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B-144798, MAR. 22, 1961

B-144798 Mar 22, 1961
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T. MURRAY TOOMEY: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 27. YOU CONTEND THAT THE DECISION IS CONTRARY TO BOTH FACT AND LAW BECAUSE THE EQUIPMENT OFFERED BY THE HERNISCHFEGER CORPORATION DOES NOT MEET THE REQUIREMENTS OF THE SPECIFICATION MADE A PART OF THE INVITATION FOR BIDS AND. THE BID OF THAT COMPANY IS NOT RESPONSIVE TO THE INVITATION. IT IS ARGUED THAT THE WELDING MACHINE. IS A STANDARD COMMERCIAL ITEM. THE UNIT REQUIRED UNDER THE SPECIFICATION IS A SPECIAL MILITARY ITEM AND THERE IS NOT ONE U.S. THERE APPEARS TO BE NO BASIS FOR YOUR STATEMENT TO THE EFFECT THAT THE UNIT DESCRIBED IN THE GOVERNMENT'S SPECIFICATION IS A SPECIAL MILITARY ITEM AND NO STANDARD COMMERCIAL EQUIPMENT IS CAPABLE OF MEETING THE SPECIFICATION.

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B-144798, MAR. 22, 1961

TO MR. T. MURRAY TOOMEY:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 27, 1961, REQUESTING RECONSIDERATION OF OUR DECISION TO YOU OF FEBRUARY 24, 1961, DENYING THE PROTEST MADE ON BEHALF OF LIBBY WELDING COMPANY, INC., KANSAS CITY, MISSOURI, AGAINST THE POSSIBLE AWARD OF A CONTRACT TO THE HARNISCHFEGER CORPORATION, MILWAUKEE, WISCONSIN, UNDER INVITATION FOR BIDS NO. 600-376- 61, ISSUED NOVEMBER 16, 1960, BY THE U.S. NAVY PURCHASING OFFICE.

YOU CONTEND THAT THE DECISION IS CONTRARY TO BOTH FACT AND LAW BECAUSE THE EQUIPMENT OFFERED BY THE HERNISCHFEGER CORPORATION DOES NOT MEET THE REQUIREMENTS OF THE SPECIFICATION MADE A PART OF THE INVITATION FOR BIDS AND, THEREFORE, THE BID OF THAT COMPANY IS NOT RESPONSIVE TO THE INVITATION.

IT IS ARGUED THAT THE WELDING MACHINE, MODEL DAR-300HFGW, OFFERED BY THE HARNISCHFEGER CORPORATION, IS A STANDARD COMMERCIAL ITEM, WHEREAS, THE UNIT REQUIRED UNDER THE SPECIFICATION IS A SPECIAL MILITARY ITEM AND THERE IS NOT ONE U.S. MANUFACTURER MAKING A STANDARD COMMERCIAL ITEM CAPABLE OF MEETING THE SPECIFICATION. YOU ALLEGE THAT THE BIDDER DID NOT AGREE TO FURNISH AUXILIARY EQUIPMENT AND REFER TO THE BIDDER'S SALES LITERATURE AS INDICATING THAT, WITH THE ADDITION OF A REMOTE CONTROL SYSTEM AND CABLE, THE PARTICULAR MODEL WOULD BE A MODIFIED UNIT. YOU QUESTION THE ASSUMPTION THAT THE BIDDER INTENDED TO FURNISH THE NECESSARY AUXILIARY EQUIPMENT AND SUGGEST THAT THE HARNISCHFEGER CORPORATION, IN ITS LETTER DATED DECEMBER 28, 1960, APPARENTLY MADE STATEMENTS WHICH CONTRADICTED THOSE SUBMITTED WITH ITS BID.

THE CONTRACTING OFFICER DETERMINED THAT THE OFFERED MODEL STRICTLY MET THE SPECIFICATION WHEN OUTFITTED WITH ITS STANDARD AUXILIARY EQUIPMENTS. THUS, THERE APPEARS TO BE NO BASIS FOR YOUR STATEMENT TO THE EFFECT THAT THE UNIT DESCRIBED IN THE GOVERNMENT'S SPECIFICATION IS A SPECIAL MILITARY ITEM AND NO STANDARD COMMERCIAL EQUIPMENT IS CAPABLE OF MEETING THE SPECIFICATION.

IN COMMENTING ON THE SALES LITERATURE, YOU STATE THAT OUR DECISION FAILS TO EMPLOY THE WORDS ,MODIFIED" OR "MODIFICATION" BUT, INSTEAD REFERS TO SUCH MODIFICATIONS AS "ACCESSORIES" OR ,AUXILIARY EQUIPMENT.' YOU EXPRESS THE VIEW THAT THIS IS COMPLETELY CONTRARY TO FAIR PLAY AND JUSTICE.

