B-144502, JAN. 19, 1961

B-144502: Jan 19, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 21. BIDDERS WERE REQUESTED TO QUOTE A BASE BID PRICE ON THE ENTIRE JOB AND AN ALTERNATE BID AMOUNT TO BE DEDUCTED FROM THE BASE BID IN THE EVENT THE FURNISHING OF METAL PARTITIONS WAS OMITTED FROM THE PROCUREMENT. IN RESPONSE TO THE INVITATION EIGHT BIDS WERE RECEIVED AS FOLLOWS: TABLE BIDDER BASE BID DEDUCTIVE ALTERNATE 1 $64. BIDDER NO. 1 WAS LOW. BIDDER NO. 5 WAS LOW. TO REMOVE FROM THE PROCUREMENT THIS UNDULY RESTRICTIVE FEATURE WHICH WAS NOT CONSISTENT WITH THE GOVERNMENT'S NEEDS. IT WAS DETERMINED THAT ALL BIDS SHOULD BE REJECTED AND THE PROJECT READVERTISED ON LESS RESTRICTIVE PARTITION SPECIFICATIONS. THE PROCUREMENT WAS READVERTISED ON SPECIFICATIONS REVISED TO CONFORM TO GSA STANDARD PARTITION SPECIFICATIONS.

B-144502, JAN. 19, 1961

TO THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 21, 1960, AND YOUR LETTER OF NOVEMBER 23, 1960, PROTESTING THE HANDLING OF PROJECT DC4-3027 BY THE GENERAL SERVICES ADMINISTRATION.

ON SEPTEMBER 27, 1960, THE GENERAL SERVICES ADMINISTRATION REGIONAL OFFICE ISSUED AN INVITATION FOR BIDS SOLICITING PRICES FOR THE ALTERATION OF EXISTING OFFICE SPACE, INCLUDING THE INSTALLATION AND FURNISHING OF METAL PARTITIONS, ON THE TENTH FLOOR OF THE FEDERAL OFFICE BUILDING IN ATLANTA, GEORGIA. BIDDERS WERE REQUESTED TO QUOTE A BASE BID PRICE ON THE ENTIRE JOB AND AN ALTERNATE BID AMOUNT TO BE DEDUCTED FROM THE BASE BID IN THE EVENT THE FURNISHING OF METAL PARTITIONS WAS OMITTED FROM THE PROCUREMENT.

IN RESPONSE TO THE INVITATION EIGHT BIDS WERE RECEIVED AS FOLLOWS:

TABLE

BIDDER BASE BID DEDUCTIVE ALTERNATE

1 $64,777 $11,242

2 65,206 12,000

3 65,260 10,300

4 66,300 11,400

5 67,977 17,450

6 68,886 17,000

7 69,687 14,000

8 74,958 17,100

ON THE BASE BID, BIDDER NO. 1 WAS LOW. ON THE ALTERNATE BID BASIS, BIDDER NO. 5 WAS LOW. HOWEVER, AFTER THE BID OPENING, THE CONTRACTING OFFICE REVIEWED THE SPECIFICATIONS FOR THE METAL PARTITIONS AND ASCERTAINED THAT THEY DESCRIBED PARTITIONS MANUFACTURED BY ONLY ONE CONCERN--- THE HAUSERMAN COMPANY. TO REMOVE FROM THE PROCUREMENT THIS UNDULY RESTRICTIVE FEATURE WHICH WAS NOT CONSISTENT WITH THE GOVERNMENT'S NEEDS, IT WAS DETERMINED THAT ALL BIDS SHOULD BE REJECTED AND THE PROJECT READVERTISED ON LESS RESTRICTIVE PARTITION SPECIFICATIONS.

ON NOVEMBER 15, 1960, THE PROCUREMENT WAS READVERTISED ON SPECIFICATIONS REVISED TO CONFORM TO GSA STANDARD PARTITION SPECIFICATIONS. FURTHER REVIEW INDICATED THAT ADDITIONAL RELAXATION OF THE SPECIFICATIONS WAS DESIRABLE AND ADDENDUM NO. 1 WAS ISSUED THE FOLLOWING DAY TO ACCOMPLISH THAT PURPOSE.

FIVE BIDS WERE RECEIVED ON THE READVERTISED INVITATION. THE LOW BID WAS $56,445.

