B-137423, NOV. 1, 1963

B-137423: Nov 1, 1963

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BUILDING PROJECT APPLIANCES: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10. WAS IMPROPERLY REJECTED. FRAMING (TREATED WOOD WAS SPECIFIED). ETC.IT WAS STATED THAT THE CONDENSING UNIT AND CONTROL WOULD BE FURNISHED BY THE COAST GUARD. IT WAS STATED IN THE BID THAT YOU PROPOSED TO FURNISH "HOWARD WALK-IN REEFER. AS SPECIFIED" AND THERE WAS ENCLOSED WITH THE BID A BROCHURE ENTITLED "HOWARD WALKINS.'. THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NOT RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION SINCE THE BROCHURE SHOWED THAT THE STANDARD UNITS MANUFACTURED BY THE HOWARD COMPANY WERE CONSTRUCTED OF ALL STEEL OR ALL ALUMINUM AND. WERE NOT SIMILAR AND EQUAL TO MODEL ZR1 AS MANUFACTURED BY THE VICTOR PRODUCTS CORPORATION AS REQUIRED BY THE SPECIFICATION.

B-137423, NOV. 1, 1963

TO MR. CARL H. CARSON, BUILDING PROJECT APPLIANCES:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1963 REQUESTING OUR CONSIDERATION OF YOUR ALLEGATION THAT A BID SUBMITTED BY YOU UNDER INVITATION FOR BIDS NO. 146-58 ISSUED BY THE FOURTEENTH COAST GUARD DISTRICT, WAS IMPROPERLY REJECTED.

THE RECORD SHOWS THAT BY INVITATION FOR BIDS NO. 146 58, ISSUED ON MAY 14, 1958, THE FOURTEENTH COAST GUARD DISTRICT, HONOLULU, HAWAII, REQUESTED BIDS FOR FURNISHING FROM ONE TO ELEVEN REEFERS, 150 CUBIC FEET WALK-IN, IN ACCORDANCE WITH THE ATTACHED SPECIFICATION ENTITLED "SPECIFICATIONS FOR 150 CU.FT. WALK-IN REEFER" AND U.S.C.G. DRAWING ECV NO. 716. THE SPECIFICATION SET FORTH REQUIREMENTS FOR INSULATION, FRAMING (TREATED WOOD WAS SPECIFIED), FLOORS, HARDWARE, DOORS, SHELVING, EVAPORATORS, ETC.IT WAS STATED THAT THE CONDENSING UNIT AND CONTROL WOULD BE FURNISHED BY THE COAST GUARD. THE SPECIFICATION FURTHER PROVIDED IN PART AS FOLLOWS:

"THE BOX SHALL BE A STANDARD UNIT AS MANUFACTURED BY A REPUTABLE COMPANY, SIMILAR AND EQUAL TO THE MODEL ZR1 AS MANUFACTURED BY VICTOR PRODUCTS CORP. HAGERSTOWN, MD.'

IN RESPONSE TO THE INVITATION YOU SUBMITTED THE BID OFFERING TO FURNISH REEFERS FOR THE PRICES STATED THEREIN. IT WAS STATED IN THE BID THAT YOU PROPOSED TO FURNISH "HOWARD WALK-IN REEFER, AS SPECIFIED" AND THERE WAS ENCLOSED WITH THE BID A BROCHURE ENTITLED "HOWARD WALKINS.'

THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NOT RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION SINCE THE BROCHURE SHOWED THAT THE STANDARD UNITS MANUFACTURED BY THE HOWARD COMPANY WERE CONSTRUCTED OF ALL STEEL OR ALL ALUMINUM AND, THEREFORE, WERE NOT SIMILAR AND EQUAL TO MODEL ZR1 AS MANUFACTURED BY THE VICTOR PRODUCTS CORPORATION AS REQUIRED BY THE SPECIFICATION.

YOU PROTEST THE DETERMINATION MADE BY THE CONTRACTING OFFICER ON THE BASIS THAT YOU BID "AS SPECIFIED, NO EXCEPTIONS," AND THAT THE BROCHURE WAS SUBMITTED WITH YOUR BID ONLY FOR THE PURPOSE OF SHOWING THE VARIOUS TYPES OF HOWARD REEFERS AND TO ILLUSTRATE HOW THE DOORS COULD BE LOCATED IN VARIOUS POSITIONS AND HOW THE UNIT COULD BE ENLARGED BY ADDING ADDITIONAL PANELS.

