B-046583, OCT. 5, 1961

B-046583, OCT. 5, 1961

TO FORD PRODUCTS COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 2 AND 16, 1961, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER SPECIFICATION NO. 39810/61 ISSUED BY U.S. NAVAL AIR STATION, QUONSET POINT, RHODE ISLAND, TO PROVIDE COMBINATION WINDOWS FOR DWELLINGS IN THE WICKFORD RENTAL HOUSING PROJECT AT THE STATION.

THE ADVERTISEMENT FOR FURNISHING THE REQUIRED LABOR AND MATERIALS WAS FOR THE PURPOSE OF LETTING A CONTRACT TO EFFECT THE COMPLETION OF DEFAULTED CONTRACT NO. NBY-37394 WITH THE VENTALUM WINDOW AND DOOR PRODUCTS COMPANY WHICH WAS IN THE AMOUNT OF $22,337.50. SEVEN BIDS WERE RECEIVED, RANGING IN AMOUNT FROM $22,230 TO $28,592. THE LOW BID WAS SUBMITTED BY YOU. YOUR LETTER OF JULY 17, 1961, SUBMITTING YOUR BID OF $22,230, YOU STATED THAT IN THE EVENT YOU WERE THE LOW BIDDER YOU REQUESTED THAT THE LETTER BE CONSIDERED A PART OF YOUR BID. THE SECOND AND THIRD PARAGRAPHS OF YOUR LETTER ARE AS FOLLOWS:

"WE OFFER IN OUR BID, PRODUCTS OF A HIGHER STANDARD OF QUALITY THAN THOSE COVERED BY THE REFERRED TO SPECIFICATION.

"IN THE EVENT WE ARE THE LOW BIDDER WE REQUEST THAT A COMPARISON TEST BE MADE BETWEEN THE ITEMS BEING OFFERED BY FORD PRODUCTS COMPANY AND THOSE LIMITED TO THE SPECIFICATIONS.'

THE QUOTED PORTION OF YOUR LETTER WAS CONSIDERED BY THE CONTRACTING OFFICER AS LIMITING YOUR LIABILITY TO THE GOVERNMENT IN THAT IT WOULD REQUIRE THE GOVERNMENT TO DETERMINE WHETHER YOUR PRODUCTS MET THE GOVERNMENT'S SPECIFICATIONS. UNDER ARMED SERVICES PROCUREMENT REGULATION 2-404.2 (D) (V) WHERE A BIDDER ATTEMPTS TO IMPOSE CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT, HIS BID MUST BE REJECTED SINCE IT WOULD BE PREJUDICIAL TO OTHER BIDDERS WHO MAY HAVE UNQUALIFIEDLY AGREED TO DELIVER SPECIFICATION MATERIAL. AS AN EXAMPLE OF THE TYPE OF CASE WHERE A BID SHOULD BE REJECTED, THERE IS CITED THE CASE WHERE THE BID REQUIRES THE GOVERNMENT TO DETERMINE THAT THE BIDDER'S PRODUCT MEETS GOVERNMENT SPECIFICATIONS AND WHILE NOT SO STATED IN YOUR LETTER, PRESUMABLY YOU DID NOT AGREE TO ACCEPT LIABILITY IF THE GOVERNMENT DECIDED YOUR PRODUCT OR PRODUCTS DID NOT MEET THE SPECIFICATIONS.

IT IS NOTED FROM AN EXAMINATION OF THE ENCLOSURES TO YOUR LETTER OF AUGUST 16, 1961, TO OUR OFFICE AND FROM A REPORT OF THE DEPARTMENT OF THE NAVY DATED SEPTEMBER 8, 1961, IN REGARD TO YOUR PROTEST THAT YOU HAD SUBMITTED A LETTER IDENTICAL TO YOUR LETTER OF JULY 17, 1961, WITH YOUR BID UNDER CONTRACT NO. NBY-34504 WHICH CONTRACT INCLUDED A SPECIFICATION IDENTICAL TO THE ONE CONTAINED IN THE INSTANT CASE. YOUR BID IN THAT CASE WAS REGARDED AS BEING A QUALIFIED BID AND THEREFORE REJECTED. THE PROCUREMENT HOWEVER WAS FINALLY CANCELED. IN REGARD TO CONTRACT NO. NBY- 34504 YOU PRESENTED FOR APPROVAL TO THE OFFICER IN CHARGE OF CONSTRUCTION, PRIOR TO OPENING OF BIDS, A MODIFIED TILT TYPE WINDOW WHICH YOU INTENDED TO INSTALL IF YOU WERE THE SUCCESSFUL BIDDER. THIS WINDOW DID NOT MEET THE REQUIREMENTS OF PARAGRAPH 2.3 OF THE SPECIFICATION WHICH READS, IN PART, AS FOLLOWS: "WINDOWS OF THE "TILT" TYPE, WHEREIN THE PANELS ARE HELD IN PLACE BY LUGS WHICH ARE INSERTED IN THE SPACE BETWEEN ADJACENT TRACKS OR BETWEEN THE FACES OF THE CHANNELS, WILL NOT BE ACCEPTED.' AT THAT TIME YOU WERE INFORMED THAT YOUR TILT TYPE WINDOW WOULD NOT MEET THE REQUIREMENTS OF THE SUBJECT SPECIFICATION. IN THIS REGARD IT IS NOTED THAT PARAGRAPH 2.3 OF THE SPECIFICATION REQUIRES THAT THE COMBINATION WINDOWS SHALL BE OF THE TRIPLE TRACK TYPE AND THAT THEY MEET CERTAIN OTHER REQUIREMENTS. WHILE THE CORRESPONDENCE INDICATES THAT YOU HAVE CONTENDED THAT THE SPECIFICATION IS ARBITRARY, THE RECORD INDICATES THAT ONE OF THE OBJECTIONS TO THE USE OF TILT TYPE WINDOWS IS THE FACT THAT THE VERTICAL MEMBERS OF THE GLASS PANELS DEFLECT FROM THE MAIN FRAME UNDER PRESSURE, ALLOWING FOR INFILTRATION OF THE ELEMENTS. IF YOUR MODIFIED TILT TYPE WINDOW OVERCOMES THIS AND OTHER OBJECTIONS TO THIS TYPE OF WINDOW, YOU SHOULD BRING THIS MATTER TO THE ATTENTION OF THE CONTRACTING AGENCY. ANY EVENT, SINCE THE INSTANT CONTRACT IS ONE MADE TO COMPLETE THE WORK UNDER A DEFAULTED CONTRACT, IT WAS ENTIRELY PROPER TO READVERTISE UNDER THE SAME SPECIFICATION BECAUSE ANY VARIATION FROM THE SPECIFICATION MIGHT LIMIT THE LIABILITY OF THE SURETY ON THE DEFAULTED CONTRACT. FURTHERMORE, IF THE SPECIFICATION REQUIREMENT HAD BEEN WAIVED AFTER OPENING OF BIDS IT WOULD HAVE BEEN PREJUDICIAL TO OTHER BIDDERS WHO MIGHT HAVE SUBMITTED LOWER BIDS IF TILT TYPE WINDOWS WERE ACCEPTABLE.

WE FIND NO BASIS FOR DISAGREEING WITH THE ACTION TAKEN BY THE CONTRACTING OFFICER IN REJECTING YOUR BID.