B-140890, NOV. 17, 1959

B-140890: Nov 17, 1959

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TO FEDERATED ENGINEERING DEVELOPMENT CORP: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 25. THE INVITATION REQUIRED THAT EACH BID BE ACCOMPANIED BY A GUARANTY IN AN AMOUNT OF NOT LESS THAN TEN PERCENT OF THE BID PRICE AND IT WAS SPECIFICALLY PROVIDED THAT THE REQUIREMENT FOR THE BID GUARANTY WOULD NOT BE WAIVED. WAS REJECTED BECAUSE IT WAS NOT ACCOMPANIED BY THE REQUIRED BID GUARANTY. WHEREIN IT WAS HELD THAT UNDER INVITATIONS FOR BIDS WHICH REQUIRE BIDDERS TO SUBMIT BID BONDS PRIOR TO THE BID OPENING. THE BID BOND REQUIREMENT IS A MATERIAL PART OF THE INVITATION WHICH CANNOT BE WAIVED AND NONCOMPLIANCE WITH THE BID BOND PROVISION REQUIRES THE REJECTION OF THE BID AS NONRESPONSIVE. IN THIS CONNECTION PARAGRAPH C-2 (C) PROVIDED: "/C) BIDDERS ARE CAUTIONED THAT IN EVALUATING BIDS OFFERING ARTICLES OTHER THAN THE BRAND NAMES REFERENCED IN THE INVITATION.

B-140890, NOV. 17, 1959

TO FEDERATED ENGINEERING DEVELOPMENT CORP:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 25, 1959, PROTESTING THE REJECTION OF YOUR BID IN RESPONSE TO INVITATION TO BID NO. DS 5222, ISSUED BY THE DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, DENVER, COLORADO. YOU ALSO QUESTION THE REASON FOR THE REJECTION OF THE SECOND LOW BID.

THE RECORD BEFORE US SHOWS THAT THE INVITATION REQUESTED BIDS FOR FURNISHING CONTROL BOARD SECTIONS, UNMOUNTED SWITCHBOARD DEVICES, AND CARRIER-CURRENT TRANSMITTER-RECEIVER SETS FOR BISMARK AND JAMESTOWN SUBSTATIONS OF THE MISSOURI RIVER BASIN PROJECT IN ACCORDANCE WITH CERTAIN SPECIFICATIONS AND DRAWINGS. THE INVITATION REQUIRED THAT EACH BID BE ACCOMPANIED BY A GUARANTY IN AN AMOUNT OF NOT LESS THAN TEN PERCENT OF THE BID PRICE AND IT WAS SPECIFICALLY PROVIDED THAT THE REQUIREMENT FOR THE BID GUARANTY WOULD NOT BE WAIVED.

THE SECOND LOW BID SUBMITTED BY GUSTAVESON, INC., WAS REJECTED BECAUSE IT WAS NOT ACCOMPANIED BY THE REQUIRED BID GUARANTY. SEE 38 COMP. GEN. 532, WHEREIN IT WAS HELD THAT UNDER INVITATIONS FOR BIDS WHICH REQUIRE BIDDERS TO SUBMIT BID BONDS PRIOR TO THE BID OPENING, THE BID BOND REQUIREMENT IS A MATERIAL PART OF THE INVITATION WHICH CANNOT BE WAIVED AND NONCOMPLIANCE WITH THE BID BOND PROVISION REQUIRES THE REJECTION OF THE BID AS NONRESPONSIVE.

