B-140505, DEC. 8, 1959

B-140505, DEC. 8, 1959

TO STEPTOE AND JOHNSON:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 17, 1959, ADVISING THAT YOUR CLIENT--- THE RADMANSON CORPORATION--- WAS NEXT TO THE LOW BIDDER ON MOBILE AIR MATERIAL AREA IFB NO. 01-601-59-1113 (PRIME CLASS), DATED MARCH 27, 1959, AND THAT THAT CONCERN PROTESTS AN AWARD TO THE LOW BIDDER SINCE, YOU ALLEGED, THE LATTER'S BID WAS NOT RESPONSIVE IN THAT IT FAILED TO INCLUDE THE REQUIRED DESCRIPTIVE LITERATURE. ALSO, THERE HAVE BEEN RECEIVED YOUR LETTERS OF AUGUST 24 AND OCTOBER 20, 1959, WITH ENCLOSURES.

AS SET FORTH IN YOUR LETTER OF AUGUST 24, 1959, THE BASIS OF YOUR PROTEST APPEARS TO BE THAT THE RACONY CORPORATION OF RICHMOND, VIRGINIA, FAILED TO SUBMIT WITH ITS BID CERTAIN REQUIRED DESCRIPTIVE LITERATURE AND THAT ITS FAILURE TO DO SO WAS A SUBSTANTIAL DEVIATION WHICH AFFECTED PRICE AND QUALITY. REFERENCE WAS MADE IN YOUR LETTER TO THE REQUIREMENT OF THE INVITATION THAT THE BIDS MUST SET FORTH ACCURATE AND COMPLETE INFORMATION AS REQUIRED THEREIN. YOU THEN INCLUDED IN YOUR LETTER CERTAIN EXCERPTS FROM SPECIFICATIONS MIL-A 26624 AND FEDERAL SPECIFICATION CC-M-641 SETTING FORTH CERTAIN REQUIREMENTS RESPECTING THE SUBMISSION OF PROOF THAT THE ELECTRICAL EQUIPMENT PROPOSED TO BE FURNISHED WOULD CONFORM TO THE STANDARDS OF THE UNDERWRITERS' LABORATORIES, INC., ETC. YOU STATED THAT ONE OF THE REASONS ADVANCED BY THE CONTRACTING OFFICER IN HIS LETTER OF MAY 16, 1959, FOR DENYING YOUR CLIENT'S PROTEST, WAS THAT THE INDICATED SPECIFICATIONS DO NOT MEAN THAT BIDDERS MUST SUBMIT THE LABELS AND/OR PROOF PRIOR TO THE BID OPENING, BUT MERELY THAT THE MATERIAL HAD TO BE SUBMITTED PRIOR TO FINAL ACCEPTANCE OF A UNIT. IT IS YOUR CONTENTION, HOWEVER, THAT THE BID FORM AND SPECIFICATIONS ARE SUSCEPTIBLE OF NO OTHER INTERPRETATION THAN THAT THE SUBMISSION OF LABELS AND/OR PROOF BY BIDDERS WAS REQUIRED BEFORE THE BID OPENING.

