B-139220, DEC. 15, 1959

B-139220, DEC. 15, 1959

TO THE LOMBARD CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1959, REQUESTING RECONSIDERATION OF OUR DECISION, B-139220, JULY 14, 1959, IN WHICH WE CONCLUDED THAT THERE HAD NOT BEEN PRESENTED ANY BASIS UPON WHICH WE COULD LEGALLY OBJECT TO THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INQUIRY NO. G-355931-K ISSUED OCTOBER 22, 1958, BY THE OPERATING CONTRACTOR FOR THE ATOMIC ENERGY COMMISSION'S HANFORD WORKS. YOUR BID WAS REJECTED PRIMARILY BECAUSE OF THE FAILURE TO MEET THE DESCRIPTIVE LITERATURE REQUIREMENTS OF THE INVITATION.

YOU NOW CONTEND THAT THE OPERATING CONTRACTOR AND THE ATOMIC ENERGY COMMISSION PERSONNEL CONCERNED WERE PREDISPOSED TO FIND SOME BASIS FOR REJECTING ANY BID SUBMITTED BY YOU. WE HAVE MADE AN INVESTIGATION WITH RESPECT TO THE MATTER AND HAVE BEEN UNABLE TO ESTABLISH ANY AFFIRMATIVE EVIDENCE IN SUPPORT OF YOUR ALLEGATION OF BAD FAITH ON THE PART OF EITHER CONTRACTOR OR COMMISSION PERSONNEL.

YOU CONTEND ALSO THAT THE INVITATION WAS DEFICIENT IN ITS FAILURE TO DEFINE SUCH WORDS AS ,PROOF" AND "SUBSTANTIALLY" WITH RESPECT TO THE DESCRIPTIVE LITERATURE REQUIREMENT. PRESUMABLY, YOU HAVE REFERENCE TO PROVISIONS OF THE INVITATION REQUIRING PROOF THAT THE BIDDER HAD BUILT A PRESS CURRENTLY AND SUCCESSFULLY IN USE, MEETING THE DESCRIPTION AND TONNAGE SUBSTANTIALLY AS SPECIFIED, AND REQUIRING PROOF THAT SUCH PRESSES COULD EXTRUDE COPPER OR BRASS TUBES UNDER STATED CONDITIONS WITHIN GIVEN TOLERANCES. WE HELD IN OUR EARLIER DECISION THAT THE FAILURE TO PROVIDE PROOF WITH RESPECT TO THE LATTER CAPABILITY WAS AN ADEQUATE BASIS FOR THE REJECTION OF YOUR BID. UNDER THE TERMS OF THE INVITATION BIDDERS WERE ALSO REQUIRED TO FURNISH SUFFICIENT DRAWINGS, SKETCHES, AND PHOTOGRAPHS TO CONVEY CLEARLY THE DESCRIPTION, PRINCIPLES OF OPERATING FEATURES, AND ADJUSTMENTS OF THE PRESS PROPOSED TO BE FURNISHED.

WE RECOGNIZE THAT TERMS SUCH AS "PROOF" ARE NOT SUBJECT TO MATHEMATICALLY PRECISE DEFINITION. WE THINK THAT "PROOF" AS USED IN THE INVITATION MUST BE REGARDED AS THAT QUANTUM OF EVIDENCE SUFFICIENT TO CONVINCE A REASONABLY PRUDENT PERSON ENGAGED IN THE DESIGN, MANUFACTURE, OR USE OF THE TYPE OF EQUIPMENT IN QUESTION. SEE LINCOLN RUG COMPANY V. EAST NEWARK REALTY CORP., 61 A.2D 448, 451. WE DO NOT HAVE THE TECHNICAL KNOWLEDGE NECESSARY TO EVALUATE THE ADEQUACY OF THE DATA SUBMITTED WITH YOUR BID. HOWEVER, A COMPARISON OF THE BIDS SUBMITTED CLEARLY INDICATES THAT THOSE WHICH WERE REGARDED AS RESPONSIVE WERE ACCOMPANIED BY DATA MORE COMPLETELY DETAILED AND EXACT THAN THE DESCRIPTIVE INFORMATION FURNISHED WITH YOUR BID. FURTHER, WE FOUND THAT THE CONCLUSIONS OF THE COMMISSION AND CONTRACTOR OFFICIALS WITH RESPECT TO THE INADEQUACY OF YOUR DESCRIPTIVE DATA WERE SHARED BY AN INDEPENDENT CONSULTANT WHO FOUND WITH RESPECT TO YOUR BID THAT MOST OF THE DETAILS OF THE PRESS WERE NOT SUFFICIENTLY DETAILED TO ALLOW AN EVALUATION.

IT APPEARS, IN VIEW OF THE FOREGOING, THAT A REASONABLE BASIS EXISTED FOR CONCLUDING THAT THE DATA FURNISHED WITH YOUR BID DID NOT COMPLY WITH THE REQUIREMENTS AS TO PROOF REFERRED TO ABOVE. ACCORDINGLY, THERE IS NO BASIS UPON WHICH TO REQUIRE THE WITHHOLDING OF FUNDS FOR THIS PROJECT AS SUGGESTED IN YOUR LETTER OF AUGUST 18.