B-151076, AUG. 12, 1963

B-151076: Aug 12, 1963

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YOU CONTEND THAT THE DRAWINGS AND SPECIFICATIONS WHICH DESCRIBED THIS PROCUREMENT WERE AMBIGUOUS. THAT BIDDERS WERE NOT FULLY ADVISED OF THE BASIS ON WHICH BIDS WOULD BE EVALUATED. YOU ALSO CONTEND THAT THE NEEDS OF THE GOVERNMENT CAN BE SATISFIED BY AN ITEM WHICH IS LESS EXPENSIVE BUT DIFFERENT FROM THE ITEM ADVERTISED IN THIS PROCUREMENT. TO SUPPORT THESE CONTENTIONS THE FOLLOWING ALLEGATIONS ARE SET FORTH IN YOUR LETTER: "DUE TO THE FACT THAT OUR CLIENT RECOGNIZED THERE WERE AMBIGUITIES IN THE DRAWING AND THAT THE SIGN HOLDER COULD NOT BE MADE IN THE FORM AND SHAPE SPECIFIED IN THE DRAWING. HALL STATED THAT HE DIDN- TKNOW HOW THE HOLDER WAS TO BE MADE. WHETHER IT WAS TO BE SAND CAST.

B-151076, AUG. 12, 1963

TO WACHTEL, WIENER AND SCHLEZINGER:

WE REFER TO YOUR TELEGRAM OF MARCH 15, 1963, AND YOUR LETTER OF APRIL 16, 1963, ON BEHALF OF YOUR CLIENT, ALFRAY PRODUCTS, INCORPORATED, LOCATED AT NORTH 15TH STREET, COSHOCTON, OHIO, IN WHICH YOU REQUEST THE CANCELLATION OF INVITATION 167, DATED FEBRUARY 14, 1963, ISSUED BY THE POST OFFICE DEPARTMENT FOR THE PROCUREMENT OF 10,000 SETS OF COUNTER SIGNS COMPRISED OF ONE HOLDER AND 16 REMOVABLE SIGNS PER SET.

YOU CONTEND THAT THE DRAWINGS AND SPECIFICATIONS WHICH DESCRIBED THIS PROCUREMENT WERE AMBIGUOUS, THAT BIDDERS WERE NOT FULLY ADVISED OF THE BASIS ON WHICH BIDS WOULD BE EVALUATED, AND THAT ALL BIDDERS DID NOT RECEIVE THE SAME INFORMATION. YOU ALSO CONTEND THAT THE NEEDS OF THE GOVERNMENT CAN BE SATISFIED BY AN ITEM WHICH IS LESS EXPENSIVE BUT DIFFERENT FROM THE ITEM ADVERTISED IN THIS PROCUREMENT. TO SUPPORT THESE CONTENTIONS THE FOLLOWING ALLEGATIONS ARE SET FORTH IN YOUR LETTER:

"DUE TO THE FACT THAT OUR CLIENT RECOGNIZED THERE WERE AMBIGUITIES IN THE DRAWING AND THAT THE SIGN HOLDER COULD NOT BE MADE IN THE FORM AND SHAPE SPECIFIED IN THE DRAWING, UNDER NORMAL PRODUCTION METHODS, A REPRESENTATIVE OF OUR CLIENT CALLED UPON MR. J. E. HALL, AS PROVIDED IN THE INVITATION, FOR FURTHER INFORMATION. MR. HALL STATED THAT HE DIDN- TKNOW HOW THE HOLDER WAS TO BE MADE, I.E., WHETHER IT WAS TO BE SAND CAST, DIE CAST, MACHINED OR JUST WHAT. HE FURTHER STATED THAT HIS TECHNICAL PEOPLE CAME UP WITH THE DESIGN AND DIDN-T HAVE ANY DEFINITE IDEAS ON HOW IT COULD BE MADE, BUT THAT THE ITEM WHICH WAS ACCEPTED WOULD THEN BE THE MODEL AND STANDARD FOR FUTURE PROCUREMENTS. MR. HALL STATED HE FELT THAT ONE METHOD WOULD BE TO USE PLUGS SO THAT THE SLOTS WOULD BE CLOSED ATONE END. OUR CLIENT'S REPRESENTATIVE POINTED OUT THAT THE DRAWING INDICATED THE FORM AND SHAPE OF THE HOLDER TO BE ONE PIECE AND PLUGS WOULD CONSTITUTE A DEVIATION FROM THE DRAWING AND SPECIFICATION. MR. HALL INDICATED THAT WAS TRUE BUT THAT SUCH WOULD BE ACCEPTABLE. WHILE OUR CLIENT'S REPRESENTATIVE WAS IN MR. HALL'S OFFICE, MR. HALL GAVE, IN A TELEPHONE CONVERSATION, ANOTHER POTENTIAL BIDDER THE DIMENSIONS FOR LOCATION OF A SPRING CLIP ON THE HOLDER. SUCH DIMENSIONS WERE NOT ON THE DRAWINGS. HE ALSO EXPLAINED TO THE POTENTIAL BIDDER DURING THE TELEPHONE CONVERSATION, AND TO OUR CLIENT'S REPRESENTATIVE, THAT THE DIMENSION GIVEN IN THE SPECIFICATION FOR THE HEIGHT OF THE HOLDER WAS INCORRECT. IT IS OBVIOUS FROM THE FOREGOING THAT ALL BIDDERS WERE NOT FURNISHED WITH THE SAME INFORMATION AND DID NOT KNOW THE BASIS ON WHICH THEIR BIDS WOULD BE EVALUATED.

