B-146080, JUL. 27, 1962

B-146080, JUL. 27, 1962

TO FROST AND TOWERS AND MR. ROBERT W. MCCHESNEY, JR.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1962, AND SUBSEQUENT LETTERS REQUESTING RECONSIDERATION OF OUR DECISION OF NOVEMBER 28, 1961, TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, WHEREIN IT WAS CONCLUDED THAT THE CONTRACT AWARDED TO YOUR CLIENT, CALLEGARI-KAHN CONSTRUCTION COMPANY, UNDER INVITATION FOR BIDS NO. AD-6-385, FOR ACQUISITION OF A LEASED FACILITY AT MINNEAPOLIS, MINNESOTA, SHOULD BE CANCELLED.

AS STATED IN THE CITED DECISION PARAGRAPH 1, PART I, OF THE INSTRUCTIONS TO BIDDERS STIPULATED THAT THE BIDDERS SHOULD COMPLY STRICTLY WITH THE BUILDING REQUIREMENTS RELATING TO THE OVERALL DIMENSIONS, INTERIOR ROOM DIMENSIONS, AND LAYOUT AS SHOWN ON DRAWINGS MARKED A-2 THROUGH A-5 ATTACHED TO THE INVITATION AND THAT THE BUILDING MUST STRICTLY CONFORM TO THE ATTACHED SPECIFICATIONS. PARAGRAPH 3 (B) REQUIRED THE BIDDERS TO SUBMIT A SET OF ELEVATION DRAWINGS AND FLOOR PLANS SHOWING COLUMN SPACING ON EACH FLOOR AND A PLAN SHOWING ORIENTATION OF THE BUILDING ON THE SITE TOGETHER WITH RELATED GROUNDS IMPROVEMENTS, SUCH AS CURBS, DRIVEWAYS, PARKING AREAS, PLANTINGS, ETC. BIDDERS WERE CAUTIONED THAT BIDS WHICH CONTAINED DRAWINGS SHOWING ANY DEVIATION FROM THE ATTACHED DRAWINGS AND/OR REQUIREMENTS OF THE INVITATION WOULD BE REJECTED.

PARAGRAPH L, PAGE 10, SECTION 1 OF THE REQUIREMENTS STATED THAT STEPS AT THE PUBLIC ENTRANCE SHOULD BE AVOIDED BUT THAT IF STEPS WERE ABSOLUTELY UNAVOIDABLE, DUE TO THE TOPOGRAPHY OR LACK OF STORM DRAINAGE, THEY SHOULD BE PLACED INSIDE THE BUILDING. EXTERIOR STEPS WERE SPECIFICALLY PROHIBITED. PARAGRAPH D (5) GENERAL, SECTION II, TECHNICAL INSTRUCTIONS, PAGE 23, STATED THAT A PAVED AND CURBED OFF STREET PARKING AREA WAS REQUIRED FOR 15 AUTOMOBILES. IT PROVIDED FURTHER THAT---

"THE BUILDING WILL BE IN OPERATION THROUGHOUT ALL SEASONS OF THE YEAR AND THE DESIGN AND LAYOUT OF THE PARKING AREA SHOULD PROVIDE, IN SO FAR AS POSSIBLE, FOR EASE OF SNOW REMOVAL AND OPERATION IN ICY WEATHER. DRIVEWAYS TO PARKING AREA AND RAMS SHOULD NOT EXCEED A 6 PERCENT MAXIMUM SLOPE IN GRADE.'

BY PARAGRAPHS 6 AND 7 OF ADDENDUM NO. 1, DATED FEBRUARY 28, 1961, THE INVITATION WAS AMENDED TO REQUIRE THE RAMPS PROVIDING ACCESS TO THE GARAGE WITH A DE-ICING SYSTEM BUT NO CHANGE WAS MADE IN THE "6 PERCENT MAXIMUM SLOPE IN GRADE" EVEN THOUGH SOME OF THE BIDDERS DISCUSSED THE GRADE REQUIREMENTS WITH GSA PERSONNEL AND SOME CONSIDERATION HAD BEEN GIVEN TO ISSUING AN ADDENDUM COVERING THIS POINT.

THE AWARD TO YOUR CLIENT ON JUNE 2, 1961, UNDER THE INVITATION WAS PROTESTED BY JAMES H. MICHAEL AND D-ARCY LECK CONSTRUCTION COMPANY. THE ORIGINAL GSA REPORT DATED JULY 24, 1961, BASED ON SUCH PROTEST, IT WAS STATED THAT THE RAMP PROPOSED BY YOUR CLIENT PROVIDING ACCESS TO WASHINGTON STREET WOULD BE 9 TO 9 1/2 PERCENT SLOPE IN GRADE; THAT THE REAR RAMP WOULD BE EXTENDED INTO THE BASEMENT; THAT IT WOULD PROVIDE A 6 PERCENT MAXIMUM SLOPE IN GRADE; AND THAT WHILE THE RAMP FOR ACCESS TO WASHINGTON STREET COULD HAVE BEEN DESIGNED WITH A 6 PERCENT MAXIMUM SLOPE IN GRADE BY RAISING THE FLOOR SLAB FOR TWO BAYS DIRECTLY IN FRONT OF THE OVERHEAD DOOR MAXIMUM EFFICIENCY WOULD HAVE BEEN SACRIFICED.

