B-144501, DEC. 30, 1960

B-144501, DEC. 30, 1960

TO EDWIN J. MCDERMOTT, ESQUIRE:

THIS IS IN REFERENCE TO THE PROTEST OF KINGS POINT INDUSTRIES, INC., AGAINST THE AWARD OF ANY CONTRACT UNDER INVITATION FOR BIDS NO. JD-IFB 383 -331-61, ISSUED BY THE AVIATION SUPPLY OFFICE, DEPARTMENT OF THE NAVY, ON SEPTEMBER 23, 1960.

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

ON OCTOBER 19, 1960, KINGS POINT ADVISED THE PROCUREMENT OFFICE IN PERTINENT PART, AS FOLLOWS:

"IN RECHECKING OUR COST FIGURES WE HAVE DISCOVERED THAT THE DRAWINGS WHICH THE GOVERNMENT FURNISHED TO PROSPECTIVE BIDDERS WERE NOT THE CORRECT DRAWINGS. WE ARE ENCLOSING HEREWITH BUREAU OF SHIPS DRAWING NO. S3306- 1419480 TO DEMONSTRATE THAT THE DRAWINGS FURNISHED BY THE GOVERNMENT WERE IN ERROR. YOU WILL NOTE THAT ON THE BOTTOM RIGHT HAND CORNER THERE IS A STATEMENT THAT THIS DRAWING IS SCALE FULL SIZE. SINCE THERE ARE NO DIMENSIONS ON THE DRAWING IT IS THEREFORE ASSUMED THAT THE PATTERNS FOR THE LIFE PRESERVER'S ARE TO BE CUT IN ACCORDANCE WITH THIS DRAWING. HOWEVER, BY CAREFUL EXAMINATION AND BY COMPARISON TO PREVIOUS BIDS THAT WE HAVE SUBMITTED FOR THIS ITEM, WE BELIEVE THAT THE DRAWINGS FURNISHED WITH THIS BID WERE IN ERROR AS THIS WOULD RESULT IN A COVER PATTERN WHICH IS ONLY 37 INCHES LONG AND 16 1/2 INCHES WIDE AS COMPARED TO THE USUAL LIFE PRESERVER PATTERN WHICH IS 55 1/2 INCHES BY 24 INCHES. OBVIOUSLY, THEREFORE, ANY BIDDER WHO RECEIVED THIS PATTERN WOULD ARRIVE AT A MUCH LOWER MATERIAL REQUIREMENT THAN IS NECESSARY TO MANUFACTURE THE CORRECT LIFE PRESERVERS.

"WE HAVE NOT DETECTED THIS ERROR IN THE GOVERNMENT DRAWINGS UNTIL NOW SINCE WE USED OUR PREVIOUS MATERIAL REQUIREMENTS TO COMPUTE OUR COSTS ON THIS NEW BID, AND ONLY WHEN WE FOUND OUT THAT WE WERE NOT THE LOW BIDDER WE TRIED TO DETERMINE WHERE WE WENT WRONG AND DISCOVERED THIS ERROR IN THE GOVERNMENT DRAWINGS.

"WE BELIEVE THAT BY FURNISHING ERRONEOUS PATTERNS TO THE PROSPECTIVE BIDDERS IT IS QUITE POSSIBLE THAT SOME OF THE BIDDERS HAVE MISCALCULATED THE MATERIAL REQUIREMENTS EVEN THOUGH THEY MAY NOT ADMIT DOING SO NOW SINCE IT MAY JEOPARDIZE THEIR LOW BID POSITION. IN ADDITION, THE LOW BIDDERS MAY USE THIS GOVERNMENT ERROR FOR JUSTIFICATION TO GET A PRICE INCREASE AFTER THE AWARD IS MADE. IN FAIRNESS TO ALL BIDDERS, IT THEREFORE APPEARS TO US THAT THIS BID SHOULD BE READVERTISED AND CORRECTED DRAWINGS FURNISHED TO ALL BIDDERS.'

THE INVITATION SCHEDULE DESCRIBED THE ITEMS TO BE PROCURED AS FOLLOWS:

"1. LIFE PRESERVER, VEST FIBROUS GLASS FILLED. ADULT SIZE. WITHOUT COLLAR SECTION TYPE II. APPROXIMATE TOTAL PAID WEIGHT: 40 OZ. SEA RESCUE COLLAR (ORANGE) FORMULA NO. 113-49 JACKET DIM. 24 IN. HIGH: 55 1/2 IN. BASE WIDTH (OPEN). (PACKED 10 PER CASE) "

"2. LIFE PRESERVER VEST, FIBROUS GLASS FILLED: ADULT SIZE. SEA RESCUE COLOR (ORANGE) FORMULA NO. 113-49. JACKET DIM. NOT INCLUDED COLLAR SECTION, 24 IN. HIGH: 55 1/2 IN. BASE WIDTH (OPEN) WITH COTTON DRILL COLLAR SECTION TYPE I. APPROXIMATE TOTAL PAD WEIGHT: 46 OZ. (PACKED 10 PER CASE) "

"3. COVER, LIFE PRESERVER, VEST TYPE ADULT WITH COLLAR, TYPE I, SEA RESCUE COLOR (ORANGE) FORMULA NO. 113/49. (PACKED 10 PER BUNDLE, 4 BUNDLES PER CASE.)

