B-152897, MAR. 2, 1964

B-152897: Mar 2, 1964

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BIDS WERE SOLICITED FOR THE FURNISHING OF ALL LABOR AND MATERIAL NECESSARY TO FABRICATE AND INSTALL ADJUSTABLE PALLET RACKS (TO ACCOMODATE A TOTAL OF 708 EACH 48 INCH SQUARE PALLETS) IN THE BASE COMMISSARY WAREHOUSE AT NORTON AIR FORCE BASE. THE PROCUREMENT WAS TOTALLY SET ASIDE FOR SMALL BUSINESS CONCERNS. BIDS WERE OPENED ON OCTOBER 29. THE FOLLOWING BIDS WERE RECEIVED: TABLE SPEEDRACK $6. 803.00 THE LOW BID (SPEEDRACK) WAS FOUND TO BE NONRESPONSIVE TO THE 45-DAY DELIVERY REQUIREMENT OF THE INVITATION. THE INVITATION WAS CANCELLED. THE PROCUREMENT WAS READVERTISED UNDER THE SUBJECT INVITATION WITHOUT THE SMALL BUSINESS SET-ASIDE LIMITATION. BIDS WERE OPENED ON NOVEMBER 21. THIS TIME SIX BIDS WERE RECEIVED AS FOLLOWS: TABLE SPEEDRACK $6.

B-152897, MAR. 2, 1964

TO C AND M INDUSTRIAL ASSOCIATES, INC.:

THIS REFERS TO YOUR LETTER OF FEBRUARY 5, 1964, AND THE PRIOR CORRESPONDENCE PROTESTING AGAINST AN AWARD UNDER INVITATION FOR BIDS NO. 04-607-64-57, ISSUED BY THE DEPARTMENT OF THE AIR FORCE AT NORTONAIR FORCE BASE, CALIFORNIA.

UNDER INVITATION FOR BIDS NO. 04-607-64-26, ISSUED ON OCTOBER 14, 1963, BIDS WERE SOLICITED FOR THE FURNISHING OF ALL LABOR AND MATERIAL NECESSARY TO FABRICATE AND INSTALL ADJUSTABLE PALLET RACKS (TO ACCOMODATE A TOTAL OF 708 EACH 48 INCH SQUARE PALLETS) IN THE BASE COMMISSARY WAREHOUSE AT NORTON AIR FORCE BASE, CALIFORNIA. THE PROCUREMENT WAS TOTALLY SET ASIDE FOR SMALL BUSINESS CONCERNS.

BIDS WERE OPENED ON OCTOBER 29, 1963, AND THE FOLLOWING BIDS WERE RECEIVED:

TABLE

SPEEDRACK $6,072.60

STORACK CORPORATION $7,153.00 LESS 1 PERCENT DISCOUNT

(C AND M INDUSTRIAL ASSOCIATES)

INCA METAL PRODUCTS $8,803.00

THE LOW BID (SPEEDRACK) WAS FOUND TO BE NONRESPONSIVE TO THE 45-DAY DELIVERY REQUIREMENT OF THE INVITATION. IN VIEW THEREOF, THE CONTRACTING OFFICER DETERMINED, PURSUANT TO ASPR 1-706.3 (B) (1), THAT AWARD COULD NOT BE MADE AT A REASONABLE PRICE, AND THE INVITATION WAS CANCELLED.

ON NOVEMBER 7, 1963, THE PROCUREMENT WAS READVERTISED UNDER THE SUBJECT INVITATION WITHOUT THE SMALL BUSINESS SET-ASIDE LIMITATION. BIDS WERE OPENED ON NOVEMBER 21, 1963, AND THIS TIME SIX BIDS WERE RECEIVED AS FOLLOWS:

TABLE

SPEEDRACK $6,386.40

MCKINLEY EQUIPMENT $6,446.60

ROBICO DIV., ROBERT AND BRAUN CO. $6,969.69 LESS 1 PERCENT DISCOUNT

STORACK CORP. (C AND M I.A.) $7,153.00 LESS 2 PERCENT DISCOUNT

M. E. CANFIELD COMPANY $7,610.70

INCA METAL PRODUCTS $7,671.04

BY LETTER OF JANUARY 27, 1964, WE WERE ADVISED BY THE AIR FORCE THAT AWARD WOULD BE MADE TO SPEEDRACK DUE TO THE URGENCY OF THE PROCUREMENT, PURSUANT TO ASPR 2-407.9 (B) (3).

