B-131320, APR. 8, 1957

B-131320, APR. 8, 1957

TO MRS. EUGENIA D. CONOVER, CONTRACTING OFFICER, NATIONAL CAPITAL HOUSING AUTHORITY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1957, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE PROPRIETY OF MAKING AN AWARD TO THE WELBILT CORPORATION, LONG ISLAND, NEW YORK, ON THE BASIS OF ITS LOW BID PRICE OF $56.40 EACH, OR A TOTAL OF $21,996, ON 390 KITCHEN GAS RANGES, AS ADVERTISED UNDER YOUR INVITATION FOR BIDS NO. 57, ISSUED FEBRUARY 27, 1957.

AT THE OPENING OF THE BIDS ON MARCH 12, 1957, IT WAS FOUND THAT OF THE FIVE BIDS RECEIVED, THE WELBILT CORPORATION WAS THE LOW BIDDER ON ITS MODEL NO. 5624, OFFERED AT THE ABOVE-QUOTED UNIT PRICE IN ITS PROPOSAL DATED MARCH 7, 1957.

PARAGRAPH 2 OF THE SPECIFICATIONS, RELATING TO THE CONSTRUCTION OF THE RANGES, PROVIDES, IN PERTINENT PART:

"D. OVEN DOORS SHALL BE PROP-TYPE, BROILER DOORS SHALL BE DROP-OR SWING- TYPE. * * * SWING-TYPE DOORS SHALL BE RIGIDLY HINGED. DOORS SHALL BE REINFORCED FOR ATTACHMENT OF HINGES. ALL DOORS WHEN IN CLOSED POSITION SHALL REMAIN TIGHTLY CLOSED. HINGES SHALL NOT BE WELDED TO THE DOOR OR FRAMES.'

PARAGRAPH 7 OF THE SPECIFICATIONS REQUIRES EACH BIDDER TO SUBMIT TO THE NATIONAL CAPITAL HOUSING AUTHORITY AN AFFIDAVIT CERTIFYING THAT THE RANGES WHICH IT PROPOSES TO FURNISH SHALL CONFORM TO THE REQUIREMENTS STATED IN THE SPECIFICATIONS. IN RESPONSE TO THIS REQUIREMENT, THE WELBILT CORPORATION EXECUTED AN AFFIDAVIT DATED MARCH 7, 1957, WHEREIN IT WAS CERTIFIED THAT ITS MODEL NO. 5624 GAS RANGE CONFORMED TO THE SPECIFICATION REQUIREMENTS,"WITH THE FOLLOWING XCEPTION: "

"PARAGRAPH 2D OF THE SPECIFICATION REQUIRES THAT HINGES SHALL NOT BE WELDED TO THE DOOR OR FRAME. HINGES ON SUBJECT RANGES ARE BOLTED TO THE FRAME. A SEPARATE PIN ON WHICH THE HINGE PIVOTS IS EASILY REMOVED. THIS PIN IS THE PIVOT OF THE HINGE. THE OVEN DOOR LINK WHICH IS WELDED TO THE OVEN DOOR LINING IS NOT THE MOVING PART, SINCE IT PIVOTS WITH THE OVEN DOOR PIN. THEREFORE, THE WEAR IS ONLY UPON THE PIN AND NOT UPON THE LINK. THEREFORE, THE OVEN DOOR LINK DOES NOT WEAR AND IS GUARANTEED FOR THE LIFE OF THE OVEN DOOR LINING. * * *"

IT IS REPORTED IN YOUR LETTER THAT ON JANUARY 27, 1957, THE WELBILT CORPORATION WAS AWARDED CONTRACT NO. CH-2660 UNDER SPECIFICATIONS IDENTICAL TO THOSE SET FORTH IN THE PRESENT INVITATION NO. 57. THIS CONTRACT COVERED THE PROCUREMENT OF A TOTAL OF 223 MODEL NO. 5624 GAS RANGES SCHEDULED FOR INSTALLATION IN THE ARTHUR CAPPER DWELLINGS. ALSO, IN 1952, CONTRACT NO. CH-1550 WAS AWARDED TO THIS FIRM FOR 348 SIMILAR RANGES PROCURED FOR INSTALLATION IN THE STANTON DWELLINGS. APPARENTLY, THESE AWARDS WERE MADE TO THE WELBILT CORPORATION IN RELIANCE UPON ITS UNQUALIFIED CERTIFICATIONS THAT THE PRODUCT OFFERED FULLY CONFORMED TO THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS. IT NOW IS FOUND THAT SUCH CERTIFICATIONS WERE NOT CORRECT IN THAT THE RANGES FURNISHED UNDER THE 1952 CONTRACT AND THOSE PROPOSED TO BE FURNISHED UNDER THE PRESENT INVITATION AND, PRESUMABLY, UNDER THE EARLIER 1957 CONTRACT, ARE EQUIPPED WITH HINGES WHICH, THOUGH BOLTED TO THE FRAME OF THE GAS RANGE, ARE "WELDED" TO THE OVEN DOOR LINING. OBVIOUSLY, THIS TYPE OF CONSTRUCTION IS NOT IN CONFORMITY WITH THE PLAIN REQUIREMENT OF THE SPECIFICATIONS THAT THE HINGES SHALL NOT BE WELDED EITHER TO THE OVEN "DOOR OR FRAME.'

