B-157313, SEP. 15, 1965

B-157313, SEP. 15, 1965

TO HONORABLE LAWSON B. KNOTT, JR., ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO LETTER DATED AUGUST 20, 1965, FROM YOUR GENERAL COUNSEL, CONCERNING THE PROTEST OF PROMPT ELECTRICAL SUPPLY COMPANY, INCORPORATED, AGAINST AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. ATC-69498, FEDERAL SUPPLY SERVICE, BUYING DIVISION, ATLANTA, GEORGIA.

THE INVITATION CALLED FOR BIDS ON A REQUIREMENTS CONTRACT (INDEFINITE) FOR VARIOUS LENGTHS, DIAMETERS, ETC., OF "FSC CLASS 5975- - CONDUIT, ELECTRICAL, METAL, RIGID" FOR THE PERIOD FROM DATE OF AWARD OR JUNE 22, 1965, (WHICHEVER WAS LATER) THROUGH DECEMBER 21, 1965.

AT THE FOOT OF PAGE 11 OF PROMPT'S BID FORM, PROMPT HAD INSERTED THE FOLLOWING LANGUAGE:

"PRICES QUOTED HOLDS GOOD TILL AUG 1/65. THEREAFTER 5 PERCENT ESCALATOR CLAUSE APPLIES ON RIGID AND EMT.'

THREE PURCHASE DESCRIPTIONS ARE STATED FOR THE CONDUIT REQUIRED--- (1) ALUMINUM, (2) METAL, TYPE (EMT) AND (3) STEEL. ALL CONDUIT ARE DESCRIBED AS RIGID. PROMPT'S STATEMENT, ABOVE-QUOTED, IS ON THE SAME PAGE AS THE PURCHASE DESCRIPTION FOR STEEL CONDUIT.

THE REPORT OF AUGUST 20, 1965, STATES AS FOLLOWS:

" * * * THE PURCHASE DESCRIPTION OF ALL THE ALUMINUM ITEMS INCLUDED THE WORD "RIGID," AND PROMPT'S BID STATED THAT ITS 5 PERCENT ESCALATION APPLIED TO "RIGID AND EMT" CONDUIT. CONSEQUENTLY, WE BELIEVE THAT THE ALUMINUM CONDUIT DESCRIBED IN THE INVITATION WOULD HAVE TO BE CONSIDERED AS RIGID, REGARDLESS OF ANY POSSIBLE TRADE OR LOCAL USAGE INDICATING THE CONTRARY. THEREFORE, PROMPT'S BID WAS PROPERLY HELD TO STATE THAT THE PRICE WOULD BE INCREASED BY 5 PERCENT WITH RESPECT TO ALL ALUMINUM CONDUIT.

"HOWEVER, AN EXAMINATION OF THE BID TABULATION INDICATES THAT AFTER APPLICATION OF THE 5 PERCENT DIFFERENTIAL, WHICH WE PRESUME WOULD HAVE TO BE APPLIED FOR ALL DELIVERIES, PROMPT WOULD BE LOW BIDDER ON A NUMBER OF ITEMS, INCLUDING BOTH STEEL AND ALUMINUM CONDUIT. WHILE THE 5 PERCENT ESCALATION WOULD NOT BE EFFECTIVE ON ORDERS PLACED BEFORE AUGUST 1, AND THE SPECIFIC QUANTITIES TO BE ORDERED BEFORE AND AFTER THAT DATE COULD NOT BE ACCURATELY PREDICTED, NEVERTHELESS, EVEN AT THE MOST UNFAVORABLE INTERPRETATION TO THE BIDDER--- THAT IS, ASSUMING THAT ALL QUANTITIES WOULD BE ORDERED AT THE INCREASED PRICE--- HIS BID IS LOW ON THE MAJORITY OF THE ITEMS.

"ACCORDINGLY, IT IS OUR RECOMMENDATION THAT THE AWARDS MADE BE SET ASIDE AND PROMPT BE GIVEN AN AWARD ON ALL ITEMS FOR WHICH ITS ESCALATED PRICE IS LOW.

WE AGREE WITH THE RECOMMENDATION MADE THAT THE AWARDS MADE BE CANCELLED AND PROMPT BE GIVEN AN AWARD ON ALL ITEMS FOR WHICH ITS ESCALATED PRICE IS LOW, BUT THAT ITS ESCALATED PRICE NOT BE APPLIED TO ALUMINUM CONDUIT IN ANY AWARD, IN ACCORDANCE WITH PROMPT'S CONTENTIONS.

AS TO THE MATERIAL ALREADY ORDERED AND DELIVERED, IT IS STATED:

"HOWEVER, IT MUST BE POINTED OUT THAT ALL BIDDERS ACTED IN GOOD FAITH, AND AWARDS WERE MADE IN RATHER SUBSTANTIAL AMOUNTS. SINCE AWARD OF THE CONTRACTS, ALMOST $16,000 WORTH OF MATERIAL HAS BEEN ORDERED AND DELIVERED TO GSA WAREHOUSES. ROUGHLY $700 WORTH OF ADDITIONAL MATERIAL WAS ORDERED FOR DIRECT DELIVERY, ALTHOUGH WE DON-T KNOW AT THIS TIME WHETHER OR NOT IT HAS BEEN ALREADY DELIVERED. INSTRUCTIONS HAVE BEEN GIVEN TO THE VARIOUS CONTRACTORS TO MAKE NO FURTHER DELIVERIES. HOWEVER, RETURNING THE MATERIAL TO THOSE AFFECTED WOULD REPRESENT A CONSIDERABLE LOSS TO THEM AND AN ADMINISTRATIVE BURDEN TO GSA. WE BELIEVE THAT SINCE PROMPT DID CHOOSE TO USE UNUSUAL AND SOMEWHAT UNINTELLIGIBLE LANGUAGE ON PAGE 11 OF ITS BID THAT THE RESULTING AWARD TO OTHER THAN THE LOW BIDDER IS IN SOME MEASURE ATTRIBUTABLE TO PROMPT'S ACTION. WE BELIEVE, THEREFORE, THAT THE ORDERS DELIVERED SHOULD REMAIN GOVERNMENT PROPERTY, AND THAT THE CONTRACTORS BE PAID FOR THEM AT THE PROMPT PRICE.'

IN THIS REGARD WE HAVE NO OBJECTION TO DISPOSITION OF THE MATTER IN THE MANNER SUGGESTED, IF THIS BE POSSIBLE, OR EVEN TO PAYMENT OF THE PRICES AT WHICH AWARD WAS MADE, SHOULD THIS BE NECESSARY TO EFFECT FINAL SETTLEMENTS.