YOU STATED FURTHER THAT THE CONTRACTING OFFICER TOOK THE POSITION IN HIS LETTER OF MAY 16, 1959, THAT FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE WITH THE BID WAS NOT A SUBSTANTIAL DEVIATION WHICH AFFECTED PRICE OR QUALITY AND THEREFORE COULD BE WAIVED. YOU CHALLENGE THE CORRECTNESS OF THAT POSITION, IT BEING CONTENDED BY YOU THAT A COMPLETE WAIVER OF THE REQUIREMENT FOR COMPLIANCE WITH RECOGNIZED STANDARDS FOR FIRE AND CASUALTY HAZARDS COULD AFFECT PRICE OR QUALITY. IT APPEARS ALSO THAT THE CONTRACTING OFFICER WAS OF THE VIEW THAT THE GOVERNMENT COULD WAIVE THE REQUIREMENT THAT LABELS AND/OR PROOF BE SUBMITTED WITH THE BIDS, BUT COULD STILL REQUIRE THE SUCCESSFUL CONTRACTOR TO COMPLY WITH THE UNDERLYING STANDARDS IN THE PERFORMANCE OF THE CONTRACT WORK. WITH YOUR LETTER OF OCTOBER 20, 1959, YOU TRANSMITTED A COPY OF THE 1958 REPRINT OF THE NATIONAL ELECTRIC CODE 1956, NFPA 70, AND A COPY OF THE "STANDARD FOR ELECTRICAL MOTORS AND GENERATORS FOR USE IN HAZARDOUS LOCATIONS.' BEGINNING AT PAGE TEN OF YOUR LETTER OF AUGUST 24, 1959, YOU DISCUSSED AT SOME LENGTH THE POSITION TAKEN BY THE SECRETARY OF THE AIR FORCE WITH REFERENCE TO PAMPHLET 70, AND YOU INSISTED THAT THE REQUIREMENTS OF THAT PAMPHLET MAY BE COMPLIED WITH WHILE FURNISHING MATERIAL OF POORER QUALITY AND LOWER PRICE THAN THAT REQUIRED IF THE STANDARDS OF THE UNDERWRITERS' LABORATORIES ARE MET. UPON THE BASIS OF ALL THE FACTS AND CIRCUMSTANCES SET FORTH IN YOUR LETTER, IT IS YOUR VIEW THAT THE BID OF THE RECONY CORPORATION SHOULD HAVE BEEN REJECTED AS NON RESPONSIVE.

THE RECORD INDICATES THAT BY INVITATION FOR BIDS NO. 01-601-59-1113 THE MOBILE AIR MATERIAL AREA, BOOKLEY AIR FORCE BASE, ALABAMA, SOLICITED BIDS FOR FURNISHING SPECIFIED QUALITIES OF AN ITEM DESCRIBED AS AIR CONDITIONER, TYPE A/M 32C-5, TRAILER MOUNTED, ELECTRIC MOTOR DRIVEN, IN ACCORDANCE WITH MILITARY SPECIFICATION NO. MIL-A-26624 (USAF). BIDS WERE REQUESTED ON VARIOUS QUANTITIES, THE GOVERNMENT HAVING THE RIGHT TO AWARD A CONTRACT FOR ANY NUMBER OF UNITS WITHIN ANY OF THE QUANTITY RANGES SPECIFIED. IN ADDITION TO THE MAIN ITEM BIDDERS WERE REQUESTED TO BID ON AND FURNISH TWOPRE-PRODUCTION PROTOTYPES AND MISCELLANEOUS TECHNICAL DATA, DRAWINGS AND BLUE PRINTS.

FIFTEEN BIDS WERE RECEIVED AND OPENED ON APRIL 21, 1959. THE BIDS WERE EVALUATED ON THE BASIS OF FURNISHING 108 UNITS PLUS THE FIRST TWO ARTICLES AND TECHNICAL AND OTHER DATA. ON THAT BASIS, THE LOWEST TOTAL BID WAS SUBMITTED BY THE RECONY CORPORATION OF RICHMOND, VIRGINIA, WHICH BID A TOTAL PRICE OF $995,565. YOUR CLIENT SUBMITTED THE NEXT LOW BID WHICH, COMPUTED ON THE SAME BASIS, TOTALLED $1,030.622. THE DEPARTMENT OF THE AIR FORCE REPORTS THAT BEFORE THE PROCURING ACTIVITY COULD COMPLETE THE AWARD ACTION TO THE LOW BIDDER, A PROTEST AGAINST THE AWARD WAS RECEIVED FROM YOUR CLIENT. YOUR CLIENT ADVANCED THE CONTENTION THAT THE BID OF THE RECONY CORPORATION WAS NOT RESPONSIVE BECAUSE THE BIDDER FAILED TO SUBMIT PROOF WITH ITS BID THAT THE ELECTRICAL EQUIPMENT IT PROPOSED TO FURNISH WOULD CONFORM TO THE STANDARDS OF THE UNDERWRITERS' LABORATORIES, INC., WITH REGARD TO FIRE AND CASUALTY HAZARDS.