PAGE 10 OF THE INVITATION PROVIDED UNDER "SPECIFICATION:

"THE ARTICLES TO BE FURNISHED SHALL CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS AND/OR DRAWINGS HEREINAFTER LISTED WHICH FORM A PART HEREOF: "

THE DRAWINGS LISTED WERE NOS. S3306-1419479, REV. F; S3306-1419480, REV. C; S3306-1419481, REV. C; AND S3306-1419482, REV. B.

THE RECORD BEFORE US INDICATES THAT MICROFILM COPIES OF THE LISTED DRAWINGS ACCOMPANIED THE INVITATION WHICH WAS SENT TO ALL INTERESTED BIDDERS. WHILE THE MICROFILM DRAWINGS BORE A LEGEND THAT THEY WERE "FULL SIZE," SUCH DRAWINGS WERE, IN FACT, LESS THAN FULL SIZE, OR APPROXIMATELY ONE-HALF THE SIZE OF THE ACTUAL DRAWINGS. AT A CONFERENCE HELD WITH YOU AND MR. GURWIN OF KINGS POINT AND REPRESENTATIVES OF THIS OFFICE, MR. GURWIN ADVISED US THAT HE DID NOT USE OR REFER TO THE MICROFILM DRAWINGS IN PREPARING HIS BID, BUT INSTEAD USED THE BID COST DATA PREVIOUSLY USED IN RESPONDING TO AN INVITATION IN JUNE 1960 FOR THE IDENTICAL ITEMS. MR. GURWIN STATED THAT HE DID NOT KNOW OF THE UNDER-SIZED DRAWINGS UNTIL SOME TIME AFTER BIDS WERE OPENED. HENCE, WE DO NOT BELIEVE THAT MR. GURWIN OR KINGS POINT WERE PREJUDICED OR OTHERWISE TREATED UNFAIRLY BECAUSE OF SUCH DRAWINGS. IT IS OBVIOUS TO US THAT ANY OTHER INTERESTED BIDDER DESIRING TO COMPETE UNDER THE INVITATION COULD HAVE ASCERTAINED THAT THE DRAWINGS ACCOMPANYING THE INVITATION WERE UNDER-SIZED AND COULD NOT POSSIBLY HAVE BEEN INTENDED FOR USE IN MANUFACTURING THE ITEMS CALLED FOR BY THE INVITATION. THE RECORD IS CLEAR THAT AT LEAST FOUR OF THE FIVE BIDDERS RESPONDING TO THE INVITATION SUBMITTED BIDS BASED UPON THE TRUE FULL-SCALE DRAWINGS; HENCE, IT MAY NOT BE SAID THAT THE BIDDERS WERE MISLED OR OTHERWISE PREJUDICED BY THE UNDER-SIZED DRAWINGS OR THAT FULL AND FREE COMPETITION WAS NOT SECURED BY THE GOVERNMENT.

EVEN IF IT BE ARGUED THAT THE UNDER-SIZED DRAWINGS RENDER THE INVITATION AMBIGUOUS AS TO THE GOVERNMENT'S REQUIREMENTS, THERE WOULD BE FOR APPLICATION SECTION 33 OF S. AND A. FORM 111 (REV. 2-58), WHICH WAS INCORPORATED BY REFERENCE AS A PART OF THE INVITATION. SECTION 33 PROVIDES:

"TO THE EXTENT OF ANY INCONSISTENCY BETWEEN THE SCHEDULE OR THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS OR THE GENERAL PROVISIONS, AND ANY SPECIFICATIONS OR OTHER PROVISIONS WHICH ARE MADE A PART OF THIS CONTRACT BY REFERENCE OR OTHERWISE, THE SCHEDULE, THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, AND THE GENERAL PROVISIONS SHALL CONTROL. TO THE EXTENT OF ANY INCONSISTENCY BETWEEN THE SCHEDULE AND THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS OR THE GENERAL PROVISIONS, THE SCHEDULE SHALL CONTROL.'

THUS, IT WOULD APPEAR THAT THE INVITATION SCHEDULE QUOTED ABOVE WOULD TAKE PRECEDENCE AND CONTROL OVER THE SPECIFICATIONS AND/OR DRAWINGS TO THE EXTENT OF ANY INCONSISTENCY.

ACCORDINGLY, YOU ARE ADVISED THAT NO LEGAL BASIS EXISTS UPON WHICH OUR OFFICE COULD QUESTION ANY AWARDS UNDER THE INVITATION TO THE LOWEST RESPONSIVE RESPONSIBLE BIDDERS.