B-131030, APR. 29, 1957

B-131030, APR. 29, 1957

TO STEWART AND STEVENSON SERVICES, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 11 AND YOUR LETTERS OF MARCH 15, 1957 AND APRIL 19, 1957, PROTESTING THE PROPOSED AWARD OF A CONTRACT BY THE DEPARTMENT OF THE NAVY TO THE THIRD LOWEST BIDDER UNDER INVITATION FOR BIDS NO. 160-230-57.

THE INVITATION ISSUED BY THE YARDS AND DOCKS SUPPLY OFFICE, PORT HUENEME, CALIFORNIA, REQUESTED BIDS FOR 24 GENERATOR SETS DESCRIBED ON PAGE 2 OF THE INVITATION AS---

"GENERATOR SET,

DIESEL ENGINE DRIVEN 100 KW, 3 PHASE, 4 WIRE, 120/208V TO 240 V AND

RECONNECTABLE TO 240/416V ADJUSTABLE FROM 410 TO 480V, WITH TECHNICAL

PUBLICATIONS.'

FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. YOUR BID WAS LOW. YOU AND THE SECOND LOW BIDDER, HOWEVER, PROPOSED TO SUPPLY A DIESEL ENGINE WHICH THE DEPARTMENT OF THE NAVY ALLEGES DOES NOT MEET THE SPECIFICATIONS. THE LOW BIDDER OFFERING AN ENGINE CONSIDERED BY THE DEPARTMENT OF THE NAVY AS MEETING THE SPECIFICATIONS IS THE CONSOLIDATED DIESEL ELECTRIC CORPORATION OF STANFORD, CONNECTICUT. YOU CONTEND THAT YOUR BID IS DEFINITELY IN CONFORMANCE WITH THE SPECIFICATIONS. THE BASIS FOR YOUR CONTENTION IS THAT, NOTWITHSTANDING THAT THE BUDOCKS PURCHASE DESCRIPTION REFERRED TO IN THE INVITATION, AS QUOTED BELOW, PROVIDES THAT THE GENERATOR SET SHALL CONFORM TO TYPE II, CLASS A, OF MILITARY SPECIFICATION MIL-G 10327A/CE), THAT SPECIFICATION WAS IN FACT SUPERSEDED BY MIL-G 10327A/CE), THAT SPECIFICATION WAS IN FACE SUPERSEDED BY MIL-G 10327B/CE) DATED SEPTEMBER 14, 1956, AND THE LATTER SHOULD CONTROL. YOU INDICATED FURTHER THAT THE OLD SPECIFICATION IS NO LONGER OBTAINABLE FROM THE GOVERNMENT PRINTING OFFICE AND THAT REQUESTS FOR THE OLD SPECIFICATION WOULD RESULT IN RECEIPT OF COPIES OF THE NEWER SPECIFICATION. HOWEVER, BOTH THE NEW AND THE SUPERSEDED SPECIFICATION CITED ABOVE INCORPORATED BY REFERENCE MIL-E-11276, WHICH WAS SUPERSEDED ON MAY 9, 1956, BY MIL-E- 11276A AND THE LATTER WAS IN EFFECT AT THE TIME THE INVITATION FOR BIDS WAS ISSUED ON JANUARY 10, 1957. BOTH MIL E-11276 AND MIL-E-11276A PERMIT THE USE OF THE ENGINE WHICH YOU PROPOSED TO USE IN YOUR GENERATOR SETS. THEREFORE, YOU CONTEND THAT YOUR BID IS STRICTLY IN ACCORDANCE WITH THE SPECIFICATIONS.

YOU FURTHER STATE THAT YOU WERE FURNISHED BY THE FORT HUENEME PROCUREMENT OFFICE A BIDDER'S INFORMATION CHECK LIST WHICH REQUESTED THE BIDDER, BEFORE SIGNING HIS BID, TO ANSWER THE QUESTION--- "DO YOU HAVE THE CURRENT REQUIRED DRAWINGS AND SPECIFICATIONS?

