B-128972, APRIL 15, 1957, 36 COMP. GEN. 705

B-128972: Apr 15, 1957

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BIDS - QUALIFIED - DRAWINGS DIFFERING FROM ADVERTISED REQUIREMENTS - SUPERIOR EQUIPMENT A BIDDER WHO VOLUNTARILY AUGMENTS HIS BID WITH DRAWINGS WHICH CONTAIN MATERIAL DEVIATIONS FROM THE SPECIFICATIONS MAY NOT BE GIVEN AN OPPORTUNITY AFTER THE BIDS ARE OPENED TO CLARIFY THE REASONABLE DOUBT CONCERNING HIS INTENTION TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS NOR MAY THE DEVIATIONS WHICH GO TO THE SUBSTANCE OF THE BID BE WAIVED AS MERE INFORMALITIES. EQUIPMENT WHICH DOES NOT MEET THE ADVERTISED SPECIFICATIONS BUT WHICH IS SUPERIOR IN CERTAIN RESPECTS TO EQUIPMENT CONFORMING TO THE MINIMUM REQUIREMENTS MAY NOT BE CONSIDERED IN DETERMINING THE AWARD SO LONG AS THE EQUIPMENT OFFERED BY THE RESPONSIVE BIDDER MEETS THE ADVERTISED REQUIREMENTS.

B-128972, APRIL 15, 1957, 36 COMP. GEN. 705

BIDS - QUALIFIED - DRAWINGS DIFFERING FROM ADVERTISED REQUIREMENTS - SUPERIOR EQUIPMENT A BIDDER WHO VOLUNTARILY AUGMENTS HIS BID WITH DRAWINGS WHICH CONTAIN MATERIAL DEVIATIONS FROM THE SPECIFICATIONS MAY NOT BE GIVEN AN OPPORTUNITY AFTER THE BIDS ARE OPENED TO CLARIFY THE REASONABLE DOUBT CONCERNING HIS INTENTION TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS NOR MAY THE DEVIATIONS WHICH GO TO THE SUBSTANCE OF THE BID BE WAIVED AS MERE INFORMALITIES. EQUIPMENT WHICH DOES NOT MEET THE ADVERTISED SPECIFICATIONS BUT WHICH IS SUPERIOR IN CERTAIN RESPECTS TO EQUIPMENT CONFORMING TO THE MINIMUM REQUIREMENTS MAY NOT BE CONSIDERED IN DETERMINING THE AWARD SO LONG AS THE EQUIPMENT OFFERED BY THE RESPONSIVE BIDDER MEETS THE ADVERTISED REQUIREMENTS.

TO LAYNE AND BOWLER PUMP CO; APRIL 15, 1957:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1956, AND SUBSEQUENT CORRESPONDENCE FROM YOUR ATTORNEY, PROTESTING THE AWARD OF CONTRACT NOBS- 73065 DATED AUGUST 8, 1956, TO THE FOOD MACHINERY AND CHEMICAL CORPORATION, PEERLESS PUMP DIVISION, UNDER INVITATION FOR BIDS NO. 600 1907-56-S, FOR THE PROCUREMENT OF 34 TYPE II VERTICAL DEEP WELL CARGO PUMPS, COMPLETE WITH 440/220 V EXPLOSION-PROOF MOTORS, ACCESSORIES, SPARE PARTS, DRAWINGS AND TECHNICAL MANUALS.

FIVE BIDS ON THIS PROCUREMENT WERE RECEIVED AND THE AWARD WAS MADE ON THE BASIS OF THE PEERLESS , BID A" PRICES WHICH TOTALED THE AMOUNT OF $332,350. YOUR " BID A" PRICES TOTALED $300,049.90 BUT THE BID WAS EVALUATED AT $330,054,89, SINCE BY COVERING LETTER DATED JULY 10, 1956, THE PRICES QUOTED WERE MADE SUBJECT TO A POSSIBLE INCREASE OF 10 PERCENT IF THE GOVERNMENT REQUIRED THAT THE PERIOD OF DELIVERY BE EXTENDED BEYOND ONE YEAR. AS THUS ADJUSTED FOR COMPARISON WITH THE OTHER BIDS, YOUR BID WAS STILL THE LOWEST RECEIVED. HOWEVER, THE BUREAU OF SHIPS DETERMINED THAT YOUR BID COULD NOT BE ACCEPTED BECAUSE IT OFFERED EQUIPMENT WHICH WOULD NOT MEET THE REQUIREMENTS OF THE INVITATION AND THE APPLICABLE NAVY SPECIFICATIONS. THIS DETERMINATION WAS BASED UPON AN INTERPRETATION OF A DRAWING SUBMITTED WITH THE BID ON YOUR FORM H.S. 3507 WHICH CONTAINED AT THE LOWER RIGHT-HAND CORNER THE FOLLOWING:

