B-148277, MAY 10, 1962

B-148277, MAY 10, 1962

TO SCHAUER MANUFACTURING CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 1, 1962, WITH ENCLOSURES, SUPPLEMENTING THE PROTEST MADE BY YOUR TELEGRAM DATED FEBRUARY 28, 1962, AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. ORD-33-079-62-169, ISSUED DECEMBER 14, 1961, BY THE ROSSFORD ORDNANCE DEPOT, TOLEDO, OHIO.

BIDS WERE INVITED FOR THE FURNISHING OF 247 UTILITY GRINDING MACHINES TO BE IN ACCORDANCE WITH FEDERAL SPECIFICATION W-C-656B DATED MARCH 31, 1958, TYPE I, SIZE 7, WITH CERTAIN STATED EXCEPTIONS. FIVE BIDS WERE RECEIVED AND THEY WERE OPENED ON JANUARY 16, 1962. YOUR QUOTATION OF $53.40 PER MACHINE WAS THE LOWEST BID PRICE AND THE AWARD WAS MADE TO THE SECOND LOWEST BIDDER, THE BROWN-BROCKMAYER COMPANY, DAYTON, OHIO, WHICH QUOTED A PRICE OF $61.25 PER MACHINE WITHOUT TAKING ANY EXCEPTION TO THE ADVERTISED SPECIFICATIONS OR OTHER REQUIREMENTS OF THE INVITATION. YOUR BID WAS REJECTED BECAUSE OF AN EXCEPTION TAKEN TO A REQUIRED METAL THICKNESS OF 5/16-INCH FOR WHEEL GUARDS OR COVERS. A LETTER DATED JANUARY 12, 1962, WHICH ACCOMPANIED YOUR BID OF THE SAME DATE, STATED THAT YOU WERE OFFERING A GRINDER WHICH WOULD BE EQUIPPED WITH CAST IRON GUARDS OR COVERS OF 5/32- INCH THICKNESS. THE LETTER ALSO REFERRED TO A PREVIOUS ARMY CONTRACT, NO. DA-11-199-ORD-351, UNDER WHICH YOU FURNISHED 1,404 GRINDERS.

BY LETTER DATED MARCH 19, 1962, YOU ADVISED YOUR WASHINGTON REPRESENTATIVE THAT CONTRACT NO. DA-11-199-ORD-351 WAS AWARDED BY THE ORDNANCE WEAPONS COMMAND, ROCK ISLAND, ILLINOIS, THAT THE REFERENCED SPECIFICATION OF THAT CONTRACT IS THE SAME AS THAT SET FORTH IN INVITATION NO. ORD-33-079-62-169, THAT IN BOTH CASES YOUR PROPOSAL TOOK AN EXCEPTION TO THE SPECIFIED METAL THICKNESS FOR WHEEL GUARDS OR COVERS, AND THAT YOU DID NOT UNDERSTAND WHY IN PRACTICALLY THE SAME CIRCUMSTANCES YOU RECEIVED AN AWARD IN ONE CASE AND FAILED TO OBTAIN AN AWARD IN THE OTHER.

AN EXAMINATION OF YOUR CONTRACT NO. DA-11-199-ORD-351 SHOWS THAT IT WAS AWARDED AFTER ADVERTISING WHICH RESTRICTED BIDDING TO SMALL BUSINESS CONCERNS. WE HAVE NOT ASCERTAINED WHETHER THE REGULATIONS CONCERNING THE AWARD OF THAT CONTRACT WERE FULLY COMPLIED WITH IN CONNECTION WITH THE DECISION TO MAKE THE AWARD TO YOUR FIRM. IN ANY EVENT, THE AWARD IN THAT CASE WOULD NOT AFFECT OUR DETERMINATION AS TO THE PROPRIETY OF REJECTING YOUR BID UNDER INVITATION NO. ORD-33-079-62 169.

IT IS AN ESTABLISHED PRINCIPLE OF FORMAL COMPETITIVE PROCUREMENT BY AGENCIES OF THE FEDERAL GOVERNMENT THAT ALL COMPETENT AND RELIABLE PERSONS SHOULD HAVE AN EQUAL OPPORTUNITY TO COMPETE AND THAT INVITATIONS AND SPECIFICATIONS MUST BE SUCH AS TO PERMIT COMPETITORS TO COMPETE ON A COMMON BASIS. UNITED STATES V. BROCKRIDGE FARM, 11, F.2D 461-463. WHERE ONE BIDDER TAKES EXCEPTION TO CERTAIN SPECIFICATION REQUIREMENTS UNDER CIRCUMSTANCES NOT EXTENDED TO ALL BIDDERS, IT IS CLEAR THAT A CONTRACT AWARDED ON THE BASIS OF SUCH A BID WOULD NOT BE THE CONTRACT OFFERED TO ALL BIDDERS.

CONTRACTING OFFICERS OF THE GOVERNMENT ARE AUTHORIZED TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS WHEN IN THE INTEREST OF THE GOVERNMENT AND THE INSTRUCTIONS TO BIDDERS SO PROVIDE. IN THIS CASE THE RIGHT TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS WAS SPECIFICALLY RESERVED UNDER THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS. HOWEVER, THE INFORMALITIES OR MINOR IRREGULARITIES WHICH MAY BE WAIVED ARE THOSE WHICH DO NOT AFFECT EITHER THE PRICE, QUALITY OR QUANTITY OF THE ARTICLES OFFERED AND THEREFORE ARE NOT PREJUDICIAL TO OTHER BIDDERS. 30 COMP. GEN. 179; 40 ID. 458.

THERE IS NO AUTHORITY FOR THE WAIVER AS AN INFORMALITY OR MINOR IRREGULARITY MATERIAL EXCEPTIONS TO SPECIFICATIONS IMPOSED BY BIDDERS. THE EFFECT OF THE DEVIATION IN YOUR BID WAS TO GIVE YOUR COMPANY THE RIGHT TO SUBSTITUTE ITS OWN SPECIFICATIONS FOR THOSE ADVERTISED BY THE GOVERNMENT. IT WAS A DEVIATION WHICH OBVIOUSLY WAS MATERIAL FROM THE STANDPOINT OF THE DESIRED DEGREE OF SAFETY IN OPERATION OF THE TYPE OF EQUIPMENT WHICH THE GOVERNMENT PROPOSED TO PURCHASE, SINCE THE GRINDERS OFFERED WOULD BE EQUIPPED WITH WHEEL GUARDS OR COVERS HAVING A METAL THICKNESS OF ONLY ONE-HALF OF THE SPECIFIED METAL THICKNESS. ALSO, IT IS APPARENT THAT YOUR BID PRICE WOULD HAVE BEEN HIGHER IF YOU HAD PROPOSED TO FURNISH GRINDERS EQUIPPED WITH WHEEL GUARDS OR COVERS HAVING A METAL THICKNESS OF 5/16-INCH INSTEAD OF 5/32-INCH.

AS HAS BEEN POINTED OUT BY THE COURTS, TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS, OR TO PERMIT BIDDERS TO CHANGE THEIR PROPOSALS AFTER BIDS ARE OPENED, WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. CF. UNITED STATES V. BROCKRIDGE FARM, SUPRA, AND THE OPINION OF THE SUPREME COURT OF ILLINOIS IN CITY OF CHICAGO V. MOHR, 74 N.E. 1056.

IT THEREFORE APPEARS THAT THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID UNDER INVITATION NO. ORD-33-079-62-169 WAS PROPER. ACCORDINGLY, YOUR PROTEST IN THE MATTER MUST BE DENIED.