B-148402, MAY 22, 1962

B-148402: May 22, 1962

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INC.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 6. THE SPECIFICATIONS WERE REVISED TO AUTHORIZE THE FURNISHING OF ALTERNATE COMPONENTS. AS FOLLOWS: "ALTERNATE COMPONENTS WILL BE CONSIDERED PROVIDING: "A. WHERE DEVIATIONS OR DEPARTURES FROM THE APPLICABLE MANUFACTURER'S SPECIFICATIONS ARE NOT STATED IN DETAIL. IT WILL BE UNDERSTOOD THAT THE BIDDER PROPOSES TO FURNISH COMPONENTS IN ACCORDANCE WITH THE APPLICABLE MANUFACTURER'S SPECIFICATIONS AND PART NUMBERS FOR SUCH ITEMS AS CITED IN THE SPECIFICATION AND THE BIDDER WILL BE HELD IN STRICT COMPLIANCE THEREWITH. YOU AS ONE OF THE BIDDERS WROTE TO THE CONTRACTING OFFICE AND CONTENDED THAT THE BID OF SPEN SHOULD BE REJECTED BECAUSE IT WAS NOT A FIRM BID.

B-148402, MAY 22, 1962

TO RANDALL MANUFACTURING COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1962, PROTESTING THE AWARD OF A CONTRACT TO HENRY SPEN AND CO., INC., UNDER INVITATION FOR BIDS NO. IFB-383-330-62 ISSUED BY THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, ON OCTOBER 13, 1961.

THE INVITATION SOLICITED BIDS TO BE OPENED DECEMBER 11, 1961, FOR FURNISHING 255 AIR CYLINDER ASSEMBLIES, TO BE IN ACCORDANCE WITH BUREAU OF NAVAL WEAPONS DRAWING NO. 60A80-D1, DATED JULY 3, 1960, AS AMENDED IN THE SCHEDULE, AND SPECIFICATION XMA-90 FOR THE REGULATORS. BY AMENDMENT NO. III TO THE INVITATION, THE SPECIFICATIONS WERE REVISED TO AUTHORIZE THE FURNISHING OF ALTERNATE COMPONENTS, AS FOLLOWS:

"ALTERNATE COMPONENTS WILL BE CONSIDERED PROVIDING:

"A. BIDDER IDENTIFIES THE COMPONENT HE PROPOSES TO FURNISH BY THE MANUFACTURER'S PART NUMBER.

"B. THE ITEM OFFERED SHALL BE IN ALL RESPECTS INTERCHANGEABLE WITH AND SHALL BE OF EQUAL SERVICE TO THE ITEM SPECIFIED.

"C. BIDDER SHALL FURNISH WITH BID FOR EACH ALTERNATE ITEM OFFERED, COMPLETE VENDOR DESCRIPTION AND/OR BROCHURES, MANUFACTURER'S TEST REPORT. SUCH EXPLANATORY INFORMATION AND LITERATURE SHALL SET FORTH AND FULLY DESCRIBE ANY PROPOSED DEVIATIONS OR DEPARTURES FROM THE APPLICABLE MANUFACTURER'S SPECIFICATIONS OR PART NUMBERS. WHERE DEVIATIONS OR DEPARTURES FROM THE APPLICABLE MANUFACTURER'S SPECIFICATIONS ARE NOT STATED IN DETAIL, IT WILL BE UNDERSTOOD THAT THE BIDDER PROPOSES TO FURNISH COMPONENTS IN ACCORDANCE WITH THE APPLICABLE MANUFACTURER'S SPECIFICATIONS AND PART NUMBERS FOR SUCH ITEMS AS CITED IN THE SPECIFICATION AND THE BIDDER WILL BE HELD IN STRICT COMPLIANCE THEREWITH.

"D. APPROVAL OF PROPOSALS DOES NOT RELIEVE THE CONTRACTORS OF THE RESPONSIBILITY TO FURNISH AN ACCEPTABLE ITEM IN ACCORDANCE WITH THE APPLICABLE SPECIFICATIONS.'