THE INVITATION REQUIRED THAT CERTAIN COMPONENTS OF THE EQUIPMENT BE EQUAL TO THOSE LISTED THEREIN BY BRAND NAMES AND PROVIDED, BY PARAGRAPH C-2 THEREOF, THAT SHOULD A BID OFFER ARTICLES OTHER THAN THOSE LISTED BY SUCH BRAND NAMES AND FAIL TO CLEARLY IDENTIFY SUCH OFFERED ARTICLES BY ACCOMPANYING DESCRIPTIVE MATERIAL AND A STATEMENT DETAILING THE DIFFERENCES BETWEEN THE OFFERED ARTICLES AND THOSE OF THE SPECIFIED BRAND NAMES, SUCH BIDS WOULD NOT BE CONSIDERED, BUT WOULD BE REJECTED. IN THIS CONNECTION PARAGRAPH C-2 (C) PROVIDED:

"/C) BIDDERS ARE CAUTIONED THAT IN EVALUATING BIDS OFFERING ARTICLES OTHER THAN THE BRAND NAMES REFERENCED IN THE INVITATION, THE GOVERNMENT WILL CONSIDER THAT THE BIDDER INTENDS TO BIND HIMSELF TO FURNISH ONLY THE ARTICLES DESCRIBED IN HIS BID AND ANY ATTACHED DESCRIPTIVE MATERIAL.

"IF A BIDDER OFFERING BRAND NAME ARTICLES WHICH DIFFER FROM THOSE ARTICLES REFERENCED IN THE INVITATION PROPOSES TO MODIFY THE BRAND NAME ARTICLES HE HAS IDENTIFIED IN HIS BID SO AS TO MAKE THE OFFERED ARTICLES EQUAL THOSE REFERENCED INSOFAR AS THE NEEDS OF THE GOVERNMENT ARE CONCERNED, HE SHALL (1) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS, OR, (2) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS. MODIFICATIONS PROPOSED AFTER BID OPENING WILL NOT BE CONSIDERED.'

THE TEN BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE PUBLICLY OPENED ON SEPTEMBER 1, 1959, AS SCHEDULED. THE THREE LOWEST BIDS AFTER EVALUATION FOR COMPARISON PURPOSES AND INCLUDING ESTIMATED COST OF AN ERECTING ENGINEER'S SERVICE AND OF REPRODUCED TRACING WERE: $25,427.50 BY FEDERATED ENGINEERING DEVELOPMENT CORP., OF MONTEREY PARK, CALIFORNIA; $27,401 BY GUSTAVESON, NC., OF KANSAS CITY, MISSOURI, AND $29,142 BY KIRKHOF ELECTRIC COMPANY OF GRAND RAPIDS, MICHIGAN.

YOUR BID, WHILE SUPPLYING NONE OF THE REQUIRED INFORMATION ON PAGE H OF THE BID SCHEDULE WITH RESPECT TO "BRAND NAME EQUIPMENT" WAS ACCOMPANIED BY A SUPPLEMENTAL SHEET ENTITLED "COMPONENT MANUFACTURERS LIST.'

IT IS REPORTED THAT CERTAIN OF THE EQUIPMENT LISTED ON THE ACCOMPANYING "COMPONENT MANUFACTURERS LIST" WAS NOT IN ACCORDANCE WITH THE REQUIREMENT OF THE SPECIFICATIONS IN THE FOLLOWING RESPECTS: (1), FOR THE DIRECTIONAL OVERCURRENT GROUND RELAY DEVICES NO. 167-G, DESIGNATED IN THE INVITATION'S SUBPARAGRAPHS D-3 (3) (1) A3, D-4 (C) (1) A3, AND E-1 (C) (2), AND ON ITS DRAWINGS NUMBERS 466-D-1471 AND 466-D-266 AS WESTINGHOUSE IRD, THERE WAS MERELY LISTED WESTINGHOUSE HCRD; (2), FOR THE AUXILIARY RELAY DEVICES, DESIGNATED IN THE INVITATION'S SUBPARAGRAPHS E-1 (C) (6) AND (8) AS 151802X AND 187B3K, THERE WAS MERELY LISTED WESTINGHOUSE DN; AND (3), FOR THE CARRIER CURRENT TRANSMITTER-RECEIVER SETS UNDER ITEMS 5 AND 6 OF THE INVITATION'S SCHEDULE, REQUIRED BY PARAGRAPH F-1 TO BE GENERAL ELECTRIC COMPANY, TYPE CS-12 OR CS-17, OR WESTINGHOUSE TYPE FD, OR EQUAL, THERE WAS MERELY LISTED WESTINGHOUSE TYPE FD AS YOUR PROPOSED "CARRIER-CURRENT AUX.' IT IS REPORTED THAT WESTINGHOUSE TYPE FD DESIGNATION IS ACTUALLY APPLICABLE TO THE TRANSMITTER-RECEIVER SETS, BUT IS NOT INDICATIVE OF THE TYPE OF CARRIER-AUXILIARY, AND THAT THE OFFERED WESTINGHOUSE TYPE HCRD DIRECTIONAL OVERCURRENT GROUND RELAY LACKS CERTAIN MODIFICATIONS CHARACTERISTIC OF THE TYPE IRD RELAYS REQUIRED BY THE INVITATION.

