B-161621, JUN. 12, 1967

B-161621: Jun 12, 1967

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SUPPLY SERVICE: REFERENCE IS MADE TO YOUR LETTER DATED MAY 23. ATTACHED TO THE BID OF THE COMPANY WAS A LETTER WHICH READ AS FOLLOWS: "BASE BID OF $10. MARKSTONE WILL NOT GIVE FIRM DELIVERY DATE ON NO. 6142 RS FIXTURE.'. THE BID OF FRANK'S WAS LOWEST. YOUR LETTER INDICATES THAT THE MATTER IS PRESENTED BECAUSE OF A PROTEST BY THE PREMIER ELECTRICAL CONSTRUCTION CO. THAT FRANK'S BID WAS QUALIFIED AND. YOU STATE THAT YOU ARE IN ACCORD WITH THE RECOMMENDATION OF THE CHIEF. STATES THAT THERE IS NO DOUBT THAT THE BIDDER. THAT IT IS HIS OPINION THAT SINCE FRANK'S DID NOT HAVE A FIRM DELIVERY DATE FROM MARKSTONE. WE HAVE BEEN ADVISED BY YOUR OFFICE THAT THE NO. 2205 HOUSE-O-LITE FIXTURE OFFERED BY FRANK'S AS AN EQUAL TO THE NO. 6142 RS MARKSTONE "LITELINE" FIXTURE EXCEEDS THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS.

B-161621, JUN. 12, 1967

TO DIRECTOR, SUPPLY SERVICE:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 23, 1967, WITH ENCLOSURES, YOUR FILE REFERENCE 134G, REQUESTING OUR OPINION AS TO THE LEGALITY OF A CONTEMPLATED AWARD OF A CONTRACT FOR ELECTRICAL WORK TO FRANK'S ELECTRICAL SERVICE UNDER AN INVITATION FOR BIDS FOR PROJECT NO. 67-277 ISSUED ON APRIL 27, 1967, BY THE HINES, ILLINOIS, VETERANS ADMINISTRATION HOSPITAL.

THE INVITATION FOR BIDS, SPECIFICATION NO. 277-S, REQUESTED BIDS FOR FURNISHING THE FOLLOWING EQUIPMENT AND SERVICES:

"FURNISH ALL NECESSARY LABOR, TOOLS, MATERIALS AND EQUIPMENT TO REPLACE EXISTING LIGHT FIXTURES WITH NEW FLUORESCENT FIXTURES AND TO PERFORM ALL RELATED ELECTRICAL WORK, INCLUDING FURNISHING AND INSTALLING ADDITIONAL NEW FIXTURES, IN BUILDINGS NOS. 50 AND 51 AT THE VETERANS ADMINISTRATION HOSPITAL, HINES, ILLINOIS.

"ROOM LIGHT FIXTURES SHALL BE TWO LAMP UNITS, 40 WATT, RAPID START, FOUR FEET LONG, HOUSE-O-LITE MODEL NO. 2205 OR ------------------------ (MANUFACTURER) ---------------------/MODEL/----------------------/NO) AN EQUAL.

"CORRIDOR LIGHT FIXTURES SHALL BE ONE-LAMP UNITS COMPLETELY ENCLOSED 40 WATT RAPID START, 48," MARKSTONE "LITELINE" MODEL NO. 6142 RS OR --------- ----------------------------------------------- (MANUFACTURER) ----------- --------------------------------/MODEL) ----- ---------------------------- -------/NO.) AN EQUAL.

"ABOVE LIGHTS SHALL BE COMPLETE WITH BALLASTS, FUSES, HOLDERS, WIRING AND 40 WATT LAMP ETC., AS DETAILED IN THE SPECIFICATIONS ACCOMPANYING THIS BID FORM.'

IN RESPONSE FRANK'S ELECTRICAL SERVICE SUBMITTED A BID OFFERING TO PERFORM THE WORK FOR THE LUMP SUM OF $10,800. ATTACHED TO THE BID OF THE COMPANY WAS A LETTER WHICH READ AS FOLLOWS:

"BASE BID OF $10,800.00 INCLUDES CLOSERS FOR EXISTING RECESSED FIXTURES IN BUILDING NO. 51.

"INSTALL FUSE HOLDERS AND FUSES IN EACH FIXTURE (ADD $200.00)

INSTALL NO. 2205 HOUSE-O-LITE FIXTURE IN HALLS IN PLACE OF NO. 6142 MARKSTONE "LITELINE" (DEDUCT $300.00)

"NOTE. MARKSTONE WILL NOT GIVE FIRM DELIVERY DATE ON NO. 6142 RS FIXTURE.' OF THE SEVEN BIDS RECEIVED, THE BID OF FRANK'S WAS LOWEST.

