B-138356, MARCH 18, 1959, 38 COMP. GEN. 614

B-138356: Mar 18, 1959

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CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - EVALUATION - RETURN OF SUPERSEDED SPECIFICATIONS THE FAILURE OF A LOW BIDDER TO RETURN A SUPERSEDED SPECIFICATION WHEN ACKNOWLEDGMENT WAS MADE OF THE ADDENDUM. THE FACT THAT THE BIDDER IN ANSWER TO THE NAME AND LOCATION OF THE MANUFACTURER REFERRED TO AN ATTACHED CATALOG WHICH CONTAINED MODELS NOT IN COMPLIANCE WITH THE SPECIFICATIONS SHOULD NOT HAVE BEEN REGARDED AS A SPECIFICATION QUALIFICATION BUT SHOULD HAVE BEEN CONSIDERED AS RELATING SOLELY TO DATA ON THE MANUFACTURER. THE INVITATION WAS ISSUED ON OCTOBER 28. WERE NOT FURNISHED A COPY OF THE ORIGINAL SPECIFICATIONS. FLUSHER WILL BE MTD ON GOVERNMENT OWNED TRUCK. FLUSHER WILL BE MTD. TANK TO HAVE NO LESS THAN 1.

B-138356, MARCH 18, 1959, 38 COMP. GEN. 614

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - EVALUATION - RETURN OF SUPERSEDED SPECIFICATIONS THE FAILURE OF A LOW BIDDER TO RETURN A SUPERSEDED SPECIFICATION WHEN ACKNOWLEDGMENT WAS MADE OF THE ADDENDUM, WHICH REQUIRED REMOVAL OF THE ORIGINAL SPECIFICATION, SHOULD NOT BE REGARDED AS SIGNIFICANT OR AS AFFECTING THE RESPONSIBILITY OF THE BIDDER FOR COMPLIANCE WITH THE NEW SPECIFICATIONS, AND THE FACT THAT THE BIDDER IN ANSWER TO THE NAME AND LOCATION OF THE MANUFACTURER REFERRED TO AN ATTACHED CATALOG WHICH CONTAINED MODELS NOT IN COMPLIANCE WITH THE SPECIFICATIONS SHOULD NOT HAVE BEEN REGARDED AS A SPECIFICATION QUALIFICATION BUT SHOULD HAVE BEEN CONSIDERED AS RELATING SOLELY TO DATA ON THE MANUFACTURER.

TO THE SECRETARY OF THE ARMY, MARCH 18, 1959:

WE REFER TO A LETTER OF FEBRUARY 19, 1959, WITH ENCLOSURE, SIGNED BY THE ASSISTANT SECRETARY ( LOGISTICS) FORWARDING IN RESPONSE TO OUR LETTER OF JANUARY 12, 1959, A REPORT REGARDING THE BID PROTEST SUBMITTED BY THE MUNICIPAL SUPPLY COMPANY AGAINST THE REJECTION OF ITS BID UNDER INVITATION NO. ENG-44-008-59-37.

THE INVITATION WAS ISSUED ON OCTOBER 28, 1958, FOR A STREET FLUSHER. WERE NOT FURNISHED A COPY OF THE ORIGINAL SPECIFICATIONS, BUT THE AMENDED SPECIFICATIONS INCORPORATED BY AN ADDENDUM PROVIDE IN PART:

FLUSHER STREET, LESS TRUCK. CONSISTING OF, STREAMLINER TANK, PUMP, FLUSHING NOZZLES, ENGINE AND CAB CONTROLS FOR OPERATION OF NOZZLES AND FLUSHER ENGINE. FLUSHER WILL BE MTD ON GOVERNMENT OWNED TRUCK, INTERNATIONAL 5-TON L-201 SERIES 4 X 2 DR. WITH 152 INCHES FROM CAB TO REAR OF FRAME. FLUSHER WILL BE MTD. BY POST ENGR. SHOP FT. BELVOIR, VA.

TANK. TANK TO BE ELLIPTICAL IN SHAPE W/NO LESS THAN 10 GAUGE SHELL, W/NO LESS THAN 8-GAUGE HEADS, W/1STEEL LONGITUDINAL SILLS, RUNNING THE ENTIRE LENGTH OF TANK. W/3 INCHES OVERFLOW. 18 INCHES MANHOLE AND 2 1/2 INCHES INLET FOR LOADING FROM FIRE HYDRANT. TANK TO HAVE NO LESS THAN 1,500 GAL CAP. W/FULL SKIRTING STREAM LINED W/BEAVER TAIL AND EASY ACCESS DOORS, TO PUMP AND ENGINE.