"OUR CLIENT ALSO CONTACTED PERSONNEL IN THE POST OFFICE DEPARTMENT OFFICE OF RESEARCH AND ENGINEERING WHO ADVISED THAT THEY HAD NOTHING TO FURNISH CONCERNING METHOD OF FABRICATION OF THE HOLDER BUT THAT THE HOLDER MUST BE OF ONE PIECE OF ALUMINUM. (THIS DIRECTLY CONTRADICTS MR. HILL'S SUGGESTION OF THE USE OF "PLUGS.''"

IN ADDITION TO THE ABOVE YOU HAVE SUBMITTED STATEMENTS FROM SEVERAL PROSPECTIVE MANUFACTURERS INDICATING THAT ON THE BASIS OF THE SPECIFICATIONS AND DRAWINGS IN THIS INVITATION THE SIGN HOLDER COULD NOT BE CAST.

THE REPORT SUBMITTED BY THE POST OFFICE STATES THAT MR. HALL DOES NOT RECALL THE VISIT MADE BY YOUR CLIENT'S REPRESENTATIVE ALTHOUGH THE POSSIBILITY OF SUCH A VISIT IS NOT DENIED. MR. HALL DENIES MAKING THE STATEMENT THAT "HE DIDN-T KNOW HOW THE HOLDER WAS TO BE MADE" AND HAS NO RECOLLECTION OF STATING EITHER THAT "HIS TECHNICAL PEOPLE CAME UP WITH THE DESIGN AND DIDN-T HAVE ANY DEFINITE IDEAS ON HOW IT COULD BE MADE" OR OF ADVISING ANOTHER POTENTIAL BIDDER OF THE LOCATION OF A SPRING CLIP ON THE HOLDER. IN REGARD TO THE HEIGHT OF THE HOLDER, THE POST OFFICE HAS FOUND THE HEIGHT AS STATED IN THE SPECIFICATIONS OF THE INVITATION TO BE CORRECT. THE POST OFFICE DEPARTMENT, OFFICE OF RESEARCH AND ENGINEERING, STATES THAT SEVERAL TELEPHONE CALLS WERE RECEIVED CONCERNING THE MANUFACTURE OF THE HOLDERS BUT THAT NO SPECIFIC METHODS OF MANUFACTURE WERE SUGGESTED OR RECOMMENDED BY THEM. THE POST OFFICE ADMITS THAT CARDBOARD, DECALS OR OTHER LESS EXPENSIVE ITEMS COULD BE USED TO PROVIDE THE PUBLIC WITH INFORMATION; HOWEVER, THE POST OFFICE HAS DETERMINED THAT THE ALUMINUM COUNTER SIGNS WITH SATIN FINISH WILL HARMONIZE WITH OTHER EQUIPMENT, WILL BE LONG-LASTING AND MEET THE MINIMUM PRACTICAL NEEDS OF THAT DEPARTMENT.

PAGE 3 OF THE INVITATION SPECIFICALLY INDICATES THE LENGTH (8 5/8 INCHES) AND THICKNESS ( 7/32 INCHES) OF THE HOLDER AND THE INVITATION STATES THAT THERE MUST BE STRICT ADHERENCE TO THESE DIMENSIONS AND ALSO THAT THE HOLDER MUST BE MADE OF ALUMINUM WITH A SATIN FINISH. TO SHOW THE SIZE AND FORM OF THE SIGNS AND HOLDERS, POST OFFICE DRAWING NO. CEA O-2A, REVISED JANUARY 30, 1962, WAS ATTACHED TO THE INVITATION. SEVERAL MODIFICATIONS TO THE ACCOMPANYING DRAWING WERE SPECIFICALLY INDICATED IN THE INVITATION. THE INVITATION DESCRIBES THE SIGN SLOT IN THE HOLDER TO THE EXTENT THAT SUCH SLOT SHALL BE SUITABLE FOR THE THICKNESS OF THE INSERT SIGN, TO PERMIT EASY ENTRY OF THE SIGN INTO THE SLOT WITHOUT EXCESSIVE LOOSENESS. THE INVITATION REQUIRED THE BIDDER TO FURNISH THE THICKNESS OF THE SLOT WHICH YOUR CLIENT INDICATED TO BE .030 INCHES. THE INVITATION STATES THAT THE DIMENSIONS OF THE REMOVABLE SIGNS WILL BE 15/16 INCHES IN HEIGHT AND 8 3/4 INCHES IN LENGTH AND THAT THE SIGNS MAY BE MADE OF PLASTIC LAMINATE 1/16 INCHES THICK, .020 GAUGE PLASTIC WITH CLEAR LAMINATE OVER PRINTING OR METAL. THE INVITATION STATES THAT THE LETTERING IS TO BE 5/8 INCHES IN HEIGHT AND THAT THE LETTERING MAY BE ACCOMPLISHED BY ANY COMMERCIALLY ACCEPTABLE PROCESS. THE BIDDER WAS TO INDICATE THE MATERIAL AND THE THICKNESS OF THE SIGNS AND THE LETTERING PROCESS WHICH WAS TO BE USED, BUT NO STATEMENT WAS REQUIRED AS TO THE METHOD BY WHICH THE HOLDERS WERE TO BE MADE.

