B-145586, JUNE 13, 1961, 40 COMP. GEN. 688

B-145586: Jun 13, 1961

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HAS MERELY RESERVED AN OPTION TO BE ABLE TO SELECT AT A LATER DATE THE PARTICULAR MANUFACTURER AND NEED NOT HAVE HIS BID CONSIDERED NONRESPONSIVE IN VIEW OF FACT THAT DATA FURNISHED IN EXCESS OF THE "MINIMUM" MET THE REQUIREMENTS OF THE SPECIFICATIONS AND NO ADDITIONAL COST TO THE GOVERNMENT WAS INVOLVED. 1961: FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF H. FOR BIDDING AND PAYMENT PURPOSES THE WORK WAS DIVIDED INTO 31 ITEMS FOR WHICH BIDDERS WERE TO QUOTE A LUMP-SUM PRICE OR A UNIT PRICE FOR THE ESTIMATED QUANTITY SPECIFIED. INCLUDED IN THE EQUIPMENT TO BE FURNISHED WERE CERTAIN LARGE PUMPS AND MOTORS. EACH OF WHICH WERE TO HAVE CERTAIN GUARANTEED CHARACTERISTICS. WHICH WERE TO BE SUBMITTED WITH THE BID BY FILLING IN A NUMBER OF BLANKS IN THESE PAGES WITH APPROPRIATE ENTRIES DESCRIBING THE PARTICULAR ITEM PROPOSED BY THE BIDDER TO BE FURNISHED AND INSTALLED IF AWARDED THE CONTRACT.

B-145586, JUNE 13, 1961, 40 COMP. GEN. 688

CONTRACTS - BIDS - QUALIFIED UNDER AN INVITATION FOR SUPPLYING PUMPS AND MOTORS, WHICH REQUIRES BIDDERS TO FURNISH CERTAIN MINIMUM, TECHNICAL DATA INCLUDING THE NAME OF THE MANUFACTURER ON EACH MAKE AND MODEL OF PUMP OFFERED, A BIDDER WHO SUBMITTED DATA ON TWO DIFFERENT MANUFACTURERS, BOTH OF WHOM MET THE SPECIFICATIONS, HAS MERELY RESERVED AN OPTION TO BE ABLE TO SELECT AT A LATER DATE THE PARTICULAR MANUFACTURER AND NEED NOT HAVE HIS BID CONSIDERED NONRESPONSIVE IN VIEW OF FACT THAT DATA FURNISHED IN EXCESS OF THE "MINIMUM" MET THE REQUIREMENTS OF THE SPECIFICATIONS AND NO ADDITIONAL COST TO THE GOVERNMENT WAS INVOLVED. THE REQUIREMENT OF FORMAL ADVERTISING, THAT SPECIFICATIONS BE DRAWN SO AS TO AFFORD BIDDERS AN OPPORTUNITY TO COMPETE ON A COMMON BASIS TO MEET THE NEEDS OF THE GOVERNMENT, CANNOT BE EXTENDED TO PROHIBIT A BIDDER FROM OFFERING ARTICLES FROM EITHER OF TWO MANUFACTURERS, BOTH OF WHOM MET THE SPECIFICATIONS, ON THE BASIS THAT THE CONTRACTOR MIGHT BE AFFORDED AN OPPORTUNITY TO "BID SHOP.'

TO CUMMINGS AND SELLERS, JUNE 13, 1961:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF H. H. HALL CONSTRUCTION COMPANY--- NELSON CONSTRUCTION COMPANY, INCORPORATED, A JOINT VENTURE BIDDER, AGAINST THE AWARD MADE TO J. J. ALTMAN AND COMPANY UNDER INVITATION FOR BIDS NO. CIVENG-23-065-61-48 ISSUED BY THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, ST. LOUIS, MISSOURI.

