A-27950, JULY 24, 1929, 9 COMP. GEN. 24

A-27950: Jul 24, 1929

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THERE IS NO AUTHORITY TO PERMIT A BIDDER TO MODIFY ITS PROPOSAL WHICH FAILED TO COMPLY WITH THE SPECIFICATIONS AFTER THE BIDS HAVE BEEN OPENED WHEN OTHER BIDS RECEIVED DO COMPLY WITH THE SPECIFICATIONS AND ARE REASONABLE IN PRICE. AS FOLLOWS: BIDS WERE OPENED JUNE 4. A COPY OF THE SPECIFICATIONS IS ENCLOSED. WAS LOW WITH A TOTAL DELIVERED COST OF $11. THE WESTERN PIPE AND STEEL COMPANY'S BID WAS IRREGULAR FOR THE REASON THAT IT HAD PLACED THE FOLLOWING STIPULATION ON THE BID: "STEEL PLATES WILL BE FURNISHED IN ACCORDANCE WITH THE U.S. IF INSPECTION IS MADE IN ACCORDANCE WITH STANDARD PRACTICE. THE DISTINCTIONS BETWEEN THE SPECIFICATIONS REQUIRED AND THOSE NAMED BY THE WESTERN PIPE AND STEEL COMPANY ARE DISCUSSED IN PARAGRAPH 3 OF THE CHIEF ENGINEER'S LETTER OF JUNE 15.

A-27950, JULY 24, 1929, 9 COMP. GEN. 24

BIDDERS - PROPOSALS - MODIFICATION UNDER SECTION 3709, REVISED STATUTES, THERE IS NO AUTHORITY TO PERMIT A BIDDER TO MODIFY ITS PROPOSAL WHICH FAILED TO COMPLY WITH THE SPECIFICATIONS AFTER THE BIDS HAVE BEEN OPENED WHEN OTHER BIDS RECEIVED DO COMPLY WITH THE SPECIFICATIONS AND ARE REASONABLE IN PRICE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JULY 24, 1929:

THERE HAS BEEN RECEIVED IN REFERENCE TO SECTION 3709, REVISED STATUTES, YOUR LETTER OF JULY 10, 1929, AS FOLLOWS:

BIDS WERE OPENED JUNE 4, 1929, AT THE DENVER OFFICE OF THE BUREAU OF RECLAMATION UNDER SPECIFICATIONS NO. 454-D FOR STEEL PIPE FOR LITTLE VALLEY SIPHONS, VALE PROJECT, OREGON. A COPY OF THE SPECIFICATIONS IS ENCLOSED.

OF THE REGULAR BIDS SUBMITTED, THE PROPOSAL OF THE THOMPSON MANUFACTURING COMPANY OF DENVER, COLORADO, WAS LOW WITH A TOTAL DELIVERED COST OF $11,607.97.

THE WESTERN PIPE AND STEEL COMPANY OF SAN FRANCISCO, CALIFORNIA, SUBMITTED A BID IN THE TOTAL DELIVERED COST OF $11,014.82, BEING $593.15 LOWER THAN THE BID OF THE THOMPSON MANUFACTURING COMPANY. HOWEVER, THE WESTERN PIPE AND STEEL COMPANY'S BID WAS IRREGULAR FOR THE REASON THAT IT HAD PLACED THE FOLLOWING STIPULATION ON THE BID: "STEEL PLATES WILL BE FURNISHED IN ACCORDANCE WITH THE U.S. GOVERNMENT MASTER SPECIFICATIONS, NO. 352, IF INSPECTION IS MADE IN ACCORDANCE WITH STANDARD PRACTICE, AS REQUIRED BY A.S.T.M. SPECIFICATIONS A9-24.'

