B-149079, OCT. 11, 1962

B-149079, OCT. 11, 1962

TO SHERIDAN-GRAY, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF THE CONTRACT UNDER INVITATION FOR BIDS NO. 156-515-62, ISSUED BY THE NAVAL AIR MATERIAL CENTER, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION REQUESTED BIDS FOR FURNISHING THREE HYDRAULIC HOT FORMING AND SIZING PRESSES F.O.B. COLUMBUS, OHIO, FOR INSTALLATION AS GOVERNMENT- OWNED EQUIPMENT IN THE PLANT OF NORTH AMERICAN AVIATION, INCORPORATED, AND INCLUDED THE FOLLOWING PROVISION WITH REGARD TO TIME OR DELIVERY:

"TIME OF DELIVERY: MACHINES TO BE FURNISHED HEREUNDER SHALL BE DELIVERED WITHIN THE NUMBER OF WEEKS AFTER DATE OF CONTRACT SPECIFIED BELOW BASED ON ASSIGNMENT OF URGENCY STANDING (40) UNDER BDSA ORDER M41 TO ANY RESULTANT CONTRACT:

TABLE

ITEM NO. OF WEEKS

1 22 WEEKS

2 26 WEEKS

"ANY BID OFFERING DELIVERY AT VARIANCE WITH THE GOVERNMENT'S DELIVERY REQUIREMENTS SET FORTH HEREIN, OR OFFERING DELIVERY CONTINGENT UPON THE AVAILABILITY OR RECEIPT OF MATERIAL SHALL BE CONSIDERED NONRESPONSIVE TO THE INVITATION AND SHALL BE REJECTED.

"ATTENTION IS DIRECTED TO PARAGRAPH 8 (D) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, WHICH PROVIDES THAT A WRITTEN AWARD MAILED OR OTHERWISE FURNISHED TO THE SUCCESSFUL BIDDER RESULTS IN A BINDING CONTRACT. ANY AWARD HEREUNDER, OR A PRELIMINARY NOTICE THEREOF, WILL BE MAILED OR OTHERWISE FURNISHED TO THE SUCCESSFUL BIDDER THE DAY THE AWARD IS MADE. THEREFORE, IN COMPUTING THE TIME AVAILABLE FOR PERFORMANCE, THE BIDDER SHOULD TAKE INTO CONSIDERATION THE TIME REQUIRED FOR THE NOTICE OF AWARD TO ARRIVE THROUGH THE ORDINARY MAILS.'

PARAGRAPH (A) OF SECTION 33 OF THE GENERAL PROVISIONS, DEFECT OR NONCONFORMANCE IN DELIVERED ARTICLES, WHICH FORMED A PART OF THE INVITATION, PROVIDES THAT "ALL ARTICLES DELIVERED UNDER THIS CONTRACT WILL BE FREE FROM DEFECTS IN MATERIAL OR WORKMANSHIP AND WILL CONFORM WITH THE SPECIFICATIONS AND ALL OTHER REQUIREMENTS OF THIS CONTRACT.' PARAGRAPH (B) OF THIS PROVISION FURTHER PROVIDES,"WITHIN ONE YEAR AFTER THE DELIVERY OF ANY ARTICLE UNDER THIS CONTRACT, WRITTEN NOTICE MAY BE GIVEN BY THE GOVERNMENT TO THE CONTRACTOR OF ANY BREACH OF WARRANTIES IN PARAGRAPH (A) OF THIS CLAUSE AS TO SUCH ARTICLE.'

THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. YOUR BID WAS THE LOWEST AS TO BOTH ITEMS. IN A LETTER ACCOMPANYING YOUR BID IT WAS STATED IN PART AS FOLLOWS:

"WE ARE PLEASED TO SUBMIT THE FOLLOWING QUOTATIONS COVERING TWO (2) SHERIDAN-GRAY MODEL HPC-75-75-33 HOT FORMING AND SIZING PRESSES PER YOUR SPECIFICATIONS REF:CLASS 202, UNIT NO. 1, AND ONE (1) SHERIDAN GRAY MODEL HPC-150-150-36 PER YOUR SPECIFICATIONS REF: CLASS 202, UNIT NO. 2.

