B-152808, JAN. 2, 1964

B-152808: Jan 2, 1964

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THE ESTIMATED COST OF THIS PROCUREMENT WAS $102. 525 AND THE BID OPENING DATE WAS SEPTEMBER 17. 750 WITH A QUANTITY DISCOUNT OF 24 PERCENT IF ALL THE ITEMS WERE ORDERED AT ONE TIME. THE SECOND LOW BID WAS SUBMITTED BY CONSOLIDATED ELECTRODYNAMICS CORPORATION WHICH QUOTED A PRICE OF $94. BIDS WERE ALSO RECEIVED FROM BALDWIN-LIMA-HAMILTON CORPORATION. IT WAS ALSO ALLEGED THAT STATHAM HAD INSERTED ITS MODEL NUMBERS IN OTHER SIMILAR TYPE INVITATIONS AND ITS BID IN THOSE PROCUREMENTS HAD NOT BEEN REJECTED. STATHAM'S TELEGRAM STATED FURTHER THAT THE SAME TYPE PRESSURE PICKUPS AS WERE ADVERTISED IN THIS INVITATION HAD BEEN FURNISHED TO THE GOVERNMENT UNDER STATHAM'S CONTRACT NO. N 251-253-18733A-X AND THE TIME THAT THIS INVITATION FOR BIDS WAS ISSUED.

B-152808, JAN. 2, 1964

TO VOEGELIN, BARTON, HARRIS AND CALLISTER:

WE REFER TO YOUR TELEGRAM DATED OCTOBER 31, 1963, AND LETTERS DATED NOVEMBER 7, 1963, AND NOVEMBER 18, 1963, AND SUBSEQUENT CORRESPONDENCE, ON BEHALF OF STATHAM INSTRUMENTS, INCORPORATED, 12401 WEST OLYMPIC BOULEVARD, LOS ANGELES, CALIFORNIA. YOU PROTEST THE AWARD OF CONTRACT NO. N251/253) 19232A/X) TO CONSOLIDATED ELECTRODYNAMICS CORPORATION, BY THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON.

ON AUGUST 26, 1963, THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, ISSUED INVITATION FOR BIDS NO. 251-62-64 FOR THE PROCUREMENT OF A QUANTITY OF PRESSURE PICKUPS FOR THE NAVAL TORPEDO STATION, KEYPORT, WASHINGTON. THE ESTIMATED COST OF THIS PROCUREMENT WAS $102,525 AND THE BID OPENING DATE WAS SEPTEMBER 17, 1963. IN RESPONSE TO THE INVITATION STATHAM INSTRUMENTS, INCORPORATED, SUBMITTED A BID IN AN AMOUNT OF $123,750 WITH A QUANTITY DISCOUNT OF 24 PERCENT IF ALL THE ITEMS WERE ORDERED AT ONE TIME, RESULTING IN A DISCOUNTED BID PRICE OF $94,050. THE SECOND LOW BID WAS SUBMITTED BY CONSOLIDATED ELECTRODYNAMICS CORPORATION WHICH QUOTED A PRICE OF $94,950 FOR THE ITEMS ADVERTISED IN THIS INVITATION. BIDS WERE ALSO RECEIVED FROM BALDWIN-LIMA-HAMILTON CORPORATION, $103,162; SEMTRAN INSTRUMENTS, INCORPORATED, $105,525; GULTON INDUSTRIES, INCORPORATED, $247,500.

