B-155929, FEB. 12, 1965

B-155929: Feb 12, 1965

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INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 13. THE CONTRACTING OFFICER HAS REPORTED THAT THE AWARD WAS MADE TO THE LANGLEY CORPORATION ON THE BASIS THAT IT WAS THE LOWEST BIDDER RESPONSIVE TO THE INVITATION FOR BIDS AND THE SPECIFICATION REQUIREMENTS. SKETCHES WERE FURNISHED OF THE PROPOSED EQUIPMENT ARRANGEMENT. THEY SHOWED THAT ONE DOUBLE BAY CABINET 1 WAS COMBINED WITH SINGLE BAY CABINET 2 AND ANOTHER DOUBLE BAY CABINET 1 WAS COMBINED WITH SINGLE BAY CABINET 3 TO FORM TWO RESPECTIVE UNITS. MANUFACTURERS ARE ENCOURAGED TO SUBMIT. WHICH WILL SATISFY ALL FUNCTIONAL DIMENSIONAL AND ENVIRONMENTAL REQUIREMENTS OF THE CABINET.'. PARAGRAPH 7.1 IS PART OF A GENERAL SPECIFICATION PERTAINING TO EITHER A SINGLE.

B-155929, FEB. 12, 1965

TO MR. A. H. SANTMYER, PRESIDENT, ALLO PRECISION METALS ENGINEERING, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 13, 1965, AND YOUR LETTERS OF JANUARY 13 AND 15, 1965, PROTESTING THE AWARD OF A CONTRACT TO THE LANGLEY CORPORATION UNDER DEPARTMENT OF THE NAVY INVITATION NO. IFB 251/210/65.

THE CONTRACTING OFFICER HAS REPORTED THAT THE AWARD WAS MADE TO THE LANGLEY CORPORATION ON THE BASIS THAT IT WAS THE LOWEST BIDDER RESPONSIVE TO THE INVITATION FOR BIDS AND THE SPECIFICATION REQUIREMENTS. THE INVITATION FOR BIDS SOLICITED PRICES FOR TWO DOUBLE BAY ELECTRICAL CABINETS REFERRED TO AS CABINET 1, TWO SINGLE BAY ELECTRICAL CABINETS REFERRED TO AS CABINETS 2 AND 3, ANOTHER DOUBLE BAY ELECTRICAL CABINET REFERRED TO AS CABINET 4, A PREPRODUCTION SAMPLE FOR CABINET 1 AND CERTAIN DRAWINGS AND PROVISIONING AND TECHNICAL DOCUMENTATION. THE INVITATION REFERRED TO DRAWINGS ACCOMPANYING THE SPECIFICATIONS SHOWING THE EQUIPMENT ARRANGEMENT IN EACH OF THE ITEMIZED CABINETS. FOR THE ENTIRE LOT, THE LANGLEY CORPORATION BID $24,108.12 WHEREAS YOUR COMPANY BID $26,295. THE LANGLEY BID CONTAINED TWO NOTES. THE FIRST STATED THAT THE PREPRODUCTION SAMPLE WOULD REMAIN THE PROPERTY OF THE COMPANY. THE SECOND STATED THAT, IN ACCORDANCE WITH PARAGRAPH 7.1, EQUIPMENT TO BE INSTALLED IN SINGLE BAY CABINETS WOULD BE COMBINED IN DOUBLE BAY CABINETS ELIMINATING SINGLE BAY REQUIREMENTS. SKETCHES WERE FURNISHED OF THE PROPOSED EQUIPMENT ARRANGEMENT. THEY SHOWED THAT ONE DOUBLE BAY CABINET 1 WAS COMBINED WITH SINGLE BAY CABINET 2 AND ANOTHER DOUBLE BAY CABINET 1 WAS COMBINED WITH SINGLE BAY CABINET 3 TO FORM TWO RESPECTIVE UNITS, EACH UNIT A DOUBLE BAY CABINET WITHIN THE DIMENSIONS PROVIDED FOR DOUBLE BAY CABINET 1.

SINCE THE LANGLEY BID PROVIDED "NO CHARGE" FOR THE PREPRODUCTION UNIT AND PARAGRAPH "G" OF THE PREPRODUCTION SAMPLES CLAUSE PROVIDED THAT SAMPLES MAY BE RETURNED TO THE CONTRACTOR AT ITS EXPENSE, THE CONTRACTING OFFICER DECIDED THE FIRST NOTE DID NOT IMPOSE A CONDITION WHICH WOULD MAKE THE BID NONRESPONSIVE.

