B-144761, JUN. 29, 1961

B-144761: Jun 29, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE ACTIONS TAKEN BY THE POST OFFICE DEPARTMENT UNDER INVITATIONS FOR BIDS NOS. 1393. EIGHT BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. IT WAS DETERMINED THAT THE F. H. LANGSENKAMP COMPANY WAS THE LOWEST RESPONSIBLE BIDDER FOR THE TYPE A CART. THIS COMPANY'S AGGREGATE BID FOR THE TYPE A CART WAS $700. 350 AND FOR THE TYPE B CART IT WAS $686. FOR THE TYPE A CART WAS $872. 550 AND FOR THE TYPE B CART IT WAS $838. FOR THE TYPE A CART THE FIRST ALTERNATE WAS IN THE AGGREGATE AMOUNT OF $707. IT WAS DETERMINED THAT THE ALTERNATES OFFERED BY YOU WERE IN DIRECT CONFLICT TO A MAJOR EXTENT WITH THE SPECIFICATIONS AND WERE REJECTED AS NOT RESPONSIVE.

B-144761, JUN. 29, 1961

TO MMS, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE ACTIONS TAKEN BY THE POST OFFICE DEPARTMENT UNDER INVITATIONS FOR BIDS NOS. 1393, 1596 AND 1207.

UNDER INVITATION NO. 1393 THE POST OFFICE DEPARTMENT REQUESTED BIDS FOR FURNISHING 15,000 UTILITY CARTS, EITHER CHROME PLATED (TYPE A) OR PLASTIC COATED (TYPE B), TO BE IN ACCORDANCE WITH ATTACHED SPECIFICATIONS AND DRAWINGS. EIGHT BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. IT WAS DETERMINED THAT THE F. H. LANGSENKAMP COMPANY WAS THE LOWEST RESPONSIBLE BIDDER FOR THE TYPE A CART. THIS COMPANY'S AGGREGATE BID FOR THE TYPE A CART WAS $700,350 AND FOR THE TYPE B CART IT WAS $686,700.

YOUR AGGREGATE BID, STATED TO BE IN ACCORDANCE WITH THE SPECIFICATIONS AND DRAWINGS, FOR THE TYPE A CART WAS $872,550 AND FOR THE TYPE B CART IT WAS $838,500. IN ADDITION THERETO YOU OFFERED THREE OTHER ALTERNATES. FOR THE TYPE A CART THE FIRST ALTERNATE WAS IN THE AGGREGATE AMOUNT OF $707,400, FOR THE SECOND ALTERNATE $679,650 AND FOR THE THIRD ALTERNATE $651,900. IT WAS DETERMINED THAT THE ALTERNATES OFFERED BY YOU WERE IN DIRECT CONFLICT TO A MAJOR EXTENT WITH THE SPECIFICATIONS AND WERE REJECTED AS NOT RESPONSIVE. IT WAS FURTHER DETERMINED THAT THE ALTERNATE DESIGNS OFFERED BY YOU DID NOT MEET THE NEEDS OF THE POST OFFICE DEPARTMENT. AWARD WAS MADE TO THE LOWEST BIDDER OFFERING TO FURNISH CARTS MEETING THE REQUIREMENTS OF THE SPECIFICATIONS.

YOU PROTEST THE ACTION TAKEN BY THE POST OFFICE DEPARTMENT ON THE BASIS THAT YOUR THIRD ALTERNATE SHOULD HAVE BEEN ACCEPTED. IT IS URGED THAT YOU INTERPRETED THE SPECIFICATIONS TO MEAN A BETTER DESIGN WAS SOUGHT AND YOU COMPLIED, AND THAT UPON AWARD YOU WOULD HAVE HAD TO PRODUCE THREE PILOT MODELS AND THESE WOULD HAVE INSURED THE POST OFFICE DEPARTMENT THAT YOUR PROPOSED PRODUCT WOULD HAVE MET ALL REQUIREMENTS.