PAGE 2 OF THE INVITATION PROVIDED AS FOLLOWS:

"LOT I (ITEMS 1-9)

1. PRESSURE PICKUP, IN ACCORD WITH BUORD DWG. 370 EA

815511-N RP-6098

2. PRESSURE PICKUP, IN ACCORD WITH BUORD DWG. 370 EA

815778-F RP-6100

3. PRESSURE PICKUP, IN ACCORD WITH BUORD DWG.370 EA

815777-J RP-6099"

DIRECTLY BENEATH EACH OF THE THREE ITEMS QUOTED ABOVE STATHAM INSTRUMENTS, INCORPORATED, INSERTED ITS MODEL NUMBERS AS FOLLOWS: UNDER ITEM 1,"STATHAM MODEL PG900TC-150-350; " UNDER ITEM 2,"STATHAM MODEL PG900TC-500-350; " UNDER ITEM 3,"STATHAM MODEL PG900TC-250 350.' OCTOBER 10, 1963, STATHAM INSTRUMENTS, INCORPORATED DIRECTED A TELEGRAM TO THE CONTRACTING OFFICER AT PUGET SOUND NAVAL SHIPYARD, PROTESTING THE AWARD OF A CONTRACT PURSUANT TO THIS INVITATION TO ANOTHER BIDDER ALLEGING THAT STATHAM INSTRUMENTS, INCORPORATED, HAD BID IN ACCORD WITH THE SPECIFICATIONS. IT WAS ALSO ALLEGED THAT STATHAM HAD INSERTED ITS MODEL NUMBERS IN OTHER SIMILAR TYPE INVITATIONS AND ITS BID IN THOSE PROCUREMENTS HAD NOT BEEN REJECTED. STATHAM'S TELEGRAM STATED FURTHER THAT THE SAME TYPE PRESSURE PICKUPS AS WERE ADVERTISED IN THIS INVITATION HAD BEEN FURNISHED TO THE GOVERNMENT UNDER STATHAM'S CONTRACT NO. N 251- 253-18733A-X, DATED APRIL 4, 1963, AND THAT THERE COULD BE NO QUESTION THAT STATHAM'S MODELS WOULD MEET THE REQUIREMENTS OF THE SPECIFICATIONS IN THIS INVITATION. IN THIS REGARD STATHAM ALLEGED THAT WHILE THERE HAD BEEN CHANGES IN THE SPECIFICATIONS FOR THE PRESSURE PICKUPS SINCE THE TIME THAT STATHAM FULFILLED REQUIREMENTS UNDER CONTRACT NO. N 251-253-18733A-X AND THE TIME THAT THIS INVITATION FOR BIDS WAS ISSUED, ANY CHANGES ACTUALLY RELAXED THE SPECIFICATIONS IN THIS INVITATION.

ON OCTOBER 18, 1963, THE CONTRACTING OFFICER INFORMED STATHAM THAT THE ADDITIONS TO THE BUREAU OF ORDNANCE DRAWINGS, WHICH FORMED THE BASIS FOR THE SPECIFICATIONS IN THIS INVITATION, CAUSED THE SPECIFICATIONS IN THIS INVITATION TO BE TIGHTENED. THIS LETTER MADE SPECIFIC REFERENCE TO CHANGES IN THE SPECIFICATIONS REGARDING THE EFFECT OF "SHOCK" ON THE OPERATION OF THE UNITS AND THE EFFECT OF "HUMIDITY" ON THE OPERATION OF THE UNITS. IN THIS CONNECTION THE CONTRACTING OFFICER INFORMS US THAT ON SEPTEMBER 17, 1963, THE BIDS RESPONDING TO THIS INVITATION WERE REFERRED TO THE KEYPORT NAVAL TORPEDO STATION FOR A TECHNICAL EVALUATION. REGARD TO STATHAM'S MODELS WHICH WERE INSERTED IN THE STATHAM BID AS INDICATED, THE KEYPORT NAVAL TORPEDO STATION WAS UNABLE TO CERTIFY THAT STATHAM'S MODELS WOULD MEET THE CHANGED REQUIREMENTS AS SPECIFIED IN THIS INVITATION. THE CONTRACTING OFFICER INFORMS US THAT ON THIS BASIS STATHAM'S BID WAS DETERMINED TO BE NONRESPONSIVE AND THE BID WAS REJECTED. ON OCTOBER 31, 1963, YOU PROTESTED THE ACTION OF THE CONTRACTING OFFICER TO THIS OFFICE.

