B-152772, NOV. 12, 1963

B-152772: Nov 12, 1963

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED OCTOBER 21. BIDS WERE REQUESTED FOR FURNISHING ONE SHEETMETAL FABRICATION MACHINE AS DESCRIBED IN THE INVITATION AND IDENTIFIED AS "STRIPPIT SUPER 30 OR EQUAL.'. AWARD WAS MADE TO CAREY MACHINERY AND SUPPLY CO. THIS AWARD WAS PROTESTED BY WALES STRIPPIT COMPANY ON THE GROUND THAT THE WHITNEY HYDRAULIC DUPLICATOR NO. 630 OFFERED BY CAREY DID NOT MEET THE REQUIREMENTS OF THE INVITATION. IT IS REPORTED THAT CAREY'S BID DESCRIBED THE MACHINE OFFERED AS HAVING A PRESSURE CAPACITY OF ONLY 28.5 TONS. THERE IS ALSO A QUESTION AS TO WHETHER THE INVITATION ACCURATELY DESCRIBED THE BRAND NAME ITEM OR THE NEEDS OF THE GOVERNMENT IN THIS RESPECT.

B-152772, NOV. 12, 1963

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED OCTOBER 21, 1963, FROM THE DEPUTY DIRECTOR, PROCUREMENT AND PRODUCTION, WITH ENCLOSURE, REQUESTING A DECISION AS TO THE VALIDITY OF CONTRACT NO. DA-18-108-AMC-291 (A), DATED JUNE 28, 1963.

BIDS WERE REQUESTED FOR FURNISHING ONE SHEETMETAL FABRICATION MACHINE AS DESCRIBED IN THE INVITATION AND IDENTIFIED AS "STRIPPIT SUPER 30 OR EQUAL.' AWARD WAS MADE TO CAREY MACHINERY AND SUPPLY CO., INC., AS THE LOW BIDDER, AND THIS AWARD WAS PROTESTED BY WALES STRIPPIT COMPANY ON THE GROUND THAT THE WHITNEY HYDRAULIC DUPLICATOR NO. 630 OFFERED BY CAREY DID NOT MEET THE REQUIREMENTS OF THE INVITATION.

THE DESCRIPTION IN THE INVITATION INCLUDES THE FOLLOWING CHARACTERISTICS:

PRESSURE CAPACITY: 30 TONS (MIN.)

STROKES PER MINUTE: UP TO 165 (MIN.)

IT IS REPORTED THAT CAREY'S BID DESCRIBED THE MACHINE OFFERED AS HAVING A PRESSURE CAPACITY OF ONLY 28.5 TONS. THERE IS ALSO A QUESTION AS TO WHETHER THE INVITATION ACCURATELY DESCRIBED THE BRAND NAME ITEM OR THE NEEDS OF THE GOVERNMENT IN THIS RESPECT. WITH REFERENCE TO THE REQUIREMENT FOR STROKES PER MINUTE, THE WHITNEY DUPLICATOR HAS A MAXIMUM CAPACITY OF 78 STROKES PER MINUTE, WHICH IS WELL UNDER THE REQUIREMENT OF THE INVITATION.

ANY DEVIATION IN A BID FROM THE ADVERTISED SPECIFICATIONS WHICH GOES TO THE SUBSTANCE OF THE BID BY AFFECTING THE QUALITY OF THE ARTICLE BID UPON, SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, MAY NOT BE WAIVED AS A MERE INFORMALITY IN CONSIDERING THE BID FOR ACCEPTANCE. 30 COMP. GEN. 179. SUCH BIDS MUST BE REJECTED AS NONRESPONSIVE. ASPR 2-404.2 (A).

SINCE THERE IS SOME QUESTION AS TO WHETHER THE INVITATION WAS DEFECTIVE, AND SINCE IT SEEMS CLEAR THAT THE MACHINE OFFERED BY CAREY MACHINERY AND SUPPLY CO., INC., FAILED TO MEET AT LEAST ONE MATERIAL REQUIREMENT OF THE INVITATION, WE ARE OF THE OPINION THAT THE AGREEMENT ENTERED INTO WITH CAREY DID NOT RESULT IN A VALID CONTRACT AND THAT DISAVOWAL OF THE ERRONEOUS AWARD IS REQUIRED, AS RECOMMENDED BY YOUR DEPARTMENT. PRESTEX INC. V. UNITED STATES, CT.CL. NO/415-61, JULY 12, 1963.