B-181576, DEC 12, 1974

B-181576: Dec 12, 1974

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WHETHER CONTRACTOR MAY BE IN DEFAULT BECAUSE OF DELAYED DELIVERY IS MATTER OF CONTRACT ADMINISTRATION NOT FOR CONSIDERATION BY GAO. 2. WAS PROPER. IT IS CONTENDED THAT BALTIMORE MUST BE ADJUDGED IN DEFAULT OF ITS CONTRACT OBLIGATIONS BECAUSE IT DID NOT DELIVER THE ITEMS WITHIN 45 DAYS AFTER THE DATE OF AWARD AS STATED IN ITS BID. IT IS FELT THAT BALTIMORE WAS NOT RESPONSIVE TO THE BIDDING SCHEDULE REQUIREMENT THAT "ALL BID PROPOSALS SHALL CONTAIN LISTINGS OF ALL ITEMS OF EQUIPMENT TO BE USED IN FABRICATING THE LOUDSPEAKER ENCLOSURE ASSEMBLIES INCLUDING ALL ITEMS OF EQUIPMENT SPECIFIED HEREIN.". IT IS BELIEVED THAT THE BALTIMORE BID SHOULD HAVE BEEN REJECTED. A QUERY IS MADE ALSO AS TO THE PROPRIETY OF ALLOWING BALTIMORE TO CORRECT AFTER BID OPENING A MISTAKE ALLEGEDLY MADE IN ITS BID PRICE.

B-181576, DEC 12, 1974

1. WHETHER CONTRACTOR MAY BE IN DEFAULT BECAUSE OF DELAYED DELIVERY IS MATTER OF CONTRACT ADMINISTRATION NOT FOR CONSIDERATION BY GAO. 2. FAILURE TO SUBMIT COMPLETE LIST OF EQUIPMENT BIDDER PROPOSES TO FURNISH UNDER BRAND NAME OR EQUAL IFB DOES NOT RESULT IN NONRESPONSIVENESS AS BIDDER OFFERED BRAND NAMES CITED IN INVITATION BY INSERTING MANUFACTURER'S NAME AND MODEL NUMBERS OF ONE OF COMPONENTS OF END ITEMS TREATED BY INVITATION AS REPRESENTING THE END ITEM. 3. WHERE CONTRACTING ACTIVITY SUSPECTED ERROR IN LOW BID, REQUESTED VERIFICATIN, AND PERMITTED CORRECTION IN BID PRICE UPON CLEAR AND CONVINCING EVIDENCE OF BID PRICE ACTUALLY INTENDED, AWARD TO LOW BIDDER, STILL LOW AFTER CORRECTION, WAS PROPER.

COTTRELL ELECTRONICS CORP.:

COTTRELL ELECTRONICS CORP. (COTTRELL) PROTESTS THE AWARD ON MAY 21, 1974, TO BALTIMORE SOUND ENGINEERING (BALTIMORE) OF A CONTRACT FOR THE PROCUREMENT OF 4-INCH AND 3-1/2 INCH LOUDSPEAKERS ENCLOSURE ASSEMBLIES WITH SPARE LOUDSPEAKERS FOR THE CHAMBER OF THE HOUSE OF REPRESENTATIVES UNDER INVITATION FOR BIDS NO. 7490, ISSUED BY THE ARCHITECT OF THE CAPITOL ON APRIL 4, 1974.

