B-134597, JANUARY 16, 1958, 37 COMP. GEN. 479

B-134597: Jan 16, 1958

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CONTRACTS - SPECIFICATIONS' EVALUATION ON BASIS OTHER THAN IN INVITATION AN INVITATION WHICH REQUIRES BIDDERS TO ACCOMPANY THEIR BIDS WITH SUFFICIENTLY DETAILED PLANS AND DESCRIPTIVE DATA TO ENABLE THE CONTRACTING AGENCY TO ASCERTAIN THE INTERPRETATION THE BIDDER WAS PLACING ON THE GENERAL REQUIREMENTS IS IN EFFECT PERMITTING EACH BIDDER TO DRAFT HIS OWN SPECIFICATIONS AND TO SUBMIT A BID PRICE BASED ON THE PLANS AND DESCRIPTIVE DATA RATHER THAN ON STRICT COMPLIANCE WITH THE SPECIFICATIONS AND IS. 1958: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 4. IT IS UNDERSTOOD. THAT SPECIFIC STANDARDS FOR THIS TYPE OF LIFEBOAT HAVE NOT BEEN ESTABLISHED BY THE COAST GUARD AND YOU ADVISE THAT THE INITIAL PROCUREMENT OF SUCH ARTICLES BY YOUR ADMINISTRATION WAS VIEWED AS A RESEARCH AND DEVELOPMENT PROJECT.

B-134597, JANUARY 16, 1958, 37 COMP. GEN. 479

CONTRACTS - SPECIFICATIONS' EVALUATION ON BASIS OTHER THAN IN INVITATION AN INVITATION WHICH REQUIRES BIDDERS TO ACCOMPANY THEIR BIDS WITH SUFFICIENTLY DETAILED PLANS AND DESCRIPTIVE DATA TO ENABLE THE CONTRACTING AGENCY TO ASCERTAIN THE INTERPRETATION THE BIDDER WAS PLACING ON THE GENERAL REQUIREMENTS IS IN EFFECT PERMITTING EACH BIDDER TO DRAFT HIS OWN SPECIFICATIONS AND TO SUBMIT A BID PRICE BASED ON THE PLANS AND DESCRIPTIVE DATA RATHER THAN ON STRICT COMPLIANCE WITH THE SPECIFICATIONS AND IS, THEREFORE, CONTRARY TO THE COMPETITIVE BIDDING SYSTEM, WHICH REQUIRES DEFINITENESS IN THE DRAFTING OF SPECIFICATIONS AND NOTICE TO THE BIDDERS, IN ADVANCE OF BID OPENING, OF THE FACTORS TO BE CONSIDERED IN EVALUATION OF THE REQUIREMENTS.

TO J. G. CONKEY, MARITIME ADMINISTRATION, JANUARY 16, 1958:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 4, 1957, REQUESTING A DECISION AS TO THE PROPER ACTION TO BE TAKEN UNDER INVITATION FOR BIDS NO. B1-MA58-15.

YOUR LETTER INDICATES THE INVITATION CONTEMPLATED THAT THE CONTRACTOR WOULD FURNISH AND OUTFIT PLASTIC LIFEBOATS OF A TYPE ACCEPTABLE TO THE U.S. COAST GUARD FOR USE IN OCEAN AND COASTWISE SERVICE. IT IS UNDERSTOOD, HOWEVER, THAT SPECIFIC STANDARDS FOR THIS TYPE OF LIFEBOAT HAVE NOT BEEN ESTABLISHED BY THE COAST GUARD AND YOU ADVISE THAT THE INITIAL PROCUREMENT OF SUCH ARTICLES BY YOUR ADMINISTRATION WAS VIEWED AS A RESEARCH AND DEVELOPMENT PROJECT, THE INTRICACY AND NOVELTY OF WHICH MADE IT IMPOSSIBLE TO PREPARE SPECIFICATIONS STATING WITH CERTAINTY THE EXACT PRODUCT REQUIRED. AS ISSUED, INVITATION NO. B1-MA58-15 REQUESTED BIDS ON "LAMINATED REINFORCED PLASTIC CONSTRUCTION LIFEBOATS IN ACCORDANCE WITH ATTACHED SPECIFICATIONS ENTITLED " GENERAL SPECIFICATIONS FOR 24 FOOT OAR AND MOTOR PROPELLED LIFEBOATS ( PLASTIC)" DATED AUGUST 5, 1957, AND OUTLINE DRAWINGS AS PREPARED BY THE OFFICE OF SHIP CONSTRUCTION AND REPAIR

