B-141544, FEB. 3, 1960

B-141544, FEB. 3, 1960

TO MANHATTAN LIGHTING EQUIPMENT CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 17, 1959, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE REJECTION BY THE DEPARTMENT OF THE NAVY OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. IFB600 755- 60, BECAUSE OF YOUR FAILURE TO SHOW THE BRAND NAME AND MODEL NUMBER OF THE EQUIPMENT YOU WERE OFFERING TO FURNISH.

THE INVITATION REQUESTED BIDS--- TO BE OPENED ON NOVEMBER 2, 1959--- FOR FURNISHING 114 MECHANICAL ANGLE ATTACHMENTS, 90 DEGREE ANGLE, COMPLETE WITH SET, SCREW TYPE DRILL ADAPTERS FOR DRILL SIZES NO. 10 ).193), NO. 20 ).161), NO. 21 ).159), NO. 30 ).128), AND NO. 40 ).098), ZEPHYR MFG. CO., INC., INGLEWOOD, CALIF. MODEL ZT-417-B ATTACHMENT MODEL, ZT 40 DS--- NO. 10, NO. 20, NO. 21, NO. 30 AND NO. 40, OR EQUAL. ON PAGE 3 OF THE INVITATION, UNDER THE PARAGRAPH ENTITLED "BRAND NAME OR EQUAL," BIDDERS WERE ADVISED AS FOLLOWS:

"AS USED IN THIS CLAUSE, THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF THE SUPPLIES BY MAKE AND MODEL.

"BIDDERS MUST CLEARLY INDICATE WHETHER THEIR BIDS ARE BASED ON A BRAND NAME ITEM OR ON AN "OR EQUAL" ITEM BY FURNISHING THE INFORMATION REQUIRED BELOW. IF THE BIDDER DOES NOT IDENTIFY THE BRAND NAME OR DESCRIBE IN FULL THE "OR EQUAL" ITEM WHICH IS OFFERED, AS PROVIDED IN (1) AND (2) BELOW, THE BID WILL BE REJECTED.'

YOUR BID SUBMITTED IN RESPONSE TO THE INVITATION DID NOT SHOW THE BRAND NAME AND MODEL NUMBER OF THE MECHANICAL ATTACHMENTS YOU WERE OFFERING TO FURNISH AS REQUIRED BY THE ABOVE PARAGRAPH AND WAS, THEREFORE, REJECTED BY THE DEPARTMENT OF THE NAVY AS NOT BEING RESPONSIVE TO THE INVITATION.

SECTION 2305, TITLE 10, U.S. CODE, WHICH IS A BASIC AUTHORITY FOR AGENTS OF THE GOVERNMENT TO ENTER INTO CONTRACTS PROVIDES "AWARDS SHALL BE MADE * * * TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.'

IN YOUR LETTER OF DECEMBER 19, YOU CONTEND THAT WHILE YOU DID NOT SHOW ON PAGE 3 OF THE INVITATION THE BRAND NAME OF THE EQUIPMENT YOU OFFERED TO FURNISH, YOU DID INDICATE ON PAGE 4 OF THE INVITATION, UNDER THE PARAGRAPH ENTITLED INSPECTION, THAT THE NAME OF THE MANUFACTURER OF THE EQUIPMENT WAS THE ZEPHYR MANUFACTURING CO. OF INGLEWOOD, CALIFORNIA. WHILE YOU DID INDICATE THE NAME OF THE MANUFACTURER OF THE EQUIPMENT ON PAGE 4 OF THE INVITATION, PAGE 3 OF THE INVITATION REQUIRED THAT YOU NOT ONLY GIVE THE BRAND NAME OF THE EQUIPMENT BUT ALSO THE MODEL NUMBER THEREOF, WHICH YOU FAILED TO DO. A SPACE WAS PROVIDED IN THE INVITATION FOR BIDDERS TO SHOW THE INFORMATION AND PROVIDED THAT THE FAILURE TO SHOW THE INFORMATION WOULD RENDER THE BID NON-RESPONSIVE.

UNDER THE LAW A BID IS REQUIRED TO BE COMPLETE AND RESPONSIVE TO THE INVITATION IN ALL MATERIAL RESPECTS AT THE TIME FIXED IN THE INVITATION FOR THE OPENING OF THE BIDS. AFTER THE OPENING, BIDS MAY NOT BE CHANGED OR MODIFIED. THE GOVERNMENT PURCHASING OFFICERS ARE REQUIRED TO GIVE ALL INTERESTED BIDDERS AN EQUAL OPPORTUNITY TO BID AND THE GOVERNMENT IS DESIROUS OF OBTAINING THE BEST PRICE POSSIBLE. IT IS FOR THESE REASONS THAT THE INVITATION FOR BIDS SHOULD BE DRAWN IN SUCH A MANNER TO FACILITATE BIDDERS IN GIVING THE REQUIRED INFORMATION SO THAT THERE MAY BE NO QUESTION OF FAVORITISM OR FRAUD AND THAT ALL BIDS MAY BE CONSIDERED FOR AWARD. THE REASON WHY THE CONTRACTING OFFICER DID NOT TAKE ADVANTAGE OF YOUR LOWER PRICE WAS DUE ENTIRELY TO YOUR OWN ACTIONS IN FAILING TO GIVE THE REQUIRED INFORMATION AS SPECIFICALLY REQUIRED BY THE INVITATION.

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO LEGAL BASIS UPON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.