IT WAS CONSIDERED THAT THE ABOVE-MENTIONED OMISSIONS FROM, AND DEVIATIONS IN, YOUR BID FROM THE TERMS OF THE INVITATION WERE SO SUBSTANTIAL AND IMPORTANT AS TO MAKE THE BID MATERIALLY NONRESPONSIVE, ESPECIALLY SO IN THE OFFER OF WESTINGHOUSE DN TYPE FOR THE AUXILIARY RELAYS REQUIRED BY PARAGRAPH C-20 OF THE INVITATION. IN VIEW THEREOF YOUR BID WAS CONSIDERED NONRESPONSIVE TO THE INVITATION AND WAS REJECTED.

YOUR PROTEST AGAINST THE ACTION TAKEN BY THE CONTRACTING OFFICER IS BASED ON THE CONTENTION THAT YOUR BID WAS MADE IN THE EXACT ACCORD WITH ALL SPECIFICATIONS AND DRAWINGS AND THAT THE ,COMPONENT MANUFACTURERS LIST" WAS SUBMITTED WITH YOUR BID MERELY FOR INFORMATIONAL PURPOSES. IT IS STATED THAT THE "ERRORS" AS TO THE TYPE OF EQUIPMENT LISTED WERE "MINOR CLERICAL TYPE ERRORS AND SHOULD HAVE BEEN BROUGHT TO OUR ATTENTION AT THE TIME OF THE AWARD OF THE CONTRACT TO OUR COMPANY.'

WE CANNOT AGREE THAT THE "COMPONENT MANUFACTURERS LIST" DID NOT CONSTITUTE A PART OF YOUR BID OR THAT IT WAS MERELY FOR INFORMATION PURPOSES, PARTICULARLY, SINCE THE INVITATION SPECIFICALLY PROVIDED FOR ALTERNATE EQUIPMENT AND PROVIDED THAT BIDS WOULD BE EVALUATED ON THE BASIS OF THE ARTICLES DESCRIBED IN ANY ATTACHED DESCRIPTIVE MATERIAL. UNDER THE TERMS OF YOUR BID, AS SUBMITTED, YOU COULD ONLY HAVE BEEN REQUIRED TO FURNISH THE PARTICULAR TYPE OF EQUIPMENT SPECIFIED IN YOUR BID AND IT WAS ADMINISTRATIVELY DETERMINED, WITHOUT DISAGREEMENT ON YOUR PART, THAT THE TYPE OF EQUIPMENT OFFERED BY YOU WAS NOT EQUAL TO THE TYPE REQUIRED BY THE INVITATION.

IT CONSISTENTLY HAS BEEN HELD THAT UNDER THE COMPETITIVE BID PROCEDURE A BID TO BE CONSIDERED FOR AWARD MUST COMPLY WITH THE REQUIREMENTS OF THE INVITATION AT THE TIME OF THE BID OPENING. A BIDDER MAY NOT BE PERMITTED TO CHANGE OR MODIFY ITS BID AFTER THE OPENING AND IT DOES NOT MATTER WHETHER THE FAILURE TO COMPLY WAS DUE TO INADVERTENCE, MISTAKE OR OTHERWISE. SEE 30 COMP. GEN. 179, 36 ID. 535, 38 ID. 819.

ACCORDINGLY, YOU ARE ADVISED THAT WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE IN THIS ..END :