B-132433, JUN. 13, 1958

B-132433: Jun 13, 1958

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TO ESTAY CORPORATION: REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT FOR METAL BOOK STACKS TO REMINGTON RAND PURSUANT TO LIBRARY OF CONGRESS ANNEX JOB NO. 5270. THE PRINCIPAL BASIS FOR THE PROTEST IS YOUR CLAIM THAT YOUR BID IS THE LOWEST RECEIVED IF THE TRADE DISCOUNT YOU OFFERED IS TAKEN INTO CONSIDERATION IN THE EVALUATION OF YOUR BID. IF TIE ANGLES ARE REQUIRED. YOUR BID IS AMBIGUOUS AS TO WHETHER $910 OR $1. 350 IS TO BE ADDED TO THE LUMP-SUM PRICE. WHICH WAS FOUND BY THE ARCHITECT TO BE INADEQUATE TO MEET THE REQUIREMENT OF THE LIBRARY. AWARD WAS MADE TO REMINGTON RAND FOR 630 COMPLETE SECTIONS AT A TOTAL PRICE OF $95. THE SAME NUMBER OF SECTIONS COULD HAVE BEEN OBTAINED FROM YOU AT A PRICE.

B-132433, JUN. 13, 1958

TO ESTAY CORPORATION:

REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT FOR METAL BOOK STACKS TO REMINGTON RAND PURSUANT TO LIBRARY OF CONGRESS ANNEX JOB NO. 5270.

THE PRINCIPAL BASIS FOR THE PROTEST IS YOUR CLAIM THAT YOUR BID IS THE LOWEST RECEIVED IF THE TRADE DISCOUNT YOU OFFERED IS TAKEN INTO CONSIDERATION IN THE EVALUATION OF YOUR BID.

IN RESPONSE TO THE INVITATION ISSUED BY THE ARCHITECT OF THE CAPITOL, YOU BID A LUMP-SUM PRICE OF $30,300, WITH A HALF PERCENT DISCOUNT FOR PAYMENT IN 10 CALENDAR DAYS, TO SUPPLY 20 DOUBLE FACED SHEET STEEL BOOK STACK SECTIONS, OF YOUR "OFFSET" TYPE, WITHOUT TIE ANGLES. IF TIE ANGLES ARE REQUIRED, YOUR BID IS AMBIGUOUS AS TO WHETHER $910 OR $1,350 IS TO BE ADDED TO THE LUMP-SUM PRICE. IN ADDITION, YOU QUOTED, IN ACCORDANCE WITH THE INVITATION, UNIT PRICES AGGREGATING $151.50 FOR EACH UNIT ADDED TO OR OMITTED FROM THE BASIC QUANTITY OF 200, EXCLUSIVE OF ANY ADDITION FOR THE TIE ANGLES, IF REQUIRED. YOU ALSO SUBMITTED AN ALTERNATE BID ON A "FLUSH- TYPE" DESIGN, WHICH WAS FOUND BY THE ARCHITECT TO BE INADEQUATE TO MEET THE REQUIREMENT OF THE LIBRARY.

REMINGTON RAND BID A LUMP-SUM PRICE OF $39,897 NET TO FURNISH THE 200 BOOK STACK SECTIONS WITH TIE ANGLES. FOR EACH UNIT ADDED TO OR OMITTED FROM THE BASIC QUANTITY, ITS QUOTED UNIT PRICES AGGREGATED $128.55.

AWARD WAS MADE TO REMINGTON RAND FOR 630 COMPLETE SECTIONS AT A TOTAL PRICE OF $95,173.50. ON THE BASIS OF YOUR BID, THE SAME NUMBER OF SECTIONS COULD HAVE BEEN OBTAINED FROM YOU AT A PRICE, AFTER DISCOUNT, OF $94,967.78, IF THE TIE ANGLES WERE NOT REQUIRED. THE CONTROLLING QUESTION THEREFORE APPEARS TO BE WHETHER THE STACKS OFFERED BY YOU WERE IN COMPLIANCE WITH THE SPECIFICATIONS WITHOUT SUCH TIE ANGLES.

