B-130696, MAR. 6, 1957

B-130696: Mar 6, 1957

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CONTENDS THAT YOU ARE ENTITLED TO AN AWARD OF A CONTRACT BY THE DEPARTMENT OF THE NAVY PURSUANT TO IFB NO. 600- 648-57'S ISSUED DECEMBER 14. THE INVITATION IS FOR CHAIN TO BE USED AS AIRPORT RUNWAY BARRIERS. YOUR ORIGINAL AND FIRST ALTERNATE BIDS AND THE BID OF THE PORTLAND CHAIN COMPANY TO WHOM THE NAVY PROPOSES TO MAKE AWARDS FOR ALL ITEMS IS IN PERTINENT PART AS FOLLOWS: CHART THE PORTLAND DIMATTINA CO. SCREW PIN ANCHOR SHACKLE OR DETACHABLE LINK (SUITABLE FOR USE WITH ITEM 2). 1060 EACH $ 19.00 $ 19.00 $ 19.75 YOUR ORIGINAL BIDS FOR ITEMS 1 AND 2 ARE HIGHER THAN THOSE OF THE PORTLAND COMPANY AND AWARD FOR THOSE ITEMS SHOULD. YOUR PRICES UNDER THE ORIGINAL BID AND THE FIRST ALTERNATE FOR ITEMS 3 AND 4 ARE LOWER THAN THOSE OF THE PORTLAND COMPANY.

B-130696, MAR. 6, 1957

TO THE DIMATTINA COMPANY:

YOUR LETTER OF FEBRUARY 7, 1957, CONTENDS THAT YOU ARE ENTITLED TO AN AWARD OF A CONTRACT BY THE DEPARTMENT OF THE NAVY PURSUANT TO IFB NO. 600- 648-57'S ISSUED DECEMBER 14, 1956. THE INVITATION IS FOR CHAIN TO BE USED AS AIRPORT RUNWAY BARRIERS.

YOUR ORIGINAL AND FIRST ALTERNATE BIDS AND THE BID OF THE PORTLAND CHAIN COMPANY TO WHOM THE NAVY PROPOSES TO MAKE AWARDS FOR ALL ITEMS IS IN PERTINENT PART AS FOLLOWS:

CHART

THE PORTLAND

DIMATTINA CO. CHAIN MFG.