LAYNE AND BOWLER PUMP CO-----------------------

PROPOSAL FOR BUREAU OF SHIPS----------------------

INV. NO. IFB-600-1907-56S------------------------

SPEC. MIL P18144-1TYPE II------------1ITEM-------

CERTIFIED-----------------------------------------

BY J.S. 6-30-56. L AND B NO. 56823

YOU CONTENTED THAT THE DRAWING REPRESENTED NO MORE THAN A GENERAL SKETCH OF THE PUMP, THAT THE BID WAS COMPLETE AND REGULAR IN ITSELF AND STANDS ON ITS OWN WITHOUT ANY OTHER DOCUMENT, THAT THE DRAWING DOES NOT CONTRADICT THE PROVISIONS OF THE INVITATION OR THE SPECIFICATIONS, AND THAT ANY INCONSISTENCIES WERE MINOR AND, THEREFORE, COULD HAVE BEEN CLARIFIED OR CORRECTED IN ACCORDANCE WITH THE GOVERNMENT'S RESERVATION OF THE RIGHT TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS RECEIVED.

IN A REPORT DATED SEPTEMBER 20, 1956, FROM THE BUREAU OF SHIPS, ATTENTION WAS INVITED TO THE FACT THAT THE DRAWING WAS CERTIFIED AFTER RECEIPT OF THE GOVERNMENT'S INVITATION FOR BIDS AND THE OPINION WAS EXPRESSED THAT IT IS DIFFICULT TO BELIEVE THAT THERE WAS NO PURPOSE INTENDED BY YOUR COMPANY IN SUBMITTING THE DRAWING, PARTICULARLY SINCE THE GOVERNMENT DID NOT REQUIRE THE SUBMISSION OF SKETCHES OR OTHER DATA WITH THE BIDS. ALSO, WE WERE ADVISED THAT THE DRAWING WAS FOUND TO CONTAIN AT LEAST THREE MAJOR DEVIATIONS FROM THE BIDDING REQUIREMENTS. THE MAJOR DEVIATIONS FOUND BY THE BUREAU MAY BE BRIEFLY DESCRIBED AS FOLLOWS:

(1) THE DRAWING INDICATED THAT THE PUMP OFFERED BY YOUR COMPANY HAS A VERTICALLY MOUNTED INTEGRALLY CAST DISCHARGE HEAD FLANGE THAT BOLTS DIRECTLY TO THE DECK OF THE SHIP, WHEREAS THE NAVY SPECIFICATIONS REQUIRE THAT THE PUMP SHALL BE VERTICALLY MOUNTED BY MEANS OF AN INTEGRALLY CAST DISCHARGE HEAD FLANGE THAT BOLTS TO A SEPARATE BASE FLANGE. THE SEPARATE BASE FLANGE IS DESCRIBED IN THE BUREAU REPORT AS A CLOSELY MACHINED ITEM CONSERVATIVELY ESTIMATED TO COST $500 EACH.

(2) THE DIFFERENCE IN DIMENSIONS FOR AN 8-INCH DISCHARGE FLANGE, AS DESCRIBED IN NAVY SPECIFICATIONS, AND FOR AN 8-INCH A.S.A. FLANGE, AS INDICATED ON THE DRAWING, ARE SUCH THAT THE OFFERED FLANGE WOULD NOT MATE WITH AND COULD NOT BE ATTACHED TO THE NAVY-TYPE FLANGE ON THE END OF THE PIPE TO WHICH THE PUMP IS TO BE ATTACHED.