THE GSA REPORT INDICATED THAT THE BID SUBMITTED BY MICHAEL-LECK WHICH COMPLIED WITH THE 6 PERCENT GRADIENT REQUIREMENT AND THE REQUIREMENT FOR OFF-STREET PARKING FOR 15 AUTOMOBILES WAS REJECTED PRINCIPALLY BECAUSE ITS BID PROVIDED FOR INTERIOR STEPS RESULTING FROM THE BIDDERS UNDERSTANDING THAT THE 6 PERCENT GRADE REQUIREMENT WAS A MANDATORY MAXIMUM. THE PROTESTING BIDDER CONTENDED THAT THE 9 TO 9 1/2 PERCENT GRADIENT FOR THE RAMP SLOPES AS ORIGINALLY REPORTED BY GSA UNDER THE C-K BID WAS IN ERROR AND THAT THE RAMPS PROVIDED FOR IN THAT COMPANY'S PROPOSAL PROVIDED FOR OPEN RAMPS OF 20 AND 17.9 PERCENT GRADES, RESPECTIVELY.

UPON RECONSIDERATION OF THIS PHASE OF THE MATTER TOGETHER WITH OTHER CONTENTIONS OF THE PROTESTING BIDDER CONCERNING PRIMARILY THE INADEQUACY OF OFF-STREET PARKING AND THE BASEMENT PARKING SPACES OFFERED BY C-K, GSA REPORTED THAT FURTHER CONSIDERATION OF THE PRELIMINARY DRAWINGS INCLUDED IN THE C-K PROPOSAL DISCLOSED THAT THE GRADES OF THE RAMP SLOPES AS DETERMINED BY ITS DIRECTOR OF DESIGN DIVISION WOULD BE AS FOLLOWS:

TABLE

1. ALLEY AND WASHINGTON STREET RAMPS.

(A) WITHOUT TRANSITION SLOPES 25 PERCENT

(B) WITH TRANSITION SLOPES 34 PERCENT

2. WASHINGTON STREET RAMP - EXTENDING RAMP TO SIDEWALK.

(A) WITHOUT TRANSITION SLOPE 17 PERCENT

(B) WITH TRANSITION SLOPE 20 PERCENT

THE GRADIENTS SHOWN WERE BASED ON A MEMORANDUM DATED SEPTEMBER 14, 1961, FROM THE DIRECTOR, DESIGN DIVISION, WHEREIN IT WAS STATED:

"D.IF THE CALLIGARI-KAHN SOLUTION PROVIDES THE DESIRED 2 FOOT-6 INCH DIFFERENTIAL BETWEEN THE LOADING DOCK AND THE GARAGE FLOOR (THE SMALL STAIRWAY IN THE RECEIVING AND SHIPPING AREA PROMPTS US TO BELIEVE THIS WAS INTENDED.), IT WOULD ALSO REQUIRE A 16 FOOT-0 INCH DIFFERENCE BETWEEN THE GARAGE FLOOR AND THE FIRST FLOOR. THIS WOULD NECESSITATE A 15 FOOT-6 INCH DIFFERENCE BETWEEN THE TOP AND THE BOTTOM OF THE RAMPS. THE CENTERLINE LENGTH OF BOTH RAMPS IS ABOUT 61 OR 62 FEET. THESE DIMENSIONS, WITH THE APPROPRIATE TRANSITION SLOPES WILL NECESSITATE A MAXIMUM RAMP SLOPE IN EXCESS OF 34 PERCENT GRADE. (C), (D), (E), (F), (G) AND (J)

"E. A RAMP SLOPE OF 12 PERCENT TO 15 PERCENT IS AN ACCEPTABLE STANDARD MAXIMUM GRADIENT FOR VEHICULAR RAMPS, PROVIDED THERE ARE APPROPRIATE TRANSITION SLOPES TO PREVENT SCRAPING. A MAXIMUM OF 6 PERCENT SLOPE IS AN UNCOMMONLY SHALLOW GRADIENT. THE YEAR-ROUND USEFULNESS OF A DEEP, NORTH FACING, EXTERIOR VEHICULAR RAMP, IN MINNEAPOLIS, WHERE THE AVERAGE ANNUAL SNOW FALL IS OVER 42 INCHES AND WHERE AS MUCH AS 16INCHES OF SNOW HAS FALLEN IN A 24-HOUR PERIOD, IS CERTAINLY OPEN TO QUESTION. (G), (K) AND (L)

"D. THE ESTIMATED 20 PERCENT AND 17.9 PERCENT SLOPES DO NOT INCLUDE REQUIREMENTS FOR TRANSITIONS NOR FOR DEPRESSING THE GARAGE FLOOR BELOW THE LOADING DOCK.

"E. THE 34 PERCENT RAMPS DO NOT PROVIDE "ADEQUATE INGRESS AND EGRESS.' (A)"

WHILE THESE GRADIENTS EXCEEDED THE 6 PERCENT MAXIMUM GRADIENT REQUIREMENT OF THE INVITATION GSA EXPRESSED THE VIEW THAT THE 6 PERCENT MAXIMUM GRADIENT WAS MERELY AN INDICATION OF THE GRADIENT DESIRED RATHER THAN A MANDATORY REQUIREMENT. IN SUPPORT OF THIS VIEW IT WAS STATED THAT THE PURPOSE OF PARAGRAPH 3 OF THE INVITATION WAS TO HAVE EACH BIDDER SUBMIT PRELIMINARY DRAWINGS WHICH, IN ADDITION TO HIS BID, COULD BE USED TO EVALUATE THOSE ITEMS ENUMERATED IN THE PARAGRAPH, INCLUDING THE RAMP SLOPES; THAT THE DRAWINGS REQUIRED TO BE SUBMITTED WITH THE BIDS WERE PRELIMINARY AND NOT FINAL WORKING DRAWINGS; AND THAT THIS WAS RECOGNIZED IN PARAGRAPH 15 OF THE INVITATION WHICH REQUIRED DEVELOPMENT OF DRAWINGS, WHICH WOULD BE IN SUFFICIENT DETAIL TO ENABLE THE GOVERNMENT TO EVALUATE AND APPROVE THE PROPOSED BUILDING WITH RESPECT TO PERFORMANCE CAPABILITIES AND REQUIREMENTS OF THE GOVERNMENT.