THE INVITATION REQUESTED BIDS FOR FURNISHING ALL LABOR, EQUIPMENT AND MATERIALS, AND PERFORMING ALL WORK FOR THE CONSTRUCTION OF THE EAST ST. LOUIS PUMPING STATION. FOR BIDDING AND PAYMENT PURPOSES THE WORK WAS DIVIDED INTO 31 ITEMS FOR WHICH BIDDERS WERE TO QUOTE A LUMP-SUM PRICE OR A UNIT PRICE FOR THE ESTIMATED QUANTITY SPECIFIED. INCLUDED IN THE EQUIPMENT TO BE FURNISHED WERE CERTAIN LARGE PUMPS AND MOTORS, EACH OF WHICH WERE TO HAVE CERTAIN GUARANTEED CHARACTERISTICS. WITH RESPECT TO SUCH EQUIPMENT THE INVITATION INCLUDED SEVERAL PAGES OF RETIRED DATA, WHICH WERE TO BE SUBMITTED WITH THE BID BY FILLING IN A NUMBER OF BLANKS IN THESE PAGES WITH APPROPRIATE ENTRIES DESCRIBING THE PARTICULAR ITEM PROPOSED BY THE BIDDER TO BE FURNISHED AND INSTALLED IF AWARDED THE CONTRACT. THIS SECTION OF THE INVITATION IS HEADED AS FOLLOWS:

DATA TO BE SUBMITTED WITH BID

EACH BIDDER SHALL SUBMIT WITH HIS BID THE INFORMATION LISTED BELOW. THESE DATA WILL BE USED IN DETERMINING THE RESPONSIVENESS OF THE BID AND WILL BECOME PART OF THE CONTRACT. BIDDERS ARE CAUTIONED THAT FAILURE TO FURNISH THE INFORMATION CALLED FOR WILL BE CONSIDERED SUFFICIENT CAUSE FOR REJECTION OF THE BID. NO DEVIATION FROM THESE DATA WILL BE PERMITTED WITHOUT THE APPROVAL OF THE CONTRACTING OFFICER. THE DATA SHALL INCLUDE AS A MINIMUM THE FOLLOWING:

THERE FOLLOWS A LISTING OF THE VARIOUS PUMPS WITH BLANK SPACES UNDER EACH FOR INSERTION OF ENTRIES GIVING SUCH DATA AS RATING, EFFICIENCY, POWER FACTOR AND STARTING TORQUE. FOR EACH OF THE PUMPS AND MOTORS A SPACE WAS PROVIDED FOR THE INSERTION OF THE NAME OF THE MANUFACTURER.

SIX BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE BID OF J. J. ALTMAN AND COMPANY WAS LOW IN THE AGGREGATE AMOUNT OF $1,181,489. THE HALL-NELSON BID WAS SECOND LOW IN THE AGGREGATE AMOUNT OF $1,254,014.80. THE THIRD LOW BID WAS IN THE AMOUNT OF $1,353,810. ALL OF THE BIDDERS EXCEPT ALTMAN NAMED ONLY ONE MANUFACTURER IN THE DATA SHEETS COVERING THE PUMPS AND PUMP MOTORS. ALTMAN SUBMITTED DATA ON TWO DIFFERENT MODELS FROM TWO DIFFERENT MANUFACTURERS AND STATED SELECTION OF THE MANUFACTURER TO BE AT BIDDER'S OPTION.

THE PUMPS AND MOTORS OF BOTH MANUFACTURERS SPECIFIED IN ALTMAN'S BID MET THE REQUIREMENTS OF THE SPECIFICATIONS. IT WAS DETERMINED THAT ALTMAN'S BID WAS RESPONSIVE TO THE INVITATION AND THE AWARD WAS MADE TO ALTMAN.