ARTICLE A-2 OF THE GENERAL SPECIFICATIONS IS ENTITLED " INTENT OF SPECIFICATIONS" AND PROVIDES IN SUBPARAGRAPH 2 AS FOLLOWS:

2. THE INTENT OF THE PLANS AND SPECIFICATIONS IS TO DEFINE THE GENERAL SCOPE AND SHOW THE GENERAL FEATURES AND ARRANGEMENT AND NOT NECESSARILY THE DETAILS. THE ABSENCE OF SUCH DETAILS FROM THE PLANS AND SPECIFICATIONS OR INADVERTENT ERRORS IN THE PLANS AND SPECIFICATIONS WILL NOT EXCUSE THE CONTRACTOR FOR OMITTING OR FAILING TO CORRECT ANY ESSENTIAL DETAILS REQUIRED TO COMPLETE THE BOATS IN ACCORDANCE WITH THE GENERAL SCOPE AS REPRESENTED BY THE PLANS AND SPECIFICATIONS. THE MAXIMUM HOISTING WEIGHT WHEN FULLY EQUIPPED (BUT WITHOUT PERSONS) SHALL NOT EXCEED 4,500 POUNDS. THIS 4,500 POUNDS INCLUDES APPROXIMATELY 800 TO 1,000 POUNDS OF EQUIPMENT AS DEFINED UNDER PARAGRAPH B-2.

SUBPARAGRAPH 1 OF ARTICLE A-3 OF THE GENERAL SPECIFICATIONS PROVIDES AS FOLLOWS:

GENERAL REQUIREMENTS

1. THESE PLASTIC LIFEBOATS SHALL COMPLY WITH THE GENERAL REQUIREMENTS FOR THE CONSTRUCTION AND ARRANGEMENT OF METAL LIFEBOATS AS SET FORTH IN COAST GUARD SPECIFICATION SUBPART 160.035, EXCEPT THAT UNLESS OTHERWISE SPECIFIED, MATERIALS, SCANTLINGS, METHODS OF CONSTRUCTION, FASTENINGS, METHODS OF ATTACHMENT OF COMPONENT PARTS, AND OTHER SPECIFIC CONSTRUCTION DETAILS MAY BE VARIED BY THE BUILDER IN ORDER TO PRODUCE A STRUCTURALLY SOUND BOAT MEETING IN EVERY RESPECT RECOGNIZED STANDARDS OF THE FIRST CLASS CONSTRUCTION AND ONE WHICH WILL SATISFACTORILY MEET THE PERFORMANCE REQUIREMENTS SET FORTH HEREIN.

AND SUBPARAGRAPH 2 OF ARTICLE A-4 PROVIDES:

PRELIMINARY PLANS

2. COMPLETE AND DETAILED PLANS WILL NOT BE REQUIRED TO BE SUBMITTED TO THE U.S. COAST GUARD FOR APPROVAL PRIOR TO BEGINNING CONSTRUCTION. HOWEVER, TWO (2) PRINTS EACH OF PLANS MUST BE SUBMITTED TO THE U.S. COAST GUARD AND THE U.S. MARITIME ADMINISTRATION SHOWING PROPOSED GENERAL ARRANGEMENT, LINES, METHOD FOR ATTACHING RELEASING GEAR, AND A PROPOSED BILL OF MATERIAL SHOWING ALL MATERIALS TO BE USED, TOGETHER WITH A PROPOSED LAY-UP PROCEDURE SHOWING SEQUENCES OF CONSTRUCTION AND ASSEMBLY BEFORE CONSTRUCTION COMMENCES IN ORDER THAT THE U.S. COAST GUARD AND THE MARITIME ADMINISTRATION WILL BE COGNIZANT OF THE GENERAL CONSTRUCTION METHODS AND PROCEDURES TO BE USED. U.S. COAST GUARD ACCEPTANCE OF THE PLANS AS TO GENERAL ARRANGEMENT AND INFORMATION SHOWN ONLY WILL BE REQUIRED. U.S. COAST GUARD APPROVAL AS TO DESIGN, STRENGTH, ETC., AS NORMALLY REQUIRED FOR METAL BOATS WILL NOT BE NECESSARY FOR THE PRELIMINARY PLANS. HOWEVER THE U.S. COAST GUARD SHALL HAVE THE RIGHT TO REJECT ANY PROPOSED METHODS OF CONSTRUCTION OR MATERIALS NOT CONSIDERED SUITABLE FOR THE PURPOSE OR NOT CONSIDERED TO BE IN ACCORDANCE WITH ACCEPTED PROCEDURES OR RECOGNIZED STANDARDS OF GOOD WORKMANSHIP.

AMENDMENT NO. 1 TO THE INVITATION WAS ISSUED ON SEPTEMBER 17, 1957, AND PARAGRAPH C THEREOF PROVIDED AS FOLLOWS:

C. DELETE ARTICLE 4, ENTITLED " MOLDS" OF THE " TERMS AND CONDITIONS," PAGE 5 OF THE INVITATION AND SUBSTITUTE IN LIEU THEREOF, ARTICLE 4. PLANS," AS FOLLOWS:

PLANS: COMPLETE AND DETAILED PLANS WILL NOT BE REQUIRED TO BE SUBMITTED TO THE MARITIME ADMINISTRATION FOR APPROVAL PRIOR TO AWARD OF CONTRACT, HOWEVER, EACH BID MUST BE ACCOMPANIED WITH ONE PRINT EACH OF PLANS SHOWING PROPOSED GENERAL ARRANGEMENT, METHOD FOR ATTACHING RELEASING GEAR AND A PROPOSED BILL OF MATERIAL SHOWING ALL MATERIALS TO BE USED TOGETHER WITH A PROPOSED LAY-1UP PROCEDURE SHOWING SEQUENCES OF CONSTRUCTION AND ASSEMBLY IN ORDER THAT THE MARITIME ADMINISTRATION WILL BE COGNIZANT OF THE GENERAL CONSTRUCTION METHODS AND PROCEDURES TO BE USED.

THE EFFECT OF THIS PORTION OF THE AMENDMENT WAS TO REQUIRE BIDDERS TO COMPLY WITH THE ABOVE-QUOTED PROVISIONS OF ARTICLE A-4 (2) OF THE GENERAL SPECIFICATIONS PRIOR TO BID OPENING, AND YOUR LETTER ADVISES THAT, SINCE YOU ARE ATTEMPTING TO CONTRACT ON A FIXED-PRICE BASIS FOR LIFEBOATS OF A NEW TYPE AND DESIGN, THE FURNISHING OF PLANS AND OTHER DATA AS REQUIRED BY AMENDMENT NO. 1 IS CONSIDERED TO BE AN ESSENTIAL PART OF THE BID AND TO BE NECESSARY FOR DETERMINING THE TYPE AND QUALITY OF THE PRODUCT TO BE FURNISHED BY THE CONTRACTOR.

