B-145730, MAY 12, 1961

B-145730, MAY 12, 1961

TO THE SECRETARY OF THE ARMY:

BY LETTER DATED APRIL 27, 1961, THE CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, FORWARDED FOR OUR DECISION THE PROTEST OF MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. TC-30 358-61-42, ISSUED ON JANUARY 30, 1961, FOR THE FURNISHING OF FLUORESCENT LIGHTING FIXTURES UNDER ITEM 1 OF THE INVITATION.

IN RESPONSE TO THE INVITATION, SEVEN BIDS WERE RECEIVED AND OPENED ON FEBRUARY 14, 1961, AND SINCE THE KINGS-BORO ELECTRICAL SUPPLY CORP. SUBMITTED THE LOWEST RESPONSIVE BID FOR ITEM 1, IT WAS AWARDED A CONTRACT FOR THAT ITEM ON FEBRUARY 27, 1961.

HOWEVER, PRIOR TO AWARD, MANHATTAN, WHO HAD RECEIVED AN INVITATION TO BID ON THE PROCUREMENT BUT WHO HAD NOT SUBMITTED A BID, CONTENDED IN A LETTER OF FEBRUARY 14, 1961, THAT THE INVITATION SPECIFICATIONS WERE IMPROPERLY DRAWN, CONTRADICTORY AND AMBIGUOUS. SPECIFICALLY, MANHATTAN POINTED OUT AN ERROR IN THE WIRING DETAILS OF THE SPECIFICATION FOR ITEM 1 WHICH PROVIDED THAT: ,BALLAST TO OPERATE 2-40 WATT PREMIUM 3 LAMPS AT TEMP. DEGREES F.' MANHATTAN CONTENDED THIS DETAIL WAS INCORRECT BECAUSE A 2-40 WATT BALLAST CANNOT OPERATE AT 0 DEGREES F., AND REQUESTED THAT IT BE FURNISHED CORRECTED SPECIFICATIONS SO THAT IT COULD SUBMIT A BID. THE CONTRACTING OFFICER ON FEBRUARY 16, 1961, INFORMED MANHATTAN THAT THE SPECIFICATION WAS NOT AMBIGUOUS OR CONTRADICTORY. WHILE A TYPOGRAPHICAL ERROR HAD BEEN MADE IN THE TEMPERATURE FIGURE WHICH SHOULD HAVE BEEN PLUS 50 DEGREES F. INSTEAD OF 0 DEGREES F., THE BALANCE OF THE WIRING DETAILS OF THE SPECIFICATION SUFFICIENTLY DESCRIBED THE ITEM BY REFERENCE TO BALLAST AS MANUFACTURED BY "GE NO. 6-G-1020 OR APPROVED EQUAL" WHICH SHOULD HAVE ENABLED BIDDERS TO SUBMIT RESPONSIVE BIDS. THEREAFTER, ON FEBRUARY 18, 1961, MANHATTAN CALLED TO THE ATTENTION OF THE CONTRACTING OFFICER ANOTHER ERROR IN THE WIRING DETAILS OF THE SPECIFICATION IN THAT REFERENCE TO A "GE NO. 6-G-1020 RAPID START HIGH OUTPUT 430 MILL AMPS. HIGH POWER FACTOR BALLAST" REFERRED TO AN OUTPUT OF 800 MILL AMPS. MANHATTAN CONTENDED THAT THE SPECIFICATION WAS "CONTRADICTORY AND NO ONE CAN BID ON WHAT IS CONTAINED THEREIN," AND REQUESTED AN EXTENSION OF THE BID OPENING DATE AND THE FURNISHING OF A REVISED SPECIFICATION. THE CONTRACTING OFFICER REPLIED ON MARCH 1, 1961, THAT THE WORDS ,HIGH OUTPUT" WERE AN OBVIOUS OVERSIGHT AND THAT THE WIRING DETAIL WHEN READ AS A WHOLE COULD NOT BE REASONABLY CONSTRUED TO REFER TO AN 800 MILL AMPS. BALLAST.

SUBSEQUENT TO AWARD, MANHATTAN PROTESTED MAKING AN AWARD ON AMBIGUOUS SPECIFICATIONS AND INDICATED THAT THEY WOULD APPEAL TO THIS OFFICE.

WE FIND NOTHING IN THE RECORD TENDING TO INDICATE THAT ANY OF THE SEVERAL BIDDERS RESPONDING TO THE INVITATION FOUND THE SPECIFICATIONS AMBIGUOUS OR THAT THEY WERE CONFUSED AS TO THE EXACT ITEM REQUIRED. THE ABSTRACT OF BIDS REVEALS THAT COMPETITIVE PRICES WERE OBTAINED FROM RESPONDING BIDDERS WHICH WOULD SEEM TO INDICATE AN UNDERSTANDING OF THE GOVERNMENT'S REQUIREMENTS. WHILE THE WIRING DETAIL SPECIFICATION WAS INACCURATE IN SOME RESPECTS, WE CANNOT SAY THAT IT WAS SO ERRONEOUS AS TO PRECLUDE EFFECTIVE COMPETITION OR TO RENDER THE RESULTING CONTRACT ILLEGAL SO AS TO REQUIRE ITS CANCELLATION. SINCE WE NOTE THAT DELIVERY OF ITEM 1 HAS BEEN MADE IN COMPLIANCE ..END :