B-173372, AUG 19, 1971

B-173372: Aug 19, 1971

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AN AMBIGUITY MAY BE SAID TO EXIST ONLY WHEN THERE ARE TWO OR MORE REASONABLE INTERPRETATIONS OF THE SPECIFICATIONS. SUCH IS NOT THE CASE HERE. IS A MATTER WITHIN THE CONTRACTING OFFICER'S DISCRETION. THE APPROPRIATE TIME FOR QUESTIONING ANY AMBIGUITIES IN THE SPECIFICATIONS IS PRIOR TO THE TIME FOR SUBMISSION OF BIDS. RUST: REFERENCE IS MADE TO YOUR LETTER DATED JUNE 23. NOTICE TO PROCEED IS BEING WITHHELD PENDING OUR DECISION. WAS ISSUED BY THE ADMINISTRATIVE SERVICES DIVISION. ADDENDUM NO. 1 WAS ISSUED AND CHANGED PAGE SP-2. THE CONTRACTING OFFICER STATES THAT THIS CHANGE WAS MADE AT THE REQUEST OF THE ENGINEERING AND DESIGN STAFF. ONLY ONE BID WAS RECEIVED. THIS BID WAS SUBMITTED BY THE HAMILTON MANUFACTURING COMPANY AND IT WAS DETERMINED THAT IT WAS NOT ACCEPTABLE BECAUSE THE BID WAS FOR FURNISHING LABORATORY FURNITURE.

B-173372, AUG 19, 1971

BID PROTEST - AMBIGUOUS SPECIFICATIONS DENIAL OF PROTEST ON BEHALF OF THE GUY V SWEET CO., INC., AGAINST THE AWARD OF A CONTRACT UNDER AN IFB ISSUED BY A DIVISION OF THE AGRICULTURE RESEARCH SERVICE, WHICH REQUESTED BIDS FOR FURNISHING LABORATORY EQUIPMENT. AN AMBIGUITY MAY BE SAID TO EXIST ONLY WHEN THERE ARE TWO OR MORE REASONABLE INTERPRETATIONS OF THE SPECIFICATIONS, AND SUCH IS NOT THE CASE HERE. THE PREPARATION AND ESTABLISHMENT OF CONTRACT SPECIFICATIONS, AS WELL AS THE DETERMINATION AS TO WHETHER A PRODUCT MEETS THOSE SPECIFICATIONS, IS A MATTER WITHIN THE CONTRACTING OFFICER'S DISCRETION. MOREOVER, THE APPROPRIATE TIME FOR QUESTIONING ANY AMBIGUITIES IN THE SPECIFICATIONS IS PRIOR TO THE TIME FOR SUBMISSION OF BIDS.

TO MR. RICHARD G. RUST:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 23, 1971, ON BEHALF OF THE GUY V. SWEET CO., INC., PROTESTING THE AWARD OF A CONTRACT ON JUNE 22, 1971, TO THE MCCORMACK CONSTRUCTION CO. IN THE AMOUNT OF $29,049. NOTICE TO PROCEED IS BEING WITHHELD PENDING OUR DECISION.

THE RECORD INDICATES THAT ON APRIL 28, 1971, INVITATION FOR BIDS (IFB) NO. ARS-63-B-71, A TOTAL SMALL BUSINESS SET-ASIDE, WAS ISSUED BY THE ADMINISTRATIVE SERVICES DIVISION, PROCUREMENT AND PERSONAL PROPERTY MANAGEMENT BRANCH, CONTRACTING UNIT, AGRICULTURAL RESEARCH SERVICE, U.S. DEPARTMENT OF AGRICULTURE, AND REQUESTED BIDS FOR FURNISHING LABORATORY FURNITURE TO BE INSTALLED AT THE COLUMBIA PLATEAU CONSERVATION RESEARCH CENTER, PENDLETON, OREGON.

PAGE SP-2, PARAGRAPH 1-4B OF THE SPECIFICATIONS STATED "EXPOSED HARDWOOD SHALL BE OAK, BIRCH OR EASTERN HARD MAPLE." HOWEVER, ON MAY 11, 1971, ADDENDUM NO. 1 WAS ISSUED AND CHANGED PAGE SP-2, PARAGRAPH 1 4B TO READ: "EXPOSED HARDWOOD SHALL BE BIRCH TO MATCH EXISTING LABORATORY FURNITURE." THE CONTRACTING OFFICER STATES THAT THIS CHANGE WAS MADE AT THE REQUEST OF THE ENGINEERING AND DESIGN STAFF.