IT IS A FUNDAMENTAL PRINCIPLE OF COMPETITIVE BIDDING THAT THE SPECIFICATIONS MUST BE DRAWN TO REFLECT THE NEEDS OF THE GOVERNMENT AND THAT THE CONTRACT AWARDED TO THE SUCCESSFUL BIDDER MUST BE THE SAME CONTRACT OFFERED TO ALL BIDDERS. YOUR INTERPRETATION OF THE SPECIFICATIONS CONFLICTS WITH THIS PRINCIPLE. YOUR AGGREGATE BID FOR TYPE A CART, STATED TO BE IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, WAS $872,550, WHEREAS YOUR AGGREGATE BID UNDER YOUR THIRD ALTERNATE WAS $651,900. THUS IT IS CLEAR THAT THE CART OFFERED UNDER YOUR THIRD ALTERNATE MUST NOT HAVE COMPLIED WITH THE SPECIFICATIONS, FOR IF IT DID THERE WOULD HAVE BEEN NO REASON TO QUOTE A HIGHER PRICE FOR CART SO COMPLYING. SINCE IT WAS DETERMINED THAT YOUR ALTERNATE BIDS DID NOT MEET SPECIFICATION REQUIREMENTS, THERE IS NO BASIS UPON WHICH WE COULD QUESTION THE REJECTION OF SUCH BIDS. YOUR BID IN STRICT ACCORDANCE WITH THE SPECIFICATIONS WAS NOT LOW AND, THEREFORE, WAS NOT FOR CONSIDERATION FOR AWARD.

THE RECORD SHOWS THAT INVITATION NO. 1596 WAS A READVERTISEMENT OF INVITATION NO. 1207. BY INVITATION NO. 1207 THE POST OFFICE DEPARTMENT REQUESTED BIDS FOR FURNISHING A VARIETY OF LIGHTING FIXTURES IN ACCORDANCE WITH CERTAIN SPECIFICATIONS AND DRAWINGS. PARAGRAPH 3.1 OF THE SPECIFICATIONS REQUIRED THAT "THE FIXTURES SHALL BE IN FULL COMPLIANCE WITH THE NATIONAL ELECTRICAL CODE AND WITH THE UNDERWRITERS' LABORATORIES, INC. SUBJECT 57.'

ON THE OPENING OF THE BIDS IT WAS FOUND THAT YOU SUBMITTED AN AGGREGATE BID OF $175,095.12 FOR UNITS WITHOUT THERMAL AND CURRENT REQUIREMENTS ON THE TYPE 303. AS AN ALTERNATE (WHICH IS WHAT THE SPECIFICATIONS CALLED FOR) WITH THE THERMAL AND CURRENT REQUIREMENTS YOUR AGGREGATE BID WAS $176,617.47. THEREAFTER, YOU ALLEGED THAT AN ERROR HAD BEEN MADE IN YOUR BID AND STATED THAT THE CORRECT AGGREGATE PRICE SHOULD HAVE BEEN $193,756. FROM THE DATA SUBMITTED IN SUPPORT OF THE ALLEGED ERROR THE CONTRACTING OFFICER DETERMINED THAT THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT CORRECTION OF THE BID, BUT THAT THERE WAS SUFFICIENT EVIDENCE TO AUTHORIZE WITHDRAWAL OF THE BID. YOU ADVISED BY TELEGRAM OF NOVEMBER 3, 1960, THAT YOU WOULD NOT WITHDRAW THE BID, AND ACKNOWLEDGE THAT YOUR BID FOR THE UNITS WITHOUT THERMAL AND CURRENT REQUIREMENTS DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS AND THAT IF REQUIRED YOU MUST PERFORM IN ACCORDANCE WITH YOUR BID DESPITE THE ALLEGED ERROR. HOWEVER, THE POST OFFICE DEPARTMENT DETERMINED TO REJECT ALL BIDS UNDER INVITATION NO. 1207 BECAUSE IT WAS FOUND THAT THE UNDERWRITERS' APPROVAL FOR THE ENTIRE UNIT "FIXTURES") COULD NOT BE OBTAINED AS UNDERWRITERS WOULD APPROVE ONLY COMPONENT PARTS AS DISTINGUISHED FROM THE ENTIRE "FIXTURE.' ACCORDINGLY, THE SPECIFICATIONS WERE MODIFIED AND THE LAST SENTENCE OF PARAGRAPH 3.1 WAS REVISED TO READ THAT ALL COMPONENTS USED IN THE FIXTURES SHOULD BE IN FULL COMPLIANCE WITH UNDERWRITERS' LABORATORIES, INC. SUBJECT 57, AND ALL WIRING SHOULD BE IN ACCORDANCE WITH THE NATIONAL ELECTRICAL CODE.

