B-123947, SEP. 23, 1955

B-123947, SEP. 23, 1955

TO CONSTRUCTION MACHINERY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1955, PROTESTING AGAINST THE ACTION OF THE GENERAL SERVICES ADMINISTRATION IN AWARDING A CONTRACT TO THE RICE PUMP AND MACHINE COMPANY FOR FURNISHING 30 CENTRIFUGAL PUMPS PURSUANT TO INVITATION NO. 4H-50026-R-10-19-54 ISSUED SEPTEMBER 23, 1954, BY THE FEDERAL SUPPLY SERVICE. ALSO, THERE HAS BEEN RECEIVED A LETTER DATED JUNE 13, 1955, FROM HONORABLE JOHN SPARKMAN, CHAIRMAN, SELECT COMMITTEE ON SMALL BUSINESS, UNITED STATES SENATE, RELATIVE TO THE PROTEST.

BY THE REFERRED-TO INVITATION BIDS WERE REQUESTED FOR FURNISHING "PUMPS, CENTRIFUGAL, SELF-PRIMING, MOUNTED ON 2 STEEL WHEELS, IN ACCORDANCE WITH THE FOLLOWING MINIMUM SPECIFICATION: 4 INCH SUCTION AND DISCHARGE, 665 GALLONS PER MINUTE, POWERED BY 30 H.P. 4 CYLINDER, 4 CYCLE, 2200 R.P.M. AIR COOLED ENGINE OF 154 CUBIC INCH DISPLACEMENT AT 25 FOOT VERTICAL SUCTION LIFT AT SEA LEVEL AGAINST A 110 FOOT TOTAL HEAD. (RICE MODEL 40M OR EQUAL).' PROSPECTIVE BIDDERS WERE ADVISED THAT "TWO COPIES OF DESCRIPTIVE LITERATURE GIVING COMPLETE SPECIFICATIONS SHALL ACCOMPANY ALL BIDS.' ARTICLE 4/A) OF "SPECIAL PROGRAM CONTRACT PROVISIONS" PROVIDED, WITH RESPECT TO BRAND NAMES, THAT---

"ANY REFERENCE IN THE SCHEDULE TO MANUFACTURERS' BRAND NAMES AND NUMBERS IN DUE TO LACK OF A SATISFACTORY SPECIFICATION OR COMMODITY DESCRIPTION. SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS DESCRIPTION OF THE ARTICLES THAT WILL BE SATISFACTORY. BIDS ON COMPARABLE ITEMS OFFERED WILL BE CONSIDERED, PROVIDED THE BIDDER STATES IN HIS BID THE EXACT ARTICLE HE IS OFFERING AND HOW IT DIFFERS FROM THAT SPECIFIED. CUTS, ILLUSTRATIONS, AND OTHER DESCRIPTIVE MATTER WHICH WILL CLEARLY INDICATE THE CHARACTER OF THE ARTICLE COVERED BY THE BID AND THE DIFFERENCE FROM THE REFERENCED BRAND SHOULD BE INCLUDED, IF AVAILABLE. IN THE ABSENCE OF SUCH INFORMATION, IT IS UNDERSTOOD THAT THE BIDDER IS OFFERING THE ITEM AS SPECIFIED. WHERE FORMAL SPECIFICATIONS ARE SHOWN OR REFERRED TO IN THE SCHEDULE, INSERTION OF BRAND NAMES AND NUMBERS BY THE BIDDER WILL, UNLESS OTHERWISE STATED, BE UNDERSTOOD TO MEAN THAT THE ARTICLES SO OFFERED FULLY COMPLY WITH THE SPECIFICATION REQUIREMENTS.'

ON SEPTEMBER 30, 1954, YOU ADDRESSED A LETTER TO THE CONTRACTING AGENCY CALLING ATTENTION TO AN ERROR IN THE SPECIFICATION. TO CORRECT THIS ERROR, THE GENERAL SERVICES ADMINISTRATION ISSUED SPECIAL NOTICE NO. 1, DATED OCTOBER 8,1954, REVISING THE SPECIFICATION.

