B-139685, JUL. 16, 1959

B-139685: Jul 16, 1959

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TO THE CHICAGO PNEUMATIC TOOL COMPANY: FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER DATED MAY 19. YOUR PROTEST IS BASED ON THE ALLEGATION THAT THE WHITE MOTOR COMPANY DID NOT SUPPLY LITERATURE AS REQUIRED ON PAGE 5 OF THE INVITATION FOR BIDS AND DID NOT SPECIFY THE TYPE OF SWITCHGEAR OR THE MAKE OF THE GENERATOR. AS YOU WERE ADVISED BY OUR COMMUNICATION OF MAY 26. WITH RESULTS SUBSTANTIALLY AS FOLLOWS: ON PAGE 4 OF THE WHITE BID THEY STATED THAT THEY WERE OFFERING THEIR SUPERIOR BRAND MODEL NO. 40-SX-6. THE LITERATURE COVERING THIS MODEL WAS SUBMITTED BY WHITE WITH THEIR BID. POLAR DIAGRAMS WERE WITH THE WHITE BID AT THE TIME OF BID OPENING. THAT FIRM ADVISED THAT THE SWITCHGEAR AND GENERATOR OFFERED BY WHITE WAS SATISFACTORY AND RECOMMENDED THAT THE WHITE BID BE ACCEPTED.

B-139685, JUL. 16, 1959

TO THE CHICAGO PNEUMATIC TOOL COMPANY:

FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER DATED MAY 19, 1959, ADDRESSED TO THE GENERAL SERVICES ADMINISTRATION PROTESTING THE ACTION OF THAT ADMINISTRATION IN AWARDING A CONTRACT TO THE WHITE MOTOR COMPANY UNDER INVITATION NO. FW-3R-18051/1-A-2-59.

YOUR PROTEST IS BASED ON THE ALLEGATION THAT THE WHITE MOTOR COMPANY DID NOT SUPPLY LITERATURE AS REQUIRED ON PAGE 5 OF THE INVITATION FOR BIDS AND DID NOT SPECIFY THE TYPE OF SWITCHGEAR OR THE MAKE OF THE GENERATOR. ALSO, YOU CONTEND THAT THE WHITE MOTOR COMPANY FAILED TO SUPPLY POLAR DIAGRAMS AS REQUIRED ON PAGE 5 OF THE SPECIFICATIONS ATTACHED TO THE INVITATION FOR BIDS.

AS YOU WERE ADVISED BY OUR COMMUNICATION OF MAY 26, 1959, UPON RECEIPT OF YOUR PROTEST WE REQUESTED A COMPLETE ADMINISTRATIVE INVESTIGATION INTO THE FACTS OF THIS CASE, WHICH INVESTIGATION HAS SINCE BEEN CONCLUDED, WITH RESULTS SUBSTANTIALLY AS FOLLOWS:

ON PAGE 4 OF THE WHITE BID THEY STATED THAT THEY WERE OFFERING THEIR SUPERIOR BRAND MODEL NO. 40-SX-6. THE LITERATURE COVERING THIS MODEL WAS SUBMITTED BY WHITE WITH THEIR BID. THE GENERAL SERVICES ADMINISTRATION HAS FURNISHED US PHOTOSTATIC COPIES OF THIS DESCRIPTIVE LITERATURE. ALSO, POLAR DIAGRAMS WERE WITH THE WHITE BID AT THE TIME OF BID OPENING. THE PURCHASING AGENCY HAS FURNISHED US COPIES OF THESE DIAGRAMS. THUS, YOUR ALLEGATION THAT WHITE FAILED TO SUPPLY THE REQUIRED LITERATURE AND DIAGRAMS APPEARS TO BE UNFOUNDED.

WITH RESPECT TO THE SWITCHGEAR AND GENERATOR REQUIRED BY THE INVITATION, THE WHITE BID CONTAINED A SUBSTANTIAL AMOUNT OF DESCRIPTION AND SPECIFICATIONS OF THE SWITCHGEAR AND GENERATOR TO BE SUPPLIED IN CONNECTION WITH THE PRODUCT BUT ADMITTEDLY FAILED TO GIVE THE NAME OR MAKE OF THESE ITEMS. HOWEVER, UPON A REVIEW OF ALL BIDS RECEIVED BY THE TUDOR ENGINEERING COMPANY, ACTING AS CONSULTANT ENGINEERS FOR INTERNATIONAL COOPERATION ADMINISTRATION, THAT FIRM ADVISED THAT THE SWITCHGEAR AND GENERATOR OFFERED BY WHITE WAS SATISFACTORY AND RECOMMENDED THAT THE WHITE BID BE ACCEPTED. IN VIEW OF THE OVER-ALL DESCRIPTION OF THESE ITEMS SUPPLIED BY WHITE AND THE OTHERWISE COMPLETE RESPONSE OF ITS BID, THESE OMISSIONS WERE ADMINISTRATIVELY DETERMINED TO BE A MINOR IRREGULARITY IN THE BID AND THE WHITE BID WAS ACCEPTED.

IT HAS BEEN CONSISTENTLY HELD THAT DEFICIENCIES OR DEVIATIONS IN BIDS MAY BE WAIVED ONLY IF THEY DO NOT GO TO THE SUBSTANCE OF THE BID OR WORK AN INJUSTICE TO OTHER BIDDERS. SEE 35 COMP. GEN. 98. SINCE THE DEFICIENCIES DO NEITHER OF THESE THINGS, THERE IS NO LEGAL BASIS UPON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.