B-126107, MAR. 1, 1956

B-126107, MAR. 1, 1956

TO ARTHUR W. SCHARFELD:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF ADAMS ENGINEERING CO., INC., AGAINST THE ACTION OF THE U.S. NAVY PURCHASING OFFICE, SAN FRANCISCO, CALIFORNIA, IN REJECTING THAT COMPANY'S BID FOR FURNISHING CERTAIN JALOUSIE WINDOW UNITS.

THE RECORD SHOWS THAT BY INVITATION NO. IFB-220-17939-55-P4 ISSUED SEPTEMBER 8, 1955, BIDS WERE REQUESTED FOR FURNISHING VARIOUS ITEMS OF ALUMINUM JALOUSIE WINDOW UNITS OF VARIOUS SIZES. PROSPECTIVE BIDDERS WERE REQUESTED TO QUOTE PRICES ON TWO ALTERNATE LOTS--- LOT I CONSISTING OF ITEMS 1 TO 9 INCLUSIVE, TO HAVE ROTO-TYPE BRONZE OPERATORS AND LOT II CONSISTING OF ITEMS 1A TO 9A INCLUSIVE TO HAVE ROTO-TYPE OPERATORS OF DIE CAST SAMAC NO. 5, OR EQUAL, OR OTHER TYPE OF OPERATOR OF ALUMINUM, BRASS OR STAINLESS STEEL. ALTHOUGH IT HAD BEEN ADMINISTRATIVELY DETERMINED THAT BRONZE OPERATORS WERE NECESSARY TO INSURE AGAINST CORROSION AFTER INSTALLATION ON PACIFIC ISLANDS, BIDS WERE SOLICITED ON THE ALTERNATE LOT TO AVOID THE NECESSITY OF READVERTISING IN THE EVENT NO RESPONSIVE BIDS WERE RECEIVED ON LOT I OR THAT ALL BIDS RECEIVED THEREON EXCEEDED THE AMOUNT OF FUNDS AVAILABLE FOR THE PROCUREMENT.

PARAGRAPHS 1 AND 2 OF THE ADVERTISED SPECIFICATIONS ENTITLED "GENERAL" AND "SHOP DRAWINGS" ON PAGE 3 OF THE INVITATION FOR BIDS PROVIDED AS FOLLOWS:

"1. GENERAL

"FURNISH ALL JALOUSIE UNITS COMPLETE WITH EXTRUDED ALUMINUM FRAME,TRIM, HARDWARE, PLASTIC COATED FIBROUS GLASS SCREEN, AND EXTRUDED ALUMINUM, AND GLASS LOUVERS TO FIT WINDOW OPENINGS SHOWN ON Y AND D DWG. NO. 674446. UNITS SHALL BE SUPPLIED PREFABRICATED, KNOCKED DOWN, READY FOR FIELD ASSEMBLY AND INSTALLATION. THE PROJECT DRAWING IS NOT INTENDED TO BE MORE THAN ILLUSTRATIVE, EXCEPT WITH RESPECT TO SIZES OF OPENINGS, AND CONSIDERABLE LATITUDE IN DESIGN IS ALLOWED, SUBJECT TO THE BASIC REQUIREMENT THAT IN ITS LARGEST SIZE, THE COMPLETE JALOUSIE MUST SUCCESSFULLY PASS THE TESTS HEREINAFTER SPECIFIED. EACH JALOUSIE SHALL CONSIST OF A FRAME HAVING INSTALLED THEREIN A NUMBER OF HORIZONTAL LOUVERS CAPABLE OF BEING ROTATED IN UNISON ABOUT THEIR HORIZONTAL AXES, THE ENTIRE ASSEMBLY BEING SUITABLE FOR A PERMANENT INSTALLATION IN PREVIOUSLY CAST CONCRETE OR MASONRY OPENINGS OF THE SIZES AND DESIGNS SHOWN ON THE DRAWING, WITHOUT THE PROVISION OF BLOCKING FILLERS, OR COVER PLATES BY OTHERS, EXCEPT AS SHOWN. IN THE CLOSED POSITION, EACH LOUVER SHALL BE NEARLY VERTICAL AND SHALL OVERLAP THE ONE NEXT BELOW SUFFICIENTLY TO MAKE A WATERTIGHT CLOSURE. WIDTH OF STRUCTURAL FRAMING (HEAD, JAMB, AND SILL) SHALL BE NOT LESS THAN 2 3/4 INCHES NOR MORE THAN 4 INCHES. THE ENTIRE ASSEMBLY SHALL BE SO CONSTRUCTED THAT EACH JALOUSIE AS A UNIT MAY BE REMOVED FROM THE BUILDING OPENING WITHOUT DISMANTLING THE UNIT OR DAMAGING THE UNIT OR THE BUILDING. THE JALOUSIES SHALL BE SO DESIGNED AND CONSTRUCTED THAT, WHEN THE LOUVERS ARE IN CLOSED AND LOCKED POSITION, THE HORIZONTAL LAPS BETWEEN LOUVERS AND AT TOP AND BOTTOM, AND THE JUNCTIONS BETWEEN THE ENDS OF THE LOUVERS AND THE JAMBS WILL FORM A WATERTIGHT SEAL AS HEREINAFTER SPECIFIED.