PARAGRAPH 7.1 OF THE SPECIFICATIONS PROVIDED:

"NOTICE TO MANUFACTURERS - THE BASIC CABINET DESIGN SHALL BE RETAINED; HOWEVER, MANUFACTURERS ARE ENCOURAGED TO SUBMIT, TO THE COGNIZANT PROCURING AGENCY, RECOMMENDATIONS AND PROPOSALS TO USE TECHNIQUES WHICH MAY DIFFER FROM MANUFACTURING PROCESSES CALLED FOR IN THIS SPECIFICATION, BUT WHICH WILL SATISFY ALL FUNCTIONAL DIMENSIONAL AND ENVIRONMENTAL REQUIREMENTS OF THE CABINET.'

THE CONTRACTING OFFICER INTERPRETED THIS PROVISION AS PERMITTING OFFERS OF ALTERNATE EQUIPMENT AS LONG AS IT MET THE FUNCTIONAL DIMENSIONAL AND ENVIRONMENTAL REQUIREMENTS OF THE SPECIFICATIONS. THE CONTRACTING OFFICER THEREFORE CONSIDERED ACCEPTABLE THE PROPOSAL MADE BY LANGLEY IN NOTE 2.

WE BELIEVE THE CONTRACTING OFFICER ERRED ON THE LATTER POINT IN AT LEAST ONE RESPECT. PARAGRAPH 7.1 IS PART OF A GENERAL SPECIFICATION PERTAINING TO EITHER A SINGLE, DOUBLE OR TRIPLE BAY CABINET. WE DO NOT BELIEVE THAT IT CAN REASONABLY BE CONSIDERED TO BE A BASIS FOR ELIMINATION OF A PARTICULAR TYPE OF CABINET WHEN ANOTHER PART OF THE GENERAL SPECIFICATION, PARAGRAPH 7.2, PROVIDES THAT THE PROCURING SUPPLEMENT SHOULD SPECIFY AMONG OTHER THINGS THE ,NUMBER AND TYPE (SINGLE-, DOUBLE-, OR TRIPLE-BAY) AND IDENTIFICATION OF CABINETS" AND THE INVITATION FOR BIDS SCHEDULE SOLICITS BIDS FOR TWO DOUBLE BAY CABINETS IDENTIFIED AS CABINET 1 HAVING A CONFIGURATION AS REFERENCED IN A SPECIFIC DIAGRAM AND FOR TWO SINGLE BAY CABINETS IDENTIFIED AS CABINETS 2 AND 3 HAVING CONFIGURATIONS AS REFERENCED IN OTHER SPECIFIC DIAGRAMS.

HOWEVER, WHILE ORDINARILY WE WOULD BE INCLINED TO REQUIRE CANCELLATION OF THE CONTRACT AWARDED, THE NAVY HAS REPRESENTED THAT IT WOULD NOT BE IN THE GOVERNMENT'S INTEREST TO CANCEL THIS CONTRACT AT THIS TIME SINCE SUCH ACTION WOULD REQUIRE, AT SUBSTANTIAL COST TO THE GOVERNMENT, TEARING OUT OF WORK WHICH HAS BEEN ACCOMPLISHED IN ANTICIPATION OF RECEIVING THE CONTRACTOR'S EQUIPMENT, DESIGNING AND INSTALLING TEMPORARY EQUIPMENT AND SUBSEQUENT REMOVAL THEREOF AND REPLACEMENT WITH PERMANENT EQUIPMENT AT SOME LATER DATE. IN VIEW THEREOF, WE ARE COMPELLED TO CONCLUDE THAT IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO REQUIRE CANCELLATION OF THE CONTRACT IN THIS CASE. FOR YOUR INFORMATION WE HAVE BEEN ADVISED THAT IN AN INVITATION FOR BIDS CURRENTLY REQUESTING A MUCH LARGER QUANTITY OF THE SAME ITEM OF CABINETS THE ADMINISTRATIVE OFFICE HAS ELIMINATED THE LANGUAGE CONCERNING ALTERNATE METHODS OF CONSTRUCTION WHICH GAVE RISE TO THE QUESTION AT ISSUE IN THE INSTANT PROCUREMENT.