IN YOUR LETTER OF AUGUST 24, 1959, YOU INSIST THAT THE BID OF RECONY WAS NOT RESPONSIVE AND SHOULD, THEREFORE, HAVE BEEN REJECTED AND THE AWARD MADE TO YOUR CLIENT, AS THE NEXT LOWEST RESPONSIVE BIDDER. THE DEPARTMENT OF THE AIR FORCE REPORTS THAT ALL AIR FORCE ACTIVITIES INVOLVED IN THIS PROCUREMENT, INCLUDING THE OFFICE OF THE STAFF JUDGE ADVOCATE AT THE PROCURING ACTIVITY AND THE OFFICE OF THE AIR FORCE GENERAL COUNSEL, CAREFULLY CONSIDERED THE MATTER OF YOUR CLIENT'S PROTEST AND THEY ALL AGREED THAT THERE WAS NO VALID BASIS THEREFOR. ACCORDINGLY, UNDER DATE OF AUGUST 6, 1959, THE AIR FORCE FORMALLY REJECTED YOUR CLIENT'S PROTEST AND PROCEEDED TO AWARD THE CONTRACT TO THE RECONY CORPORATION, THE EFFECTIVE DATE OF THE AWARD BEING AUGUST 20, 1959.

IT IS TO BE NOTED THAT NEITHER THE BID INVITATION ITSELF NOR THE MILITARY SPECIFICATION INCORPORATED THEREIN REQUIRED BIDDERS TO SUBMIT PROOF WITH THEIR BIDS THAT THE ELECTRICAL EQUIPMENT PROPOSED TO BE FURNISHED WOULD CONFORM TO THE STANDARDS OF THE UNDERWRITERS' LABORATORIES, INC., WITH REGARD TO FIRE AND CASUALTY HAZARDS. IT WAS ONLY IN FEDERAL SPECIFICATION CC-M-641 WHICH WAS INCORPORATED BY REFERENCE IN THE MILITARY SPECIFICATIONS, THAT THERE WAS ANY REQUIREMENT FOR SUBMISSION OF EVIDENCE, ETC., WITH THE BIDS, AND IT IS TO BE NOTED THAT THAT REQUIREMENT RELATED SOLELY TO THE EXPLOSION-PROOF MOTORS OR DUSTTIGHT MOTORS FOR HAZARDOUS LOCATIONS. IN OTHER WORDS, THERE WAS NO REQUIREMENT FOR THE SUBMISSION OF EVIDENCE WITH THE BIDS FOR OTHER THAN THE EXPLOSION-PROOF OR DUSTTIGHT MOTORS. IT APPEARS TO BE YOUR MAIN CONTENTION THAT THE SUBMISSION OF EVIDENCE WITH THE BIDS WAS A REQUIREMENT AS TO ALL ELECTRICAL EQUIPMENT. THE DEPARTMENT OF THE AIR FORCE REPORTS THAT, OTHER THAN YOUR CLIENT, NOT ONE OF THE FIFTEEN BIDDERS OFFERED ANY SUCH PROOF OF THEIR BIDS. APPEARS THAT YOUR CLIENT CHOSE TO FURNISH A COMPLETE TECHNICAL PROPOSAL WITH ITS BID, AND THAT IT WAS IN CONNECTION WITH SUCH PROPOSAL THAT YOUR CLIENT INDICATED THAT THE EQUIPMENT TO BE FURNISHED WOULD COMPLY WITH PARAGRAPH 6.4 OF THE MILITARY SPECIFICATIONS, WHICH REQUIRES PROOF OF COMPLIANCE WITH UNDERWRITERS' LABORATORIES' STANDARDS, ALTHOUGH IT DOES NOT REQUIRE SUCH PROOF TO BE SUBMITTED WITH BIDS.

THERE IS CERTAIN LANGUAGE IN PARAGRAPH 6.4 OF THE MILITARY SPECIFICATION WHICH APPEARS TO HAVE A BEARING ON THE INTENTION OF THE PARTIES CONCERNING THE SUBMISSION OF PROOF, ETC. THAT PARAGRAPH READS AS FOLLOWS:

"6.4 HAZARDS CERTIFICATION.--- THE BIDDER WILL SUBMIT PROOF TO THE PROCURING ACTIVITY THAT THE ELECTRICAL EQUIPMENT (SEE 3.21) HE PROPOSES TO SUPPLY UNDER THIS SPECIFICATION CONFORMS TO THE STANDARDS OF THE UNDERWRITERS' LABORATORIES, INC. WITH REGARD TO FIRE AND CASUALTY HAZARDS. THE LABEL OR LISTING OF THE UNDERWRITERS' LABORATORIES, INC. WILL BE ACCEPTED AS EVIDENCE OF CONFORMING TO THE SPECIFICATION REQUIREMENTS.'