"ALL PRESSES QUOTED HEREIN ARE IN COMPLETE COMPLIANCE WITH BUREAU OF NAVAL WEAPONS INDUSTRIAL OFFICE SPECIFICATION NO. 62-82 IFB-156-515 62 AS DEPICTED ON SHERIDAN-GRAY DRAWINGS NO. P-3200 AND NO. P-3201 ATTACHED, AND AS SPECIFIED AS FOLLOWS: "

IT WAS FURTHER STATED IN SAID LETTER THAT THE PRESSES COVERED BY ITEMS 1 AND 2 WOULD BE DELIVERED WITHIN 22 AND 26 WEEKS, RESPECTIVELY, "FROM NOTIFICATION OF CONTRACT AWARD," AND UNDER ,WARRANTY" IT WAS STATED:

"THE MACHINES ARE GUARANTEED FOR ONE (1) YEAR AGAINST DEFECTIVE MATERIAL AND WORKMANSHIP ON PARTS MANUFACTURED BY THE SHERIDAN-GRAY COMPANY. STANDARD PURCHASED COMPONENTS, SUCH AS VALVES, MOTORS, ETC., CARRY THE WARRANTY OF THE INDIVIDUAL MANUFACTURERS.'

THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NOT RESPONSIVE TO THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS FOR THE REASONS THAT (1) THE STATEMENT THAT DELIVERY WOULD BE EFFECTED WITHIN 22 AND 26 WEEKS "FROM NOTIFICATION OF CONTRACT AWARD" WAS AT VARIANCE WITH THE DELIVERY REQUIREMENTS SET FORTH ABOVE WHICH REQUIRED DELIVERY TO BE FIGURED FROM "DATE OF CONTRACT," AND (2) THE WARRANTY PROVISION CONTAINED IN YOUR LETTER WAS AT VARIANCE WITH THE DEFECT AND NONCONFORMANCE IN DELIVERED ARTICLES SECTION OF THE GENERAL PROVISIONS.

YOU PROTEST THE REJECTION OF YOUR BID FOR THE ABOVE REASONS ON THE BASIS THAT IT WAS CLEARLY INDICATED IN YOUR ATTACHED LETTER THAT THE PRESSES OFFERED WERE ALL IN ACCORDANCE WITH THE SPECIFICATIONS, TERMS AND CONDITIONS, AND THAT NO DEVIATION FROM SPECIFICATIONS, DELIVERY REQUIREMENTS, OR OTHERWISE, WAS INTENDED. WITH RESPECT TO DELIVERY REQUIREMENTS, IT IS STATED THAT THE INVITATION FOR BIDS ALSO PROVIDES THAT "A WRITTEN AWARD MAILED OR OTHERWISE FURNISHED TO THE SUCCESSFUL BIDDER RESULTS IN A BINDING CONTRACT; " THAT THE CONTRACTING OFFICIALS WERE FULLY AWARD THAT YOU HAD A FULLY AUTHORIZED REPRESENTATIVE IN THE PHILADELPHIA AREA; AND THAT THE REPRESENTATIVE COULD HAVE BEEN NOTIFIED BY PHONE AND COULD HAVE PERSONALLY PICKED UP THE AWARD AND THUS PREVENTED ANY LOSS OF TIME IN THE MAILS. THEREFORE, IT IS ALLEGED THAT THE DELIVERY SCHEDULE OFFERED IN YOUR BID DID NOT DIFFER FROM THAT REQUIRED BY THE INVITATION.

IT HAS BEEN HELD THAT A BID OFFERING DELIVERY WITHIN A GIVEN TIME AFTER RECEIPT OF NOTICE OF WARD, WHETHER EMPLOYING THAT PHRASE OR SOME OTHER PHRASE HAVING SUBSTANTIALLY THE SAME EFFECT, MAY NOT BE REGARDED AS RESPONSIVE TO AN INVITATION REQUIRING DELIVERY WITHIN THE STATED TIME AFTER DATE OF CONTRACT. SEE 38 COMP. GEN. 98; AND ID. 876. IT IS NOT THE RESPONSIBILITY OF THE GOVERNMENT TO ATTEMPT TO INSURE DELIVERY (BY HAND OR OTHERWISE) OF A WRITTEN AWARD SO THAT IT WILL REACH THE BIDDER ON THE DATE OF THE AWARD. IN THIS CONNECTION, THE FINAL SENTENCE OF THE TIME OF DELIVERY CLAUSE PROVIDES,"THEREFORE, IN COMPUTING THE TIME AVAILABLE FOR PERFORMANCE, THE BIDDER SHOULD TAKE INTO CONSIDERATION THE TIME REQUIRED FOR THE NOTICE OF AWARD TO ARRIVE THROUGH THE ORDINARY MAILS.' IF YOUR OFFER OF DELIVERY IN THE STATED PERIOD "FROM NOTIFICATION OF AWARD" WAS NOT INTENDED TO VARY THE CLEARLY STATED INVITATION REQUIREMENT, THERE WOULD APPEAR TO BE NO REASON FOR THE USE OF DIFFERENT LANGUAGE.

