B-151240, JUL. 11, 1963

B-151240, JUL. 11, 1963

TO G. A. BRAUN, INC.:

BY LETTER DATED APRIL 8, 1963, AND SUBSEQUENT CORRESPONDENCE, YOU PROTESTED AGAINST THE AWARD MADE BY THE VETERANS ADMINISTRATION HOSPITAL, BATH, NEW YORK, UNDER INVITATION FOR BIDS NO. 63-36, DATED FEBRUARY 1, 1963.

THE INVITATION REQUESTED BIDS FOR FURNISHING THREE WASHER-EXTRACTORS IN ACCORDANCE WITH VETERANS ADMINISTRATION SPECIFICATION X-1112, AS AMENDED. BIDDERS WERE REQUESTED TO FURNISH DESCRIPTIVE LITERATURE PURSUANT TO PARAGRAPH 11 OF THE INVITATION TERMS AND CONDITIONS. PARAGRAPH 27 OF THE TERMS AND CONDITIONS PROVIDED:

"SPECIAL REQUIREMENTS: (FOR ALL WASHER-EXTRACTOR COMBINATIONS)

"/A) BIDDER IS REQUIRED TO INCLUDE WITH HIS BID, PLANS AND SPECIFICATIONS FOR THE FOUNDATION REQUIREMENTS TO ADEQUATELY AND SAFELY SUPPORT AND OPERATE THE EQUIPMENT HE PROPOSED TO FURNISH. THESE PLANS AND SPECIFICATIONS SHALL BE COMPLETELY APPLICABLE TO THE LOCATION WHERE EQUIPMENT IS TO BE INSTALLED. BIDDER IS RESPONSIBLE FOR MAKING AN ON-SITE INSPECTION OF THE BUILDING STRUCTURE AND PARTICULAR EQUIPMENT INSTALLATION AREA.

"/B) THE SUCCESSFUL BIDDER GUARANTEES THE FOUNDATION OR OTHER SUPPORT AGAINST DEFECTS AND FAILURE CAUSED BY THE EQUIPMENT AFTER IT HAS BEEN INSTALLED IN COMPLETE ACCORD WITH HIS PLANS AND SPECIFICATIONS. THIS GUARANTEE WILL COVER A PERIOD OF 1 YEAR AFTER INSTALLATION. BIDDER WILL TAKE IMMEDIATE ACTION, UPON WRITTEN REQUEST BY THE VETERANS ADMINISTRATION CONTRACTING OFFICER, TO CORRECT AT HIS OWN EXPENSE ALL DEFECT CAUSED BY HIS EQUIPMENT.'

PARAGRAPH (A) OF THE SPECIAL CONDITIONS OF THE INVITATION PROVIDED:

"THE VETERANS ADMINISTRATION RESERVES THE RIGHT TO CONSIDER THE ESTIMATED COST OF CONSTRUCTING ADEQUATE FOUNDATIONS IN DETERMINING AWARD OF EQUIPMENT CONTRACTS. THE PLANS AND SPECIFICATIONS SUBMITTED IN THE BIDS WILL BE USED TO DETERMINE THE ESTIMATED COST. THE STRUCTURAL CHANGES TO GOVERNMENT PROPERTY REQUIRED BY PLANS AND SPECIFICATIONS FOR FOUNDATION CONSTRUCTION WILL NOT BE ACCEPTED UNTIL APPROVED BY THE V.A. DM AND S ENGINEERING SERVICE. THESE PLANS AND SPECIFICATIONS WILL BE GUARANTEED BY THE BIDDER PER TERMS AND CONDITIONS PARAGRAPH 27/B). BIDS WITHOUT PLANS AND SPECIFICATION PARAGRAPH 27/A) WILL BE REJECTED.'

