B-133893, NOV. 1, 1957

B-133893: Nov 1, 1957

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INCORPORATED: REFERENCE IS MADE TO YOUR TELEFAX RECEIVED IN OUR OFFICE ON OCTOBER 7. IN THE TELEFAX IT IS STATED THAT SINCE YOUR COMPANY IS THE LOWEST RESPONSIBLE BIDDER ON ITEM 9 OF SCHEDULE II. THAT IN THE EVENT YOUR COMPANY IS NOT AWARDED THE CONTRACT. NINE BIDS WERE RECEIVED IN RESPONSE TO ITEM 9 OF SCHEDULE II OF THE INVITATION AND AWARD OF THAT ITEM WAS MADE TO WARNER AND SWASEY COMPANY. YOUR BID WAS REJECTED BECAUSE IT WAS NONRESPONSIVE AND ALSO BECAUSE IT DID NOT MEET THE SPECIFICATIONS SET FORTH IN THE INVITATION. SCHEDULE II - 1 AND II - 2 IS CONTINGENT UPON DELIVERY OF ENGINES. "2. PISTONS IN HERCULES ENGINES WILL NOT HAVE BRONZE BUSHINGS SINCE THEY HAVE ALUMINUM PISTONS. SINCE THE COMPANY WAS PROPOSING TO FURNISH HERCULES ENGINES WITHOUT BRONZE BUSHINGS.

B-133893, NOV. 1, 1957

TO LIBBY WELDING COMPANY, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEFAX RECEIVED IN OUR OFFICE ON OCTOBER 7, 1957, PROTESTING THE AWARD OF ITEM 9 OF SCHEDULE II OF INVITATION NO. 8- 3038B1, DATED AUGUST 14, 1957, ISSUED BY THE CIVIL AERONAUTICS ADMINISTRATION, DEPARTMENT OF COMMERCE, FOR THE FURNISHING OF CERTAIN ENGINE GENERATORS.

IN THE TELEFAX IT IS STATED THAT SINCE YOUR COMPANY IS THE LOWEST RESPONSIBLE BIDDER ON ITEM 9 OF SCHEDULE II, IT SHOULD BE AWARDED THE CONTRACT, AND THAT IN THE EVENT YOUR COMPANY IS NOT AWARDED THE CONTRACT, THE INVITATION SHOULD BE WITHDRAWN AND THE PROCUREMENT READVERTISED.

PURSUANT TO OUR REQUEST THE CIVIL AERONAUTICS ADMINISTRATION HAS FURNISHED A COPY OF THE INVITATION, AN ABSTRACT OF BIDS RECEIVED, AND A REPORT OF THE FACTS INVOLVED IN THE PROCUREMENT. NINE BIDS WERE RECEIVED IN RESPONSE TO ITEM 9 OF SCHEDULE II OF THE INVITATION AND AWARD OF THAT ITEM WAS MADE TO WARNER AND SWASEY COMPANY, DUPLEX DIVISION, ON SEPTEMBER 30, 1957. ALTHOUGH YOUR COMPANY SUBMITTED A LOWER BID ON ITEM 9 OF SCHEDULE II, YOUR BID WAS REJECTED BECAUSE IT WAS NONRESPONSIVE AND ALSO BECAUSE IT DID NOT MEET THE SPECIFICATIONS SET FORTH IN THE INVITATION. THE ADMINISTRATION EXPLAINS THE BASIS FOR ITS ACTION IN REJECTING YOUR BID AS FOLLOWS:

"THE LIBBY WELDING COMPANY SUBMITTED WITH ITS BID A LETTER DATED SEPTEMBER 14, WHICH MADE ITS BID SUBJECT TO THE FOLLOWING PERTINENT CONDITIONS:

"1. DELIVERY OF ITEMS SCHEDULE I - 1, AND SCHEDULE II - 1 AND II - 2 IS CONTINGENT UPON DELIVERY OF ENGINES.

"2. PISTONS IN HERCULES ENGINES WILL NOT HAVE BRONZE BUSHINGS SINCE THEY HAVE ALUMINUM PISTONS.

THE FIRST CONDITION MADE ITS BID NON-RESPONSIVE TO THE TERMS OF THE INVITATION ON THE TERMS INVOLVED SINCE DELIVERY TIME COULD NOT BE EVALUATED. THE SECOND CONDITION TOOK EXCEPTION TO SECTION 6.2.3.2 OF SPECIFICATION CAA-547D, WHICH READS:

" "6.2.3.2 CONNECTING RODS. CONNECTION RODS SHALL BE HEAT TREATED, DROP FORGED STEEL, CAPABLE OF WITHSTANDING ENGINE STRESSES AND SHALL BE PROPERLY BALANCED. THE WRISTPIN BEARINGS SHALL BE BRONZE BUSHINGS ACCURATELY FITTED TO THE PINS. CRANKPIN BEARINGS SHALL BE OF THE REPLACEABLE PRECISION TYPE.'

SINCE THE COMPANY WAS PROPOSING TO FURNISH HERCULES ENGINES WITHOUT BRONZE BUSHINGS, THIS EXCEPTION DISQUALIFIED ITS BID ON ITEM 9 OF SCHEDULE II.'

THE FACTS CLEARLY SHOW THAT THE CONTRACT WAS AWARDED TO WARNER AND SWASEY COMPANY ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT YOUR BID WAS NOT RESPONSIVE TO THE ADVERTISED SPECIFICATIONS IN ALL MATERIAL RESPECTS. THE CONTRACTING OFFICER NECESSARILY IS VESTED WITH A CERTAIN AMOUNT OF DISCRETION IN SUCH MATTERS AND, IN THE ABSENCE OF BAD FAITH OR COMPLETE DISREGARD OF THE FACTS, WE WOULD NOT BE WARRANTED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS CONTRARY TO LAW.

IN THE CIRCUMSTANCES, IT IS OUR CONCLUSION THAT THE AWARD TO WARNER AND SWASEY COMPANY RESULTED IN A BINDING LEGAL OBLIGATION.