B-144055, NOV. 8, 1960

B-144055, NOV. 8, 1960

TO MANHATTAN LIGHTING EQUIPMENT CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 21, 1960 AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE ACTION OF THE DEPARTMENT OF THE ARMY IN REJECTING YOUR LOW BID SUBMITTED IN RESPONSE TO INVITATION NO. AV 14-040-60-88/PE 1597) ISSUED JUNE 27, 1960, BY THE PURCHASING AND CONTRACTING DIVISION, FORT RILEY, KANSAS.

THE INVITATION, AS AMENDED, REQUESTED BIDS FOR FURNISHING 972 MAGNETIC RELAYS DESCRIBED AS FOLLOWS:

"MAGNETIC RELAYS, OPEN TYPE, ACROSS THE LINE STARTING CIRCUITS UP TO 1/2 HP, APPROXIMATELY 2 1/2 INCHES LONG, 2 3/16 INCHES HIGH, 115 VOLT, 50-60 CYCLE, SQUARE D 8501-COLL OR EQUAL.'

SEVEN BIDS WERE RECEIVED AND OPENED. YOU SUBMITTED THE LOWEST BID OFFERING TO FURNISH ARROW-H AND H NO. 28300-U, MAGNETIC RELAYS. WITH YOUR BID YOU SUBMITTED DESCRIPTIVE LITERATURE AND IN REGARD THERETO THE CONTRACTING OFFICER STATED IN HER REPORT AS FOLLOWS:

"BID OF MANHATTAN LIGHTING EQUIPMENT COMPANY, INC. WAS ACCOMPANIED BY DESCRIPTIVE LITERATURE IN THE FORM OF AN AUGUST 1952 ARROW-HART AND HEGEMAN ELECTRIC COMPANY CATALOG FOR MIDGET MAGNETIC RELAYS. ON PAGE 3 OF THIS CATALOG, THERE HAD BEEN SUPER-IMPOSED, IN INK, CIRCLES AROUND THE "NO. 28308-U" BENEATH THE PICTURE IN THE UPPER RIGHT HAND ILLUSTRATION BRACKET, AND AROUND THE NUMBER ,28300" UNDERNEATH THE CATALOG NUMBER COLUMN JUST BELOW THE MIDDLE OF THE PAGE. IN ADDITION TO THE ABOVE, THIS BIDDER HAD INDICATED HIS BID AS BEING THAT OF THE FIRST LINE UNDER THE PORTION OF THE PAGE ENTITLED "AMPERE AND HORSEPOWER RATINGS TYPE "MR," " THE PRINTED ENTRIES OF "110 A.C.' UNDER VOLTS AND "1/4" UNDER H.P. HAD BOTH BEEN LINED OUT IN INK. HANDWRITTEN ENTRIES, IN INK, HAD BEEN SUPERIMPOSED ON THIS CATALOG PAGE AS FOLLOWS: "115" WAS PLACED OVER THE LINED OUT PRINTED ,110 A.C., " AND "1/2" WAS PLACED OVER THE LINED OUT PRINTED "1/4.' * * *"

IT IS REPORTED THAT IN VIEW OF THE CHANGES MADE BY YOU ON THE DESCRIPTIVE LITERATURE, A TELEGRAM WAS SENT ON AUGUST 10, 1960, TO THE ARROW-HART AND HEGEMAN ELECTRIC COMPANY ADVISING THEM AS TO INKED CHANGES TO THEIR CATALOG AND REQUESTING VERIFICATION AS TO MANUFACTURE OF 115-VOLT, 1/2 HP., MAGNETIC RELAYS. ON AUGUST 16, 1960, YOUR SUPPLIER ADVISED BY TELEGRAM THAT THEIR MODEL NO. 28300-U MAGNETIC RELAY WAS STILL RATED BY THEM AS EXPRESSED BY THEIR PRINTED CATALOG, THAT IS, 110 V.A.C. AND 1/4 HP. ON THE BASIS OF THE INFORMATION RECEIVED FROM YOUR SUPPLIER AND THE DETERMINATIONS MADE BY THE TECHNICAL PERSONNEL OF THE REQUESTING AGENCY,THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE TO THE INVITATION AND THAT IT SHOULD BE REJECTED. ON AUGUST 18, 1960, A CONTRACT WAS AWARDED TO THE ROSSNER ELECTRIC SUPPLY COMPANY FOR FURNISHING THE MAGNETIC RELAYS.