ORIG ALT NO. 1 COMPANY

-------------- ITEM NO. SUPPLIES OR QUANTITY UNIT UNIT PRICE UNIT PRICE

SERVICES 1. STUD LINK CHAIN,

SIZE RANGE 45-55

LB/FT (APPROX

2 3/16 INCHES

- 2 7/16 INCHES

DIA.) 90 FEET

SHOTS. 106 SHOT $639.00 $590.00 $615.00 2. STUD LINK CHAIN,

SIZE RANGE 50-60

LB/FT (APPROX

2 3/8 INCHES

- 2 9/16 INCHES

DIA.) 90 FEET

SHOTS. 954SHOT $739.00 $690.00 $694.00 3. SCREW PIN ANCHOR

SHACKLE OR

DETACHABLE LINK

(SUITABLE FOR

USE WITH ITEM 1). 106 EACH $ 19.00 $ 19.00 $ 19.40 4. SCREW PIN ANCHOR

SHACKLE OR

DETACHABLE LINK

(SUITABLE FOR

USE WITH ITEM 2). 1060 EACH $ 19.00 $ 19.00 $ 19.75

YOUR ORIGINAL BIDS FOR ITEMS 1 AND 2 ARE HIGHER THAN THOSE OF THE PORTLAND COMPANY AND AWARD FOR THOSE ITEMS SHOULD, THEREFORE, PROPERLY BE MADE TO THE PORTLAND COMPANY. YOUR PRICES UNDER THE ORIGINAL BID AND THE FIRST ALTERNATE FOR ITEMS 3 AND 4 ARE LOWER THAN THOSE OF THE PORTLAND COMPANY. IN A NOTE ON PAGE 2 OF THE INVITATION YOU STATE "ITEMS 3 AND 4 WILL BE OF EITHER ENGLISH OR AMERICAN MFG. UNUSED - .' THE GENERAL PROVISIONS OF THE INVITATION INCLUDE BY REFERENCE THE PROVISIONS OF STANDARD FORM 32. PARAGRAPH 14 OF THE STANDARD FORM UNDER THE HEADING BUY AMERICAN ACT PROVIDES, IN PERTINENT PART, THAT THE CONTRACTOR WILL DELIVER UNDER THE CONTRACT ONLY SUCH MANUFACTURED SUPPLIES AS HAVE BEEN MANUFACTURED IN THE UNITED STATES SUBSTANTIALLY ALL FROM SUPPLIES MINED, PRODUCED OR MANUFACTURED, AS THE CASE MAY BE, IN THE UNITED STATES. EXCEPTIONS TO THE PROVISION ARE THOSE INCLUDED IN THE BUY AMERICAN ACT, 41 U.S.C. 10A--- 10C, WHICH EXCLUDES FROM THE GENERAL PROHIBITION SUPPLIES EXCEPTED BY THE SECRETARY OF THE DEPARTMENT, SUPPLIES FOR USE OUTSIDE OF THE UNITED STATES AND SUPPLIES NOT MANUFACTURED OR PRODUCED IN THE UNITED STATES IN SUFFICIENT QUANTITIES AND OF A SATISFACTORY QUALITY. THE PERTINENT PROVISION OF THE BUY AMERICAN ACT, 41 U.S.C. 10A, PROVIDES, IN PART, THAT "NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AND UNLESS THE HEAD OF THE DEPARTMENT * * * SHALL DETERMINE IT TO BE INCONSISTENT WITH THE PUBLIC INTEREST, OR THE COST TO BE UNREASONABLE, * * * ONLY SUCH MANUFACTURED ARTICLES, MATERIALS, OR SUPPLIES MINED, PRODUCED, OR MANUFACTURED, AS THE CASE MAY BE IN THE UNITED STATES, SHALL BE ACQUIRED FOR PUBLIC USE.' NO DETERMINATION HAVING BEEN MADE BY THE SECRETARY OF THE NAVY THAT THE PROCUREMENT OF THE ITEMS IN QUESTION FROM UNITED STATES SOURCES AS REQUIRED BY THE ACT WOULD BE INCONSISTENT WITH PUBLIC INTEREST OR THE COST UNREASONABLE, IT FOLLOWS THAT ONLY SUPPLIES MANUFACTURED IN THE UNITED STATES MAY BE SUPPLIED UNDER ANY CONTRACT AWARDED PURSUANT TO THE INVITATION. THEREFORE, YOUR PROPOSAL TO SUPPLY ARTICLES UNDER ITEMS 3 AND 4 OF EITHER ENGLISH OR AMERICAN MANUFACTURE, PRESUMABLY AT YOUR OPTION, IS NONRESPONSIVE TO THE INVITATION AND ACCEPTANCE THEREOF WOULD BE IN DEROGATION OF THE BUY AMERICAN ACT.

IN YOUR EXPLANATION OF YOUR BID FOR ITEMS 1 AND 2 UNDER YOUR FIRST ALTERNATE YOU STATE "ALL SHOTS IN ITEMS 1 WILL RANGE FROM 2 3/16 INCHES TO 2 7/16 INCHES BUT WILL NOT NECESSARILY BE SAME SIZE," AND "ALL SHOTS IN ITEM 2 WILL RANGE FROM 2 3/8 INCHES TO 2 9/16 INCHES BUT WILL NOT NECESSARILY BE SAME SIZE.' ON PAGE 3 OF THE SCHEDULE UNDER THE HEADING,"SPECIFICATIONS AND SPECIAL PROVISIONS, IT IS STATED:

"ITEM 1: STUD LINK CHAIN, SIZE RANGE APPROXIMATELY 2 3/16 INCHES DIAMETER THROUGH 2 7/16 INCHES DIAMETER, IN 90 FT. SHOTS AND ALL SHOTS FURNISHED UNDER ITEM 1 SHALL BE OF THE SAME SIZE; 45 TO 55 POUND WEIGHT PER FOOT.

