REQUIREMENT FOR THE RAMPS PROVIDING ACCESS TO THE BASEMENT GARAGE AREA, NAMELY, THAT SUCH RAMPS SHOULD "BE EQUIPPED WITH A DE-ICING SYSTEM.' IF, AS INDICATED BY THE PROTESTING BIDDER, THERE WAS A WAIVER OF THE GRADIENT REQUIREMENT, OR AN INTERPRETATION OF ADDENDUM NO. 1 AS EFFECTING A WAIVER, MADE TO CALLEGARI-KAHN BUT NOT COMMUNICATED TO ALL OF THE BIDDERS, SUCH A WAIVER WOULD, UNDER THE CIRCUMSTANCES, BE REQUIRED TO BE REGARDED AS IN CONTRAVENTION OF THE STATUTES GOVERNING THE LETTING OF PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS.

AS HERETOFORE INDICATED THE AWARD TO CALLEGARI-KAHN WAS FURTHER PROTESTED ON THE GROUND THAT ITS BID FAILED TO COMPLY WITH THE REQUIREMENT IN PARAGRAPH D. (5) GENERAL, PAGE 23 OF THE SPECIFICATIONS WHICH PROVIDED THAT "A PAVED AND CURBED OFF-STREET PARKING AREA IS REQUIRED FOR (15) AUTOMOBILES.' IN THE MEMORANDUM OF SEPTEMBER 14, 1961, BY THE DIRECTOR, DESIGN DIVISION, COMMENTING ON THE PROTEST IN THIS RESPECT IT IS STATED THAT THE SURFACE PARKING IS CRAMPED AND LESS THAN REQUIRED BY THE SPECIFICATIONS. ALSO, IN YOUR LETTER OF OCTOBER 17, 1961, IT IS STATED THAT THE ARCHITECTS' STATEMENT TO THE EFFECT THAT CALLEGARI-KAHN OFFERED ONLY 7 STALLS FOR SURFACE PARKING IS SUBSTANTIALLY CORRECT. EXAMINATION OF THE PLANS SUBMITTED BY CALLEGARI-KAHN CONFIRMS THAT THE BIDDER PROVIDED ONLY 7 CAR SPACES FOR OFF-STREET PARKING. THE BIDDER'S FAILURE TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS IN THIS RESPECT AS WELL AS ITS FAILURE TO MEET THE "6 PERCENT MAXIMUM SLOPE IN GRADE" REQUIREMENT FOR THE RAMPS MUST BE REGARDED AS MATERIAL DEVIATIONS. A BID NOT IN MATERIAL COMPLIANCE WITH THE INVITATION MUST BE REJECTED AS NONRESPONSIVE. 17 COMP. GEN. 554. THE RULE APPLIES TO LEASES AS WELL AS TO OTHER PROCUREMENTS. 34 COMP. GEN. 119. A DEVIATION IN A BID IS MATERIAL WHEN IT GOES TO THE PRICE QUANTITY, OR QUALITY OF THE PRODUCT OFFERED. 30 COMP. GEN. 179, 181. IN THIS INSTANCE, ON THE BASIS OF THE FACTS AS ORIGINALLY REPORTED IN YOUR LETTER OF JULY 24, 1961, IT IS APPARENT THAT THE AWARD WAS MADE TO CALLEGARI-KAHN ON THE BASIS THAT THE SLOPE IN GRADE AS PROPOSED IN THEIR BID PROVIDING ACCESS TO WASHINGTON STREET WOULD BE ONLY 9 TO 9 1/2 PERCENT AND THE SLOPE IN GRADE OF THE REAR RAMP WOULD BE ONLY 6 PERCENT. BASED ON THE INFORMATION FURNISHED IN YOUR LETTER OF OCTOBER 17, 1961, AND ENCLOSURES, THE GRADIENTS AS ORIGINALLY EVALUATED WERE GROSSLY ERRONEOUS. IT IS CLEAR FROM THE DATA NOW FURNISHED CONCERNING THE GRADIENTS FOR THE RAMP SLOPES AND FROM THE COMMENTS OF THE DIRECTOR, DESIGN DIVISION WITH RESPECT THERETO THAT THE DEVIATION FROM THE 6 PERCENT GRADE REQUIREMENT IN THECALLEGARI-KAHN BID MUST BE REGARDED AS EXCESSIVE, EVEN IF THAT REQUIREMENT BE CONSIDERED AS MERELY DIRECTORY AND APPROXIMATE. ALSO, THERE CAN BE LITTLE QUESTION THAT THE FAILURE TO PROVIDE MORE THAN 7 OFF-STREET PARKING SPACES OF THE 15 SPACES REQUIRED BY PARAGRAPH D. (5) GENERAL OF THE INVITATION MUST BE REGARDED AS MATERIAL.

IN THE CIRCUMSTANCES, WE MUST CONCLUDE THAT THE CONTRACT AWARDED SHOULD BE CANCELLED. AND, SINCE IT ALSO APPEARS THAT THE PRINCIPAL BASIS FOR REJECTION OF THE MICHAEL-LECK BID--- THAT IS, THE INTERIOR STEPS, WHICH WERE NOT PROHIBITED BY THE INVITATION--- WAS THE RESULT OF THAT FIRM'S UNDERSTANDING THAT THE 6 PERCENT GRADE REQUIREMENT WAS A MANDATORY MAXIMUM WE BELIEVE THAT THE PROJECT SHOULD BE READVERTISED WITH SPECIFICATIONS SUFFICIENTLY DEFINITE TO PERMIT EVALUATION OF BIDS ON A UNIFORM BASIS.

THE ENCLOSURES TO YOUR LETTER OF OCTOBER 17, 1961, ARE RETURNED AS REQUESTED.