B-166510, JUN. 10, 1969

B-166510, JUN. 10, 1969

TO BURKE AND BURKE:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 21, 1969, PROTESTING ON BEHALF OF SIMMONS COMPANY, NEW YORK, NEW YORK, THE AWARD TO ANY OTHER FIRM OF A CONTRACT BY THE WALTER REED ARMY MEDICAL CENTER PROCURING OFFICER UNDER INVITATION FOR BIDS (IFB) NO. DADA-15-60-B0051.

THE SOLICITATION WAS FOR 411 ELECTRIC HOSPITAL BEDS WITH MATTRESSES. THE BIDS WERE OPENED ON JANUARY 7, 1969, AND FIVE BIDS WERE RECEIVED. CARROM DIVISION, AFFILIATED HOSPITAL PRODUCTS, INC., BID OF$191,805.48, AND SIMMONS' BID OF $209,568.90, WERE FOUND NONRESPONSIVE AND REJECTED. JOERNS FURNITURE COMPANY'S BID OF $220,369.98 ($215,962.58 CONSIDERING 2 PERCENT TIME DISCOUNT), WAS THE NEXT LOWEST BID AND THE COMPANY WAS AWARDED THE CONTRACT ON FEBRUARY 17, 1969.

ACCORDING TO THE CONTRACTING OFFICER HE REJECTED AND DEEMED SIMMONS' BID NONRESPONSIVE IN THAT THE BID OFFERED 3 INCH CASTERS AND 34 1/2 INCH WIDE MATTRESSES, WHILE THE IFB, AS AMENDED, SPECIFIED 5 INCH CASTERS AND 36 INCH WIDE MATTRESSES, PLUS OR MINUS 1/2 INCH. THE 3 INCH CASTER FIGURE WAS ASCERTAINED BY REFERRING TO PAGES 7-8 OF THE CATALOG ON MULTI-MATE BEDS BY SIMMONS SUBMITTED WITH THE COMPANY'S BID AFTER THE COMPANY HAD STATED IN ITS BID: "BIDDING ON AS EQUAL SIMMONS MULTI-MATE BED H-570-3102- L-532-362 IN COMPLIANCE WITH ACCESSORIES WITH DESCRIPTIVE PURCHASE.' THE 34 1/2 INCH WIDE MATTRESS SIZE FIGURE WAS OBTAINED FROM THE MATTRESS SPECIFICATION SHEET SUPPLIED WITH SIMMONS' BIDS.

YOUR ANSWERS TO THESE CONTENTIONS OF THE CONTRACTING OFFICER AS CONTAINED IN YOUR LETTER OF MARCH 21, ARE AS FOLLOWS:

"IT IS THE POSITION OF SIMMONS COMPANY THAT THE BID SOLICITATION CALLED FOR FOURTEEN SPECIFIC ITEMS WHICH WERE GENERALLY CONSIDERED TO BE MODIFICATIONS OF A BASE PRODUCT AND/OR ACCESSORIES TO BE ADDED TO A BASE PRODUCT. THE SIMMONS COMPANY BID STATED THAT THE SIMMONS MULTIMATE- BED IS -AS EQUAL- TO THE SPECIFICATIONS AND THAT THE BID IS BEING MADE -IN COMPLIANCE WITH DESCRIPTIVE PURCHASE.- THE SIMMONS CATALOGUE NUMBER IN OUR CLIENT'S BID WAS MERELY GIVEN TO ESTABLISH THE GENERAL TYPE OF BED BEING OFFERED BY SIMMONS COMPANY. THE CATALOGUE FURNISHED BY SIMMONS COMPANY IN CONJUNCTION WITH ITS BID CLEARLY INDICATES THAT THE ITEMS OF NON- COMPLIANCE, RELIED UPON BY THE CONTRACTING OFFICER IN REJECTING THE BID, ARE AVAILABLE WITH THIS TYPE OF BED. THE BID PRICE SUBMITTED BY OUR CLIENT INCLUDED ALL MODIFICATIONS AND ACCESSORIES NECESSARY TO CONFORM TO THE SPECIFICATIONS, OF THE INVITATION FOR BIDS BY THE USE OF THE PHRASE IN COMPLIANCE WITH DESCRIPTIVE PURCHASE.- AS THE LOWEST BIDDER COMPLYING WITH ALL OF THE SPECIFICATIONS, WE THINK THAT SIMMONS COMPANY SHOULD HAVE BEEN AWARDED THE CONTRACT.'

PAGE 8 OF THE CATALOG SUBMITTED WITH SIMMONS' BID EXPLAINS ITS "MULTI- MATE NUMBERING AND SUFFIX SYSTEM" AND PAGE 7 OF THE SAME CATALOG CONTAINS THE FOLLOWING STATEMENTS: "MULTI-MATE BEDS ARE PRICED WITH 3 INCH CASTERS (TWO WITH BRAKES), WHEN ORDERED WITH THE -3 NUMBER AS THE FIRST DIGIT OF THE SUFFIX OF THE BED PATTERN NUMBER. EXAMPLE: H-550-3001 HAS 3 INCH CASTERS.