AS TO THE OTHER PRINCIPAL CONTENTIONS OF MICHAEL-LECK GSA CONCEDED THAT 24 OF THE 62 PARKING STALLS IN THE BASEMENT AS PROVIDED FOR IN THE C-K BID WERE IN THE AISLES; THAT ITS BID PROVIDED FOR ONLY 7 SURFACE PARKING STALLS AND THAT TRUCKS WOULD BE REQUIRED TO DRIVE THROUGH THE BASEMENT GARAGE.

IN OUR DECISION OF NOVEMBER 28, 1961, IT WAS POINTED OUT THAT NOT ONLY DID THE RAMPS AS PROPOSED IN THE C-K BID EXCEED THE 6 PERCENT MAXIMUM GRADIENT REQUIREMENT BUT THAT ACCORDING TO A MEMORANDUM OF SEPTEMBER 7, 1961, BY THE DIRECTOR, DESIGN DIVISION, GSA, THEY EXCEEDED BY FAR WHAT IS CONSIDERED TO BE AN ACCEPTABLE STANDARD MAXIMUM AND ALSO FAILED TO MEET OTHER REQUIREMENTS OF THE SPECIFICATIONS OR TO PROVIDE FOR A SATISFACTORY SOLUTION FOR THE REASONS STATED IN HIS MEMORANDUM. ACCORDINGLY, ON THE BASIS OF THE ADDITIONAL DATA FURNISHED CONCERNING THE GRADIENTS FOR THE RAMP SLOPES AND THE COMMENTS OF THE DIRECTOR, DESIGN DIVISION, RELATIVE THERETO WE CONCLUDED THAT THE CONTRACT AWARDED TO C-K SHOULD BE CANCELLED FOR FAILURE TO COMPLY WITH THE 6 PERCENT MAXIMUM SLOPE IN GRADE REQUIREMENT FOR THE ENTRANCE AND EXIT RAMPS AND FOR THE FAILURE TO PROVIDED MORE THAN 7 OFF-STREET PARKING SPACES OF THE 15 SPACES REQUIRED BY PARAGRAPH D (5) GENERAL OF THE INVITATION.

IN YOUR LETTER OF FEBRUARY 20, 1962, YOU CONTENDED THAT OUR DECISION OF NOVEMBER 28, 1961, WAS BASED ON EITHER INSUFFICIENT OR INCORRECT INFORMATION. CONCERNING THE REQUIREMENT FOR A PAVED AND OFF-STREET AREA FOR 15 AUTOMOBILES IT WAS STATED THAT THE C-K DRAWINGS SHOW A PAVED AREA AT STREET LEVEL ON THE WASHINGTON AVENUE SIDE OF THE PROPERTY; THAT WHILE IT IS TRUE THIS AREA WAS NOT SPECIFICALLY DESIGNATED FOR AUTOMOBILE PARKING ON THE FIRST FLOOR DRAWING SUCH A DESIGNATION MIGHT HAVE CAUSED DISAPPROVAL OF THE PROJECT SINCE MORE THAN 50 SPACES (BASEMENT AND SURFACE PARKING) WOULD HAVE BEEN IN CONTRAVENTION OF THE URBAN RENEWAL PLAN WHICH LIMITED PARKING SPACES FOR THE TYPE OF BUILDING INVOLVED TO 50 SPACES; AND THAT THE FAILURE TO DESIGNATE THE PAVED AREA IN FRONT OF THE PROPOSED BUILDING AS A PARKING AREA HAD THE FULL CONCURRENCE OF GSA PERSONNEL IN KANSAS CITY.

IN THE SAME LETTER YOU ATTEMPTED TO DEMONSTRATE THAT IF AN AWARD OR FAILURE TO QUALIFY FOR AN AWARD WAS PREMISED ON A LITERAL INTERPRETATION OF THE 6 PERCENT MAXIMUM SLOPE REQUIREMENT FOR THE RAMPS C-K'S BID WAS CAPABLE OF SUCH INTERPRETATION MERELY BY ADJUSTING THE FIRST FLOOR LEVEL (SHOWN ON C-K PLANS AS APPROXIMATELY GROUND LEVEL) WITH RELATION TO THE SURROUNDING GROUND LEVEL AND USING A VERY GENTLE SLOPED PEDESTRIAN RAMP FROM THE BUILDING ENTRANCE TO WASHINGTON AVENUE THROUGH THE PAVED PARKING AREA AND IMMEDIATELY ADJACENT TO HENNEPIN AVENUE, THUS PERMITTING RAISING THE BUILDING FOUR FEET TO AVOID ANY INTERIOR OR EXTERIOR STEPS. IT WAS STATED THAT BY UTILIZING A MERE 10 FOOT CEILING IN THE GARAGE AND A FLAT SLAB OVER EACH RAMP ENTRANCE AND EXIT RAMPS WOULD BE AT A GRADE OF 6 AND 6.8 PERCENT, RESPECTIVELY. IT WAS NOTED THAT THIS SOLUTION CONTEMPLATED A DEPRESSED AREA IN THE BASEMENT FLOOR IMMEDIATELY IN FRONT OF THE LOADING DOCK.

IN ADDITION IT WAS CONTENDED THAT THE WORD "SHOULD" AS USED INCIDENT TO THE "6 PERCENT MAXIMUM SLOPE IN GRADE" RAMPS REQUIREMENT WAS INTENDED TO SHOW A PREFERENCE RATHER THAN AN ABSOLUTE REQUIREMENT.

