B-151838, AUG. 19, 1963

B-151838, AUG. 19, 1963

TO COLUMBIA ELECTRIC MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 19, 1963, PROTESTING THE REJECTION OF YOUR LOW BID AND AWARD OF ARMY CONTRACT NO. DA-36-109-ENG -7509, DATED MAY 3, 1963, TO THE REPUBLIC ELECTRIC AND DEVELOPMENT COMPANY, SEATTLE, WASHINGTON, AS THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER FOR THE FURNISHING OF 10 LOAD BANKS AS DESCRIBED IN ITEM NO. 1 OF INVITATION FOR BIDS NO. ENG-36-109-63-8, ISSUED MARCH 18, 1963, BY THE DISTRICT ENGINEER, UNITED STATES ARMY ENGINEER DISTRICT, PHILADELPHIA.

BIDS WERE REQUESTED UNDER ITEM NO. 1 OF THE INVITATION FOR FURNISHING OF 10 LOAD BANKS, RESISTANCE TYPE, AIR COOLED, PORTABLE, SKID-MOUNTED, WEATHERPROOF, 1,000 K.W., 2400/4160 VOLT, 60 CYCLE, HAVING FOUR LOAD INCREMENTS, COMPLETE WITH POWER AND CONTROL CABLES, ALL IN ACCORDANCE WITH PROCUREMENT DESCRIPTION ENTITLED "RESISTANCE LOAD BANK, 1000 KW" DATED MARCH 5, 1963. PARAGRAPH 7 OF THE APPLICABLE PROCUREMENT DESCRIPTION SPECIFIED THAT THE SWITCHES FOR THE LOAD BANKS "SHALL BE THREE-POLE, ELECTRICALLY OR MANUALLY OPERATED.' TWELVE BIDS WERE SUBMITTED AT F.O.B. ORIGIN PRICES. THE BID OF YOUR COMPANY QUOTED A PRICE OF $9,866 PER UNIT AND A TOTAL PRICE OF $98,660 FOR THE 10 UNITS. THE NEXT LOWEST BID OF $12,100 PER UNIT AND A TOTAL PRICE OF $121,000 WAS SUBMITTED BY THE REPUBLIC ELECTRIC AND DEVELOPMENT COMPANY, THE SUCCESSFUL BIDDER.

THE INVITATION REQUIRED THE SUBMISSION OF DESCRIPTIVE LITERATURE AS A PART OF EACH BID TO ESTABLISH FOR THE PURPOSES OF BID EVALUATION AND AWARD THE DETAILS OF THE PRODUCTS THE BIDDER PROPOSED TO FURNISH AS TO DESIGN, DIMENSIONS, WEIGHT, AND DETAILED DESCRIPTION OF MAJOR COMPONENTS AND ACCESSORY EQUIPMENT, AS DETAILED IN PARAGRAPH 2 OF THE PROCUREMENT DESCRIPTION. THAT PARAGRAPH STATES: "EACH BID SHALL BE ACCOMPANIED BY ONE OR MORE 8 1/2 INCHES BY 11 INCHES REPRODUCIBLE DRAWINGS SHOWING THE OVER- ALL DIMENSIONS OF THE LOAD BANK, LOCATION OF TERMINALS AND CONNECTION POINTS, AND A WIRING DIAGRAM. EACH BID SHALL BE ACCOMPANIED BY AN ADEQUATE DESCRIPTION OF THE LOAD BANK BEING OFFERED, INCLUDING A DESCRIPTION OF THE ENCLOSURE, RESISTANCE UNITS, METHOD OF INSULATION, AND METHOD OF VENTILATION.'

ON APRIL 18, 1963, THE 12 BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE FORWARDED TO THE OFFICE OF THE CHIEF OF ENGINEERS FOR TECHNICAL EVALUATION, AND ON APRIL 26, 1963, THE CHIEF OF THE MILITARY CONSTRUCTION CONTRACT SUPPORT DIVISION REPORTED THE RESULTS OF A REVIEW OF THE THREE LOWEST BIDS FOR TECHNICAL REQUIREMENTS. HE FOUND THAT THE BID OF YOUR COMPANY DID NOT MEET THE REQUIREMENTS OF THE PROCUREMENT DESCRIPTION IN THAT SINGLE-POLE SWITCHES WERE BEING OFFERED IN LIEU OF THREE-POLE SWITCHES AS SPECIFIED.

