B-142716, JUNE 13, 1960, 39 COMP. GEN. 832

B-142716, JUNE 13, 1960, 39 COMP. GEN. 832

CONTRACTS - AWARDS - ERRONEOUS - MAJOR DEVIATIONS FROM SPECIFICATIONS THE ACCEPTANCE OF A LOW BID SOME THREE MONTHS AFTER A PROTESTING BIDDER QUESTIONED THE DEVIATIONS BETWEEN THE ITEM OFFERED BY THE LOW BIDDER AND THE SPECIFIC REQUIREMENTS OF THE INVITATION, WHICH DEVIATIONS ON THE BASIS OF THE RECORD ARE NOT MINOR INFORMALITIES WHICH PROPERLY MIGHT HAVE BEEN WAIVED, IMPAIRS THE INTEGRITY OF THE COMPETITIVE BIDDING PROCESS AND DISAVOWAL OF THE ERRONEOUS AWARD IS REQUIRED. A SPECIFICATION REFERENCED IN AN INVITATION WHICH PERMITS THE FURNISHING OF AN ITEM OF A SMALLER SIZE THAN THAT SPECIFICALLY CALLED IN THE INVITATION MAY NOT BE REGARDED AS SUPERSEDING THE SPECIFIC REQUIREMENTS IN THE INVITATION; HOWEVER, IF IN FACT, THE MINIMUM NEEDS OF THE PROCURING AGENCY CAN BE MET BY A SMALLER ITEM THAN THE ONE DETAILED IN THE INVITATION THEN THE INVITATION SHOULD SO INDICATE.

TO THE SECRETARY OF THE AIR FORCE, JUNE 13, 1960:

REFERENCE IS MADE TO LETTER DATED MAY 16, 1960, FROM THE DEPUTY FOR PROCUREMENT AND PRODUCTION, FORWARDING AN ADMINISTRATIVE REPORT ON THE PROTEST OF THE DEWALT DIVISION OF THE AMERICAN MACHINE AND FOUNDRY COMPANY AGAINST THE AWARD OF A CONTRACT TO J. D. WALLACE AND COMPANY UNDER INVITATION FOR BIDS NO. 109-603-60-635 ISSUED SEPTEMBER 8, 1959, BY WARNER ROBINS AIR MATERIAL AREA, ROBINS AIR FORCE BASE, GEORGIA.

THE INVITATION, AS AMENDED SEPTEMBER 8 AND 17, 1959, REQUESTED BIDS FOR FURNISHING 78 RADIAL OVERARM SAWING MACHINES. IT WAS SPECIFICALLY REQUIRED BY THE DESCRIPTION IN THE INVITATION THAT THE MACHINES HAVE A 14 INCH DIAMETER BLADE. ALSO, THE MACHINES WERE TO COMPLY WITH FEDERAL SPECIFICATION GGG-S-58 AS AMENDED. IN ADDITION, THE INVITATION SPECIFIED THAT FOUR 14-INCH DIAMETER COMBINATION BLADES SHOULD BE FURNISHED FOR EACH MACHINE.

THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND WERE OPENED OCTOBER 9, 1959, THE LOW BID OF $57,406.86 BEING SUBMITTED BY THE WALLACE COMPANY AND THE SECOND LOW BID OF $59,910 BY DEWALT. HOWEVER, THE WALLACE COMPANY OFFERED A MACHINE WITH A TOTAL OF FOUR 12 INCH DIAMETER BLADES.

