B-124567, AUG. 31, 1955

B-124567: Aug 31, 1955

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BAXTER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 6. INVITATIONS WERE ISSUED JUNE 15. IT WAS STIPULATED THAT THE EQUIPMENT OFFERED SHOULD BE SIMILAR AND EQUAL TO INET. TWELVE BIDS WERE RECEIVED AND OPENED AT 2:00 P.M. 020 WAS SUBMITTED BY THE WALKER DIVISION. SKID MOUNTINGS WHICH WERE FEATURES OF THE INET DESIGN. THE CONTRACT SUBSEQUENTLY WAS AWARDED TO THE NORMA-HOFFMANN CORPORATION ON JUNE 29. YOU STATE THAT YOU ARE PROTESTING THE AWARD OF THE CONTRACT TO THE LOW BIDDER BECAUSE THE BID WAS NOT RESPONSIVE TO THE INVITATION AND THE DIVISION OF PURCHASE AND SALES OF THE MARITIME ADMINISTRATION PERMITTED THE BIDDER TO MATERIALLY ALTER ITS BID AFTER THE BID OPENING. YOU CONTEND THAT THE LOW BID WAS NOT ON THE SAME BASIS AS THOSE OFFERED BY OTHER BIDDERS IN THAT IT FAILED TO CONFORM WITH THE FOLLOWING PROVISIONS OF THE INVITATION: "EACH BIDDER SHALL FURNISH WITH HIS BID.

B-124567, AUG. 31, 1955

TO MR. ANDREW H. BAXTER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1955, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE NORMA-HOFFMANN BEARINGS CORPORATION UNDER INVITATION TO BID NO. SD55-1005 ISSUED BY THE MARITIME ADMINISTRATION, DEPARTMENT OF COMMERCE.

INVITATIONS WERE ISSUED JUNE 15, 1955, FOR THE PURCHASE OF ONE SELENIUM RECTIFIER FOR THE TRAINING SHIP "STATE OF MAINE," MAINE MARITIME ACADEMY. IT WAS STIPULATED THAT THE EQUIPMENT OFFERED SHOULD BE SIMILAR AND EQUAL TO INET, INC. MODEL NO. DR-230-400, STYLE SOPS, AND THAT EACH BIDDER MUST FURNISH DETAILED INFORMATION CONCERNING THE RECTIFIER WHICH HE PROPOSED TO FURNISH. TWELVE BIDS WERE RECEIVED AND OPENED AT 2:00 P.M., JUNE 27, 1955. THE LOW BID OF $5,020 WAS SUBMITTED BY THE WALKER DIVISION, NORMA- HOFFMANN BEARINGS CORPORATION AND THE NEXT LOW BID OF $5,273 BY THE RICHARDSON-ALLEN CORPORATION, THE FIRM WHICH YOU REPRESENT.

AFTER THE OPENING OF THE BIDS YOU QUESTIONED THE LOW BID OF NORMA HOFFMANN BEARINGS CORPORATION ON THE PREMISE THAT IT FAILED TO INCLUDE IN ITS DETAILED DESCRIPTION OF THE RECTIFIER ANY REFERENCE TO THE DC VOLTMETER AND AMMETER, AND SKID MOUNTINGS WHICH WERE FEATURES OF THE INET DESIGN. THE CONTRACTING OFFICER CONTACTED THE LOW BIDDER BY TELEPHONE AND REQUESTED SPECIFIC CONFIRMATION AS TO FURNISHING THE QUESTIONED FEATURES. THE LOW BIDDER STATED AND CONFIRMED BY SUBSEQUENT WIRE THAT ITS BID INCLUDED THE METERS AND THE SKID MOUNTINGS. THE CONTRACT SUBSEQUENTLY WAS AWARDED TO THE NORMA-HOFFMANN CORPORATION ON JUNE 29, 1955.

IN YOUR LETTER OF JULY 6, 1955, YOU STATE THAT YOU ARE PROTESTING THE AWARD OF THE CONTRACT TO THE LOW BIDDER BECAUSE THE BID WAS NOT RESPONSIVE TO THE INVITATION AND THE DIVISION OF PURCHASE AND SALES OF THE MARITIME ADMINISTRATION PERMITTED THE BIDDER TO MATERIALLY ALTER ITS BID AFTER THE BID OPENING. YOU CONTEND THAT THE LOW BID WAS NOT ON THE SAME BASIS AS THOSE OFFERED BY OTHER BIDDERS IN THAT IT FAILED TO CONFORM WITH THE FOLLOWING PROVISIONS OF THE INVITATION:

"EACH BIDDER SHALL FURNISH WITH HIS BID, DESCRIPTIVE LITERATURE, ILLUSTRATIONS AND DETAILED INFORMATION CONCERNING THE EXACT RECTIFIERS WHICH HE PROPOSES TO FURNISH UNDER THIS SPECIFICATION.

