B-144821, MAR. 13, 1961

B-144821, MAR. 13, 1961

TO THE SECRETARY OF THE AIR FORCE:

BY LETTER OF JANUARY 12, 1961, THE DEPUTY FOR PROCUREMENT AND PRODUCTION SUBMITTED FOR CONSIDERATION A PROTEST BY EBONY PAINTING CO., INC., AGAINST AN AWARD BEING MADE TO NORTHWEST PAINTING SERVICE FOR ITEMS 1 AND 2 OF INVITATION 65-501-61-9 COVERING THE PAINTING OF CERTAIN BUILDINGS AT ELMENDORF AIR FORCE BASE, ALASKA.

THE INVITATION IS DIVIDED INTO FOUR ITEMS. EACH ITEM INCLUDES A SEPARATE GROUP OF BUILDINGS COVERED BY A SEPARATE PAINTING SPECIFICATION. UNDER THE TERMS OF THE INVITATION, ONE CONTRACT IS TO BE AWARDED TO THE LOW AGGREGATE BIDDER ON ITEMS 1 AND 2 AND ANOTHER TO THE LOW AGGREGATE BIDDER ON ITEMS 3 AND 4. THE PROTESTANT WAS AWARDED THE CONTRACT FOR ITEMS 3 AND 4. ON ITEMS 1 AND 2, NORTHWEST PAINTING SERVICE BID $15,460 AND $11,222, RESPECTIVELY, TOTALING $26,682, AND THE PROTESTANT BID $11,000 AND $16,900, RESPECTIVELY, TOTALING $27,900. ATTACHED TO THE PROTESTANT'S BID THERE WAS THE FOLLOWING "RIDER TO BID FORM: "

"ITEM 2. IF EXPOSED EXTERIORS ONLY ARE PAINTED

DEDUCT $4,100.00"

AFTER THE OPENING OF BIDS, THE PROTESTANT STATED THAT THE PURPOSE OF THE $4,100 REDUCTION WAS TO ADVISE THE GOVERNMENT WHAT IT WOULD CHARGE TO PAINT THE BUILDINGS' STORM WINDOWS THAT ARE STORED IN THE BUILDINGS" BASEMENTS, SINCE IT CONTENDS THAT THE PAINTING OF STORED STORM WINDOWS IS NOT CONTEMPLATED BY THE SPECIFICATIONS AND TO PROPERLY EVALUATE ITS BID THE $4,100 REDUCTION SHOULD BE DEDUCTED FROM ITS BID PRICE WHICH WOULD BRING ITS AGGREGATE TOTAL FOR ITEMS 1 AND 2 DOWN TO $23,800 AND MAKE IT THE LOWEST BIDDER REQUIRING THE AWARD TO BE MADE TO IT.

THE SPECIFIC QUESTION THEREFORE RAISED BY THE PROTEST IS WHETHER THE SPECIFICATIONS IN THE INVITATION REQUIRE THE PAINTING OF THE STORM WINDOWS INVOLVED. IF THEY DO, THEN NORTHWEST PAINTING SERVICE, WHICH DID NOT TAKE ANY EXCEPTION, INSTEAD OF THE PROTESTANT, IS THE LOW BIDDER.

THE SPECIFIC TECHNICAL PROVISION OF THE SPECIFICATIONS THAT IS IN CONTENTION IS SECTION "TP-2-6 SURFACES TO BE PAINTED.' THAT SECTION PROVIDES:

" THE WORK OF THIS PROJECT PROVIDES FOR THE COMPLETE PAINTING OF ALL EXTERIOR EXPOSED SURFACES OF THE HEREIN DESCRIBED BUILDINGS. THIS INCLUDES SCREENS, STORM WINDOWS, TRANSITE, WOOD TRIM, WOOD SIDING, FOUNDATIONS, DOORS, DOOR FRAMES, WINDOW SASH, WINDOW FRAMES, VENTILATORS, CONDUIT PIPES, WEATHERHEADS, WOOD, CONCRETE OR STUCCO ADDITIONS TO THE HEREIN DESCRIBED BUILDINGS AND ALL METAL, CONCRETE OR WOOD PARTS ATTACHED TO THE HEREIN DESCRIBED BUILDINGS EXCEPT THOSE SURFACES SPECIFICALLY EXCLUDED UNDER TP-2-7. THE SURFACES TO BE PAINTED SHALL INCLUDE THE HEREIN LISTED SURFACES BUT SHALL NOT BE LIMITED TO THESE SURFACES.'

