B-149852, OCT. 10, 1962

B-149852, OCT. 10, 1962

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 5, 1962, WITH ENCLOSURES, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTING A DECISION AS TO WHETHER THE GENERAL ELECTRIC COMPANY, DENVER, COLORADO, SHOULD BE REQUIRED TO FURNISH PULSE TOTALIZING EQUIPMENT CONFORMING TO DATA SUBMITTED WITH ITS BID ON WHICH CONTRACT NO. 14-06-100-2454 IS BASED.

THE BUREAU OF RECLAMATION, BOISE, IDAHO, BY INVITATION NO. 100-1100, REQUESTED BIDS FOR FURNISHING WATTHOUR METER AND PULSE TOTALIZING EQUIPMENT FOR POWER PLANT AND PUMPING PLANT CONTROL CENTRALIZATION, GRAND COULEE DAM, COLUMBIA BASIN PROJECT, WASHINGTON.

PARAGRAPHS 2 AND 3 (A) OF THE SPECIAL PROVISIONS OF THE INVITATION PROVIDE AS FOLLOWS:

"2. DATA REQUIRED OF BIDDERS. EACH BIDDER SHALL SUBMIT WITH HIS BID SUFFICIENT DESCRIPTIVE LITERATURE, SPECIFICATIONS, DRAWINGS, OR OTHER DATA TO FULLY IDENTIFY THE EQUIPMENT AND COMPONENTS HE PROPOSES TO FURNISH. THE ABOVE DATA SHALL BE FURNISHED IN DUPLICATE.

"3. DRAWINGS AND DATA TO BE FURNISHED BY THE CONTRACTOR (ITEM 3 ONLY).

(A) APPROVAL DRAWINGS.--- AS SOON AS PRACTICABLE AFTER DATE OF RECEIPT OF NOTICE OF AWARD OF CONTRACT AND BEFORE BEGINNING MANUFACTURE, OR BEFORE SHIPMENT IF THE EQUIPMENT IS FURNISHED FROM STOCK, THE CONTRACTOR SHALL SUBMIT TO THE CONTRACTING OFFICER, FOR APPROVAL, THREE SETS OF ASSEMBLY DRAWINGS AND SUFFICIENT CONSTRUCTION DRAWINGS TO DEMONSTRATE FULLY THAT THE EQUIPMENT TO BE FURNISHED WILL CONFORM TO THE REQUIREMENTS OF THESE SPECIFICATIONS. ANY MANUFACTURING DONE OR SHIPMENT MADE BEFORE APPROVAL OF THE DRAWINGS WILL BE AT THE CONTRACTOR'S RISK. THE CONTRACTING OFFICER SHALL HAVE THE RIGHT TO REQUIRE THE CONTRACTOR TO MAKE ANY CHANGES IN THE EQUIPMENT DESIGN WHICH MAY BE NECESSARY, IN THE OPINION OF THE CONTRACTING OFFICER, TO MAKE THE EQUIPMENT CONFORM TO THE REQUIREMENTS OF THESE SPECIFICATIONS, WITHOUT ADDITIONAL COST TO THE GOVERNMENT. APPROVAL BY THE CONTRACTING OFFICER OF THE CONTRACTOR'S DRAWINGS SHALL NOT BE HELD TO RELIEVE THE CONTRACTOR OF ANY PART OF THE CONTRACTOR'S RESPONSIBILITY TO MEET ALL OF THE REQUIREMENTS OF THESE SPECIFICATIONS OR OF THE RESPONSIBILITY FOR THE CORRECTNESS OF THE CONTRACTOR'S DRAWINGS.'

