B-140137, JUL. 27, 1959

B-140137: Jul 27, 1959

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

UNITED STATES INFORMATION AGENCY: REFERENCE IS MADE TO YOUR LETTER OF JULY 6. BIDS WERE REQUESTED ON THE BASIS OF DELIVERY F.O.B. STATING THAT ITS QUOTATION IS BASED ON ITS STANDARD C-1000 WARRANTY ONLY. THE DECISIONS OF OUR OFFICE ARE UNIFORM IN HOLDING THAT A BIDDER MAY NOT QUALIFY ITS PROPOSAL IN SUCH A MANNER AS TO MATERIALLY VARY THE ADVERTISED TERMS OF THE INVITATION. NOR MAY THEY PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER BIDS ARE OPENED. IT IS SPECULATIVE AS TO THE EXTENT THAT THE PRICE MAY HAVE BEEN AFFECTED. IT IS ENTIRELY CONCEIVABLE THAT THE OTHER BIDDERS ON ITEM 50 MIGHT HAVE SUBMITTED LOWER BIDS HAD THEY BEEN PERMITTED TO INCLUDE IN THEIR BIDS A WARRANTY PROVISION LESS STRINGENT THAN THAT CONTAINED IN THE INVITATION.

B-140137, JUL. 27, 1959

TO MR. HAMILTON MORTON, CONTRACTING OFFICER, UNITED STATES INFORMATION AGENCY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1959, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN IN CONNECTION WITH A BID RECEIVED FROM THE GENERAL ELECTRIC COMPANY PURSUANT TO INVITATION NO. 59-214-19-/B), ISSUED BY THE UNITED STATES INFORMATION AGENCY ON JUNE 8, 1959.

THE INVITATION REQUESTED BIDS FOR FURNISHING VARIOUS ITEMS OF TRANSMITTING AND POWER ELECTRONIC TUBES FOR USE BY THE OVERSEAS RELAY BASES OF THE VOICE OF AMERICA. BIDS WERE REQUESTED ON THE BASIS OF DELIVERY F.O.B. U.S. INFORMATION AGENCY WAREHOUSE, BROOKLYN, NEW YORK (OPTION A), AND/OR F.O.B. BROADCASTING STATION, COUNTRY OF IMPORTATION (OPTION B). ARTICLE X OF THE INVITATION ENTITLED "WARRANTY," PROVIDES, IN PERTINENT PART, THAT---

"ALL TUBES SHALL BE WARRANTED, FOR A PERIOD OF TWENTY-FOUR (24) MONTHS FROM DATE OF SHIPMENT, TO BE FREE FROM DEFECTS IN WORKMANSHIP, MATERIALS AND CONSTRUCTION * * *.'

IN ITS BID, GENERAL ELECTRIC TAKES EXCEPTION TO THE WARRANTY CLAUSE OF THE INVITATION, STATING THAT ITS QUOTATION IS BASED ON ITS STANDARD C-1000 WARRANTY ONLY, WHICH, AMONG OTHER THINGS, REDUCES, FROM TWENTY FOUR TO EIGHTEEN, THE NUMBER OF MONTHS AFTER SHIPMENT IN WHICH THE WARRANTY MAY BE INVOKED.

UNDER OPTION A, ITEM 50, TUBE TYPE 869B, THE GENERAL ELECTRIC COMPANY QUOTED A PRICE OF $62.57 EACH. THREE OTHER BIDS ON THIS ITEM RANGED FROM $105 TO $133 EACH. UPON REQUEST FOR VERIFICATION OF ITS BID, GENERAL ELECTRIC REPLIED THAT IT HAD MADE A TYPOGRAPHICAL ERROR IN ITS BID IN THAT IT HAD INTENDED TO BID $82.57 INSTEAD OF $62.57 EACH FOR ITEM 50 AND HAS FURNISHED PRICE LIST INFORMATION TO SUPPORT THE ALLEGATION OF ERROR.

ON THE BASIS OF THE FOREGOING, YOU REQUEST TO BE ADVISED WHETHER THE EXCEPTION TAKEN BY GENERAL ELECTRIC TO THE WARRANTY PROVISIONS OF THE INVITATION MAY BE WAIVED AS A MINOR DEVIATION IN THE CASE OF ITEM 50 AND, ALSO, AS TO ITEMS 46 AND 52 WITH RESPECT TO WHICH THE COMPANY MIGHT ALSO BE IN LINE FOR AWARD AS TO THE SOLE BIDDER.

THE DECISIONS OF OUR OFFICE ARE UNIFORM IN HOLDING THAT A BIDDER MAY NOT QUALIFY ITS PROPOSAL IN SUCH A MANNER AS TO MATERIALLY VARY THE ADVERTISED TERMS OF THE INVITATION. IN OUR DECISION OF AUGUST 20, 1954, 34 COMP. GEN. 82, WE HELD THAT PUBLIC OFFICERS MAY NOT ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS; NOR MAY THEY PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER BIDS ARE OPENED. SEE, ALSO, 17 COMP. GEN. 554.

WHILE, IN THE PRESENT CASE, IT IS SPECULATIVE AS TO THE EXTENT THAT THE PRICE MAY HAVE BEEN AFFECTED, IT SEEMS CLEAR THAT THE STATED EXCEPTION TO THE WARRANTY PROVISIONS OF THE INVITATION CONSTITUTES A DEVIATION WHICH GOES TO THE PRICE AND THE QUALITY (30 COMP. GEN. 179), AND IT IS ENTIRELY CONCEIVABLE THAT THE OTHER BIDDERS ON ITEM 50 MIGHT HAVE SUBMITTED LOWER BIDS HAD THEY BEEN PERMITTED TO INCLUDE IN THEIR BIDS A WARRANTY PROVISION LESS STRINGENT THAN THAT CONTAINED IN THE INVITATION. CONSEQUENTLY, SINCE GENERAL ELECTRIC'S BID ON ITEM 50 IS NOT RESPONSIVE TO THE INVITATION, IT SHOULD BE DISREGARDED AND, THEREFORE, IT BECOMES UNNECESSARY TO CONSIDER THE ALLEGATION OF ERROR IN CONNECTION WITH THAT ITEM.

REGARDING ITEMS 46 AND 52, WE FEEL THAT GENERAL ELECTRIC'S BID THEREON LIKEWISE SHOULD BE REJECTED AND THE NEED FOR THESE TWO ITEMS READVERTISED, IN THE ABSENCE OF INFORMATION WHICH WOULD INDICATE THAT THE OTHER PROSPECTIVE BIDDERS WOULD NOT HAVE SUBMITTED BIDS ON THE BASIS OF AN EIGHTEEN MONTHS WARRANTY PROVISION RATHER THAN TWENTY-FOUR MONTHS, AS PROVIDED IN THE INVITATION.