B-150965, JUL. 9, 1963

B-150965: Jul 9, 1963

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TO CRANE ENGINEERING AND SERVICE CORPORATION: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MARCH 4 AND YOUR LETTER DATED MARCH 7. THIRTEEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE NEXT LOWEST BID WAS SUBMITTED BY THE FULTON SHIPYARD AT ITS BID PRICE. THE ACTING CHIEF ENGINEER REPLIED TO THE EFFECT THAT AFTER A CAREFUL REVIEW OF THE MATTER IT WAS NECESSARY TO REJECT YOUR BID FOR FAILURE TO MEET IMPORTANT REQUIREMENTS OF THE SPECIFICATIONS. THE BASIS FOR THE ACTION OF THE BUREAU OF RECLAMATION IN REJECTING YOUR BID WAS THAT THE BIDDING SCHEDULE REQUIRED BIDDERS TO FURNISH A "TYPICAL WIRING DIAGRAM AND DATA" FOR THE PURPOSE OF EVALUATING THE BIDS BUT THAT. IT WAS POINTED OUT BY THE BUREAU OF RECLAMATION THAT PAGES "D" AND "E" OF THE BIDDING SCHEDULE REQUIRED BIDDERS TO INSERT SPEEDS IN FEET PER MINUTE WHEREAS YOUR CONCERN COMPLETED THOSE PAGES BY STATING PERCENTAGES IN LIEU OF FEET PER MINUTE.

B-150965, JUL. 9, 1963

TO CRANE ENGINEERING AND SERVICE CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MARCH 4 AND YOUR LETTER DATED MARCH 7, 1963, PROTESTING THE AWARD OF A CONTRACT TO THE FULTON SHIPYARD UNDER INVITATION FOR BIDS NO. DS-5888, ISSUED BY THE BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR, UNDER DATE OF JANUARY 3, 1963.

THE RECORD SHOWS THAT THE CITED INVITATION FOR BIDS SOLICITED BIDS FOR FURNISHING A 100-TON TRAVELING CRANE FOR THE FONTENELLE POWERPLANT, SEEDSKADEE PROJECT, WYOMING, THE BIDS TO BE OPENED AT 2:00 P.M., M.S.T., ON FEBRUARY 5, 1963. THIRTEEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, THE LOWEST BID BEING THAT SUBMITTED BY YOU AT THE BID PRICE--- FOR COMPARISON--- OF $83,160. THE NEXT LOWEST BID WAS SUBMITTED BY THE FULTON SHIPYARD AT ITS BID PRICE--- FOR COMPARISON--- OF $84,260.

THE RECORD SHOWS FURTHER THAT BY LETTER OF FEBRUARY 20, 1963, YOU MADE INQUIRY OF THE BUREAU OF RECLAMATION CONCERNING THE STATUS OF YOUR BID, AND THAT BY LETTER OF MARCH 5, 1963, THE ACTING CHIEF ENGINEER REPLIED TO THE EFFECT THAT AFTER A CAREFUL REVIEW OF THE MATTER IT WAS NECESSARY TO REJECT YOUR BID FOR FAILURE TO MEET IMPORTANT REQUIREMENTS OF THE SPECIFICATIONS. THERE THEN FOLLOWED YOUR LETTER OF MARCH 7, 1963, TO OUR OFFICE, IN WHICH YOU SET FORTH YOUR "REBUTTAL" TO THE MATTERS CONTAINED IN THE LETTER OF MARCH 5, 1963, FROM THE ACTING CHIEF ENGINEER.

THE BASIS FOR THE ACTION OF THE BUREAU OF RECLAMATION IN REJECTING YOUR BID WAS THAT THE BIDDING SCHEDULE REQUIRED BIDDERS TO FURNISH A "TYPICAL WIRING DIAGRAM AND DATA" FOR THE PURPOSE OF EVALUATING THE BIDS BUT THAT, NOTWITHSTANDING SUCH REQUIREMENT, YOU FURNISHED DIAGRAMS INDICATING THAT THE EQUIPMENT OFFERED DID NOT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS IN CERTAIN RESPECTS. ALSO, IT WAS POINTED OUT BY THE BUREAU OF RECLAMATION THAT PAGES "D" AND "E" OF THE BIDDING SCHEDULE REQUIRED BIDDERS TO INSERT SPEEDS IN FEET PER MINUTE WHEREAS YOUR CONCERN COMPLETED THOSE PAGES BY STATING PERCENTAGES IN LIEU OF FEET PER MINUTE. THE CHIEF ENGINEER, BUREAU OF RECLAMATION, TOOK THE POSITION THAT SINCE YOUR BID DID NOT KEY THESE PERCENTAGES TO ANY SPEEDS, NO CONVERSION OF THE STATED PERCENTAGES COULD BE MADE TO OBTAIN FEET PER MINUTE.

AS A REBUTTAL TO THE POSITION TAKEN BY THE CHIEF ENGINEER, IT WAS STATED IN YOUR LETTER OF MARCH 7, 1963, THAT PERCENTAGES WERE STATED IN THE BID FORMS IN ORDER TO GIVEN A MORE ACCURATE DIFFERENTIAL IN CRANE SPEEDS, RATHER THAN TO MERELY STATE A FEET PER MINUTE SPEED; ALSO, THAT THIS FORMULA WAS FOLLOWED BECAUSE OF THE MANNER IN WHICH PARAGRAPH C-1 OF THE SPECIFICATIONS WAS WRITTEN, SINCE THE LAST PARAGRAPH ON PAGE 18 THEREIN CLEARLY INDICATED THAT THE BUREAU OF RECLAMATION WAS LOOKING FOR PERCENTAGE DIFFERENTIALS OF CRANE SPEEDS.