YOUR LETTER INDICATES THAT THE MATTER IS PRESENTED BECAUSE OF A PROTEST BY THE PREMIER ELECTRICAL CONSTRUCTION CO., THE SECOND LOWEST BIDDER IN THE AMOUNT OF $12,500, THAT FRANK'S BID WAS QUALIFIED AND, THEREFORE, SUCH BID SHOULD BE CONSIDERED AS BEING NONRESPONSIVE TO THE INVITATION FOR BIDS. IN CONNECTION WITH THE PROTEST, YOU STATE THAT YOU ARE IN ACCORD WITH THE RECOMMENDATION OF THE CHIEF, SUPPLY DIVISION, THAT THE BID OF FRANK'S BE CONSIDERED AS BEING RESPONSIVE TO THE INVITATION FOR BIDS. A REPORT DATED MAY 16, 1967, THE CHIEF, SUPPLY DIVISION, STATES THAT THERE IS NO DOUBT THAT THE BIDDER, FRANK'S ELECTRICAL SERVICE, MISSED THE REFERENCE TO FUSES, HOLDERS, WIRING AND 40-WATT LAMPS ON PAGE 1 OF THE INVITATION AND ON PAGE 6 OF THE SPECIFICATIONS AND THAT, KNOWING THAT FUSE HOLDERS AND FUSES SHOULD BE FURNISHED, FIGURED THESE ITEMS SHOULD BE ADDED TO THE BASE PRICE TO MAKE A COMPLETE AND PROPER INSTALLATION; THAT HE VIEWS THE COMPANY'S LETTER AS AN EXPLANATION OF ITS BID PRICE; AND THAT IT IS HIS OPINION THAT SINCE FRANK'S DID NOT HAVE A FIRM DELIVERY DATE FROM MARKSTONE, BELIEVED THAT IT THEN HAD TO OFFER AN EQUAL TO THE BRAND NAME SPECIFIED IN THE INVITATION. THE CONTRACTING OFFICE PROPOSES TO MAKE AN AWARD TO FRANK'S IN THE AMOUNT OF $10,700 ($10,800 PLUS $200 FOR FUSE HOLDERS AND FUSES AND LESS $300 FOR FURNISHING HOUSE-O-LITE FIXTURES). THAT CONNECTION, WE HAVE BEEN ADVISED BY YOUR OFFICE THAT THE NO. 2205 HOUSE-O-LITE FIXTURE OFFERED BY FRANK'S AS AN EQUAL TO THE NO. 6142 RS MARKSTONE "LITELINE" FIXTURE EXCEEDS THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS.

THE QUESTION PRESENTED IS WHETHER THE QUOTED STATEMENTS MADE BY FRANK'S IN ITS LETTER RENDER ITS BID NONRESPONSIVE TO THE INVITATION FOR BIDS. THE LETTER THAT ACCOMPANIED THE BID MUST BE REGARDED AS PART OF THE BID. 36 COMP. GEN. 535; 40 ID. 432, 434. HOWEVER, WE DO NOT FEEL THAT THE QUOTED LANGUAGE IN ANY WAY AFFECTS THE RESPONSIVENESS OF THE BID. WHILE THE STATEMENT AS TO THE FURNISHING OF FUSE HOLDERS AND FUSES DOES INDICATE THAT FRANK'S FAILED TO NOTE THAT THE SPECIFICATIONS CALLED FOR THE FURNISHING OF THESE ITEMS, WE BELIEVE THAT SUCH OVERSIGHT ON THE PART OF THE BIDDER IS NOT SUFFICIENT TO RENDER ITS BID NONRESPONSIVE SINCE THE BIDDER BY QUOTING A PRICE FOR THESE ITEMS MADE ITS BID COMPLETE. AS TO THE STATEMENT REGARDING THE LIGHT FIXTURES, IT APPEARS THAT THE BIDDER WAS OFFERING THE NO. 2205 HOUSE-O-LITE FIXTURE AS AN EQUAL TO THE MARKSTONE LIGHT FIXTURE, THE BRAND NAME SPECIFIED IN THE INVITATION, WHICH IT WAS PERMITTED TO DO UNDER THE TERMS OF THE INVITATION FOR BIDS. IN ITS LETTER FRANK'S STATED THAT MARKSTONE WOULD NOT GIVE IT A FIRM DELIVERY DATE ON THE NO. 6142 MARKSTONE RS FIXTURE. IT WOULD APPEAR FROM THE FOREGOING STATEMENT THAT FRANK'S ORIGINALLY INTENDED TO FURNISH MARKSTONE FIXTURES BUT THAT IT WAS COMPELLED TO CHANGE THE BRAND OF FIXTURE IT PROPOSED TO FURNISH WHEN IT DID NOT RECEIVE A FIRM DELIVERY DATE FROM MARKSTONE.

ON THE BASIS OF THE ABOVE, WE SEE NO LEGAL OBJECTION TO THE AWARD OF A CONTRACT TO FRANK'S ELECTRICAL SERVICE AS PROPOSED IN YOUR LETTER, IF PROPER IN OTHER RESPECTS.

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