B-152578, OCT. 31, 1963

B-152578, OCT. 31, 1963

TO WORTHINGTON CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16, 1963, TO THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C., PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 600-967-63 ISSUED BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C., ON APRIL 1, 1963.

THE INVITATION SOLICITED BIDS FOR FURNISHING ONE RECIPROCATING POWER DRIVEN COMPRESSOR IN ACCORDANCE WITH CERTAIN SPECIFICATIONS.

3.5.1.1 OF THE SPECIFICATIONS PROVIDED AS FOLLOWS:

"A FORCED FEED LUBRICATING SYSTEM SHALL BE PROVIDED TO ADEQUATELY LUBRICATE THE MAIN SHAFT BEARINGS, CRANK AND CROSS HEAD PIN BEARINGS, CROSS HEAD GUIDES AND PISTON RODS. * * *"

ALSO, PAGES 10 AND 11 OF THE SCHEDULE PROVIDED AS FOLLOWS:

"THE BIDDER SHALL FURNISH AN ASSEMBLY DRAWING AND A SCHEMATIC OF THE COMPRESSOR ASSEMBLY HE PROPOSES TO SUPPLY. THE DRAWING OR SCHEMATIC SHALL IDENTIFY THE COMPONENT UNITS OF THE ASSEMBLY. THIS INFORMATION SHALL BE A REQUIRED PART OF THE BID PROPOSAL AND SHALL BE USED ONLY FOR BID EVALUATION PURPOSES.

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, COMPONENTS, CONSTRUCTION AND ASSEMBLY.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, ACCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE, BIDS AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

A TOTAL OF FOUR BIDS WAS RECEIVED. THE LOW BIDDER INDICATED IN ITS BID THAT IT INTENDED TO FURNISH EQUIPMENT WHICH HAD A SPLASH LUBRICATING SYSTEM INSTEAD OF A FORCED FEED LUBRICATING SYSTEM AS REQUIRED UNDER PARAGRAPH 3.5.1.1 OF THE SPECIFICATIONS. THE BID WAS THEREFORE REJECTED AS THE EQUIPMENT OFFERED DID NOT COMPLY WITH THE SPECIFICATIONS. YOUR BID, WHICH WAS THE SECOND LOW BID, WAS REJECTED SINCE IT WAS CONSIDERED, FOR REASONS HEREINAFTER DISCUSSED, THAT YOU WERE OFFERING EQUIPMENT WHICH HAD A SPLASH LUBRICATING SYSTEM IN LIEU OF THE FORCED FEED LUBRICATING SYSTEM REQUIRED UNDER SAID PARAGRAPH 3.5.1.1. AWARD WAS MADE TO THE THIRD LOW BIDDER ON AUGUST 13, 1963.

IN YOUR LETTER OF AUGUST 16, YOU STATED THAT---

"PAGE 10 OF THE IFB REQUIRED BIDDERS TO SUBMIT CERTAIN MATERIAL FOR BID EVALUATION PURPOSES. WORTHINGTON SUBMITTED:

1. ASSEMBLY DRAWING W-2001127B

2. SCHEMATIC DRAWING SK-19239

3. BULLETIN 3616-E1

ALL THE ABOVE WERE WHAT WE HAD AVAILABLE AT THE TIME OF BIDDING AND REFLECTED OUR COMMERCIAL CONSTRUCTION, INCLUDING THE SPLASH LUBRICATION OF THE FRAME RUNNING GEAR. HOWEVER, IN CONNECTION WITH BULLETIN 3616 E1, WE ADVISED THAT IT

"SPECIFICALLY DESCRIBES AND ILLUSTRATES OUR OFFERINGS ON PAGES 28 AND 29. PAGE 34 ILLUSTRATES THE FIRST AND SECOND STAGE VALVES, PAGE 40 ILLUSTRATES THE THIRD STAGE VALVES AND ILLUSTRATES THE FOURTH STAGE VALVE.'

NONE OF THE ABOVE QUOTE HAS ANY BEARING ON THE FRAME RUNNING GEAR AND ITS LUBRICATION. WE DID STATE THAT ALL OTHER INFORMATION IN THE BULLETIN IS GENERAL AND APPLICABLE TO OUR TYPE HB AIR COMPRESSOR. THIS IS TRUE, BUT IT IS OUR INTENTION OF ADDING A LUBRICATING OIL PUMP TO OUR COMPRESSOR TO PROVIDE IN ACCORDANCE WITH THE PARAGRAPH 3.5.1.1, PAGE 5 OF THE IFB, THE SPECIFIED LUBRICATION SYSTEM AND AS CITED BY THE TWO STATEMENTS IN OUR BID, WE WOULD COMPLETELY MEET THE SPECIFICATION REQUIREMENTS. WE JUST DID NOT HAVE EITHER A DRAWING OR A BULLETIN REFLECTING THE FORCED FEED LUBRICATION SYSTEM.'