BIDS WERE OPENED ON MAY 22, 1962, AND IT APPEARS THAT THE GENERAL ELECTRIC COMPANY SUBMITTED THE ONLY RESPONSIVE BID ON ITEMS 1 TO 4, INCLUSIVE. ITEM 3 COVERS PULSE TOTALIZING EQUIPMENT FOR FIVE STATIONS AND IN ITS BID THE COMPANY OFFERED TO FURNISH THIS EQUIPMENT FOR A LOT PRICE OF $11,370.60. WITH ITS BID THE COMPANY SUBMITTED SKETCHES INDICATING THAT SOLID STATE TOTALIZERS WOULD BE FURNISHED WITH THE PULSE TOTALIZING SYSTEM CALLED FOR UNDER ITEM 3 OF THE INVITATION. THE BID OF THE COMPANY WAS ACCEPTED AS TO ITEMS 1 THROUGH 4, INCLUSIVE, ON JUNE 8, 1962.

IN A LETTER DATED JUNE 19, 1962, THE GENERAL ELECTRIC COMPANY ADVISED THE CONTRACTING OFFICER THAT THE SKETCH SUBMITTED WITH ITS BID FOR ITEM 3 ERRONEOUSLY SHOWED SOLID STATE TOTALIZERS FOR ALL STATIONS, ALTHOUGH IT INTENDED TO FURNISH MECHANICAL RELAY TOTALIZERS FOR THE STATION SERVICE AND THE PUMPING PLANT AND SOLID STATE TOTALIZERS FOR THE OTHER THREE STATIONS. THE COMPANY FURTHER STATED THAT ITS BID PRICE WAS BASED ON FURNISHING SOLID STATE TOTALIZERS FOR ONLY THREE OF THE FIVE STATIONS AND THAT IF IT WAS REQUIRED TO FURNISH SOLID STATE TOTALIZERS FOR THE OTHER TWO STATIONS THE CONTRACT PRICE FOR ITEM 3 WOULD HAVE TO BE INCREASED BY $2,574 TO COVER THE DIFFERENCE IN COST OF THE TWO TYPES OF TOTALIZERS. LETTER DATED JUNE 29, 1962, THE CONTRACTING OFFICER ADVISED THE COMPANY THAT HE WAS WITHOUT AUTHORITY TO GRANT IT RELIEF FROM ITS ERROR BUT THAT THE MATTER WOULD BE SUBMITTED TO THE COMPTROLLER GENERAL UPON SUBMISSION BY THE COMPANY OF EVIDENCE IN SUPPORT OF ITS ALLEGATION OF ERROR.

IN A LETTER DATED JULY 20, 1962, THE COMPANY EXPLAINED THE ERROR IN ITS BID AS FOLLOWS:

"I PREPARED OUR BID, BASED ON QUOTATION OF MAY 16, 1962, RECEIVED FROM OUR METER DEPARTMENT SALES REPRESENTATIVE, D. R. ARTHUR, ORIGINAL OF WHICH QUOTATION IS ATTACHED. THIS QUOTATION INCLUDES SEVERAL ALTERNATIVE ITEMS, THE ONES UNDER CONSIDERATION BEING THE TYPE OF TOTALIZER TO BE OFFERED FOR THE STATION SERVICE GENERATION, ITEM 3A, AND THE PUMPING PLANT TOTALIZER, ITEM 3E. BASED ON PREVIOUS EXPERIENCE IN GOVERNMENT BIDDING I FELT IT INADVISABLE TO SUBMIT ALTERNATIVE QUOTATIONS, BECAUSE OF MY UNDERSTANDING THE GOVERNMENT MUST ACCEPT THE LOWER OF TWO ALTERNATIVES, BOTH OF WHICH ARE IN ACCORDANCE WITH REQUIREMENTS OF THE INVITATION FOR BIDS.

"ACCORDINGLY, MY BID ON YOUR ITEM NO. 3 WAS BASED ON THE USE OF THE ITEMS WHICH HAVE BEEN LISTED AND TOTALIZED IN INK ON THE UPPER PORTION OF PAGE 7 OF THE FACTORY QUOTATION. THE LISTED TEN ITEMS, AS YOU WILL NOTE, TOTALED $11,370.60. NO ATTEMPT WAS MADE TO QUOTE THE RECOMMENDED ITEMS DETAILED AT THE BOTTOM PAGE 7 AND ON PAGE 8 OF THE QUOTATION, SINCE THE TOTAL PRICE OF THE ALTERNATIVE WOULD HAVE BEEN APPRECIABLY IN EXCESS OF THOSE INTENDED BY MY QUOTATION. MY BID TO YOU DID NOT LIST ITEMS IN DETAIL, AS IT WAS MY INTENTION TO COMPLY FULLY WITH SPECIFICATION REQUIREMENTS OF THE INVITATION FOR BIDS.