BIDS WERE REQUESTED UNDER INVITATION NO. 1596 FOR THE SAME TYPE OF FIXTURES BUT IN ACCORDANCE WITH THE REVISED SPECIFICATIONS. ALSO, THERE WERE SOME REVISIONS IN THE QUANTITIES TO BE FURNISHED. IN RESPONSE TO THIS INVITATION SIX BIDS WERE RECEIVED. THE LOW BID SUBMITTED BY SUN-LITE MANUFACTURING COMPANY WAS IN THE AGGREGATE AMOUNT OF $186,576.39, AND THE TWO NEXT LOW BIDS WERE IN THE AMOUNTS OF $199,325.86 AND $209,451.33. YOUR BID WAS IN THE AMOUNT OF $216,396.58. THE AWARD WAS MADE TO THE SUN- LITE MANUFACTURING COMPANY, THE LOW BIDDER.

YOUR PROTEST AS TO THE ACTION TAKEN BY THE POST OFFICE DEPARTMENT IS BASED ON THE FOLLOWING: (1) THE BIDS UNDER INVITATION NO. 1207 SHOULD NOT HAVE BEEN REJECTED; (2) THE READVERTISEMENT INVITED OTHER FIRMS TO BID AFTER YOUR ORIGINAL PRICES WERE KNOWN; AND (3) A PERFORMANCE BOND SHOULD NOT HAVE BEEN REQUIRED.

INVITATION NO. 1207 RESERVED THE RIGHT TO REJECT ALL BIDS AND, SINCE IT WAS DISCOVERED PRIOR TO AWARD THAT THE SPECIFICATIONS WERE DEFICIENT OR AMBIGUOUS, THERE WAS NO ALTERNATIVE BUT TO REJECT ALL BIDS AND TO REDRAFT THE SPECIFICATIONS. THE GOVERNMENT IS OBLIGATED TO SOLICIT BIDS, INCLUDING READVERTISEMENTS, FROM ALL QUALIFIED SOURCES DEEMED NECESSARY TO ASSURE FULL AND FREE COMPETITION CONSISTENT WITH THE PROCUREMENT OF THE PARTICULAR ITEM INVOLVED. SEE PARAGRAPH 1-2.202 OF THE FEDERAL PROCUREMENT REGULATIONS. YOUR CONTENTION THAT THE DISCLOSURE OF THE BID PRICES GAVE COMPETITORS AN UNFAIR ADVANTAGE SEEMS UNTENABLE. WHILE DISCLOSURE OF BID PRICES IS A REGRETABLE INCIDENT FLOWING FROM A BID OPENING IN WHICH ALL BIDS ARE REJECTED, IN THIS INSTANCE YOUR BID ON INVITATION NO. 1207 WHICH WAS DISCLOSED WAS CLAIMED TO BE ERRONEOUS AND, THEREFORE, WOULD ONLY HAVE MISLED YOUR COMPETITORS. FURTHERMORE, IF THE BID WAS ERRONEOUS, AS ALLEGED, IT WOULD APPEAR THAT YOU SHOULD HAVE IN FACT BENEFITED BY THE READVERTISEMENT.

WITH RESPECT TO YOUR CONTENTION THAT THE INVITATION SHOULD NOT HAVE REQUIRED A PERFORMANCE BOND, IT HAS BEEN HELD THAT THE CONTRACTING OFFICER HAS THE DISCRETION TO REQUIRE SUCH A BOND UNDER A PARTICULAR INVITATION. 15 COMP. GEN. 628. IN THIS CONNECTION IT IS NOTED THAT YOU DID NOT OBJECT TO THE PERFORMANCE BOND REQUIREMENT PRIOR TO THE OPENING OF THE BIDS AND NOT UNTIL YOU FILED YOUR PROTEST WITH THE CONTRACTING OFFICER. THE ONLY OTHER MENTION OF THE BOND WAS IN YOUR TELEGRAM CONCERNING THE ALLEGED ERROR, AND THEN ONLY TO THE EXTENT THAT IT WOULD BE DIFFICULT TO OBTAIN A PERFORMANCE BOND UNLESS THE ERROR COULD BE CORRECTED.

WE HAVE EXAMINED THE RECORD IN CONNECTION WITH THE THREE INVITATIONS FOR BIDS AND FIND NO BASIS TO OBJECT TO THE ACTION TAKEN BY THE POST OFFICE DEPARTMENT IN CONNECTION THEREWITH.