THE PROTESTING BIDDER CONTENDS THAT THE STORM WINDOWS THAT ARE STORED IN THE BUILDINGS' BASEMENTS ARE NEITHER "EXPOSED" NOR "EXTERIOR" AS SPECIFIED IN THE ABOVE-QUOTED PROVISION. HOWEVER, THE ADMINISTRATIVE VIEW IS THAT "EXTERIOR EXPOSED SURFACES" ARE GENERIC TERMS THAT INCLUDE ALL SURFACES WHICH CUSTOMARILY ARE ON THE OUTSIDE OF THE BUILDINGS.

ALTHOUGH THE FIRST SENTENCE OF SECTION TP-2-6 DESCRIBES THE JOB IN GENERAL TERMS AS THE PAINTING OF "EXTERIOR EXPOSED SURFACES," THE SECOND SENTENCE IN THE PARAGRAPH SPECIFICALLY STATES THAT SCREENS AND STORM WINDOWS ARE TO BE INCLUDED WITHIN THE BROAD GENERAL TERMS. THE SCREENS AND STORM WINDOWS ARE NOT STATED AS ALTERNATIVE ITEMS TO BE PAINTED, BUT RATHER AS ADDITIVE ITEMS TO BE INCLUDED ALONG WITH ALL OTHER SURFACES. SHOULD BE OBVIOUS TO BIDDERS THAT BOTH SCREENS AND STORM WINDOWS WOULD NOT BOTH BE ON THE BUILDINGS AT THE SAME TIME. THEREFORE, SINCE SCREENS AND STORM WINDOWS NORMALLY ARE EXTERIOR EXPOSED SURFACES WHEN IN USE AND THE SPECIFICATIONS SPECIFICALLY INDICATE THAT BOTH ARE TO BE INCLUDED IN THE PAINTING OF "ALL EXTERIOR EXPOSED SURFACES," WE BELIEVE THAT ANY CONTRACT AWARDED ON THE BASIS OF THOSE SPECIFICATIONS WOULD REQUIRE THE PAINTING OF EACH BUILDING'S STORM WINDOWS EVEN THOUGH THEY MAY NOT HAVE BEEN HANGING ON THE BUILDING AT THE TIME. THIS IS EMPHASIZED BY THE LAST SENTENCE IN SECTION TP-2-6 WHICH SPECIFICALLY STATES THAT THE LISTED SURFACES, WHICH INCLUDE THE STORM WINDOWS, SHALL BE INCLUDED IN THE SURFACES TO BE PAINTED.

THE PROTESTANT INDICATES THAT SPECIFICATIONS IN PREVIOUS INVITATIONS HAVE BEEN MORE EXPLICIT IN THE REQUIREMENT TO PAINT THE STORED STORM WINDOWS, AND PERHAPS THE CURRENT INVITATION COULD HAVE BETTER STATED THE GOVERNMENT'S INTENTION. HOWEVER, THE INTENTION OF THE GOVERNMENT IN THIS PROCUREMENT NECESSARILY DEPENDS UPON THE LANGUAGE EMPLOYED IN THE INVITATION SOLICITING THE SERVICES. SINCE THE INVITATION CONTEMPLATES THAT THE STORM WINDOWS WILL BE INCLUDED IN THE WORK TO BE PERFORMED, THE PART OF THE PROTESTANT'S BID INTENDED TO OFFER A REDUCTION IF STORM WINDOWS ARE NOT INCLUDED SHOULD BE DISREGARDED IN THE SELECTION OF THE LOW BIDDER.