IN REGARD TO WARRANTY IT IS CONTENDED THAT THE WARRANTY PROVISION CONTAINED IN YOUR LETTER IS AN ADDED WARRANTY AND WAS NOT INTENDED TO BE CONSTRUED AS A DEVIATION FROM THE REQUIREMENTS OF THE INVITATION. IN THIS CONNECTION YOU REFER TO THE GENERAL STATEMENTS APPEARING IN THE FIRST AND LAST PAGES OF YOUR LETTER THAT THE PRESSES QUOTED ON ARE IN COMPLETE COMPLIANCE WITH SPECIFICATIONS. SUCH OVERALL OFFERS OF COMPLIANCE MAY NOT BE CONSIDERED AS MODIFYING OR RENDERING MEANINGLESS SPECIFIC STATEMENTS BY A BIDDER AT VARIANCE WITH ANY DETAILED REQUIREMENT OF THE SPECIFICATIONS OR OTHER PROVISIONS OF THE BID INVITATION. UNDER YOUR WARRANTY PROVISION YOU GUARANTEED THE PRESSES FOR ONE YEAR AGAINST DEFECTIVE MATERIAL AND WORKMANSHIP ONLY AS TO PARTS MANUFACTURED BY YOU, WHEREAS SECTION 33 OF THE GENERAL PROVISION OF THE INVITATION REQUIRED THAT YOU GUARANTEE ALL PARTS FOR ONE YEAR. THUS, IT MUST BE CONSIDERED THAT YOUR WARRANTY WAS NOT IN ACCORDANCE WITH THE REQUIREMENTS OF THE INVITATION.

YOU ALSO PROTEST THE AWARD MADE TO U.S. INDUSTRIES, INCORPORATED, ON THE BASIS THAT ITS QUOTATION CONTAINED A DIRECT TECHNICAL DEVIATION FROM BUREAU OF NAVAL WEAPONS INDUSTRIAL OFFICE SPECIFICATION NO. 62-82 WHEREIN IT WAS STATED ON PAGE 5, LINE 14,"HORIZONTAL CLAMPING STROKE (MIN.) 4 INCHES," WHEREAS U.S. INDUSTRIAL OFFERED A TOTAL OF 4 INCHES. IN YOUR LETTER IT IS STATED THAT:

"OUR BASIS FOR THIS CLAIM OF DEVIATION FROM TECHNICAL SPECIFICATIONS BY U.S. INDUSTRIES DERIVES FROM MEETINGS WITH THE PRIME USER PRIOR TO THEIR PREPARATION OF DRAFT OF THEIR HOT PRESS REQUIREMENTS TO BE PRESENTED TO THE NAVY, FROM WHICH NAVY SPECIFICATIONS NO. 62-82 WERE COMPILED, AND ALSO A CURRENT MEETING AT THE PRIME USERS PLANT TO CONFIRM THAT NO CHANGES HAD BEEN MADE BY THE PRIME PERTAINING TO THE PRESS FRONT AND BACK CLAMPING STROKE REQUIREMENT.

"THEREFORE, SHERIDAN GRAY MAINTAINS THAT IF ANY BIDDER HAD ANY QUESTIONS PERTAINING TO THE NAVY SPECIFICATION IN REGARD TO THE MEANING OF THE WORDING "HORIZONTAL CLAMPING STROKE (MIN) 4 INCHES, THEY SHOULD HAVE CALLED FOR CLARIFICATION INFORMATION AS SPECIFIED IN THE INVITATION TO BID FORM, PAGE 1, AND NOT CHANGE OR DEVIATE FROM THE TECHNICAL SPECIFICATIONS, AS IN THE CASE OF U.S. INDUSTRIES WHEREIN THEIR QUOTATION DEVIATES BY STATING; HORIZONTAL CLAMPING STROKE--- TOTAL 4 INCHES. THIS DEVIATION, I.E. ADDING THE WORD "TOTAL," WITHOUT QUESTION, IN TERMS OF THE INDUSTRY MEANS ONLY TWO (2) INCH FRONT AND TWO (2) INCH BACK CLAMPING STROKE.'