WHILE THERE IS CONFLICT BETWEEN YOUR CONTENTION AND THE CONTENTION OF THE DEPARTMENT OF THE NAVY AS TO WHETHER THE CHANGES IN THE BUREAU OF ORDNANCE DRAWINGS TIGHTENED OR RELAXED THE SPECIFICATIONS FOR THE PRESSURE PICKUPS ADVERTISED IN THIS INVITATION, IT CANNOT BE DENIED THAT THE SPECIFICATIONS WERE IN FACT CHANGED AND THAT THE KEYPORT NAVAL TORPEDO STATION COULD NOT DETERMINE WHETHER STATHAM'S PROPOSED MODELS WOULD IN FACT MEET THE CHANGED SPECIFICATIONS. IN THESE CIRCUMSTANCES IT IS NECESSARY TO DETERMINE WHETHER STATHAM'S OFFER COULD BE CONSIDERED AS AGREEING TO THE REQUIREMENTS SET FORTH IN THE SPECIFICATIONS. IT SHOULD BE NOTED THAT WHILE THE STATHAM BID INDICATED THAT STATHAM WOULD FURNISH ITS MODEL, THERE WAS NO EXPRESS STATEMENT BY STATHAM THAT STATHAM AGREED TO OFFER A MODEL THAT WOULD COMPLY WITH THE CHANGED SPECIFICATIONS SET FORTH IN THE INVITATION. THE QUESTION THEN IS WHETHER AN INTENT TO AGREE TO COMPLY WITH THE SPECIFICATIONS CAN BE IMPLIED FROM A CONSTRUCTION OF STATHAM'S BID AS YOU CONTEND. IN THIS REGARD APPARENTLY TWO CONSTRUCTIONS CAN BE GIVEN AS TO STATHAM'S INTENT. ONE CONSTRUCTION IS THAT STATHAM INSTRUMENTS, INCORPORATED AGREED TO COMPLY WITH THE SPECIFICATIONS, ADDING ITS PART NUMBER FOR INFORMATION PURPOSES ONLY, AND THE OTHER BEING THAT STATHAM AGREED ONLY TO FURNISH A PARTICULAR MODEL AS TO WHICH REGARD IT WAS NOT KNOWN WHETHER SUCH MODEL WOULD MEET THE REQUIREMENTS OF THE CHANGED SPECIFICATIONS. IN THESE CIRCUMSTANCES THERE IS NO QUESTION THAT THERE WAS AT LEAST AN AMBIGUITY AS TO WHETHER STATHAM INSTRUMENTS, INCORPORATED, AGREED TO OFFER AN ITEM WHICH WOULD COMPLY WITH THE SPECIFICATIONS SET FORTH IN THIS INVITATION.

IT WOULD BE USEFUL AT THIS TIME TO REVIEW SOME OF THE CONTRACTING OFFICER'S COMMENTS SUBMITTED IN CONNECTION WITH B-151849, SEPTEMBER 10, 1963, WHICH IN MANY RESPECTS IS ANALOGOUS TO THIS SITUATION. THERE THE BIDDER ALSO INSERTED ITS PART NUMBERS IN RESPONSE TO AN INVITATION WHICH SPECIFIED THAT THE ITEMS DESCRIBED IN THE INVITATION WERE TO BE IN ACCORD WITH CERTAIN DRAWINGS. THAT INVITATION CONTAINED A CLAUSE WHICH SPECIFICALLY STATED THAT IF A BIDDER INSERTED ANY IDENTIFYING DATA, SUCH AS A PART NUMBER, THE BID WOULD BE CONSIDERED NONRESPONSIVE UNLESS THE BIDDER CLEARLY INDICATED THAT THE MATERIAL OFFERED WAS IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS STATED IN THAT INVITATION. WE HELD IN THAT INSTANCE THAT A BID WHICH INDICATED THAT A PARTICULAR PART WOULD BE FURNISHED WITHOUT ALSO CLEARLY INDICATING THAT THE PART OFFERED CONFORMED TO SPECIFICATIONS WAS PROPERLY REJECTED AS NONRESPONSIVE. THE CONTRACTING OFFICER IN THAT CASE INFORMED US THAT THE CLAUSE REQUIRING BIDDERS TO STIPULATE THAT AN ITEM IDENTIFIED BY PART NUMBERS COMPLIED WITH THE SPECIFICATIONS WAS NECESSARY FOR THE FOLLOWING REASONS:

"IN THE PAST SOME BIDDERS, WHEN INTENDING TO SUPPLY MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS, HAVE INCLUDED THEIR PART NUMBERS FOR THEIR READY REFERENCE IN THE EVENT OF AN AWARD, WHILE OTHERS HAVE INCLUDED THEIR PART NUMBERS FOR THE PURPOSE OF OFFERING A SIMILAR BUT MATERIALLY DIFFERENT ITEM, WHICH MIGHT OR MIGHT NOT MEET THE APPLICABLE SPECIFICATIONS AND THE NEEDS OF THE GOVERNMENT. WHEN PART NUMBERS ARE INSERTED IN BIDS, THE CONTRACTING OFFICER HAS NO WAY TO DETERMINE WHETHER THE BIDDER IS OFFERING MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS. TO TURN THE QUESTION IS TO SAY, COULD THE GOVERNMENT REJECT THE SUPPLIES IF THEY CONFORMED TO THE SPECIFICATIONS AS PUBLISHED BY CDE FOR THE TYPE NUMBERS SHOWN BUT DID NOT CONFORM TO THE SPECIFICATIONS SHOWN BY THE GOVERNMENT? ONE INTENT OF THE ABOVE CLAUSE WAS TO RELIEVE THE GOVERNMENT (CONTRACTING OFFICER) OF THE RESPONSIBILITY OF DETERMINING WHETHER THE SUPPLIES OFFERED ARE IN COMPLETE CONFORMANCE WITH THE APPLICABLE SPECIFICATIONS. IT IS ESSENTIAL THAT BIDS BE BASED UPON THE SAME QUALITATIVE REQUIREMENTS IN ORDER THAT THEY MAY BE EVALUATED PROPERLY. TO PERMIT SOME BIDDERS TO OFFER MATERIALLY DIFFERENT SUPPLIES WOULD PREJUDICE THE RIGHTS OF THE OTHER BIDDERS.'