YOU PROTEST THE ACTION TAKEN ON THE BASIS THAT ALTMAN, IN NAMING TWO MANUFACTURERS FOR PUMPS AND MOTORS, MADE HIS BID NONRESPONSIVE TO THE INVITATION. IT IS ALLEGED THAT THE DATA PROVISIONS QUOTED ABOVE IS SUSCEPTIBLE OF ONLY ONE INTERPRETATION; NAMELY THAT ALL THE REQUIRED DATA BE ON ONE, AND ONLY ONE, SPECIFIC MAKE AND MODEL FOR EACH PUMP AND MOTOR PROPOSED AND MUST BE SUBMITTED FOR INCLUSION IN THE CONTRACT ON THE PAIN OF BID REJECTION. IT IS STATED THAT SUCH PROVISION WAS OBVIOUSLY SO INTERPRETED NOT ONLY BY HALL-NELSON BUT BY ALL OTHER BIDDERS EXCEPT ALTMAN. IT IS CONTENDED THAT A BIDDER BY BEING ABLE TO LIST TWO MANUFACTURERS IN HIS BID HAS A STRONG WEAPON TO USE AGAINST THE SUPPLIERS AND CAN FORCE THE PRICE TO HIM OF THE REQUIRED ITEMS BELOW WHAT MUST BE PAID BY OTHER BIDDERS WHO LIST ONLY ONE SUPPLIER, AND THAT ALTMAN'S BID THEREFORE DOES NOT COMPLY WITH THE REQUIREMENTS OF THE INVITATION IN MATERIAL RESPECTS.

IN SUPPORT OF YOUR CONTENTION THAT THE INVITATION HERE INVOLVED CONTEMPLATED THE NAMING OF ONLY ONE MANUFACTURER, THERE WAS SUBMITTED WITH YOUR LETTER OF APRIL 25, 1961, A COPY OF ADDENDUM NO. 1, DATED MARCH 10, 1961, ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, ST. LOUIS, MISSOURI, UNDER INVITATION CIVENG-23-065-61-60, WHICH DELETED A PROVISION SIMILAR TO THAT HERE INVOLVED AND SUBSTITUTED THEREFOR THE FOLLOWING:

EACH BIDDER SHALL SUBMIT WITH HIS BID THE COMPLETE INFORMATION CALLED FOR BELOW. THESE DATA WILL BE USED IN DETERMINING THE RESPONSIVENESS OF THE BID AND WILL BECOME A PART OF THE CONTRACT. THE NAME OF ONE MANUFACTURER ONLY SHALL BE ENTERED AGAINST ANY ITEM. SUCH TERMS AS "OR EQUAL" OR "AS SPECIFIED" SHALL NOT BE USED BY THE BIDDER IN DESCRIBING ANY MACHINERY AND EQUIPMENT TO BE FURNISHED. FAILURE TO COMPLY WITH THE REQUIREMENTS STATED ABOVE WILL RESULT IN REJECTION OF THE BID. THE DATA SUBMITTED SHALL INCLUDE THE FOLLOWING:

APPARENTLY THERE WAS SOME CONFUSION AMONG BIDDERS IN THE PRESENT CASE AS TO WHETHER THE DATA CLAUSE PERMITTED THE NAMING AND FURNISHING OF DATA ON PUMPS AND MOTORS OF TWO MANUFACTURERS. HOWEVER, WE CANNOT AGREE THAT THE CLAUSE PROHIBITS THE SUBMISSION OF DATA ON TWO DIFFERENT MODELS FROM TWO DIFFERENT MANUFACTURERS. IT IS TRUE THAT IN THE DATA SHEETS SENT WITH THE INVITATION THERE WAS SPACE FOR INSERTING DATA ON ONLY ONE MODEL AND ONE MANUFACTURER, BUT IT NEVER HAS BEEN HELD, TO OUR KNOWLEDGE, THAT BY ADDING SHEETS OR SETTING FORTH INFORMATION IN AN ACCOMPANYING LETTER A BIDDER HAS RENDERED HIS BID NONRESPONSIVE SOLELY FOR THAT REASON. IN FACT THE CLAUSE SPECIFICALLY PROVIDED THAT THE DATA REQUIRED IN THE SHEETS WAS TO BE THE MINIMUM, AND IF A BIDDER WISHED TO FURNISHED ADDITIONAL DATA HE WOULD OF NECESSITY HAVE BEEN REQUIRED TO ATTACH ADDITIONAL SHEETS DUE TO THE LIMITED SPACE IN THE SHEETS PROVIDED.

