B-141623, APRIL 7, 1960, 39 COMP. GEN. 695

B-141623: Apr 7, 1960

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ALL BIDDERS BEING CHARGEABLE WITH NOTICE OF THE LAW AND HAVING NO RIGHT TO HAVE THE BIDS EVALUATED ON ANY BASIS OTHER THAN IN ACCORDANCE WITH SUCH LAW. A BIDDER WHO ESTABLISHES THAT THE COST OF THE FOREIGN PRODUCTS PROPOSED TO BE FURNISHED IS LESS THAN THE COST OF THE DOMESTIC PRODUCTS AT EQUIVALENT PROCESSING LEVELS BASED ON A PROPER EVALUATION OF BIDS UNDER THE BUY AMERICAN ACT. RATHER THAN ON THE BASIS OF EXCLUDING DOMESTIC PROCESSING COSTS AS PRESCRIBED IN THE INVITATION MAY HAVE HIS BID CONSIDERED FOR AWARD ON THE BASIS OF THE LAW AND IN THE ABSENCE OF ANY EVIDENCE THAT CONSIDERATION WOULD BE PREJUDICIAL TO THE OTHER BIDDERS. 1960: REFERENCE IS MADE TO LETTER OF JANUARY 20. THE TWO LOWEST BIDS RECEIVED WERE SUBMITTED BY THE ENGLISH ELECTRIC EXPORT AND TRADING COMPANY.

B-141623, APRIL 7, 1960, 39 COMP. GEN. 695

BIDS - BUY AMERICAN ACT - INVITATION REQUIREMENTS CONTRARY TO LAW THE FAILURE OF AN AMERICAN BIDDER, WHO PROPOSES TO FURNISH BOTH DOMESTIC AND FOREIGN COMPONENTS, TO COMPUTE THE FOREIGN PRODUCT COST ON THE BASIS OF THE ELIMINATION OF THE DOMESTIC PROCESSING COSTS ON THE DOMESTIC ITEMS AS PRESCRIBED IN THE INVITATION WHICH COMPUTATION WOULD BE CONTRARY TO THE (BUY AMERICAN ACT, 41 U.S.C. 10A, AND EXECUTIVE ORDER NO. 10582, WHICH CONTEMPLATE FOR THE PURPOSE OF COMPARISON OF DOMESTIC AND FOREIGN COSTS THAT THE COSTS OF EACH MUST BE COMPUTED IN A SIMILAR MANNER, DOES NOT REQUIRE REJECTION OF THE BID FOR TECHNICAL NONCOMPLIANCE WITH THE INVITATION. CONSIDERATION OF A BID SUBMITTED BY AN AMERICAN BIDDER WHO DID NOT EXCLUDE DOMESTIC PROCESSING COSTS IN ESTABLISHING THE PERCENTAGE COST OF THE FOREIGN COMPONENTS TO BE FURNISHED, EVEN THOUGH THE INVITATION REQUIRED COMPUTATION ON SUCH BASIS CONTRARY TO THE BUY AMERICAN ACT, 41 U.S.C. 10A, AND EXECUTIVE ORDER NO. 10582, WHICH REQUIRE EVALUATION OF COMBINATION FOREIGN AND DOMESTIC COMPONENT BIDS ON A SIMILAR BASIS, WOULD NOT BE PREJUDICIAL TO THE OTHER BIDDERS WHO HAD THE SAME INFORMATION AND WHO DID NOT INTERPRET THE REQUIREMENTS IN THE SAME MANNER, ALL BIDDERS BEING CHARGEABLE WITH NOTICE OF THE LAW AND HAVING NO RIGHT TO HAVE THE BIDS EVALUATED ON ANY BASIS OTHER THAN IN ACCORDANCE WITH SUCH LAW. A BIDDER WHO ESTABLISHES THAT THE COST OF THE FOREIGN PRODUCTS PROPOSED TO BE FURNISHED IS LESS THAN THE COST OF THE DOMESTIC PRODUCTS AT EQUIVALENT PROCESSING LEVELS BASED ON A PROPER EVALUATION OF BIDS UNDER THE BUY AMERICAN ACT, 41 U.S.C. 10A, AND EXECUTIVE ORDER NO. 10582, RATHER THAN ON THE BASIS OF EXCLUDING DOMESTIC PROCESSING COSTS AS PRESCRIBED IN THE INVITATION MAY HAVE HIS BID CONSIDERED FOR AWARD ON THE BASIS OF THE LAW AND IN THE ABSENCE OF ANY EVIDENCE THAT CONSIDERATION WOULD BE PREJUDICIAL TO THE OTHER BIDDERS.