THREE BIDDERS RESPONDED TO THE INVITATION. ONE OF THE BIDDERS, HENRY SPEN AND CO., INC., SUBMITTED A BID ON MATERIAL IN EXACT ACCORDANCE WITH THE SPECIFICATIONS AND AN ADDITIONAL SEVEN BIDS OFFERING ALTERNATE MATERIAL. ON DECEMBER 18, 1961, YOU AS ONE OF THE BIDDERS WROTE TO THE CONTRACTING OFFICE AND CONTENDED THAT THE BID OF SPEN SHOULD BE REJECTED BECAUSE IT WAS NOT A FIRM BID. AGAIN, ON DECEMBER 27, 1961, YOU WROTE TO THE CONTRACTING OFFICE IN REGARD TO THE BID OF SPEN. YOUR BID WAS REJECTED AS NOT BEING RESPONSIVE AND THERE WAS ACCEPTED THE BID OF SPEN LABELED ALTERNATE VII WITH A BLEED VALVE IN ACCORDANCE WITH ITS DRAWING 101415 IN LIEU OF THE BLEED VALVE SPECIFIED.

IN YOUR LETTER OF MARCH 6, 1962, YOU PROTEST THE "ALTERNATE METHOD OF BIDDING ADOPTED BY THE SUCCESSFUL BIDDER.' ALSO, YOU STATE THAT THE INVITATION DOES NOT ALLOW ALTERNATE BIDS BUT DOES ALLOW ALTERNATE COMPONENTS. YOU CONTEND, IN EFFECT, THAT SPEN HAD AN ADVANTAGE OVER BIDDERS WHO SUBMITTED ONE FIRM BID.

PARAGRAPH 1 (D) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS STATES THAT ALTERNATE BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION. WE HELD IN 33 COMP. GEN. 499, 500, THAT AS COMMONLY UNDERSTOOD THE PROHIBITION AGAINST "ALTERNATE" BIDS FORBIDS CONSIDERATION OF BIDS WHICH OFFER SOMETHING OTHER THAN THAT WHICH IS CALLED FOR BY THE SPECIFICATIONS AND THAT IN THIS SENSE THE WORD "ALTERNATE" MEANS "ALTERNATIVE," THAT IS, OFFERING A CHOICE OF TWO OR MORE THINGS, ONE BEING THE THING ASKED FOR AND THE ALTERNATIVE BEING SOMETHING DIFFERENT. STATED IN ANOTHER PROVISION IN THE INVITATION, CITED ABOVE, THE BIDDERS WERE FREE TO OFFER ITEMS OTHER THAN THE ITEMS SPECIFIED, IF THEY WERE IN ALL RESPECTS INTERCHANGEABLE WITH, AND WERE OF EQUAL SERVICE TO, THE ITEMS SPECIFIED BUT PROSPECTIVE BIDDERS WERE ADVISED THAT APPROVAL OF PROPOSALS WOULD NOT RELIEVE CONTRACTORS OF THE RESPONSIBILITY TO FURNISH ACCEPTABLE ITEMS IN ACCORDANCE WITH THE APPLICABLE SPECIFICATIONS. YOUR BID OF $375 EACH WAS CONDITIONED UPON FURNISHING A PRESSURE REGULATOR, MODEL R-1738, LINDE COMPANY, IN LIEU OF THE ONE SPECIFIED IN THE INVITATION. ALTHOUGH YOU HAD STATED THAT THE REGULATOR HAD THERETOFORE RECEIVED APPROVAL FROM GOVERNMENT OFFICIALS, THE CONTRACTING OFFICER REJECTED YOUR BID FOR THE REASON THAT THE DRAWING SUBMITTED WITH YOUR BID SHOWING THE REGULATOR WHICH YOU PROPOSED TO FURNISH DID NOT REFLECT THE "OPTIONAL STRAIGHT THROUGH PATTERN FOR THE OUTLET PORT TAPPING" BUT DESCRIBED A REGULATOR THAT DID NOT MEET THE INTERCHANGEABILITY REQUIREMENT OF THE INVITATION. THE FACT THAT ITS PERFORMANCE WAS SATISFACTORY OR "OF EQUAL SERVICE TO THE ITEM SPECIFIED" IS NOT DETERMINATIVE OF THE QUESTION WHETHER IT MET SPECIFICATIONS FROM AN INTERCHANGEABILITY STANDPOINT. YOUR BID OFFERING AN ALTERNATE COMPONENT THAT WAS NOT ACCEPTABLE AND SPEN'S BID OFFERING ALTERNATE COMPONENTS UNDER ALTERNATES I TO VI, INCLUSIVE, WHICH BIDS WERE REJECTED BY THE CONTRACTING OFFICER AS NONRESPONSIVE BECAUSE THE COMPONENTS OFFERED DID NOT MEET THE SPECIFICATION REQUIREMENTS OF THE ALTERNATE COMPONENT CLAUSE, WERE IN A GENERAL SENSE "ALTERNATE" BIDS REFERRED TO IN 33 COMP. GEN. 499, 501, AND WHICH ARE NOT TO BE CONSIDERED BY REASON OF THE PROVISIONS OF PARAGRAPH 1 (D) OF THE TERMS AND CONDITIONS REFERRED TO ABOVE. OF COURSE, THE SUBMISSION OF A BID OFFERING ALTERNATE MATERIAL NOT MEETING THE SPECIFICATION REQUIREMENTS DOES NOT PRECLUDE THE ACCEPTANCE OF A SECOND BID OFFERING MATERIAL THAT IS IN ACCORDANCE WITH THE SPECIFICATION REQUIREMENTS.

