B-153575, APR. 1, 1964

B-153575, APR. 1, 1964

TO MR. CLYDE C. COOK:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1964 (FILE REFERENCE 074B), WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY G. A. BRAUN, C., TO HAVE BEEN MADE IN ITS BID OPENED ON NOVEMBER 27, 1963.

BY INVITATION NO. M3-55-64 THE VETERANS ADMINISTRATION SUPPLY DEPOT, HINES, ILLINOIS, REQUESTED BIDS FOR FURNISHING ONE COMMERCIAL TYPE OF WASHER-EXTRACTOR COMBINATION FOR DELIVERY TO THE VETERANS ADMINISTRATION CENTER, FARGO, NORTH DAKOTA, ITEM 1. PARAGRAPHS 33 AND 34 (A) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDE AS FOLLOWS:

"33. SPECIAL REQUIREMENTS: (FOR ALL WASHER-EXTRACTOR COMBINATIONS)

"/A) BIDDER IS REQUIRED TO INCLUDE WITH HIS BID, PLANS AND SPECIFICATIONS FOR THE FOUNDATION REQUIREMENTS TO ADEQUATELY AND SAFELY SUPPORT AND OPERATE THE EQUIPMENT HE PROPOSED TO FURNISH. THESE PLANS AND SPECIFICATIONS SHALL BE COMPLETELY APPLICABLE TO THE LOCATION WHERE EQUIPMENT IS TO BE INSTALLED. BIDDER IS RESPONSIBLE FOR MAKING AN ON-SITE INSPECTION OF THE BUILDING STRUCTURE AND PARTICULAR EQUIPMENT INSTALLATION AREA.

"/B) THE SUCCESSFUL BIDDER GUARANTEES THE FOUNDATION OR OTHER SUPPORT AGAINST DEFECTS AND FAILURE CAUSED BY THE EQUIPMENT AFTER IT HAS BEEN INSTALLED IN COMPLETE ACCORD WITH HIS PLANS AND SPECIFICATIONS. THIS GUARANTEE WILL COVER A PERIOD OF 1 YEAR AFTER INSTALLATION. BIDDER WILL TAKE IMMEDIATE ACTION UPON REQUEST BY THE VETERANS ADMINISTRATION CONTRACTING OFFICER, TO CORRECT AT HIS OWN EXPENSE ALL DEFECTS CAUSED BY HIS EQUIPMENT.

"/C) BIDS SUBMITTED, WITHOUT THE PLANS AND SPECIFICATIONS CALLED FOR ABOVE, WILL BE REJECTED AS NOT RESPONDING TO THE IFB.

"34. SPECIAL CONDITIONS: (WASHER-EXTRACTOR COMBINATIONS)

"/A) THE VETERANS ADMINISTRATION RESERVES THE RIGHT TO CONSIDER THE ESTIMATED COST OF CONSTRUCTING ADEQUATE FOUNDATIONS IN DETERMINING AWARD OF EQUIPMENT CONTRACTS. THE PLANS AND SPECIFICATIONS SUBMITTED IN THE BIDS WILL BE USED TO DETERMINE THE ESTIMATED COST. THE STRUCTURAL CHANGES, TO GOVERNMENT PROPERTY, REQUIRED BY PLANS AND SPECIFICATIONS FOR FOUNDATION CONSTRUCTION, WILL NOT BE ACCEPTED UNTIL APPROVED BY THE V.A. DM AND S ENGINEERING SERVICE. THESE PLANS AND SPECIFICATIONS WILL BE GUARANTEED BY THE BIDDER PER TERMS AND CONDITIONS PARAGRAPH 33 (B).'

THE RECORD SHOWS THAT ON THE FARGO, NORTH DAKOTA, INSTALLATION (ITEM 1) G. A. BRAUN, INC., SUBMITTED A PRICE OF $9,985 LESS 1 PERCENT- - TWENTY DAYS. THE OTHER THREE BIDS RECEIVED QUOTED PRICES OF $11,276 NET, $11,350 NET AND $11,905 LESS 2 PERCENT--- TEN DAYS, 1 PERCENT--- TWENTY DAYS.

ON THE BASIS OF THE PLANS AND SPECIFICATIONS FOR FOUNDATION REQUIREMENTS SUBMITTED BY G. A. BRAUN, INC., WITH ITS BID, THE INSTALLATION COST WAS ESTIMATED AT $2,803. THE INSTALLATION COSTS INVOLVED UNDER THE OTHER THREE BIDS WERE $17.56, $44.33 AND $33.46, RESPECTIVELY. AFTER ADDING THE INSTALLATION COSTS TO THE BID PRICES, G. A. BRAUN, INC., IS NOT THE LOW EVALUATED BIDDER IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 34 (SUPRA).