"6. WARRANTY AS TO SPECIFICATIONS: SAMPLES ARE NOT REQUIRED TO BE FURNISHED UNDER THIS INVITATION AS THE BASIS FOR AWARD. IT IS THE RESPONSIBILITY OF THE BIDDER TO DETERMINE WHETHER THE MATERIAL PROPOSED TO BE FURNISHED UNDER THIS INVITATION DOES CONFORM TO THE REQUIRED SPECIFICATIONS. ACCORDINGLY, IF SAMPLES ARE SUBMITTED AS A PART OF A BID, OR IF THE BIDDER OFFERS AN ARTICLE BY STOCK NUMBER, CATALOG NUMBER, MANUFACTURER'S NUMBER, OR OTHER METHOD OF IDENTIFICATION, THE BIDDER WARRANTS THAT SUCH SAMPLE OR DESIGNATED ITEM CONFORMS TO THE SPECIFICATIONS CONTAINED HEREIN, UNLESS IT IS SPECIFICALLY STATED OTHERWISE IN THE BIDS.'

REGARDING THE FAILURE OF THE LOW BIDDER TO MENTION THE METERS AND SKID MOUNTINGS IN ITS DETAILED DESCRIPTION OF THE EQUIPMENT PROPOSED TO BE FURNISHED, THE CHIEF, DIVISION OF PURCHASE AND SALES, MARITIME ADMINISTRATION, IN LETTER DATED JULY 1, 1955, TO YOU, STATED THAT ARTICLE 6 OF THE INVITATION, QUOTED ABOVE, MAKES IT THE RESPONSIBILITY OF THE BIDDER TO DETERMINE THAT THE UNIT HE PROPOSES TO FURNISH CONFORMS TO THE REQUIRED SPECIFICATIONS (SIMILAR AND EQUAL TO INET, INC. MODEL NO. DR-230- 400, STYLE SOPS) AND BY SUBMITTING A BID HE WARRANTS THAT SUCH IS THE CASE AND THAT IT WAS PRIMARILY BECAUSE OF YOUR VIEWS IN THE MATTER THAT THE LOW BIDDER WAS REQUESTED TO CONFIRM THAT ITS EQUIPMENT MET THE BIDDING SPECIFICATIONS IN RESPECT TO THE METERS AND THE SKID MOUNTINGS. IT IS THE POSITION OF THE CONTRACTING AGENCY THAT THE FAILURE TO INCLUDE THE METERS AND SKID MOUNTINGS IN THE DETAILED DESCRIPTION OF THE RECTIFIER TO BE FURNISHED CONSTITUTED AN IMMATERIAL DEVIATION FROM THE TERMS OF THE INVITATION WHICH PROPERLY COULD BE CORRECTED OR DISREGARDED AFTER BID OPENING.

THE DETERMINING FACTOR IN THE CASE IS WHETHER OR NOT THE DEFICIENCY OF THE LOW BID SO CONCERNS ITS SUBSTANCE AS TO AFFECT THE COST OR QUALITY OF THE CONTRACT EQUIPMENT, OR OTHERWISE COULD HAVE GIVEN THE LOW BIDDER AN UNDUE ADVANTAGE OVER OTHER BIDDERS. AS INDICATED BY THE CONTRACTING AGENCY, THE LOW BIDDER, IN SUBMITTING ITS BID WITHOUT QUALIFICATION, WARRANTED THAT THE FEATURES OF THE EQUIPMENT SPECIFIED IN ITS OFFER WOULD BE "SIMILAR AND EQUAL TO" THOSE OF INET, INC. SINCE THE METERS AND SKID MOUNTINGS ARE FEATURED IN THE DETAILED DESCRIPTION OF THE INET MODEL, THE FAILURE TO MENTION SUCH FEATURES IN THE DETAILED DESCRIPTION ACCOMPANYING THE BID CLEARLY WAS NOT MATERIAL SINCE THE GOVERNMENT OBVIOUSLY COULD INSIST THAT THEY BE FURNISHED.

ACCORDINGLY, YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING HOLDING THAT AN UNDUE ADVANTAGE WAS ACQUIRED BY THE LOW BIDDER OR THAT THE ADMINISTRATIVE OFFICE ACTED IMPROPERLY IN TREATING THE DEFICIENCY AS ONE WHICH COULD HAVE BEEN DISREGARDED IN THE ABSENCE OF THE OBJECTION WHICH YOU INTERPOSED AND WHICH PROMPTED CLARIFICATION OF THE LOW BID.