B-146292, OCT. 3, 1961

B-146292, OCT. 3, 1961

TO ELGIN NATIONAL WATCH COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 25, 1961, COMMENTING ON OUR DECISION TO YOU OF SEPTEMBER 13, 1961, DENYING YOUR PROTEST AGAINST A DETERMINATION BY THE CONTRACTING OFFICER, U.S. ARMY ORDNANCE, FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA, THAT A BID OF YOUR COMPANY ON WRIST WATCHES AS DESCRIBED IN INVITATION FOR BIDS NO. ORD-36-038-61-M-432, SHOULD BE REJECTED AS NOT BEING RESPONSIVE TO THE INVITATION.

OUR DECISION REFERS TO THE FACT THAT THE BID OF YOUR COMPANY WAS ACCOMPANIED BY A LETTER DATED JUNE 5, 1961, WHICH INDICATED THAT COMPLIANCE WITH THE ACCURACY TESTING REQUIREMENT OF THE ADVERTISED SPECIFICATION WAS NOT INTENDED. IT WAS REQUESTED IN THE LETTER THAT PARAGRAPH 4.4.2.11 OF MILITARY SPECIFICATION MIL-W-3818A, MARCH 12, 1956,BE CHANGED TO "MINUS 40 SECONDS AFTER STORAGE TEST ONLY, AS PER OUR PREVIOUS CONTRACT DA-36-038-ORD-20972-M.' WE DESCRIBED THE REQUESTED DEVIATION AS "PLUS OR MINUS 40 SECONDS.'

YOU CONTEND THAT THE EXTENT OF THE DEVIATION WAS NOT ACCURATELY STATED AND WE AGREE THAT IT INVOLVED ONLY 10 SECONDS, SINCE THE SPECIFICATION HAD ALREADY ALLOWED A VARIATION IN RATE OF PLUS OR MINUS 30 SECONDS. HOWEVER, THERE WAS NO MISUNDERSTANDING IN OUR PART CONCERNING THE ACCURACY TESTING REQUIREMENT OF THE SPECIFICATION, ALTHOUGH THE DEVIATION WAS DESCRIBED IN TERMS WHICH ARE CONSISTENT ONLY WITH THE LANGUAGE OF THE PROPOSED CHANGE IN THE SPECIFICATION.

YOU FURTHER CONTEND THAT THERE ARE PRECEDENTS FOR CONSIDERING THAT THE REQUESTED DEVIATION IS NOT MATERIAL AND YOU STATE THAT THERE IS AN INCONSISTENCY IN THE SPECIFICATION WHICH YOU ATTEMPTED TO RESOLVE.

IN OUR OPINION, PREVIOUS ACTIONS TAKEN BY THE CONTRACTING AGENCY OR BY ANY OTHER GOVERNMENT AGENCY WOULD NOT BE CONTROLLING IN A DETERMINATION AS TO WHETHER OR NOT YOUR COMPANY'S BID IN THIS CASE WAS RESPONSIVE TO THE INVITATION FOR BIDS. NEITHER DO WE AGREE THAT A DEVIATION ALLOWED UNDER A CONTRACT WHICH WAS PREVIOUSLY PERFORMED BY YOUR COMPANY ESTABLISHED A PRECEDENT THAT THE SPECIFICATION WAS NOT CLEAR AND THE DEVIATION WAS IMMATERIAL.

IT IS TRUE THAT ON SOME OCCASIONS THE GOVERNMENT, DUE TO AN URGENCY OF PROCUREMENT OR BECAUSE IT MIGHT NOT WISH TO PLACE A CONTRACTOR IN A POSITION OF HAVING TO INCUR EXTRAORDINARY EXPENSE, WILL ACCEPT DELIVERY OF SUPPLIES WHICH DO NOT CONFORM STRICTLY WITH CONTRACT SPECIFICATIONS. IS NEVERTHELESS CERTAIN THAT SUCH AN ACCEPTANCE WOULD NOT CONSTITUTE AN ADMISSION ON THE GOVERNMENT'S PART THAT THE CONTRACT SPECIFICATIONS CONTAINED RESTRICTIONS WHICH WERE IMMATERIAL OR THAT THE SPECIFICATIONS WERE AMBIGUOUS OR SUSCEPTIBLE TO QUESTION ON THE GROUND OF IMPOSSIBILITY OF PERFORMANCE. IN THAT REGARD, A FAILURE TO REQUEST AN ADJUSTMENT IN CONTRACT PRICE MIGHT BE EXCUSABLE DEPENDING UPON THE CONTRACT PROVISIONS AND THE CIRCUMSTANCES OF THE PARTICULAR CASE.

