B-124276, AUGUST 22, 1955, 35 COMP. GEN. 98

B-124276, AUGUST 22, 1955, 35 COMP. GEN. 98

CONTRACTS - CANCELLATION - FAILURE TO FURNISH DATA REQUIRED BY INVITATION THE AWARD OF A CONTRACT TO A BIDDER WHO WAS PERMITTED TO SUPPLY CERTAIN REQUIRED SHIPPING DATA AFTER THE BIDS WERE OPENED IS NOT SO CLEARLY ERRONEOUS AS TO REQUIRE CANCELLATION OR TO FURNISH A DEFENSE TO AN ACTION FOR DAMAGES BY THE CONTRACTOR IN THE EVENT OF CANCELLATION; HOWEVER, ADMINISTRATIVE ACTION SHOULD BE TAKEN TO ASSURE THAT IN FUTURE CASES BIDDERS WILL NOT BE PERMITTED TO SUPPLEMENT OR MATERIALLY CHANGE THEIR BIDS AFTER OPENING.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, AUGUST 22, 1955:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1955, WITH ENCLOSURES, RELATIVE TO THE PROTEST OF THE EMECO CORPORATION AGAINST THE ACTION OF THE GSA IN AWARDING CONTRACTS TO THE KUEHNE MANUFACTURING COMPANY AND THE U.S. CHAIR CRAFT MANUFACTURING CORPORATION FOR THE MANUFACTURE AND SHIPMENT (DOMESTIC PACKED) OF STRAIGHT CHAIRS TO VARIOUS AIR FORCE BASES, PURSUANT TO INVITATION FOR BIDS NO. E-53668, DATED NOVEMBER 17, 1954.

THE PROTEST WAS THE SUBJECT OF A HEARING HELD BY THE BOARD OF REVIEW OF YOUR ADMINISTRATION AND, AS A RESULT OF ITS FINDINGS, IT HAS RECOMMENDED THAT THE APPEAL OF THE EMECO CORPORATION BE DENIED AS TO ALL OF ITS CONTENTIONS, WITH THE EXCEPTION OF ITS CONTENTION THAT THE AWARD MADE TO U.S. CHAIR CRAFT MANUFACTURING CORPORATION WAS IMPROPER AND NOT RESPONSIVE IN THAT IT FAILED TO SUPPLY CERTAIN INFORMATION AS REQUIRED BY THE INVITATION. THE BOARD OF REVIEW FURTHER RECOMMENDS THAT THE CONTRACT ENTERED INTO WITH THE U.S. CHAIR CRAFT MANUFACTURING CORPORATION BE CANCELLED INSOFAR AS IT IS STILL EXECUTORY AND AWARD MADE FOR THE UNEXECUTED PORTION TO THE LOWEST RESPONSIBLE BIDDER AND THAT THE MATTER BE REFERRED HERE FOR CONSIDERATION WITH THE RECOMMENDATION THAT THE PROPOSED ACTION BE GIVEN FAVORABLE CONSIDERATION. YOU REQUEST A DECISION REGARDING THESE RECOMMENDATIONS WHICH HAVE BEEN GIVEN YOUR APPROVAL.

PERTINENT PROVISIONS OF THE INVITATION FOR BIDS ARE AS FOLLOWS:

A. " BIDS ARE INVITED FOR FURNISHING DORMITORY FURNITURE ON ITEM BY ITEM BASIS F.O.B. POINT OF ORIGIN AND/OR DELIVERED TO DESTINATIONS AT CONTRACTOR'S EXPENSE.'

