B-124511, AUG. 12, 1955

B-124511: Aug 12, 1955

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29. YOU QUESTION THE PROPRIETY OF THE AWARD FOR THE REASON THAT ALTHOUGH THE INVITATION STATES THAT "THE SUBMITTING OF A BID SHALL BE UNDERSTOOD AS BEING A CERTIFICATION BY THE BIDDER THAT ALL REPRODUCTION WORK ON WHICH THE BID IS SUBMITTED IS PROPOSED TO BE DONE WITH PLANT AND EQUIPMENT OWNED AND DIRECTLY OPERATED BY THAT BIDDER. THAT ALTHOUGH THE INVITATION STATES THAT "BECAUSE DIFFERENT KINDS OF REPRODUCTION ARE SOMETIMES NEEDED AT THE SAME TIME FROM THE SAME ORIGINAL. IT WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES TO AWARD THIS CONTRACT AS A WHOLE. THE INVITATION PROVIDED THAT "QUANTITIES CANNOT BE SPECIFIED AND WILL BE DETERMINED SOLELY BY THE REQUIREMENTS FROM TIME TO TIME.

B-124511, AUG. 12, 1955

TO PAT ASH, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1955, ACKNOWLEDGED JULY 6, PROTESTING THE ACTION OF THE DEPARTMENT OF THE INTERIOR IN AWARDING TO THE WURGLER COMPANY, INC., A CONTRACT COVERING VARIOUS TYPES OF REPRODUCTION WORK FOR THE UNITED STATES GEOLOGICAL SURVEY FOR THE YEAR BEGINNING JULY 1, 1955.

YOU QUESTION THE PROPRIETY OF THE AWARD FOR THE REASON THAT ALTHOUGH THE INVITATION STATES THAT "THE SUBMITTING OF A BID SHALL BE UNDERSTOOD AS BEING A CERTIFICATION BY THE BIDDER THAT ALL REPRODUCTION WORK ON WHICH THE BID IS SUBMITTED IS PROPOSED TO BE DONE WITH PLANT AND EQUIPMENT OWNED AND DIRECTLY OPERATED BY THAT BIDDER," THE WURGLER COMPANY BID STATES THAT CERTAIN ITEMS, WHEN OVER 24 BY 36 INCHES, WOULD BE MADE BY ANOTHER COMPANY IN CHICAGO; AND THAT ALTHOUGH THE INVITATION STATES THAT "BECAUSE DIFFERENT KINDS OF REPRODUCTION ARE SOMETIMES NEEDED AT THE SAME TIME FROM THE SAME ORIGINAL, IT WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES TO AWARD THIS CONTRACT AS A WHOLE, RATHER THAN DIVIDE IT INTO ITEMS," THE WURGLER COMPANY BID DOES NOT INCLUDE ALL ITEMS LISTED IN THE INVITATION.

IN RESPONSE TO A REQUEST BY THIS OFFICE, THE DEPARTMENT OF THE INTERIOR HAS FURNISHED COPIES OF PERTINENT PAPERS AND A REPORT SETTING OUT ITS VIEWS IN THE MATTER. THE UNNUMBERED INVITATION, ISSUED ON JUNE 1, 1955, REQUESTED BIDS "FOR MAKING AND DELIVERING SUCH BLUEPRINTS AND OTHER REPRODUCTIONS (LISTED BELOW) AS MAY FROM TIME TO TIME BE REQUIRED BY THIS OFFICE DURING THE PERIOD JULY 1, 1955 TO JUNE 30, 1956.' THE INVITATION PROVIDED THAT "QUANTITIES CANNOT BE SPECIFIED AND WILL BE DETERMINED SOLELY BY THE REQUIREMENTS FROM TIME TO TIME. BIDS SHOULD BE MADE ON UNIT PRICES ONLY.' IT FURTHER PROVIDED THAT "THE RIGHT IS RESERVED, AS THE INTEREST OF THE GOVERNMENT MAY REQUIRE, TO REJECT ANY OR ALL BIDS AND TO WAIVE ANY MINOR INFORMALITY OR IRREGULARITY IN BIDS RECEIVED.' IN YOUR LETTER OF JUNE 10, 1955, SUBMITTING YOUR BID, YOU SET OUT CERTAIN CONDITIONS AS FOLLOWS:

"A. MINIMUM CHARGE SHALL BE BASED ON ONE (1) SQUARE FOOT FOR CONTACT PRINTING AND SMALLEST SIZE SHEET FOR PHOTOCOPIES TO BE 8 INCHES BY 10 1/2 INCHES .