* * * * * * * "5 INCH CASTERS, TWO WITH BRAKES -- CHANGE THE FIRST DIGIT OF THE BED PATTERN SUFFIX TO -5. ADD $6.00 ALL ZONES.'

SINCE THE FIRST DIGIT OF THE SUFFIX OF THE BED PATTERN NUMBER WHICH SIMMONS INSERTED ON ITS BID WAS A -3 (H-570-3102...) THERE CAN BE NO QUESTION, VIA THE BROCHURE EXAMPLES, THAT THE COMPANY WAS OFFERING3 INCH CASTERS. IN ADDITION, AS TO THE MATTRESSES, WE HAVE BEEN UNABLE TO ASCERTAIN FROM THE CATALOG OR ANYTHING CONTAINED IN SIMMONS' BID THAT THERE WAS ANY FLEXIBILITY AS TO MATTRESS WIDTH. THE MATTRESS SPECIFICATION SHEET SUBMITTED WITH THE COMPANY'S BID CLEARLY INDICATED THE ACTUAL WIDTH OF THE STANDARD 36 INCH MATTRESS TO BE 34 1/2 INCHES, AND WE FIND NO REFERENCE TO ANY ALTERNATE WIDTH.

EITHER ONE OF THE ABOVE TWO VARIATIONS FROM THE SPECIFICATIONS WAS SUFFICIENT FOR THE CONTRACTING OFFICER TO DEEM SIMMONS' BID NONRESPONSIVE, BUT YOUR POSITION IS THAT THE INSERTION OF THE CLAUSE "IN COMPLIANCE ... WITH DESCRIPTIVE PURCHASE" CURED ANY DEFICIENCIES OR DISCREPANCIES BETWEEN SIMMONS' BID AND THE SPECIFICATIONS.

THE SOLICITATION, AS AMENDED, CLEARLY CALLED FOR 5 INCH CASTERS AND 36 INCH WIDE MATTRESSES, PLUS OR MINUS 1/2 INCH, AND THE INSERTION OF THE ABOVE CITED CLAUSE IN SIMMONS' BID AS A MINIMUM CREATED AT BEST AN AMBIGUITY, BECAUSE THE COMPANY PROPOSED TO FURNISH TWO INCOMPATIBLE ITEMS, ONE AS DESCRIBED IN THE PARTICULARS OF ITS BID, THE OTHER TO BE ASCERTAINED FROM THE "DESCRIPTIVE PURCHASE.' THE PROCURING AGENCY REPORTS THAT MR. WALTER JESSEE, MANAGER, CONTRACT DEPARTMENT, ATLANTIC DIVISION OF SIMMONS COMPANY, AT A MEETING ON MARCH 4, 1969, ADMITTED THAT HE COULD SEE HOW MORE THAN ONE INTERPRETATION COULD BE PLACED ON THE INSERTED CLAUSE. IT IS CERTAINLY QUESTIONABLE WHETHER THE OFFER TO COMPLY "WITH (THE) DESCRIPTIVE PURCHASE" WAS AN OFFER TO COMPLY WITH THE DESCRIPTIVE LITERATURE WHICH ACCOMPANIED THE COMPANY'S BID, OR WITH THE PURCHASE DESCRIPTION IN THE IFB.

IT IS OUR ESTABLISHED RULE THAT AN OVERALL OR BLANKET OFFER TO CONFORM TO SOLICITATION REQUIREMENTS WILL NOT BY ITSELF CURE A SPECIFIC DEVIATION OR QUALIFICATION OTHERWISE INDICATED IN A BID; ONLY WHEN IT IS PATENTLY CLEAR ON THE FACE OF THE BID AS A WHOLE THAT THE BIDDER'S INTENT IS IN FACT TO CONFORM COMPLETELY TO THE SPECIFIED REQUIREMENTS CAN THE INDICATED DEVIATION BE DISREGARDED. SEE B-166284, APRIL 14, 1969. OTHERWISE THERE WOULD BE DOUBT AS TO WHETHER ACCEPTANCE OF THE BID WOULD OBLIGATE THE BIDDER TO PERFORM ACCORDING TO THE GOVERNMENT'S REQUIREMENTS OR ONLY TO ITS OWN MODIFICATION THEREOF. IN THE CIRCUMSTANCES HERE PRESENT WE CANNOT INTERPRET THE LANGUAGE OF THE SIMMONS' BID AS CLEARLY SHOWING AN INTENTION TO FURNISH ITEMS DIFFERENT FROM THOSE DESCRIBED IN ITS CATALOG UNDER THE BED PATTERN NUMBER AND SUFFIX LISTED IN ITS BID.