YOU PROTEST ON SEVERAL BASES THE ACTION OF THE GENERAL SERVICES ADMINISTRATION IN REJECTING THE ORIGINAL BIDS AND READVERTISING THE PROCUREMENT.

FIRST, IT IS CONTENDED THAT THE ORIGINAL SPECIFICATION PERMITTED COMPETITIVE PARTITIONS TO BE USED AND THAT THE ORIGINAL AND READVERTISED PARTITION SPECIFICATIONS ARE THEREFORE MATERIALLY ALIKE. HOWEVER, AS WE HAVE POINTED OUT ABOVE, THE ORIGINAL SPECIFICATIONS WERE DETERMINED TO BE RESTRICTIVE IN THAT ONLY ONE MANUFACTURER'S PARTITIONS WOULD COMPLY WITH THE REQUIREMENTS. THE FACT THAT SEVERAL BIDDERS MAY HAVE THOUGHT OTHER PARTITIONS WERE PERMISSIBLE DOES NOT CHANGE THE RESTRICTIVE CHARACTER OF THE SPECIFICATIONS. THE QUESTION IS WHETHER ANYTHING OTHER THAN A HAUSERMAN PARTITION WOULD HAVE BEEN ACCEPTABLE UNDER THE TERMS OF THE SPECIFICATIONS AND THE ADMINISTRATIVE OFFICE HAS DETERMINED THAT IT WOULD NOT. FURTHER, THE TWO INVITATIONS ARE NOT MATERIALLY ALIKE IN THE PARTITION REQUIREMENT. THE READVERTISED SPECIFICATION IS LESS RESTRICTIVE THAN THE ORIGINAL IN TWO MATERIAL RESPECTS. WHEREAS THE ORIGINAL REQUIRED THAT THE HEIGHT OF THE PARTITION BE 7 FT. 2 1/2 IN., THE READVERTISED AUTHORIZED PARTITIONS BETWEEN 7 FT. 1 IN. AND 7 FT. 5 IN. IN HEIGHT. WHILE THE ORIGINAL REQUIRED THAT THE PANEL WIDTHS BE THE SAME AS THE EXISTING PARTITIONS, WHICH WE UNDERSTAND ARE INCREMENTS OF FOUR INCHES, THE READVERTISED AUTHORIZED WIDTHS OF FIVE AND SIX INCHES.

YOUR SECOND CONTENTION IS THAT THE SPECIFICATIONS WERE MADE RESTRICTIVE ON READVERTISEMENT IN THAT THE PARTITIONS ARE REQUIRED TO "BE OF INTERCHANGEABLE UNIT CONSTRUCTION" (SECTION 13-1 (D) (, WHICH YOU INTERPRET AS REQUIRING THEM TO BE INTERCHANGEABLE WITH EXISTING PARTITIONS. HOWEVER, NO STATEMENT IS MADE IN THE SPECIFICATIONS THAT THE PARTITIONS TO BE FURNISHED BE INTERCHANGEABLE WITH UNITS OF OTHER MANUFACTURERS. ALL THAT IS CONTEMPLATED BY SECTION 13-1 (D) IS THAT THE PARTITIONS FURNISHED UNDER THE INVITATION BE CAPABLE OF BEING ALTERNATED AMONG THEMSELVES.

THIRDLY, YOU CONTEND THAT SINCE THE PARTITION THE LOW BIDDER INTENDED TO FURNISH UNDER THE ORIGINAL SPECIFICATION WOULD MEET THE NEW SPECIFICATION, THE AWARD SHOULD BE MADE TO IT. HOWEVER, THE BID OF THE LOW BASE BIDDER IS RESPONSIVE ON ITS FACE TO THE ORIGINAL INVITATION AND THERE IS NOTHING THEREIN TO INDICATE THAT IT INTENDED TO FURNISH ANYTHING OTHER THAN THE INVITATION REQUIREMENT WHICH ADMINISTRATIVELY HAS BEEN DETERMINED TO REQUIRE A HAUSERMAN PARTITION. BUT, IN ANY EVENT, EVEN IF THE LOW BIDDER HAD TAKEN AN EXCEPTION TO THE ORIGINAL SPECIFICATION AND INDICATED THAT IT INTENDED TO FURNISH MATERIAL WHICH WHILE NOT RESPONSIVE TO THE INVITATION WOULD BE RESPONSIVE TO THE REVISED SPECIFICATION INCLUDED IN THE READVERTISED INVITATION, AWARD COULD NOT BE MADE TO THE ORIGINAL LOW BIDDER SINCE THE CONTRACT AWARDED UNDER ANY INVITATION MUST BE THE SAME CONTRACT OFFERED TO ALL PROSPECTIVE BIDDERS. EVALUATION OF BIDS ON OTHER THAN A COMMON BASIS WOULD NOT BE FAIR TO ALL BIDDERS NOR INSURE THAT THE GOVERNMENT HAD THE BEST COMPETITIVE PRICE FOR THE ITEM SOUGHT TO BE PROCURED.