THE ADMINISTRATIVE DETERMINATION, ON WHICH THE AWARD WAS BASED, WAS THAT THE TIE ANGLES WERE NECESSARY TO BRING YOUR BID INTO CONFORMITY WITH THE SPECIFICATIONS, FOR THE FOLLOWING REASONS:

ALTHOUGH THE WRITTEN SPECIFICATIONS ISSUED TO PROSPECTIVE BIDDERS DID NOT DETAIL THE BOOK STACK DESIGN, THEY WERE SUFFICIENTLY EXPLICIT AND DEFINITE TO HAVE INDICATED THE GOVERNMENT'S REQUIREMENTS IN THAT THEY INCORPORATED BY REFERENCE THE DESIGN OF THE EXISTING BOOK STACK CONSTRUCTION, EXCEPT THAT SHEET STEEL FABRICATION WAS SUBSTITUTED FOR THE EXISTING CAST IRON FABRICATION. BIDDING CONDITION 14 ADMONISHED BIDDERS TO VISIT THE LIBRARY OF CONGRESS ANNEX TO FULLY INFORM THEMSELVES AS TO THE NATURE AND SCOPE OF THE GOVERNMENT'S REQUIREMENTS. SPECIAL PROVISION 2-08 EXHORTED THEM TO INSPECT AND STUDY THOROUGHLY THE EXISTING BOOK STACK CONSTRUCTION TO ACQUAINT THEMSELVES WITH ALL OF ITS DETAILS SO THAT THEY COULD DESIGN AND ADOPT THEIR STANDARD EQUIPMENT TO CONFORM TO THE EXISTING CONSTRUCTION. SPECIAL PROVISION 2-09 FURTHER ADVISED BIDDERS TO DEVELOP THEIR BOOK STACK DESIGN ON THE BASIS OF INFORMATION SECURED BY ACTUAL INSPECTION AND EXAMINATION OF THE EXISTING BOOK STACKS. IN VIEW OF THE CITED CONDITION AND PROVISIONS, IT IS CLEAR THAT THE ARCHITECT'S INTENTION WAS AS NEARLY AS POSSIBLE TO DUPLICATE THE EXISTING BOOK STACK CONSTRUCTION, EXCEPT AS SPECIFICALLY MODIFIED BY THE WRITTEN SPECIFICATIONS.

THE EXISTING BOOK STACK CONSTRUCTION IS PECULIAR TO THE LIBRARY BUILDING CONSTRUCTION IN THAT SUSPENDED STANDARDS, OR UPRIGHTS, FROM OVERHEAD BEAMS ARE SECURELY HELD IN THEIR PROPER POSITION BY ADJUSTABLE SCREW-FASTENINGS ENGAGING THE END STANDARD AND THE ADJACENT BUILDING COLUMN AND BY CONTINUOUS BOTTOM TIE ANGLE BRACES ON EACH FACE OF THE DOUBLE BOOK STACK SECTION FASTENED TO THE FIRMLY SUPPORTED END STANDARDS AND TO THE INTERMEDIATE STANDARDS. THE COMPLETED ASSEMBLY OF END AND INTERMEDIATE STANDARDS AND TIE ANGLE BRACES CONSTITUTES A RIGID FRAMED STRUCTURE READY TO RECEIVE THE SHELVES WHICH THEMSELVES DO NOT CONTRIBUTE TO THE STRUCTURAL RIGIDITY.

SPECIAL PROVISION 3-06 EMPHASIZED THE TIE ANGLE BRACE REQUIREMENT AS FOLLOWS:

"BRACING. LONGITUDINAL BOTTOM MEMBERS OF STRUCTURAL STEEL SHAPES SHALL BE PROVIDED ALONG BOTH FRONTS OF SECTIONS TO TIE THE VERTICALS TOGETHER IN A MANNER SIMILAR TO THE EXISTING BOOK STACKS. ADEQUATE STIFFNESS SHALL BE PROVIDED BY SUCH ADDITIONAL REINFORCEMENT AS MAY BE NECESSARY TO CONFORM TO THE STANDARDS HEREINBEFORE SPECIFIED FOR THE ENTIRE SYSTEM.' ARTICLE 6 OF THE ADDENDUM EXPATIATED THE PROVISION:

"BRACING. THE INTENT OF ARTICLE 3-06 TO PROVIDE LONGITUDINAL AND TRANSVERSE STIFFNESS TO THE BOOK STACK CONSTRUCTION SATISFACTORY TO THE ARCHITECT OF THE CAPITOL, AND THE STRUCTURAL STEEL LONGITUDINAL BOTTOM MEMBERS MAY BE OMITTED IF THE NECESSARY STIFFNESS IS PROVIDED BY OTHER ANS.'

CLEARLY, THE SPECIFICATIONS AND PARTICULARLY SPECIAL PROVISION 3-06 REQUIRED THE TIE ANGLES AND ARTICLE 6 PERMITTED THEM TO BE OMITTED ONLY IF THE NECESSARY STIFFNESS WAS PROVIDED BY OTHER MEANS. IT IS YOUR CONTENTION THAT THE "FIXED" BOTTOM SHELF OFFERED IN YOUR DESIGN PROVIDES THE NECESSARY RIGIDITY WITHOUT THE USE OF THE TIE ANGLES. ALTHOUGH YOU ALLEGE THAT THE BOTTOM SHELF IS "FIXED," IT IS CLEAR FROM THE DRAWINGS ACCOMPANYING YOUR BID THAT IT IS "ADJUSTABLE.'

IN ANY EVENT, A FIXED BOTTOM SHELF WOULD NOT MEET THE SPECIFICATIONS. SPECIAL PROVISION 3-07, IN ADDITION TO OTHER FACTORS NOT PERTINENT HERE, STATED: "THE BOTTOM SHELF MAY BE ADJUSTABLE, OR IT MAY BE FIXED IN POSITION AFTER ERECTION.' ARTICLE 7 OF THE ADDENDUM WAS SUBSTITUTED FOR SPECIAL PROVISION 3-07. STATEMENTS THAT WERE DEEMED ESSENTIAL IN PROVISION 3-07 WERE RESTATED IN ARTICLE 7 AND PROVISION 3-07 WAS OTHERWISE ALTERED INCLUDING THE OMISSION OF THE QUOTED SENTENCE. THE DELETION OF THE SENTENCE FROM THE REWRITTEN PROVISION WAS TANTAMOUNT TO ADVISING BIDDERS THAT THE SHELVES HAD TO CONFORM TO THE EXISTING BOOK STACK CONSTRUCTION AND, AS INDICATED, THOSE SHELVES ARE ADJUSTABLE AND DO NOT CONTRIBUTE TO THE STRUCTURAL RIGIDITY.

IT WAS THE CLEAR INTENT OF THE SPECIFICATIONS THAT ANY DESIGNS OFFERED BY BIDDERS SHOULD PROVIDE A RIGIDITY COMPARABLE TO THE EXISTING BOOK STACK CONSTRUCTION, I.E., THE STACK MUST BE SO CONSTRUCTED THAT THE SUSPENDED STANDARDS WILL HANG RIGIDLY WITH OR WITHOUT SHELVES AS IN THE EXISTING BOOK STACKS. UNDER THE DESIGN OFFERED BY YOU, I.E., ADJUSTABLE BOTTOM SHELVES WITHOUT TIE ANGLE BRACING, WHENEVER IT SHOULD BECOME NECESSARY TO REMOVE ALL SHELVES FROM A BOOK STACK SECTION THE INTERMEDIATE STANDARDS WOULD BE WITHOUT ANY BRACING EFFECT WHATSOEVER AND THE ARCHITECT OF THE CAPITOL HAS DETERMINED THAT THE ADJUSTABLE SHELVES WITHOUT TIE ANGLE BRACING FAIL TO COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATIONS AND DO NOT ADEQUATELY MEET THE NEEDS OF THE GOVERNMENT.

