B-149018, JUL. 18, 1962

B-149018: Jul 18, 1962

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SEVERAL OF WHICH WERE IDENTIFIED AS PRODUCTS OF ARMSTRONG CORK COMPANY. YOU ALLEGE THAT YOU REQUESTED A DELAY IN THE OPENING OF BIDS UNTIL THE SPECIFICATIONS MANUFACTURERS' TRADE NAMES IN THE COLOR SCHEDULE WERE INTENDED AS A GUIDE ONLY TO COLOR. NO EXPLANATION WAS GIVEN AS TO WHY THIS ADDITIONAL INFORMATION WAS NOT INCLUDED IN THE INVITATION ITSELF. YOU SUBMITTED ON BID OPENING DAY A PROTEST AGAINST ANY AWARD UNDER THE SUBJECT INVITATION ON THE GROUND THAT THE SPECIFICATIONS WERE AMBIGUOUS AND PROPRIETARY. YOU SENT A LETTER SUBSTANTIATING THE CHARGE THAT THE INVITATION WAS AMBIGUOUS. THE CONTRACTING OFFICER AND HIS SUPERIORS DECIDED THAT IT WAS IN THE BEST INTEREST OF THE GOVERNMENT TO REJECT ALL BIDS AND READVERTISE AT A LATER DATE.

B-149018, JUL. 18, 1962

TO B. W. HOVERMILL COMPANY:

YOUR LETTER OF MAY 25, 1962, PROTESTS AGAINST THE REJECTION OF ALL BIDS UNDER INVITATION NO. 62-82, WHICH CALLED FOR THE INSTALLATION OF A VINYL MATERIAL ON THE WALLS OF FOUR BUILDINGS LOCATED AT THE VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND.

THE INVITATION SET FORTH DETAILED PERFORMANCE SPECIFICATIONS FOR THE VINYL WALL COVERINGS. ALSO, PARAGRAPH 1-4 OF THOSE SPECIFICATIONS READS AS FOLLOWS: "WALL PAPER: SEE ATTACHED COLOR DESIGN SCHEDULE FOR QUALITY AND PATTERN.' THE COLOR DESIGN SCHEDULE CALLED FOR DIFFERENT BRAND-NAME VINYL COVERINGS TO BE USED IN THE VARIOUS ROOMS, SEVERAL OF WHICH WERE IDENTIFIED AS PRODUCTS OF ARMSTRONG CORK COMPANY.

ON MAY 2, 1962, YOU CALLED THE CONTRACTING OFFICER TO ADVISE HIM THAT CORLON 10124, AN ARMSTRONG VINYL, DID NOT MEET THE WEIGHT AND TEST REQUIREMENTS OF THE DETAILED SPECIFICATIONS, AND YOU ALLEGE THAT YOU REQUESTED A DELAY IN THE OPENING OF BIDS UNTIL THE SPECIFICATIONS MANUFACTURERS' TRADE NAMES IN THE COLOR SCHEDULE WERE INTENDED AS A GUIDE ONLY TO COLOR, TEXTURE, AND PATTERN, AND NOT AS AN INDICATION OF THE "QUALITY" REQUIRED NOR AS A REQUIREMENT FOR A PARTICULAR MANUFACTURER'S ITEM. APPARENTLY, NO EXPLANATION WAS GIVEN AS TO WHY THIS ADDITIONAL INFORMATION WAS NOT INCLUDED IN THE INVITATION ITSELF.