"BY REFERENCE TO PAGE 6 OF FACTORY QUOTATION, YOU WILL NOTE THAT I RECEIVED WITH THE QUOTATION PRINTS OF THREE DRAWINGS AND A SKETCH, ALL OF WHICH WERE INCLUDED IN MY BID. I DID NOT NOTICE THAT OUR SKETCH A, COVERING OUR CONCEPT OF THE COMPLETE TOTALIZING SCHEME, WAS APPLICABLE TO THE HIGHER-PRICED ALTERNATIVE USING SOLID-STATE DEVICES THROUGHOUT, NOR DID I OBSERVE THAT NO SIMILAR ALTERNATIVE SKETCH WAS INCLUDED COVERING THE SCHEME USING TYPE DT-3 TOTALIZING RELAYS FOR THE STATION SERVICE AND PUMPING PLANT TOTALIZERS. ACCORDINGLY, WE REQUEST THAT APPROVAL BE GIVEN TO DELETE SKETCH A FROM OUR BID AND THE CONTRACT, WHICH WOULD RESULT IN OUR FURNISHING THE FOLLOWING MATERIAL, AS CONTEMPLATED, FOR YOUR ITEM NO. 3.'

THE EVIDENCE SUBMITTED BY THE COMPANY WITH ITS LETTER SUBSTANTIATES ITS ALLEGATION THAT ITS BID PRICE FOR ITEM 3 WAS BASED ON FURNISHING MECHANICAL RELAY TOTALIZERS FOR TWO STATIONS AND SOLID STATE TOTALIZERS FOR THE OTHER THREE STATIONS.

ON THE PAGE OF THE INVITATION REQUIRING THAT BIDDERS ANSWER THE QUESTION WHETHER THE EQUIPMENT OFFERED IS IN STRICT ACCORDANCE WITH THE GOVERNING SPECIFICATION, BIDDERS WERE ADVISED THAT THE DATE TO BE FURNISHED BY THE BIDDER WAS REQUIRED FOR INFORMATIONAL PURPOSES. IT APPEARS THAT THE DATA WAS NOT MADE A PART OF THE FORMAL CONTRACT. ALTHOUGH THE COMPANY'S BID MAY HAVE BEEN EVALUATED ON THE BASIS OF ITS FURNISHING SOLID STATE TOTALIZERS FOR ALL FIVE STATIONS, IT WOULD APPEAR THAT THE ACTUAL AND ONLY PROPER BASIS FOR THE AWARD WAS THAT THE GENERAL ELECTRIC COMPANY WAS THE LOWEST RESPONSIBLE BIDDER OFFERING TO COMPLY WITH THE SPECIFICATIONS. WHILE THE COMPANY SUBMITTED DATA WITH ITS BID WHICH INDICATED THAT IT WOULD FURNISH SOLID STATE TOTALIZERS, IT WOULD HAVE ALSO BEEN ENTITLED TO THE AWARD HAD IT SUBMITTED DATA INDICATING THAT IT WOULD FURNISH MECHANICAL RELAY TOTALIZERS, SINCE BOTH MET THE REQUIREMENTS OF THE SPECIFICATIONS.

IT IS OUR OPINION, THEREFORE, THAT A VALID BINDING CONTRACT EXISTS BETWEEN THE PARTIES AND THAT THE COMPANY MAY FURNISH MECHANICAL RELAY TOTALIZERS INSTEAD OF SOLID STATE TOTALIZERS FOR THE STATION SERVICE AND THE PUMPING PLANT. SEE 37 COMP. GEN. 495. A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE CONTRACT.