WE DO NOT AGREE THAT THE MILITARY SPECIFICATION MADE A PART OF INVITATION FOR BIDS NO. ORD-36-038-61-M-432, AS RELATED TO THE TESTING OF WATCHES, IS AMBIGUOUS IN ANY RESPECT. WHAT THE GOVERNMENT WAS PROPOSING TO PURCHASE WAS GRADE II MILITARY WATCHES SHOWN IN THE SPECIFICATION AS REQUIRING AN ACCURACY OF "PLUS OR MINUS 30 SEC/DAY.' CONSISTENT WITH THAT CLASSIFICATION, IT WAS PROVIDED IN PARAGRAPH 3.7 OF THE SPECIFICATION THAT THE MEAN DAILY RATE FOR MEETING ACCURACY REQUIREMENTS SHOULD NOT EXCEED THE ACCURACY VALUE OF PLUS OR MINUS 30 SECONDS FOR THE SPECIFIED TEMPERATURE OF 75 DEGREES FAHRENHEIT. ALSO, PARAGRAPH 4.4.2.11 OF THE SPECIFICATION ENTITLED ,FINAL ACCURACY TEST" REQUIRES THAT, ON COMPLETION OF TESTS IN 4.4.2.5 TO 4.4.2.10 INCLUSIVE, THE WATCHES "SHALL MEET THE ROOM TEMPERATURE ACCURACY REQUIREMENTS OF 3.7.' THERE IS NOTHING IN THOSE CLEAR AND UNEQUIVOCAL PROVISIONS WHICH WOULD PERMIT A DEVIATION TO PLUS OR MINUS 40 SECONDS AFTER STORAGE TEST ONLY.

YOUR EXCEPTION TO THE SPECIFICATION WAS OBVIOUSLY MATERIAL AND THIS SEEMS TO BE FURTHER EVIDENCED BY YOUR PRESENT STATEMENTS TO THE EFFECT THAT PERFORMANCE WOULD HAVE BEEN MORE DIFFICULT IF THE SPECIFICATION WERE HELD TO WITHIN A PLUS OR MINUS 30 SECONDS VARIATION AFTER STORAGE CYCLING. YOU DO NOT NOW ALLEGE THAT THE SPECIFICATION COULD NOT BE MET AND, WHILE YOU MAY HAVE DISCUSSED THE MATTER WITH A REPRESENTATIVE OF THE CHICAGO ORDNANCE DISTRICT BEFORE YOUR COMPANY'S BID WAS SUBMITTED, THE PREPARATION OF SUCH BID WAS SOLELY YOUR FIRM'S RESPONSIBILITY AND THERE WERE, OF COURSE, MEANS BY WHICH YOUR FIRM COULD HAVE SUBMITTED A FULLY RESPONSIVE BID AND AT THE SAME TIME MADE AN ALTERNATE PROPOSAL BASED UPON THE GRANTING OF A DEVIATION FROM THE APPLICABLE MILITARY SPECIFICATION.

YOU STATE THAT IT IS ESSENTIAL THAT OUR FINDING OF MATERIALITY BE FOLLOWED WITH RESPECT TO THE SUCCESSFUL BIDDER. WE HAVE NO REASON TO BELIEVE IN THAT CONNECTION THAT THE DEPARTMENT OF THE ARMY WILL NOT DISCHARGE ITS DUTY TO DETERMINE WHETHER THE SUCCESSFUL BIDDER IS COMPLYING STRICTLY WITH ALL OF THE REQUIREMENTS OF THE CONTRACT AS AWARDED UNDER INVITATION FOR BIDS NO. ORD-36-038-61-M-432.