B-143826, OCT. 26, 1960

B-143826: Oct 26, 1960

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INC.: YOU HAVE BY TELEGRAM OF AUGUST 25. THE FIVE BIDS RECEIVED WERE OPENED. WAS SUBMITTED BY THE BUMSTEAD-WOOLFORD COMPANY. YOUR FIRM WAS THE THIRD LOW BIDDER AT $1. THE SECOND LOW BID WAS DETERMINED TO BE NON-RESPONSIVE AND NEED NOT BE CONSIDERED HERE. THE RECOMMENDATION OF KAISER THAT THE LOW BID BE ACCEPTED WAS APPROVED BY THE ATOMIC ENERGY COMMISSION CONTRACT REVIEW BOARD ON AUGUST 18. WE HAVE BEEN ADVISED BY THE COMMISSION IN A LETTER OF OCTOBER 13. YOU STATE IN YOUR LETTER OF SEPTEMBER 9 THAT YOUR ASSOCIATE WAS TOLD IN THE NORMAL COURSE OF PRE-BID SALES CONTRACTS WITH THE ARCHITECT- ENGINEER. THE PLANT OPERATORS THAT THE SEVERAL TYPES OF RESINS WERE SPECIFIED TO DETERMINE THEIR SUITABILITY IN FUTURE DEMINERALIZERS CONTEMPLATED BY THE GOVERNMENT.

B-143826, OCT. 26, 1960

TO C. C. MOORE AND CO. ENGINEERS, INC.:

YOU HAVE BY TELEGRAM OF AUGUST 25, 1960, AND LETTER OF SEPTEMBER 9, 1960, WITH ENCLOSURES, PROTESTED THE ACCEPTANCE OF THE LOW BID SUBMITTED IN RESPONSE TO REQUEST FOR QUOTATION NO. RQ 5921-829-SC, ISSUED APRIL 22, 1960, BY KAISER ENGINEERS, THE COST-PLUS-A-FIXED-FEE CONSTRUCTION CONTRACTOR FOR THE NEW PRODUCTION REACTOR (NPR) AT HANFORD, FOR THE DESIGN, FABRICATION, AND INSTALLATION OF DEMINERALIZATION EQUIPMENT FOR THE WATER TREATMENT FACILITIES FOR THE NPR.

THE FIVE BIDS RECEIVED WERE OPENED, IN ACCORDANCE WITH THE INVITATION AS AMENDED, ON JUNE 8, 1960. THE LOW BID, AT $867,961, WAS SUBMITTED BY THE BUMSTEAD-WOOLFORD COMPANY. YOUR FIRM WAS THE THIRD LOW BIDDER AT $1,064,142. THE SECOND LOW BID WAS DETERMINED TO BE NON-RESPONSIVE AND NEED NOT BE CONSIDERED HERE. AFTER A THOROUGH CONSIDERATION OF THE MATTER, THE RECOMMENDATION OF KAISER THAT THE LOW BID BE ACCEPTED WAS APPROVED BY THE ATOMIC ENERGY COMMISSION CONTRACT REVIEW BOARD ON AUGUST 18, 1960. WE HAVE BEEN ADVISED BY THE COMMISSION IN A LETTER OF OCTOBER 13, 1960, THAT NEITHER KAISER NOR THE AEC AT HANFORD HAD ANY NOTICE OF YOUR PROTEST UNTIL AFTER AWARD HAD BEEN MADE.

THE SPECIFICATIONS REQUIRE THE USE OF A NUMBER OF TYPES AND BRANDS OF RESINS IN VARIOUS SEGMENTS OF THE EQUIPMENT TO BE FURNISHED. YOU STATE IN YOUR LETTER OF SEPTEMBER 9 THAT YOUR ASSOCIATE WAS TOLD IN THE NORMAL COURSE OF PRE-BID SALES CONTRACTS WITH THE ARCHITECT- ENGINEER, THE PRIME CONTRACTOR, AND THE PLANT OPERATORS THAT THE SEVERAL TYPES OF RESINS WERE SPECIFIED TO DETERMINE THEIR SUITABILITY IN FUTURE DEMINERALIZERS CONTEMPLATED BY THE GOVERNMENT. IN EFFECT, IT WAS YOUR UNDERSTANDING THAT THE INTENT WAS TO TEST THE VARIOUS TYPES OF RESINS IN AN ACTUAL USE SITUATION TO DETERMINE THEIR RELATIVE SUITABILITY. IT IS ALSO YOUR UNDERSTANDING THAT THE LOW BIDDER PROPOSED IN HIS BID TO USE RESINS OTHER THAN THE TYPES LISTED IN THE SPECIFICATIONS. IN VIEW OF YOUR UNDERSTANDING OF THE PURPOSE IN SPECIFYING THE SEVERAL TYPES OF RESINS, AND THE ABSENCE OF ANY PROVISION IN THE SPECIFICATIONS FOR SUBSTITUTING "OR EQUAL" RESINS, YOU PROTEST THE ACCEPTANCE OF ANY BID PROPOSING TO UTILIZE OTHER THAN THE STIPULATED RESINS.