IN THE ABSENCE OF COMPELLING REASONS TO THE CONTRARY, WE MUST ACCEPT THE JUDGMENT OF THE ADMINISTRATIVE OFFICIALS IN THIS RESPECT. THE DRAFTING OF SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT, AND THE FACTUAL DETERMINATION WHETHER PRODUCTS OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS, ARE BOTH MATTERS WITHIN THE PRIMARY RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554 AND 19 ID. 587. IN 36 COMP. GEN. 251, 252 WE SAID:

"* * * THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TOBE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.'

ARTICLE 1 (D) OF THE ADDENDUM, INSOFAR AS PERTINENT, PROVIDED:

"* * * IT IS EXPECTED THAT $75,000 WILL BE AVAILABLE FOR THIS CONTRACT, AND THAT MOST OF THE MONEY WILL BE USED FOR THE PURPOSE.'

YOU ALLEGE, IN EFFECT, THAT IN VIEW OF THIS LANGUAGE IT WAS DISCRIMINATORY TO AWARD A CONTRACT IN EXCESS OF $75,000.

THE STATEMENT QUOTED ABOVE DID NOT ESTABLISH A CEILING, BUT ONLY PROVIDED AN ESTIMATE OF THE AMOUNT OF MONEY THAT MIGHT BE AVAILABLE FOR THE SUBJECT PROCUREMENT. PARTICULARLY IS THIS BORNE OUT BY SPECIAL PROVISION 2-05 WHICH RESERVES TO THE GOVERNMENT THE RIGHT TO AWARD THE CONTRACT IN CONFORMITY WITH THE FUNDS AVAILABLE. AT THE TIME OF AWARD IT WAS ASCERTAINED ADMINISTRATIVELY THAT AN AMOUNT SLIGHTLY IN EXCESS OF $95,000 WOULD BE MADE AVAILABLE FOR THE BOOK STACK PURCHASE, BECAUSE OF MONEY AVAILABLE UNDER ANOTHER PROJECT THAT COULD NOT BE CARRIED FORWARD. THEREFORE, THE ADMINISTRATIVE OFFICE DECIDED TO SPEND THE AVAILABLE FUNDS, BECAUSE OF THE DIRE NEED FOR ADDITIONAL BOOK STACK FACILITIES.

FURTHERMORE, BIDDERS WERE PUT ON NOTICE THAT MORE THAN THE 200 DOUBLE- FACED BOOK STACK SECTIONS CALLED FOR IN SPECIAL PROVISION 2-04 MIGHT BE ORDERED BY THE GOVERNMENT. ALTHOUGH SPECIAL PROVISION 2-05 STATES THAT THE GOVERNMENT MAY AWARD A CONTRACT FOR QUANTITIES DIFFERENT FROM THOSE SCHEDULED IN SPECIAL PROVISION 2-04 AND THAT THE CONTRACT PRICE WILL BE DETERMINED BY APPLYING THE UNIT PRICES QUOTED IN THE BID TO THE NUMBER OF UNITS ADDED TO OR DEDUCTED FROM THE QUANTITIES IN THE SCHEDULE, ARTICLE 1 (D) OF THE ADDENDUM STATES THAT THE QUANTITIES SCHEDULED IN SPECIAL PROVISION 2-04 ARE THE "MINIMUM" EXPECTED TO BE INCLUDED IN THE CONTRACT. FINALLY, THE BID ITSELF STATES:

"IF THE CONTRACT IS AWARDED FOR QUANTITIES DIFFERENT FROM THOSE SCHEDULED IN ARTICLE 2-04 OF THE SPECIFICATIONS, THE FOLLOWING AMOUNTS SHALL BE ADDED TO OR DEDUCTED FROM THE LUMP-SUM PRICE QUOTED ABOVE FOR EACH UNIT ADDED TO OR OMITTED FROM THE SCHEDULED QUANTITIES AS THE CASE MAY BE: * *

IN VIEW OF THE CIRCUMSTANCES AND THE ENUMERATED PROVISIONS, WE CANNOT SAY THAT THE DECISION OF THE ADMINISTRATIVE OFFICE TO ORDER 630 UNITS WAS ARBITRARY OR UNREASONABLE OR DISCRIMINATORY, AND WE THINK THERE CAN BE NO QUESTION THAT THE AWARD WAS PROPERLY MADE, ON THE BASIS OF THE LOWEST PRICE FOR THE QUANTITY DECIDED UPON.