THE CITED PARAGRAPH READS AS FOLLOWS:

"THE FIRST CONTROLLER POINT FOR THE TROLLEY SHALL BE A DRIFT POINT. THE MINIMUM SPEEDS OF TROLLEY BRIDGE SHALL NOT EXCEED 50 PERCENT OF THE RESPECTIVE FIFTH POINT SPEEDS. INTERMEDIATE SPEED STEPS SHALL BE EQUALLY SPACED.'

WE ARE UNABLE TO AGREE WITH YOUR VIEWS RESPECTING THE PURPOSE OF THE QUOTED PARAGRAPH. OUR UNDERSTANDING OF THE QUOTED LANGUAGE IS THAT IT MERELY SETS FORTH CERTAIN REQUIREMENTS CONCERNING CRANE SPEEDS, AND INSOFAR AS "PERCENTAGES" ARE CONCERNED IT SIMPLY PROVIDED THAT MINIMUM SPEEDS OF TROLLEY AND BRIDGE SHALL NOT EXCEED FIFTY PERCENT OF THE RESPECTIVE FIFTH POINT SPEEDS. IN OTHER WORDS, IN OUR OPINION, THE QUOTED PARAGRAPH HAS ONLY LIMITED APPLICATION. UNDER THE CIRCUMSTANCES, IT IS NOT SEEN WHEREIN THE QUOTED LANGUAGE CONTAINS ANY JUSTIFICATION WHATEVER FOR YOUR FAILURE TO COMPLY WITH THE REQUIREMENTS OF THE BIDDING SCHEDULE THAT SPEEDS IN "FEET PER MINUTE" WERE TO BE STATED BY EACH BIDDER. IT MAY BE ASSUMED IF THE BUREAU OF RECLAMATION BELIEVED THAT SPEEDS SHOWN EITHER IN TERMS OF "PERCENTAGES" OR IN "FEET PER MINUTE" WOULD BE ACCEPTABLE, APPROPRIATE PROVISION WOULD HAVE BEEN MADE THEREFOR IN THE BIDDING SCHEDULE. THE FACT IS THAT THE SCHEDULE DID NOT SO PROVIDE.

IT IS IMPORTANT TO POINT OUT ALSO THAT THE PERCENTAGES STATED IN YOUR BID FOR RAISING AND LOWERING THE MAIN AND AUXILIARY HOOKS AT THE LISTED CONTROL POINTS, INDICATED FOR THE MAIN HOISTS THAT THE SAME SPEED WAS PROPOSED FOR POINTS 2, 3, AND 5 LOWER, AND FOR THE AUXILIARY HOISTS THE SAME SPEED WAS PROPOSED FOR CONTROL POINTS 3 AND 5 LOWER. IN PARAGRAPH 2 ON PAGE TWO OF YOUR LETTER OF MARCH 7, 1963, YOU SEEM TO TAKE THE POSITION THAT THE "SPEED INCREMENTS" REFERRED TO THEREIN HAVE APPLICATION ONLY TO THE "HOISTING" SPEEDS. THE WORDS "HOIST" AND "HOISTS" ARE USED AS NOUNS IN PARAGRAPH C-1C, AND HAVE REFERENCE TO THE MECHANICAL DEVICE USED FOR BOTH RAISING AND LOWERING PURPOSES, AS INDICATED BY THE SCHEDULE. ACCORDINGLY, YOUR BID WAS NOT RESPONSIVE TO THE PROVISIONS OF PARAGRAPH C- 1C OF THE INVITATION WHICH, WHILE PERMITTING HOIST SPEEDS TO VARY WITH THE LOAD, ALSO REQUIRED SPEED INCREMENTS BETWEEN STEPS TO BE APPROXIMATELY EQUAL AT ANY LOAD. FOR THE REASONS SET FORTH ABOVE, WE ARE FORCED TO AGREE WITH THE VIEWS EXPRESSED BY THE CHIEF ENGINEER TO THE EFFECT THAT THE PERCENTAGES STATED IN YOUR BID INDICATED NONCOMPLIANCE WITH THIS IMPORTANT REQUIREMENT.

IN VIEW OF OUR HOLDING, AS STATED ABOVE, THERE APPEARS TO BE NO NECESSITY TO ANSWER THE QUESTION AS TO WHETHER THE WIRING DIAGRAM FURNISHED BY YOU INDICATED THAT THE EQUIPMENT OFFERED DID OR DID NOT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS.

IT IS A STATUTORY REQUIREMENT THAT PUBLIC OFFICERS MAY NOT ACCEPT A BID NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS. IT IS THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. 17 COMP. GEN. 554, 557. WE FIND NO EVIDENCE SUFFICIENT TO JUSTIFY OUR QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT YOUR BID DID NOT MEET MATERIAL REQUIREMENTS OF THE SPECIFICATIONS, AND YOUR PROTEST MUST THEREFORE BE DENIED.

IT MAY BE SAID FURTHER THAT IN SITUATIONS SUCH AS HERE INVOLVED, THAT IS TO SAY, WHERE THERE RESTS WITH THE ADMINISTRATIVE DEPARTMENT THE RESPONSIBILITY FOR DECIDING WHETHER ARTICLES OFFERED BY BIDDERS MEET THE REQUIREMENTS OF THE SPECIFICATIONS, IT HAS BEEN THE CONSISTENT POLICY OF OUR OFFICE NOT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY IN MATTERS INVOLVING DISPUTED QUESTIONS OF FACT UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY'S OPINION IS IN ERROR. THE BASIS OF THE RECORD BEFORE US, WE DO NOT FEEL THAT WE ARE IN A POSITION TO DISAGREE WITH THE FINDINGS BY THE CHIEF ENGINEER.