ALSO, YOU STATED IN YOUR LETTER OF APRIL 29, 1963, TRANSMITTING YOUR BID THAT YOU PROPOSE TO FURNISH YOUR "TYPE" HB4 AIR COMPRESSOR IN STRICT ACCORDANCE WITH THE SPECIFICATION REQUIREMENTS.' FURTHER, YOU PROTEST THE AWARD TO JOY MANUFACTURING COMPANY ON THE GROUND THAT JOY'S BID WAS MORE DEFICIENT AS TO SUBMISSION OF DESCRIPTIVE LITERATURE THAN YOUR BID SINCE IT MERELY "OFFERED A COMPRESSOR AS FURNISHED ON TWO BUREAU OF SHIPS CONTRACTS.'

IN THIS CASE THE REQUIREMENT FOR DESCRIPTIVE LITERATURE WAS MADE A PART OF THE INVITATION AND THE PENALTY FOR FAILING TO FURNISH DESCRIPTIVE LITERATURE FOR THE PURPOSE OF ASSISTING THE ADMINISTRATIVE OFFICE IN DETERMINING WHETHER THE EQUIPMENT OFFERED COMPLIED WITH THE SPECIFICATIONS WAS THE REJECTION OF THE BID. OUR OFFICE HAS UPHELD THE REQUIREMENT FOR SUCH REJECTION. SEE 37 COMP. GEN. 763. IT IS NOT SUFFICIENT THAT A BIDDER MAKE A GENERAL STATEMENT THAT THE EQUIPMENT HE OFFERS TO FURNISH WILL MEET ALL THE SPECIFICATION REQUIREMENTS. OTHERWISE, THE NEED FOR THE LITERATURE WOULD BE ELIMINATED. SEE 40 COMP. GEN. 132. WHERE, AS IN THIS CASE, YOUR LITERATURE SHOWED THE COMPRESSOR WITH THE RUNNING GEAR IN THE FRAME AS SPLASH LUBRICATED, IT WAS YOUR DUTY TO POINT OUT IN YOUR BID THAT YOU PROPOSED TO MODIFY THIS EQUIPMENT TO PROVIDE FOR A FORCED FEED SYSTEM AS REQUIRED BY THE SPECIFICATION. WHILE YOU WERE UNSUCCESSFUL, PRIOR TO THE BID OPENING DATE, IN YOUR EFFORTS TO HAVE THE SPECIFICATIONS AMENDED TO PERMIT SPLASH LUBRICATION THE FACT THAT YOU SUBMITTED A BID THEREAFTER WITHOUT STATING ANYTHING ABOUT MODIFYING YOUR EQUIPMENT TO PROVIDE FOR FORCED FEED LUBRICATION MAY NOT BE REGARDED AS BEING UNMISTAKABLY CLEAR THAT YOU PROPOSED TO FURNISH EQUIPMENT WITH THE REQUIRED LUBRICATION. THIS CIRCUMSTANCE MIGHT BE REGARDED AS OFFERING EQUIPMENT WITH SPLASH LUBRICATION IN THE HOPE THAT IF SUCH EQUIPMENT COMPLIED IN EVERY OTHER DETAIL THE CONTRACTING OFFICER MIGHT REGARD THIS SINGLE DEVIATION AS A MINOR MATTER.

WITH REGARD TO YOUR STATEMENT THAT JOY'S BID WAS MORE DEFICIENT THAN YOUR BID AS TO THE SUBMISSION OF DESCRIPTIVE LITERATURE. IT MERELY OFFERED A COMPRESSOR AS FURNISHED ON TWO CONTRACTS WITH THE "BUREAU OF SHIPS," THE FORMAL REPORT FURNISHED OUR OFFICE BY THE DEPARTMENT OF THE NAVY DID NOT CONTAIN A COPY OF JOY'S BID. HOWEVER, WE HAVE BEEN INFORMALLY ADVISED THAT JOY'S BID DID REFER TO ITS CONTRACTS WITH THE "BUREAU OF SHIPS" AND A CHECK WITH THOSE CONTRACTS DID REVEAL THAT THE COMPRESSORS THERETOFORE FURNISHED MET THE SPECIFICATIONS IN THIS CASE, BEING EQUIPPED WITH FORCED FEED LUBRICATION. SUCH CIRCUMSTANCES CONSTITUTE A WAIVER OF THE REQUIREMENTS FOR DESCRIPTIVE LITERATURE BUT IT DOES NOT OPERATE TO THE PREJUDICE OF OTHER BIDDERS OR THE GOVERNMENT, IF THE MATTER CAN BE READILY CHECKED. COMPARE PARAGRAPH 2 202.5 (E) OF THE ARMED SERVICES PROCUREMENT REGULATION.

WE FIND NO VALID BASIS FOR OBJECTING TO THE ACTION TAKEN IN AWARDING THE CONTRACT TO THE JOY MANUFACTURING COMPANY AND ACCORDINGLY, YOUR PROTEST IS DENIED.