IN THE REPORT OF MAY 7, 1962, FROM THE COMMISSIONER, PUBLIC BUILDINGS SERVICE, CONCERNING THE CONTENTIONS IN YOUR LETTER OF FEBRUARY 20, 1962, IT WAS STATED THAT UPON REVIEW OF GSA FILES HE WAS CONVINCED THAT THE INFORMATION IN THE REPORTS WHICH FURNISHED THE BASIS OF OUR DECISION OF NOVEMBER 28, 1961, WAS SUFFICIENT, CORRECT AND RESPONSIVE TO ALL POINTS RAISED AT THAT TIME. AS TO THE ADDITIONAL POINTS, HE CONFIRMED YOUR CONTENTIONS RESPECTING THE LIMITATION OF PARKING SPACES AS PROVIDED FOR IN THE URBAN RENEWAL PLAN. HE STATED, HOWEVER, THAT THE CHIEF OF THE ACQUISITION BRANCH IN KANSAS CITY REPORTED THAT TO THE BEST OF HIS KNOWLEDGE NO DISCUSSIONS OR CONFERENCES CONCERNING OFF-STREET PARKING OR STREET LEVEL PARKING WERE HELD WITH C-K REPRESENTATIVES PRIOR TO BID OPENING.

WITH RESPECT TO YOUR PROPOSED SOLUTION RELATING TO THE RAMP SLOPES- - BY PROVIDING A PEDESTRIAN RAMP AT ENTRANCE OF BUILDING AND RAISING THE BUILDING FOUR FEET TO AVOID INTERIOR OR EXTERIOR STEPS--- THE COMMISSIONER STATED THAT SINCE C-K PLANS SHOWED THE FIRST FLOOR APPROXIMATELY AT GROUND LEVEL THE SUGGESTED SOLUTION WOULD BE A MATERIAL MODIFICATION OF THE PLANS SUBMITTED WITH ITS BID. CONCERNING THE SUGGESTION THAT BY UTILIZING A 10- FOOT CEILING IN THE GARAGE, PLACING A FLAT SLAB OVER EACH RAMP ENTRANCE, AND DEPRESSING THE BASEMENT FLOOR IN FRONT OF THE LOADING DOCK A 10-FOOT CLEARANCE COULD BE OBTAINED AND THE ENTRANCE AND EXIT RAMPS WOULD BE AT GRADES OF 6 AND 6.8 PERCENT, THE COMMISSIONER EXPRESSED THE VIEW THAT THIS WOULD RESULT IN A MATERIAL CHANGE IN DESIGN NOT REFLECTED BY THE C-K PLANS. IN ADDITION, HE POINTED OUT THAT A 10-FOOT CLEARANCE WOULD NOT BE CONSISTENT WITH THE INVITATION REQUIREMENT FOR 12-FOOT HIGH DOORS AND THAT SINCE THE DEPRESSED AREA IN FRONT OF THE LOADING DOCK WAS NOT SHOWN ON THE PLANS, TO CREATE SUCH A DEPRESSION WOULD CONSTITUTE A DESIGN CHANGE WHICH WOULD MAKE THE ALLEY RAMP UNUSABLE.

IN YOUR LETTER OF MAY 23, 1962, IT WAS STATED THAT YOU REGARD THE COMMENTS IN THE GSA REPORT OF MAY 7, 1962, CONCERNING THE OFF-STREET PARKING AS IN COMPLETE CONFIRMATION OF YOUR POSITION. IT WAS STATED, HOWEVER, THAT YOU DID NOT MEAN TO INFER THAT THERE WAS ANY AGREEMENT PRIOR TO THE SUBMISSION OF THE C-K BID THAT THE "CONCRETE-PAVED TERRACE" WOULD NOT BE SHOWN AS AVAILABLE FOR PARKING BUT ONLY THAT THERE WAS AN UNDERSTANDING PRIOR TO THE AWARD TO C-K.

AS TO THE RAMP SLOPES YOU CONCEDE THAT C-K PLANS SHOW THE FIRST FLOOR APPROXIMATELY AT GROUND LEVEL BUT YOU DISAGREE WITH GSA'S CONCLUSION THAT "A SLIGHT MODIFICATION IN THIS REGARD WOULD CONSTITUTE A MATERIAL MODIFICATION OF THE PLANS" SUBMITTED WITH THE C-K BID. YOU CONTEND THAT THE TERM "APPROXIMATELY AT GROUND LEVEL" IS NOT AN EXACT DESIGNATION AND THAT IT WOULD NECESSARILY INCLUDE THE RIGHT TO VARY THE FLOOR LEVEL A FOOT OR SO FROM THE EXISTING GROUND LEVEL. WITH RESPECT TO GSA'S COMMENTS ON YOUR SUGGESTION TO THE EFFECT THAT THE USE OF A 10-FOOT CEILING IN THE GARAGE AND A FLAT SLAB OVER EACH ENTRANCE TO OBTAIN ENTRANCE AND EXIT RAMPS AT GRADES OF 6 AND 6.8 PERCENT WOULD NOT BE CONSISTENT WITH THE INVITATION REQUIREMENT FOR 12 FOOT HIGH DOORS YOU STATE THAT THE INVITATION DOES NOT REQUIRE 12-FOOT HIGH DOORS; THAT A PLAN DRAWING, AS DISTINGUISHED FROM AN ELEVATION DRAWING IS USUALLY INTERPRETED TO SHOW LINEAR OR HORIZONTAL RATHER THAN HEIGHT DIMENSIONS AND THAT THEREFORE THE DOOR IN QUESTION IS REQUIRED TO BE 12 FEET WIDE, NOT 12 FEET HIGH. AS TO THE GSA CONCLUSION THAT YOUR SUGGESTION RELATING TO DEPRESSING THE BASEMENT FLOOR IN FRONT OF THE LOADING DOCK WOULD CONSTITUTE A DESIGN CHANGE WHICH WOULD MAKE THE ALLEY RAMP UNUSABLE YOU STATE THAT IT IS OBVIOUS FROM THE PLANS THAT THERE WOULD BE SOME DIFFERENCE IN ELEVATION BETWEEN THE LOADING DOCK AND THE FLOOR IMMEDIATELY AHEAD OF IT AND THAT A DEPRESSED AREA IS JUST AS CONSISTENT WITH THE PLANS AS IS AN ELEVATION OF THE LOADING DOCK ITSELF. YOU STATE FURTHER THAT THE C-K PLANS ADEQUATELY SHOW A DEPRESSED AREA IN FRONT OF THE LOADING DOCK; THAT IT INVOLVES NO CHANGE IN DESIGN AND THAT THE DEPRESSED AREA WOULD NOT MAKE THE ALLEY RAMP UNUSABLE AS STATED BY GSA.

