B-119646, APRIL 20, 1954, 33 COMP. GEN. 499

B-119646, APRIL 20, 1954, 33 COMP. GEN. 499

BIDS - ACCEPTANCE OR REJECTION - ALTERNATE BIDS UNDER INVITATION TO BID ( STANDARD FORM 33) FOR FURNISHING CIRCUIT BREAKER, WHICH PROVIDES THAT , ALTERNATE BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED IN THE SCHEDULE," A COMPANY WHICH OFFERED CIRCUIT BREAKER NOT CONFORMING TO SPECIFICATIONS BUT WHOSE BID ALSO OFFERED CIRCUIT BREAKER CONFORMING TO SPECIFICATIONS PROPERLY MAY HAVE BID MEETING SPECIFICATIONS ACCEPTED EVEN THOUGH IT WAS DESIGNATED AS AN ALTERNATE BID. THE ALTERNATE BID WHICH IS PROHIBITED FROM CONSIDERATION BY INVITATION FOR BIDS FORM ( STANDARD FORM NO. 33) IS A PROPOSAL WHICH OFFERS MATERIAL THAT DOES NOT MEET THE SPECIFICATIONS SO THAT LOWEST BID WHICH MEETS THE SPECIFICATIONS MAY BE ACCEPTED REGARDLESS OF THE FACT THAT IT IS DESIGNATED AS AN ALTERNATE BID OR THAT IT IS ONE OF SEVERAL BIDS WHICH DOES OR DOES NOT MEET THE SPECIFICATIONS.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE INTERIOR, APRIL 20, 1954:

REFERENCE IS MADE TO LETTER OF APRIL 8, 1954, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO THE PROPRIETY OF ACCEPTING THE BID OF BROWN BOVERI CORPORATION UNDER INVITATION NO. DS-4094 FOR FURNISHING A POWER CIRCUIT BREAKER FOR THE BUREAU OF RECLAMATION.

ONE OF THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS WAS THAT THE CIRCUIT BREAKER HAVE AN INTERRUPTING RATING OF 5,000,000 KVA. THE BID OF BROWN BOVERI CORPORATION OFFERED TO FURNISH A BROWN BOVERI AIR BLAST BREAKER, TYPE DCF 220 M 3,500, 5,000,000 KVA, AND CONTAINED THE FOLLOWING STATEMENT. INTERRUPTING RATING AT 230 KV, SYMMETRICAL: 3,500,000 KVA TOTAL (WITH 80 PERCENT OFFSET: 5,000,000 KVA.' INASMUCH AS THE INTERRUPTING RATING ALLEGEDLY REQUIRED BY PARAGRAPH C-1 OF THE SPECIAL CONDITIONS OF THE INVITATION WAS 5,000,000 KVA ON BOTH SYMMETRICAL AND ASYMMETRICAL BASES, THE BREAKER DESCRIBED ABOVE WAS NOT ACCEPTABLE. HOWEVER, THE BROWN BOVERI BID ALSO OFFERED, UNDER THE HEADING " ALTERNATIVE SPECIFICATION," AN AIR BLAST BREAKER, TYPE DCVF 220 M 5,000, 7,500,000 KVA, WHICH WAS STATED TO BE EXACTLY LIKE THE DCF TYPE OFFERED WITH THE ADDITION OF PARALLEL RESISTOR TOPS, AND WHICH HAD AN INTERRUPTING RATING OF 5,000,000 KVA ON A SYMMETRICAL BASIS AND 7,500,000 KVA ON AN ASYMMETRICAL BASIS. THIS EQUIPMENT CONFORMS TO THE SPECIFICATION REQUIREMENTS. THE BID PRICE FOR THE INADEQUATE CIRCUIT BREAKER WAS $55,500, AND FOR THE ACCEPTABLE CIRCUIT BREAKER $4,800 MORE, OR $60,300. AFTER CONSIDERATION OF DISCOUNT, PRICE DIFFERENTIAL FOR FOREIGN PRODUCTS, AND ENGINEERING SERVICES CALLED FOR BY THE INVITATION, THE BROWN BOVERI BID ON THE ACCEPTABLE CIRCUIT BREAKER TOTALS $68,690 FOR EVALUATION PURPOSES. THE NEXT LOWEST ACCEPTABLE BID WAS $71,540.72.

