B-141897, MAY 5, 1960

B-141897: May 5, 1960

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W. HOVERMILL COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 2. THE BID OPENING DATE WAS CHANGED FROM JANUARY 28. CERTAIN CHANGES WERE MADE IN THE SPECIFICATIONS AND DRAWINGS. THE RECORD INDICATES THAT SEVEN BIDS WERE RECEIVED IN AMOUNTS RANGING FROM $15. THAT THE LOWEST BID WAS SUBMITTED BY KING FLOOR SERVICE. THAT THE HIGHEST BID WAS SUBMITTED BY YOUR COMPANY. THE EXTENSION WAS NOT GRANTED INASMUCH AS IT WAS FELT THAT SINCE SIX OTHER FLOORING CONTRACTORS SUBMITTED BIDS FOR THE WORK INVOLVED. THE TIME ALLOWED FOR SUBMISSION OF BIDS WAS SUFFICIENT. A CONTRACT FOR THE INSTALLATION OF THE FLOOR TILE AT THE COMMUNICATIONS CENTER WAS AWARDED TO KING FLOOR SERVICE. FIVE REASONS ARE GIVEN AS TO WHY THE CONTRACT AWARDED TO THE KING FLOOR SERVICE SHOULD BE SET ASIDE.

B-141897, MAY 5, 1960

TO B. W. HOVERMILL COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 2, 1960, AND SUBSEQUENT LETTERS DATED FEBRUARY 16 AND 29, 1960, FROM YOUR ATTORNEY, FEDERICK STEINMANN, PROTESTING THE AWARD OF A CONTRACT BY THE DEPARTMENT OF THE ARMY UNDER INVITATION NO. ENG-49-080-60-39-/42), ISSUED ON JANUARY 20, 1960.

BY THE REFERRED-TO INVITATION, THE U.S. ARMY ENGINEER DISTRICT, WASHINGTON, CORPS OF ENGINEERS, REQUESTED BIDS--- TO BE OPENED JANUARY 28, 1960--- FOR FURNISHING MATERIALS AND LABOR AND PERFORMING THE WORK NECESSARY FOR THE INSTALLATION OF FLOOR TILE AT THE COMMUNICATIONS CENTER, EAST COAST RELAY STATION, FORT DETRICK, MARYLAND. BY ADDENDUM NO. 1 DATED JANUARY 22, 1960, THE BID OPENING DATE WAS CHANGED FROM JANUARY 28, 1960, TO FEBRUARY 2, 1960, AND BY ADDENDUM NO. 2 DATED JANUARY 29, 1960, CERTAIN CHANGES WERE MADE IN THE SPECIFICATIONS AND DRAWINGS. THE RECORD INDICATES THAT SEVEN BIDS WERE RECEIVED IN AMOUNTS RANGING FROM $15,017 TO $29,749.20, THAT THE LOWEST BID WAS SUBMITTED BY KING FLOOR SERVICE, AND THAT THE HIGHEST BID WAS SUBMITTED BY YOUR COMPANY. PRIOR TO BID OPENING YOUR COMPANY REQUESTED AN EXTENSION IN THE TIME ALLOWED FOR SUBMITTING BIDS ON THE BASIS THAT YOU HAD NOT BEEN AFFORDED SUFFICIENT TIME TO PREPARE YOUR BID. THE EXTENSION WAS NOT GRANTED INASMUCH AS IT WAS FELT THAT SINCE SIX OTHER FLOORING CONTRACTORS SUBMITTED BIDS FOR THE WORK INVOLVED, THE TIME ALLOWED FOR SUBMISSION OF BIDS WAS SUFFICIENT. FEBRUARY 4, 1960, A CONTRACT FOR THE INSTALLATION OF THE FLOOR TILE AT THE COMMUNICATIONS CENTER WAS AWARDED TO KING FLOOR SERVICE.