TO THE SECRETARY OF THE INTERIOR, APRIL 7, 1960:

REFERENCE IS MADE TO LETTER OF JANUARY 20, 1960, WITH ENCLOSURES, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR TRANSMITTING, IN RESPONSE TO OUR REQUEST, A REPORT AND RELATING DOCUMENTS RELATIVE TO THE PROTEST OF THE ENGLISH ELECTRIC EXPORT AND TRADING COMPANY, LTD., AGAINST THE AWARD OF A CONTRACT TO THE BALDWIN 1LIMA-1HAMILTON CORPORATION, UNDER INVITATION FOR BIDS NO. DS-5234, ISSUED BY THE BUREAU OF RECLAMATION.

UNDER THE CITED INVITATION THE BUREAU OF RECLAMATION SOUGHT BIDS ON EIGHT HYDRAULIC TURBINES FOR DELIVERY AT FLAGSTAFF, ARIZONA, FOR THE POWER PLANT AT GLEN CANYON DAM. THE TWO LOWEST BIDS RECEIVED WERE SUBMITTED BY THE ENGLISH ELECTRIC EXPORT AND TRADING COMPANY, LTD., HEREINAFTER REFERRED TO AS ENGLISH ELECTRIC COMPANY, IN THE AMOUNT OF $6,214,552, AND BALDWIN- 1LIMA-1HAMILTON CORPORATION, IN THE AMOUNT OF $6,392,000, BOTH OF WHICH PROVIDED FOR DELIVERY F.O.B. DESTINATION, AND EXCLUDED CHARGES FOR THE SERVICES OF AN ERECTING ENGINEER. ENGLISH ELECTRIC COMPANY SUBMITTED WITH ITS BID BUREAU OF RECLAMATION FORM NO. 7-1612, REPRESENTING THAT IT WOULD FURNISH SUPPLIES SUBSTANTIALLY ALL OF FOREIGN ORIGIN. BALDWIN-1LIMA- 1HAMILTON CORPORATION SUBMITTED WITH ITS BID BUREAU OF RECLAMATION FORM NO. 7-1480, REPRESENTING THAT IT PROPOSED TO FURNISH SUPPLIES OF FOREIGN ORIGIN EQUAL TO AN ESTIMATED 42.7 PERCENT OF ITS TOTAL BID PRICE, COMPUTED IN ACCORDANCE WITH ITS INTERPRETATION OF THE LANGUAGE OF THE SAID FORM.

AFTER OPENING OF THE BIDS, ENGLISH ELECTRIC COMPANY, BY LETTERS OF DECEMBER 15, 1959, TO THE BUREAU OF RECLAMATION, AND DECEMBER 31, 1959, TO THIS OFFICE, PROTESTED AGAINST THE CONSIDERATION OF THE BID OF BALDWIN- 1LIMA-1HAMILTON CORPORATION, ON THE GROUND THAT THE FIGURES FURNISHED BY THE LATTER FIRM IN THE REFERRED-TO FORM NO. 7-1480 DID NOT CONFORM TO THE DIRECTIONS STATED THEREIN. BOTH OF THE FORMS MENTIONED WERE PRESCRIBED BY THE BUREAU TO IMPLEMENT THE PROVISIONS OF THE BUY AMERICAN ACT, 41 U.S.C. 10A, AND EXECUTIVE ORDER NO. 10582, DATED DECEMBER 1954, 19 FR 8723. FAR AS CONCERNS THIS CASE THE CITED ACT PROVIDES THAT---

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AND UNLESS THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT CONCERNED SHALL DETERMINE IT TO BE INCONSISTENT WITH THE PUBLIC INTEREST, OR THE COST TO BE UNREASONABLE, * * * ONLY SUCH MANUFACTURED ARTICLES, MATERIALS, AND SUPPLIES AS HAVE BEEN MANUFACTURED IN THE UNITED STATES SUBSTANTIALLY ALL FROM ARTICLES, MATERIALS, OR SUPPLIES MINED, PRODUCED, OR MANUFACTURED, AS THE CASE MAY BE, IN THE UNITED STATES, SHALL BE ACQUIRED FOR PUBLIC USE.