WHILE YOU CITE SEVERAL OF OUR DECISIONS IN SUPPORT OF YOUR PROPOSITION THAT THE CONTRACTING OFFICER HAD NO RIGHT TO DETERMINE THAT THE STATHAM BID WAS NONRESPONSIVE, WE DO NOT FIND THOSE DECISIONS CONTROLLING HERE. OUR DECISION B-143084, JUNE 22, 1960, WOULD MORE CLOSELY PARALLEL THIS SITUATION. WE HAVE CONCLUDED THAT THE INSERTION OF THE MODEL NUMBERS IN THE STATHAM BID AT LEAST CAUSED AN AMBIGUITY AS TO WHETHER STATHAM AGREED TO FURNISH AN ITEM WHICH COMPLIED WITH THE SPECIFICATIONS, OR WHETHER STATHAM AGREED TO FURNISH ONLY THE MODELS INDICATED IN ITS BID WHETHER OR NOT THOSE ITEMS COMPLIED WITH THE DRAWINGS SPECIFIED. OUR DECISION, B- 143084, JUNE 22, 1960, INVOLVED A SITUATION WHERE A BIDDER FAILED TO IDENTIFY THE ITEM OFFERED IN A "BRAND NAME OF QUAL" SITUATION. THERE THE BIDDER ADVANCED THE ARGUMENT THAT THE BIDDER WOULD UPON ACCEPTANCE OF ITS BID BE REQUIRED TO FURNISH THE ITEM DESCRIBED OR ITS EQUAL NOTWITHSTANDING THAT THIS FACT WAS NOT CLEARLY SET FORTH IN THE BID. WE REJECTED THAT ARGUMENT ON THE BASIS THAT WHAT IS EQUAL IS TO A LARGE EXTENT A MATTER FOR SUBJECTIVE DETERMINATION UPON WHICH DIFFERENCES MAY WELL ARISE UNLESS IT IS DEFINED IN DETAIL BEFORE AWARD OR THE DECISION IS TURNED OVER BY THE TERMS OF THE CONTRACT TO A THIRD PARTY SUCH AS AN ARCHITECT, CITING 38 COMP. GEN. 345. IN YOUR SITUATION THERE WAS AN AMBIGUITY AS TO WHETHER STATHAM AGREED TO OFFER AN ITEM COMPLYING WITH THE SPECIFICATIONS; STATHAM'S BID ON ITS FACE DID NOT RESOLVE THE AMBIGUITY; AND WHILE STATHAM FURNISHED ITEMS SIMILAR TO THE ITEMS SPECIFIED IN THIS INVITATION IN PAST PROCUREMENTS, IT WAS NOT KNOWN WHETHER SUCH ITEMS WOULD MEET THE REQUIREMENTS OF THIS INVITATION AS THE SPECIFICATIONS FOR SUCH ITEMS HAD BEEN CHANGED. IN THESE CIRCUMSTANCES WE FIND NO BASIS TO QUESTION THE REJECTION OF STATHAM'S BID.

IN REGARD TO YOUR ALLEGATION THAT THE CONTRACTING OFFICER WAS REQUIRED TO CONTACT STATHAM FOR THE PURPOSE OF CLARIFYING ANY AMBIGUITY THAT MIGHT HAVE EXISTED IN STATHAM'S BID BEFORE REJECTING STATHAM'S BID WE HAVE THE FOLLOWING COMMENTS. THE AMBIGUITY HERE WAS WHETHER STATHAM AGREED TO FURNISH A PRODUCT WHICH WOULD MEET THE GOVERNMENT'S SPECIFICATIONS; CONSEQUENTLY, THERE WAS INVOLVED A QUESTION OF SUBSTANCE RATHER THAN FORM AND IN THESE CIRCUMSTANCES WE HAVE HELD THAT IT WOULD NOT BE PROPER FOR THE CONTRACTING OFFICER TO CONFER WITH THE BIDDER FOR THE PURPOSE OF CLARIFYING SUCH AN AMBIGUITY. SEE B-151849, SEPTEMBER 10, 1963. REGARD TO YOUR CONTENTION THAT PURSUANT TO 41 COMP. GEN. 620, 622, THE CONTRACTING OFFICER WAS REQUIRED TO CONTACT STATHAM INSTRUMENTS, INCORPORATED, FOR THE PURPOSE OF ASCERTAINING STATHAM'S INTENT YOU ARE ADVISED THAT 41 COMP. GEN. 620 WOULD HAVE NO APPLICATION IN THIS SITUATION, WHERE THE AMBIGUITY IS APPARENT ON THE FACE OF THE BID. THIS REGARD IT SHOULD BE NOTED THAT 41 COMP. GEN. 620, INVOLVED A SITUATION WHERE THE QUESTION AS TO THE RESPONSIVENESS OF THE BID DID NOT APPEAR ON THE FACE OF THE BID.

AS WE HAVE NO FACTS CONCERNING PRIOR AWARDS WHICH STATHAM MAY HAVE RECEIVED IN SIMILAR SITUATIONS WE HAVE NO COMMENT IN THIS REGARD. HOWEVER, YOU ARE ADVISED THAT WE HAVE HELD THAT PAST IMPROPER AWARDS DO NOT JUSTIFY A REPETITION OF THE SAME ERROR. SEE 36 COMP. GEN. 535, 540; AND B-151849, SEPTEMBER 10, 1963.