ALSO, IN YOUR LETTER OF MARCH 6, YOU REFER TO A LEGEND PLACED ON CERTAIN DRAWINGS SUBMITTED BY SPEN AND STATE THAT THE USE OF THIS LEGEND WAS IN VIOLATION OF PARAGRAPH 2-404.4 (A) OF ASPR. THIS PARAGRAPH PROVIDES THAT WHEN A BID IS ACCOMPANIED BY DESCRIPTIVE LITERATURE--- WHICH IS DEFINED AS INCLUDING DRAWINGS--- AND THE BIDDER IMPOSES A RESTRICTION THAT SUCH LITERATURE MAY NOT BE PUBLICLY DISCLOSED, SUCH RESTRICTION RENDERS THE BID NONRESPONSIVE IF IT PROHIBITS THE DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF THE PRODUCTS OFFERED. THE LEGEND REPORTED TO HAVE BEEN PLACED ON CERTAIN DRAWINGS IS STATED TO HAVE BEEN AS FOLLOWS:

"THIS DRAWING IS THE PROPERTY OF HENRY SPEN AND CO., INC. AND IS LOANED ONLY UPON CONDITION THAT IT IS NOT TO BE COPIED OR REPRODUCED NOR TO BE USED FOR FURNISHING INFORMATION TO OTHERS OR FOR ANY PURPOSE DETRIMENTAL TO THE INTEREST OF HENRY SPEN AND CO., INC.' SPEN ADVISED THAT IT WAS NOT INTENDED "TO PREVENT SUFFICIENT DISCLOSURES TO OTHER BIDDERS, AS REFERENCED IN ASPR 2-404-4.' YOU WERE SHOWN THE DRAWINGS OF SPEN AT THE MEETING AT THE CONTRACTING OFFICE ON JANUARY 19, 1962. AS TO YOUR REFERENCE TO AN INSTANCE IN 1959 IN WHICH YOU WERE DENIED A RIGHT TO SEE DRAWINGS FURNISHED WITH A BID, THE ADMINISTRATIVE OFFICE REPORTS THAT THIS OCCURRED LONG BEFORE THE ISSUANCE OF PARAGRAPH 2-404.4, ASPR, AND YOUR REQUEST TO SEE THE DRAWINGS IN THAT CASE WAS NOT MADE UNTIL ALMOST A MONTH AFTER THE AWARD HAD BEEN MADE.

IN VIEW OF THE FOREGOING, WE DO NOT FIND ANY BASIS FOR OBJECTING TO THE AWARD OF THE CONTRACT TO HENRY SPEN AND CO., INC. ..END :