B-143434, NOV. 18, 1960

B-143434, NOV. 18, 1960

TO PEK LABS, INC.:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 6, 1960, WITH FURTHER REFERENCE TO YOUR PROTEST AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. DA-ENG-11-184-60-AF-614 ISSUED BY THE U.S. ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO, ILLINOIS, FOR FURNISHING REPRODUCING MACHINE LAMPS. BRIEFLY, YOUR CHIEF CONTENTION APPEARS TO BE THAT OZALID (THE ONLY OTHER BIDDER) ACTUALLY PROPOSED TO GUARANTEE OPERATION OF THE LAMPS FOR ONLY 30 DAYS--- NOT ONE YEAR--- WHICH IS THE SAME GUARANTEE SPECIFICALLY STATED IN YOUR BID AS TO YOUR PEK MODEL 2,000 LAMP.

THE CONTRACTING OFFICER REPORTS THAT ON JUNE 28, 1960, A REPRESENTATIVE OF OZALID STATED THAT THE LIFE EXPECTANCY WARRANTY PERIOD APPLICABLE TO THE LAMP OFFERED WAS 90 DAYS BUT THAT WHEN IT WAS POINTED OUT THAT THE INVITATION SPECIFIED A WARRANTY PERIOD OF ONE YEAR THE REPRESENTATIVE ADVISED THAT OZALID WOULD ACCEPT AN AWARD ON THE LATTER BASIS. ACCORDINGLY, AWARD WAS MADE TO OZALID ON JUNE 30, 1960. HOWEVER, AS A RESULT OF YOUR INQUIRY AT THAT TIME, IT WAS ASCERTAINED THAT THE WARRANTY PERIOD OF ONE YEAR MENTIONED IN THE INVITATION WAS NOT IN ACCORDANCE WITH THE OZALID COMMERCIAL WARRANTY FOR THE LAMP INVOLVED NOR WITH THE GENERAL SERVICES ADMINISTRATION CURRENT CONTRACT, BOTH OF WHICH ARE ON THE BASIS OF A 30-DAY WARRANTY FROM DATE OF INSTALLATION IN THE MACHINE. THEREFORE, AS STATED IN OUR DECISION TO YOU DATED SEPTEMBER 19, 1960, AFTER RECEIVING YOUR PROTEST AND IN VIEW OF THE DISAGREEMENT BETWEEN YOU AND THE ADMINISTRATIVE OFFICE AS TO WHETHER THE WARRANTY PROVISIONS WERE APPLICABLE TO THE LIFE EXPECTANCY OF THE LAMPS OR TO THEIR FREEDOM FROM DEFECTS, OZALID ON REQUEST RETURNED THE AWARD.

IT IS OUR VIEW THAT IN THE ABSENCE OF A PROVISION IN THE INVITATION SPECIFICALLY FIXING THE WARRANTY PERIOD AS TO THE LIFE EXPECTANCY OF THE LAMPS, THE GUARANTY PROVISION QUOTED IN OUR DECISION OF SEPTEMBER 19, 1960, PROPERLY MAY BE REGARDED AS FIXING SUCH WARRANTY PERIOD. OTHERWISE, THE INVITATION WOULD INCLUDE NO PROVISION FIXING A WARRANTY PERIOD AS TO LIFE EXPECTANCY. THEREFORE, AS ALSO STATED IN THE DECISION, IT IS BELIEVED THAT YOUR BID WAS PROPERLY REGARDED AS NONRESPONSIVE SINCE IT INCLUDED LIMITATIONS OF 30 DAYS AND 120 DAYS ON THE WARRANTY PERIODS APPLICABLE TO THE TWO GRADES OF LAMPS OFFERED. IT IS OUR FURTHER VIEW THAT THE WARRANTY PROVISION OF THE INVITATION WAS NOT ENTIRELY CLEAR AND THAT READVERTISING UNDER A CLARIFIED INVITATION, AS APPARENTLY CONTEMPLATED BY THE ADMINISTRATIVE OFFICE, WOULD BE PROPER AND DESIRABLE.