THE INVITATION PROVIDED THAT THE BOX SHALL BE A STANDARD UNIT AS MANUFACTURED BY A REPUTABLE COMPANY, SIMILAR AND EQUAL TO VICTOR MODEL ZR1. THEREFORE, IF A BIDDER WAS NOT PROPOSING TO FURNISH VICTOR MODEL ZR1, IT WOULD BE APPROPRIATE FOR THE BIDDER TO SUBMIT WITH HIS BID DATA OR LITERATURE SHOWING THAT THE PRODUCT HE PROPOSED TO FURNISH WAS SIMILAR AND EQUAL TO THE SPECIFIED MODEL AND IN ACCORDANCE WITH THE SPECIFICATIONS. THUS, THE BROCHURE MUST BE CONSIDERED AS PART OF YOUR BID AND FOR THE PURPOSE OF DESCRIBING THE STANDARD UNIT OF THE MANUFACTURER WHOSE PRODUCT WAS OFFERED. THE RECORD SHOWS THAT THE CONTRACTING OFFICER ATTEMPTED TO CONTACT YOU BY TELEPHONE AFTER THE OPENING OF THE BIDS BUT WAS UNABLE TO DO SO BECAUSE YOU WERE NOT LISTED IN THE HONOLULU TELEPHONE DIRECTORY OR WITH THE TELEPHONE COMPANY'S INFORMATION SERVICE. YOUR BID SHOWED ONLY YOUR POST OFFICE BOX NUMBER.

IN VIEW OF THE FACTS SET FORTH ABOVE, IT MUST BE CONSIDERED THAT THE STATEMENT MADE IN YOUR BID THAT YOU PROPOSED TO FURNISH "HOWARD WALK IN REEFER, AS SPECIFIED" WAS INTENDED AS OFFERING A STANDARD HOWARD UNIT HAVING THE GENERAL CHARACTERISTICS DESCRIBED IN THE ATTACHED BROCHURE AS COMPLYING WITH THE SPECIFICATION. SINCE IT APPEARS THAT YOU PROPOSED TO FURNISH STANDARD HOWARD UNITS WHICH THE BROCHURE SHOWED WERE CONSTRUCTED OF ALL STEEL OR ALL ALUMINUM RATHER THAN HAVING A FRAME OF TREATED WOOD, THE CONTRACTING OFFICER PROPERLY REJECTED YOUR BID AS NOT COMPLYING WITH THE REQUIREMENTS OF THE SPECIFICATION. EVEN IF YOUR BID COULD BE CONSTRUED AS OFFERING UNITS WITH WOODEN FRAMING, THERE WAS NO SHOWING THAT SUCH UNITS WOULD BE "STANDARD UNITS" OF THE HOWARD COMPANY, AS REQUIRED. AN AWARD WAS MADE TO AMERICAN FACTORS, LIMITED, FOR ELEVEN REEFERS OF THE SPECIFIED MODEL AT A PRICE OF $1,613.84 EACH. YOUR PRICE FOR ELEVEN REEFERS WAS $1,600.49 EACH.

IT APPEARS THAT YOU ARE ALSO CLAIMING THAT, BY REASON OF THE FACT THAT AN AWARD WAS NOT MADE TO YOU, THERE IS DUE YOU FROM THE GOVERNMENT THE SUM OF $2,449.97 ALLEGED TO HAVE BEEN YOUR POTENTIAL PROFIT IN THE TRANSACTION HAD THE AWARD BEEN MADE TO YOU. THIS CLAIM WAS SUBMITTED TO THIS OFFICE BY YOUR LETTER OF SEPTEMBER 16, 1958, AND REJECTED BY OUR DECISION DATED NOVEMBER 18, 1958, B-137423. EVEN ASSUMING THAT THE REJECTION OF YOUR BID WAS ERRONEOUS, THERE STILL WOULD BE NO LEGAL AUTHORITY FOR THE GOVERNMENT TO PAY YOU YOUR POTENTIAL PROFIT IN THE TRANSACTION. IT CONSISTENTLY HAS BEEN HELD THAT THE ADVERTISING STATUTES WERE ENACTED FOR THE BENEFIT OF THE GOVERNMENT, AND NOT FOR THE BENEFIT OF THE BIDDERS AND, THEREFORE, THAT BIDDERS ACQUIRE NO RIGHTS BY SUBMITTING A BID OTHER THAN TO HAVE THEIR BIDS FAIRLY CONSIDERED. SEE HEYER PRODUCTS CO. VS. UNITED STATES, 140 F.SUPP. 400; PERKINS VS. LUKENS STEEL CO., 310 U.S. 113. THE RECORD CLEARLY ESTABLISHES THAT YOUR BID WAS AT LEAST AMBIGUOUS, AND THAT ITS REJECTION WAS NOT BASED UPON AN ARBITRARY DECISION.

ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER AND THERE IS NO LEGAL BASIS FOR THE PAYMENT TO YOU OF ANY AMOUNT IN CONNECTION WITH THE MATTER.