(3) THE DRAWING LISTED A "100 H.P.V.H.S. ELECTRIC MOTOR TYPE TEFC," INDICATING THAT YOU INTENDED TO FURNISH A TOTALLY ENCLOSED FAN-COOLED ( TEFC) TYPE, VERTICAL HOLLOW SHAFT ( V.H.S.) MOTOR WHICH, HOWEVER, WOULD NOT MEET THE ESSENTIAL REQUIREMENTS OF THE INVITATION BECAUSE IT WOULD BE NEITHER EXPLOSION-PROOF NOR SPRAY TIGHT, AS REQUIRED IN THE INVITATION FOR BIDS. CONCERNING YOUR CONTENTIONS IN THIS MATTER, THE BUREAU REPORT SETS FORTH THAT THE OFFER OF A TOTALLY ENCLOSED FAN COOLED MOTOR WOULD NOT ASSURE THE BUYER THAT THE MOTOR WOULD ALSO BE AN EXPLOSION-PROOF AND SPRAY TIGHT MOTOR; THAT THE BUREAU WAS NOT PROCURING A TOTALLY ENCLOSED FAN- COOLED MOTOR "AS GENERALLY DESCRIBED IN THE INDUSTRY; " AND THAT ONE OF THE REFERENCED SPECIFICATIONS, MIL-STD 108C, IS CLEARLY TO THE EFFECT THAT THE TERM " TEFC" IS A TERM OF EXCLUSION WHEN USED WITHOUT QUALIFICATION AS TO WHETHER IT WOULD BE EITHER COMBUSTION-PROOF OR SPRAY TIGHT.

IT IS OUR VIEW THAT THE BUREAU OF SHIPS WAS JUSTIFIED IN CONSIDERING THE SUBMISSION OF YOUR DRAWING WITH THE COMPLETED BID FORMS AS A POSSIBLE LIMITATION OF YOUR LIABILITY TO THE FURNISHING OF EQUIPMENT WHICH CONFORMED WITH THE DRAWING, BUT WHICH MIGHT NOT NECESSARILY COMPLY WITH THE ADVERTISED SPECIFICATIONS IN CERTAIN MATERIAL RESPECTS. IN THIS CONNECTION, IT IS NOT UNUSUAL FOR BIDDERS ON EQUIPMENT WHICH THE GOVERNMENT PROPOSES TO PURCHASE TO OFFER EQUIPMENT WHICH DOES NOT COMPLY WITH THE ADVERTISED SPECIFICATIONS, EITHER WITH KNOWLEDGE OF SUCH FACT OR BECAUSE OF A MISTAKEN BELIEF AS TO ONE OR MORE OF THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS. IF A BID IS SO PREPARED AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS OF THE SPECIFICATIONS, ANY NEGOTIATIONS WITH THE BIDDER TO CLARIFY SUCH INTENTION WOULD BE OBJECTIONABLE ON THE GROUND THAT NO BIDDER SHOULD BE AFFORDED A SECOND CHANCE TO BID AFTER BIDS ARE OPENED. SEE 34 COMP. GEN. 82, 84; AND 35 ID. 33, 38. NOR IS THERE PERCEIVED IN THIS CASE ANY PROPER BASIS FOR HOLDING THAT THE FACTS ARE DISTINGUISHABLE FROM THOSE CONSIDERED IN 30 COMP. GEN. 179, WHICH SETS FORTH THAT DEVIATIONS FROM THE ADVERTISED SPECIFICATIONS WHICH GO TO THE SUBSTANCE OF A BID MAY NOT BE WAIVED AS MERE INFORMALITIES IN CONSIDERING THE BID FOR ACCEPTANCE.

AN ADDITIONAL REPORT DATED DECEMBER 4, 1956, WAS RECEIVED FROM THE BUREAU OF SHIPS RELATING TO AN OFFER WHICH WAS RECEIVED FROM THE GENERAL ELECTRIC COMPANY TO SUPPLY THE ELECTRIC MOTORS FOR THE PUMPS WHICH YOU PROPOSED TO FURNISH AND TO AN OPINION EXPRESSED BY YOUR REPRESENTATIVE THAT A DRAWING SUBMITTED BY THE SUCCESSFUL BIDDER ALSO CONTAINED DEVIATIONS FROM THE INVITATION AND THE APPLICABLE SPECIFICATIONS.