THE INVITATION PROVIDED ALSO THAT A TRIGGER LOCK WAS REQUIRED. THIS LOCK IS STATED BY PARAGRAPH 3.2.5 OF THE SPECIFICATION TO BE A SAFETY DEVICE FOR PREVENTING MOVEMENT OF THE CUTTING HEAD RELATIVE TO THE UPRIGHT COLUMN. IN A CONTINUATION SHEET FORMING PART OF ITS BID, THE WALLACE COMPANY SAID AS TO THIS AND OTHER REQUIREMENTS THAT IT WOULD COMPLY "AS FOLLOWS.' IT THEN MENTIONED THREE SWIVEL ADJUSTMENT TRIGGER LOCKS AND A MEANS OF LOCKING ELEVATING TRAVEL. NONE OF THE FEATURES SO MENTIONED HAS ANY RELATIONSHIP TO THE PREVENTION OF MOVEMENT OF THE CUTTING HEAD RELATIVE TO THE UPRIGHT COLUMN. THE INVITATION ALSO REQUIRED THE FURNISHING OF A POWER BRAKE AS SPECIFIED BY PARAGRAPH 3.9.2.14 OF THE SPECIFICATION. THAT PARAGRAPH REQUIRES A POWER BRAKE OF THE ELECTRICAL REGENERATIVE OR DYNAMIC TYPE TO BE INCORPORATED IN THE MOTOR CONTROL CIRCUIT. THE WALLACE BID STATED WITH RESPECT TO THIS REQUIREMENT THAT IT PROPOSED TO COMPLY BY BUILDING A POWER BRAKE INTO THE MOTOR.

BY A LETTER DATED OCTOBER 24, 1959, DEWALT POINTED OUT TO THE PROCURING ACTIVITY THESE AND OTHER DEVIATIONS FROM THE REQUIREMENTS OF THE SPECIFICATIONS CONTAINED IN THE WALLACE BID, AND REQUESTED REJECTION OF THE WALLACE BID AS NONRESPONSIVE.

THEREAFTER, IT IS UNDERSTOOD, ALL BIDDERS WERE ADVISED THAT THE PROCUREMENT HAD BEEN CANCELED. SOMETIME IN THE EARLY PART OF DECEMBER THE BIDDERS WERE REQUESTED TO ADVISE IF THEY WOULD REINSTATE THEIR BIDS, AND EACH OF THE THREE DID SO, THE WALLACE COMPANY BY LETTER DATED DECEMBER 8, 1959, AND DEWALT BY TELEGRAM DATED DECEMBER 9, 1959. ON DECEMBER 10, 1959, THE WALLACE COMPANY ALSO SENT A TELEGRAM TO THE CONTRACTING OFFICER IN WHICH IT STATED THAT THE ITEM IT PROPOSED TO FURNISH WAS IN ACCORDANCE WITH THE APPLICABLE SPECIFICATION. WE HAVE NOT BEEN ADVISED WHETHER THIS TELEGRAM WAS IN ANSWER TO SOME QUESTION OF THE WALLACE BID OR NOT. IT IS PERTINENT TO NOTE, HOWEVER, THAT A MEMORANDUM BY THE CONTRACTING OFFICER DATED JANUARY 8, 1960, CONTAINS THE FOLLOWING STATEMENTS:

1. ATTACHED HERETO IS SUBJECT CONTRACT FILE FOR YOUR ADDITIONAL REVIEW AND COMMENTS REGARDING THE LEGALITY OF THE PROPOSED AWARD TO THE J. D. WALLACE AND COMPANY, INC. * * *

2. OTHER POINTS TO BE CONSIDERED ARE THE EVALUATION OF THE J. D. WALLACE BID MADE BY WRURT, CFCC NO. 39, MEMOS TO FILE, CFCC NOS. 42 AND 43, AND THE TWX, DATED 10 DECEMBER 1959, USED AS A BASIS FOR CONTRACT, FROM SAID CONTRACTOR.

AWARD WAS MADE TO THE WALLACE COMPANY ON JANUARY 26, 1960.

IT IS PERTINENT HERE TO POINT OUT THAT THE RESPONSIVENESS OF THE WALLACE BID SHOULD HAVE BEEN DETERMINED SOLELY ON THE BASIS OF WHAT IT HAD SUBMITTED BY OCTOBER 9, 1959, THE DATE OF BID OPENING, AND WITHOUT REGARD TO ANY STATEMENTS SUBSEQUENTLY MADE BY THE COMPANY.

