B-175259, APR 25, 1972

B-175259: Apr 25, 1972

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TO HOLT BROS.: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16. THE SUBJECT IFB WAS ISSUED ON JUNE 4. THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. HE INDICATED THAT HE THOUGHT THE REQUIREMENTS WERE AMBIGUOUS. INASMUCH AS IT WAS NOT CLEAR WHETHER FOUR OR EIGHT MOTOR GENERATOR SETS WERE REQUIRED. AN AWARD WAS MADE TO KING KNIGHT ON DECEMBER 7. IT IS YOUR CONTENTION THAT THE SUPPLIES AND/OR SERVICES TO BE PROCURED UNDER BID ITEMS 0001 AND 0002 ARE FOR THE QUANTITY OF TWO EACH "GROUP I" AND "GROUP II" MOTOR GENERATOR SETS. IN SUPPORT OF THIS CONTENTION YOU STATE THAT THE NOMENCLATURE FOR THE "SUPPLIES/SERVICES" TO BE FURNISHED IS "GROUP" AND A "GROUP" IS DEFINED IN PARAGRAPH 7.1 PAGE F-9 OF THE SPECIFICATIONS AS CONSISTING OF TWO MOTOR GENERATOR SETS.

B-175259, APR 25, 1972

BID PROTEST - ALLEGEDLY AMBIGUOUS SOLICITATION DECISION DENYING THE PROTEST OF HOLT BROS. AGAINST AWARD OF A CONTRACT TO KING KNIGHT COMPANY UNDER AN IFB ISSUED BY THE ARMY ENGINEERING DISTRICT, OMAHA, NEB., FOR MOTOR GENERATOR SETS. ALTHOUGH THE ALLEGEDLY AMBIGUOUS PARAGRAPH OF THE SPECIFICATIONS MIGHT REASONABLY BE MISINTERPRETED IF READ IN ISOLATION, THE COMP. GEN. CANNOT AGREE THAT THE INVITATION AS A WHOLE FAILED TO SPECIFICALLY EXPRESS THE REQUIREMENTS OF THE GOVERNMENT. IN VIEW OF THIS FACT, THERE EXISTS NO LEGAL BASIS TO QUESTION THE AWARD TO KING AND THE PROTEST MUST BE DENIED.

TO HOLT BROS.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1972, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO THE KING KNIGHT COMPANY UNDER IFB DACA45-71-B-0230, ISSUED BY THE U.S. ARMY ENGINEERING DISTRICT, OMAHA, NEBRASKA.

THE SUBJECT IFB WAS ISSUED ON JUNE 4, 1971, AND CALLED FOR SUPPLYING, INSTALLING AND FIELD TESTING OF 250 KW AND 150 KW MOTOR GENERATOR SETS, INCLUDING CONTROLS AND DISTRIBUTION CENTERS. THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE KING KNIGHT COMPANY SUBMITTED THE LOW BID OF $317,034, WHILE BOGUE ELECTRIC MFG. CO., AND YOUR FIRM SUBMITTED BIDS OF $362,292 AND $460,136, RESPECTIVELY.

PAGE E-1 OF THE INVITATION SCHEDULE LISTED THE PROCUREMENT ITEMS AS FOLLOWS:

ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT

0001 GROUP I - 250 KW MOTOR

GENERATORS INCLUDING

CONTROLS AND

DISTRIBUTION CENTER.

(ONLY ONE DISTRIBUTION

CENTER REQUIRED FOR 2

MOTOR GENERATORS) 2 EA. $ $

0002 GROUP II - 150 KW MOTOR

GENERATORS INCLUDING

CONTROLS AND

DISTRIBUTION CENTER.

(ONLY ONE DISTRIBUTION

CENTER REQUIRED FOR 2

MOTOR GENERATORS) 2 EA. $ $

0003 INSTALLATION AND FIELD

TESTING

0003A MANUFACTURER'S

INSTALLATION AND TEST

ENGINEERING SERVICES LUMP SUM $

0003B ADDITIONAL

MANUFACTURER'S

INSTALLATION AND TEST EST.