ON THE BASIS OF THE LETTER DATED OCTOBER 9, 1956, FROM THE GENERAL ELECTRIC COMPANY, AND DISCUSSIONS IN CONNECTION WITH THE FACT THAT THE DRAWING DID NOT SPECIFY A BASE FLANGE AND PROVIDED FOR A DISCHARGE HEAD WITH AN 8-INCH, 150-POUND A.S.A. DISCHARGE FLANGE, WE HAVE NO REASON TO QUESTION YOUR CONTENTION THAT IT WAS INTENDED TO FURNISH A PUMP WHICH WOULD FULLY MEET THE REQUIREMENTS OF THE INVITATION AND SPECIFICATIONS. HOWEVER, THE FACT REMAINS THAT, IF THE BID WERE PERMITTED TO BE CHANGED SO AS TO CLARIFY SUCH INTENTION, THIS WOULD BE CONTRARY TO THE RULE THAT A BID RECEIVED IN RESPONSE TO A FORMAL ADVERTISEMENT FOR BIDS CANNOT BE CHANGED AFTER BIDS ARE OPENED.

VARIOUS COMMENTS WERE FURNISHED IN A LETTER DATED JANUARY 24, 1957, FROM YOUR ATTORNEY, WITH RESPECT TO THE DRAWING SUBMITTED WITH THE BID OF THE FOOD MACHINERY AND CHEMICAL CORPORATION, PEERLESS PUMP DIVISION. YOUR ATTORNEY AND ANOTHER REPRESENTATIVE OF YOUR COMPANY EXAMINED THIS DRAWING SHORTLY AFTER IT WAS FORWARDED TO OUR OFFICE BY THE BUREAU OF SHIPS WITH ITS REPORT OF DECEMBER 4, 1956. WHAT IS SAID IN YOUR ATTORNEY'S LETTER CONCERNS ENGINEERING OPINIONS ON CERTAIN FEATURES OF THE PEERLESS PUMP AS DESCRIBED IN THE DRAWING.

SPECIFICALLY, THE OPINIONS ARE EXPRESSED (1) THAT A 125-POUND FLANGE CANNOT BE CONSIDERED ACCEPTABLE, SINCE THE TOTAL PUMPING HEAD AS SET FORTH IN THE SPECIFICATIONS IS 333 POUNDS OF SEA WATER, WHICH MEANS THAT A WORKING PRESSURE OF 148 POUNDS IS TO BE EXERTED ON THE FLANGE AT ALL TIMES; (2) THAT THE STATED CAPACITY OF 750 G.P.M. NECESSITATES THE USE OF AN 8-INCH DISCHARGE CONNECTION INSTEAD OF A 6-INCH CONNECTION AS SPECIFIED FOR THE PEERLESS PUMP, IT BEING CONTENDED THAT ON THE 6-INCH CONNECTION THERE WOULD BE A FRICTION LOSS OF 100 POUNDS PER 100 FEET WHILE ON AN 8- INCH CONNECTION THE LOSS WOULD BE ABOUT TWO POUNDS PER 100 FEET; AND (3) THAT, WITH ABOUT 40 FEET OF SHAFT BEING DRIVEN BY A 100 H.P. MOTOR AT 1,800 R.P.M., GOOD ENGINEERING PRACTICE WOULD INDICATE A 1 1/2-INCH SHAFT AS SHOWN IN THE LAYNE AND BOWLER DRAWING INSTEAD OF A 1 3/16-INCH SHAFT AS SPECIFIED ON THE PEERLESS DRAWING. IT IS STATED WITH RESPECT TO THE LATTER OPINION THAT " IN ASA SPECIFICATION B 58.1 ON PAGE 18 IN THE TABLE OF VALUES, IT IS INDICATED THAT FOR THIS DRIVE 1 3/16-INCH SHAFTING IS NOT GOOD PRACTICE.' YOU DO NOT, HOWEVER, CONTEND THAT THE A.S.A. SPECIFICATION WAS MADE A PART OF THE GOVERNMENT'S INVITATION FOR BIDS.