THE DOUBT AS TO THE PROPRIETY OF ACCEPTING THE BROWN BOVERI BID ARISES BECAUSE OF THE PROVISION IN THE INVITATION ( STANDARD FORM 33 ( NOV. 1949 EDITION ( THAT " ALTERNATE BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED IN THE SCHEDULE," AND THE ABSENCE OF ANY SUCH AUTHORIZATION IN THE INVITATION SCHEDULE. THE LETTER OF APRIL 8, 1954, REQUESTS A DECISION AS TO THE EFFECT OF THIS PROVISION UPON THE ACCEPTABILITY OF THE BROWN BOVERI "ALTERNATIVE" BID. DECISION IS ALSO REQUESTED WHETHER IN FUTURE CASES THE LOWEST BID OFFERING MATERIAL MEETING SPECIFICATIONS MAY BE ACCEPTED EVEN THOUGH THE SAME BIDDER HAS OFFERED IN HIS BID, IN THE ALTERNATIVE, TO FURNISH OTHER TYPES OF EQUIPMENT WHICH MAY OR MAY NOT MEET THE SPECIFICATIONS.

AS COMMONLY UNDERSTOOD, THE PROHIBITION AGAINST "ALTERNATE" BIDS IN STANDARD FORM 33 FORBIDS CONSIDERATION OF BIDS WHICH OFFER SOMETHING OTHER THAN THAT WHICH IS CALLED FOR BY THE SPECIFICATIONS. IN THIS SENSE THE WORD "ALTERNATE" MEANS "ALTERNATIVE," THAT IS, OFFERING A CHOICE OF TWO OR MORE THINGS, ONE BEING THE THING ASKED FOR AND THE ALTERNATIVE BEING SOMETHING DIFFERENT. SO CONSIDERED, ANY BID WHICH OFFERS TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS IS NOT AN ALTERNATIVE THERETO. THUS, IF A BIDDER MADE PROPOSALS TO FURNISH ANY ONE OF SEVERAL PROPRIETARY ITEMS IN THE ALTERNATIVE AT DIFFERENT PRICES, THOSE PROPOSALS WHICH OFFERED MATERIAL MEETING SPECIFICATION REQUIREMENTS WOULD ALL BE RESPONSIVE BIDS, THE LOWEST OF WHICH PROPERLY COULD BE ACCEPTED. ON THE OTHER HAND, IF ONE OR MORE OF THE PROPOSALS OFFERED MATERIAL WHICH DID NOT MEET SPECIFICATIONS, SUCH PROPOSALS WOULD BE "ALTERNATE" BIDS WITHIN THE MEANING OF THE PROHIBITION IN STANDARD FORM 33. OF COURSE, THE MAKING OF AN UNACCEPTABLE "ALTERNATE" BID DOES NOT PRECLUDE CONSIDERATION OF OTHER PROPOSALS SUBMITTED IN THE SAME BID WHICH CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS, AND IT IS NOT MATERIAL WHETHER THE ACCEPTABLE PROPOSALS ARE DESIGNATED AS ,ALTERNATE" BIDS OR NOT.

APPLYING THE FOREGOING PRINCIPLES TO THE BID OF THE BROWN BOVERI CORPORATION, ITS SO-CALLED ,ALTERNATIVE" BID PROPERLY MAY BE ACCEPTED IF THE CIRCUIT BREAKER THERE OFFERED CONFORMS TO THE REQUIREMENTS OF THE SPECIFICATIONS.

AS REQUESTED THE ORIGINAL BID PAPERS OF BROWN BOVERI CORPORATION ARE RETURNED HEREWITH.