THE SPECIFICATIONS CALL FOR PLATES IN ACCORDANCE WITH GOVERNMENT MASTER SPECIFICATIONS NO. 352A, AND WITH GOVERNMENT GENERAL SPECIFICATIONS FOR METALS NO. 339. THE DISTINCTIONS BETWEEN THE SPECIFICATIONS REQUIRED AND THOSE NAMED BY THE WESTERN PIPE AND STEEL COMPANY ARE DISCUSSED IN PARAGRAPH 3 OF THE CHIEF ENGINEER'S LETTER OF JUNE 15, 1929, A COPY OF WHICH IS ALSO ENCLOSED.

AFTER CONSIDERING THE REGULAR BID OF THE WESTERN PIPE AND STEEL COMPANY, THE DENVER OFFICE OF THE BUREAU OF RECLAMATION WIRED THAT COMPANY UNDER DATE OF JUNE 12, 1929, INQUIRING WHETHER THE BIDDER WOULD WITHDRAW THE EXCEPTIONS NOTED ON HIS BID AND BY TELEGRAM DATED JUNE 13, 1929, THE WESTERN PIPE AND STEEL COMPANY WITHDREW THE EXCEPTIONS MADE AND AGREED TO FURNISH THE STEEL IN ACCORDANCE WITH GOVERNMENT SPECIFICATIONS NO. 352A.

UNDER THE CIRCUMSTANCES DESCRIBED, THE BUREAU OF RECLAMATION TOOK THE POSITION THAT INASMUCH AS THE GOVERNMENT WAS NOW POSSESSED OF INFORMATION TO THE EFFECT THAT THE WORK MIGHT BE DONE AT A LOWER COST THAN THAT NAMED BY THE LOWEST REGULAR BIDDER, THE DECISION OF THE COMPTROLLER GENERAL OF FEBRUARY 9, 1926, 6 DECISIONS OF COMPTROLLER GENERAL 514, WAS APPLICABLE, AND THAT ACCORDINGLY THE CORRECT PROCEDURE WOULD BE THE REJECTION OF ALL BIDS AND READVERTISEMENT FOR NEW BIDS.

THE THOMPSON MANUFACTURING COMPANY, WITH THE LOW REGULAR BID, HAS PROTESTED AGAINST THE ACTION TAKEN, CONTENDING THAT THE DECISION OF THE COMPTROLLER GENERAL CITED, FOR REASONS STATED IN ITS LETTERS OF JUNE 14 AND JUNE 27, 1929, IS NOT APPLICABLE TO THE PRESENT SITUATION. COPIES OF THE LETTERS OF JUNE 14 AND 27 ARE ALSO ENCLOSED.

YOUR DECISION IS REQUESTED AS TO WHETHER (A) AWARD MAY BE MADE TO THE THOMPSON MANUFACTURING COMPANY; (B) WHETHER READVERTISEMENT IS NECESSARY UNDER THE FACTS AS STATED AND YOUR DECISION OF FEBRUARY 9, 1927, SUPRA; OR (C) WHETHER AWARD SHOULD BE MADE TO THE WESTERN PIPE AND STEEL COMPANY UNDER ITS AMENDED BID.

IT THUS APPEARS FROM YOUR SUBMISSION THAT THE PROPOSAL OF THE WESTERN PIPE AND STEEL CO., OF SAN FRANCISCO, WAS NOT IN ACCORDANCE WITH THE SPECIFICATIONS BUT, IN EFFECT, WAS A SECOND ALTERNATE PROPOSAL IN HAVING THE INSPECTION AND ACCEPTANCE OF THE STEEL IN ACCORDANCE WITH A.S.T.M. SPECIFICATIONS A9-24 INSTEAD OF GOVERNMENT MASTER SPECIFICATIONS 352A, STATED IN THE ADVERTISEMENT FOR PROPOSALS. THE CHIEF ENGINEER REPORTED IN HIS LETTER OF JUNE 15, 1929, REFERRED TO IN YOUR SUBMISSION, THAT THE MAIN DIFFERENCES BETWEEN THE TWO SPECIFICATIONS WERE:

(A) THE PERCENTAGES OF PHOSPHORUS AND SULPHUR ARE DIFFERENT FOR BOTH STRUCTURAL STEEL AND RIVET STEEL.