ON MAY 26, 1971, THE BID OPENING DATE, ONLY ONE BID WAS RECEIVED. THIS BID WAS SUBMITTED BY THE HAMILTON MANUFACTURING COMPANY AND IT WAS DETERMINED THAT IT WAS NOT ACCEPTABLE BECAUSE THE BID WAS FOR FURNISHING LABORATORY FURNITURE, WHICH DID NOT INCLUDE SPECIAL ITEMS REQUIRED TO FIT WALL DIMENSIONS, AND DID NOT INCLUDE INSTALLATION AS REQUIRED. ADDITION, THE HAMILTON MANUFACTURING COMPANY WAS DETERMINED TO BE INELIGIBLE FOR AN AWARD SINCE THE FIRM WAS A LARGE BUSINESS CONCERN AND THE SUBJECT PROCUREMENT WAS SET ASIDE FOR SMALL BUSINESS.

BECAUSE OF AN URGENT NEED, THE PROCUREMENT ACTIVITY READVERTISED BY TELEGRAM DATED MAY 28, 1971, UNDER INVITATION NO. ARS-113-B-71, USING THE SAME PROVISIONS AND SPECIFICATIONS CONTAINED IN THE ORIGINAL INVITATION. OF THE 3 BIDS RECEIVED UNDER THE READVERTISEMENT, THE LOW BID WAS SUBMITTED BY YOUR FIRM IN THE AMOUNT OF $26,140. THE SECOND LOW BID WAS SUBMITTED BY MCCORMACK CONSTRUCTION CO. IN THE AMOUNT OF $29,049. THE CONTRACTING OFFICER DETERMINED YOUR BID TO BE NONRESPONSIVE BECAUSE YOU TOOK AN EXCEPTION TO A MATERIAL SPECIFICATION REQUIREMENT FOR BIRCH BY OFFERING CABINETS BUILT OF NORTHERN HARD MAPLE. ON JUNE 22, 1971, AN AWARD WAS MADE TO MCCORMACK CONSTRUCTION CO. AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER. THE CONTRACTING OFFICER STATES THAT YOU WERE ADVISED OF THIS ACTION BY LETTER OF JUNE 23, 1971.

IT IS YOUR CONTENTION THAT YOU SHOULD BE AWARDED THE CONTRACT OR THE INVITATION SHOULD BE CANCELED AND READVERTISED ON THE GROUNDS THAT THE SPECIFICATION CALLING FOR "BIRCH WOOD TO MATCH EXISTING CABINETS" WAS SUFFICIENTLY AMBIGUOUS TO CAUSE CONFUSION ON YOUR PART, AND THAT THE NEEDS OF THE GOVERNMENT CAN BE SATISFIED BY A LESS EXPENSIVE ARTICLE THAN THE ONE CALLED FOR IN THE INVITATION. YOU STATE THAT AS EXPERIENCED LABORATORY CASEWORK SUPPLIERS, YOU INTERPRETED THE SPECIFICATION AS REQUIRING "BIRCH-LIKE" HARDWOOD WITH THE FINISH COLOR TO MATCH EXISTING CABINETWORK.

WE DO NOT AGREE WITH YOUR CONTENTION THAT THE SPECIFICATION CALLING FOR "BIRCH TO MATCH EXISTING LABORATORY FURNITURE" IS AMBIGUOUS. AN AMBIGUITY EXISTS ONLY IF TWO OR MORE REASONABLE INTERPRETATIONS ARE POSSIBLE AND WE CANNOT CONCLUDE THAT THERE IS MORE THAN ONE REASONABLE INTERPRETATION OF THE SPECIFICATION CITED ABOVE. WE BELIEVE THAT THE ONLY REASONABLE INTERPRETATION OF THE SPECIFICATION IS THAT THE EXPOSED HARDWOOD BE MADE OF BIRCH WOOD.

YOUR CLAIM OF AMBIGUITY APPEARS TO BE INCONSISTENT WITH YOUR POSITION AS EXPRESSED IN YOUR LETTER DATED JUNE 4, 1971, WHICH ACCOMPANIED YOUR BID. IN THIS LETTER YOU STATED, IN PERTINENT PART, THAT:

" *** WE ACKNOWLEDGE RECEIPT OF ADDENDUM NO. 1, ON WHICH WE MUST TAKE EXCEPTION TO THE FIRST ITEM, CALLING FOR 'EXPOSED HARDWOOD TO BE BIRCH TO MATCH EXISTING LABORATORY FURNITURE.' WE ARE QUOTING ON HAMILTON MANUFACTURING CO. STANDARD CONSTRUCTION WHICH IS WITH ALL EXPOSED AND STRUCTURAL MEMBERS OF CABINETS BUILT OF NORTHERN HARD MAPLE, AND FINISHED IN ONE OF THEIR STANDARD FINISHES."

