B-156528, JAN. 10, 1966

B-156528: Jan 10, 1966

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF APRIL 10 AND APRIL 22. BIDDERS WERE ADVISED THAT AWARD WOULD BE MADE BY APRIL 13. DRAWINGS AND SPECIFICATIONS WERE REQUIRED TO BE SUBMITTED IN WRITING AND REACH THE ISSUING OFFICE NOT LATER THAN EIGHT CALENDAR DAYS BEFORE DATE OF BID OPENING. IN YOUR FIRST CONTENTION YOU STATE THAT SINCE THE INVITATION WAS DATED MARCH 26. THE DATE OF OPENING WAS APRIL 9. IT HAS BEEN REPORTED THAT ELEVEN BIDS REPRESENTING TEN DIFFERENT MANUFACTURERS WERE RECEIVED WITHOUT ANY REQUEST FOR EXTENSION OF TIME. IT APPEARS THAT THERE WERE FOUR DAYS (MARCH 29. WHICH WOULD SEEM TO HAVE BEEN TIME ENOUGH TO RAISE QUESTIONS OR TO REQUEST AN EXTENSION OF BID OPENING.

B-156528, JAN. 10, 1966

TO R. F. ALLEN, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF APRIL 10 AND APRIL 22, 1965, PROTESTING THE PROVISIONS OF INVITATION FOR BIDS NO. 2-65 ISSUED MARCH 26, 1965, BY THE BUSINESS OFFICE, CALLAUDET COLLEGE.

THE INVITATION SOLICITED BIDS TO BE OPENED APRIL 9, 1965, FOR FURNITURE FOR STUDENT DORMITORIES AT THE COLLEGE. BIDDERS WERE ADVISED THAT AWARD WOULD BE MADE BY APRIL 13, 1965, AND THAT QUESTIONS REGARDING THE BIDDING DOCUMENTS, DRAWINGS AND SPECIFICATIONS WERE REQUIRED TO BE SUBMITTED IN WRITING AND REACH THE ISSUING OFFICE NOT LATER THAN EIGHT CALENDAR DAYS BEFORE DATE OF BID OPENING.

IN YOUR FIRST CONTENTION YOU STATE THAT SINCE THE INVITATION WAS DATED MARCH 26, 1965, AND THE DATE OF OPENING WAS APRIL 9, 1965, THIS LEFT ONLY ONE DAY FOR PREPARING QUESTIONS REGARDING THE INVITATION BECAUSE THE INVITATION PROVIDED THAT SUCH QUESTIONS MUST REACH THE ISSUING OFFICE NOT LATER THAN EIGHT CALENDAR DAYS BEFORE THE DATE OF OPENING. IT HAS BEEN REPORTED THAT ELEVEN BIDS REPRESENTING TEN DIFFERENT MANUFACTURERS WERE RECEIVED WITHOUT ANY REQUEST FOR EXTENSION OF TIME. FURTHER, IT APPEARS THAT THERE WERE FOUR DAYS (MARCH 29, 30, 31, AND APRIL 1, 1965) TO PREPARE QUESTIONS OR TO ASK FOR AN EXTENSION, WHICH WOULD SEEM TO HAVE BEEN TIME ENOUGH TO RAISE QUESTIONS OR TO REQUEST AN EXTENSION OF BID OPENING.

IN YOUR SECOND CONTENTION YOU REFER TO THE "OR EQUAL" AND "EQUIVALENT" PARAGRAPHS (1-04 AND 1-05), THE REQUIREMENT FOR SUBMISSION OF SAMPLES OF "EQUIVALENTS," AND THE SHORT LENGTH OF TIME AVAILABLE FOR THE SUBMISSION OF SAMPLES, WHICH YOU CONTEND CREATED A SITUATION FAVORING ONE MANUFACTURER. IT IS CLEAR THAT THE DETERMINATION AS TO WHETHER AN ITEM OFFERED BY A BIDDER IS ,EQUAL" OR "EQUIVALENT" TO THE ITEM OR PRODUCT SPECIFICALLY MENTIONED MUST BE MADE BY THE CONTRACTING OFFICER OR AGENCY. FURTHERMORE, THE ADMINISTRATIVE OFFICE HAS REPORTED THAT IT HAS MADE AWARD OF ITEMS 1-6 TO LAMTRON INDUSTRIES; ITEM 7 TO REVERE FURNITURE AND EQUIPMENT COMPANY; ITEM 8 TO INSTITUTIONAL SERVICES COMPANY; AND ITEMS 9 AND 10 TO THE AMERICAN HOSPITAL SUPPLY CORPORATION. OF THE AWARDS SO MADE ONLY ONE ITEM (NO. 10) TOTALING $8,241.92 COVERED EQUIPMENT MANUFACTURED BY THONET INDUSTRIES. THIS INDICATES THAT THE SPECIFICATIONS WERE NOT UNDULY RESTRICTIVE. WITH RESPECT TO THE TIME ALLOWED FOR SUBMISSION OF SAMPLES, THE CONTRACTING OFFICE HAS REPORTED THAT THEY RECEIVED SAMPLES FROM TWO DIFFERENT MANUFACTURERS WITHIN THE TIME REQUIRED AND THAT UPON NOTIFICATION TO AN APPARENT LOW BIDDER IT RECEIVED IN FOUR DAYS THE ITEM MOST COMPLEX AND DIFFICULT TO MANUFACTURE.