IN THE LETTER SUBMITTED BY YOUR ATTORNEY, FIVE REASONS ARE GIVEN AS TO WHY THE CONTRACT AWARDED TO THE KING FLOOR SERVICE SHOULD BE SET ASIDE. WITH RESPECT TO THE FIRST REASON CONCERNING THE INSUFFICIENCY OF TIME AFFORDED FOR THE PREPARATION OF BIDS, IT IS SIGNIFICANT TO OBSERVE THAT ALTHOUGH A PERIOD OF 13 DAYS WAS ALLOWED FOR PREPARATION OF BIDS, YOUR REPRESENTATIVE DID NOT PICK UP A SET OF THE PLANS AND SPECIFICATIONS, INCLUDING ADDENDA NOS. 1 AND 2, UNTIL THE DAY BEFORE THE DATE OF THE BID OPENING. THEREFORE, IT WOULD APPEAR THAT LACK OF TIME TO PROPERLY PREPARE YOUR BID WAS DUE IN A LARGE MEASURE TO YOUR OWN DELAY IN OBTAINING THE REQUIRED DOCUMENTS. WHILE IT IS CONCEDED THAT THE TIME ALLOWED FOR REVISING BIDS, AS A RESULT OF ADDENDUM NO. 2, WAS SHORT, IT IS REPORTED THAT THE CHANGES MADE BY THE ADDENDUM WERE MINOR AND REQUIRED LITTLE EFFORT ON THE PART OF THE ESTIMATOR. FURTHERMORE, ALL OF THE BIDDERS WERE REQUIRED TO MEET THE SAME DEADLINE WHICH, IN FACT, WAS MET WITHOUT ANY APPARENT HARDSHIP. WE DO NOT AGREE WITH YOUR CONTENTION THAT THE SPREAD IN BIDS IS EVIDENCE THAT THE BIDS WERE NOT CAREFULLY PREPARED BECAUSE OF THE SHORT TIME PERMITTED. IT IS OUR VIEW THAT SUCH SPREAD IS INDICATIVE OF THE COMPETITION OBTAINED BY THE INVITATION FOR BIDS. IT IS OUR OPINION, THEREFORE, THAT THE ADMINISTRATIVE ACTION IN DECLINING YOUR REQUEST TO EXTEND THE TIME FOR BID OPENING WAS NOT SO UNREASONABLE AS TO REQUIRE OBJECTION BY OUR OFFICE.

YOUR SECOND REASON IS THAT THE INVITATION DID NOT SPECIFY THE ADHESIVE WHICH WAS TO BE USED WITH THE VINYL FLOORING. YOU STATE THAT THE INVITATION PROVIDED THAT THE ADHESIVE SHALL BE APPROVED BY THE MANUFACTURER OF THE TILE AND SATISFACTORY EVIDENCE OF SUCH APPROVAL SHALL BE FURNISHED TO THE CONTRACTING OFFICER; AND THAT THE ADHESIVE SHALL HOLD THE UNITS PERMANENTLY IN PLACE. YOU STATE THAT THE LATTER PHRASE ATTEMPTS TO THROW THE BURDEN ON THE BIDDER TO DETERMINE THE QUALITY OF THE MATERIALS WHICH HE SHALL USE AND IS IN CONFLICT WITH THE FORMER PHRASE WHICH READS THAT THE ADHESIVE SHALL BE APPROVED BY THE MANUFACTURER OF THE TILE. IT IS ALSO CONTENDED THAT SPECIFICATION MIL-20106, OR SOME OTHER QUALITY STANDARD FOR THE ADHESIVE MATERIAL, SHOULD HAVE BEEN SPECIFIED AND THAT THE FAILURE TO SO SPECIFY RENDERS THIS PORTION OF THE CONTRACT AMBIGUOUS. IT IS ADMINISTRATIVELY REPORTED THAT IT IS A COMMON PRACTICE TO SPECIFY A MATERIAL ,APPROVED BY MANUFACTURER," ESPECIALLY IN CASES, AS HERE, WHERE MATERIAL MIGHT BE SPECIFIED WHICH WOULD BE UNSUITABLE FOR THE PRODUCT TO BE USED BY THE BIDDER; AND THAT THE SPECIFICATIONS ARE NOT AMBIGUOUS IN THIS RESPECT, SINCE THE CONTRACTOR COULD ONLY BE REQUIRED TO FURNISH AN "APPROVED" ADHESIVE AND WOULD BE ENTITLED TO A CONTRACT MODIFICATION IF THIS REQUIREMENT WAS CHANGED. IT IS ALSO REPORTED THAT THE CONTRACTING OFFICE DOES NOT HAVE A FEDERAL SPECIFICATION FOR ADHESIVE MATERIAL AND THAT SPECIFICATION MIL-20106, CITED BY YOU AS APPLICABLE TO THE WORK, IS, ACCORDING TO THEIR RECORDS, FOR "MACHINE, BELT FILLING, CALIBER .30, M 1918.'

