B-134639, FEB. 25, 1958

B-134639, FEB. 25, 1958

TO MARINETTE MARINE CORPORATION:

A REPORT HAS BEEN RECEIVED FROM THE DEPARTMENT OF THE ARMY CONCERNING YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO HIGGINS, INC., NEW ORLEANS, LOUISIANA, PURSUANT TO INVITATION FOR BIDS NO. CIVENG-01-076-58- 19, ISSUED SEPTEMBER 18, 1957, BY THE U.S. ARMY DISTRICT ENGINEER OFFICE AT MOBILE, ALABAMA, FOR PROCUREMENT OF TWO SELF-PROPELLED SURVEYBOATS TO BE IN ACCORDANCE WITH DRAWING NO. 19-1-1, TITLE "56" SURVEYBOAT PROFILE AND ARRANGEMENT" AND THE SPECIFICATIONS ATTACHED TO THE INVITATION.

BIDS WERE RECEIVED FROM YOUR COMPANY, MOBILE SHIP REPAIR, INC., HIGGINS, INC., AND ARNOLD V. WALKER SHIPYARD, INC., QUOTING TOTAL PRICES IN THE RESPECTIVE AMOUNTS OF $146,250, $146,482, $149,690 AND $160,400. YOUR BID WAS REJECTED FOR THE REASON THAT YOU FAILED TO OFFER DELIVERY WITHIN 90 DAYS AND FAILED TO FURNISH THE DRAWINGS AND DATA REQUIRED BY PARAGRAPH GC- 7 OF THE INVITATION FOR BIDS. THE SECOND LOWEST BID WAS REJECTED FOR THE REASON THAT THE BIDDER PROPOSED TO FURNISH A DECK HOUSE WHICH DID NOT COMPLY WITH THE SPECIFICATIONS.

THE AWARD WAS MADE ON NOVEMBER 5, 1957, TO HIGGINS, INC., AS THE LOWEST RESPONSIVE BIDDER. TRIALS FOR THE COMPLETED SURVEYBOATS WERE SCHEDULED BETWEEN THE PERIOD JANUARY 27 TO FEBRUARY 3, WITH DELIVERY SCHEDULED FOR FEBRUARY 5, 1958. THE COMPANY HAD AGREED IN ITS BID TO MAKE DELIVERY WITHIN 90 DAYS AFTER RECEIPT OF NOTICE OF AWARD AND THE FINALLY SCHEDULED DELIVERY DATE APPEARS TO HAVE BEEN IN ACCORDANCE WITH SUCH OFFER.

WITH RESPECT TO MOST OF THE CONTENTIONS MADE IN YOUR LETTER OF PROTEST DATED DECEMBER 9, 1957, TO OUR OFFICE, THE REPORT OF THE DEPARTMENT OF THE ARMY IS, IN PERTINENT PART, AS FOLLOWS:

"9. OBJECTION TO THE SHORT TIME ALLOWED FOR PREPARATION OF BID: THE BIDS WERE ISSUED ON 18 SEPTEMBER 1957 AND THE OPENING DATE WAS SET AT 17 OCTOBER 1957. THE TIME AVAILABLE TO BIDDERS FOR PREPARATION OF BIDS WAS 29 DAYS, LESS TIME REQUIRED FOR TRANSMISSION. THE TIME ALLOWED IS NOT UNUSUALLY SHORT FOR BIDS OF THIS NATURE. AS EXPLAINED UNDER PARAGRAPH 10 BELOW, BIDS WERE EXPECTED PRIMARILY FROM FIRMS WHO HAD BUILT EQUIPMENT SUBSTANTIALLY SIMILAR TO THAT DESIRED AND NO DIFFICULTY WAS ANTICIPATED FOR SUCH BIDDERS TO PREPARE RESPONSIVE BIDS. IN THIS CONNECTION IT WILL BE NOTED THAT NO PROTEST FROM PROSPECTIVE BIDDERS AS TO THE TIME ALLOWED FOR THE PREPARATION OF BIDS WAS RECEIVED AT ANY TIME PRIOR TO THE AWARD OF THE CONTRACT. IN ANY EVENT, THE TIME SET FOR PREPARATION OF BIDS IS CONSIDERED TO HAVE BEEN THE MAXIMUM TIME WHICH COULD HAVE BEEN ALLOWED CONSISTENT WITH THE INTERESTS OF THE GOVERNMENT. THE EQUIPMENT IS URGENTLY NEEDED TO REPLACE SURVEYBOATS WHICH ARE IN NEED OF MAJOR REPAIRS. EARLY REPLACEMENT OF THESE BOATS IS ESSENTIAL TO AVOID THE NECESSITY OF THE MAKING OF EXTENSIVE AND UNECONOMICAL REPAIRS TO PRESENT EQUIPMENT.