IN ORDER THAT THE PROVISIONS OF THAT ACT BE UNIFORMLY ADMINISTERED, AND FOR OTHER PURPOSES, THE PRESIDENT OF THE UNITED STATES ISSUED EXECUTIVE ORDER NO. 10582, WHICH PROVIDES IN PERTINENT PART, AS FOLLOWS:

SEC. 2. (A) FOR THE PURPOSES OF THIS ORDER MATERIALS SHALL BE CONSIDERED TO BE OF FOREIGN ORIGIN IF THE COST OF THE FOREIGN PRODUCTS USED IN SUCH MATERIALS CONSTITUTES FIFTY PERCENTUM OR MORE OF THE COST OF ALL THE PRODUCTS USED IN SUCH MATERIALS.

(B) FOR THE PURPOSES OF THE SAID ACT OF MARCH 3, 1933, AND OTHER LAWS REFERRED TO IN THE FIRST PARAGRAPH OF THE PREAMBLE OF THIS ORDER, THE BID OR OFFERED PRICE OF MATERIALS OF DOMESTIC ORIGIN SHALL BE DEEMED TO BE UNREASONABLE, OR THE PURCHASE OF SUCH MATERIALS SHALL BE DEEMED TO BE INCONSISTENT WITH THE PUBLIC INTEREST, IF THE BID OR OFFERED PRICE THEREOF EXCEEDS THE SUM OF THE BID OR OFFERED PRICE OF LIKE MATERIALS OF FOREIGN ORIGIN AND A DIFFERENTIAL COMPUTED AS PROVIDED IN SUBSECTION (C) OF THIS SECTION.

(C) THE EXECUTIVE AGENCY CONCERNED SHALL IN EACH INSTANCE DETERMINE THE AMOUNT OF THE DIFFERENTIAL REFERRED TO IN SUBSECTION (B) OF THIS SECTION ON THE BASIS OF ONE OF THE FOLLOWING-DESCRIBED FORMULAS, SUBJECT TO THE TERMS THEREOF:

(1) THE SUM DETERMINED BY COMPUTING SIX PERCENTUM OF THE BID OR OFFERED PRICE OF MATERIALS OF FOREIGN ORIGIN.

IN A PREVIOUS CASE WHICH YOU SUBMITTED TO US, AND WHICH ALSO INVOLVED THE SUBJECT STATUTE AND EXECUTIVE ORDER, WE HELD IN DECISION DATED JULY 12, 1955, 35 COMP. GEN. 7, THAT WHILE THE SAID ORDER CONTAINS NO DEFINITION OF THE WORD "COST" IT IS CLEAR THAT FOR THE PURPOSE OF COMPARING FOREIGN AND DOMESTIC COMPONENTS, THE COST OF EACH MUST BE COMPUTED IN A SIMILAR MANNER INSOFAR AS POSSIBLE. FORM NO. 7 1480 WAS PROMULGATED THEREAFTER TO FACILITATE FUTURE DETERMINATIONS REQUIRED TO BE MADE BY THE BUREAU OF RECLAMATION UNDER THE ABOVE-QUOTED EXECUTIVE ORDER, PURPORTEDLY PURSUANT TO THAT DECISION. ITEMS 3 AND 4 OF FORM NO. 7-1480, PROVIDE AS FOLLOWS:

3. TOTAL BID PRICE ( ITEM 1 PLUS ITEM 2) --------- $---------

4. THE TOTAL DERIVED BY SUBSTRACTING THE SUM OF THE FOLLOWING SUBITEMS (A) THROUGH (E) FROM ITEM 3 WILL REPRESENT THE COST OF ALL OF THE PRODUCTS, BOTH FOREIGN AND DOMESTIC, USED IN THE ARTICLES, MATERIALS, AND SUPPLIES TO BE FURNISHED HEREUNDER:

(B) FABRICATION OR PROCESSING COSTS, IF ANY, OF EITHER FOREIGN OR DOMESTIC PRODUCTS IN BIDDER'S UNITED STATES PLANT OR AT OTHER POINT OF FABRICATION OR PROCESSING IN UNITED STATES.