YOU REASSERT YOUR DISAGREEMENT WITH THE CONCLUSION IN OUR DECISION OF NOVEMBER 28, 1961, CONCERNING THE GRADIENT REQUIREMENT FOR THE RAMPS PROVIDED FOR IN PARAGRAPH D (5) GENERAL OF THE TECHNICAL INSTRUCTIONS ON PAGE 23 OF THE INVITATION. YOU AGAIN URGE THAT THE GSA INTERPRETATION IS THE CORRECT ONE, NAMELY, THAT THE WORD "SHOULD" WAS ONLY INTENDED TO BE INTERPRETED AS INDICATING A DEGREE OF DESIRABILITY. YOU CITE SEVERAL COURT DECISIONS IN SUPPORT OF YOUR VIEW AND YOU QUOTE FROM PART II, SECTION IA.2 UNDER REQUIREMENTS OF THE INVITATION AS FOLLOWS:

"THIS HANDBOOK IS INTENDED AS AN AIDE IN THE DESIGN OF SUBJECT FACILITY AND THE WORK SHOULD BE ACCOMPLISHED IN ACCORDANCE WITH THE PERFORMANCE REQUIREMENTS STATED HEREIN. WHERE ECONOMY NECESSITATES, OR OTHER PRACTICAL CONSIDERATIONS, GSA MAY WAIVE MINOR NONCONFORMANCE WITH THE REQUIREMENTS CONTAINED HEREIN.'

YOU CONTEND THAT THE BROAD POWER RESERVED TO GSA BY THE QUOTED LANGUAGE IS MORE THAN ADEQUATE TO PERMIT THE WAIVER OF THE 6 PERCENT GRADIENT REQUIREMENT, PARTICULARLY IN LIGHT OF THE STATEMENT BY THE GSA DIRECTOR, DESIGN DIVISION, THAT A MAXIMUM 6 PERCENT SLOPE IS AN UNCOMMONLY SHALLOW GRADIENT. YOU REFER TO THE FACT THAT GSA HAS CONCURRED IN YOUR STATEMENT THAT THE KANSAS CITY INVITATION WAS IDENTICAL WITH THE PRESENT INVITATION WITH RESPECT TO THE RAMP SLOPES AND THAT GSA HAS AGREED WITH YOUR CONTENTION THAT THE SLOPES IN THE KANSAS CITY, DALLAS, AND CINCINNATI FACILITIES EXCEEDED 6 PERCENT. YOU SAY THAT YOU HAVE NOW MEASURED THE RAMP SLOPE IN KANSAS CITY AND FOUND IT TO BE 12.77 PERCENT. YOU EXPRESS THE VIEW THAT 9 TO 9 1/2 PERCENT GRADIENTS FOR THE RAMP SLOPES AS ORIGINALLY REPORTED BY GSA ARE SUBSTANTIALLY CORRECT AND YOU HAVE SUBMITTED DRAWINGS FOR THE PURPOSE OF SHOWING THAT THE RAMP SLOPES AS PROPOSED IN THE C-K BID WOULD ACTUALLY BE 10.3 AND 11.6 PERCENT, AS OPPOSED TO THE 17 TO 34 PERCENT GRADIENTS AS STATED IN THE GSA REPORT OF OCTOBER 17, 1961.

IN CONCLUSION YOU REFER TO THE STATEMENT QUOTED ON PAGE 9 OF OUR DECISION OF NOVEMBER 28, 1961, FROM THE MEMORANDUM OF SEPTEMBER 14, 1961, BY THE DIRECTOR, DESIGN DIVISION, TO THE EFFECT THAT THE DIFFERENTIAL BETWEEN THE LOADING DOCK AND THE GARAGE FLOOR WOULD REQUIRE A 16-FOOT DIFFERENTIAL BETWEEN THE GARAGE FLOOR AND THE FIRST FLOOR AND YOU STATE THAT THE FOLLOWING PARAGRAPH IN THE SAME MEMORANDUM RECOGNIZED THE PROPOSED DEPRESSION IN THE GARAGE FLOOR BELOW THE LOADING RAMP AND CRITICIZED THE PLANS FOR NOT PROVIDING TRANSITIONS THERETO. YOU DISAGREE WITH THE DIRECTOR'S STATEMENT THAT THE SURFACE PARKING IS CRAMPED AND LESS THAN REQUIRED BY THE SPECIFICATIONS AND YOU STATE THAT THE SURFACE PARKING FAR EXCEEDS THE SPECIFICATIONS AND WAS SO UNDERSTOOD BY GSA PERSONNEL AT THE CONFERENCE IN KANSAS CITY ON MARCH 29, 1961, AFTER BID OPENING.