WHEN THE CONTRACT WAS AWARDED TO THE REPUBLIC ELECTRIC AND DEVELOPMENT COMPANY, YOU WERE ADVISED BY LETTER FROM THE CONTRACTING OFFICER THAT YOUR BID WAS REJECTED IN ACCORDANCE WITH SUBSECTION 2 404.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), SINCE THE BID FAILED TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION. IN REPLY TO YOUR PROTEST AGAINST THE REJECTION OF THE BID, YOU WERE INFORMED THAT IT WAS NECESSARY TO REJECT THE BID BECAUSE YOU OFFERED SINGLE-POLE SWITCHES INSTEAD OF THE REQUIRED THREE-POLE SWITCHES. YOU THEN CONTENDED THAT YOU INTENDED NO EXCEPTION WHATEVER TO THE REQUIREMENT FOR THREE-POLE SWITCHES, THAT YOUR DRAWINGS WERE NOT PROPERLY INTERPRETED AS SHOWING ONLY SINGLE POLE SWITCHES, AND THAT IT IS NOT UNUSUAL FOR SWITCHES OF THE PARTICULAR VOLTAGE CLASS TO BE MOUNTED ON INDIVIDUAL BASES AND MECHANICALLY GANGED TO PROVIDE A THREE-POLE UNIT. YOU SUBMITTED A BROCHURE OF THE WESTINGHOUSE ELECTRIC COMPANY IN SUPPORT OF SUCH CONTENTION.

YOU ALSO CONTENDED THAT YOUR INTENTION TO PROVIDE A THREE-POLE UNIT WITH THE USE OF HOOKSTICK OPERATED SWITCHES WAS EVIDENCED BY THE FACT THAT THE SYMBOLS USED IN YOUR DRAWINGS WERE CONSISTENT WITH THOSE USED IN DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, DRAWING NO. 477 D-283.

THE OFFICE OF THE CHIEF OF ENGINEERS CONSIDERS THAT IT WAS OBVIOUS THAT YOUR BID FAILED TO MEET ONE OF THE ESSENTIAL REQUIREMENTS OF THE APPLICABLE SPECIFICATIONS BECAUSE THE TERM "HOOKSTICK" USUALLY INDICATES A SINGLE-POLE DEVICE AND NO EXPLANATION WAS GIVEN IN THE BID OR IN THE DESCRIPTIVE MATERIAL ACCOMPANYING THE BID TO THE EFFECT THAT THE HOOKSTICK OPERATED SWITCHES WOULD BE GANGED FOR MULTIPLE OPERATION. WE ARE ADVISED THAT THE GOVERNMENT HAD NO REASON TO ASSUME THAT THE SWITCHES AS REPRESENTED WOULD BE OTHER THAN THE USUAL SINGLE POLE HOOKSTICK OPERATED SWITCHES.

INASMUCH AS THE APPARENT DEVIATION FROM THE ADVERTISED SPECIFICATIONS WAS MATERIAL AND, AS SUCH, AFFECTED THE SUBSTANCE OF YOUR BID, THE OFFICE OF THE CHIEF OF ENGINEERS HAS TAKEN THE POSITION THAT THE CONTRACTING OFFICER WOULD NOT HAVE BEEN AUTHORIZED TO CONSIDER THE MATTER AS ONE INVOLVING MERELY AN INFORMALITY OR A MINOR IRREGULARITY IN BID WHICH COULD BE CORRECTED OR WAIVED UNDER THE PROVISIONS OF SECTION 2-405, ASPR, WHICH WAS CITED IN CONNECTION WITH YOUR COMPLAINT THAT YOU SHOULD HAVE BEEN FURNISHED AN OPPORTUNITY TO EXPLAIN ANY DEFICIENCY IN YOUR BID BEFORE A CONTRACT WAS AWARDED TO ANY OTHER BIDDER.

THE ESTABLISHMENT OF SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND THE FACTUAL QUESTION OF WHETHER PRODUCTS OFFERED MEET THE SPECIFICATIONS ARE MATTERS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED, TO BE QUESTIONED BY OUR OFFICE ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 38 COMP. GEN. 190, 191.