THE DATA REQUIRED BY THE ATTACHED SHEETS WAS A MINIMUM AND SO LONG AS THE DATA FURNISHED IN EXCESS OF THE MINIMUM MET THE REQUIREMENTS OF THE SPECIFICATIONS IT IS NOT SEEN HOW THE GOVERNMENT COULD REJECT THE BID AS BEING UNRESPONSIVE. THE EQUIPMENT OFFERED BY ALTMAN FROM EITHER MANUFACTURER MET THE REQUIREMENTS OF THE SPECIFICATIONS AND TO HOLD, WHEN NOT SPECIFICALLY PROHIBITED, THAT ALTMAN COULD OFFER TO FURNISH EQUIPMENT BY EITHER OF THE MANUFACTURERS BUT COULD NOT OFFER BOTH AT HIS OPTION WOULD BE INCONSISTENT. ALL THAT ALTMAN PROPOSED TO DO IN RESERVING TO HIMSELF AN OPTION TO CHOOSE EITHER OF THE MANUFACTURERS WAS TO BE ABLE TO SELECT AT A LATER DATE THE PARTICULAR MANUFACTURER, BUT NO MATTER WHICH OF THE MANUFACTURERS HE CHOSE THERE WOULD BE NO CHANGE IN THE PRICE TO THE GOVERNMENT AND HE WOULD COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATIONS.

WITH RESPECT TO THE CONTENTION THAT THE DATA CLAUSE HERE INVOLVED WAS INTENDED TO RESTRICT BIDDERS TO ONE MANUFACTURER IN VIEW OF THE AMENDMENT ISSUED TO A SUBSEQUENT INVITATION WHICH SPECIFICALLY SO PROVIDED, IT NEED ONLY TO BE STATED THAT THE INVITATION HERE INVOLVED DID NOT SO PROVIDE. THE PROPRIETY OF THE LATTER PROVISION IS NOT BEFORE US FOR CONSIDERATION AND THERE IS THEREFORE NO NEED TO PASS ON IT. HOWEVER, IT IS OUR OPINION THAT THE REQUIREMENT OF FORMAL ADVERTISING THAT THE SPECIFICATIONS BE SO DRAWN AS TO AFFORD BIDDERS AN OPPORTUNITY TO COMPETE ON A COMMON BASIS MEANS THAT BIDDERS MUST BE GIVEN A COMMON BASIS TO MEET THE NEEDS OF THE GOVERNMENT. WE DO NOT BELIEVE THAT SUCH REQUIREMENT PROPERLY CAN BE EXTENDED TO PROHIBIT A BIDDER FROM OFFERING ARTICLES FROM EITHER OF TWO MANUFACTURERS, BOTH OF WHICH MEET THE GOVERNMENT'S NEEDS, ON THE BASIS THAT IT MIGHT AFFORD THE CONTRACTOR AN OPPORTUNITY TO "BID SHOP.' IN THIS CONNECTION THE DIRECTOR OF CIVIL WORKS, CORPS OF ENGINEERS, REPORTS THAT IT HAS LONG BEEN THE POSITION OF THE DEPARTMENT OF DEFENSE THAT IT DOES NOT DESIRE AND WILL NOT ATTEMPT TO CONTROL "BID SHOPPING" AMONG CONTRACTORS AND SUBCONTRACTORS; THAT THIS SHOULD BE CONTROLLED, IF CONTROL IS DESIRED, BY INDUSTRY ITSELF; AND THAT THE GOVERNMENT'S INTEREST MUST BE CONFINED TO DETERMINING WHETHER THE REQUIREMENTS OF THE SPECIFICATIONS ARE BEING COMPLIED WITH.

FOR THE REASONS SET FORTH, THERE IS NO LEGAL BASIS UPON WHICH WE COULD OBJECT TO THE AWARD MADE TO J. J. ALTMAN AND COMPANY UNDER THE TERMS OF THE INVITATION HERE INVOLVED.