ALTHOUGH IT IS REPORTED BY THE DIVISION HAVING RESPONSIBILITY FOR THE MAINTENANCE OF THESE PROJECTS THAT PAST EXPERIENCE HAS SHOWN THAT NO APPRECIABLE AMOUNT OF MAINTENANCE HAS BEEN NECESSITATED AS A RESULT OF THE WELBILT GAS RANGE HINGE CONSTRUCTION, THE FACT REMAINS THAT THE WORDING OF THE SPECIFICATIONS IS CLEAR AND UNEQUIVOCAL IN REQUIRING THAT THE HINGES NOT BE WELDED. MOREOVER, THE DRAFTSMAN OF THE SPECIFICATIONS APPARENTLY CONSIDERED THE REQUIREMENT OF MAJOR IMPORTANCE SINCE THE PERTINENT LANGUAGE IS SPECIFICALLY UNDERSCORED.

THE PURPOSE OF THE STATUTORY REQUIREMENT OF ADVERTISING FOR BIDS IS TO PERMIT BIDDERS TO COMPETE FOR GOVERNMENT BUSINESS UPON A FAIR AND EQUAL BASIS, AND THUS ASSURE TO THE GOVERNMENT THE FULL BENEFITS WHICH MAY BE EXPECTED TO BE DERIVED FROM FREE AND OPEN COMPETITION. SEE 18 COMP. GEN. 641, 643; IBID. 117, 118; 13 ID. 284, 286. OBVIOUSLY, THIS OBJECTIVE COULD NOT BE ACCOMPLISHED IF, AFTER ADVERTISING FOR PROPOSALS UNDER WELL DEFINED SPECIFICATIONS, THE GOVERNMENT THEREAFTER ENTERED INTO NEGOTIATIONS WITH ONE OR MORE OF THE BIDDERS WITH A VIEW TOWARDS AWARDING THE CONTRACT ON A BASIS ESSENTIALLY DIFFERENT FROM THAT SHOWN IN THE ADVERTISED SPECIFICATIONS. SEE 17 COMP. GEN. 554, 558-559.

WHILE IT MAY BE THAT A HINGE WELDED TO AN OVEN LINING IS AS SERVICEABLE AS ONE BOLTED TO SUCH SURFACE, IN VIEW OF THE SPECIFIC ADVERTISED REQUIREMENT THAT THE LATTER TYPE OF OVEN DOOR CONSTRUCTION BE FURNISHED, AND PARTICULARLY CONSIDERING THE EMPHASIS WHICH WAS PLACED IN THE SPECIFICATIONS FOR SUCH BOLT TYPE HINGE INSTALLATION, IT IS OUR CONCLUSION THAT THE LOW BID OF THE WELBILT CORPORATION UNDER INVITATION NO. 57 IS NOT RESPONSIVE TO THE MINIMUM REQUIREMENTS OF THE INVITATION AND, THEREFORE, SHOULD BE REJECTED, AWARD TO BE MADE TO THE NEXT LOWEST RESPONSIVE BIDDER.

IN VIEW OF THE UNQUALIFIED CERTIFICATION OF COMPLIANCE FURNISHED BY THE CONTRACTOR IN CONNECTION WITH ITS CONTRACT NO. CH-2660, THE AUTHORITY PROPERLY SHOULD INSIST UPON STRICT COMPLIANCE WITH THE SPECIFICATIONS OF THAT CONTRACT.

THE QUESTIONS PRESENTED IN YOUR LETTER ARE ANSWERED ACCORDINGLY. THE PAPERS WHICH ACCOMPANIED YOUR SUBMISSION ARE RETURNED HEREWITH.