"ITEM 2: STUD LINK CHAIN, SIZE RANGE APPROXIMATELY 2 3/8 INCHES DIAMETER THROUGH 2 9/16 INCHES DIAMETER, IN 90 FT. SHOTS AND ALL SHOTS FURNISHED UNDER ITEM 2 SHALL BE OF THE SAME SIZE; 50 TO 60 POUND WEIGHT PER FOOT.'

SINCE THE SCHEDULE PROVIDES THAT ALL SHOTS FURNISHED UNDER ITEM 1 WILL BE OF THE SAME SIZE AND ALL THOSE UNDER ITEM 2 WILL BE OF THE SAME SIZE YOUR RESERVATION OF THE OPTION TO SUPPLY SHOTS UNDER EACH OF THE ITEMS WITHIN A RANGE OF SIZES MUST BE CONSIDERED NONRESPONSIVE TO THE SPECIFICATIONS. SEE 17 COMP. GEN. 554.

YOUR ALTERNATE BID NO. 2 IS DESCRIBED AS FOLLOWS:

"BASED UPON DELIVERY TO BEGIN IN JUNE 1957 AND COMPLETED IN ONE YEAR, WE HAVE A PLAN FOR MAKING NEW CHAIN IN THE UNITED STATES--- THIS PLAN WILL EFFECT A SAVING OF 1/2 CENTS OR MORE PER POUND AS AGAINST OUR NEW ENGLISH MFGD. CHAIN PRICE.--- SHOULD OUR ALTERNATE BID NO. 2 BE ENTERTAINED BY THE NAVY DEPARTMENT, WE WILL LAY OUT THIS PLAN IN DETAIL FOR CONSIDERATION --- ALL PHYSICAL REQUIREMENTS AS SET FORTH BY THE NAVY DEPARTMENT WILL BE MAINTAINED.'

YOUR ALTERNATE BID RELATES APPARENTLY TO ITEMS 1 AND 2 ONLY. THE SPECIFICATIONS ON THOSE ITEMS PROVIDE FOR A WEIGHT RANGE OF FROM 45 TO 55 POUNDS PER FOOT FOR ITEM 1, AND 50 TO 60 POUNDS PER FOOT FOR ITEM 2. VIEW OF THE RANGE, IT IS NOT POSSIBLE TO APPLY THE NET SAVING OF 1/2 CENT ON A POUND IN YOUR ALTERNATE BID NO. 2 AGAINST AN ABSOLUTE FIGURE IN ORDER TO ASCERTAIN THE PRICE PROPOSED. FURTHER, THE LANGUAGE OF THE SECOND ALTERNATE WOULD APPEAR TO IMPLY A PROPOSAL WHICH WOULD BE SUBJECT TO NEGOTIATION RATHER THAN A BID WHICH UPON ACCEPTANCE WOULD ESTABLISH A BINDING CONTRACT. ACCORDINGLY, WE CANNOT OBJECT TO THE DEPARTMENT OF THE NAVY'S INTERPRETATION OF ALTERNATE BID NO. 2 AS MERELY A SOLICITATION OF AN OFFER AND NOT AS A BID. SEE ALSO 19 COMP. GEN. 614, HOLDING THAT BIDS SO QUALIFIED AS TO RENDER THE CONTRACT PRICE UNCERTAIN SHOULD BE REJECTED.

IN ACCORDANCE WITH THE FOREGOING, WE PERCEIVE NO BASIS FOR OBJECTION TO THE PROPOSED AWARD UNDER THE INVITATION FOR THE ITEMS DISCUSSED ABOVE TO THE PORTLAND CHAIN MANUFACTURING COMPANY.