TWENTY-ONE BIDS, RANGING FROM $14,502 TO $80,000 PER SHIPSET, WERE RECEIVED IN RESPONSE TO THE INVITATION AND IT HAS BEEN DETERMINED THAT EIGHT OF THESE BIDS, INCLUDING THE SECOND AND THIRD LOW BIDS, WERE NOT ACCOMPANIED BY ADEQUATE PLANS AND DESCRIPTIVE DATA. HOWEVER, ALL BIDS RECEIVED WERE ANALYZED BY OUR OFFICE OF SHIP CONSTRUCTION AND, BASED UPON SUCH PLANS AND DESCRIPTIVE DATA AS WERE SUBMITTED, THAT ORGANIZATION HAS REACHED THE FOLLOWING TECHNICAL CONCLUSIONS WHICH WERE NOT SPECIFICALLY INCLUDED IN, OR EXCLUDED FROM, THE SPECIFICATIONS:

(A) VAPOR WILL MIGRATE THROUGH PLASTIC, SO THAT WHOLLY ENCLOSED METALS OR WOOD WILL BE SUBJECT TO CORROSION, OR IN THE CASE OF WOOD, SUBJECT TO SWELLING.

(B) DUE TO THE WIDELY DIFFERENT MODULUS OF ELASTICITY OF PLASTIC AND METALS AND DIFFERENT THERMAL COEFFICIENTS OF EXPANSION OF THESE MATERIALS IT IS VERY DIFFICULT TO BOND THE TWO TOGETHER SO THAT THE UNION IS PERMANENT UNDER STRESS.

(C) JOINTS BETWEEN PLASTIC AND METALS UNDER STRESS SHOULD BE MADE POSITIVE BY METAL FASTENINGS WHICH SHOULD BE OF BRONZE OR STAINLESS STEEL.

(D) JOINTS BETWEEN PLASTIC AND PLASTIC MADE BY EPOXY RESIN BONDING ARE SATISFACTORY, PROVIDING THE AREA OF BONDING IS ADEQUATE AND THAT THE DIRECTION OF STRESSES WILL NOT TEND TO DELAMINATE THE PLASTIC.

(E) RECENT BUREAU OF SHIPS DESIGNS OF SMALL PLASTIC BOATS HAVE DISCARDED TRANSVERSE FRAMES BOTTOM STRUCTURE IN FAVOR OF LONGITUDINAL FRAMING.

(F) THE USE OF WOOD OR METAL FOR EASILY REMOVABLE ITEMS IN THE INTERIOR OF THE BOATS, EXCEPT BUOYANCY TANKS, IS ACCEPTABLE AS A MEANS OF REDUCING FIRST COST.

(G) IT IS NOT ADVISABLE TO BOND GREEN POLYESTER PLASTIC LAMINATES TO CURED EPOXY RESIN PLASTICS.

BASED UPON SUCH CONCLUSIONS YOU EXPRESS THE OPINION THAT THE LOW AND SECOND LOW BIDS SHOULD BE REJECTED BECAUSE THE PLANS AND DATA SUBMITTED WERE INADEQUATE TO PERMIT FULL EVALUATION AND BECAUSE SUCH PLANS AS WERE SUBMITTED PROPOSED THE USE OF METHODS AND MATERIALS CLASSIFIED AS UNACCEPTABLE BY THE OFFICE OF SHIP CONSTRUCTION. ADDITIONALLY, YOU PROPOSE TO REJECT THE THIRD LOW BID FOR FAILURE TO SUBMIT THE REQUIRED PLANS UNTIL AFTER BID OPENING, AND YOU REQUEST OUR CONCURRENCE IN AN AWARD TO THE FOURTH LOW BIDDER.

THE RULE IS SETTLED THAT THE COMPETITIVE BIDDING STATUTES REQUIRE A BASIS FOR EXACT COMPARISON OF BIDS, HANNON V. BOARD OF EDUCATION, 107 P. 646, 30 LRA ( NS) 214, AND IF BIDS SUBMITTED UNDER AN INVITATION ARE INCAPABLE OF A FAIR COMPARISON, THE BIDDING IS NONCOMPETITIVE. UNITED STATES V. ELLICOTT, 223 U.S. 524. TO EFFECTUATE SUCH REQUIREMENT IT HAS BEEN HELD THAT SPECIFICATIONS MUST DEFINE THE PRODUCT TO BE CONTRACTED FOR IN TERMS SUFFICIENTLY DEFINITE TO ASSURE THAT EVERY BID MADE IN COMPLIANCE THEREWITH WILL BE FOR SUBSTANTIALLY THE SAME PRODUCT. 38. OP. ATTY. GEN. 555; 10 COMP. GEN. 480. AND WHERE AN INVITATION, IN EFFECT, PERMITTED BIDDERS TO DRAFT THEIR OWN PLANS AND SPECIFICATIONS FROM WHICH ADMINISTRATIVE OFFICERS COULD SELECT THE ARTICLE CONSIDERED MOST PREFERABLE, WE HAVE HELD THAT SUCH PROCEDURE DOES NOT COMPLY WITH THE REQUIREMENTS OF COMPETITIVE BIDDING. 11 COMP. GEN. 220; 17 ID. 789.