WITHOUT QUESTIONING YOUR ENGINEER'S COMPUTATIONS RELATING TO THE FIRST OF THE ABOVE STATED OPINIONS, WE UNDERSTAND THAT THE TERM "HEAD" IMPLIES VERTICAL DISTANCE ( FRUEHAUF TRAILER CO. V. GILMORE, 167 F.2D 324) AND THE FIGURES IN THE PEERLESS DRAWING FOR TOTAL HEAD FOOTAGE AND THE RATED CAPACITY OF THE PUMP AGREE WITH THE INVITATION FOR BIDS WHICH CALLS FOR A TOTAL HEAD OF 333 FEET AND A CAPACITY OF 750 GALLONS PER MINUTE. THE STATEMENT " TOTAL HEAD--- 333 FT" WAS PLACED DIRECTLY OPPOSITE THE PHRASE " FLUID PUMPED--- GASOLINE, GRADE 115/145" AND, WHILE THE DESCRIPTION OF THIS FLUID MENTIONS CERTAIN MILITARY SPECIFICATIONS FOLLOWED BY THE WORDS "OR SEA WATER," IT SEEMS REASONABLE TO CONCLUDE THAT THE GOVERNMENT DID NOT EXPECT THAT THE PUMPS SHOULD BE CAPABLE OF DISCHARGING SEA WATER WITH THE SAME EFFICIENCY AS WOULD BE REQUIRED FOR THE PUMPING OF GASOLINE WHICH HAS A MUCH LOWER SPECIFIC GRAVITY THAN SEA WATER. SO FAR AS THE PUMPING OF SEA WATER IS CONCERNED, THE INVITATION PROVIDES ONLY THAT " PUMP SHALL BE CAPABLE OF PUMPING SALT WATER. THE HORSEPOWER RATING OF THE MOTOR SHALL NOT BE LESS THAN THE MAXIMUM BRAKE HORSEPOWER OF THE PUMP UNDER ANY CONDITION FROM SHUT-OFF TO FREE DELIVERY WHEN PUMPING SALT WATER WITH A SPECIFIC GRAVITY OF 1.03.'

THE BUREAU OF SHIPS HAS REPORTED THAT THE SHIP'S MASTER PLAN NO. B 176 CONTAINS A SERVICE RATING TABLE LIST OF A MINIMUM PRESSURE OF 100 POUNDS PER SQUARE INCH ON FLANGES FOR GASOLINE SERVICE FOR ALL KINDS OF PUMPS. THUS, IT WAS CONSIDERED THAT A 125-POUND DISCHARGE FLANGE SHOWN IN THE PEERLESS DRAWING WOULD BE WHOLLY IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS. IN ADDITION, IT WAS REPORTED THAT A DETERMINATION HAD BEEN MADE PRIOR TO AWARD THAT THERE WERE NO DEVIATIONS IN THE PEERLESS DRAWING FROM THE ADVERTISED SPECIFICATIONS. THIS STATEMENT APPEARS TO COVER WHATEVER OBJECTIONS THERE MAY BE TO THE STATED DIMENSIONS OF THE DISCHARGE CONNECTION AND THE DRIVE SHAFT.

THE GOVERNMENT ADVERTISING STATUTES CONSISTENTLY HAVE BEEN HELD TO REQUIRE THAT EVERY EFFORT SHOULD BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE ADVERTISED SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE GOVERNMENT'S MINIMUM REQUIREMENTS, NOT THE MAXIMUM DESIRED. 32 COMP. GEN. 384, 387. ACCORDANCE WITH THAT RULE, THE QUESTION AS TO WHETHER OR NOT THE PUMP OFFERED BY YOUR COMPANY MAY HAVE BEEN SUPERIOR IN CERTAIN RESPECTS TO THE PEERLESS PUMP COULD NOT HAVE BEEN CONSIDERED IN DETERMINING THE AWARD TO BE MADE IN THIS CASE, SO LONG AS THE LATTER PUMP MET THE STATED REQUIREMENTS.

IN THE CIRCUMSTANCES, AND CONSIDERING THAT THE BUREAU OF SHIPS HAD THE PRIMARY RESPONSIBILITY OF DETERMINING WHETHER OR NOT EITHER YOUR BID OR THAT OF THE FOOD MACHINERY AND CHEMICAL CORPORATION, PEERLESS PUMP DIVISION, MET THE REQUIREMENTS OF THE INVITATION AND SPECIFICATIONS, WE FIND NO LEGAL BASIS FOR THE TAKING OF ANY EXCEPTION TO THE AWARD AS MADE UNDER INVITATION FOR BIDS NO. 600-1907-56-S. SEE 36 COMP. GEN. 174, 179, 180.