"2. SHIP DRAWINGS

"TWO COPIES OF FULL SCALE DETAILED SHIP DRAWINGS SHALL BE SUBMITTED WITH BIDS. THE DRAWINGS SHALL SHOW THE CONSTRUCTION OF THE VARIOUS PARTS, JOINTING, OPERATING HARDWARE, OPERATOR, OPERATOR LOCATIONS, CONNECTIONS AND FASTENING, AND LOUVERS. A TYPICAL INSTALLATION WITHIN A REPRESENTATIVE MODULAR OPENING SHALL BE SHOWN AT A CONVENIENCE SCALE. SHOP DRAWINGS, DETAILS, AND INSTRUCTIONS IN SEXTUPLE SHALL BE INCLUDED IN THE FIRST SHIPMENT OF MATERIALS AND ONE PACKING COPY OF EACH IN SUBSEQUENT SHIPMENTS.

"ADVERTISING CUTS AND INSTALLATION DRAWINGS WILL NOT BE ACCEPTED IN LIEU OF FULL SCALE SHOP DRAWINGS.

"FAILURE TO FURNISH DRAWINGS PRIOR TO TIME SET FOR OPENING OF BIDS SHALL BE GROUNDS FOR REJECTION OF THE BID.'

THE RECORD SHOWS THAT 18 BIDS WERE RECEIVED AND THAT 10 OF THEM WERE ON LOT I. ALTHOUGH YOUR CLIENT'S BID WAS NOT THE LOWEST RECEIVED, ONE LOWER BID AND YOUR CLIENT'S BID WERE REJECTED FOR FAILURE TO OFFER ALUMINUM OR STAINLESS STEEL WEATHER STRIPPING AT THE JAMBS. A CONTRACT WAS THEREUPON AWARDED TO THE FOURTH LOWEST BIDDER. YOUR CLIENT AT FIRST PROTESTED THE REJECTION OF ITS BID ON THE GROUND THAT ITS DRAWINGS CLEARLY SHOWED WEATHER STRIPPING AT THE JAMBS. PROTEST WAS LATER MADE TO OUR OFFICE, HOWEVER, ON THE BASIS THAT "WATERTIGHT CLOSURES WERE ALL THAT WERE OFFERED AND THAT WAS ALL THE INVITATION FOR BID REQUIRED.'