YOU PREPARED AND OFFERED A BID ON THE BASIS OF THE INFORMATION GIVEN TO YOU IN THE TELEPHONE CONVERSATION WITH THE CONTRACTING OFFICER. ADDITION, YOU SUBMITTED ON BID OPENING DAY A PROTEST AGAINST ANY AWARD UNDER THE SUBJECT INVITATION ON THE GROUND THAT THE SPECIFICATIONS WERE AMBIGUOUS AND PROPRIETARY. ON MAY 9, 1962, YOU SENT A LETTER SUBSTANTIATING THE CHARGE THAT THE INVITATION WAS AMBIGUOUS, IN THAT IT ERRONEOUSLY INDICATED THAT ARMSTRONG CORK COMPANY PRODUCTS WOULD MEET THE QUALITY REQUIREMENTS DETAILED IN THE SPECIFICATIONS. AFTER REVIEWING THE BASIS OF YOUR OBJECTION TO THE INVITATION, THE CONTRACTING OFFICER AND HIS SUPERIORS DECIDED THAT IT WAS IN THE BEST INTEREST OF THE GOVERNMENT TO REJECT ALL BIDS AND READVERTISE AT A LATER DATE. SINCE IT NOW APPEARS TO YOU THAT YOU MAY BE THE LOW RESPONSIVE BIDDER, YOU PROTEST THE REJECTION OF ALL BIDS, AND ARGUE THAT ANY AMBIGUITY IN THE INVITATION WAS ELIMINATED BY THE SPECIAL NOTE TO THE GENERAL REQUIREMENTS.

THIS SPECIAL NOTE STATES THAT THE LISTING OF ARTICLE OR MATERIAL, OPERATION OR METHOD, THROUGHOUT THE ENTIRE SPECIFICATION, REQUIRES THAT THE CONTRACTOR SHALL PROVIDE EACH ITEM LISTED, OF QUALITY,"OR SUBJECT TO QUALIFICATION, NOTED.' IT IS CONCEIVABLE THAT IN THE MIND OF THE PERSON WRITING THE "SPECIAL NOTE," THE PHRASE WAS INTENDED TO MEAN THAT THE COMPOSITION OF EACH MATERIAL LISTED IN THE COLOR SCHEDULE WAS SUBJECT TO QUALIFICATION BY THE DETAILED SPECIFICATIONS. HOWEVER, SUCH MEANING IS CERTAINLY NOT EXPRESSLY STATED, AS IT COULD HAVE BEEN, AND WE BELIEVE THAT A HOLDING THAT IT WAS EXPRESSED BY IMPLICATION IS A STRAINED INTERPRETATION WHICH CANNOT BE SUPPORTED WITHOUT IGNORING OTHER ASPECTS OF THE CASE.

FIRST, WE NOTE THAT THE SECOND AND LAST SENTENCE OF THE REFERRED-TO SPECIAL NOTE INDICATES THAT THE TRADE NAMES USED IN THE COLOR DESIGN WERE TO BE UNDERSTOOD AS FULLY MEETING THE REQUIREMENTS OF THE PROCURING AGENCY. THE SPECIAL NOTE STATES THAT CONSIDERATION WILL BE GIVEN MANUFACTURER'S STOCK DESIGN, MATERIALS AND CONSTRUCTION, DIFFERING SLIGHTLY FROM, BUT EQUAL, IN THE OPINION OF THE CONTRACTING OFFICER, TO THE MATERIAL AND EQUIPMENT SHOWN OR SPECIFIED. THIS STATEMENT MAY BE CONSIDERED AS NOT ONLY SUGGESTING THAT THE TRADE NAMES IN THE COLOR SCHEDULE ESTABLISH A STANDARD OF QUALITY TO BE FOLLOWED BY THE PROSPECTIVE BIDDERS, BUT IMPLYING THAT ANY MATERIAL WHICH DIFFERS RADICALLY FROM THAT TRADE NAME WOULD BE UNACCEPTABLE. SECONDLY, PARAGRAPH 24 OF THE GENERAL CONDITIONS STATES THAT "SPECIFIC REFERENCE IN THE SPECIFICATIONS TO ANY ARTICLE * * * BY NAME, MAKE OR CATALOG NUMBER SHALL BE INTERPRETED AS ESTABLISHING A STANDARD OF QUALITY," AND THE SPECIFICATIONS SPECIFICALLY DIRECT THE PROSPECTIVE BIDDER TO THE COLOR SCHEDULE FOR INFORMATION ON THE "QUALITY" OF THE VINYL WALL COVERING. HOWEVER, BOTH YOU AND THE GOVERNMENT AGREE THAT THE TRADE NAMES USED IN THE COLOR SCHEDULE HAD NOTHING TO DO WITH THE QUALITY OF THE MATERIAL, BUT WERE SOLELY "INTENDED AS A GUIDE TO COLOR, TEXTURE AND PATTERN.'