THE ADMINISTRATIVE REPORT RECEIVED FROM THE DEPARTMENT OF THE NAVY INDICATES THAT, IN ORDER TO FULFILL ITS REQUIREMENTS UNDER A DEFAULTED CONTRACT, IT WAS THE PURPOSE OF THE NAVY TO PROCURE AN ENGINE WHICH WOULD PROVIDE THE NECESSARY HORSEPOWER AT 1,200 R.P.M. IN ACCORDANCE WITH THE SUPERSEDED SPECIFICATION REFERRED TO. THERE IS, OF COURSE, NO LEGAL COMPULSION UPON A CONTRACTING AGENCY TO PURCHASE SOMETHING OTHER THAN WHAT IT WANTS AND WHAT IT INTENDED TO BUY. IN ANY CASE THE HEAD OF THE PROCURING AGENCY HAS, UNDER 10 U.S.C. 2305 (B), THE AUTHORITY TO REJECT ALL BIDS WHENEVER HE DETERMINES SUCH REJECTION TO BE IN THE PUBLIC INTEREST. THE ONLY QUESTION PRESENTED HERE, THEREFORE, IS WHETHER THERE SHOULD BE REQUIRED THE REJECTION OF ALL BIDS ON THE BASIS THAT THE SPECIFICATIONS WERE UNCLEAR AND AMBIGUOUS OR WHETHER IT CAN BE DETERMINED THAT THE SPECIFICATIONS WERE SUFFICIENTLY CLEAR AND ADEQUATELY REFLECTED THE NAVY'S REQUIREMENTS TO COMPLY WITH THE STATUTES GOVERNING PROCUREMENT THROUGH FORMAL ADVERTISING.

THE GENERAL RULE REQUIRES THAT SPECIFICATIONS BE CLEAR AND UNAMBIGUOUS SO THAT ALL BIDDERS MAY UNDERSTAND THE REQUIREMENTS AND BID ON THE SAME THING. B-94401, MAY 26, 1950. OTHERWISE, FULL AND FREE COMPETITION, ONE OF THE CHIEF PURPOSES OF THE STATUTES GOVERNING FORMAL PROCUREMENT, CANNOT BE ACHIEVED. 36 COMP. GEN. 380, 384.

THE INVITATION FOR BIDS CONTAINED A NOTICE TO BIDDERS ON PAGE 1 ADVISING THEM THAT QUESTIONS REGARDING SPECIFICATIONS MUST BE DIRECTED TO THE CONTRACTING OFFICER IN WRITING. NOTE NO. 24 ON PAGE 17 OF THE INVITATION, PROVIDES THAT ALL APPLICABLE DRAWINGS, PLANS AND SPECIFICATIONS MAY BE OBTAINED FROM THE DESIGNATED SUPPLY OFFICE WHICH IS IDENTIFIED BY ADDRESS, TELEPHONE NUMBER AND EXTENSION. IT APPEARS, THEREFORE, THAT ALL BIDDERS WERE ON NOTICE THAT THE PROPER SPECIFICATIONS WERE MADE TO THAT OFFICE RATHER THAN TO THE GOVERNMENT PRINTING OFFICE OR OTHER AGENCIES THE PROPER SPECIFICATIONS WOULD HAVE BEEN FURNISHED.

ON PAGE 5 OF THE INVITATION UNDER THE HEADING "NOTES," ITEM 1 STATES---

"SPECIFICATIONS:

"A. TO BE IN ACCORDANCE WITH BUDOCKS PURCHASE DESCRIPTION FOR POWER PLANT, ELECTRIC, DIESEL ENGINE DRIVEN, SKID MOUNTED, 100 KW DATED 17 DECEMBER 1954 WITH THE FOLLOWING CHANGES:

"PAGE 1 UNDER PAGE 2, PARAGRAPH 2.1 DELETE THE FIRST SENTENCE. ADD: THE FOLLOWING SPECIFICATIONS AND STANDARDS FORM A PART OF THIS SPECIFICATION.'