IN THE ADMINISTRATIVE REPORT OF MAY 16, 1960, IT IS STATED THAT, WHILE THE INVITATION REQUIRED THE FURNISHING OF A MACHINE WITH A 14 INCH DIAMETER BLADE AND CALLED FOR FOUR ADDITIONAL 14 INCH DIAMETER BLADES, THE SPECIFICATION REFERRED TO IN THE INVITATION PERMITS FURNISHING A BLADE OF LESSER DIAMETER FOR THE MACHINE INVOLVED, PROVIDED IT WILL GIVE THE DESIRED DEPTH OF CUT. EXAMINATION OF THE SPECIFICATION CORROBORATES THIS. HOWEVER, WE DO NOT BELIEVE THAT THE FACT THE SPECIFICATION PERMITS THE FURNISHING OF A BLADE OF LESS THAN 14 INCH DIAMETER FOR A SIZE 14 SAWING MACHINE CAN BE CONSIDERED AS SUPERSEDING THE MORE SPECIFIC REQUIREMENT IN THE INVITATION FOR A 14 INCH DIAMETER BLADE AND FOUR ADDITIONAL 14 INCH DIAMETER BLADES. IF IN FACT THE MINIMUM REQUIREMENTS OF THE PROCURING ACTIVITY COULD BE MET BY A 12 INCH DIAMETER BLADE, ALL BIDDERS SHOULD HAVE BEEN SO NOTIFIED. IT IS PERTINENT IN THIS CONNECTION TO NOTE THAT DEWALT CONTENDS ITS BID ON FURNISHING BLADES OF 12 INCH RATHER THAN 14 INCH DIAMETER, AND THE DIFFERENCE IN THE LIST PRICES OF ITS 12 INCH AND 14 INCH BLADES SUPPORTS THIS CONTENTION.

FURTHERMORE, ON THE BASIS OF THE RECORD BEFORE US, IT IS OUR OPINION THAT THE WALLACE BID DID NOT PROPOSE TO FURNISH THE TRIGGER LOCK AND POWER BRAKE REQUIRED BY THE SPECIFICATION. IT IS UNDERSTOOD, WITH RESPECT TO THE FORMER, THAT NO SUCH LOCK WAS INCORPORATED IN THE PROTOTYPE SAW FIRST OFFERED FOR INSPECTION BY WALLACE, AND THE SAW DID NOT PASS INSPECTION FOR THIS AND SEVERAL OTHER REASONS. WITH RESPECT TO THE POWER BRAKE, IT IS ALLEGED BY DEWALT THAT IT IS A PRACTICAL IMPOSSIBILITY TO BUILD A BRAKE OF THE REQUIRED TYPE INTO THE MOTOR, AND THAT THE SPECIFICATION REQUIRES SUCH BRAKE TO BE IN THE MOTOR CONTROL CIRCUIT RATHER THAN IN THE MOTOR ITSELF. WE ARE INFORMED THAT THE SAW FURNISHED BY WALLACE DOES IN FACT HAVE AN ELECTRICAL DYNAMIC TYPE BRAKE WHICH IS HOUSED WITH THE MAGNETIC STOP AND START CONTROLS RATHER THAN BEING BUILT INTO THE MOTOR AS OFFERED BY WALLACE'S BID.

THE FOREGOING MATTERS ARE, IN OUR OPINION, MORE THAN MINOR INFORMALITIES WHICH PROPERLY MIGHT HAVE BEEN WAIVED. IN VIEW OF THE FACT THAT SPECIFIC QUESTION WAS RAISED BY DEWALT AS TO THESE AND OTHER FEATURES OF THE WALLACE BID SOME THREE MONTHS BEFORE AWARD WAS MADE, WE BELIEVE THAT PROTECTION OF THE INTEGRITY OF THE COMPETITIVE BIDDING PROCESS REQUIRES DISAVOWAL OF THE ERRONEOUS AWARD. IT IS REQUESTED, THEREFORE, THAT THE WALLACE COMPANY BE NOTIFIED THAT NO FURTHER DELIVERIES WILL BE ACCEPTED UNDER THE CONTRACT INVOLVED.