IT WOULD APPEAR THAT THE QUOTED SECTION (B) OF THE FORM MAY HAVE BEEN INTENDED TO COVER THE PARTICULAR FACTS AND CIRCUMSTANCES INVOLVED IN THE CITED DECISION WHERE CERTAIN ASSEMBLING AND TESTING OPERATIONS WERE TO BE PERFORMED IN THE UNITED STATES PLANT OF THE BIDDER ON COMPONENTS, SOME OF WHICH WERE PRODUCED IN THE UNITED STATES AND SOME ABROAD. IN THE PRESENT CASE, IT APPEARS THAT THE FOREIGN COMPONENTS OF THE TURBINES PROPOSED TO BE FURNISHED BY BALDWIN-1LIMA-1HAMILTON WILL BE SHIPPED DIRECTLY TO THE SITE OF THE WORK FROM EUROPE, AND THAT THE DOMESTIC COMPONENTS WILL BE SHIPPED SEPARATELY TO THE SITE. FINAL INSTALLATION OF THE TURBINES AT THE DAM SITE IS TO BE PERFORMED UNDER A SEPARATE CONTRACT TO BE AWARDED HEREAFTER. OBVIOUSLY, IN THIS SITUATION THE EXCLUSION OF DOMESTIC PROCESSING COSTS OF DOMESTIC COMPONENTS, AND THE INCLUSION OF FOREIGN PROCESSING COSTS OF FOREIGN COMPONENTS, WILL NOT DETERMINE THE CORRECT PROPORTIONATE COSTS OF THE RESPECTIVE COMPONENTS OF THE TURBINES TO BE ASSEMBLED THEREFROM.

BALDWIN-1LIMA-1HAMILTON PROPOSES TO FURNISH CERTAIN SUBASSEMBLIES TO BE MANUFACTURED IN BELGIUM AND SHIPPED DIRECTLY TO THE SITE, AND CERTAIN OTHERS TO BE MANUFACTURED BY IT OR ITS SUBCONTRACTORS IN THIS COUNTRY. COMPLETING FORM NO. 7-1480, THIS BIDDER ADMITTEDLY DID NOT EXCLUDE ITS ESTIMATED FACTORY LABOR COSTS ON DOMESTIC PRODUCTS IN FILLING OUT THE FORM. WHILE THE LANGUAGE OF THE FORM APPEARS TO REQUIRE THE ELIMINATION OF DOMESTIC PROCESSING COSTS OF DOMESTIC PRODUCTS, WE BELIEVE THAT THIS IS, IN THE SITUATION HERE PRESENTED, CONTRARY TO THE INTENT OF THE ACT AND TO THE DIRECTIVES SET FORTH IN THE EXECUTIVE ORDER. FOR THAT REASON, IF THE USE OF FORM NO. 7-1480 IS TO BE CONTINUED, REVISION THEREOF WILL BE NECESSARY.

ALTHOUGH THE BID OF BALDWIN-1LIMA-1HAMILTON FAILED TO COMPUTE THE PERCENTAGE OF FOREIGN PRODUCT COST IN THE MANNER WHICH MAY BE ARGUED TO BE REQUIRED BY A LITERAL READING OF FORM NO. 7-1480, WE DO NOT FEEL THAT ITS FAILURE TO DO SO NECESSARILY AFFECTS ITS BID SINCE COMPUTATION IN THAT MANNER WOULD CONTRAVENE THE STATUTE AND EXECUTIVE ORDER. BALDWIN-1LIMA- 1HAMILTON SUBMITTED A BID IN A SUM CERTAIN, AND THE QUESTION TO BE DETERMINED IS WHETHER THAT BID SHOULD BE CONSIDERED AND WHETHER IT CAN BE EVALUATED PROPERLY AS A FOREIGN OR A DOMESTIC BID. IT IS CLEAR THAT SUCH AN EVALUATION MUST BE MADE IN ACCORDANCE WITH THE PROVISIONS OF THE EXECUTIVE ORDER, AND IT IS OUR OPINION THAT BALDWIN 1LIMA-1HAMILTON IS ENTITLED TO HAVE ITS BID CONSIDERED AS A DOMESTIC BID IF IN FACT THE BID QUALIFIES AS A DOMESTIC BID UNDER THE EXECUTIVE ORDER, REGARDLESS OF ANY INCORRECT CONSTRUCTION OF THE LAW EMBODIED IN THE LANGUAGE OF THE INVITATION.