"10. REQUIREMENTS OF PARAGRAPH GC-7 OF THE INVITATION FOR BIDS FOR SUBMISSION OF DETAILED DRAWINGS AND DATA: BECAUSE OF THE EXACTING REQUIREMENTS OF THE GOVERNMENT AND BECAUSE OF THE WIDE VARIETY OF BOATS MADE BY VARIOUS COMPANIES IT IS CONSIDERED ESSENTIAL THAT DETAILED INFORMATION BE OBTAINED WITH EACH BID TO PERMIT THE GOVERNMENT TO DETERMINE THAT THE BIDDER'S OFFER IS RESPONSIVE. IT IS NOT CONSIDERED THAT THE REQUIREMENT FOR SUCH DRAWINGS AND DATA HAS THE EFFECT OF UNDULY ELIMINATING COMPETITION. SIMILAR EQUIPMENT WAS ADVERTISED BY THE PORTLAND DISTRICT BY INVITATIONS CIVENG-35-026-56-86 AND CIVENG-35-026-56-114. INVITATION NO. CIVENG-35-126-56-86 PROVIDED FOR AN ADVERTISING PERIOD OF 39 DAYS AND INVITATION NO. CIVENG-35-026 56-114 ALLOWED 25 DAYS FOR PREPARATION OF BIDS. IN EACH CASE THREE COMPLETELY RESPONSIVE BIDS WITH RESPECT TO THE TECHNICAL REQUIREMENTS WERE RECEIVED. ALTHOUGH THE REQUIREMENT FOR DRAWINGS AND DATA IN THE ABOVE REFERENCED INVITATIONS IS NOT IDENTICAL TO THE WORDING USED IN SUBJECT INVITATION (CIVENG-01-076-58- 19), THE REQUIREMENT WITH RESPECT TO THE DRAWINGS AND DATA REQUIRED WAS SUBSTANTIALLY THE SAME AND THE BURDEN PLACED ON BIDDERS FOR THE PREPARATION OF SUCH DRAWINGS AND SPECIFICATIONS WAS SUBSTANTIALLY SIMILAR.

"11. SIMILARITY OF CORPS OF ENGINEERS DRAWINGS AND SPECIFICATIONS PREPARED BY HIGGINS, INC. WHEREVER POSSIBLE THE CORPS OF ENGINEERS UTILIZES STANDARD EQUIPMENT WHICH HAS ALREADY BEEN DEVELOPED, DESIGNED AND TESTED. THE DESIRABILITY OF SUCH A PROCEDURE FROM A VIEWPOINT OF THE ELEMENTS OF DESIGN AND DEVELOPMENT COST, EFFICIENT OPERATION, AVAILABILITY OF SPARE PARTS, ECONOMY, AND PROMPT DELIVERY IS OBVIOUS. HIGGINS, INC. HAD MANUFACTURED BOATS OF A TYPE SIMILAR TO THAT CALLED FOR IN THE SPECIFICATIONS FOR A VENEZUELAN OIL FIRM. THE PERFORMANCE CHARACTERISTICS OF THESE BOATS IN ACTUAL USE WERE KNOWN TO THE MOBILE DISTRICT AND MET THE OPERATIONAL REQUIREMENTS OF THAT DISTRICT. FURTHERMORE, BOATS PURCHASED UNDER SUBSTANTIALLY THE SAME SPECIFICATIONS BY OTHER U.S. ARMY ENGINEER DISTRICTS HAD RESULTED IN REASONABLE PRICES AND SUITABLE EQUIPMENT. ACCORDINGLY THE PLANS AND SPECIFICATIONS ISSUED BY THE GOVERNMENT WERE BASED PRIMARILY ON THE PLANS AND SPECIFICATIONS DEVELOPED BY HIGGINS, INC. IT IS APPARENT FROM THE FACT THAT RESPONSIVE BIDS FROM FIRMS OTHER THAN HIGGINS, INC. HAVE BEEN RECEIVED, THAT THESE SPECIFICATIONS ARE NOT RESTRICTIVE. IN THIS CONNECTION, IT WILL BE NOTED THAT MARINETTE MARINE CORPORATION STATED THAT "ANY RESPONSIBLE BOAT BUILDER WOULD HAVE NO DIFFICULTY IN PREPARING A REALISTIC BID FOR THE VESSELS.'