DECISIONS OF THIS OFFICE HAVE BEEN UNIFORM IN HOLDING THAT THERE IS NO AUTHORITY FOR WAIVING AS AN INFORMALITY OR MINOR IRREGULARITY A FAILURE OF A BID TO MEET ONE OR MORE OF THE ESSENTIAL REQUIREMENTS OF THE GOVERNMENT'S INVITATION FOR BIDS. ALSO, OUR OFFICE HAS HELD THAT INVITATIONS FOR BIDS MAY REQUIRE THE SUBMISSION OF DESCRIPTIVE LITERATURE WHEN SUCH A REQUIREMENT IS ADMINISTRATIVELY DETERMINED TO BE NECESSARY FOR A PROPER DETERMINATION AS TO THE RESPONSIVENESS OF BIDS. 36 COMP. GEN. 415. A DETERMINATION TO THAT EFFECT WAS MADE IN THIS CASE AND IT IS OUR OPINION THAT, IF THE MATERIAL SUBMITTED WITH YOUR BID DID NOT CLEARLY INDICATE AN INTENTION TO COMPLY FULLY WITH THE ESSENTIAL REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS, THE BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE.

THE ADMINISTRATIVE DETERMINATION CONCERNING THE RESPONSIVENESS OF YOUR BID DOES NOT APPEAR TO HAVE BEEN ARBITRARY OR UNREASONABLE IN ANY RESPECT. WE BELIEVE THAT UNDER THE PROVISIONS QUOTED ABOVE, IT WAS INCUMBENT UPON YOU TO SHOW IN THE MATERIAL SUBMITTED WITH YOUR BID WHAT YOU WERE ACTUALLY INTENDING TO FURNISH, RATHER THAN TO LEAVE IT TO THE GOVERNMENT TO INFER OR ASSUME THAT YOUR EQUIPMENT WOULD CONFORM TO THE SPECIFICATIONS. WHILE YOU FURNISHED DRAWINGS AS REQUIRED BY THE FIRST SENTENCE OF THE PERTINENT PARAGRAPH, IT DOES NOT APPEAR THAT YOU FURNISHED ANY DESCRIPTION OF YOUR EQUIPMENT PURSUANT TO THE SECOND SENTENCE.

WITH FURTHER REFERENCE TO YOUR CONTENTION THAT THE CONTRACTING OFFICER SHOULD HAVE REQUESTED A CLARIFICATION OF YOUR BID BEFORE MAKING A CONTRACT AWARD TO ANOTHER BIDDER, IT IS AN ESTABLISHED RULE THAT BIDDERS SHOULD NOT BE PERMITTED TO CHANGE THEIR PROPOSALS AFTER BIDS ARE OPENED. CF. UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461, 463; AND CITY OF CHICAGO V. MOHR, 74 N.E. 1056.

IT IS ALSO OUR OPINION THAT IT WOULD BE CONTRARY TO THE PRINCIPLES OF FORMAL COMPETITIVE PROCUREMENT BY AGENCIES OF THE GOVERNMENT FOR A CONTRACTING OFFICER TO REQUEST A CLARIFICATION OF A BID WHERE, AS HERE, THE NEED FOR CLARIFICATION IS THE RESULT OF THE BIDDER'S COMPLETE FAILURE TO FURNISH MATERIAL INFORMATION SPECIFICALLY REQUIRED BY THE INVITATION. A REQUEST FOR CLARIFICATION IN SUCH CIRCUMSTANCES WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS WHO HAVE SUBMITTED FULLY RESPONSIVE BIDS SINCE THE LOW BIDDER WOULD THEN BE PLACED IN THE FAVORABLE POSITION OF HAVING THE OPTION OF SECURING AN AWARD OF CONTRACT BY CLARIFICATION OF ITS BID, OR OF SO ACTING AS TO CAUSE THE BID TO BE REJECTED IF IMPROVIDENTLY MADE. WE HAVE CONSISTENTLY TAKEN THE VIEW THAT TO GIVE A BIDDER TWO CHANCES AT A PROCUREMENT IN SUCH MANNER WOULD BE UNFAIR TO OTHER BIDDERS AND CONTRARY TO THE PURPOSES OF THE STATUTES GOVERNING PUBLIC PROCUREMENT. SEE, GENERALLY, 35 COMP. GEN. 33, 38; AND 38 ID. 532, 536.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR TAKING EXCEPTION TO THE CONTRACT AWARD AS MADE TO THE REPUBLIC ELECTRIC AND DEVELOPMENT COMPANY, AND YOUR PROTEST TO OUR OFFICE IN THE MATTER MUST BE DENIED.