IN THE FOURTH PLACE, YOU SUGGEST THAT IF THE CONTRACTING OFFICE WAS NOT SATISFIED WITH THE PARTITION SPECIFICATION IT SHOULD HAVE USED THE ALTERNATE BASIS SET OUT IN THE INVITATION FOR ELIMINATING THE PARTITIONS AND PROVIDED WHATEVER PARTITIONS IT COULD OBTAIN. HOWEVER, AT THE BID OPENING TIME, NO GOVERNMENT-OWNED HAUSERMAN PARTITIONS WERE AVAILABLE FOR USE ON THIS PROJECT. IF THE GOVERNMENT HAD ACCEPTED THE LOW ALTERNATE BID IT WOULD HAVE BEEN OBLIGATED TO READVERTISE FOR PARTITIONS ALONE. SINCE THE ORIGINAL SPECIFICATIONS WERE UNNECESSARILY RESTRICTIVE, THE READVERTISEMENT WOULD HAVE HAD TO HAVE BEEN ON THE BASIS OF SPECIFICATIONS LESS RESTRICTIVE THAN THE ORIGINAL. IN THE EVENT THE LOW PARTITION BIDDER WOULD HAVE FURNISHED ANYTHING BUT A HAUSERMAN PARTITION, THIS WOULD HAVE ENTAILED INSTALLATION OF PARTITIONS DIFFERENT FROM THOSE UPON WHICH THE ORIGINAL BIDDERS SHOULD HAVE BASED THEIR LABOR INSTALLATION COSTS. THEREFORE, THERE WAS NO REASONABLY RELIABLE BASIS FOR THE VIEW THAT THE INSTALLATION CHARGE, ARRIVED AT BY DEDUCTING THE ALTERNATE BID PRICE FROM THE BASE BID, WAS INTENDED BY ANY BIDDER TO APPLY IN THE EVENT OTHER THAN THE SPECIFIED PARTITION WAS FURNISHED BY THE GOVERNMENT AND THE ATTEMPT TO TAKE ADVANTAGE OF THE INSTALLATION CHARGE--- WHICH SHOULD HAVE BEEN BASED ON THE PROPRIETARY PARTITION--- MIGHT HAVE BEEN VIEWED AS AN ATTEMPT TO TAKE AN UNFAIR ADVANTAGE OF THE LOW INSTALLATION BIDDER. THE PREFERABLE METHOD WAS TO REJECT ALL BIDS AND READVERTISE ON A COMMON BASIS CONSISTENT WITH THE GOVERNMENT'S NEEDS THAT WOULD INSURE THAT ALL BIDDERS HAD A COMMON UNDERSTANDING OF THE PROCUREMENT.

FINALLY, YOU CONTEND THAT THE ORIGINAL INVITATION SHOULD BE REINSTATED AND THE AWARD MADE UNDER IT, SINCE AN INJUSTICE HAS BEEN DONE THE ORIGINAL BIDDERS BY EXPOSING THEIR BID PRICES. THE DISCLOSURE OF BID PRICES IS A REGRETTABLE INCIDENT WHICH SHOULD BE AVOIDED WHENEVER POSSIBLE, BUT IN THIS INSTANCE IT APPEARS THAT THE ADMINISTRATIVE ACTION IN READVERTISING HAS GIVEN ALL BIDDERS AN OPPORTUNITY TO BID ON A LESS RESTRICTIVE BASIS THAT WAS NOT AVAILABLE BEFORE AND THAT HAS RESULTED IN A MORE FAVORABLE PRICE AND SAVINGS THAT ARE IN THE GOVERNMENT'S INTEREST.

IN THESE CIRCUMSTANCES, WE ARE CONSTRAINED TO CONCLUDE THAT THE REJECTION OF ALL BIDS AND READVERTISEMENT UNDER MORE COMPETITIVE SPECIFICATIONS WAS NOT IMPROPER.

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