WE BELIEVE IT IS IMPORTANT TO DISTINGUISH THIS SITUATION FROM THE USUAL CASE OF FAILURE TO COMPLY WITH THE TERMS OR CONDITIONS OF AN INVITATION. WE HAVE HELD THAT A BID WHICH IS NOT RESPONSIVE TO AN INVITATION MAY NOT BE CONSIDERED IF THE DEFICIENCY PERTAINS TO ANY MATERIAL FACTOR, THAT IS, ONE AFFECTING THE PRICE, QUALITY, OR QUANTITY OF THE ARTICLES OR SERVICES TO BE FURNISHED. IN THE PRESENT CASE, THE INFORMATION REQUESTED BY FORM NO. 7-1480 WAS STATED TO BE THE BASIS FOR EVALUATION OF BIDS PROPOSING TO INCLUDE A SUBSTANTIAL PROPORTION OF FOREIGN COMPONENTS. THE EVALUATION OF BIDS IS, OF COURSE, A MATERIAL FACTOR. HOWEVER, IN THE USUAL CASE WHERE A REQUIREMENT OF AN INVITATION HAS NOT BEEN MET, THE REQUIREMENT IS ONE WHICH HAS BEEN DEVISED BY THE PROCURING AGENCY TO ASSIST IN FULFILLING ITS NEEDS. IN THE INSTANT CASE, EVEN THOUGH TECHNICALLY THERE WAS A DEVIATION FROM THE LITERAL REQUIREMENTS OF THE INVITATION BY BALDWIN-1LIMA- 1HAMILTON, WE BELIEVE THAT THE LAW AND THE IMPLEMENTING EXECUTIVE ORDER ARE PARAMOUNT TO ANY REQUIREMENT OF THE INVITATION AND MUST BE FOLLOWED IN THE EVALUATION OF BIDS. INDEED, FORM NO. 7-1480 ITSELF SHOWS ITS PURPOSE TO BE TO IMPLEMENT THE BUY AMERICAN ACT AND EXECUTIVE ORDER NO. 10582. SUCH CIRCUMSTANCES, WHERE A BID'S COMPLIANCE WITH THE PARAMOUNT STATUTORY REQUIREMENT RESULTS IN TECHNICAL NONCOMPLIANCE WITH THE LITERAL LANGUAGE OF AN INVITATION, IT IS OUR VIEW THAT THE BID NEED NOT NECESSARILY BE REJECTED.