THERE FOLLOW TWO LISTS: THE LIST ON THE LEFT-HAND SIDE OF THE PAGE BEING FOR DELETION AND THE LIST ON THE RIGHT-HAND SIDE OF THE PAGE BEING FOR INCLUSION IN THE BUDOCKS PURCHASE DESCRIPTION. ON PAGE 6, THE THIRD LINE FROM THE TOP INDICATES THAT NIL-E-11276 IS TO BE DELETED AND REPLACED BY MIL-E-11276/1). THE LATTER SPECIFICATION REQUIRES THE USE OF AN ENGINE ATTAINING THE NECESSARY BRAKE HORSEPOWER AT 1,200 R.P.M. AS YOU STATED, MIL-E-11276A SUPERSEDED MIL-E-11276 PRIOR TO THE TIME THE INVITATION WAS ISSUED. WE THINK THE FACT THAT THE LATEST SPECIFICATION WAS NOT CALLED FOR BY THE TERMS OF THE INVITATION BUT THAT REFERENCE WAS MADE TO AN AMENDMENT TO THE OLDER SPECIFICATION SHOULD HAVE PUT THE BIDDER ON NOTICE THAT THE CURRENT SPECIFICATION WAS NOT INTENDED AND WAS NOT TO BE FOLLOWED.

YOU POINT OUT THAT THE CITATION "PAGE 1 - UNDER PAGE 2, PARAGRAPH 2.1" ETC., REFERS TO THE BUDOCKS PURCHASE DESCRIPTION, AND THAT THE SENTENCE TO BE DELETED IN ACCORDANCE WITH THE INSTRUCTION PROVIDES MERELY:

"UNDER "SPECIFICATIONS, FEDERAL" ADD "W-H-151 - RECEPTACLES (CONVENIENCE OUTLETS), ADAPTERS, ATTACHMENT-PLUG-CAPS, CORD-CONNECTOR BODIES; 250 VOLTS. PPP-B-601 - BOXES, WOOD, ATED-PLYWOOD.'"

THUS, YOU CONTEND THAT PARAGRAPH 2.1 OF MIL-G-10327A WOULD CONTINUE TO PROVIDE:

"THE FOLLOWING SPECIFICATIONS, STANDARDS, DRAWINGS, AND PUBLICATIONS, OF THE ISSUE IN EFFECT ON DATE OF INVITATION FOR BIDS, FORM A PART OF THIS SPECIFICATION.'

AND, SINCE MIL-E-11276A WAS IN EFFECT ON THE DATE THE INVITATION FOR BIDS WAS ISSUED, YOU CONTEND THAT ITS PROVISIONS SHOULD BE CONSIDERED AS APPLYING TO THIS PROCUREMENT.

SPECIFICATIONS ORDINARILY MAKE REFERENCE TO THE BASIC NUMBERS OF OTHER SPECIFICATIONS INCLUDED BY REFERENCE AND INDICATE THAT THE ISSUE OF EACH IN EFFECT AT THE TIME THE INVITATION IS ISSUED IS TO APPLY. IN THIS CASE, HOWEVER, ITEM 1 OF THE NOTES ON PAGES 5 AND 6 OF THE INVITATION SPECIFICALLY PROVIDED THE ISSUE OF SUCH SPECIFICATION WHICH WAS INTENDED TO GOVERN. THIS IS THE BASIC CHANGE EFFECTED BY THE LARGE NUMBER OF DELETIONS AND INSERTIONS PRESCRIBED. UNLESS THE ABOVE QUOTED DIRECTION TO DELETE IS APPLIED TO THE FIRST SENTENCE OF PARAGRAPH 2.1 OF MIL-G-10327A AS IT OBVIOUSLY WAS INTENDED TO DO RATHER THAN TO THE REFERENCE TO THAT PARAGRAPH IN THE BUDOCKS PURCHASE DESCRIPTION, THE DELETIONS AND INSERTIONS WOULD BE COMPLETELY WITHOUT MEANING SINCE, IF THE SPECIFICATION ISSUE INSERTED IS THE LATEST IN EFFECT, IT IS ALREADY REQUIRED BY THE LANGUAGE OF THE FIRST SENTENCE OF PARAGRAPH 2.1 OF THE SPECIFICATION, AND IF IT IS NOT THE LATEST ISSUE ITS INCLUSION OBVIOUSLY SERVES NO PURPOSE SINCE THE LATEST ISSUE IS PRESCRIBED BY SUCH FIRST SENTENCE.