"12. SUBMISSION OF SHOP DRAWINGS TO THE CORPS OF ENGINEERS FOR APPROVAL PRIOR TO START OF CONSTRUCTION: IT IS NOT CLEAR WHETHER MARINETTE MARINE CORPORATION INTENDED TO PARTIALLY BASE ITS PROTEST UPON THE PROVISION IN PARAGRAPH GC-8 WHICH REQUIRES THE SUBMISSION OF SHOP DRAWINGS. IT IS NOT CONSIDERED THAT THE REQUIREMENT OF SUBMISSION OF SHOP DRAWINGS IS UNREASONABLE. THE DRAWINGS SERVE PRIMARILY TO ASSIST THE GOVERNMENT IN THE INSPECTION TASK AND ASSIST THE CONTRACTOR TO AVOID FALSE STARTS DUE TO A MISUNDERSTANDING OF THE SPECIFICATIONS AND DRAWINGS OR DUE TO ERROR. THIS REQUIREMENT, IN ACTUAL PRACTICE, HAS NOT PROVEN TO BE UNREASONABLE.

"13. DEVIATIONS FROM THE SPECIFICATIONS BY HIGGINS, INC.: PRIOR TO AWARD THE CONTRACTING OFFICER DETERMINED THAT HIGGINS' BID WAS RESPONSIVE. UPON REVIEW OF THE FILE THE UNDERSIGNED CONCURS IN THE CONTRACTING OFFICER'S CONCLUSION. IT WILL BE NOTED THE "DEVIATIONS" LISTED BY MARINETTE WERE MINOR VARIATIONS IN THE SIZE OF CERTAIN STRENGTH MEMBERS. IN FIVE OF THE INSTANCES HIGGINS OFFERED STRENGTH MEMBERS WHICH WERE SLIGHTLY HEAVIER THAN THOSE REQUIRED BY THE SPECIFICATIONS AND IN TWO INSTANCES HIGGINS OFFERED STRENGTH MEMBERS WHICH WERE SLIGHTLY LESS THAN THOSE REQUIRED. THESE DIFFERENCES BETWEEN THE DRAWINGS AND SPECIFICATIONS ARE THE TYPE THAT CAN EASILY BE ADJUSTED AT THE TIME OF THE APPROVAL OF THE SHOP DRAWINGS AND ARE NOT CONSIDERED TO BE SUCH AS TO JUSTIFY A DETERMINATION THAT HIGGINS' BID WAS NOT RESPONSIVE.

"14. INTERPRETATION BY MARINETTE THAT A PHYSICAL MODEL WAS INTENDED BY THE PHRASE "OTHER DATA AS FOLLOWS (1) MODEL OF BOAT: " THE WORDS "MODEL OF BOAT" ARE LISTED UNDER THE HEADING "OTHER DATA AS FOLLOWS.' OBVIOUSLY THE GOVERNMENT REQUIRED DATA, NOT MODELS, AND THE INTERPRETATION PLACED ON THE WORDS BY THE CONTRACTING OFFICER, I.E. THAT THE MODEL NUMBER OR NAME WAS CALLED FOR APPEARS TO BE CORRECT.'

IN REGARD TO TIME OF DELIVERY, PARAGRAPH 1 OF THE GENERAL CONDITIONS, MADE A PART OF THE INVITATION, PROVIDES AS FOLLOWS:

"DELIVERY OF THE SURVEYBOATS LISTED HEREIN IS REQUIRED WITHIN 60-90 DAYS. THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY BID SPECIFYING DELIVERY IN EXCESS OF THIS TIME, HOWEVER, IN THE EVENT BIDDERS ARE UNABLE TO COMPLY WITH THIS DELIVERY SCHEDULE, THEY ARE URGED TO SUBMIT BIDS BASED ON THE BEST DELIVERY THEY ARE IN A POSITION TO OFFER.'

THE DEPARTMENT OF THE ARMY HAS ADVISED THAT THE INVITATION SHOULD HAVE BEEN MORE DEFINITE WITH RESPECT TO THE DELIVERY OF THE ITEMS BEING PROCURED AND THAT APPROPRIATE ACTION HAS BEEN TAKEN TO PREVENT DEFICIENCIES OF THIS NATURE FROM ARISING IN THE FUTURE. NEVERTHELESS, YOUR STATEMENT THAT IT WOULD NOT BE POSSIBLE FOR YOU TO DELIVER THE BOATS UNTIL APRIL OF 1958, AND THE FACT THAT YOU MADE NO COMMITMENT WHATEVER AS TO THE TIME OF DELIVERY, WOULD SEEM TO HAVE JUSTIFIED THE REJECTION OF YOUR BID.

IN THE CIRCUMSTANCES, AND CONSIDERING THAT THE CONTRACTING AGENCIES OF THE GOVERNMENT HAVE THE PRIMARY RESPONSIBILITY FOR DETERMINING WHETHER BIDDERS SHOULD BE REQUIRED TO SUBMIT DRAWINGS AND DATA, YOU ARE ADVISED THAT THERE IS PERCEIVED NO LEGAL BASIS UPON WHICH WE MAY CONCLUDE THAT THE CONTRACT IN QUESTION WAS NOT PROPERLY AWARDED TO HIGGINS, INC. ..END :