BIDS WERE OPENED IN ACCORDANCE WITH THE INVITATION, AS AMENDED, ON NOVEMBER 21, 1958. OF THE FOUR BIDS RECEIVED THE LOWEST IS REPORTED TO HAVE BEEN CLEARLY NONRESPONSIVE AND THEREFORE REJECTED. THE SECOND LOW BID OF $4,241 WAS SUBMITTED BY THE MUNICIPAL SUPPLY COMPANY. THIS BID WAS REJECTED BY THE CONTRACTING OFFICER BECAUSE:

3. THE BID OF MUNICIPAL SUPPLY COMPANY, SOUTH BEND, INDIANA, WAS REJECTED AS NON-RESPONSIVE BECAUSE THE BIDDER DELETED THE GOVERNMENT SPECIFICATIONS AND SUBSTITUTED THEREFORE HIS BROCHURE, DESCRIBING HIS STANDARD 1,500 GALLON STREET FLUSHER. THIS BROCHURE DESCRIBED A STREET FLUSHER EQUIPMENT DESIGNED FOR A TRUCK HAVING A CAB TO AXLE DISTANCE 78 INCHES TO 86 INCHES. THE FIRST PARAGRAPH OF THE SPECIFICATIONS REQUIRE A FLUSHER THAT IS TO BE MOUNTED ON A TRUCK INTERNATIONAL, 5 TON L-201 SERIES, 4 X 2 DRIVE WITH 152 INCHES FROM CAB TO REAR OF FRAME. THE DISTANCE FROM THE CAB TO THE REAR AXLE ON THIS VEHICLE IS 104 INCHES. A STREET FLUSHER ASSEMBLY DESIGNED FOR A TRUCK WITH A CAB TO AXLE DIMENSION OF 78 INCHES TO 86 INCHES COULD NOT BE MOUNTED ON A VEHICLE WITH A CAB TO AXLE DIMENSION OF 104 INCHES. ALL INTERNATIONAL TRUCKS, 5-TON, L-201 SERIES HAVE A CAB TO AXLE DIMENSION OF 104 INCHES.

4. THE PURCHASE OF THE 1,500 GALLON TANK, AS SUBMITTED BY MUNICIPAL SUPPLY COMPANY, WOULD NECESSITATE MAJOR MODIFICATIONS OF THE GOVERNMENT'S VEHICLE. THE SPECIFICATIONS STATE THAT THE FLUSHER ASSEMBLY IS TO BE MOUNTED ON A SPECIFIC VEHICLE WITHOUT MODIFICATION THERETO.

ACCORDINGLY, THE CONTRACT WAS AWARDED TO THE THIRD LOW BIDDER AT A PRICE OF $6,800, ON DECEMBER 29, 1958; DELIVERY TO BE WITHIN 45 DAYS OR APPROXIMATELY FEBRUARY 12, 1959.

THE BID FORM AT PAGE 4 FIRST DESCRIBES THE PRODUCT UNDER PROCUREMENT AS " FLUSHER, STREET IN ACCORDANCE WITH ATTACHED SPECIFICATIONS.' SEVERAL LINES BELOW APPEARS A STATEMENT CONCERNING DELIVERY, FOLLOWED SEVERAL ADDITIONAL LINES BELOW BY A SPACE FOR INSERTION BY THE BIDDER OF THE DELIVERY TIME HE OFFERS. SEVERAL MORE SPACES BELOW APPEARS A REQUEST THAT THE BIDDER STATE THE NAME AND LOCATION OF THE MANUFACTURING PLANT OR OTHER ESTABLISHMENT FROM WHICH THE SUPPLIES ARE TO BE FURNISHED. IMMEDIATELY TO THE RIGHT OF THE LAST LINE OF THIS STATEMENT THE MUNICIPAL SUPPLY COMPANY BID CONTAINS IN PARENTHESES THIS STATEMENT: "SEE CATALOG ATTACHED.' DIRECTLY BENEATH THE STATEMENT REQUESTING NAME AND LOCATION THERE WAS INSERTED THE FOLLOWING:

EQUIPMENT TO BE FURNISHED BY

MUNICIPAL SUPPLY COMPANY

2508 SO. MAIN STREET,

SOUTH BEND 23, INDIANA

THE CATALOG ATTACHED TO MUNICIPAL'S BID IS AN 8-PAGE BROCHURE IN COLOR. ON THE FIRST PAGE APPEARS THE BRAND NAME, A REPRESENTATION OF A TRUCK OUTFITTED WITH A FLUSHER AND THE NAME AND ADDRESS OF THE MANUFACTURER. THE SECOND PAGE IS A BRIEF HISTORY OF THE FIRM WITH AN ILLUSTRATION AND WITH STATEMENT CONCERNING THE QUALITY OF THE PRODUCT AND THE CAPABILITIES OF THE MANUFACTURER. PAGE 3 CONTAINS A STATEMENT REGARDING THE EFFICIENCY OF THE FLUSHER TOGETHER WITH PERTINENT ILLUSTRATIONS. ON PAGES 4 AND 5 THERE APPEAR ILLUSTRATIONS OF TRUCKS ON WHICH ARE MOUNTED A VARIETY OF FLUSHERS. PAGE 6 DEPICTS NOZZLE CONTROLS AND PAGE 7 LISTS SPECIFICATIONS APPLICABLE GENERALLY TO THE MANUFACTURER'S PRODUCTS AND EXTRA EQUIPMENT AVAILABLE. PAGE 8 INCLUDES A CHART LABELED " STANDARD TANK CAPACITIES.' THIS CHART PROVIDES DATA ON TANKS WITH CAPACITIES OF 800, 1,000, 1,250, 1,500, 1,800, 2,100, 2,500, AND 3,000 GALLONS. FOR THE 1,500 CAPACITY TANKS, THE CHART INDICATES FOR A " CAB TO AXLE DIMENSION FULL STREAMLINED MODEL AND REAR ENGINE MOUNT" OR DISTANCE OF FROM 78 TO 86 INCHES.

IT APPEARS TO BE THE CONTENTION OF THE CONTRACTING OFFICER THAT THIS LAST ITEM OF INFORMATION COUPLED WITH THE REMOVAL OF THE SPECIFICATION SHEET FROM THE BID AMOUNTS TO A QUALIFICATION OF MUNICIPAL'S BID LIMITING THE STREAMLINING OFFER TO A DISTANCE OF FROM 78 TO 86 INCHES FROM CAB TO AXLE.

AS PREVIOUSLY STATED, THE INVITATION WAS ISSUED ON OCTOBER 28, 1958. NOVEMBER 7, AN ADDENDUM WAS ISSUED DELETING THE OLD SPECIFICATION AND SUBSTITUTING A NEW ONE AND EXTENDING THE BID OPENING DATE FROM NOVEMBER 14 TO 18, 1958. ON NOVEMBER 14, A SECOND ADDENDUM WAS ISSUED FURTHER EXTENDING THE BID OPENING DATE TO NOVEMBER 21 AND EFFECTING A FURTHER MODIFICATION IN THE SPECIFICATION. BY THEIR TERMS, BIDDERS WERE REQUIRED TO ACKNOWLEDGE RECEIPT OF THE ADDENDA IN WRITING PRIOR TO BID OPENING. MUNICIPAL CONFORMED TO THE ACKNOWLEDGMENT REQUIREMENT IN BOTH CASES WITHOUT INDICATION OF ANY QUALIFICATION. THE RECORD FURTHER INDICATES THAT RECEIPT OF ADDENDUM NO. 1 WAS ACKNOWLEDGED BY MUNICIPAL ON NOVEMBER 10, 3 DAYS BEFORE THE SUBMISSION OF ITS BID.