APPARENTLY YOU HAVE OVERLOOKED THE EMPHASIS PLACED IN YOUR LETTER OF PROTEST DATED JANUARY 16, 1961, ON WHAT YOU DESCRIBED AS "ACCESSORIES THAT MIGHT BE USED WITH EACH UNIT.' IN ANY EVENT, IT DOES NOT APPEAR TO BE SIGNIFICANT WHETHER WE DESCRIBE THE OFFER OF THE HARNISCHFEGER CORPORATION TO BE THE FURNISHING OF ITS MODEL DAR-300HFGW, COMPLETED WITH ACCESSORIES OF THE TYPES NECESSARY TO MEET THE SPECIFICATION REQUIREMENTS, OR THE FURNISHING OF A MODIFIED MODEL WHICH WOULD INCLUDE SUCH STANDARD AUXILIARY EQUIPMENTS AS A REMOTE CONTROL SYSTEM AND AN ACCESSORY TO PROVIDE SPECIAL VOLTAGES. OUR DECISION STATES THAT, AS FOUND BY THE CONTRACTING OFFICER, THE GOVERNMENT WAS NOT PROPOSING TO BUY A BASIC UNIT, BUT A MACHINE COMPLETE WITH ACCESSORY AUXILIARY EQUIPMENTS SPECIFIED IN THE APPLICABLE BID SPECIFICATION, AND WE BELIEVE THAT THIS REPRESENTS A FAIR ANALYSIS OF THE SPECIFICATION.

THE CRUCIAL ISSUE IN THE CASE IS SIMPLY WHETHER THE BIDDER AGREED TO FURNISH THE ACCESSORIES WITHOUT ADDITIONAL COST TO THE GOVERNMENT. THE SIGNED BID CONTAINS NO EXCEPTION TO THE ADVERTISED SPECIFICATION BUT THE BID WAS ACCOMPANIED BY A LETTER STATING THAT "WE HAVE QUOTED OUR MODEL DAR -300HFGW IN GENERAL ACCORD WITH THE SPECIFICATIONS," AND INCLUDING COMMENTS ON CERTAIN PARTS OF SPECIFICATION NO. XFWGS-150. THE LETTER POINTED OUT THAT THE SPECIFICATION CONTAINED A MINOR DISCREPANCY AND THAT THE BID PRICES DID NOT INCLUDE THE REQUIRED RADIO INTERFERENCE SUPPRESSION TESTS WHICH, HOWEVER, WOULD BE FURNISHED SUBJECT TO AN ADDITION OF $6,000 TO THE TOTAL BID PRICE.

IT IS YOUR POSITION THAT THE BIDDER SHOULD HAVE STATED WHAT WAS TO BE FURNISHED OTHER THAN THE PARTICULAR MODEL OFFERED AND WE AGREE THAT THIS MAY HAVE BEEN A MATTER WHICH MIGHT PROPERLY HAVE BEEN DISCUSSED IN THE LETTER WHICH ACCOMPANIED THE BID. HOWEVER, FROM A STRICTLY LEGAL STANDPOINT, SUCH A DISCUSSION WOULD HAVE BEEN UNNECESSARY BECAUSE THE SIGNED BID EVIDENCED THE BIDDER'S AGREEMENT TO FURNISH ALL OF THE ITEMS DESCRIBED IN THE SPECIFICATION, AND IT CANNOT REASONABLY BE HELD THAT THE LETTER WHICH ACCOMPANIED THE BID CONSTITUTED AN EXCEPTION WITH RESPECT TO THE QUANTITATIVE ASPECTS OF THE SPECIFICATION.

THE BIDDER'S LETTER OF DECEMBER 28, 1960, REQUESTED THAT ITS PREVIOUS STATEMENT BE CHANGED TO SHOW THAT IT WAS QUOTING ON THE PARTICULAR MODEL IN "EXPLICIT ACCORD WITH THE SPECIFICATIONS, ET CETERA.' THE ORIGINAL BID WAS NEVERTHELESS RESPONSIVE TO THE INVITATION INASMUCH AS THE USE OF THE TERM "GENERAL ACCORD WITH" WOULD NOT NECESSARILY HAVE DISQUALIFIED THE BID AND THE CONTRACTING OFFICER DETERMINED THAT THE EQUIPMENT OFFERED ACTUALLY MET THE REQUIREMENTS OF THE APPLICABLE SPECIFICATION.

ACCORDINGLY, THE DECISION WHICH DENIED THE PROTEST OF YOUR CLIENT IN THE MATTER MUST BE, AND ..END :

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