B-163007, JAN. 10, 1968

B-163007, JAN. 10, 1968

BIDS - DEVIATIONS - IN OTHER THAN BID DECISION TO CLEAVER BROOKS, DIV. OF AQUA-CHEM INC. DENYING PROTEST AGAINST REJECTION OF BID FOR BOILERS AND EQUIPMENT FOR FEDERAL REFORMATORY, PETERSBURG, VA. LOW BIDDER WHO CONTENDS THAT DESCRIPTIVE LITERATURE SUBMITTED WITH BID WAS ONLY TO PROVIDE INFORMATION AS TO SIZE, SPACE, WEIGHT AND OTHER REQUIREMENTS AND NOT TO INDICATE THAT BIDDER WAS OFFERING OTHER THAN MODEL REQUIRED MUST HAVE PROTEST DENIED SINCE ADMINISTRATIVE AGENCY WAS JUSTIFIED IN CONSIDERING SUBMISSION OF INFORMATION AS POSSIBLE LIMITATION ON EQUIPMENT TO BE FURNISHED.

TO CLEAVER BROOKS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29, 1967, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. 9-14218, ISSUED BY THE FEDERAL REFORMATORY, PETERSBURG, VIRGINIA.

THE SUBJECT INVITATION, ISSUED ON AUGUST 24, 1967, REQUESTED BIDS FOR FURNISHING THREE BOILERS AND AUXILIARY EQUIPMENT IN ACCORDANCE WITH THE SPECIFICATIONS ATTACHED THERETO. THREE BIDS WERE RECEIVED AND OPENED ON SEPTEMBER 20, 1967. YOU SUBMITTED THE LOWEST BASE BID IN THE AMOUNT OF $96,885 AND BABCOCK AND WILCOX COMPANY SUBMITTED THE NEXT LOW BASE BID IN THE AMOUNT OF $99,610. ON THE "DESIGN DATA" OF THE BIDDING SCHEDULE YOU INDICATED UNDER "TYPE AND SIZE" THAT YOU WERE BIDDING ON YOUR MODEL "DELTA 42" AND YOU SUBMITTED DESCRIPTIVE LITERATURE OF THAT ITEM. THE TECHNICAL STAFF OF THE BUREAU OF PRISONS REVIEWED THE BIDS AND ON THE BASIS OF THE INFORMATION FURNISHED BY YOU CONCLUDED THAT YOUR BID WAS NONRESPONSIVE IN THE FOLLOWING RESPECTS:

"1. TUBES ENTER STEAM DRUM ABOVE THE WATER LINE.

"2. REAR FURNACE WALL NOT TOTALLY WATER COOLED.

"3. BOILER MANUFACTURER'S STANDARD DESIGN DOES NOT PROVIDE FOR CONTROL CENTER TO BE PLACED IN FREE STANDING PANEL AS SPECIFIED, NO NOTE INDICATING INTENT TO COMPLY WITH SPECIFICATIONS.'

IN YOUR LETTER OF NOVEMBER 29, 1967, YOU STATE THAT YOU SUBMITTED YOUR STANDARD COMMERCIAL CATALOG WITH YOUR BID TO PROVIDE INFORMATION ONLY AS TO SIZE AND SPACE REQUIREMENTS, FOUNDATION REQUIREMENTS AND WEIGHTS, BUT NOT WITH THE INTENT OF INDICATING YOUR OFFERING IN EVERY DETAIL. YOU CONTEND, THEREFORE, THAT YOU DID NOT OFFER YOUR STANDARD CATALOG PRODUCT BUT, ON THE CONTRARY, OFFERED TO MEET THE SPECIFICATIONS WITHOUT EXCEPTION. ALSO, YOU CONTEND THAT THE LAST SENTENCE OF A TELEGRAM SUBMITTED TO THE GOVERNMENT BY THE BABCOCK AND WILCOX COMPANY PRIOR TO BID OPENING WHICH READS,"IN ADDITION THE BABCOCK AND WILCOX TERMS AND CONDITIONS SHALL APPLY ONLY WHERE NOT IN CONFLICT WITH THOSE IN YOUR DOCUMENT," IS A COUNTEROFFER AND THEREFORE RENDERS ITS BID NONRESPONSIVE.

WHILE IT MAY BE THAT IN SUBMITTING YOUR COMMERCIAL CATALOG YOU DID NOT INTEND TO INDICATE THAT YOU WERE OFFERING TO FURNISH YOUR STANDARD BOILER THE ADMINISTRATIVE OFFICE ADVISED THAT SINCE YOU INDICATED ON THE "DESIGN DATA" THAT YOU WERE BIDDING ON "DELTA 42" IT WAS OF THE OPINION THAT THE DESCRIPTIVE DATA WAS SUBMITTED FOR EVALUATION PURPOSES. IT IS OUR VIEW THAT THE ADMINISTRATIVE AGENCY WAS JUSTIFIED IN CONSIDERING THE SUBMISSION OF YOUR CATALOG WITH YOUR BID AS A POSSIBLE LIMITATION OF YOUR LIABILITY TO THE FURNISHING OF A BOILER WHICH CONFORMED TO YOUR MODEL "DELTA 42," BUT WHICH DID NOT COMPLY WITH THE ADVERTISED SPECIFICATIONS IN CERTAIN MATERIAL RESPECTS. IN THIS CONNECTION, IT IS NOT UNUSUAL FOR BIDDERS ON EQUIPMENT WHICH THE GOVERNMENT PROPOSES TO PURCHASE TO OFFER EQUIPMENT WHICH DOES NOT COMPLY WITH THE ADVERTISED SPECIFICATIONS, EITHER WITH KNOWLEDGE OF SUCH FACT OR BECAUSE OF A MISTAKEN BELIEF AS TO ONE OR MORE OF THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS. IF A BID IS SO PREPARED AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS OF THE SPECIFICATIONS ANY NEGOTIATIONS WITH THE BIDDER TO CLARIFY SUCH INTENTION WOULD BE OBJECTIONABLE ON THE GROUND THAT NO BIDDER SHOULD BE AFFORDED A SECOND CHANCE TO BID AFTER BIDS ARE OPENED. SEE 34 COMP. GEN. 82, 84; 35 ID. 33, 38.

WE DO NOT AGREE WITH YOUR CONTENTION THAT THE SECOND LOW BIDDER WAS NONRESPONSIVE BECAUSE IT STATED THAT ITS GENERAL CONDITIONS WOULD APPLY WHERE NOT IN CONFLICT WITH THE PROVISIONS OF THE INVITATION. IT SEEMS APPARENT THAT ANY TERMS OR CONDITIONS ATTEMPTED TO BE IMPOSED BY BABCOCK AND WILCOX WHICH ARE ADDITIONAL TO THOSE SPECIFIED IN THE INVITATION WOULD BE CONSIDERED AS BEING IN CONFLICT WITH THE INVITATION AND UNDER THE PLAIN LANGUAGE OF THE TELEGRAM FROM BABCOCK AND WILCOX SUCH ADDITIONAL CONDITIONS WOULD NOT APPLY.