B-126801, FEB. 10, 1956

B-126801: Feb 10, 1956

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21. THE BASIS FOR THE ADMINISTRATIVE ACTION IN HAVING REJECTED YOUR BID AS BEING NONRESPONSIVE TO THE ADVERTISED REQUIREMENTS OF THE GOVERNMENT IS EXPLAINED IN THE DISTRICT ENGINEER'S LETTER OF JANUARY 18. IN PERTINENT PART: "YOUR BID FOR ITEM NO. 1 SHOWED THAT IT WAS BASED ON FURNISHING VV FITTINGS 5228-CC. IN VIEW THEREOF IT WAS CONSTRUED THAT YOU WERE BIDDING ON A GUARD MADE OF "CAST FERALLOY. "YOUR BID FOR ITEM NO. 2 SHOWED THAT IT WAS BASED ON FURNISHING VV FITTINGS 5228-C OR KILLARK NO. IT WAS CONSTRUED THAT YOU DID NOT BID ON A CAST ALUMINUM GUARD BUT A GUARD TO BE MADE OF "CAST FERRALLOY.'. THE WORDS "CAST ALUMINUM" AT THE TOP OF THE SHEET OF THE ILLUSTRATION HAVE BEEN UNDERSCORED IN LONGHAND AND AN ARROW MADE BY LONGHAND POINTS OUT THAT FACT.

B-126801, FEB. 10, 1956

TO MANHATTAN LIGHTING EQUIPMENT CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1956, WHEREIN YOU PROTEST THE ACTION OF THE OFFICE OF THE DISTRICT ENGINEER, NASHVILLE DISTRICT, U.S. ARMY, IN HAVING FAILED TO AWARD YOU ITEMS NOS. 1 AND 2 OF INVITATION FOR BIDS CIVENG-40-058-56-28, COVERING CERTAIN ITEMS OF ELECTRICAL EQUIPMENT.

THE BASIS FOR THE ADMINISTRATIVE ACTION IN HAVING REJECTED YOUR BID AS BEING NONRESPONSIVE TO THE ADVERTISED REQUIREMENTS OF THE GOVERNMENT IS EXPLAINED IN THE DISTRICT ENGINEER'S LETTER OF JANUARY 18, 1956, WHICH READS, IN PERTINENT PART:

"YOUR BID FOR ITEM NO. 1 SHOWED THAT IT WAS BASED ON FURNISHING VV FITTINGS 5228-CC. THE ILLUSTRATION ACCOMPANYING YOUR BID FOR VV FITTINGS 5228-CC HAD WRITTEN IN LONGHAND AT THE TOP THEREOF THE WORDS "CAST FERRALLOY.' IN VIEW THEREOF IT WAS CONSTRUED THAT YOU WERE BIDDING ON A GUARD MADE OF "CAST FERALLOY," WHEREAS THE INVITATION FOR BIDS CALLED FOR THE GUARD TO BE OF CAST ALUMINUM.

"YOUR BID FOR ITEM NO. 2 SHOWED THAT IT WAS BASED ON FURNISHING VV FITTINGS 5228-C OR KILLARK NO. VUCGG-2-100 CAST ALUMINUM. THE ILLUSTRATION ACCOMPANYING YOUR BID FOR VV FITTINGS 5228-C HAD WRITTEN IN LONGHAND AT THE TOP THEREOF THE WORDS "CAST FERRALLOY.' THEREFORE, IT WAS CONSTRUED THAT YOU DID NOT BID ON A CAST ALUMINUM GUARD BUT A GUARD TO BE MADE OF "CAST FERRALLOY.' THE ILLUSTRATION FOR THE KILLARK FIXTURE NO. VUCGG-2-100, WHICH ALSO ACCOMPANIED YOUR BID, SHOWS THE ENTIRE FIXTURE TO BE MADE OF "CAST ALUMINUM.' THE WORDS "CAST ALUMINUM" AT THE TOP OF THE SHEET OF THE ILLUSTRATION HAVE BEEN UNDERSCORED IN LONGHAND AND AN ARROW MADE BY LONGHAND POINTS OUT THAT FACT. THEREFORE, THE KILLARK FIXTURE DOES NOT COMPLY WITH THE SPECIFICATIONS INASMUCH AS THE FIXTURE AND GUARD ARE BOTH CAST ALUMINUM WHEREAS OUR SPECIFICATIONS CALL FOR THE GUARD TO BE OF CAST ALUMINUM AND THE FIXTURE TO BE OF CAST FERALOY.'

IT LONG HAS BEEN RECOGNIZED THAT THE RESPONSIBILITY FOR THE PREPARATION OF A BID RESTS SOLELY UPON THE BIDDER AND IF, BY REASON OF CERTAIN AMBIGUITIES FOR WHICH YOU ALONE WERE RESPONSIBLE, THE CONTRACTING AGENCY WAS MISLED INTO BELIEVING THAT YOU PROPOSED TO FURNISH OTHER THAN THE EXACT TYPES OF EQUIPMENT DESCRIBED IN THE SPECIFICATIONS, THE FAULT IN THE MATTER LIES ENTIRELY WITH YOU.

FURTHERMORE, THE FUNCTION OF DETERMINING WHETHER A PARTICULAR ARTICLE COMPLIES WITH THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS IS STRICTLY AN ADMINISTRATIVE ONE, SUCH DETERMINATIONS BEING PREDICATED SOLELY UPON FACTUAL CONSIDERATIONS, AND WHERE, AS HERE, THE CONTRACTING AGENCY HAS DETERMINED THAT A PRODUCT OFFERED BY A BIDDER DOES NOT CONFORM TO SPECIFICATION REQUIREMENTS, ORDINARILY WE ARE BOUND BY SUCH DECISION. SEE 20 COMP. GEN. 573, 78; 14 ID. 410.

ACCORDINGLY, UPON THE BASIS OF THE FACTS OF RECORD IN THIS MATTER, WE WOULD NOT BE JUSTIFIED IN DISTURBING THE AWARDS MADE UNDER THIS INVITATION.