THE ABOVE-CITED INFORMATION INDICATES THAT YOU INTENDED TO TAKE AN EXCEPTION TO THE STATED SPECIFICATION. MOREOVER, THE CONTRACTING OFFICER REPORTS THAT YOU VISITED THE LABORATORY TO DETERMINE WHETHER MAPLE WOULD BE ACCEPTABLE AND YOU WERE INFORMED BY THE LABORATORY PERSONNEL THAT THEY DID NOT HAVE THE AUTHORITY TO CHANGE SPECIFICATION REQUIREMENTS AND THAT IF YOU THOUGHT A CHANGE WAS NEEDED, YOU SHOULD NOTIFY THE CONTRACTING OFFICER. THE CONTRACTING OFFICER HAS ADVISED OUR OFFICE THAT YOU DID NOT NOTIFY HIM REGARDING THIS MATTER PRIOR TO SUBMISSION OF YOUR BID AND NO BIDDER OR PROSPECTIVE BIDDER QUESTIONED THE SPECIFICATION REQUIREMENTS DURING THE TIME EITHER ADVERTISEMENT WAS ON THE MARKET.

WITH RESPECT TO YOUR CONTENTION THAT THE NEEDS OF THE GOVERNMENT CAN BE SATISFIED BY A LESS EXPENSIVE ARTICLE THAN THAT SPECIFIED, WE HAVE CONSISTENTLY HELD THAT THE PREPARATION AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER PRODUCTS OFFERED MEET THE SPECIFICATIONS ESTABLISHED ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY. SEE 38 COMP. GEN. 190 (1958) AND CASES CITED THEREIN. WE ALSO RECOGNIZE THAT GOVERNMENT PROCUREMENT OFFICIALS WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES OR EQUIPMENT WILL BE USED AND WITH PAST RESULTS OBTAINED IN THE USE OF SIMILAR EQUIPMENT ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S NEEDS AND BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. HAVE BEEN ADVISED BY A REPRESENTATIVE OF THE DEPARTMENT OF AGRICULTURE THAT THE REQUIREMENT FOR BIRCH HARDWOOD WAS NECESSARY TO INSURE THAT THE LABORATORY FURNITURE PROCURED WOULD BE UNIFORM IN APPEARANCE WITH EXISTING LABORATORY FURNITURE. WHILE THERE WOULD APPEAR TO BE SOME BASIS FOR DIFFERENCES OF OPINION REGARDING THE NECESSITY OF REQUIRING BIRCH WOOD TO ASSURE UNIFORMITY OF APPEARANCE WITH EXISTING FURNITURE, IT ALSO APPEARS THAT SUCH DETERMINATION MUST NECESSARILY BE BASED UPON JUDGMENTAL DECISIONS, AND OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCUREMENT AGENCY IN SUCH MATTERS. SEE B-158493, JULY 26, 1966, WHEREIN WE RECOGNIZED THAT THE NEED FOR UNIFORMITY OF APPEARANCE COULD PROPERLY LEAD TO THE SPECIFICATION OF THE SAME SPECIES OF WOOD.

YOU STATE THAT THE PROCUREMENT OF THE REQUIREMENTS THROUGH AN EXISTING GENERAL SERVICES ADMINISTRATION (GSA) CONTRACT WITH HAMILTON MANUFACTURING CO. MIGHT WELL HAVE RESULTED IN AN EVEN GREATER SAVING TO THE GOVERNMENT THAN THE DIFFERENCE BETWEEN YOUR LOW BID AND THE SECOND LOW BIDDER. ANSWER TO THIS CONTENTION, THE CONTRACTING OFFICER ADVISES THAT THE EQUIPMENT ON THE GSA CONTRACT IS HAMILTON'S STANDARD LINE AND THAT IT DOES NOT INCLUDE SPECIAL ITEMS TO FIT WALL DIMENSIONS NOR DOES IT INCLUDE INSTALLATION AS REQUIRED.