IT IS, OF COURSE, ESSENTIAL THAT A BIDDER CLAIMING THE PREFERENCE ACCORDED A DOMESTIC BIDDER ESTABLISH THAT THE COST OF FOREIGN PRODUCTS IN HIS BID IS LESS THAN THE COST OF DOMESTIC PRODUCTS. SUFFICIENT INFORMATION ON THIS POINT SHOULD BE SUBMITTED WITH THE BID TO PRECLUDE ANY CHANGE, AFTER BID OPENING, IN THE CLAIMED PERCENTAGES OF FOREIGN AND DOMESTIC PRODUCTS WHICH WOULD AFFECT EITHER THE RELATIVE STANDING OF HIS BID OR ITS STATUS AS A DOMESTIC BID. HOWEVER, WE DO NOT BELIEVE THAT THE DETAILED COST INFORMATION REQUIRED TO ESTABLISH THE FOREIGN OR DOMESTIC STATUS OF A BID NEED BE MADE PUBLIC AS A PART OF THE BID. IT IS SUFFICIENT, IN OUR OPINION, FOR THE PROCURING AGENCY TO REQUIRE THE BIDDER TO SUBMIT WITH HIS BID A STATEMENT LISTING ANY FOREIGN MATERIALS, PRODUCTS, OR COMPONENTS ENTERING INTO THE SUPPLIES TO BE FURNISHED, WITH A STATEMENT OF THE PERCENTAGE OF THE COST OF ALL MATERIALS, PRODUCTS, OR COMPONENTS REPRESENTED BY SUCH FOREIGN ITEMS, SUBJECT TO VERIFICATION BY THE AGENCY BEFORE AWARD. IN THE CASE OF AWARD TO A DOMESTIC BIDDER PROPOSING TO USE A SUBSTANTIAL PERCENTAGE OF FOREIGN PRODUCTS, THE USE OF FOREIGN PRODUCTS OTHER THAN THOSE DISCLOSED IN ITS BID MIGHT PROPERLY BE PROHIBITED UNDER PENALTY OF PRICE REDUCTION, LIQUIDATED DAMAGES, OR OTHER SANCTIONS.

IN THE PRESENT CASE THERE IS NO SUGGESTION THAT THERE HAS BEEN ANY CHANGE IN THE QUANTUM OF FOREIGN PRODUCTS PROPOSED BY BALDWIN-1LIMA 1HAMILTON IN ITS BID TO BE USED IN THE EVENT IT RECEIVES THE AWARD. THE QUESTION TO BE DECIDED IS WHETHER THE COST OF DOMESTIC PRODUCTS TO BE USED EXCEEDS THE COST OF SUCH FOREIGN PRODUCTS. IN THIS CONNECTION, IT SHOULD BE POINTED OUT THAT THE ADEQUACY OF FORM NO. 7-1480 TO EFFECTUATE THE PURPOSE OF THE ACT AND THE EXECUTIVE ORDER MAY BE QUESTIONED ON GROUNDS OTHER THAN THE EXCLUSION OF DOMESTIC FABRICATION AND PROCESSING COSTS, FOR EXAMPLE, WITH RESPECT TO THE MEANING OF THE WORD "OVERHEAD" UNDER CLAUSE 4 (D) AND TO THE TREATMENT OF THE COSTS OF TRANSPORTING PRODUCTS FROM THE PLANT OF A SUBCONTRACTOR TO THAT OF THE BIDDER. IF YOUR DEPARTMENT IS FURNISHED EVIDENCE BY BALDWIN-1LIMA 1HAMILTON WHICH CLEARLY DEMONSTRATES THAT THE COST OF FOREIGN PRODUCTS PROPOSED BY ITS BID TO BE USED IS LESS THAN THE COST OF DOMESTIC PRODUCTS, AT EQUIVALENT LEVELS OF PROCESSING, ITS BID MAY BE CONSIDERED AND EVALUATED AS A DOMESTIC BID.