AS TO YOUR THIRD CONTENTION CONCERNING THE PLACE OF DELIVERY AND THE LIABILITY FOR STORAGE CHARGES AFTER DELIVERY YOUR ATTENTION IS INVITED TO PARAGRAPH 1-14 OF THE SPECIAL CONDITIONS WHICH PROVIDES THAT THE F.O.B. POINT OF DELIVERY SHALL BE THE "TAILGATE OF TRUCKS AT UNLOADING AREA NEAR BUILDING/S) DESIGNATED BY COLLEGE ON THE COLLEGE CAMPUS.' ALSO, YOUR ATTENTION IS INVITED TO THE SECOND SENTENCE OF PARAGRAPH 1-15 WHICH PROVIDES THAT OTHERS (OR OTHER PERSONS) WILL UNLOAD AND STORE THE FURNITURE ON CAMPUS UNTIL THE DORMITORIES ARE COMPLETED. IT IS SUFFICIENTLY CLEAR FROM THESE PROVISIONS THAT THE CONTRACTOR WOULD BE REQUIRED TO BEAR THE DELIVERY COST TO THE CAMPUS AND THAT THERE WOULD NOT BE INVOLVED ANY STORAGE CHARGES THEREAFTER.

YOUR FOURTH OBJECTION CONCERNS THE USE OF THE "HOT PRESS METHOD" AS PROVIDED FOR IN PARAGRAPH 2-02 (4) OF THE SPECIFICATIONS WHICH YOU CONTEND CREATED AN EXCLUSIVE SITUATION FAVORING "THONET INDUSTRIES.' THE ADMINISTRATIVE REPORT STATES THAT AT LEAST TWO MANUFACTURERS OTHER THAN THONET EMPLOY THIS METHOD BECAUSE BIDS WERE RECEIVED FROM TWO SUCH MANUFACTURERS WHO TOOK NO EXCEPTION TO THE SPECIFICATION REQUIREMENT. THE FACT THAT THE WORDS "CORRECT PRESSURE AND/OR HEAT" WERE USED IN THE SPECIFICATIONS DOES NOT NECESSARILY MEAN THAT PRESSURE AND HEAT WERE TO BE USED SIMULTANEOUSLY AND THE ADMINISTRATIVE OFFICE HAS STATED THAT THE USE OF THESE WORDS WAS TO INSURE FULL OPPORTUNITY FOR COMPETITIVE BIDDING BY ALLOWING INDIVIDUAL APPLICATIONS OF HEAT OR PRESSURE OR SIMULTANEOUS USE OF HEAT AND PRESSURE.

AS TO YOUR FIFTH OBJECTION CONCERNING THE DELIVERY DATE PROMISED BY REVERE FURNITURE AND EQUIPMENT COMPANY THE RECORD INDICATES THAT THIS COMPANY WAS AWARDED ITEM NO. 7 ONLY AND THAT ITS BID OF $3,260 WAS THE LOWEST BID OF FIVE BIDS RECEIVED. NONE OF THE FIVE BIDS RECEIVED ON THIS ITEM WAS RESPONSIVE TO THE DELIVERY REQUIREMENT OF SEPTEMBER 15, 1965. SINCE NO BID ON THIS ITEM WAS RESPONSIVE AS TO THE SPECIFIED DELIVERY DATE WE SEE NO OBJECTION TO THE ACCEPTANCE OF THE BEST DELIVERY OFFERED. COMP. GEN. 364, 365; 40 ID. 279.

YOUR LETTER OF APRIL 22, 1965, STATED THAT THE AWARD WAS MADE BY GALLAUDET COLLEGE ON EITHER APRIL 12 OR 13, 1965, AND THAT THE AWARD WAS MADE BY THE COLLEGE ON THE BASIS OF A REPORT SUBMITTED TO THE COLLEGE BY A CONSULTANT FROM THE UNIVERSITY OF SOUTH FLORIDA. IT HAS BEEN REPORTED, HOWEVER, THAT THE AWARDS WERE MADE BETWEEN APRIL 27 AND 29, 1965, AND THAT SUCH AWARDS WERE MADE FOLLOWING CONSULTATIONS WITH SEVERAL PERSONS, BOTH GALLAUDET OFFICIALS AND OTHERS, ONLY ONE OF WHOM WAS THE CONSULTANT FROM THE UNIVERSITY OF SOUTH FLORIDA.

IN THE CIRCUMSTANCES, WE FIND NO OBJECTION TO THE AWARDS AS MADE AND YOUR PROTEST IS DENIED.