YOU PROTEST AGAINST THE CANCELLATION OF THE ORIGINAL INVITATION. YOU BELIEVE THAT ALTHOUGH THE GOVERNMENT REALIZED 9 PERCENT ON THE AWARD PRICE BY READVERTISING (THE DIFFERENCE BETWEEN YOUR BID OF $7,153 LESS 1 PERCENT UNDER THE FIRST INVITATION AND THE LOW BID OF $6,386.40 UNDER THE SECOND INVITATION), THE COST OF THE READVERTISEMENT PLUS THE TIME THAT WAS EXPENDED IN READVERTISING ACTUALLY MADE IT MORE COSTLY FOR THE GOVERNMENT TO READVERTISE. YOU ALSO CALL ATTENTION TO THE HARM WHICH IS INFLICTED UPON THE BIDDING SYSTEM WHENEVER AN INVITATION IS READVERTISED AFTER EXPOSURE OF PRICES.

THE ORIGINAL INVITATION WAS CANCELLED BECAUSE OF A 16 AND A 44 PERCENT DIFFERENTIAL, RESPECTIVELY, BETWEEN THE LOW NON-RESPONSIVE BID AND THE OTHER TWO BIDS. IT IS REPORTED THAT THE SMALL BUSINESS ADMINISTRATION REPRESENTATIVE AGREED WITH THE CONTRACTING OFFICER THAN AN AWARD UNDER THE ORIGINAL INVITATION WOULD HAVE BEEN DETRIMENTAL TO THE PUBLIC INTEREST, AND THAT THE READVERTISEMENT SHOULD BE OPEN TO ALL FIRMS WITHOUT REGARD TO SIZE.

ASPR 1-706.3 (B) (1) PROVIDES FOR THE WITHDRAWAL OF A SMALL BUSINESS SET- ASIDE WHEN IT IS CONSIDERED THAT AWARD UNDER THE SET-ASIDE "WOULD BE DETRIMENTAL TO THE PUBLIC INTEREST (E.G., BECAUSE OF UNREASONABLE PRICE); " AND WE HAVE RECOGNIZED THAT THE DETERMINATION TO WITHDRAW A SMALL BUSINESS SET-ASIDE BECAUSE OF UNREASONABLE PRICE IS A MATTER WHICH RESTS WITHIN ADMINISTRATIVE DISCRETION. B-149889, NOVEMBER 2, 1962; B-145376, AUGUST 11, 1961; SEE 37 COMP. GEN. 147. (WE NOTE THAT UNDER THE READVERTISED INVITATION SEVERAL BIDS SUBSTANTIALLY LOWER THAN YOUR BID WERE RECEIVED.) ACCORDINGLY, WE FIND NO BASIS TO OBJECT TO THE CANCELLATION.

YOU CONTEND, FURTHER, THAT CERTAIN ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS WERE AMBIGUOUS. SPECIFICALLY, YOU CITE ITEM III ON PAGE 2 OF THE INVITATION SCHEDULE, WHICH CALLS FOR "420 PIECES BEAM, LOADING CAPACITY NOT LESS THAN 5,000 LBS., " AND YOU ADVISE THAT THE GENERAL RACK INDUSTRY TERMINOLOGY CONSIDERS BEAMS IN PAIRS: TWO BEAMS MAKE A SHELF AND THE TOTAL SHELF IS THE UNIT FOR CAPACITY DESIGNATION. YOU ASK HOW IT WAS POSSIBLE TO DETERMINE FROM THIS SPECIFICATION WHETHER 420 PIECES, EACH HAVING A 5,000-POUND CAPACITY, OR 210 PAIRS, EACH PAIR HAVING A 5,000- POUND CAPACITY, WERE REQUIRED. (YOU NOTE, ALSO, THAT THE BEAM LENGTHS WERE NOT GIVEN IN THE SPECIFICATION, BUT HAD TO BE DERIVED FROM THE APPLICABLE DRAWING, CONTRARY TO INDUSTRY PRACTICE.)