IN LETTER DATED JULY 10, 1962, FROM THE OFFICE OF THE COMMISSIONER, PUBLIC BUILDINGS SERVICE, IT IS STATED THAT YOUR LETTER OF MAY 23, 1962, DOES NOT PRESENT ANY NEW OR ADDITIONAL INFORMATION FROM THAT PRESENTED IN YOUR LETTER OF FEBRUARY 20, 1962, WHICH FURNISHED THE BASIS FOR GSA'S REPORT OF MAY 7, 1962. IT WAS STATED, HOWEVER, THAT THE TECHNICAL ASPECTS OF THE MATTER AS PRESENTED HAD BEEN AGAIN REVIEWED AND THAT THE TECHNICAL ANALYSIS OF THE BID DRAWINGS SUBMITTED BY C-K REMAINS UNCHANGED. WITH RESPECT TO SUCH REVIEW THERE WAS ENCLOSED A MEMORANDUM DATED JUNE 8, 1962, FROM THE DIRECTOR, DESIGN DIVISION, WHEREIN IT WAS STATED THAT YOUR LETTER OF MAY 23, 1962, ADDED NOTHING TO GSA'S ANALYSIS OF THE RAMP SLOPES, THE PARKING FACILITIES OR THE OVERHEAD DOOR REQUIREMENTS AS INDICATED BY BID INVITATION NO. AD-6-38J AND AS RESPONDED THERETO BY C-K. SPECIFICALLY, THE DIRECTOR STATED---

"THE NEW CONTENTIONS APPEAR TO HINGE ON THE HEIGHT OF THE OVERHEAD DOOR AND EXTERIOR PARKING FACILITIES. A 12-FOOT-0 INCH HIGH BY 12 FOOT-0 INCH WIDE OVERHEAD DOOR IS SPECIFICALLY REQUIRED BY DRAWING NO. A-2 OF THE BID INVITATION. REFERENCE TO THE PLAN INDICATION SYMBOL "N" AND TO THE DOOR SCHEDULE ITEM "N" ON THE SAME DRAWING SHOULD ELIMINATE ANY FURTHER CONTENTION. IN REFERENCE TO THE CALLEGARI-KAHN DRAWINGS DATED MARCH 13, 1961, THE PURPORTED EXTERIOR PARKING IS NOT SO NOTED ON THE FIRST FLOOR PLAN, NOR IS VEHICULAR ACCESS THERETO INDICATED. THE ONLY POSSIBLE DRAWING REFERENCE TO THAT PARKING IS THE NOTE ON THE BASEMENT PLAN "PAVED ROOF-PARK AREA ABOVE" WHICH REFERS TO THE AREA ON THE FIRST FLOOR PLAN. THAT AREA IS NOTED TO BE "CONCRETE PAVED TERRACE (ROOF)" AND "GREENBELT AREA.' THE POSSIBILITY OF ANY PLANNED LARGE AMOUNT OF EXTERIOR PARKING IS REFUTED BY THE PARKING SUMMARY ITEMIZED ON THE BASEMENT PLAN AS FOLLOWS:

CHART

"PARKING GARAGE

CARS IN STALLS 62

CARS IN AISLES 24

TOTAL 86

7 CARS OUTSIDE IN REAR

TOTAL 93"

CONCERNING THE REQUIREMENT IN PARAGRAPH C (5) GENERAL, SECTION II, TECHNICAL INSTRUCTIONS FOR PAVED AND CURBED OFF-STREET PARKING FOR 15 AUTOMOBILES THE PLANS SUBMITTED BY C-K SHOW ONLY 7 SPACES LOCATED ON EITHER SIDE OF THE REAR RAMP. ALSO, AS POINTED OUT IN THE DIRECTOR'S MEMORANDUM OF JUNE 8, 1962, THE PURPORTED EXTERIOR PARKING IS NOT NOTED ON THE FIRST FLOOR PLAN, NOR IS THERE NOTED ANY VEHICLE ACCESS THERETO. FURTHER POINTED OUT BY THE DIRECTOR THE ONLY POSSIBLE DRAWING REFERENCE TO THAT PARKING IS THE NOTE ON THE BASEMENT PLAN "PAVED ROOF-PARK AREA ABOVE," WHICH AS INDICATED HAS REFERENCE TO THE FIRST FLOOR PLAN WHEREIN THIS AREA IS DESCRIBED AS "CONCRETE-PAVED TERRACE (ROOF)" AND "GREENBELT AREA.' THE ARCHITECT'S RENDERING ACCOMPANYING THE BID SHOWS A SHRUBBED AND SODDED AREA SURROUNDING A PAVED TERRACE WITH ANOTHER SHRUBBED AREA AND A PARK BENCH A LITTLE OFF CENTER OF THE TERRACE. WITH RESPECT TO YOUR EXPLANATIONS CONCERNING THE FAILURE TO SPECIFICALLY DESIGNATE A PARKING AREA FOR AUTOMOBILES IN THE PAVED TERRACE FRONTING THE BUILDING SUBPARAGRAPH (7) (C) OF PARAGRAPH (D) ENTITLED "SPECIAL INSTRUCTIONS" OF THE INVITATION REQUIRES THE FACILITY TO COMPLY WITH THE BUILDING CODE OF THE CITY OF MINNEAPOLIS AND THE REQUIREMENTS OF THE HOUSING AND REDEVELOPMENT AUTHORITY. SUBPARAGRAPH 1 (C), PART I OF THE INSTRUCTIONS TO BIDDERS STATES THAT THE BUILDING MUST CONFORM TO THE SPECIFICATIONS ATTACHED THERETO AS PART OF THE INVITATION FOR BIDS AND THAT IN THE EVENT THAT THERE IS A CONFLICT BETWEEN THE REQUIREMENTS SPECIFIED IN THE INVITATION INCLUDING ATTACHMENTS THERETO AND THE REQUIREMENTS OF THE HOUSING AND REDEVELOPMENT AUTHORITY DETAILS INCIDENT THERETO SHALL BE IMMEDIATELY REFERRED TO THE ACQUISITION AND DISPOSAL DIVISION OF THE GSA KANSAS CITY REGIONAL OFFICE. WHILE AS NOTED IN THE DIRECTOR'S MEMORANDUM OF JUNE 8, 1962, THE BASEMENT PLAN SUBMITTED WITH THE C-K BID SHOWED 62 STALL SPACES AND 24 AISLE SPACES FOR CARS IN THE GARAGE AND 7 CAR SPACES OUTSIDE IN THE REAR OR A TOTAL OF 93 SPACES OR 19 SPACES (EXCLUSIVE OF AISLE SPACES) IN EXCESS OF THE URBAN RENEWAL PLAN LIMITATION OF 50 SPACES, A REVIEW OF THE FILE FAILS TO SHOW THAT C-K, PRIOR TO BID OPENING, EVER BROUGHT THE MATTER OF THE CONFLICT IN THIS RESPECT TO THE ATTENTION OF THE GSA KANSAS CITY ACQUISITION AND DISPOSAL DIVISION, AS REQUIRED BY SUBPARAGRAPH 1 (D), PART I OF THE INSTRUCTIONS TO BIDDERS. IN THESE CIRCUMSTANCES, AND CONSIDERING THE INVITATION REQUIREMENT FOR A PAVED AND CURBED OFF-STREET PARKING AREA FOR 15 AUTOMOBILES WE MUST ADHERE TO THE CONCLUSION IN OUR DECISION OF NOVEMBER 28, 1961, THAT THE FAILURE OF THE C -K BID TO COMPLY WITH THE REQUIREMENTS OF THE INVITATION IN THIS RESPECT CONSTITUTED A MATERIAL VARIANCE.