THE RECORD BEFORE US REVEALS NO BASIS FOR HOLDING THAT CONSIDERATION AND EVALUATION OF ITS BID IN THIS MANNER WILL PERMIT BALDWIN-1LIMA 1HAMILTON TO IMPROVE ITS POSITION IN THE LIGHT OF THE BIDS AS OPENED OR GIVE IT ANY ADVANTAGE OVER OTHER BIDDERS. NOR DO WE BELIEVE THIS COURSE OF ACTION WILL RESULT IN PREJUDICE TO OTHER BIDDERS. IT HAS BEEN SUGGESTED THAT BIDDERS HAD A RIGHT TO RELY UPON THE EVALUATION OF BIDS WHICH PROPOSED TO USE A COMBINATION OF FOREIGN AND DOMESTIC COMPONENTS ON THE BASIS APPARENTLY CONTEMPLATED BY FORM NO. 7-1480. TWO ASPECTS OF THIS CONTENTION MAY BE CONSIDERED. FIRST, IT MAY BE ARGUED THAT SOME BIDDERS MAY THEREBY HAVE BEEN DETERRED FROM BIDDING OR INVESTIGATING THE POSSIBILITY OF BIDDING ON A COMBINATION BASIS. WE THINK THE SHORT ANSWER TO THIS POSITION IS THAT BIDDERS HAVE NO RIGHT TO EXPECT BIDS TO BE EVALUATED OTHER THAN IN ACCORDANCE WITH LAW. SO FAR AS ENGLISH ELECTRIC AND OTHER BIDDERS, WHO MAY HAVE CONSIDERED BUT DID NOT BID ON A COMBINATION BASIS, ARE CONCERNED, THEY DID NOT "KNOW" ANY MORE THAN BALDWIN-1LIMA-1HAMILTON HOW THE FOREIGN PERCENTAGE SHOULD BE COMPUTED; ALL HAD EXACTLY THE SAME INVITATION AND THE SAME FORM NO. 7-1480, AND WERE EQUALLY CHARGEABLE WITH NOTICE OF THE APPLICABLE LAW. WE CAN FIND NO PREJUDICE TO A BIDDER IN THE FACT THAT ANOTHER BIDDER ARRIVES AT A DIFFERENT INTERPRETATION OF CERTAIN REQUIREMENTS SPECIFICALLY INCLUDED IN AN INVITATION TO IMPLEMENT APPLICABLE STATUTORY CONDITIONS SO LONG AS AWARD IS MADE IN ACCORDANCE WITH LAW. THE SECOND ASPECT OF PREJUDICE WHICH HAS BEEN SUGGESTED IS, IN ESSENCE, AN ARGUMENT THAT OTHER BIDDERS MIGHT HAVE SUBMITTED LOWER BIDS HAD THEY KNOWN THAT A COMBINATION BID WOULD BE EVALUATED ON THE BASIS FOR WHICH BALDWIN-1LIMA-1HAMILTON CONTENDS. WE CANNOT AGREE THAT A BIDDER WHO SUBMITS A HIGHER BID ON ONE BASIS IN RELIANCE UPON A SUPPOSED ADVANTAGE OVER COMPETITORS BIDDING ON A DIFFERENT BASIS IS PREJUDICED IF THAT RELIANCE TURNS OUT TO BE ILL FOUNDED. WE HAVE CONSIDERED THE POSSIBILITY OF THE REJECTION OF ALL BIDS. AS WE HAVE OFTEN STATED, HOWEVER, THE READVERTISING OF A PROCUREMENT AFTER BIDS HAVE BEEN DISCLOSED IS DETRIMENTAL TO THE SYSTEM OF SEALED BIDDING AND SHOULD BE AVOIDED WHENEVER POSSIBLE. IN THE PRESENT CASE, WE BELIEVE THAT THE UNDESIRABLE ASPECTS OF SUCH A COURSE OF ACTION FAR OUTWEIGHT ANY POSSIBLE ADVANTAGE TO THE GOVERNMENT. SINCE WE DO NOT BELIEVE CONSIDERATION OF THE BIDS AS SUBMITTED GIVES UNDUE ADVANTAGE OR WORKS ANY REAL PREJUDICE TO ANY BIDDER, WE ARE OF THE OPINION THAT ALL BIDS SHOULD BE CONSIDERED AND AN AWARD MADE AFTER EVALUATION ON THE BASIS HEREIN INDICATED.

ONE FURTHER MATTER MUST BE CONSIDERED. OBJECTION HAS BEEN MADE BY ENGLISH ELECTRIC TO THE INABILITY OF BALDWIN-1LIMA-1HAMILTON TO COMPLY, ON THE BASIS OF ITS BID, WITH CERTAIN ASSEMBLY AND ALIGNMENT REQUIREMENTS OF THE SPECIFICATIONS. IT IS THE VIEW OF THE BUREAU OF RECLAMATION THAT THESE REQUIREMENTS CAN AND WILL BE REQUIRED TO BE MET BY BALDWIN-1LIMA- 1HAMILTON DESPITE THE FACT THAT FOREIGN AND DOMESTIC COMPONENTS ARE TO BE SHIPPED SEPARATELY TO THE SITE OF INSTALLATION. WE HAVE NO REASON TO QUESTION THE BUREAU'S TECHNICAL JUDGMENT IN THIS AREA.