B-153193, APR. 8, 1964

B-153193: Apr 8, 1964

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INC.: REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 3 AND FEBRUARY 18. ONE OF WHICH IS A DUPLICATE OF UNIT NO. 2 OF SWITCHBOARD 1SF WITH CERTAIN EXCEPTIONS. ITEM 3 CONSISTS OF THREE UNITS TWO OF WHICH ARE DUPLICATES OF UNITS IN SWITCHBOARD 2SF. WHILE THE FOUR ITEMS ADVERTISED UNDER THE INVITATION ARE NOT IDENTICAL. THE UNITS MAKING UP THE FOUR ITEMS OF SWITCHBOARDS ARE SUBSTANTIALLY SIMILAR. A NOTE ON PAGE 4 OF THE INVITATION PROVIDED: "THE ATTENTION OF BIDDERS IS INVITED TO THE SHOCK TESTING REQUIREMENTS OF THE SPECIFICATION. UNLESS THE UNITS ARE MANUFACTURED TO THE REQUIREMENTS OF BUREAU (OF SHIPS) STANDARD PLANS. WAIVER OF SHOCK TESTING WILL BE CONSIDERED FOR UNITS IF THEY ARE OF SIMILAR DESIGN.

B-153193, APR. 8, 1964

TO MODERN METAL MANUFACTURING CO., INC.:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 3 AND FEBRUARY 18, 1964, PROTESTING AGAINST THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. N140-213-64, ISSUED ON OCTOBER 30, 1963, BY THE UNITED STATES NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK.

THE INVITATION REQUESTED BIDS ON A QUANTITY OF SHIP SERVICE 400 CYCLE SWITCHBOARDS DESIGNATED UNDER ITEMS 1 THROUGH 4 AS 1SF, 2SF, 3SF AND 4SF, RESPECTIVELY. ITEM 1 CONSISTS OF TWO UNITS TO BE BOLTED TO THE SINGLE UNIT SYSTEM SPECIFIED UNDER ITEM 4. ITEM 2 CONSISTS OF TWO UNITS, ONE OF WHICH IS A DUPLICATE OF UNIT NO. 2 OF SWITCHBOARD 1SF WITH CERTAIN EXCEPTIONS, AND ITEM 3 CONSISTS OF THREE UNITS TWO OF WHICH ARE DUPLICATES OF UNITS IN SWITCHBOARD 2SF. WHILE THE FOUR ITEMS ADVERTISED UNDER THE INVITATION ARE NOT IDENTICAL, THE UNITS MAKING UP THE FOUR ITEMS OF SWITCHBOARDS ARE SUBSTANTIALLY SIMILAR. A NOTE ON PAGE 4 OF THE INVITATION PROVIDED:

"THE ATTENTION OF BIDDERS IS INVITED TO THE SHOCK TESTING REQUIREMENTS OF THE SPECIFICATION. BIDDERS SHALL INCLUDE THE PRICE FOR SUCH TESTING IN THE PRICE BID ON THE BASIC EQUIPMENT REGARDLESS OF ANY REQUEST SUBMITTED WITH THE BID FOR WAIVER OF SUCH TESTING BASED ON ANY PRIOR APPROVAL OF SHOCK TEST RESULTS ON IDENTICAL EQUIPMENT SUPPLIED UNDER OTHER CONTRACTS, UNLESS THE UNITS ARE MANUFACTURED TO THE REQUIREMENTS OF BUREAU (OF SHIPS) STANDARD PLANS, AS REFERENCED IN THIS INVITATION FOR BID.'

SECTION 6, PART II--- GENERAL REQUIREMENTS PROVIDED IN PART:

"UNITS WEIGHING 4500 POUNDS AND LESS SHALL BE SHOCK TESTED AS SPECIFIED IN MILITARY SPECIFICATION MIL-S-901B (NAVY), INCLUDING AMENDMENT 3, SHOCKPROOF EQUIPMENT, CLASS HI (HIGH IMPACT), SHIPBOARD APPLICATION, TESTS FOR, DATED 16 SEPTEMBER 1958. WAIVER OF SHOCK TESTING WILL BE CONSIDERED FOR UNITS IF THEY ARE OF SIMILAR DESIGN, CONSTRUCTION, WEIGHT AND MATERIALS TO UNITS WHICH MEET THE REQUIREMENTS OF MIL-S-901B OR IF DESIGN OF THE UNIT IS SUCH THAT SHOCK TESTING IS NOT FEASIBLE.

"WHERE TWO OR MORE UNITS ARE INSTALLED ON A COMMON SUBBASE IN WHICH THE TOTAL WEIGHT EXCEEDS 4500 POUNDS, THE INDIVIDUAL UNITS SHALL BE SHOCK TESTED IN ACCORDANCE WITH MIL-S-901B. WHERE TOTAL WEIGHT OF A SUBBASE AND UNITS IS LESS THAN 4500 POUNDS THE ASSEMBLY SHALL BE SHOCK TESTED IN ACCORDANCE WITH MIL-S-901.'