WITH RESPECT TO YOUR DISAGREEMENT WITH OUR CONCLUSION THAT THE INVITATION REQUIREMENT THAT THE RAMPS OF ENTRANCES AND EXITS TO GARAGE SHOULD NOT EXCEED A 6 PERCENT MAXIMUM SLOPE IN GRADE, WE RECOGNIZE THAT THE WORD "SHOULD" HAS VARIOUS SHADES OF MEANING AND THAT IN SOME SITUATIONS IT MAY BE INTERPRETED AS INDICATING ONLY DESIRABILITY OR MERELY ADVISORY. THINK IT IS CLEAR THAT THE WORD "SHOULD" AS USED IN THIS INSTANCE MUST BE INTERPRETED AS A MANDATORY REQUIREMENT. AS STATED IN MAGNUSON V. COUNTY OF GRAND FORKS, 97 N.W.2D 622, CITED IN YOUR LETTER OF MAY 23, 1962,"THE INTENTION WITH WHICH THE WORD IS USED MUST BE DETERMINED BY THE CONTEXT AND THE SUBJECT MATTER TO WHICH IT HAS REFERENCE.' TO THE SAME EFFECT IS THE STATEMENT IN BALDASSARRE V. WEST OREGON LUMBER CO., 239 P.2D 839, 842, WHERE THE COURT STATED,"HERE, AS IN SO MANY OTHER INSTANCES, THE MEANING OF THE WORD AND THE INTENTION TO BE ASCRIBED TO THOSE WHO USED IT MUST BE DETERMINED BY THE CONTEXT.' SEE, ALSO, 80 C.J.S. 139. AS WE POINTED OUT IN THE DECISION OF NOVEMBER 28, 1961, IF AS CONTENDED BY YOU THE WORD "SHOULD" WAS INTENDED MERELY TO INDICATE THE GRADIENT DESIRED, THAT INTENTION COULD EASILY HAVE BEEN CONVEYED BY SO STATING AS IN THE CASE OF PARAGRAPH 3 (C), PART I OF THE INSTRUCTIONS TO BIDDERS WHERE IT WAS STATED THAT "IT IS DESIRED BUT NOT MANDATORY THAT BIDDERS SUBMIT AN ARCHITECT'S RENDERING OF THE PROPOSED BUILDINGS.' ALSO, IN THE SENTENCE IMMEDIATELY PRECEDING THE GRADIENT REQUIREMENT IT IS STATED THAT THE BUILDING WILL BE IN OPERATION THROUGHOUT ALL SEASONS OF THE YEAR AND THAT "THE DESIGN AND LAYOUT OF THE PARKING AREA SHOULD PROVIDE, IN SO FAR AS POSSIBLE, FOR EASE OF SNOW REMOVAL AND OPERATION IN ICY WEATHER.' IN THE CIRCUMSTANCES, WE MUST REAFFIRM OUR PREVIOUS CONCLUSION THAT THE UNQUALIFIED WORD "SHOULD" IN THE GRADIENT REQUIREMENT--- ESPECIALLY WHEN COUPLED WITH THE WORD "MAXIMUM"--- CANNOT REASONABLY BE INTERPRETED AS OTHER THAN AN IMPERATIVE REQUIREMENT.

