B-150712, APR. 22, 1963

B-150712, APR. 22, 1963

TO THE SECRETARY OF THE NAVY:

THIS REFERS TO YOUR DEPARTMENT'S REPORT OF MARCH 4, 1963, CONCERNING THE PROTEST OF THE ELECTRIC PRODUCTS COMPANY UNDER INVITATION FOR BIDS NO. 600 -364-63, ISSUED ON NOVEMBER 15, 1962, BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE INVITATION SCHEDULE, IN WHICH IT WAS STIPULATED THAT AWARD WOULD BE BY LOT, REQUESTED BIDS ON THE FOLLOWING:

CHART

LOT 1 ITEM NO. QUANTITY UNIT PRICE AMOUNT

1. BATTERY CHARGERS, SINGLE CIRCUIT 34 EACH

MOTOR GENERATOR TYPE, 660 AC

AMPERE HOUR

(OPTION ITEM, NO

2. ON-BOARD REPAIR PARTS FOR ITEM 1 16 SETS PRICE TO BE INSERTED)

3. PRELIMINARY DRAWINGS FOR ITEM 1 2

4. FINAL DRAWINGS FOR ITEM 1 1 PRICE OF ITEMS 3,

5. PRELIMINARY SERVICE MANUALS FOR 4 AND 5 TO BE

ITEM 1 4 EACH INCLUDED IN PRICE OF

6. FINAL SERVICE MANUALS FOR ITEM 1 10 EACH ITEM NO. 1

7. PROVISIONING TECHNICAL

DOCUMENTATION (METHOD B) FOR

ITEM 1 1 LOT

IMMEDIATELY FOLLOWING ITEM NO. 6 THE BID SCHEDULE SET FORTH THE DISTRIBUTION REQUIRED ON THAT ITEM, CALLING FOR TWO MANUALS TO BE PACKED WITH EACH UNIT OF EQUIPMENT, 25 MANUALS TO BE DELIVERED TO THE NAVAL SUPPLY DEPOT, PHILADELPHIA, PENNSYLVANIA, 2 MANUALS TO EACH OF TWO OTHER DESTINATIONS, AND ONE MANUAL EACH TO 12 OTHER LISTED DESTINATIONS. TOTAL, THIS CALLED FOR A DISTRIBUTION OF 109 FINAL SERVICE MANUALS.

FURTHER DOWN IN THE INVITATION UNDER "PRESERVATION, PACKAGING, AND PACKING," PAGE NO. 6 OF THE INVITATION, IT IS STATED AS FOLLOWS:

"ITEM 6-2 EACH SHALL BE PACKED WITH 2 EACH OF ITEM 1 STOCK REQUIREMENT.-- - ALL OTHER MANUALS TO BE PACKED SEPARATELY IN ACCORDANCE WITH CONTRACTOR'S BEST COMMERCIAL PRACTICE.'

AND ON PAGE NO. 7, UNDER "TIME OF DELIVERY" IT IS STATED THAT ITEM 6 SHOULD BE DELIVERED 2 EACH WITH EACH UNIT OF EQUIPMENT, AND THAT THE BALANCE SHOULD BE DELIVERED AT TIME OF FIRST DELIVERY OF PRODUCTION UNITS. THUS, ALTHOUGH THE SCHEDULE LISTED A QUANTITY OF 10 EACH UNITS ON ITEM NO. 6, THE SPECIFICATIONS DETAILED DELIVERY ON 109 MANUALS.

AMENDMENT NO. 1 TO THE INVITATION IS NOT RELEVANT HERE, BUT BY AMENDMENT NO. 2, DATED DECEMBER 14, 1962, THE BID OPENING DATE WAS CHANGED FROM DECEMBER 17, 1962, TO DECEMBER 20, 1962, AND THE QUANTITY OF ITEM NO. 6, PAGE 2 OF THE INVITATION, WAS CHANGED TO READ "109" IN LIEU OF "10.'

ON DECEMBER 20, 1962, THREE BIDS WERE RECEIVED AND OPENED. THESE BIDS WERE FROM INET-SPRAGUE DIVISION OF SPRAGUE ENGINEERING CORPORATION, HAYWOOD INDUSTRIES, INC., AND THE ELECTRIC PRODUCTS COMPANY. THE BIDS WERE TABULATED AS FOLLOWS:

CHART

ITEMS NOS. 3-5

ITEM NO. 1 INCLUDED IN

(34 EACH) ITEM NO. 1 ITEM NO. 6 ITEM NO. 7 INET-SPRAGUE $2,158 EACH

--- $27.00 EACH $380 FOR LOT ELECTRIC

PRODUCTS $2,995 EACH --- 3.00 EACH N/C HAYWOOD $3,204 EACH

--- 3.00 EACH N/C

IT WAS NOTED THAT INET-SPRAGUE DID NOT FURNISH AMENDMENT NO. 2 WITH ITS BID OR ACKNOWLEDGE ITS RECEIPT. ON ITS BID SCHEDULE, PAGE 2 OF THE INVITATION, INET-SPRAGUE QUOTED A UNIT PRICE OF $27 AND A TOTAL PRICE OF $270 ON ITEM NO. 6. IT IS REPORTED THAT AMENDMENT NO. 2 HAS NOT YET BEEN RECEIVED FROM THIS BIDDER.