MOREOVER, WE HAVE RECOGNIZED THAT THE APPROPRIATE TIME FOR QUESTIONING THE GOVERNMENT'S METHOD OF PROCUREMENT OR ITS NEEDS FOR A PARTICULAR ITEM, AS WELL AS RAISING ANY QUESTIONS REGARDING POSSIBLE AMBIGUITIES IN THE SPECIFICATIONS, WOULD HAVE BEEN PRIOR TO THE TIME FOR SUBMISSION OF BIDS. SEE 48 COMP. GEN. 757 (1969). IN THIS REGARD, THE INVITATION ENCOURAGED BIDDERS TO NOTIFY THE CONTRACTING OFFICE BEFORE THE OPENING OF BIDS IF THEY ENCOUNTERED ANY PROBLEM IN UNDERSTANDING WHAT THE INVITATION REQUIRED. PARAGRAPH 1 OF STANDARD FORM 22, INSTRUCTIONS TO BIDDERS, MADE A PART OF THE INVITATION, PROVIDED:

" *** ANY EXPLANATION DESIRED BY A BIDDER REGARDING THE MEANING OR INTERPRETATION OF THE INVITATION FOR BIDS, DRAWINGS, SPECIFICATIONS, ETC., MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH BIDDERS BEFORE THE SUBMISSION OF THEIR BIDS. *** "

PAGE BS-2 OF THE BID SCHEDULE ADVISED BIDDERS TO PROMPTLY NOTIFY THE ISSUING OFFICE FOR ANY INTERPRETATION OR EXPLANATION IF THE SPECIFICATIONS OR GENERAL CONDITIONS WERE NOT CLEAR. FURTHER, PARAGRAPH 2(B) OF PAGE SR- 1, SPECIAL REQUIREMENTS, PROVIDES AS FOLLOWS:

"NO ORAL EXPLANATION WILL BE MADE TO BIDDERS AS TO THE MEANING OF THE DRAWINGS) AND SPECIFICATIONS. REQUESTS FOR INTERPRETATIONS AND ANY DISCREPANCIES, ERRORS, OR OMISSIONS NOTED BY INTENDING BIDDERS IN THE SPECIFICATIONS AND ON THE DRAWINGS) SHOULD BE REPORTED PROMPTLY FOR INTERPRETATION OR CORRECTION, IN WRITING AND ADDRESSED TO CONTRACTING UNIT, ADMINISTRATIVE SERVICES DIVISION, AGRICULTURAL RESEARCH SERVICE, U.S. DEPARTMENT OF AGRICULTURE, ROOM 527, FEDERAL CENTER BUILDING, 6505 BELCREST ROAD, HYATTSVILLE, MARYLAND 20782. ANY INTERPRETATIONS OR CORRECTIONS MADE TO THE BIDDERS WILL BE IN THE FORM OF ADDENDA WHICH IF ISSUED, WILL BE SENT TO ALL BIDDERS. ANY REQUESTS FOR INTERPRETATIONS OR CORRECTIONS SHALL BE MADE BY LETTER OR WIRE TO REACH THIS DIVISION NOT LESS THAN SEVEN (7) DAYS PRIOR TO THE OPENING DATE OF THE BID."

FINALLY, WE NOTE THAT THE REJECTION OF YOUR LOW BID AS NONRESPONSIVE WAS REQUIRED SINCE IT IS CLEAR THAT THE DEVIATION TAKEN IN YOUR BID FROM THE ADVERTISED REQUIREMENTS WAS DELIBERATELY TAKEN. A CONTRACT AWARD TO THE LOW BIDDER WHICH WOULD HAVE PERMITTED THE BIDDER WHO HAD DELIBERATELY DEVIATED FROM THE SPECIFICATION REQUIREMENTS TO FURNISH AN ITEM NEITHER ASKED FOR IN THE INVITATION NOR OFFERED BY THE OTHER BIDDERS WOULD NOT BE THE CONTRACT OFFERED TO ALL BIDDERS AND, THEREFORE, THE REJECTION OF THE NONCONFORMING LOW BID WAS PROPER, EVEN IF THE DELIBERATELY SUBSTITUTED ITEM WOULD HAVE MET THE MINIMUM NEEDS OF THE GOVERNMENT. TO INSURE THE BENEFITS OF COMPETITION TO THE GOVERNMENT, IT IS ESSENTIAL THAT CONTRACT AWARDS BE MADE ON THE BASIS OF THE SPECIFICATION REQUIREMENTS SUBMITTED FOR COMPETITION. SEE 49 COMP. GEN. 211 (1969).

IN VIEW OF THE ABOVE, WE FIND NO PROPER LEGAL BASIS TO QUESTION THE AWARD TO MCCORMACK CONSTRUCTION CO. ACCORDINGLY, YOUR PROTEST IS DENIED.