AMENDMENT NO. 2 TO THE INVITATION PROVIDED IN PARAGRAPHS 3 AND 4 THAT:

"THERE IS ATTACHED HEREWITH A REPORT OF TEST BORINGS, DATED JANUARY 31, 1963 WHICH IS MADE A PART OF THIS BID INVITATION. THIS REPORT IS FURNISHED FOR INFORMATION AND GUIDANCE TO THE BIDDER IN FURNISHING THE PLANS AND SPECIFICATIONS OF THE FOUNDATION REQUIREMENT TO ADEQUATELY AND SAFELY SUPPORT AND OPERATE THE EQUIPMENT HE PROPOSES TO FURNISH.

"DRAWINGS NO. 17-1 AND NO. 17-2 TITLED "LAUNDRY BUILDING NO. 17" , DATED FEBRUARY 8, 1963, ATTACHED HEREWITH ARE INCORPORATED IN AND MADE A PART OF SUBJECT BID INVITATION. THESE DRAWINGS SHOW CERTAIN EXISTING FIELD CONDITIONS AND REQUIREMENTS DEALING WITH THE DESIGN OF THE FOUNDATION. HOWEVER, THE INFORMATION CONTAINED IN THESE DRAWINGS DOES NOT RELIEVE THE BIDDER OF HIS RESPONSIBILITIES AS SET FORTH IN THIS BID INVITATION.'

BIDS WERE OPENED ON MARCH 8, 1963, AND THE THREE LOWEST BIDS WERE ABSTRACTED AS FOLLOWS:

TABLE

BIDDER EQUIP. COST FOUNDATION COST TOTAL EDRO CORP. $28,308.86

$1,269 $30,577.86 BRAUN, INC. 26,985.00 4,994 31,979.00 TROY LAUNDRY 30,447.00 1,679 32,126.00

AWARD WAS MADE TO EDRO ON MARCH 28, 1963, AS THE LOWEST RESPONSIVE BIDDER, ESTIMATED FOUNDATION CONSTRUCTION COSTS TO THE GOVERNMENT CONSIDERED.

YOUR PROTEST IS DIRECTED TO THE FACT THAT ALTHOUGH ALL BIDDERS PRESENT AT THE OPENING WERE ADVISED THAT NO CHANGES WOULD BE ALLOWED IN FOUNDATION PROPOSALS AFTER OPENING OF BIDS, EDRO'S PLANS AND SPECIFICATIONS ON ITS FOUNDATION PROPOSAL WERE CHANGED FROM AN 18-INCH TO A 4 1/2 TO 5-FOOT THICKNESS. YOU ALSO ADVISE THAT THE TEST BORINGS ATTACHED TO THE INVITATION GAVE NO SOIL LOAD FACTOR FOR THE VARIOUS LEVELS, AND THAT A 5,000-POUND PER SQUARE FOOT FACTOR AT THE 2.90-FOOT LEVEL WAS CONTAINED IN A DRAWING WHICH SHOULD HAVE BEEN MADE AVAILABLE TO ALL BIDDERS.

AS YOU ARE AWARE, OUR CONSIDERATION OF THIS MATTER WAS DELAYED PENDING RECEIPT OF COMPLETE INFORMATION FROM THE VETERANS ADMINISTRATION RESPECTING THE EVALUATION OF FOUNDATION PROPOSALS. UPON REVIEW OF THE ENTIRE RECORD OF THIS PROCUREMENT, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE TO EDRO.

CONCERNING THE PITTSBURGH TESTING LABORATORIES TEST BORINGS, WE ARE INFORMED THAT QUALIFIED ENGINEERS FAMILIAR WITH THE TYPE OF EQUIPMENT TO BE INSTALLED WOULD HAVE BEEN ABLE TO REFER TO STANDARD ENGINEER TEXTS OR MANUALS TO DETERMINE THE LOAD FACTORS AT EACH LEVEL INDICATED ON THE TEST BORINGS REPORT MADE A PART OF THE INVITATION. IN SITUATIONS LIKE THIS, WE HAVE NO ALTERNATIVE BUT TO ACCEPT THIS TECHNICAL ADVICE OF THE PROCUREMENT AGENCY. HENCE, WE ARE OF THE VIEW THAT THE TEST BORINGS REPORT WAS TECHNICALLY ADEQUATE FOR BIDDERS TO DETERMINE THE LOAD FACTOR OF 5,000 POUNDS PER SQUARE FOOT AT THE 2.90 FOOT LEVEL.