IT APPEARS THAT THE USE OF THE VARIOUS TYPES OF RESINS WAS STIPULATED FOR THE PURPOSE OF COMPARING THEM IN ACTUAL USE. HOWEVER, THE INVITATION AND RELATED DOCUMENTS GIVE NO INDICATION OF SUCH INTENT. WE ARE ADVISED, FURTHER, THAT THE COMMISSION HAD NO INFORMATION AS TO SUCH INTENT, AND DID NOT FAVOR THE TESTS, FOR THE REASONS THAT THE VARIOUS RESINS MAY WELL BECOME INTERMINGLED IN OPERATION, AND MORE RELIABLE TEST RESULTS CAN BE OBTAINED AT MUCH LOWER COST IN LABORATORY STUDIES. IN CONNECTION WITH YOUR RIGHT TO RELY ON THE INFORMATION YOU RECEIVED THROUGH YOUR ASSOCIATE PRIOR TO AWARD, YOUR ATTENTION IS INVITED TO THE PARAGRAPH TITLED EXPLANATION TO BIDDERS, ON PAGE THREE OF THE NOTICE TO BIDDERS, CLEARLY ADVISING THAT ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE AWARD ARE NOT BINDING.

THE LOW BID OFFERED TO FURNISH PERMUTIT RESINS OF VARIOUS TYPES IN LIEU OF THOSE STIPULATED IN THE SPECIFICATIONS. ONE OF THE ATTACHMENTS INCORPORATED IN THE INVITATION, PURSUANT TO THE FIRST PARAGRAPH OF THE NOTICE TO BIDDERS, IS ARTICLE LV OF THE TERMS AND CONDITIONS TO THE SUBCONTRACT, WHICH PROVIDES IN PART:

"WHENEVER A PRODUCT OF A NAMED MANUFACTURER IS SPECIFIED, AND WHETHER SO INDICATED OR NOT, THE SPECIFIED PRODUCT OR AN EQUAL APPROVED BY THE CONTRACTOR MAY BE USED. IF THE SUBCONTRACTOR PROPOSES TO USE AN EQUAL IN LIEU OF THE NAMED PRODUCT, HE SHALL REQUEST THE CONTRACTOR'S APPROVAL.

IT HAS BEEN DETERMINED THAT THE PROPOSED DEMINERALIZER EMPLOYING THE RESINS TO BE USED BY THE LOW BIDDER WILL PROVIDE PERFORMANCE IN ACCORDANCE WITH THE SPECIFICATIONS. IN THIS CONNECTION, IT HAS BEEN ESTIMATED THAT THE DIFFERENCE OF $196,181 BETWEEN YOUR BID AND THE LOW BID, APPROXIMATELY $29,000 MAY BE ATTRIBUTED TO THE USE OF "OR EQUAL" RESINS.

AWARD OF A CONTRACT PURSUANT TO COMPETITIVE BID PROCEDURES APPLICABLE TO PUBLIC PROCUREMENTS GENERALLY AND THE CONTRACT HERE UNDER CONSIDERATION MAY BE MADE ONLY TO THE RESPONSIBLE BIDDER SUBMITTING THE LOW RESPONSIVE BID. A BID IS RESPONSIVE ONLY IF IT CONFORMS TO THE TERMS OF THE INVITATION. IN THIS CASE, WE ARE IN ACCORD WITH THE VIEW OF THE LOW BIDDER THAT THE SPECIFICATION REQUIREMENTS AS TO THE RESINS TO BE USED MUST BE CONSIDERED AS MODIFIED BY ARTICLE LV, QUOTED IN PART ABOVE. THEREFORE, THE LOW BID MAY NOT BE REGARDED AS NON-RESPONSIVE FOR FAILURE TO OFFER THE STIPULATED RESINS, UNLESS IT IS DETERMINED THAT THOSE RESINS PROPOSED BY THE BIDDER ARE, IN FACT, NOT EQUAL TO THOSE LISTED IN THE SPECIFICATIONS. TO BE EQUAL, A PRODUCT MUST BE CAPABLE OF MEETING THE SAME STANDARDS OF PERFORMANCE AS THE DESIGNATED BRAND. 38 COMP. GEN. 380, 383. WHETHER A PRODUCT MEETS THE PERFORMANCE STANDARDS ESTABLISHED BY THE SPECIFICATIONS IN A QUESTION OF FACT, AND WE HAVE NO ALTERNATIVE BUT TO ACCEPT THE ADMINISTRATIVE FINDINGS ON SUCH MATTERS IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY. 36 COMP. GEN. 809, 813. THEREFORE, AND IN VIEW OF THE ADMINISTRATIVE CONCLUSION THAT THE PERFORMANCE REQUIRED BY THE SPECIFICATIONS WILL BE PROVIDED BY THE UNIT OFFERED IN THE LOW BID, WE MUST CONCLUDE THAT THERE HAS BEEN PRESENTED NO LEGAL BASIS FOR QUESTIONING THE AWARD MADE.