B-142052, APR. 11, 1960

B-142052, APR. 11, 1960

TO CONTINENTAL COPPER AND STEEL INDUSTRIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 12, 1960, WITH ENCLOSURE, PROTESTING THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY UNDER INVITATION NO. 228-33491-59-E.

IN RESPONSE TO THE INVITATION, ISSUED ON APRIL 13, 1959, BY THE GENERAL SUPPLY DEPOT, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, YOU SUBMITTED A BID OFFERING TO FURNISH SIX SETS OF BOAT DAVITS FOR DELIVERY TO THE DESIGNATED NAVAL SHIPYARDS FOR A TOTAL CONSIDERATION OF $157,865. YOUR BID, WHICH WAS THE ONLY ONE RECEIVED, WAS REFERRED TO THE SAN FRANCISCO NAVAL SHIPYARD ON MAY 13, 1959, FOR CONSIDERATION. ON JULY 24, 1959, THE SHIPYARD INDICATED A DESIRE TO READVERTISE THE PROCUREMENT WITH CERTAIN REVISIONS IN THE SPECIFICATIONS. IN VIEW THEREOF, REPLACEMENT INVITATION NO. 228-33491, WAS ISSUED BY THE GENERAL SUPPLY DEPOT ON AUGUST 25, 1959, INCORPORATING THE DESIRED CHANGES. UNDER THE REPLACEMENT INVITATION THE FOLLOWING BIDS WERE RECEIVED:

CHART

BIDDER STEEL CONSTRUCTION ALUMINUM CONSTRUCTION CARROLL ENGINEERING CO.

$134,250.00 $150,950.00 IDEAL WINDLASS CO. 146,820.00

152,820.00 WELIN DAVIT AND BOAT DIVISION 160,265.00 186,193.00

SUBSEQUENTLY, ALL BIDDERS WERE REQUESTED BY TELEGRAM TO FURNISH CERTAIN BID DATA WHICH HAD BEEN OMITTED FROM EACH BID AND TIMELY RESPONSE FROM ALL BIDDERS TO THIS REQUEST WAS RECEIVED. IN ADDITION TO FURNISHING THE BID DATA, YOU QUOTED REVISED PRICES--- REPORTEDLY ON EQUIPMENT DEVIATING FROM INVITATION REQUIREMENTS--- OF $131,008 FOR DAVITS OF STEEL CONSTRUCTION, AND $148,806 FOR ALUMINUM CONSTRUCTION. UPON RECEIPT OF A RECOMMENDATION FROM THE SAN FRANCISCO NAVAL SHIPYARD AND A SATISFACTORY PRE-AWARD SURVEY, CONTRACT NO. N228/217/48711 WAS ENTERED INTO WITH THE CARROLL ENGINEERING COMPANY ON JANUARY 20, 1960, FOR ALUMINUM DAVITS IN THE TOTAL AMOUNT OF $150,950 AS THE LOWEST RESPONSIVE RESPONSIBLE BIDDER.

YOU PROTEST THIS ADMINISTRATIVE ACTION BECAUSE YOUR PRICES ON THE EQUIPMENT WERE DIVULGED TO COMPETITORS, AND YOU CONTEND THAT SINCE YOU WERE THE ONLY BIDDER UNDER THE ORIGINAL INVITATION THE CONTRACT COVERING THE MODIFICATIONS SHOULD HAVE BEEN NEGOTIATED WITH YOU. IT IS ALSO CONTENDED THAT ONLY MINOR MODIFICATIONS WERE INVOLVED IN THE REPLACEMENT INVITATION AND THAT SUBSEQUENT TO THE ISSUANCE OF THAT INVITATION STILL FURTHER TECHNICAL CHANGES WERE MADE BUT NO OTHER INVITATIONS WERE ISSUED. ALSO, YOU ALLEGE THAT THE CARROLL ENGINEERING COMPANY AND ITS SUBCONTRACTORS ARE NOT RESPONSIBLE BIDDERS.

REPLACEMENT INVITATION NO. 228-33491 INCORPORATED CHANGES AFFECTING THE SPACE TO BE OCCUPIED BY THE DAVITS AND PERMITTED THE USE OF ALUMINUM CONSTRUCTION AS AN ALTERNATE TO STEEL. HENCE, NOTWITHSTANDING YOUR APPARENT POSITION THAT ADJUSTMENT OF THE SPACE TO BE OCCUPIED BY THE DAVITS CONSTITUTED ONLY MINOR CHANGES, THERE CAN BE NO DOUBT THAT THE ADDITION OF THE ALUMINUM CONSTRUCTION ALTERNATE IN THE REPLACEMENT INVITATION CONSTITUTED A VERY SUBSTANTIAL MODIFICATION. IN FACT THE CONTRACT AWARDED TO CARROLL ENGINEERING IS BASED ON ALUMINUM CONSTRUCTION.

IT IS NOT WITHIN THE PROVINCE OF OUR OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 17 COMP. GEN. 554. THE QUESTION AS TO WHAT TYPE OF EQUIPMENT IS TO BE PROCURED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT IS FOR DETERMINATION ON THE BASIS OF THE OPINIONS OF THE TECHNICIANS IN THE ADMINISTRATIVE OFFICE. WE ARE AWARE THAT THE REJECTION OF BIDS AFTER THEY HAVE BEEN OPENED AND EACH BIDDER OR SUBSEQUENT PROSPECTIVE BIDDER HAS LEARNED HIS COMPETITOR'S PRICE IS A SERIOUS MATTER AND SHOULD NOT BE DONE EXCEPT FOR COGENT REASONS. NEVERTHELESS, WE HAVE RECOGNIZED THAT SINCE CONTRACTING OFFICERS ARE AGENTS OF THE GOVERNMENT REQUIRED TO WORK IN THE BEST INTERESTS OF THE GOVERNMENT, WHEN READVERTISING MAY RESULT IN SUBSTANTIAL SAVINGS TO THE GOVERNMENT OR THE PROCUREMENT OF EQUIPMENT MORE PROPERLY MEETING THE GOVERNMENT'S NEEDS, SUCH ACTION, WHEN AUTHORIZED, SHOULD BE CONSIDERED. 36 COMP. GEN. 364. MOREOVER, UPON DETERMINING THAT CERTAIN CHANGES WERE DESIRED IN THE REQUIREMENTS FOR THE DAVITS, IT APPEARS THAT THE CONTRACTING OFFICER OWED THE DUTY TO READVERTISE THE PROCUREMENT RATHER THAN TO NEGOTIATE WITH YOU ON A MODIFIED CONTRACT BASIS MERELY BECAUSE YOU WERE THE SOLE BIDDER ORIGINALLY.

THE RECORD BEFORE US DOES NOT SHOW THAT FURTHER MAJOR CHANGES WERE MADE IN THE SPECIFICATIONS AFTER THE ISSUANCE OF THE REPLACEMENT INVITATION, AS YOU ALLEGE. ALSO, THE CONTRACT WAS AWARDED TO THE CARROLL ENGINEERING COMPANY ONLY AFTER A PRE-AWARD SURVEY ESTABLISHED THE COMPANY'S FITNESS FOR THE WORK.

ACCORDINGLY, WE MUST CONCLUDE THAT THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY IN THE MATTER IS NOT SUBJECT TO LEGAL OBJECTION.