B-142796, JUN. 13, 1960

B-142796, JUN. 13, 1960

TO THE MIEHLE COMPANY:

BY TELEGRAM OF MAY 18 AND LETTERS OF MAY 19 AND JUNE 4, 1960, YOU HAVE PROTESTED THE PROPOSED REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. 2251, ISSUED MARCH 31, 1960, BY THE COAST AND GEODETIC SURVEY. THE REASON ADVANCED BY THE CONTRACTING OFFICER FOR SUCH REJECTION IS THE FAILURE OF THE ARTICLE OFFERED IN ITEM 2 (B) OF YOUR BID TO CONFORM TO THE SPECIFICATIONS.

THE PROCUREMENT WAS FIRST BROUGHT TO OUR ATTENTION BY LETTER OF MAY 4, 1960, FROM THE CONTRACTING AGENCY DEALING PRIMARILY WITH THE ACCEPTABILITY OF THE LOW BID BUT ALSO ADVISING THAT YOU HAD IN YOUR BID NOTED EXCEPTIONS, WITH RESPECT TO ITEM 2 OF THE INVITATION, OF SO SUBSTANTIAL A NATURE AS TO RENDER THAT PORTION OF THE BID NON RESPONSIVE. IN OUR DECISION, B-142796, MAY 17, 1960, WE HELD THAT SINCE UNDER THE TERMS OF THE INVITATION THE ENTIRE PROCUREMENT WOULD BE AWARDED TO ONE BIDDER YOUR REPORTEDLY NON-RESPONSIVE BID COULD NOT BE CONSIDERED FOR AWARD IF IT SHOULD BE ADMINISTRATIVELY DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO PROCURE BOTH ITEMS 1 AND 2. ACCORDING TO AN ENCLOSURE TO A LETTER OF MAY 31, 1960, FROM THE ASSISTANT SECRETARY OF COMMERCE, PROCUREMENT OF BOTH ITEMS TOGETHER HAS BEEN DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT. ACCORDINGLY, IT IS PROPOSED TO REJECT YOUR BID.

ITEM 2 (B) OF THE INVITATION CALLS FOR A CONTINUOUS PILE FEEDER TO PERMIT LOADING OF STOCK ONTO THE FEEDER WHILE THE PRESS IS IN OPERATION. AT PAGE 6 OF THE INVITATION THERE APPEARS A GUARANTY CLAUSE UNDER WHICH THE CONTRACTOR GUARANTEES THAT THE EQUIPMENT FURNISHED WILL CONFORM TO THE REQUIREMENTS OF THE CONTRACT AND, FURTHER, THAT ANY NON-CONFORMING ARTICLE OR PART THEREOF WILL BE PROPERLY CORRECTED OR REPLACED. PARAGRAPH 1 OF THE SPECIFICATIONS, PAGE 7 OF THE INVITATION, STATES IN PART THAT THE PRESS SHALL BE DESIGNED FOR DEPENDABLE, EFFICIENT PRODUCTION OF HIGH QUALITY FIVE-COLOR OFFSET LITHOGRAPHY IN THE PRINTING OF MULTI-COLOR NAUTICAL AND AERONAUTICAL CHARTS. IT ALSO REQUIRES THAT THE SIZE, MATERIAL, AND STRENGTH OF PARTS BE SUITABLE FOR THE PURPOSE INTENDED. PARAGRAPH 3 OF THE SPECIFICATIONS, APPEARING AT PAGE 8, ESTABLISHES CERTAIN CAPACITIES AND DIMENSIONS, INCLUDING A MAXIMUM PAPER THICKNESS OF .035 INCHES.

ON PAGE 12 OF THE INVITATION THE BIDDER WAS REQUIRED TO INDICATE WHETHER HIS BID COMPLIED WITH THE SPECIFICATIONS IN EVERY PARTICULAR. THE QUESTION WAS ANSWERED IN THE NEGATIVE IN YOUR BID. YOUR BID WAS ACCOMPANIED BY A LETTER DATED APRIL 19, 1960, IN WHICH IT WAS INDICATED THAT YOU PROPOSED TO FURNISH FOR ITEM 2 (B) A DEXTER CONTINUOUS FEEDER LOADING DEVICE "WHICH HERETOFORE HAS BEEN USED FOR THE FEEDING OF CARDBOARD ONLY.' YOU FURTHER INDICATED IN THE LETTER THAT THE DEVICE WAS NOT OFFERED AS A PAPER FEEDER, ALTHOUGH IT MIGHT BE SUITABLE FOR PAPER OF CERTAIN THICKNESSES, AND THAT A DEXTER FEEDER WHICH WOULD ACCOMMODATE BOTH PAPER AND CARDBOARD WAS THEN IN PROCESS OF DEVELOPMENT FOR USE WITH YOUR PRESS BUT THAT IT WAS NOT OFFERED IN THE BID.

WHILE THE EXPLANATION WITH RESPECT TO THE CONTINUOUS FEEDER MAY NOT HAVE BEEN INTENDED AS AN EXCEPTION TO THE SPECIFICATIONS, WE THINK THAT THE LANGUAGE CLEARLY LIMITED THE GUARANTY PROVISION WITH RESPECT TO THE SUITABILITY OF THE CONTINUOUS FEEDING DEVICE OFFERED FOR THE PAPER INTENDED FOR USE, SO THAT GRAVE DOUBT WOULD EXIST WHETHER THE COAST AND GEODETIC SURVEY WOULD HAVE ANY RECOURSE AGAINST YOUR FIRM, IN THE EVENT OF AN AWARD TO YOU, SHOULD THE FEEDER NOT BE CAPABLE OF HANDLING PAPER OF THE THICKNESS NORMALLY UTILIZED. IN FACT YOUR STATEMENT THAT A FEEDER CAPABLE OF ACCOMMODATING BOTH PAPER AND CARDBOARD WAS THEN IN PROCESS OF DEVELOPMENT APPEARS TO CONSTITUTE AN AFFIRMATION THAT THE FEEDER OFFERED IN YOUR BID IS NOT GUARANTEED TO BE CAPABLE OF SUCH USE.

WHILE THE SPECIFICATIONS WERE NOT AS DETAILED AND SPECIFIC AS MIGHT BE DESIRABLE, WE THINK, IN VIEW OF THE SMALL NUMBER OF POSSIBLE SUPPLIERS AND THEIR APPARENT FAMILIARITY WITH THE PURPOSE FOR WHICH THE EQUIPMENT WAS INTENDED, THAT KNOWLEDGE OF THE SUITABLE CHARACTERISTICS OF THE FEEDER MAY BE IMPUTED TO BOTH PROSPECTIVE SUPPLIERS. THEREFORE, AND SINCE THE REASONABLE INTERPRETATION OF THE LETTER ACCOMPANYING YOUR BID (AND WHICH MUST BE REGARDED AS A PART THEREOF) IS THAT THE CONTINUOUS FEEDER OFFERED DOES NOT CONFORM TO THE KNOWN REQUIREMENTS, WE MUST CONCLUDE THAT THE PROPOSED REJECTION OF YOUR BID IS PROPER.