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B-124529, AUG. 7, 1956

B-124529 Aug 07, 1956
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THE WINTER-WEISS COMPANY: REFERENCE IS MADE TO YOUR LETTER OF APRIL 20. YOUR PROTEST OF THE AWARD ON THE ABOVE-CITED INVITATION FOR BIDS TO THE DAVEY COMPRESSOR COMPANY WAS DENIED IN OUR LETTER OF NOVEMBER 9. FOR THE REASON THAT DAVEY'S BID PROPERLY WAS CONSIDERED AS OFFERING TO FURNISH WELL DRILLING MACHINES IN ACCORDANCE WITH THE SPECIFICATIONS. AS LIMITING THE DELETION OF ACCESSORY ITEMS TO THOSE WHICH WERE UNNECESSARY BECAUSE THE OPERATIONS NORMALLY PERFORMED THEREBY WERE PERFORMED BY FEATURES BUILT INTO OR WERE INHERENTLY EMBODIED IN THE BASIC MACHINE. IT IS STILL CONTENDED THAT THE ACCEPTANCE OF THE DAVEY'S BID WAS IMPROPER FOR THE REASON THAT THE BID DID NOT SPECIFY IN DETAIL THE ACCESSORIES WHICH WERE TO BE FURNISHED.

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B-124529, AUG. 7, 1956

THE WINTER-WEISS COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 20, 1956, AND SUBSEQUENT CORRESPONDENCE, REQUESTING RECONSIDERATION OF OUR DECISION OF NOVEMBER 9, 1955, CONCERNING THE AWARD MADE BY THE CHICAGO PROCUREMENT OFFICE, CORPS OF ENGINEERS, UNDER INVITATION FOR BIDS NO. DA-ENG-11-184-55-F 606.

YOUR PROTEST OF THE AWARD ON THE ABOVE-CITED INVITATION FOR BIDS TO THE DAVEY COMPRESSOR COMPANY WAS DENIED IN OUR LETTER OF NOVEMBER 9, 1955, FOR THE REASON THAT DAVEY'S BID PROPERLY WAS CONSIDERED AS OFFERING TO FURNISH WELL DRILLING MACHINES IN ACCORDANCE WITH THE SPECIFICATIONS, AND AS LIMITING THE DELETION OF ACCESSORY ITEMS TO THOSE WHICH WERE UNNECESSARY BECAUSE THE OPERATIONS NORMALLY PERFORMED THEREBY WERE PERFORMED BY FEATURES BUILT INTO OR WERE INHERENTLY EMBODIED IN THE BASIC MACHINE.

IT IS STILL CONTENDED THAT THE ACCEPTANCE OF THE DAVEY'S BID WAS IMPROPER FOR THE REASON THAT THE BID DID NOT SPECIFY IN DETAIL THE ACCESSORIES WHICH WERE TO BE FURNISHED. HOWEVER, FOR THE REASONS STATES ABOVE, WE FIND NO LEGAL BASIS TO MODIFY THE CONCLUSIONS PREVIOUSLY REACHED IN THE MATTER.

YOU ALLEGE THAT DAVEY COMPRESSOR COMPANY HAS NOT COMPLIED WITH THE DELIVERY SCHEDULES SET FORTH IN THE CONTRACT AND THAT, WHILE THERE WAS A STRIKE AT THE COMPANY'S PLANT FOR APPROXIMATELY TWO MONTHS, THE COMPANY HAD NOT FURNISHED ANY OF THE MACHINES AS OF APRIL 20, 1956. THIS OFFICE HAS NO INFORMATION CONCERNING DELIVERIES UNDER THE CONTRACT; HOWEVER, IT IS NOTED THAT IN A LETTER DATED MARCH 8, 1956, THE CHICAGO PROCUREMENT OFFICE ADVISED YOU THAT THE DAVEY COMPRESSOR COMPANY HAD FURNISHED A PRODUCTION MODEL WHICH HAD BEEN TESTED AND ACCEPTED BY THE GOVERNMENT AS FULLY COMPLYING WITH THE CONTRACT REQUIREMENTS. WHETHER A CONTRACT SHOULD BE TERMINATED FOR DEFAULT FOR FAILURE TO MAKE TIMELY DELIVERIES IS A MATTER SOLELY WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE, BUT IT MAY BE POINTED OUT THAT THE FAILURE TO TERMINATE A CONTRACT DOES NOT RELIEVE THE CONTRACTOR FROM LIABILITY FOR ANY DAMAGES SUFFERED BY THE GOVERNMENT DUE TO ITS BREACH OF THE CONTRACT.

YOU ALSO PROTEST THE ACTION OF THE CHICAGO PROCUREMENT OFFICE IN AWARDING ANOTHER CONTRACT TO THE DAVEY COMPRESSOR COMPANY ON MARCH 6, 1956, FOR SIX ADDITIONAL WELL DRILLING MACHINES OF THE SAME TYPE AS WAS COVERED BY THE CONTRACT AWARDED IN JUNE 1955, WHEN THE COMPANY WAS LATE IN DELIVERIES UNDER THE FIRST CONTRACT. HERE AGAIN THE QUESTION AS TO THE RESPONSIBILITY OF A PARTICULAR BIDDER PRIMARILY IS FOR CONSIDERATION BY THE ADMINISTRATIVE OFFICE. IT IS TRUE THAT DELAY IN DELIVERIES UNDER ANOTHER CONTRACT IS A FACTOR FOR CONSIDERATION IN DETERMINING THE RESPONSIBILITY OF A BIDDER, BUT SUCH FACT IS NOT NECESSARILY SUFFICIENT TO WARRANT REJECTION OF AN OTHERWISE PROPER LOW BID SOLELY FOR THAT REASON. IN THE ABSENCE OF A SHOWING THAT THE ADMINISTRATIVE DETERMINATION WAS MADE IN BAD FAITH, THIS OFFICE WOULD NOT BE WARRANTED IN QUESTIONING THE ACTION TAKEN.

YOU STATE THAT DAVEY COMPRESSOR COMPANY'S BID UNDER THE SECOND INVITATION WAS $1,306 PER UNIT LOWER THAN ITS BID UNDER THE FIRST INVITATION. VIEW THEREOF, AND SINCE THE CONTRACTOR HAS NOT EFFECTED DELIVERIES UNDER THE FIRST CONTRACT, YOU RAISE THE QUESTION AS TO WHY THE CONSIDERATION SPECIFIED IN THE FIRST CONTRACT WAS NOT REDUCED TO THE AMOUNT OF THE COMPANY'S PRICE UNDER THE SECOND INVITATION. WE ARE UNAWARE OF ANY LEGAL AUTHORITY WHEREBY A CONTRACTOR COULD BE REQUIRED TO REDUCE THE PRICES SPECIFIED IN AN EXISTING CONTRACT DUE TO THE FACT THAT IT LATER SUBMITTED A LOWER QUOTATION FOR SIMILAR EQUIPMENT.

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