AFTER THE ORIGINAL REPORT RECEIVED FROM THE ADMINISTRATIVE OFFICIAL WAS EXAMINED BY YOU, ACTION ON YOUR PROTEST WAS SUSPENDED TO ENABLE YOU TO SUBMIT A SUPPLEMENTAL STATEMENT. BY LETTER DATED JANUARY 6, 1956, YOU COMMENTED UPON THE ADMINISTRATIVE REPORTS, STATING THAT "THE VIEWS OF THE ASSISTANT SECRETARY AND THE NAVY PURCHASING OFFICE CONFLICT IN SUCH A MANNER AS TO VINDICATE THE PROTEST OF THE ADAMS ENGINEERING CO., INC., AND PROVE THAT THE SUBJECT CONTRACT SHOULD HAVE BEEN AWARDED TO THE COMPANY.' YOU STATED THAT THE REPORT OF THE ASSISTANT SECRETARY RECOGNIZES THAT THE INVITATION REQUIRED A WEATHER TYPE SEAL AT THE JAMBS OF THE JALOUSIE WINDOW UNITS, RATHER THAN WEATHER STRIPPING, WHEREAS THE REPORT OF THE NAVY PURCHASING OFFICE STATES THAT THE INVITATION REQUIRED WEATHER STRIPPING AT THE JAMBS. YOU URGE THAT YOUR CLIENT'S BID INCLUDING THE DRAWINGS SHOWED A SPRING CLIP WATERTIGHT SEAL; THAT THE INVITATION CALLED FOR A WATERTIGHT SEAL AND NOT WEATHER STRIPPING; AND THAT THE BID OF YOUR CLIENT NOT HAVING DEVIATED FROM THE ADVERTISED SPECIFICATIONS AND BEING THE LOWEST RESPONSIVE BID, SHOULD HAVE BEEN ACCEPTED BY THE NAVY PURCHASING OFFICE. FINALLY, YOU SUGGEST THAT MR. VON TAGEN BE REQUIRED TO SUPPLY UNDER OATH HIS MATERIALLY DIFFERENT VERSION OF THE FACTS INVOLVED IN THE MATTER.

THE ABOVE LETTER WAS ALSO REFERRED TO THE SECRETARY OF THE NAVY FOR A REPORT, TAKING INTO CONSIDERATION THE STATEMENTS MADE BY YOU. A REPLY HAS BEEN RECEIVED WITH A STATEMENT BY THE OFFICER-IN-CHARGE, NAVY PURCHASING OFFICE, SAN FRANCISCO, CALIFORNIA, AND AN AFFIDAVIT BY WILLIAM E. VON TAGEN, MANAGER, MATERIAL SERVICES BRANCH, OFFICE OF THE ASSISTANT DIRECTOR, PACIFIC DIVISION, BUREAU OF YARDS AND DOCKS, SAN FRANCISCO, CALIFORNIA. THE STATEMENT OF THE OFFICER-IN-CHARGE IS, IN PERTINENT PART, AS FOLLOWS:

"THE CONTRACTING OFFICER, ACTING WITH THE ADVICE OF COUNSEL, THE CONTRACT SPECIALISTS CONCERNED, AND MR. WM. E. VON TAGEN, TECHNICAL ADVISOR, CONCLUDED THAT THERE WAS NOTHING IN THE BID OR DRAWINGS SUBMITTED BY THE ADAMS ENGINEERING CO. TO SHOW THE "ABC SPRING CLIP" WAS BEING OFFERED. THE ONLY NOTICE THE CONTRACTING OFFICER AND HIS ADVISORS HAD THAT ADAMS ENGINEERING CO., THE PROTESTANT, EVEN MANUFACTURED AN "ABC SPRING CLIP" WAS FROM SEET'S CATALOG FOR 1955, VOLUME 6, PAGE 16D, AD. SINCE THE PROTESTANT MENTIONED NEITHER THE CLIP NOR THE CATALOG DESCRIPTION IN ITS BID OR DRAWINGS, THERE WAS NO BASIS ON WHICH PROTESTANT COULD HAVE BEEN HELD TO FURNISH SAID CLIP HAD AWARD BEEN MADE TO IT. FURTHERMORE, IN ITS TELEGRAMS TO THIS OFFICE, DATED 4 AND 7 OCTOBER 1955, SUBSEQUENT TO THE BID OPENING, PROTESTANT STILL DID NOT MENTION THE "ABC SPRING CLIP," BUT TO THE CONTRARY, TOOK THE POSITION THAT IT HAD OFFERED WEATHER-STRIPPING. THE FIRST REFERENCE BY PROTESTANT TO SAID CLIP WAS CONTAINED IN ITS FORMAL PROTEST, DATED 14 NOVEMBER 1955. IT IS IMPORTANT TO NOTE THAT ON REQUEST FOR QUOTATION NO. 220-7336-P4 COVERING JALOUSIE DOOR INSERTS WHICH WAS ISSUED BY THIS OFFICE AND OPENED ON 5 JANUARY 1956, ADAMS ENGINEERING CO. SUBMITTED A DRAWING, ENCLOSURE (3), IDENTICAL TO THE ONE IN QUESTION EXCEPT FOR THE ADDITION OF THE WORDS "SPRING CLIP" AND AN ARROW POINTING BETWEEN THE PERTINENT DOTTED LINES. THE ADDITION OF THE WORDS "SPRING CLIP" TO THIS DRAWING CREATES A STRONG INFERENCE THAT EVEN PROTESTANT NOW AGREES ITS DRAWING AS ORIGINALLY SUBMITTED WAS INSUFFICIENT.'