B. " AWARDS: BIDS RECEIVED F.O.B. POINT OF ORIGIN WILL BE EVALUATED BY ADDING THE COST OF TRANSPORTATION FROM BIDDER'S POINT OF ORIGIN TO THE DESTINATION LISTED HEREIN. AWARDS WILL BE MADE ON BASIS OF EITHER DELIVERED TO DESTINATION OR F.O.B. POINT OF ORIGIN, WHICHEVER IS IN THE BEST INTEREST OF THE GOVERNMENT. * * *"

AMONG OTHER THINGS, THE BOARD OF REVIEW CONSIDERED (1) THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, QUOTED ABOVE; (2) THE ABILITY OF THE SUCCESSFUL BIDDERS TO LOAD THE NUMBER OF CHAIRS AS STATED IN THEIR BIDS; (3) THE INSTRUCTIONS ALLEGED TO HAVE BEEN GIVEN THE APPELLANT BY A FEDERAL SUPPLY SERVICE INSPECTOR UNDER A PREVIOUS CONTRACT; (4) THE ALLEGED FAILURE OF THE CHAIRS MANUFACTURED BY THE KUEHNE MANUFACTURING COMPANY TO MEET THE SPECIFICATIONS IN A NUMBER OF ESPECTS; AND (5) THE DETERMINATION OF THE FEDERAL SUPPLY SERVICE THAT AN AWARD WOULD NOT HAVE BEEN MADE TO THE APPELLANT EVEN IF ITS CONTENTIONS ABOUT THE SIZE OF THE CARTONS AND NUMBER OF CHAIRS TO BE PACKED ARE CONCEDED.

REGARDING THE CONTENTION OF THE EMECO CORPORATION THAT THE BID OF THE U.S. CHAIR CRAFT MANUFACTURING CORPORATION WAS NOT RESPONSIVE, IN THAT IT FAILED TO INCLUDE THE REQUIRED DATA WITH RESPECT TO THE NUMBER OF CHAIRS TO BE SHIPPED PER CAR, THE RECORD SHOWS THAT THE CONTRACTING OFFICER CONSIDERED THE OMISSION AS A DEFICIENCY OF A MINOR NATURE WHICH HE WAS AUTHORIZED TO WAIVE. ACCORDINGLY, THE BIDDER WAS REQUESTED TO FURNISH THE MISSING DATA WHICH WAS USED IN THE EVALUATION OF ITS BID.

WHILE CONTRACTING OFFICERS NECESSARILY ARE VESTED WITH A CERTAIN AMOUNT OF DISCRETION IN SUCH MATTERS, IT HAS BEEN CONSISTENTLY HELD THAT DEFICIENCIES OR DEVIATIONS MAY BE WAIVED ONLY IF THEY DO NOT GO TO THE SUBSTANCE OF THE BID OR WORK AN INJUSTICE TO OTHER BIDDERS. IN ITS REPORT TO YOU THE BOARD OF REVIEW CONCLUDES THAT THE OMISSION OF THE SHIPPING DATA CONSTITUTED A MAJOR DEFICIENCY WHICH AFFECTED THE PRICE (THE TOTAL DELIVERED COST TO THE GOVERNMENT) AND BY PERMITTING THE SUBMISSION OF SUCH DATA AFTER THE BIDS WERE OPENED THE BIDDER, IN EFFECT, WAS GIVEN A SECOND CHANCE. WHILE WE ARE INCLINED TO AGREE WITH THIS CONCLUSION EVEN THOUGH IT IS SPECULATIVE WHETHER ANY ADVANTAGE INSURED TO THE BIDDER, WE DO NOT FEEL THAT THE AWARD WAS SO CLEARLY ERRONEOUS AS TO REQUIRE CANCELLATION OF THE CONTRACT OR TO FURNISH A GOOD DEFENSE TO AN ACTION FOR DAMAGES BY THE CONTRACTOR IN THE EVENT OF CANCELLATION. ACCORDINGLY, NO QUESTION WILL BE RAISED TO THE ADMINISTRATIVE ACTION REGARDING THE AWARD MADE IN THIS INSTANCE TO THE U.S. CHAIR CRAFT CORPORATION. HOWEVER, APPROPRIATE ACTION SHOULD BE TAKEN TO ASSURE THAT IN FUTURE CASES BIDDERS WILL NOT BE PERMITTED TO SUPPLEMENT OR CHANGE THEIR BIDS IN MATERIAL RESPECTS AFTER BID OPENING.