THE RECORD SHOWS THAT YOUR BID WAS THE LOWEST RECEIVED AND THAT OF MARLOW PUMPS, DIVISION OF BELL AND GOSSETT COMPANY, WAS THE NEXT LOWEST. SUBMITTING YOUR BID YOU PLACED AN "X" IN THE ,NO" BLANK ON PAGE 27 OF THE INVITATION SIGNIFYING THAT THE EQUIPMENT YOU PROPOSED TO FURNISH DID NOT VARY FROM THE DESCRIPTIVE LITERATURE OR CUTS SUBMITTED. YOU THEN LISTED THE SPECIFIC DEVIATIONS THAT YOU WERE MAKING WHICH, IN EFFECT, BROUGHT YOUR BID WITHIN THE CHANGED SPECIFICATIONS THAT RESULTED FROM THE ISSUANCE OF SPECIAL NOTICE NO. 1 -- WHICH YOU STATE THAT YOU DID NOT RECEIVE--- AND THE GENERAL SERVICES ADMINISTRATION REPORTS THAT YOUR BID WAS CONSIDERED ON THAT BASIS. AS YOU STATE, YOU LISTED NO DEVIATION FROM FURNISHING THE 30 H.P. MOTOR. HOWEVER, THERE WAS ATTACHED TO YOUR BID (AND THAT OF MARLOW PUMPS) DESCRIPTIVE LITERATURE WHICH SHOWED THAT THE PUMPS WHICH YOU WERE OFFERING WOULD DEVELOP 25 HORSEPOWER INSTEAD OF 30, AS REQUIRED. VIEW OF SUCH DEVIATIONS THE TWO BIDS WERE REJECTED AND AWARD WAS MADE TO THE THIRD LOW BIDDER WHO MET THE SPECIFICATIONS IN ALL RESPECTS.

WITH RESPECT TO YOUR CONTENTIONS REGARDING YOUR DISCUSSIONS WITH CERTAIN PERSONNEL OF THE CONTRACTING AGENCY, THE ASSISTANT ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, IN HIS REPORT DATED JULY 21, 1955, STATES:

"IN REGARD TO THE FIFTH PARAGRAPH ON PAGE 1 OF CONSTRUCTION MACHINERY COMPANY'S PROTESTING LETTER OF MAY 9, 1955, MR. HOMANN DID, ON SEVERAL OCCASIONS, CONTACT THE PURCHASING AGENT, MRS. STEARNS, ABOUT THE PROGRESS IN MAKING AWARD, AND IN EACH INSTANCE WAS ADVISED THAT NO AWARD HAD BEEN MADE.

"WITH REFERENCE TO PARAGRAPHS 2 AND 4 ON PAGE 2, AND PARAGRAPH 3 ON PAGE 5, MR. HOMANN APPARENTLY IS CONFUSED AS TO THE LEGAL EFFECT OF LITERATURE SUBMITTED WITH HIS BID. IT WAS POINTED OUT TO HIM THAT LITERATURE WAS REQUESTED BY THE INVITATION AND THAT SUCH LITERATURE WAS USED IN CONJUNCTION WITH AND BECOMES A PART OF HIS BID.

"IT IS FELT THAT ONE QUESTION RAISED BY CONSTRUCTION MACHINERY COMPANY SHOULD BE CLARIFIED. THIS DEALS WITH THE AUTHORITY TO DISCUSS BIDS SUBMITTED BY BIDDERS WITH PERSONNEL OF GSA. WHEN AN INCONSISTENCY APPEARS IN A BID, UNLESS DISCUSSION WITH THE BIDDER IN QUESTION WOULD BE PREJUDICIAL TO THE INTERESTS OF THE OTHER BIDDERS, IT IS OUR POLICY TO REQUEST A CLARIFICATION.'

IT APPEARS FROM THE FOREGOING THAT THE CONTRACT WAS AWARDED TO THE RICE PUMP AND MACHINE COMPANY ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT YOUR BID WAS NOT RESPONSIVE TO THE ADVERTISED SPECIFICATIONS IN ALL MATERIAL RESPECTS. THE CONTRACTING OFFICER NECESSARILY IS VESTED WITH A CERTAIN AMOUNT OF DISCRETION IN SUCH MATTERS AND IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR A COMPLETE DISREGARD OF THE FACTS WE WOULD NOT BE WARRANTED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL. WHILE YOU CLAIM THAT YOUR BID WAS RESPONSIVE TO THE INVITATION, BECAUSE THE INVITATION CALLED FOR A 30 H.P. ENGINE, THE DESCRIPTIVE LITERATURE WHICH WAS REQUIRED TO BE SUBMITTED BY YOU INDICATED THAT THE PUMP OFFERED BY YOU WAS POWERED BY A 25 H.P. ENGINE, AND YOU INSERTED "NO" IN THE SPACE SPECIFICALLY CALLING FOR A STATEMENT WHETHER OR NOT THE EQUIPMENT PROPOSED VARIED IN ANY RESPECT FROM THE DESCRIPTION OR CUTS SUBMITTED.

IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT ACCEPTANCE OF YOUR BID AS SUBMITTED WOULD NOT HAVE BOUND YOU TO FURNISH A 30 H.P. ENGINE, AND THAT ACCEPTANCE OF YOUR PROFFERED EXPLANATION OF YOUR BID WOULD HAVE AMOUNTED TO A MODIFICATION OF THE BID AFTER OPENING, TO THE PREJUDICE OF OTHER BIDDERS.

ACCORDINGLY, YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL OR IMPROPER.