ENGINEER SERVICES 5 MANDAYS $

TOTAL ESTIMATED AMOUNT

OF OFFER (ITEMS 0001

THRU 0003B) $

SHORTLY AFTER BID OPENING A REPRESENTATIVE OF YOUR FIRM TELEPHONED THE PROCURING ACTIVITY TO DISCUSS THE INVITATION. HE INDICATED THAT HE THOUGHT THE REQUIREMENTS WERE AMBIGUOUS, INASMUCH AS IT WAS NOT CLEAR WHETHER FOUR OR EIGHT MOTOR GENERATOR SETS WERE REQUIRED. HE ALSO STATED THAT YOUR FIRM HAD BID ON THE BASIS OF SUPPLYING EIGHT MOTOR GENERATOR SETS.

AN AWARD WAS MADE TO KING KNIGHT ON DECEMBER 7, 1971, AND BY LETTER OF JANUARY 31, 1972, TO THE PROCURING ACTIVITY, YOU PROTESTED THE AWARD ON THE BASIS OF YOUR DISAGREEMENT WITH ANY INTERPRETATION OF THE INVITATION THAT ALLOWED ONLY TWO MOTOR GENERATOR UNITS TO BE SUPPLIED UNDER EACH BID ITEM. IT IS YOUR CONTENTION THAT THE SUPPLIES AND/OR SERVICES TO BE PROCURED UNDER BID ITEMS 0001 AND 0002 ARE FOR THE QUANTITY OF TWO EACH "GROUP I" AND "GROUP II" MOTOR GENERATOR SETS, AND SINCE EACH "GROUP" CONSISTS OF TWO MOTOR GENERATORS, THE QUANTITY OF MOTOR GENERATORS TO BE SUPPLIED SHOULD BE EIGHT, RATHER THAN FOUR. IN SUPPORT OF THIS CONTENTION YOU STATE THAT THE NOMENCLATURE FOR THE "SUPPLIES/SERVICES" TO BE FURNISHED IS "GROUP" AND A "GROUP" IS DEFINED IN PARAGRAPH 7.1 PAGE F-9 OF THE SPECIFICATIONS AS CONSISTING OF TWO MOTOR GENERATOR SETS. PARAGRAPH 7.1 STATES:

"7. EQUIPMENT ARRANGEMENT

"7.1 GENERAL. EACH TWO MOTOR-GENERATOR SETS AND THEIR ASSOCIATED EQUIPMENT AND SWITCHGEAR SHALL BE CONSIDERED AS A SEPARATE GROUP. PARALLEL OPERATION IS A REQUIREMENT, HOWEVER, EACH MOTOR-GENERATOR SET WITH AUXILIARIES SHALL BE COMPLETE IN ITSELF AND SUITABLE FOR INDEPENDENT OPERATION. LIKE COMPONENTS OF EQUAL ELECTRICAL RATING SHALL BE ELECTRICALLY AND MECHANICALLY IDENTICAL AND INTERCHANGEABLE BETWEEN EACH OTHER."

IT IS THE PROCURING ACTIVITY'S POSITION THAT THE WORDS "GROUP I" AND "GROUP II" IN THE "SUPPLIES/SERVICES" COLUMN WERE INCLUDED MERELY FOR ADDITIONAL UNIT DESCRIPTION, AND THAT PARAGRAPH 7.1 DOES NOT STATE THAT A "GROUP" SHALL CONSIST OF TWO MOTOR GENERATORS, BUT MERELY POINTS OUT THAT FOR THE PURPOSES OF EQUIPMENT ARRANGEMENT EACH TWO MOTOR GENERATOR SETS AND THEIR ASSOCIATED EQUIPMENT AND SWITCHGEAR WOULD BE CONSIDERED AS A SEPARATE GROUP. IT IS ALSO POINTED OUT THAT PARAGRAPH 1 ON PAGE H 1, ENTITLED "DELIVERY AND LIQUIDATED DAMAGE SCHEDULE", CLEARLY INDICATES THAT DELIVERY OF ONLY TWO OF EACH SIZE MOTOR GENERATOR IS REQUIRED. THE "DELIVERY AND LIQUIDATED DAMAGE SCHEDULE" READS AS FOLLOWS:

"DELIVERY SCHEDULE LIQUIDATED

(CALENDAR DAYS AFTER DAMAGES PER DAY

DATE OF AWARD) OF DELAY

2 - 150 KW MOTOR GENERATORS

INCLUDING CONTROLS AND

DISTRIBUTION CENTER; AND 2 -

250 KW MOTOR GENERATORS INCLUDING

CONTROLS AND DISTRIBUTION CENTER 300 $75"

THE PROCURING ACTIVITY ALSO POINTS OUT THAT THE DRAWINGS INDICATE THAT ONLY FOUR MOTOR GENERATOR SETS ARE REQUIRED, AND IT CONTENDS ITS POSITION IS SUPPORTED BY PARAGRAPH 5.1 OF SECTION F, WHICH STATES:

"5. UNIT DESCRIPTION

"5.1. MOTOR-GENERATOR SETS. THERE SHALL BE TWO RATINGS FOR MOTOR GENERATOR SETS WITH EACH RATING IDENTIFIED AS A GROUP. MOTORS AND GENERATORS SHALL BE OF THE REVOLVING FIELD SYNCHRONOUS TYPE, DIRECT COUPLED, AND MOUNTED ON A SELF-SUPPORTING STRUCTURAL STEEL BASE. EACH MOTOR AND GENERATOR SHALL OPERATE IN CONJUNCTION WITH ITS ASSOCIATED EXCITER, VOLTAGE REGULATOR, AND ALL ASSOCIATED CONTROLS. FOR THE PURPOSE OF THIS SPECIFICATION, THE GROUPS SHALL BE IDENTIFIED AS FOLLOWS:

5.1.1 GROUP I.

5.1.2 GROUP II."

WHILE IT WOULD APPEAR THAT PARAGRAPH 7.1 OF THE SPECIFICATIONS, STANDING ALONE, COULD BE INTERPRETED IN THE MANNER FOR WHICH YOU CONTEND, THE RULE IS SETTLED THAT THE MEANING OF A CONTRACTUAL PROVISION MUST BE DETERMINED AFTER CONSIDERATION OF ALL OTHER PERTINENT PROVISIONS OF THE CONTRACT DOCUMENTS. IN VIEW THEREOF, AND OF THE OTHER PERTINENT PROVISIONS QUOTED ABOVE, WE MUST AGREE WITH THE PROCURING ACTIVITY THAT THE INVITATION AS A WHOLE CAN ONLY PROPERLY BE READ TO MEAN THAT "GROUP I" AND "GROUP II" WERE USED MERELY FOR THE PURPOSE OF IDENTIFYING, AMONG OTHER THINGS, THE GENERATORS AS HAVING A 250 KW AND A 150 KW RATING, RESPECTIVELY, AND HAD NOTHING TO DO WITH THE EQUIPMENT ARRANGEMENT "GROUP" OF TWO MOTOR GENERATOR SETS AND THEIR ASSOCIATED EQUIPMENT AND SWITCHGEAR. UNDER THE CIRCUMSTANCES, AND SINCE THERE IS NO EVIDENCE OF RECORD THAT EITHER OF THE OTHER TWO BIDDERS WERE CONFUSED AS TO THE NUMBER OF MOTOR GENERATORS REQUIRED TO BE SUPPLIED UNDER THE PROCUREMENT IN QUESTION, WE ARE UNABLE TO CONCLUDE THAT THERE WAS AN AMBIGUITY IN THE INVITATION.

WE THEREFORE FIND NO LEGAL BASIS TO QUESTION THE AWARD TO KING KNIGHT, AND YOUR PROTEST MUST BE DENIED.