IN THIS RESPECT THE DEPARTMENT OF THE NAVY REPORTS THAT:

"THE BUWEPS IND. OFFICE SPECIFICATION WAS PREPARED UPON REVIEW OF NORTH AMERICAN, INC., REQUIREMENTS AND SUBSEQUENT TO DISCUSSIONS WITH COGNIZANT BUREAU OF WEAPONS, AND NORTH AMERICAN, INC., PERSONNEL. BWIO SPECS REFLECTED THE MINIMUM CLAMPING REQUIREMENTS AND DID NOT SPECIFY THE MOVEMENT OF INDIVIDUAL CLAMPS. THE STROKE OF EACH CLAMP WAS NOT SPECIFIED, AS THE REQUIRED CLAMPING ACTION ON THIS TYPE OF EQUIPMENT EMANATES FROM A SINGLE SOURCE (WHICH IS SIMILAR TO THE FORCE WHICH IS APPLIED BY HAND TO A PAIR OF PLIERS). AS THE WORK IS NOT CENTERED OR FASTENED TO THE PRESS PLATEN, THE DISTANCE TRAVELED BY EACH CLAMP IS NOT ESSENTIAL.

"SHERIDAN GRAY'S ALLEGATION THAT U.S. INDUSTRIES' QUOTATION "HORIZONTAL CLAMPING STROKE TOTAL 4 INCHES" IS A DIRECT DEVIATION FROM BWIO SPECIFICATION 62-82, IS INACCURATE AND IS BASED UPON THEIR OWN ASSUMPTION THAT THE STROKE SHOULD BE AT LEAST 4 INCHES FOR EACH CLAMP JAW.

"BWIO DISCUSSIONS WITH COGNIZANT REPRESENTATIVES OF NORTH AMERICAN, INC., AND AS INDICATED IN ENCLOSURE (1), REAFFIRM THAT THE ENTIRE CLAMPING STROKE OF 4 INCHES AS SPECIFIED IS ADEQUATE FOR ANY VARIATIONS IN STACK UP AND WILL SATISFY THEIR NEEDS FOR HOT FORMING AND SIZING OPERATIONS.'

THE REFERRED-TO ENCLOSURE (1) IS A LETTER DATED JULY 2, 1962, TO THE BUREAU OF NAVAL WEAPONS INDUSTRIAL OFFICE WHEREIN NORTH AMERICAN AVIATION, INCORPORATED, STATES IN PART AS FOLLOWS:

"IT IS KNOWN THAT SOME CONVERSATION HAS TAKEN PLACE BETWEEN OUR MANUFACTURING PERSONNEL AND BOTH THE SUCCESSFUL AND THE UNSUCCESSFUL BIDDERS FOR THIS CONTRACT. HOWEVER THERE HAS NEVER BEEN ANY OFFICIAL COMMENTS OR CORRESPONDENCE THROUGH RECOGNIZED CHANNELS TO EITHER YOUR OFFICE OR STAFF OR ANY PRESS MANUFACTURER TO THE EFFECT THAT PRESSES TO THESE SPECIFICATIONS WOULD NOT PERFORM THE WORK FOR WHICH THEY ARE BEING PROCURED.'

IN VIEW OF THE FOREGOING, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT THE TOTAL CLAMPING STROKE OF THE PRESSES OFFERED BY U.S. INDUSTRIES, INCORPORATED, MEETS THE GOVERNMENT'S NEEDS AND IS IN ACCORDANCE WITH THE SPECIFICATION REQUIREMENTS, AND THEREFORE, THERE IS NO BASIS FOR US TO QUESTION THE AWARD MADE TO U.S. INDUSTRIES, INCORPORATED, AS THE LOWEST BIDDER COMPLYING WITH THE REQUIREMENTS OF THE INVITATION.