IT IS CONTENDED THAT BALTIMORE MUST BE ADJUDGED IN DEFAULT OF ITS CONTRACT OBLIGATIONS BECAUSE IT DID NOT DELIVER THE ITEMS WITHIN 45 DAYS AFTER THE DATE OF AWARD AS STATED IN ITS BID. ALSO, IT IS FELT THAT BALTIMORE WAS NOT RESPONSIVE TO THE BIDDING SCHEDULE REQUIREMENT THAT "ALL BID PROPOSALS SHALL CONTAIN LISTINGS OF ALL ITEMS OF EQUIPMENT TO BE USED IN FABRICATING THE LOUDSPEAKER ENCLOSURE ASSEMBLIES INCLUDING ALL ITEMS OF EQUIPMENT SPECIFIED HEREIN." CONSEQUENTLY, IT IS BELIEVED THAT THE BALTIMORE BID SHOULD HAVE BEEN REJECTED. A QUERY IS MADE ALSO AS TO THE PROPRIETY OF ALLOWING BALTIMORE TO CORRECT AFTER BID OPENING A MISTAKE ALLEGEDLY MADE IN ITS BID PRICE.

WHETHER OR NOT A CONTRACTOR IS IN DEFAULT IS A MATTER OF CONTRACT ADMINISTRATION AND NOT FOR CONSIDERATION ORDINARILY BY GAO. IN ANY EVENT, THE BALTIMORE FAILURE TO DELIVER TIMELY DID NOT RESULT FROM ACTIONS WITHIN THE CONTROL OF THE CONTRACTOR. RATHER, THE CONTRACTING ACTIVITY INSTRUCTED THE CONTRACTOR TO POSTPONE DELIVERY UNTIL SUCH TIME AS THE CONGRESS RECESSED FOR A SUFFICIENT PERIOD OF TIME TO PERMIT INSTALLATION OF THE ASSEMBLIES BY GOVERNMENT PERSONNEL. MOREOVER, BALTIMORE ASSURED THE CONTRACTING ACTIVITY THAT NO ADDITIONAL COST TO THE GOVERNMENT WOULD BE INCURRED BY SUCH POSTPONEMENT OF DELIVERY.

WE NOTE THAT, WITH RESPECT TO A DELIVERY SCHEDULE, THE INVITATION PROVIDED A SPACE FOR EACH BIDDER TO STATE THE TIME FOR DELIVERY IN TERMS OF CALENDAR DAYS AFTER DATE OF AWARD. SECTION 1-1.316-2 OF THE FEDERAL PROCUREMENT REGULATIONS (1964 ED. AMENDMENT 10) REQUIRES THAT A DELIVERY SCHEDULE AND ITS EFFECT ON BID EVALUATION BE INCORPORATED INTO AN INVITATION. HOWEVER, WE BELIEVE THAT BALTIMORE RECEIVED NO ADVANTAGE IN THIS PROCUREMENT BY QUOTING THE SHORTEST DELIVERY SCHEDULE OF ALL BIDDERS INASMUCH AS AWARD WAS MADE SOLELY ON THE BASIS OF PRICE AND INASMUCH AS THE DELIVERY SCHEDULE APPEARS TO HAVE BEEN REQUIRED MAINLY FOR INFORMATIONAL PURPOSES.

THE INVITATION, AS NOTED ABOVE, CONTAINED THE FOLLOWING INSTRUCTION:

"SUBMIT WITH BID: ALL BID PROPOSALS SHALL CONTAIN LISTINGS OF ALL ITEMS OF EQUIPMENT TO BE USED IN FABRICATING THE LOUDSPEAKER ENCLOSURE ASSEMBLIES INCLUDING ALL ITEMS OF EQUIPMENT SPECIFIED HEREIN."

BALTIMORE DID NOT STRICTLY COMPLY WITH THIS INSTRUCTION. BY WAY OF EXAMPLE, FOR THE "4-INCH LOUDSPEAKER ENCLOSURE ASSEMBLIES AS HEREINAFTER SPECIFIED AND SHOWN ON DRAWING NO. C-141-E-1,"

BALTIMORE'S LISTING STATED, AS FOLLOWS:

"QUANTITY MODE DESCRIPTION

414 M2104A 4" LOUDSPEAKER ENCLOSURE

ASSEMBLY AS PER DRAWING

C-141-E1. MOUNTING AND

WIRING OF SPEAKER AND

TRANSFORMER IS INCLUDED.