YOUR BID CONTAINED THE FOLLOWING STATEMENT BELOW NOTE 4 ON PAGE 4 OF THE INVITATION:

"SHOCK TESTING HAS BEEN FIGURED ON THE BASIS OF TESTING ONE (1) SWBD ONLY, WITH APPROVAL TO BE EXTENDED TO OTHER UNITS. WE BELIEVE THAT SWBD 3SF WOULD BE THE UNIT TO BE TESTED.'

THE REQUISITIONING ACTIVITY WAS ASKED TO COMMENT ON YOUR BID AND STATED IN A LETTER DATED DECEMBER 11, 1963, THAT:

"1. * * * IT IS ADVISED THAT THE EQUIPMENT OFFERED BY MODERN METAL MANUFACTURING COMPANY, LOW BIDDER, MEETS THE ESSENTIAL REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS. WITH REGARD TO BIDDER'S NOTATION ON PAGE 4 OF THE IFB, IT IS ADVISED THAT SHOCK TESTS ARE LIMITED TO SWITCHBOARD UNITS (FRAMED DIVISIONS) OF SWITCHBOARDS. SHOCK TEST OF ONE UNIT ONLY OF ONE SWITCHBOARD (CONTRACT ITEM) IS ANTICIPATED. HOWEVER, IT IS CONCEIVABLE THAT SIZE, WEIGHT AND OTHER STRUCTURAL CONSIDERATIONS MAY BE SUCH THAT NO INDIVIDUAL UNIT MAY BE CONSIDERED SUITABLE FOR EXTENSION OF ITS SHOCK TEST RESULTS TO ALL OTHER SWITCHBOARD UNITS OF THE CONTRACT. IN THE LATTER CASE, SHOCK TEST OF NOT MORE THAN TWO SWITCHBOARD UNITS WOULD BE REQUIRED.

"2. REFERENCE (A) REQUESTED COMMENTS AS TO WHETHER SHOCK TESTING COULD BE WAIVED ON EQUIPMENT OFFERED BY ANY OF THE BIDDERS. IT IS ADVISED THAT SHOCK TEST WAIVER WOULD BE GRANTED TO I-T-E- CIRCUIT BREAKER COMPANY ON THE BASIS OF PREVIOUS SHOCK TEST. WAIVER OF SHOCK TESTING MIGHT POSSIBLY BE GRANTED TO GENERAL ELECTRIC COMPANY PROVIDED TESTS ARE SATISFACTORILY PERFORMED ON DLG32 AND 34. NO DEFINITE INFORMATION CAN BE GIVEN AT THIS TIME AS TO THE POSSIBILITY OF WAIVER BEING GRANTED TO ANY OF THE OTHER BIDDERS, INCLUDING THE LOW BIDDER.'

IT WAS CONCLUDED BY THE PURCHASING OFFICE THAT THE ABOVE-QUOTED LANGUAGE CONTAINED IN YOUR BID CONSTITUTED AN EXCEPTION TO THE SHOCK TESTING REQUIREMENTS IN THAT YOU LIMITED YOUR LIABILITY TO SHOCK TEST ONLY ONE SWITCHBOARD ITEM WHEREAS THE SPECIFICATIONS REQUIRED THAT FOUR SWITCHBOARD ITEMS BE SHOCK TESTED. THEREFORE, YOUR LOW BID WAS REJECTED AS NONRESPONSIVE AND AWARD WAS MADE TO THE METROPOLITAN ELECTRIC MFG.CO. AS THE LOWEST RESPONSIVE BIDDER AT A PRICE $3,486.80 IN EXCESS OF YOUR LOW BID, EXCLUSIVE OF REPAIR PARTS.

THE SPECIFICATION CLEARLY ESTABLISHES THAT FOUR SWITCHBOARD ITEMS WERE TO BE BID UPON. SECTION 6, PART II, OF THE SPECIFICATION STATES THAT THE UNITS "SHALL BE SHOCK TESTED AS SPECIFIED IN MILITARY SPECIFICATION MIL-S- 901B (NAVY).' IN VIEW THEREOF, WE CANNOT AGREE WITH YOUR CONTENTION THAT YOUR OFFER TO SHOCK TEST ITEM 3 ONLY COMPLIED WITH THE SHOCK TEST SPECIFICATION. THE ACCEPTANCE OF YOUR BID WOULD HAVE BEEN PREJUDICIAL TO HIGHER BIDDERS WHOSE PRICES INCLUDED THE COST OF SHOCK TESTING ALL FOUR ITEMS AS REQUIRED BY THE INVITATION. WE HAVE INVARIABLY HELD THAT QUALIFICATIONS OF LIABILITY ARE NOT MINOR TECHNICALITIES OR INFORMALITIES WHICH CAN BE WAIVED IN THE INTERESTS OF THE GOVERNMENT. 30 COMP. GEN. 179. WITHOUT QUESTION, YOUR OFFER TO SHOCK TEST ONLY ONE ITEM AFFECTED THE SUBSTANCE OF YOUR BID AND RENDERED IT NONRESPONSIVE. 39 COMP. GEN. 259.