ON JUNE 18, 1957, PRIOR TO THE AWARD TO REMINGTON RAND, THE ARCHITECT OF THE CAPITOL WROTE TO YOU STATING THAT YOUR BID WAS "LOWER THAN THE OTHER BIDS RECEIVED" AND REQUESTING THAT YOU FURNISH CERTAIN INFORMATION NECESSARY FOR THE EVALUATION OF YOUR BID. YOU SUGGEST THAT THE LETTER WAS AN INDICATION THAT THE AWARD WOULD BE MADE TO YOU. HOWEVER, LETTERS REQUESTING INFORMATION, CALLED FOR BY THE SPECIFICATIONS BUT NOT SUPPLIED WITH BIDS, SIMILAR TO THAT SENT TO YOU, ALSO WERE SENT TO REMINGTON RAND AND ANOTHER BIDDER. IT WILL SUFFICE TO SAY THAT THE ABOVE QUOTED STATEMENT HAD REFERENCE ONLY TO YOUR LUMP-SUM BID AND THAT IT WAS MADE BEFORE THE OFFERED PRODUCTS WERE EVALUATED AND BEFORE IT WAS DETERMINED HOW LARGE A QUANTITY WOULD BE PURCHASED.

BIDDING CONDITION 2 ADMONISHES:

"* * * SPECIAL CARE SHALL BE EXERCISED IN THE PREPARATION OF BIDS. COPIES OF THE BIDS SHALL BE IDENTICAL. * * *"

WITH THE BID YOU SUBMITTED IN TRIPLICATE, THERE ARE FOUR ACCOMPANYING LETTERS: TWO ORIGINALS AND TWO CARBON COPIES. ONE ORIGINAL STATES A PRICE OF $910 FOR TIE ANGLE BRACING AND THE OTHER A PRICE OF $1,350. BOTH CARBON COPIES SHOW A PRICE OF $1,350 FOR THE TIE ANGLE BRACING. YOU CONTEND THAT $910 IS THE AMOUNT INTENDED FOR TIE ANGLE BRACING; HOWEVER, BECAUSE YOU ACCOMPANIED THE $1,350 LETTER WITH TWO CARBON COPIES IT WOULD TEND TO INDICATE THAT AMOUNT WAS YOUR INTENDED PRICE. IN ANY EVENT, BY SUBMITTING WITH YOUR BID TWO EXPLANATORY OR QUALIFYING LETTERS, BEARING THE SAME DATE, BUT STATING DIFFERENT PRICES FOR IDENTICAL ITEMS, YOU CREATED A PATENT AMBIGUITY AS TO THE TRUE AMOUNT OF YOUR BID, AND PUT YOURSELF IN A POSITION TO ELECT, AFTER BID OPENING, WHICH AMOUNT TO VERIFY. WE HAVE FREQUENTLY STATED THAT SUCH FACTS WOULD JUSTIFY THE REJECTION OF SUCH BIDS.

THE ARCHITECT OF THE CAPITOL HAS INDICATED THAT BEFORE ANY AWARD WAS MADE FOR THE SUBJECT PROCUREMENT YOUR BID WAS THOROUGHLY EVALUATED AND YOUR PROMPT PAYMENT DISCOUNT WAS TAKEN INTO CONSIDERATION. THE RECORD IN THE PRESENT CASE DOES NOT SHOW THAT THE AWARD TO REMINGTON RAND WAS MOTIVATED BY FAVORITISM OR PERSONAL PREFERENCE, OR BY ANY CONSIDERATIONS OTHER THAN THE INTERESTS OF THE GOVERNMENT AS DETERMINED BY THE BEST JUDGMENT OF THE COGNIZANT OFFICIALS. ACCORDINGLY, WE WOULD NOT BE JUSTIFIED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL OR IMPROPER.