PARAGRAPHS 2 AND 3 OF THE AFFIDAVIT OF MR. VON TAGEN ARE AS FOLLOWS:

"2. AFTER THE BIDS WERE OPENED ON SUBJECT INVITATION, I PERSONALLY WENT TO THE NAVY PURCHASING OFFICE, SAN FRANCISCO, AND EXAMINED ALL THE BIDS WHICH ARE THE SUBJECT OF THE CONTROVERSY RAISED IN REFERENCE (A). REVIEWING THESE BIDS, IT WAS NECESSARY TO ANALYZE THE FULL SCALE SHOP DRAWINGS WHICH WERE REQUIRED TO BE SUBMITTED THEREWITH. THE LOW BID OF STERLING INDUSTRIES, INC. WAS REJECTED DUE TO FAILURE OF THAT COMPANY TO SUBMIT DRAWINGS WITH ITS BID. THE SECOND LOW BID OF WINTER SEAL CORPORATION WAS REJECTED BECAUSE VINYL PLASTIC WEATHER STRIPPING ON THE JAMBS WAS OFFERED IN LIEU OF STAINLESS STEEL OR ALUMINUM AS SPECIFIED AND REQUIRED. I RECOMMEND REJECTION OF THE ADAMS ENGINEERING COMPANY'S BID BECAUSE THE DRAWING WHICH WAS ATTACHED TO THE BID MADE NO PROVISION FOR WEATHER-STRIPPING AT THE JAMBS AS SPECIFIED AND REQUIRED. A THOROUGH STUDY OF THIS DRAWING INDICATED NO RECESSES FOR WEATHER-STRIPPING AT THE JAMBS AND FURTHERMORE, INDICATED NO WEATHER-STRIPPING MATERIAL ALONG THE JAMBS. HEAD AND SILL WEATHER STRIPPING WERE SHOWN CLEARLY. SWEET'S CATALOG FOR 1955, VOLUME 16, PAGE 15D/AD, SHOWS THAT THE ADAMS ENGINEERING CO. MAKES A PATENTED "ABC SPRING CLIP.' THIS WAS NOT MENTIONED IN ADAMS' BID. EXAMINATION OF THE ADAMS ENGINEERING CO. DRAWINGS AS SUBMITTED WITH THEIR BID, FAILED TO SHOW THE CLIP OR ITS SHAPE OR THE MATERIALS FROM WHICH THE CLIP WOULD BE MADE; THE DOTTED LINES REFERRED TO IN PROTESTANT'S LETTER WITHOUT FURTHER EXPLANATORY NOTES ARE NOT SUBJECT TO ANY POSITIVE INTERPRETATION AS TO WHETHER THEY WERE INTENDED TO PORTRAY AN ALTERNATE TO WEATHER-STRIPPING. THERE WAS NOTHING IN PROTESTANT'S DRAWINGS, IN MY ESTIMATION, THAT OFFERED THE ABC PATENTED SPRING CLIP. EVEN IF IT WERE OFFERED, IT WOULD HAVE BEEN AN UNACCEPTABLE SUBSTITUTE FOR WEATHER- STRIPPING AT THE JAMBS UNDER OUR SPECIFICATIONS.