CERTAINLY IN THE REGARD DISCUSSED ABOVE THE INVITATION SHOULD HAVE BEEN MORE CAREFULLY WRITTEN. HOWEVER, WE THINK THAT THE EXERCISE OF ONLY A REASONABLE AMOUNT OF CARE BY A BIDDER WOULD HAVE READILY DISCLOSED THAT THE REFERENCE TO THE FIRST SENTENCE WAS INTENDED TO APPLY TO THE SPECIFICATION AND NOT THE PURCHASE DESCRIPTION SINCE OTHERWISE, AS STATED ABOVE, THE LISTS OF DELETIONS AND INSERTIONS HAVE NO MEANING. IN THAT CONNECTION, IN CASES DEALING WITH THE INTERPRETATION OF CONTRACTS IT HAS BEEN HELD THAT A CONTRACT SHOULD BE INTERPRETED TO GIVE EFFECT TO ALL PROVISIONS THEREOF, WHENEVER POSSIBLE, WITHOUT VIOLATING THE PLAIN LANGUAGE OF THE CONTRACT OR THE CLEAR INTENT OF THE PARTIES. BRODERICK WOOD PROJECTS COMPANY V. UNITED STATES. 195 F.2D 433. FURTHER, COURTS WILL DECLARE A CONTRACT PROVISION MEANINGLESS ONLY WHEN SUCH A CONCLUSION IS LEGALLY OR FACTUALLY COMPELLED. FOX MIDWEST THEATERS V. MEANS, 221 F.2D 173. WE PERCEIVE NO REASON WHY THESE PRINCIPLES SHOULD NOT APPLY WITH EQUAL FORCE TO INVITATIONS FOR BIDS.

AS STATED ABOVE, THE SPECIFICATIONS COULD HAVE BEEN MADE SOMEWHAT CLEARER. FOR EXAMPLE, IN ORDER TO REMOVE ALL DOUBT, THE INVITATION COULD SPECIFICALLY HAVE POINTED OUT THAT THE SPECIFICATIONS AS WRITTEN WERE INTENDED TO BE FOLLOWED NOTWITHSTANDING THE FACT THAT CERTAIN OF THEM HAD BEEN REPLACED. NEVERTHELESS, WE CANNOT SAY THAT THE INVITATION WAS SO UNCLEAR OR AMBIGUOUS AS TO RENDER IT DEFECTIVE AND TO REQUIRE READVERTISING. IF YOU FELT THAT SOME CONFUSION EXISTED WHICH REQUIRED CLARIFICATION, YOU COULD, AT ANY TIME PRIOR TO THE TIME FOR BID OPENING, HAVE REQUESTED SUCH CLARIFICATION FROM THE CONTRACTING OFFICER IN ACCORDANCE WITH THE TERMS OF THE INVITATION.

FOR THE FOREGOING REASONS, WE PERCEIVE NO LEGAL BASIS UPON WHICH OUR OFFICE MAY REQUIRE EITHER THAT YOUR BID BE ACCEPTED OR THAT THE PROCUREMENT BE READVERTISED.