WHILE THE FOUNDATION DRAWING OF EDRO FAILED TO SHOW THE DEPTH OF THE FOUNDATION IT PROPOSED FOR THEIR EQUIPMENT, THIS DRAWING WAS DRAWN TO A SCALE OF 1/4 INCH EQUALS 1 FOOT. THUS, THE DEPTH OF THE EDRO FOUNDATION WAS READILY DETERMINED BY THE GOVERNMENT ENGINEER TO BE 18 INCHES. HOWEVER, PRIOR TO AWARD, IT WAS DETERMINED THAT THE FOUNDATION SHOULD BE 45 INCHES IN DEPTH IN ORDER TO BE AT THE SAME ELEVATION OF THE FOOTINGS FOR COLUMNS NOS. 1 AND 3 IN THE BUILDING TO PROTECT THE STRUCTURE. THIS FOUNDATION COST WAS RE-EVALUATED IN THE LIGHT OF THE EQUIPMENT COST WITH THE FOLLOWING RESULT:

BIDDER EQUIP. COST FOUNDATION COST TOTAL EDRO $29,308.86

$1,892.55 $31,201.41 BRAUN 26,985.00 4,994.00 31,979.00

THUS, THE CHANGE IN FOUNDATION DEPTH DID NOT EFFECT THE RELATIVE STANDINGS OF THE BIDDERS. NEITHER WAS THIS RE-EVALUATION PREJUDICIAL TO OTHER BIDDERS. EDRO'S BID AS SUBMITTED PROVIDED FOR AN 18-INCH FOUNDATION AND ITS OBLIGATIONS WERE PARAGRAPH 27 AND SPECIAL CONDITION (A) OF THE INVITATION WERE FIXED AND DETERMINED BY THE PLANS AND SPECIFICATIONS FOR AN 18-INCH FOUNDATION. THESE OBLIGATIONS WERE NOT ALTERED BY THE GOVERNMENT-INITIATED CHANGE TO 45 INCHES SINCE ANY ADDITIONAL COSTS COULD NOT BE ASSESSED AGAINST EDRO WHICH HAD GUARANTEED AN 18-INCH FOUNDATION ONLY. IN OTHER WORDS, THE EXERCISE OF THE RIGHT OF THE GOVERNMENT TO ASSURE AN ADEQUATE FOUNDATION FOR THE EQUIPMENT WAS NOT A MODIFICATION OR CHANGE AFFECTING PRICE, QUANTITY OR QUALITY OF THE EQUIPMENT OFFERED TO THE GOVERNMENT. 37 COMP. GEN. 763. THE RECORD IS CLEAR THAT THIS CHANGE WAS NOT INITIATED BY EDRO BUT RATHER BY THE GOVERNMENT. IT IS TO BE NOTED THAT PARAGRAPH (A) OF THE SPECIAL CONDITIONS, SUPRA, PROVIDED THAT THE FOUNDATION PLANS AND SPECIFICATIONS WOULD BE USED TO DETERMINE ESTIMATED COSTS, BUT DID NOT PRECLUDE THE GOVERNMENT FROM MODIFYING SUCH PLANS AND SPECIFICATIONS TO MEET ITS SPECIAL REQUIREMENTS. THE ONLY EFFECT OF SUCH MODIFICATIONS WAS TO CHANGE THE ESTIMATED CONSTRUCTION COSTS TO BE ADDED TO THE COST OF THE EQUIPMENT TO DETERMINE THE LOWEST ULTIMATE COST TO THE GOVERNMENT.