(B) FOR TENSION AND BEND TESTS THE GOVERNMENT MASTER SPECIFICATIONS NO. 352A REQUIRE TWO TESTS FOR EACH MELT, AND PRESUMABLY BOTH TESTS MUST BE SATISFACTORY. THE A.S.T.M. SPECIFICATIONS NO. A9-24 CALL FOR ONE TENSION AND BEND TEST OF EACH MELT, WITH THE PROVISION THAT "IF ANY TEST SPECIMEN SHOWS DEFECTIVE MACHINING OR DEVELOPS FLAWS, IT MAY BE DISCARDED AND ANOTHER SPECIMEN SUBSTITUTED.' THIS IS THOUGHT TO CONSTITUTE A MATERIAL DIFFERENCE IN THE SPECIFICATIONS AND IS PROBABLY THE DIFFERENCE CONTEMPLATED BY THE BIDDER'S NOTE QUOTED ABOVE.

A BIDDER WHO HAS SUBMITTED AN ALTERNATIVE PROPOSAL WHEN NONE HAS BEEN REQUESTED, OR HAS SUBMITTED A PROPOSAL NOT IN ACCORDANCE WITH THE SPECIFICATIONS OF THE ADVERTISEMENT, MAY NOT BE PERMITTED--- AFTER THE BIDS ARE OPENED--- TO, IN EFFECT, WITHDRAW ITS PROPOSAL AND SUBMIT ONE IN ACCORDANCE WITH THE SPECIFICATIONS OR AGREE TO SUCH MODIFICATIONS OF ITS PROPOSAL AS WILL MAKE IT RESPONSIVE WITHOUT VARIATION FROM THE SPECIFICATIONS. THEREFORE, THE PROPOSAL OF THE WESTERN PIPE AND STEEL CO. MAY NOT BE ACCEPTED ON THE BASIS OF THE MODIFICATIONS SUBSEQUENTLY PROPOSED.

THE ONLY SERIOUS QUESTION IN THE CASE IS WHETHER ALL OF THE PROPOSALS SHOULD BE REJECTED AND READVERTISEMENT HAD FOR THE MATERIAL- - IT HAVING COME TO THE INFORMATION OF THE GOVERNMENT THAT IT IS POSSIBLE TO SECURE THE STEEL FOR THE SUM OF $593.15 LESS THAN THAT OF THE LOW PROPOSAL MEETING THE SPECIFICATIONS. SEE 6 COMP. GEN. 514, REFERRED TO IN THE SUBMISSION. UNQUESTIONABLY, THE PROPOSAL OF THE THOMPSON MANUFACTURING CO. WAS, AT THE TIME OF THE OPENING OF THE BIDS, THE LOWEST ONE MEETING THE SPECIFICATIONS AND THE FACT THAT THE GOVERNMENT HAS SUBSEQUENTLY OBTAINED INFORMATION THAT THE STEEL COULD BE PURCHASED FOR $593.15 LESS THAN THIS LOW BID ON A QUANTITY OF STEEL IN EXCESS OF $11,000, IS NOT SUFFICIENT TO JUSTIFY REJECTION OF ALL BIDS AND READVERTISEMENT. IF THE DIFFERENCE WERE GREATER, THE PUBLIC INTEREST MIGHT REQUIRE THE PROCEDURE STATED IN 6 COMP. GEN. 514 TO BE FOLLOWED, BUT THE LOSS TO THE GOVERNMENT THROUGH READVERTISING AND CONSIDERING THE BIDS IN THE INSTANT MATTER, AS WELL AS THE POSTPONEMENT OF THE AVAILABILITY OF THE STEEL FOR USE WOULD DOUBTLESS BE IN EXCESS OF THE DIFFERENCE OF $593.15.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT ON THE BASIS OF THE FACTS SUBMITTED, THE PROPOSAL OF THE WESTERN PIPE AND STEEL CO. MAY PROPERLY BE DISREGARDED IN MAKING THE AWARD.