THE UNDERSCORED PORTION OF THE QUOTED PARAGRAPH CONCERNING A UL LABEL SEEMS ONLY TO REQUIRE THAT EVIDENCE BE SUBMITTED WITH THE DELIVERED ITEM THAT IT MEETS THE SPECIFICATION REQUIREMENTS. WHILE IT IS TRUE THAT PARAGRAPH 2.1 OF THE MILITARY SPECIFICATION INCORPORATES BY REFERENCE FEDERAL SPECIFICATION CC-M-641B, IT SHOULD BE NOTED THAT THE SAME PARAGRAPH ALSO INCORPORATES 22 OTHER FEDERAL AND MILITARY SPECIFICATIONS. FURTHERMORE, THE PARTICULAR PARAGRAPH OF FEDERAL SPECIFICATION CC-M-641B UPON WHICH YOU RELY COVERS ALMOST PRECISELY THE SAME REQUIREMENTS AS ARE CONTAINED IN PARAGRAPHS 6.4 AND 6.4.1 OF THE MILITARY SPECIFICATION INTO WHICH IT WAS INCORPORATED. IN SUCH CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE PROVISIONS OF THE MILITARY SPECIFICATION SHOULD TAKE PRECEDENCE OVER THOSE OF THE FEDERAL SPECIFICATION. NOR DO WE AGREE THAT THE USE OF THE WORDS "BIDDER" AND "CONTRACTOR" IN THE MILITARY SPECIFICATION NECESSARILY REQUIRE THE CONCLUSION THAT A MATERIAL DISTINCTION WAS THEREBY INTENDED BETWEEN THE TIME BEFORE AND AFTER BID OPENING. EVEN IF THE WORD "BIDDER" BE GIVEN A STRICTLY TECHNICAL CONNOTATION, IT STILL APPLIES TO A PROSPECTIVE CONTRACTOR AFTER BID OPENING UNTIL HE HAS BEEN GIVEN AN AWARD. IF HE MAY, AS A "BIDDER," FURNISH DATA AFTER BID OPENING, IT WOULD BE LESS THAN A MATERIAL MATTER TO PERMIT HIM TO FURNISH SUCH DATA AFTER AWARD.

UPON CONSIDERATION OF THE TERMS OF THE INVITATION FOR BIDS, INCLUDING THE REFERENCED SPECIFICATIONS, IT IS OUR VIEW THAT ANY BID SUBMITTED IN RESPONSE THERETO, WHEN ACCEPTED, OBLIGATED THE BIDDER TO FURNISH EQUIPMENT CONFORMING TO THE STANDARDS OF THE UNDERWRITERS' LABORATORIES, INC., WITH REGARD TO FIRE AND CASUALTY HAZARDS. THIS APPEARS TO BE ESTABLISHED BY THE PROVISIONS OF PARAGRAPH 6.4 OF THE SPECIFICATIONS. IT THUS FOLLOWS THAT THE MERE FURNISHING OF PROOF TO SUPPORT A CONTRACT OBLIGATION WOULD NOT AFFECT THE PRICE OR QUALITY OF THE EQUIPMENT, AND IT WOULD BE IMMATERIAL WHETHER SUCH PROOF WAS SUBMITTED WITH THE BID OR THEREAFTER. WE AGREE WITH THE CONTRACTING OFFICER THAT THE FAILURE TO FURNISH DESCRIPTIVE LITERATURE WITH THE BID WAS NOT A SUBSTANTIVE DEVIATION WHICH AFFECTED PRICE OR QUALITY AND THEREFORE COULD BE WAIVED. SEE 36 COMP. GEN. 415-416.

FOR THE REASONS SET FORTH ABOVE, WE ARE OF THE VIEW THAT THE ACTION OF THE DEPARTMENT OF THE AIR FORCE IN AWARDING A CONTRACT TO THE RECONY CORPORATION WAS CORRECT, AND THAT THEREFORE WE WOULD NOT BE JUSTIFIED IN MAKING ANY RECOMMENDATION TO THAT DEPARTMENT IN THIS MATTER.

THE ENCLOSURES TO YOUR LETTER OF OCTOBER 20, 1959, ARE RETURNED HEREWITH.