B-140115, SEP. 14, 1959

B-140115: Sep 14, 1959

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TO THE MOORE AND HANKS COMPANY: REFERENCE IS MADE TO YOUR LETTERS OF JULY 15 AND AUGUST 10. IT IS YOUR CONTENTION. THAT THE AWARD WAS MADE ON AN ALTERNATE REQUIREMENT WITHOUT REGARD TO THE RIGHTS OF OTHER BIDDERS. THE BID WAS FURTHER MODIFIED BY ADDING THREE ADDITIONAL DEDUCTIVES. UPON EVALUATION OF THE BIDS IT WAS DETERMINED TO BE IN THE BEST INTEREST OF THE UNITED STATES TO EXERCISE THE OPTION OF DEDUCTING ITEMS I. THE AWARD BASED UPON PARTIAL RECIRCULATED AIR IN THOSE ROOMS WAS IN ERROR. IN THAT CONNECTION IT APPEARS THAT AFTER OPENING OF THE BIDS CERTAIN INFORMATION WAS REQUESTED TO THE THREE LOW BIDDERS AS TO HOW THEY INTENDED TO MEET THE PERFORMANCE REQUIREMENTS. ADVISED THAT ITS BID WAS PREDICATED ON FURNISHING 75 PERCENT RECIRCULATED AND 25 PERCENT OUTSIDE AIR.

B-140115, SEP. 14, 1959

TO THE MOORE AND HANKS COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 15 AND AUGUST 10, 1959, PROTESTING AGAINST THE AWARD OF CONTRACT NO. N123-/246) 23016A, TO SHIELDING, INCORPORATED, BY THE NAVY PURCHASING OFFICE AT LOS ANGELES, CALIFORNIA, FOR THE CONSTRUCTION OF A HUMIDITY AND DUST-CONTROLLED AIR CONDITIONED ENCLOSURE, TO BE IDENTIFIED AS BUILDING NO. 378, AT THE UNITED STATES NAVAL AIR STATION, NORTH ISLAND, SAN DIEGO, CALIFORNIA.

IT IS YOUR CONTENTION, IN SUBSTANCE, THAT THE CONTRACT AS AWARDED DEVIATES FROM THE ADVERTISED SPECIFICATIONS; THAT THE AWARD WAS MADE ON AN ALTERNATE REQUIREMENT WITHOUT REGARD TO THE RIGHTS OF OTHER BIDDERS; AND, THAT UNDER THOSE CIRCUMSTANCES THE INVITATION SHOULD BE CANCELLED AND THE PROCUREMENT READVERTISED.

AN EXAMINATION OF THE RECORD BEFORE US DISCLOSES THAT THE INVITATION DATED JUNE 1, 1959, CALLED FOR A BASIC BID ON THE STRUCTURE UNDER THE ADVERTISED SPECIFICATIONS, WITH AN ALTERNATE BID COVERING DEDUCTIVE ITEMS A THROUGH H. THEREAFTER, BY AMENDMENT NO. 2, DATED JUNE 12, 1959, THE BID WAS FURTHER MODIFIED BY ADDING THREE ADDITIONAL DEDUCTIVES, ITEMS I THROUGH K. UPON EVALUATION OF THE BIDS IT WAS DETERMINED TO BE IN THE BEST INTEREST OF THE UNITED STATES TO EXERCISE THE OPTION OF DEDUCTING ITEMS I, J, AND K, WHICH RESULTED IN THE LOWEST BID BEING SUBMITTED BY SHIELDING, INCORPORATED, IN THE AMOUNT OF $204,500.

SPECIFICALLY, YOU ALLEGE THAT SINCE THE SPECIFICATION AND DRAWINGS REQUIRED COMPLETE FRESH AIR CHANGE EVERY 15 TO 18 SECONDS FOR THE DRESSING AND AIR SHOWER ROOMS, AMENDED BY ITEM J OF AMENDMENT NO. 2, TO EVERY 60 TO 75 SECONDS, THE AWARD BASED UPON PARTIAL RECIRCULATED AIR IN THOSE ROOMS WAS IN ERROR. IN THAT CONNECTION IT APPEARS THAT AFTER OPENING OF THE BIDS CERTAIN INFORMATION WAS REQUESTED TO THE THREE LOW BIDDERS AS TO HOW THEY INTENDED TO MEET THE PERFORMANCE REQUIREMENTS. WITH RESPECT TO THE SPECIFICATIONS CONCERNING THE AIR CONDITIONING SYSTEM IN THE ROOM AREAS IN QUESTION SHIELDING, INCORPORATED, ADVISED THAT ITS BID WAS PREDICATED ON FURNISHING 75 PERCENT RECIRCULATED AND 25 PERCENT OUTSIDE AIR, WHILE MOORE AND HANKS BID B WAS BASED ON 100 PERCENT OUTSIDE AIR. IN ADDITION, BID A (ALTERNATE) OF MOORE AND HANKS WAS SUBMITTED ON THE BASIS OF NORMAL PERCENTAGES OF RECIRCULATED AIR. GENERAL ACOUSTICS STATED THAT IT WOULD BE USING 80 PERCENT RECIRCULATED AIR.

BASED UPON THE INFORMATION FURNISHED BY THE BIDDERS DURING THE PERIOD OF EVALUATION OF THE PROPOSALS IT APPEARED THAT THERE EXISTED A DIFFERENCE OF OPINION AMONG THE BIDDERS REGARDING THE REQUIREMENTS OF THE SPECIFICATIONS, PARTICULARLY WITH RESPECT TO AN INTERPRETATION OF THE NOTE CONTAINED IN DRAWING ES 1068. HOWEVER, IT WAS CONCLUDED THAT AN AWARD TO THE LOW BIDDER BASED ON NORMAL PERCENTAGE OF OUTSIDE AIR INTAKE IN THE DRESSING AND SHOWER ROOMS COULD BE MADE IN ACCORDANCE WITH THE INVITATION FOR BIDS AS WRITTEN WITHOUT BEING PREJUDICIAL TO THE OTHER BIDDERS, SINCE THE REQUIRING ACTIVITY STATED THAT THE STANDARD MINIMUM OF 20 PERCENT OUTSIDE AIR INTAKE IN THESE SPACES IS ACCEPTABLE FOR THEIR TECHNICAL REQUIREMENTS.

WE AGREE THAT THE DRAWINGS AND SPECIFICATIONS IN THIS CASE ARE NOT ENTIRELY FREE FROM DOUBT AS TO THE REQUIREMENTS OF THE AIR CONDITIONING TO BE SUPPLIED TO THE DRESSING AND SHOWER AREAS. HOWEVER, SINCE THE RECORD SHOWS THAT THE THREE LOW BIDS, INCLUDING YOUR BID A, WERE MADE ON THE SAME BASIS; THAT THEY WERE SUSCEPTIBLE OF EQUAL EVALUATION BASED UPON THE CONCLUSIONS REACHED BY THE PROCUREMENT OFFICIALS WERE NOT PREJUDICIAL TO YOU OR THE OTHER BIDDERS, WE FIND NO LEGAL BASIS TO JUSTIFY THE CANCELLATION OF THE SUBJECT CONTRACT AND DIRECT THE READVERTISING OF THIS PROCUREMENT.