THE THIRD BASIS FOR YOUR PROTEST THAT THE SPECIFICATIONS ARE DEFECTIVE IS THAT THE ADHESIVE FOR BONDING ALUMINUM TO STEEL WAS INSUFFICIENTLY SPECIFIED IN THE INVITATION. PARAGRAPH 3-02, SECTION 3, PART III OF THE INVITATION SPECIFIES THAT ALUMINUM STRIPS SHALL BE FASTENED OVER METAL SURFACES WITH ONE COAT OF CEMENT, AND PARAGRAPH 3 03, SECTION 3, PART III OF THE INVITATION STATES THAT THE CONTRACTOR SHALL SUBMIT A CERTIFICATE FROM THE PRODUCER OR DISTRIBUTOR TO THE CONTRACTING OFFICER, A CERTIFYING THAT THE CONTACT BOND CEMENT PROPOSED FOR USE IS OF A TYPE WHICH WILL PRESENT GALVANIC OR OTHER DETERIORATION BETWEEN ALUMINUM AND STEEL. YOU STATE THAT THE ABOVE PROVISIONS THROW THE BURDEN ON THE BIDDER TO DEFINE THE STANDARD OF QUALITY WHICH THE GOVERNMENT WILL ACCEPT AND FOR THAT REASON THE INVITATION IS DEFECTIVE. YOU ALSO STATE YOU HAVE BEEN INFORMED BY SPECIALISTS IN THE FIELD THAT ALUMINUM STRIPS CANNOT BE FASTENED TO METAL SURFACES WITH ONE COAT OF CEMENT AND THAT YOU ARE UNABLE TO OBTAIN A CERTIFICATION FROM A PRODUCER OR A DISTRIBUTOR THAT THE CONTACT BOND CEMENT WHICH THEY SUPPLY FOR JOBS IS OF A TYPE WHICH WILL PRESENT GALVANIC ACTION OR OTHER DETERIORATION. IN SUPPORT OF THE ABOVE STATEMENT, YOUR ATTORNEY SUBMITTED BY LETTER DATED FEBRUARY 29, 1960, A LETTER DATED FEBRUARY 22, 1960, RECEIVED FROM ONE OF YOUR DISTRIBUTORS. IN THAT CONNECTION, IT APPEARS FROM THE SPECIFICATIONS THAT THE BIDDER DOES NOT HAVE ANY "BURDEN" BEYOND BIDDING ON THE BASIS OF "ONE COAT OF CEMENT" FOR BONDING ALUMINUM TO STEEL, SINCE HE WOULD NOT BE A GUARANTOR OF THE SUFFICIENCY OF THE SPECIFICATIONS. ALSO, IF IT BECAME NECESSARY TO INCREASE THE SPECIFIED REQUIREMENT, THE CONTRACTOR WOULD BE ENTITLED TO A CHANGE ORDER. WITH RESPECT TO THE REQUIRED CERTIFICATE, IT IS ADMINISTRATIVELY REPORTED THAT THE PROCEDURE IN THE CONTRACTING OFFICE WOULD BE TO ASSIST THE CONTRACTOR IN LOCATING A MANUFACTURER WHO COULD COMPLY WITH THE SPECIFICATIONS, IF SO REQUESTED, AND THAT IF IT DEVELOPED THAT NO SUPPLIER COULD BE FOUND TO GUARANTEE ITS PRODUCT AGAINST GALVANIC ACTION, THE CONTRACTOR WOULD OBVIOUSLY BE RELIEVED OF FURTHER RESPONSIBILITY IN THIS RESPECT.