FINALLY, THE COMPOSITION OF SOME OF THE MATERIALS LISTED IN THE COLOR SCHEDULE IS NOT MERELY QUALIFIED BY, BUT IS RADICALLY DIFFERENT FROM THE DETAILED SPECIFICATIONS. YOU HAVE POINTED OUT THAT CORLON VINYL IS DEFICIENT IN THAT IT DID NOT HAVE A VINYL TOPCOAT OR A MILDEW RESISTENT COTTON FABRICATION, AND WAS 10 PERCENT LESS THAN THE MINIMUM FINISH WEIGHT REQUIREMENT AND 35 PERCENT LESS THAN THE MINIMUM WEIGHT OF VINYL COATING; THAT THE BREAKING STRENGTH IS 69 POUNDS FILL AND WARP, WHILE THAT REQUIRED WAS 95 POUNDS FILL AND 100 POUNDS WARP; AND THAT THE TEAR STRENGTH WAS 4.8 FILL AND 5.6 WARP, WHILE THAT REQUIRED WAS 50 FILL AND 80 WARP. SINCE CORLON VINYL ESTABLISHED "A STANDARD OF QUALITY" FROM WHICH ONLY SMALL DIFFERENCES WERE ACCEPTABLE, WHILE THE SPECIFICATIONS REQUIRED A PRODUCT WHICH DIFFERED WIDELY FROM THE ACTUAL COMPOSITION OF THE CORLON VINYL, WE BELIEVE THAT THE INVITATION SHOULD HAVE EXPLICITLY STATED THAT THE TRADE NAMES IN THE COLOR SCHEDULE HAD NOTHING WHATEVER TO DO WITH THE COMPOSITION QUALITY OF MATERIAL REQUIRED BY THE AGENCY. WE NOTE THAT THE ACTING CHIEF, COLOR DESIGN DIVISION, DID STATE THIS IN AN EASILY UNDERSTOOD "CONSTRUCTION REFERENCE" WHICH, UNFORTUNATELY, WAS NOT ISSUED UNTIL FOUR DAYS AFTER THE BID OPENING DATE, AND WAS THEREFORE OF NO BENEFIT TO THE BIDDING COMPANIES.

THE AGENCY HAS CONCLUDED, AND AT ONE POINT YOU ALSO URGED, THAT THE INVITATION IS AMBIGUOUS. THE FACTS OF THE CASE FORCE US TO AGREE WITH THIS CONCLUSION. WHERE IT IS DISCOVERED AFTER BID OPENING THAT THE SPECIFICATIONS ARE CLEARLY AMBIGUOUS, AS HERE, THE CONTRACTING OFFICER MAY REJECT ALL BIDS. SEE SECTION 1-2.404-1 (B) (1) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). THEREFORE, WE HAVE NO BASIS TO OBJECT TO THE ACTION TAKEN, AND YOUR PROTEST MUST BE DENIED.

THE REJECTION OF BIDS AFTER OPENING IS OBVIOUSLY UNFORTUNATE. IT IS ESPECIALLY REGRETTABLE HERE BECAUSE IT APPEARS THAT, UNDER THE PROVISIONS OF FPR 1-2.207, THE CONTRACTING OFFICER HAD THE AUTHORITY TO CORRECT THE AMBIGUITIES BY ISSUING AN AMENDMENT TO THE INVITATION. ACCORDINGLY, THE MATTER IS BEING CALLED TO THE ATTENTION OF THE ADMINISTRATIVE OFFICE.