A CAREFUL READING OF PARAGRAPH C OF AMENDMENT NO. 1 LEAVES NO DOUBT THAT IT REQUIRED BIDDERS TO ACCOMPANY THEIR BIDS WITH SUFFICIENTLY DETAILED PLANS AND DESCRIPTIVE DATA TO ENABLE YOUR AGENCY TO ASCERTAIN THE INTERPRETATION THE BIDDER WAS PLACING UPON THE GENERAL REQUIREMENTS. HOWEVER, THE EFFECT OF SUCH REQUIREMENT WAS TO PERMIT EACH BIDDER TO SUBMIT A BID PRICE BASED UPON THE PLANS AND DESCRIPTIVE DATA ACCOMPANYING HIS BID, RATHER THAN UPON STRICT COMPLIANCE WITH THE SPECIFICATIONS OR WITH SUCH INTERPRETATIONS AS YOUR AGENCY MIGHT PLACE UPON ANY GENERAL REQUIREMENTS CONTAINED THEREIN. SUCH CONCLUSION IS SUPPORTED BY OUR REVIEW OF THE BID ANALYSIS AND SUMMARY SHEET SUBMITTED WITH YOUR LETTER, WHICH INDICATES THAT NONE OF THE PLANS AND DESCRIPTIVE DATA SUBMITTED WERE IN STRICT ACCORDANCE WITH YOUR AGENCY'S INTERPRETATION OF THE SPECIFICATION REQUIREMENTS, AND THAT A CONSIDERABLE NUMBER OF THE PLANS SUBMITTED CONTAINED ONE OR MORE OF THE OBJECTIONABLE FEATURES CONTEMPLATED BY THE LOW AND SECOND LOW BIDDERS. IT IS THEREFORE OBVIOUS THAT THE INVITATION, AS AMENDED, RESULTED IN THE RECEIPT OF BIDS BASED UPON INDIVIDUAL SPECIFICATIONS OF EACH BIDDER AS REFLECTED BY THE PLANS AND DESCRIPTIVE DATA ACCOMPANYING HIS BID, AND IT FOLLOWS THAT AN EVALUATION OF SUCH PLANS TO DETERMINE WHICH OF THE BIDS, AS QUALIFIED BY THE PLANS AND DESCRIPTIVE DATA SUBMITTED, WOULD APPEAR TO BE MOST LIKELY TO MEET THE GENERAL REQUIREMENTS OF THE SPECIFICATIONS AND TO BE APPROVED BY THE COAST GUARD WHEN SUBMITTED TO THAT AGENCY UNDER THE REQUIREMENTS OF ARTICLE A-4 (A) OF THE GENERAL SPECIFICATIONS, MAY NOT BE CONSTRUED TO FULFILL THE REQUIREMENTS OF COMPETITIVE BIDDING AS SET OUT IN THE CASES AND DECISIONS CITED ABOVE. SEE 36 COMP. GEN. 380, 385.

ACCORDINGLY, IT IS OUR OPINION THAT ALL BIDS SHOULD BE REJECTED AND, IF POSSIBLE, ANY FUTURE PROCUREMENT SHOULD BE ACCOMPLISHED UNDER DEFINITE SPECIFICATIONS SETTING OUT THE MINIMUM REQUIREMENTS OF BOTH YOUR AGENCY AND THE COAST GUARD WITH RESPECT TO THE ARTICLES IN QUESTION.