THE FOURTH GROUND FOR YOUR PROTEST IS THAT THE DRAWINGS FAILED TO ADEQUATELY DEFINE WHAT IS AND WHAT IS NOT TO HAVE COVE BASE AND THAT, THEREFORE, THIS FAILURE RENDERS THE DRAWINGS DEFECTIVE. PARAGRAPH 1 03, SECTION 1, PART III OF THE INVITATION STATES THAT ASPHALT TILE SHALL BE INSTALLED IN THE SPACES INDICATED ON THE DRAWINGS. PARAGRAPH 1-04, SUBSECTION F, AS AMENDED BY ADDENDUM NO. 2, STATES THE REQUIREMENT FOR COVE BASE. YOU STATE THAT SHEET 1 OF DRAWING 38-04-30 DATED JANUARY 15, 1960, IN GENERAL NOTE NO. 1, BY SYMBOL, INDICATES THE EXISTING EQUIPMENT IN PLACE, AND BY GENERAL NOTE NO. 3 STATES THAT "ALL EQUIPMENT SHALL HAVE A 4 INCH RUBBER COVE BASE; " THAT, HOWEVER, THE NOTE AT THE BOTTOM OF THE DRAWING STATES THAT "THIS SHEET SHOWS LOCATION OF EQUIPMENT NOT INCLUDED IN THIS CONTRACT. IT IS TO BE USED FOR REFERENCE PURPOSES ONLY.' IN THIS CONNECTION, IT IS NOTED THAT THE CONTRACT REQUIRES COVE BASE ONLY WHERE INDICATED ON THE DRAWINGS. IN ANY EVENT, HAD IT DEVELOPED THAT THERE WAS A TRUE AMBIGUITY IN THE DRAWING, THE CONTRACTOR WOULD HAVE BEEN AFFORDED RELIEF UNDER THE DISPUTES ARTICLE OF THE CONTRACT.

THE FIFTH GROUND OF YOUR PROTEST IS THAT THE INVITATION FAILS TO ADEQUATELY DESCRIBE THE WORK TO BE DONE ON THE METAL COVERED PLATES. THE INVITATION PROVIDES THAT THE METAL COVERED PLATES RECEIVE METAL EDGE STRIPS IN ADDITION TO ROLL VINYL. YOU STATE THAT PARAGRAPH 3-02, SECTION 3, PART III OF THE INVITATION ATTEMPTS TO DEFINE WHERE THE METAL EDGE STRIPS SHOULD BE PROVIDED BUT SINCE THE DRAWINGS DO NOT INDICATE ALL OF THE SEPARATE PLATE COVERS WHICH ARE EXISTING ON THE PREMISES THE QUESTION ARISES WHETHER THE BIDDER SHOULD PERFORM WORK ON ONLY THOSE METAL PLATES SHOWN ON THE DRAWINGS OR WHETHER HE WOULD BE REQUIRED TO PUT THE METAL EDGE ON ALL PLATES AS THEY EXIST ON THE PREMISES. IN THIS CONNECTION, IT IS NOTED THAT THE SPECIFICATIONS CLEARLY LIMIT THE PROVISION OF METAL EDGE STRIPS TO "WHERE INDICATED ON THE DRAWING.' IN VIEW OF THE FOREGOING PROVISION" THE CONTRACTING OFFICER COULD NOT HAVE REQUIRED ADDITIONAL METAL EDGE STRIPS WITHOUT A CONTRACT MODIFICATION.

IN VIEW OF THE RECORD BEFORE US, IT IS OUR CONCLUSION THAT NO LEGAL BASIS EXISTS FOR ..END :