YOUR CONTRACTING OFFICER PROPOSES TO MAKE AN AWARD TO INET-SPRAGUE AS THE LOW BIDDER (BY OVER $25,000), BASED ON A QUANTITY OF 10 UNITS FOR ITEM NO. 6. THE CONTRACTING OFFICER ADVISES THAT IT HAS BEEN DETERMINED, WITH THE CONCURRENCE OF THE REQUISITIONING ACTIVITY (THE BUREAU OF SHIPS), THAT AN AWARD ON 10 MANUALS FOR ITEM NO. 6 WILL MEET THE NEED OF THE GOVERNMENT. IN SUPPORT OF THIS PROPOSED ACTION, THE CONTRACTING OFFICER POINTS TO PARAGRAPH 8 (C) OF STANDARD FORM 30, A PART OF THE INVITATION, WHICH STATES THAT UNLESS OTHERWISE PROVIDED IN THE SCHEDULE BIDS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED, AND THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY BID UPON AT THE UNIT PRICE OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN HIS BID.

THE ELECTRIC PRODUCTS COMPANY, THE SECOND LOW BIDDER, CONTENDS THAT IN ACCORDANCE WITH ASPR 2-405 (IV) (B), INET-SPRAGUE'S "INCOMPLETE" BID MUST BE REJECTED FOR THE FAILURE ON THE PART OF THAT BIDDER TO ACKNOWLEDGE AN AMENDMENT WHICH AFFECTS PRICE AND QUANTITY.

THE PROPOSED ACTION BY YOUR DEPARTMENT PROCEEDS ON THE BASIS THAT INET- SPRAGUE HAS SUBMITTED A BID ON ONLY 10 UNITS FOR ITEM NO. 6, AND THAT THE GOVERNMENT HAS THE RIGHT TO AWARD ON THAT NUMBER DESPITE THE FACT THAT AMENDMENT NO. 2 CHANGED THE NUMBER IN THE LOT TO 109. IT APPEARS TO US THAT INET-SPRAGUE'S BID REFLECTS THE INCONSISTENCY CONTAINED IN THE ORIGINAL INVITATION WITH REGARD TO THE NUMBER OF UNITS REQUIRED ON ITEM NO. 6, WHICH THE AMENDMENT UNDERTOOK TO CORRECT. THE INET-SPRAGUE BID PRICE CLEARLY WAS OFFERED ON 10 UNITS AS REQUESTED IN THE SCHEDULE, ALTHOUGH THE SPECIFICATIONS CLEARLY STIPULATED DELIVERY REQUIREMENTS FOR CONSIDERABLY MORE THAN 10 UNITS.

IN OUR VIEW THE EXPRESS STIPULATION THAT AWARD WOULD BE BY LOT CAN PROPERLY BE INTERPRETED ONLY AS MEANING THAT AWARD WOULD BE ON THE EXACT ITEMS AND QUANTITIES LISTED AS COMPRISING THE LOT. THIS STIPULATION, WE BELIEVE, PRECLUDES THE APPLICATION OF ARTICLE 8 (C) OF THE TERMS AND CONDITIONS OF THE INVITATION, STANDARD FORM 30, PERMITTING BIDS AND AWARDS ON ANY ITEM FOR QUANTITIES LESS THAN THOSE SPECIFIED. SINCE THE QUANTITY OF THE MANUALS (ITEM 6) INCLUDED IN THE LOT WAS FIXED BY AMENDMENT NO. 2 AT 109, AWARD MAY NOT PROPERLY BE MADE FOR ONLY 10 MANUALS, AS PROPOSED. ON THE OTHER HAND, SINCE INET SPRAGUE'S BID CANNOT BE CONSTRUED AS OFFERING MORE THAN 10 OF THIS ITEM, AWARD COULD NOT BE MADE TO IT FOR 109, EVEN AT THE UNIT PRICE QUOTED, WITHOUT ITS CONSENT. FOR THESE REASONS THE INET-SPRAGUE BID MUST BE CONSIDERED AS NONRESPONSIVE TO THE AMENDED INVITATION.

IN THE CIRCUMSTANCES WE CONCLUDE THAT AWARD SHOULD BE MADE ON THE BEST RESPONSIVE BID, UNLESS IT BE DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO REJECT ALL BIDS AND READVERTISE.