"B. CONTACT PRINTS SHALL BE MEASURED FROM EDGE TO EDGE OF ORIGINAL. THE AREA OF PRINTS SHALL BE TAKEN FROM THE STANDARD AREA CHART SUCH AS USED IN OUR COMMERCIAL BUSINESS AS PER COPY SUBMITTED JUNE 22, 1951.

"C. MINIMUM CHARGE ON ALL ORDERS TO BE FIFTY CENTS (50 CENTS) INCLUDING PICK-UP AND DELIVERY SERVICES.

"D. ALL TRACINGS MEASURING IN EXCESS OF 100 INCHES IN LENGTH WILL BE BILLED AT 50 PERCENT ADDITIONAL TO THE PRICES SUBMITTED.'

IN AN ADMINISTRATIVE FINDING MADE A PART OF THE REPORT, IT IS STATED THAT ONLY TWO BIDS WERE RECEIVED AND THAT THE AWARD WAS MADE TO THE WURGLER COMPANY, INC., ON THE BASIS OF THE LOWEST COST TO THE GOVERNMENT. APPEARS THAT ALTHOUGH YOUR BID WAS LOWER THAN THAT OF THE WURGLER COMPANY ON A FEW ITEMS THE BID OF THE LATTER COMPANY WAS GENERALLY LOWER, ESPECIALLY IN VIEW OF THE ABOVE-QUOTED CONDITIONS SUBMITTED WITH YOUR BID, IT BEING STATED BY THE ADMINISTRATIVE OFFICE THAT THE NET SAVINGS EXPECTED TO RESULT FROM ACCEPTANCE OF THE BID OF THE WURGLER COMPANY, INC., WILL EXCEED $200.

THE ONLY ITEM ON WHICH THE WURGLER COMPANY DID NOT BID WAS "XEROX PLATE, IMAGE AREA, 8 1/2 INCHES BY 13 INCHES," WHICH APPARENTLY WAS NOT REGARDED AS OF SUFFICIENT IMPORTANCE TO WARRANT THE AWARD OF THE CONTRACT TO A HIGHER BIDDER. THE SAME COMMENT IS APPLICABLE TO THE ADMINISTRATIVE DETERMINATION TO DISREGARD THE FACT THAT THE WURGLER COMPANY PROPOSED TO HAVE CERTAIN ITEMS MADE IN CHICAGO, IT BEING PRESUMED THAT SUCH ITEMS WOULD CONSTITUTE ONLY A SMALL PART OF THE ENTIRE CONTRACT WORK.

THE QUESTION WHETHER DEVIATIONS FROM THE REQUIREMENT OF ADVERTISED SPECIFICATIONS OR FROM THE INVITATION TO BID MAY BE WAIVED IS DEPENDENT UPON THE PARTICULAR FACTS AND CIRCUMSTANCES PRESENT IN THE INDIVIDUAL CASE. THE PRIMARY QUESTION FOR DETERMINATION IN SUCH CASES IS WHETHER THE DEVIATION PROPOSED TO BE WAIVED GOES TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY OR QUALITY OF THE ARTICLES OR SERVICES OFFERED AND, THEREFORE, IS PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS OR IS MERELY A MATTER OF FORM OR SOME IMMATERIAL DEVIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION OR THE SPECIFICATIONS SUCH AS WOULD NOT AFFECT EITHER THE PRICE, QUALITY OR QUANTITY OF THE ARTICLES OR SERVICES OFFERED. 31 COMP. GEN. 20.

IN THE INSTANT MATTER, IT IS BELIEVED THAT THE DEVIATIONS OF THE WURGLER COMPANY BID FROM THE REQUIREMENTS OF THE INVITATION WERE SO SLIGHT AS PROPERLY TO BE REGARDED AS SUBSTANTIALLY IMMATERIAL AND THAT THERE WAS AN ADEQUATE BASIS FOR THE ADMINISTRATIVE WAIVER OF THE DEVIATIONS IN ORDER TO OBTAIN THE BENEFIT OF THE LOWER BID. ACCORDINGLY, THERE APPEARS NO PROPER BASIS FOR ..END :