IN RESPONSE TO THE INVITATION 18 BIDS WERE RECEIVED RANGING THE PRICE FROM A LOW BID OF $25,123.75 TO A HIGH BID OF $141,314.88. THE BID SUBMITTED BY YOUR CLIENT OF $73,000, DISCOUNTED AT 3/4 PERCENT FOR A BID PRICE OF $72,452.50 WAS THE 14TH LOWEST BID OF THE 18 BIDS RECEIVED IN RESPONSE TO THE INVITATION. SO FAR AS WE ARE ADVISED NO OTHER BIDDER TOOK EXCEPTION TO THE SPECIFICATIONS OR RAISED ANY QUESTION AS TO THE POSSIBILITY OF MEETING THE REQUIREMENTS FOR THE HOLDER.

FROM A REVIEW OF THE INVITATION AND THE RECORD WE ARE UNABLE TO FIND ANY SUBSTANTIAL BASIS FOR OBJECTING TO AWARD OF A CONTRACT THEREUNDER. NOTWITHSTANDING THAT THE FAILURE BY THE POST OFFICE DEPARTMENT TO BE MORE SPECIFIC IN THE DRAWINGS AND SPECIFICATIONS, WHICH WE ARE INFORMED WAS WITH THE DELIBERATE INTENT TO LEAVE BIDDERS FREE TO ADOPT WHATEVER METHOD THEY MIGHT CHOOSE TO MAKE SIGN HOLDERS OF THE MATERIAL REQUIRED AND TO THE STATED DIMENSIONS, MAY HAVE CAUSED IN PART THE WIDE VARIANCE IN BID PRICES, WE BELIEVE THE END PRODUCT WAS SUFFICIENTLY IDENTIFIED TO PERMIT THE MANUFACTURE OF AN ITEM THAT COMPLIED WITH THE SPECIFICATIONS AND THE DRAWINGS, AS EVIDENCED BY THE NUMBER OF BIDDERS WHO OFFERED TO SUPPLY ONE. THE INVITATION STATED THAT AWARD WOULD BE MADE TO THE LOW AGGREGATE BIDDER, WHICH SUFFICIENTLY IDENTIFIES THE BASIS FOR EVALUATION. THE CONFLICT BETWEEN YOUR ALLEGATIONS AND THE REPORT SUBMITTED BY THE POST OFFICE DEPARTMENT DOES NOT ESTABLISH THAT PROSPECTIVE CONTRACTORS WERE MISLED IN THE PREPARATION OF THEIR BIDS OR THAT ALL BIDDERS DID NOT RECEIVE THE SAME INFORMATION. WE HAVE CONSISTENTLY HELD THAT THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT, AS WELL AS THE DETERMINATION OF WHETHER THE BIDS RECEIVED OFFER A PRODUCT MEETING SPECIFICATION REQUIREMENTS, IS PRIMARILY THE FUNCTION AND RESPONSIBILITY OF THE AGENCY CONCERNED. 17 COMP. GEN. 554, 38 ID. 71; 40 ID. 294. ANY CASE, WHERE DIFFERENCES OF OPINION EXIST AS TO WHETHER SPECIFICATIONS ARE ADEQUATE TO PERMIT OR REQUIRE MANUFACTURE OF A PRODUCT WHICH WILL MEET THE NEEDS OF THE PROCURING AGENCY, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE OF ERROR, WHICH WE DO NOT FIND IN THIS INSTANCE.

IN REGARD TO YOUR CONTENTION THAT THE NEEDS OF THE GOVERNMENT CAN BE SATISFIED BY AN ITEM WHICH IS LESS EXPENSIVE BUT DIFFERENT FROM THE ITEM ADVERTISED IN THE SPECIFICATIONS OF THIS PROCUREMENT, WE HAVE HELD THAT THE DETERMINATION OF THE ACTUAL NEEDS OF THE GOVERNMENT IS THE FUNCTION OF THE ADMINISTRATIVE OFFICERS RATHER THAN THE GENERAL ACCOUNTING OFFICE, B- 140899, OCTOBER 19, 1959. IN THE ABSENCE OF FAVORITISM, BAD FAITH, OR A COMPLETE DISREGARD OF INDISPUTABLE FACTS, EXERCISE OF THE DISCRETION VESTED IN PROCUREMENT OFFICIALS AS TO SUCH MATTERS WILL NOT BE QUESTIONED BY THIS OFFICE.

FOR THE REASONS STATED WE FIND NO BASIS FOR THE CANCELLATION OF THE INVITATION IN THIS CASE. ACCORDINGLY, YOUR PROTEST IS DENIED.