TERMINAL STRIP, WIRE LEADS,

BRACKETS TO BE FURNISHED

BY SOUNDOLIER.*"

THE SAME GENERAL RESPONSE WAS MADE FOR THE 3-1/2 INCH LOUDSPEAKER ENCLOSURE ASSEMBLIES. NO RESPONSE WAS FURNISHED FOR THE SPARE LOUDSPEAKERS.

AS REGARDS THE TWO SIZES OF LOUDSPEAKER ENCLOSURE ASSEMBLIES, THE INVITATION STATED AS FOLLOWS:

"4.2 ACCEPTABLE COMPLETE 3-1/2 INCH LOUDSPEAKER ENCLOSURE ASSEMBLY WITH 3 -1/2 INCH LOUDSPEAKER AND LOUDSPEAKER MATCHING TRANSFORMER: SOUNDOLIER M- 2105 WITH CTS OF PADUCAH, KENTUCKY, MODEL 3-1/2 B 5477 SAMPLE NO. 3-1/2 - 2892 LOUDSPEAKER AND JENSEN MODEL 70 T4 OR ALTEC MODEL 15074 LOUDSPEAKER MATCHING TRASFORMER, OR APPROVED EQUAL. ***

"5.1.4.2 ACCEPTABLE COMPLETE 4 INCH LOUDSPEAKER ENCLOSURE ASSEMBLY WITH 4 -INCH LOUSPEAKER AND LOUDSPEAKER MATCHING TRASFORMER: SOUNDOLIER M-2104 WITH ALTEC MODEL 405A LOUDSPEAKER AND JENSEN MODEL 70T4 OR ALTEC MODEL 15074 LOUDSPEAKER MATCHING TRANSFORMER, OR APPROVED EQUAL. ***"

WE DO NOT BELIEVE THAT THE FAILURE BY BALTIMORE TO COMPLY LITERALLY WITH ALL ASPECTS OF THE REQUIREMENT THAT A BIDDER LIST "ALL ITEMS OF EQUIPMENT TO BE USED" CONSTITUTES A SUFFICIENT REASON FOR REJECTION OF ITS BID AS NONRESPONSIVE. WE BELIEVE IT REASONABLE TO CONCLUDE THAT IT WOULD SUPPLY ALL BE BRAND NAME ITEMS SET FORTH IN THE ABOVE-QUOTED SCTIONS OF THE INVITATION.

ACCORDING TO THE SPECIFICATIONS CONTAINED IN THE IFB, EACH LOUDSPEAKER ENCLOSURE ASSEMBLY CONSISTED OF THREE COMPONENTS: LOUDSPEAKER ENCLOSURE, LOUDSPEAKER, AND LOUDSPEAKER MATCHING TRANSFORMER. IMMEDIATELY PRECEDING THE LISTING REQUIREMENT IN THE BIDDING SCHEDULE, THE FOLLOWING REQUIREMENT IS SET FORTH:

"STATE MANUFACTURER'S NAME AND MODEL NUMBERS OF THE PROPOSED LOUDSPEAKER ENCLOSURE ASSEMBLIES:

BALTIMORE INSERTED "SOUNDOLIER M2104A" AND "SOUNDOLIER M2105." INSERTED ALMOST IDENTICALLY IN THE COTTRELL BID WAS "SEE ATTACHMENT-- SOUNDOLIER M2104A M2105." THE OTHER THREE BIDDERS ALSO INSERTED THE SOUNDOLIER MODEL NUMBERS. ALL BIDDERS EXCEPT BALTIMORE INDICATED IN THEIR BIDS THE BRAND NAMES AND/OR EQUAL ITEMS TO BE FURNISHED. WHILE THE SOUNDOLIER MODEL IS ACTUALLY ONLY THE LOUDSPEAKER ENCLOSURE COMPONENT RATHER THAN THE ENTIRE LOUDSPEAKER ENCLOSURE ASSEMBLY, THE INVITATION APPEARS TO TREAT THE ASSEMBLY AS AN ENTITY WHICH ALL BIDDERS REFERRED TO AS THE SOUNDOLIER UNIT. IN THIS REGARD, THE SPECIFICATIONS (SEE SECTIONS 4.2 AND 5.1.4.2) TREAT THE ASSEMBLY AS CONSTITUTING A SOUNDOLIER WITH TWO OTHER BRAND NAME COMPONENTS. ALSO, THE ABOVE-CITED REQUIREMENT DID NOT REQUEST THE NAME AND MODEL NUMBER OF AN ENCLOSURE, OF A LOUDSPEAKER, AND OF A TRANSFORMER, OR, IN OTHER WORDS, OF THREE SEPARATE AND DISTINCT ITEMS. RATHER, IT REQUESTED OTHER WORDS, OF THREE SEPARATE AND DISTINCT ITEMS. RATHER, IT REQUESTED THE NAME OF THE MANUFACTURER, NOT MANUFACTURERS, OF THE ENTIRE ASSEMBLY. WHILE THIS WOULD NOT PRECLUDE BIDDERS FROM SUBMITTING BIDS BASED ON ANY VARIATION IN THE NUMBER OF BRAND NAME ITEMS AND EQUAL ITEMS, WE BELIEVE THAT, BY INDICATING THE SOUNDOLIER MODELS, BALTIMORE BOUND ITSELF TO SUPPLY ALL THE BRAND NAMES IN THE INVITATION.

SINCE BALTIMORE, IN OUR VIEW, OFFERED TO FURNISH THE CITED BRAND NAMES, ANY REPETITION BY THAT BIDDER OF THE BRAND NAMES IN THE INVITATION WOULD SERVE NO PURPOSE. ACCORDINGLY, WE DO NOT BELIEVE THAT BALTIMORE'S FAILURE TO SUBMIT THE COMPLETE LISTING OF ITEMS OF EQUIPMENT TO BE USED IS A BASIS FOR FINDING THAT FIRM'S BID NONRESPONSIVE.

REGARDING THE QUERY AS TO THE PROPRIETY OF ALLOWING BALTIMORE TO CHANGE ITS BID PRICE AFTER BID OPENING, WHERE THE CONTRACTING ACTIVITY BELIEVES AFTER EXAMINATION OF A BID THAT THE BIDDER HAS MADE A MISTAKE IN ITS PRICE, IT IS THE ACTIVITY'S DUTY TO REQUEST BID PRICE VERIFICATION FROM THAT BIDDER. THUS, WHERE THERE IS CLEAR AND CONVINCING EVIDENCE ESTABLISHING BOTH THE EXISTENCE OF A MISTAKE AND OF THE BID ACTUALLY INTENDED, CORRECTION OF THE BID IS AUTHORIZED. SUCH WAS THE CASE HERE AND, SINCE AFTER CORRECTION, THE BALTIMORE BID WAS STILL LOW WE HAVE NO BASIS TO OBJECT TO THE ACTION TAKEN. SEE B 177125, JANUARY 18, 1973. FURTHER, SUCH ACTION WAS CONSISTENT WITH ARTICLE 3.2 OF THE REGULATIONS OF THE ARCHITECT OF THE CAPITOL DEALING WITH MISTAKES IN BIDS.

IN VIEW OF THE ABOVE, THE PROTEST IS DENIED.

WE ARE, HOWEVER, RECOMMENDING TO THE ARCHITECT OF THE CAPITOL THAT, SINCE HIS OFFICE FOLLOWS THE FEDERAL PROCUREMENT REGULATIONS AS A MATTER OF POLICY, THOSE PROVISIONS OF THE REGULATIONS DEALING WITH BRAND NAME OR EQUAL PROCUREMENTS AND REQUIRING INCLUSION IN THE INVITATION OF A DELIVERY SCHEDULE AND ITS EFFECT ON BID EVALUATION SHOULD BE FOLLOWED IN THE FUTURE.