THE PROCUREMENT IN THIS INSTANCE WAS UNDERTAKEN UNDER AUTHORITY OF AND PURSUANT TO SECTIONS 302 AND 303 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 252, 253. SECTION 302 PROVIDES THAT WITH CERTAIN EXCEPTIONS, NOT HERE MATERIAL, ALL PURCHASES AND CONTRACTS FOR PROPERTY AND SERVICES SHALL BE MADE BY ADVERTISING AS PROVIDED IN SECTION 303. SECTION 303 PROVIDES THAT---

"WHENEVER ADVERTISING IS REQUIRED---

"/A) THE ADVERTISEMENT FOR BIDS SHALL BE MADE A SUFFICIENT TIME PREVIOUS TO THE PURCHASE OR CONTRACT, AND SPECIFICATIONS AND INVITATIONS FOR BIDS SHALL PERMIT SUCH FULL AND FREE COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF TYPES OF PROPERTY AND SERVICES NECESSARY TO MEET THE REQUIREMENTS OF THE AGENCY CONCERNED.

"/B) ALL BIDS SHALL BE PUBLICLY OPENED AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT. AWARD SHALL BE MADE WITH REASONABLE PROMPTNESS BY WRITTEN NOTICE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT PRICE AND OTHER FACTORS CONSIDERED: * * *"

WHERE, AS IN THIS CASE, A CONTRACT IS REQUIRED BY STATUTE TO BE AWARDED PURSUANT TO FORMAL ADVERTISING, A BID WHICH VARIES MATERIALLY FROM THE SPECIFICATIONS MUST BE REJECTED. 40 COMP. GEN. 447, AND AUTHORITIES THEREIN CITED.

AS STATED IN THE DECISION JUST CITED A CONTRACT WHICH VARIES MATERIALLY FROM THE TERMS OF THE INVITATION MAY NOT BE MODIFIED AFTER OPENING TO CONFORM TO THE SPECIFICATION. AS FURTHER STATED A CONTRACT REQUIRED TO BE LET PURSUANT TO COMPETITIVE BID PROCEDURES WHICH IS AWARDED ON A BID CONTAINING MATERIAL VARIANCES FROM THE INVITATION IS VOID AB INITIO.

EVEN IF THE CHANGES NOW PROPOSED TO EFFECT THE 6 PERCENT RAMPS PROPERLY COULD BE CONSIDERED, SUCH CHANGES WHICH CONTEMPLATE THE USE OF 10-FOOT HIGH DOORS WOULD NOT MEET THE REQUIREMENTS OF THE INVITATION SINCE AS POINTED OUT BY THE DIRECTOR, DESIGN DIVISION, A 12 FOOT-0 INCH HIGH BY 12 FOOT-O INCH WIDE OVERHEAD DOOR IS SPECIFICALLY REQUIRED BY DRAWING NO. A-2 OF THE BID INVITATION AS EVIDENCED BY PLAN INDICATION SYMBOL "N" AND DOOR SCHEDULE ITEM "N" ON THE SAME DRAWING. FURTHERMORE, ASIDE FROM THE EXCEPTION TO THE INVITATION REQUIREMENTS IN THIS RESPECT, SUCH CHANGES WOULD NOT MEET THE 6 PERCENT GRADIENT REQUIREMENT OR ANY REASONABLE VARIANCE THEREOF SINCE THE DRAWINGS SUBMITTED IN YOUR LETTER OF MAY 23, 1962, SHOW THE TWO RAMP GRADES WOULD BE 10.3 AND 11.6 PERCENT, RESPECTIVELY, OR ALMOST TWICE THE 6 PERCENT MAXIMUM GRADIENT REQUIREMENT. WE CANNOT AGREE WITH YOUR CONTENTION THAT THE PROVISION OF THE HANDBOOK QUOTED BY YOU WOULD PERMIT GSA TO WAIVE THE GRADIENT REQUIREMENT SET OUT IN THE INVITATION FOR BIDS. SUCH ACTION WOULD BE UNFAIR TO OTHER BIDDERS, WHO IF THEY HAD KNOWLEDGE OF A RELAXATION OF THE REQUIREMENTS, MIGHT HAVE BEEN ABLE TO SUBMIT LOWER RESPONSIVE AND ACCEPTABLE BIDS. THIS MIGHT REASONABLY HAVE BEEN THE CASE WITH RESPECT TO THE BID SUBMITTED BY MICHAEL -LECK WHOSE BID AS WE HAVE PREVIOUSLY POINTED OUT WAS REJECTED PRIMARILY BECAUSE OF THE INTERIOR STEPS WHICH WERE NOT PROHIBITED BY THE INVITATION, BUT RESULTED FROM THE FIRM'S UNDERSTANDING THAT THE 6 PERCENT GRADE REQUIREMENT WAS A MANDATORY MAXIMUM. WHILE IT IS TRUE THAT MINOR DEVIATIONS FROM THE CONDITIONS AND REQUIREMENTS SET OUT IN THE INVITATION FOR BIDS MAY BE WAIVED, A DEVIATION THAT SO AFFECTS THE QUALITY, QUANTITY OR PRICE OF THE WORK AS TO BE PREJUDICIAL TO THE RIGHTS OF THE OTHER BIDDERS MUST BE CONSIDERED AS A MAJOR DEVIATION. 38 COMP. GEN. 179; 36 ID. 251; 17 ID. 554.

EVEN THOUGH AN AWARD WAS MADE TO C-K, WE BELIEVE, FOR REASONS HERETOFORE INDICATED, THAT THE EXCEPTIONS TO THE INVITATION IN THAT COMPANY'S BID MUST BE REGARDED AS MATERIAL VARIANCES AND THAT THE ACCEPTANCE OF THE C-K BID CREATED NO VALID CONTRACT. 39 COMP. GEN. 832. ACCORDINGLY, THE DECISION OF NOVEMBER 28, 1961, IS AFFIRMED.