THE RECORD INDICATES THAT ON SEPTEMBER 8, 1960, A TELEGRAM WAS RECEIVED BY THE CONTRACTING OFFICER FROM THE ARROW-HART AND HEGEMAN ELECTRIC COMPANY, YOUR SUPPLIER, ADVISING AS FOLLOWS:

"REFER ALRGD-P 21370 AND IFB AV14-040-60-88 FURTHER TO OUR MR. ROARKE'S WIRE 8/16 AND YOUR LETTER 8/29 FROM ELLEN WHORTON TO MANHATTAN LIGHTING CO IN NEW YORK CITY WE WISH TO ADVISE THAT OUR 28300-U (MR10 U) IS UL LISTED AND SUITABLE FOR 1/2 HR XXX 1/2 HP AT 110V A.C. THIS IS IN UL FILE NO. E9788E AND IS REPORTED UNDER THE ABOVE ISSUED BY UNDERWRITERS LAB NEW YORK CITY DATED 4/1/39 HORSEPOWER RATINGS LISTED ON PAGE 2"

IN HER REPORT THE CONTRACTING OFFICER STATES THAT AFTER RECEIVING THE ABOVE TELEGRAM, NOTWITHSTANDING THAT IT INDICATED A VOLTAGE OF 110 A.C., THE ROSSNER ELECTRIC SUPPLY COMPANY WAS IMMEDIATELY CONTACTED TO ASCERTAIN THE POSSIBILITIES OF CONTRACT TERMINATION AND SHE WAS INFORMED THAT APPROXIMATELY ONE-HALF OF THE RELAYS HAD BEEN SHIPPED AND THE BALANCE WAS IN THE PROCESS OF BEING MANUFACTURED. THE CONTRACTING OFFICER ALSO STATES THAT SINCE THE RELAYS WERE FOR ,TRAIN FIRE" RANGES AND WERE REQUIRED FOR IMMEDIATE INSTALLATION PURPOSES, TIME DID NOT PERMIT VERIFICATION OF UL RATINGS, SUBSEQUENT DETERMINATION BY TECHNICAL PERSONNEL, AND IN THE EVENT OF A FAVORABLE DETERMINATION BY TECHNICAL PERSONNEL, AND IN THE EVENT OF A FAVORABLE DETERMINATION, TO MAKE THE AWARD TO YOUR COMPANY AND ALLOW A NEW 30-DAY DELIVERY PERIOD. ACCORDINGLY, THE CONTRACTING OFFICER CONCLUDED THAT CANCELLATION OF THE CONTRACT AWARDED TO ROSSNER WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT. IT IS ALSO REPORTED THAT FINAL SHIPMENT OF THE CUTLER-HAMMER H-649 MAGNETIC RELAYS OFFERED BY ROSSNER WAS RECEIVED ON SEPTEMBER 9, 1960.

IT IS UNFORTUNATE THAT THE MANUFACTURER OF THE RELAYS FURNISHED THE CONTRACTING OFFICER INCORRECT INFORMATION REGARDING THE HORSEPOWER OF THE RELAY YOU OFFERED TO FURNISH IN RESPONSE TO THE INVITATION. ASSUMING THAT YOUR PROTEST IS VALID, WE ARE CONFRONTED WITH THE QUESTION AS TO THE ACTION TO BE TAKEN, HAVING REGARD FOR THE INTERESTS OF THE GOVERNMENT AS WELL AS YOUR INTERESTS. ONE OF THE FACTORS TO BE CONSIDERED IS THE LINE OF COURT DECISIONS WHICH DECLARE THAT STATUTES REGULATING THE CONTRACT PROCEDURES OF OFFICERS OF THE GOVERNMENT WERE ENACTED SOLELY FOR THE BENEFIT OF THE GOVERNMENT AND CONFER NO ENFORCEABLE RIGHTS UPON BIDDERS.

IN THIS CASE THERE WERE URGENT TIME REQUIREMENTS PRESENT AND THE CONTRACTOR HAS COMPLETED PERFORMANCE. THESE FACTORS BEING PRESENT AND SINCE THERE IS NOTHING TO INDICATE THAT THE AWARD WAS NOT MADE IN GOOD FAITH, WE CANNOT PROPERLY CONCLUDE THAT IT IS IN THE BEST INTERESTS OF THE GOVERNMENT TO REQUIRE CANCELLATION OF THE CONTRACT WITH THE ROSSNER ELECTRIC SUPPLY COMPANY.