B-150786, MAR. 29, 1963

B-150786: Mar 29, 1963

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VETERANS ADMINISTRATION: WE HAVE RECEIVED A REPORT FROM THE DEPARTMENT OF MEDICINE AND SURGERY ON THE PROTEST OF WILMOT CASTLE COMPANY. WAS REJECTED BECAUSE IT WAS DETERMINED THAT THE WILMOT STERILIZER REQUIRED TOO MUCH SPACE. IT IS NOT ALLEGED THAT THE WILMOT BID IN UNRESPONSIVE TO THE SPECIFICATION. IT WOULD HAVE OFFERED ITS STERILIZER WITH THE CONTROL CONSOLE MOUNTED HORIZONTALLY. THE RULES OF COMPETITIVE ADVERTISED BIDDING REQUIRE THAT BIDS BE EVALUATED ON A COMMON BASIS WHICH IS PRESCRIBED IN THE INVITATION. 40 COMP. THE INVITATION ITSELF CONTROLS THE BASIS UPON WHICH BIDS WILL BE EVALUATED. IT IS CLEAR THAT IN THE INSTANT CASE BIDS WERE IMPROPERLY EVALUATED ON THE BASIS OF A REQUIREMENT WHICH WAS NOT MADE A PART OF THE SPECIFICATION OR ANY PART OF THE INVITATION FOR BIDS.

B-150786, MAR. 29, 1963

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION:

WE HAVE RECEIVED A REPORT FROM THE DEPARTMENT OF MEDICINE AND SURGERY ON THE PROTEST OF WILMOT CASTLE COMPANY, HEREINAFTER REFERRED TO AS WILMOT, AGAINST THE AWARD OF A CONTRACT FOR A PRESSURE STERILIZER TO AMERICAN STERILIZER COMPANY FOR $16,518.

THE REPORT SHOWS THAT BY INVITATION FOR BIDS 63-42 THE VETERANS ADMINISTRATION CONSOLIDATED CENTER, WADSWORTH, KANSAS, SOLICITED OFFERS ON THE SUBJECT STERILIZER, TO BE CONSTRUCTED IN ACCORDANCE WITH SPECIFICATION VS 37. THE SPECIFICATION CALLED FOR A HORIZONTAL-TYPE STERILIZER, BUT PERMITTED AN ALTERNATE ARRANGEMENT OF A STERILIZER VESSEL WITH A SEPARATE CONTROL CONSOLE. THE WILMOT BID OF $12,890, WHICH OFFERED THE ALTERNATE ARRANGEMENT, WAS REJECTED BECAUSE IT WAS DETERMINED THAT THE WILMOT STERILIZER REQUIRED TOO MUCH SPACE.

NEITHER THE INVITATION FOR BIDS NOR THE SPECIFICATIONS STATED ANY REQUIREMENT AS TO THE SPACE INTO WHICH THE EQUIPMENT MUST BE ABLE TO FIT. BY PERMITTING THE ALTERNATE ARRANGEMENT, THE SPECIFICATIONS IMPLIEDLY INDICATED THAT SUCH AN ARRANGEMENT WOULD BE SUITABLE TO THE ACTIVITY'S SPACE LIMITATIONS. IT IS NOT ALLEGED THAT THE WILMOT BID IN UNRESPONSIVE TO THE SPECIFICATION, OR, EXCEPT FOR THE SPACE STANDARD, TO THE NEEDS OF THE ACTIVITY. WILMOT ALLEGES THAT IF IT HAD KNOWN OF THE SPACE REQUIREMENT, IT WOULD HAVE OFFERED ITS STERILIZER WITH THE CONTROL CONSOLE MOUNTED HORIZONTALLY.

THE PUBLIC ADVERTISING STATUTES REQUIRE AWARD TO THE LOWEST RESPONSIVE BIDDER. ALSO, THE RULES OF COMPETITIVE ADVERTISED BIDDING REQUIRE THAT BIDS BE EVALUATED ON A COMMON BASIS WHICH IS PRESCRIBED IN THE INVITATION. 40 COMP. GEN. 160, 161, CITING 10 ID. 261 AND 38 ID. 550. OTHERWISE, BIDDERS COULD NOT COMPETE ON AN EQUAL BASIS AS REQUIRED BY LAW, SINCE THEY WOULD KNOW IN ADVANCE THE BASIS ON WHICH THEIR BIDS WOULD BE EVALUATED. 36 COMP. GEN. 380, 385, CITING B 128405, DATED SEPTEMBER 17, 1956. ACCORDINGLY, THE INVITATION ITSELF CONTROLS THE BASIS UPON WHICH BIDS WILL BE EVALUATED. B-150529, DATED FEBRUARY 25, 1963.

IT IS CLEAR THAT IN THE INSTANT CASE BIDS WERE IMPROPERLY EVALUATED ON THE BASIS OF A REQUIREMENT WHICH WAS NOT MADE A PART OF THE SPECIFICATION OR ANY PART OF THE INVITATION FOR BIDS, AND THEREFORE, THAT THE AWARD MADE UNDER THAT INVITATION FOR BIDS WAS IMPROPER AND MUST BE CANCELED. 136987, DATED OCTOBER 9, 1958. ALSO, SEE B 126830, DATED FEBRUARY 21, 1956. IF THE NEEDS OF THE AGENCY CAN BE REALIZED ONLY BY A STERILIZER OF CERTAIN OUTSIDE DIMENSIONS, THE INVITATION FOR BIDS SHOULD BE CANCELED, THE SPECIFICATIONS MODIFIED ACCORDINGLY, AND THE PROCUREMENT READVERTISED.