"3. THE STATEMENT CONTAINED IN REFERENCE (A), ENCLOSURE (6), THE AFFIDAVIT OF MR. ALBERT WIDLAN, REFERS TO A TELEPHONE CONVERSATION HELD BETWEEN HIM AND MYSELF IN MAY 1955. PRIOR TO DRAFTING THE SPECIFICATIONS HEREIN, I CALLED SEVERAL WINDOW MANUFACTURERS FOR INFORMATION ON JALOUSIE CONSTRUCTION. MR. WIDLAN WAS ONE OF THOSE CALLED. WE DID HAVE A CONVERSATION IN WHICH HE DISCUSSED THE PERFORMANCE AND CAPABILITIES OF THE ADAMS JALOUSIE WINDOW UNITS, BUT I DO NOT RECALL THAT HE MENTIONED THE PATENTED SPRING CLIP. WITH RESPECT TO THE CONVERSATION OVER THE PHONE WITH MR. WIDLAN, I MADE CERTAIN PENCILED NOTES. NONE OF THESE PENCILED NOTES INDICATE THAT THE SUBJECT TO ANY SPRING CLIP WAS DISCUSSED BETWEEN THE PARTIES. WITH REFERENCE TO THE STATEMENT ATTRIBUTED TO ME ON PAGE 2 OF THAT AFFIDAVIT,"YOUR JALOUSIE IS THE ONE WE WANT AS IT HAS EVERYTHING THAT WE WANT IN THE WAY OF A JALOUSIE," I DID NOT MAKE THAT STATEMENT. WITH REFERENCE TO THE STATEMENT MADE ON PAGE 4 OF THE REFERENCE (A), A SAMPLE JALOUSIE WAS SENT TO ME BY THE ADAMS ENGINEERING FIRM ON MAY 13, 1955, OR THEREABOUTS, FOR GENERAL INFORMATION. I EXAMINED THIS JALOUSIE UNIT, BUT DID NOT TAKE IT APART OR NOTICE A SPRING CLIP. I TRANSMITTED IT TO THE DIRECTOR, PACIFIC DIVISION, BUREAU OF YARDS AND DOCKS, PEARL HARBOR, T.H. FOR STUDY. FURTHER EVIDENCE THAT THERE WAS NO DISCUSSION BETWEEN THE PARTIES WITH REFERENCE TO A PATENTED SPRING CLIP IS THAT I DID NOT CONTEMPLATE THIS POSSIBILITY AS A SUBSTITUTE FOR WEATHER-STRIPPING IN DRAFTING THE SPECIFICATIONS WHICH I WAS DOING AT OR ABOUT THAT TIME. WITHOUT ENTERING INTO A TECHNICAL DISCUSSION AS TO WHETHER OR NOT THE PATENTED SPRING CLIP WOULD PERFORM UNDER ALL CIRCUMSTANCES, THE SAME FUNCTIONS EQUALLY AS WELL AS WEATHER-STRIPPING AT THE JAMB, IT WAS NECESSARY TO EVALUATE THE BIDS IN ACCORDANCE WITH THE SPECIFICATIONS AS ISSUED IN THE INVITATION IN ORDER TO AVOID PREJUDICE TO ANY BIDDER. FURTHERMORE, IT WAS NECESSARY TO TAKE INTO CONSIDERATION THE TYPE OF MATERIAL OFFERED FOR WEATHER-STRIPPING BY THE BIDDERS.'

WE HAVE NO FIRSTHAND KNOWLEDGE OF THE FACTS WHICH YOU HAVE DISPUTED, AND, OF COURSE, CANNOT ACCEPT YOUR VERSION OF THE FACTS IN COMPLETE DISREGARD OF THE REPORTS OF THE PERTINENT CONTRACTING OFFICIALS. IT DOES APPEAR, HOWEVER, THAT THE CONTRACT WAS AWARDED TO THE VENT VUE COMPANY ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT THE BID OF YOUR CLIENT WAS NOT COMPLETE AND IN STRICT COMPLIANCE WITH THE ADVERTISED SPECIFICATIONS IN ALL MATERIAL RESPECTS, AN INTERPRETATION WHICH, UNDER ALL THE CIRCUMSTANCES, WAS NOT WITHOUT JUSTIFICATION. WHILE YOU CLAIM THAT YOUR CLIENT'S BID WAS RESPONSIVE TO THE INVITATION, AN EXAMINATION OF THE DRAWINGS SUBMITTED BY YOUR CLIENT REVEALS THAT NO PROVISION WAS MADE FOR WEATHER STRIPPING AND NO REFERENCE WAS MADE THEREON TO A PATENTED "ABC SPRING CLIP.' 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, PARTICULARLY IN VIEW OF THE PROVISIONS IN THE INVITATION REQUIRING SUBMISSION OF FULL SCALE DRAWINGS PRIOR TO THE TIME SET FOR OPENING OF BIDS AND SPECIFYING THAT FAILURE TO FURNISH SUCH DRAWINGS WOULD BE GROUND FOR REJECTION OF THE BID. ACCORDINGLY, YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL TO THE POINT OF REQUIRING CANCELLATION OF THE CONTRACT AWARDED TO THE HIGHER BIDDER.