REMOVAL OF THE ORIGINAL SPECIFICATION SHEET FROM THE BID FORM WAS DICTATED BY ADDENDUM NO. 1. WE DO NOT VIEW THE FAILURE TO RETURN A COPY OF THE SUPERSEDING SPECIFICATION WITH THE ACKNOWLEDGMENT OF RECEIPT OF ADDENDUM NO. 1 AS SIGNIFICANT SINCE THERE COULD BE NO QUESTION AS TO THE CONTENTS OF THE NEW SPECIFICATION OR AS TO ITS RECEIPT BY THE BIDDER. FURTHER, THE LOCATION OF THE REFERENCE TO THE CATALOG ON PAGE 4 OF MUNICIPAL'S BID AND THE LANGUAGE USED TEND STRONGLY TO INDICATE THAT THE CATALOG WAS FURNISHED ONLY WITH REGARD TO THE NAME AND LOCATION OF THE MANUFACTURER AND PROBABLY WITH SPECIAL REFERENCE TO THE HISTORICAL DATA ON PAGE 2 DESCRIBED ABOVE. IF IT WAS INTENDED TO MODIFY THE SPECIFICATION IT WOULD HAVE BEEN MUCH MORE APPROPRIATE TO HAVE PLACED THE STATEMENT REGARDING THE CATALOG OPPOSITE OR CLOSE TO THE STATEMENT AT THE TOP OF PAGE 4 WHICH MAKES REFERENCE TO THE ATTACHED SPECIFICATIONS. EVEN IF IT MAY BE ASSUMED THAT THE CATALOG WAS INTENDED TO QUALIFY THE BID, SINCE THE SPECIFICATIONS PROVIDE FOR A MINIMUM CAPACITY OF 1,500 GALLONS IT COULD POSSIBLY BE ASSUMED THAT THE BIDDER WAS OFFERING HIS 1,800 GALLON CAPACITY MODEL WHICH PROVIDES FOR A CAB TO AXLE DIMENSION IN A FULLY STREAMLINED MODEL WITH REAR ENGINE MOUNT OF FROM 96 TO 104 INCHES.

A BIDDER TO BE ELIGIBLE FOR AWARD MUST SUBMIT AN UNQUALIFIED OFFER TO PERFORM IN ACCORDANCE WITH THE PROVISIONS OF THE INVITATION. 37 COMP. GEN 110; 36 COMP. GEN. 535. IN THIS RESPECT THE SITUATION IS ANALOGOUS TO THE RULE GOVERNING OFFER AND ACCEPTANCE GENERALLY; I.E., TO EFFECT A VALID CONTRACT THE ACCEPTANCE MUST BE POSITIVE AND UNAMBIGUOUS AND MUST NOT CHANGE, ADD TO, OR QUALIFY THE TERMS OF THE OFFER. 35 COMP. GEN. 272. HOWEVER, AN OFFEROR MAY ADD WORDS TO THE PROPOSAL WHICH WILL NOT BE REGARDED AS IMPAIRING OR PREVENTING ACCEPTANCE IF THEY DO NOT QUALIFY THE OFFER IN LEGAL EFFECT. COLUMBIA MALTING COMPANY V. CLAUSEN-FLANAGAN CORPORATION, 3 F.2D 547. SEE ALSO 1 WILLISTON ON CONTRACTS (3D USED.) SECTION 79. SIMILARLY IN THIS CASE IT APPEARS THAT THE INCLUSION OF THE CATALOG WAS RELATED SPECIFICALLY AND SOLELY BY THE TERMS OF THE BID TO THE DATA RELATING TO THE MANUFACTURER AND SHOULD NOT HAVE BEEN CONSIDERED AS A QUALIFICATION OF THE BID. SINCE AWARD WAS MADE TO THE NEXT BIDDER, AND IT IS OUR UNDERSTANDING THAT THE ARTICLE IS NOT ENTIRELY A STOCK ITEM AND THE CONTRACTOR PRESUMABLY HAS BY NOW INCURRED THE EXPENSE OF FITTING IT FOR THE GOVERNMENT'S USE, IT DOES NOT APPEAR TO BE IN THE INTEREST OF THE GOVERNMENT TO REQUIRE CANCELLATION OF THE CONTRACT AWARDED. FURTHER INSTANCES OF A SIMILAR NATURE SHOULD BE HANDLED IN ACCORDANCE WITH THE FOREGOING.

WE WOULD, HOWEVER, LIKE TO BRING TO YOUR ATTENTION AN ALLEGATION BY THE PROTESTING BIDDER THAT THE SUCCESSFUL BIDDER DELIVERED A STREET FLUSHER BUILT TO ALMOST IDENTICAL BUT FAR MORE RIGID SPECIFICATIONS TO ARLINGTON COUNTY, VIRGINIA, IN THE LAST QUARTER OF 1958 WHICH WAS FURNISHED, PAINTED AND MOUNTED ON A CHASSIS SUPPLIED BY THE COUNTY AT A PRICE OF $3,625, F.O.B. ARLINGTON, VIRGINIA. THIS ALLEGATION IF TRUE RAISES SERIOUS DOUBT AS TO THE REASONABLENESS OF THE PRICE UNDER THE INSTANT CONTRACT.

A COPY OF THIS LETTER IS BEING FURNISHED TO THE MUNICIPAL SUPPLY COMPANY.