ON JANUARY 13, 1964, THE CONTRACTING OFFICER SPOKE TO MR. WERNER OF G. A. BRAUN, INC., CONCERNING THE FIRM'S BIDS FOR WASHER-EXTRACTOR INSTALLATIONS AND ASKED FOR AN EXPLANATION OF WHY FOUNDATION CHANGES SEEM TO VARY SO MUCH FROM ONE INSTALLATION TO ANOTHER. IT WAS MENTIONED THAT IN SOME CASES NO CHANGES WERE INDICATED FOR RIGID MOUNTED MACHINES AND IN OTHER CASES EXTENSIVE CHANGES WERE REQUIRED FOR THE SAME RIGID MOUNTED MACHINES. FARGO, NORTH DAKOTA (THE SITE HERE INVOLVED) AND MOUNTAIN HOME, TENNESSEE, WERE CITED AS TWO EXTREMES. MR. WERNER ADVISED THAT NO MORE CHANGES WERE NEEDED AT FARGO, NORTH DAKOTA, THAN WERE REQUIRED AT MOUNTAIN HOME, TENNESSEE. UPON BEING ADVISED THAT THE PLANS AND SPECIFICATIONS SUBMITTED WITH THEIR BID FOR FARGO, NORTH DAKOTA, REQUIRED EXTENSIVE CHANGES, MR. WERNER REPLIED,"OH YES, THAT'S THE DRAWING WE SENT IN ERROR, WE WANT TO CORRECT THAT.'

BY LETTER DATED JANUARY 14, 1964, G. A. BRAUN, INC., SUBMITTED A REVISED DRAWING AND REQUESTED THAT IT BE SUBSTITUTED FOR THE DRAWING SUBMITTED WITH ITS BID. IF SUCH SUBSTITUTION IS PERMITTED, G. A. BRAUN, INC., WOULD THEN BECOME THE LOW EVALUATED BIDDER AND DISPLACE THE APPARENT LOW EVALUATED BIDDER ON THE BASIS OF THE BIDS AS THEY EXISTED AT THE TIME OF THE BID OPENING.

THE QUESTION PRESENTED IS WHETHER G. A. BRAUN, INC., MAY BE PERMITTED TO SUBSTITUTE THE REVISED DRAWING AFTER THE OPENING OF THE BIDS. IF THE DRAWINGS COULD BE CONSIDERED ONLY AS A RECOMMENDED METHOD OF INSTALLATION THERE WOULD BE NO PROHIBITION AGAINST THE SUBSTITUTION. IN SUCH A CASE THE GOVERNMENT ITSELF COULD DECIDE WHAT WOULD CONSTITUTE AN ADEQUATE INSTALLATION AND ADD THE COST THEREOF TO THE BID PRICES IN DETERMINING THE LOW EVALUATED BIDDER. HOWEVER, PARAGRAPH 33 (A) OF THE TERMS AND CONDITIONS OF THE INVITATIONS, QUOTED ABOVE, REQUIRES BIDDERS TO SUBMIT WITH THEIR BIDS PLANS AND SPECIFICATIONS FOR THE FOUNDATION REQUIREMENTS TO ADEQUATELY AND SAFELY SUPPORT AND OPERATE THE EQUIPMENT THEY PROPOSE TO FURNISH AND THE GUARANTEE PROVIDED IN PARAGRAPH 33 (B) IS APPLICABLE ONLY IF THE EQUIPMENT IS INSTALLED IN COMPLETE ACCORD WITH SUCH PLANS AND SPECIFICATIONS. THUS THE PLANS AND SPECIFICATIONS FOR FOUNDATION REQUIREMENTS MUST BE CONSIDERED AN ESSENTIAL AND MATERIAL PART OF THE BID. IT IS REPORTED THAT INSTALLATION COSTS FOR VARIOUS TYPES OF MACHINES VARY SUBSTANTIALLY AND IT IS NOTED THAT IN THE HEREINAFTER REFERRED TO BATH, NEW YORK INSTALLATION, THE COSTS OF THE OTHER TWO BIDDERS WERE LESS THAN $2,000, WHEREAS THE INSTALLATION COSTS OF G. A. BRAUN, INC., WERE ALMOST $5,000.

IN A SOMEWHAT SIMILAR CASE CONSIDERED IN OUR DECISION OF JULY 11, 1963, B -151240, INVOLVING THREE OF THE SAME BIDDERS AND THE SAME TYPE OF EQUIPMENT TO BE INSTALLED IN THE VETERANS ADMINISTRATION HOSPITAL AT BATH, NEW YORK, THE LOW EVALUATED BIDDER'S PLANS AND SPECIFICATIONS PROVIDED FOR AN 18-INCH FOUNDATION, HOWEVER, THE GOVERNMENT DETERMINED THAT THE FOUNDATION SHOULD BE 45-INCHES AND THE ADDITIONAL COST WAS INCLUDED IN THE EVALUATION OF THE BID. G. A. BRAUN, C., THE SECOND LOW EVALUATED BIDDER, PROTESTED THE AWARD TO THE LOW EVALUATED BIDDER ON THE BASIS THAT THE FOUNDATION PLANS AND SPECIFICATIONS WERE CHANGED AFTER THE OPENING OF THE BIDS. IN DENYING THE PROTEST IT WAS STATED, IN PART, AS FOLLOWS:

"THUS, THE CHANGE IN FOUNDATION DEPTH DID NOT AFFECT THE RELATIVE STANDINGS OF THE BIDDERS. NEITHER WAS THIS RE-EVALUATION PREJUDICIAL TO OTHER BIDDERS. EDRO'S BID AS SUBMITTED PROVIDED FOR AN 18 INCH FOUNDATION AND ITS OBLIGATIONS UNDER PARAGRAPH 27 AND SPECIAL CONDITION (A) OF THE INVITATION WERE FIXED AND DETERMINED BY THE PLANS AND SPECIFICATIONS FOR AN 18-INCH FOUNDATION. THESE OBLIGATIONS WERE NOT ALTERED BY THE GOVERNMENT-INITIATED CHANGE TO 45 INCHES SINCE ANY ADDITIONAL COSTS COULD NOT BE ASSESSED AGAINST EDRO WHICH HAD GUARANTEED AN 18-INCH FOUNDATION ONLY. IN OTHER WORDS, THE EXERCISE OF THE RIGHT OF THE GOVERNMENT TO ASSURE AN ADEQUATE FOUNDATION FOR THE EQUIPMENT WAS NOT A MODIFICATION OR CHANGE AFFECTING PRICE, QUANTITY OR QUALITY OF THE EQUIPMENT OFFERED TO THE GOVERNMENT. 37 COMP. GEN. 763. THE RECORD IS CLEAR THAT THIS CHANGE WAS NOT INITIATED BY EDROBUT RATHER BY THE GOVERNMENT. IT IS TO BE NOTED THAT PARAGRAPH (A) OF THE SPECIAL CONDITIONS, SUPRA, PROVIDED THAT THE FOUNDATION PLANS AND SPECIFICATIONS WOULD BE USED TO DETERMINE ESTIMATED COSTS, BUT DID NOT PRECLUDE THE GOVERNMENT FROM MODIFYING SUCH PLANS AND SPECIFICATIONS TO MEET ITS SPECIAL REQUIREMENTS. THE ONLY EFFECT OF SUCH MODIFICATIONS WAS TO CHANGE THE ESTIMATED CONSTRUCTION COSTS TO BE ADDED TO THE COST OF THE EQUIPMENT TO DETERMINE THE LOWEST ULTIMATE COST TO THE GOVERNMENT.'

IN THE INSTANT CASE, HOWEVER, THE BID OF G. A. BRAUN, INC., AS SUBMITTED, WAS NOT THE LOWEST EVALUATED BID. FURTHERMORE, IF THE EQUIPMENT WERE INSTALLED IN A MANNER NOT EQUAL TO THAT SHOWN IN THE PLANS AND THE SPECIFICATIONS SUBMITTED WITH THE BID, THE BIDDER COULD NOT BE HELD TO ITS GUARANTEE. WE HAVE CONSISTENTLY HELD THAT A BID MAY NOT BE CORRECTED ON ACCOUNT OF AN ERROR ALLEGED AFTER THE OPENING OF THE BIDS WHEN SUCH CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE ACCEPTABLE BIDS, UNLESS THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND BID ITSELF. SEE 37 COMP. GEN. 210; 41 ID 469; SECTION 1.2-406-3 (A) (2) OF THE FEDERAL PROCUREMENT REGULATIONS.

IT MIGHT BE ARGUED THAT SINCE THE PLANS AND SPECIFICATIONS WHICH G. A. BRAUN, INC., SUBMITTED WITH ITS BID WERE GENERAL IN NATURE AND SHOWED A TYPICAL INSTALLATION, IT IS OBVIOUS THAT THEY WERE NOT INTENDED FOR THE SPECIFIC INSTALLATION HERE INVOLVED. HOWEVER, EVEN CONCEDING SUCH ARGUMENT THERE IS NOTHING IN THE BID ITSELF WHICH SHOWS THE TYPE OF FOUNDATION THE BIDDER WOULD REQUIRE BEFORE HE WOULD BE WILLING TO GUARANTEE IT AND THE GOVERNMENT MAY NOT MAKE THIS DETERMINATION FOR HIM. FURTHERMORE, IF IT WERE TO BE CONCEDED THAT THE PLANS AND SPECIFICATIONS SUBMITTED WITH THE BID WERE OBVIOUSLY NOT APPLICABLE TO THE INSTALLATION HERE INVOLVED, THE BID WOULD NOT BE RESPONSIVE TO ESSENTIAL AND SPECIFIC REQUIREMENTS OF THE INVITATION. IN THIS CONNECTION IT HAS BEEN HELD THAT AN UNRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED AFTER THE OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. SEE 38 COMP. GEN. 819.

FOR THE FOREGOING REASONS YOU ARE ADVISED THAT G. A. BRAUN, INC., MAY NOT BE PERMITTED TO SUBSTITUTE THE REVISED PLANS AND SPECIFICATIONS FOR THE FOUNDATION FOR THOSE SUBMITTED WITH ITS BID.