FURTHER, YOU CITE ITEM IV OF THE SCHEDULE WHICH STATED THAT "ALL UPRIGHTS SHALL BE 44 INCH DEEP, 10 FEET HIGH AND 30,00 LBS CAPACITY.' YOU SAY THAT WHILE THE RACK INDUSTRY TERMINOLOGY WOULD DICTATE THAT EVERYTHING WAS CORRECT HERE AS STATED, IN VIEW OF THE LOAD REQUIREMENTS FOR THE BEAMS AND IN VIEW OF THE LACK OF CLARITY AS TO WHETHER PIECES OR PAIRS WERE MEANT, A QUESTION AROSE IN REGARD TO THE CAPACITY OF THESE UPRIGHTS. YOU SAY THAT THE LOADS FOR THE BEAMS AS SPECIFIED WOULD NOT REQUIRE 30,000-POUND UPRIGHT FRAMES, SINCE TWO 10,000-POUND UPRIGHTS WOULD ADEQUATELY SUPPORT THREE LEVELS OF STORAGE WHICH WERE INDICATED IN THE SPECIFICATION, WITH ONLY TWO OF THOSE BEING ABOVE THE FLOOR. YOU CONCLUDE THAT THE FIRST AMBIGUITY GAVE RISE TO AN UNRELIABILITY OF THE SPECIFICATION IN TOTAL.

YOU REPORT THAT YOU CALLED THE CONTRACTING OFFICER WHEN THE ORIGINAL INVITATION WAS ADVERTISED TO CLARIFY THE AMBIGUITIES IN THE SPECIFICATIONS; THAT THE AMBIGUITIES WERE CLARIFIED VERBALLY; BUT THAT NO AMENDMENT WAS ISSUED, AND THAT THE SECOND INVITATION WAS ISSUED WITHOUT ANY CHANGE.

THE CONTRACTING OFFICER REPORTS THAT ON OCTOBER 25, 1963, THE BUYER ON THIS PROCUREMENT RECEIVED A CALL FROM MR. BONNEY OF C AND M INDUSTRIAL ASSOCIATES, REQUESTING CLARIFICATION OF THE 30,00-POUND CAPACITY AND WHETHER OR NOT MORE THAN ONE BEAM FOR EACH TIER WAS INTENDED; AND THAT THE BUYER CITED PARAGRAPH (B), PAGE 2 OF THE SCHEDULE (IN WHICH IT WAS STATED: "DUE TO FUTURE EXPANSION THESE RACKS WILL BE MOVED TO OTHER LOCATIONS OR REARRANGED TO PROVIDE MORE SPACE.'' AND THE PURCHASE DESCRIPTION OF "48- INCH SQUARE PALLETS.' THE BUYER FELT THAT THESE STATEMENTS IN THE SCHEDULE CLEARLY SHOWED THAT FUTURE EXPANSION ANTICIPATION WOULD REQUIRE THE 30,000-POUND CAPACITY FOR ADDITION OF ANOTHER TIER; AND THAT THE 48- INCH PALLET DIMENSION WOULD REQUIRE TWO BEAMS PER TIER. IT IS REPORTED THAT ALL BIDDERS UNDER BOTH INVITATIONS WERE RESPONSIVE TO THESE REQUIREMENTS.

WE AGREE WITH YOU THAT THE GENERAL SPECIFICATION COULD HAVE BEEN MORE EXPLICIT AS TO THE REQUIRED LOADING CAPACITY. HOWEVER, IT DOES NOT APPEAR THAT ANY BIDDER WAS MISLED IN INTERPRETING THIS REQUIREMENT.

IN VIEW OF THE FOREGOING, YOUR PROTEST AGAINST AWARD TO THE LOW BIDDER UNDER THE READVERTISED INVITATION IS DENIED.