B-154649, DEC. 14, 1964

B-154649, DEC. 14, 1964

TO WORTHINGTON CORPORATION:

WE REFER TO YOUR RECENT CORRESPONDENCE PROTESTING AWARD OF A CONTRACT UNDER PROCUREMENT REQUEST 622B-41807).2 (Q) (STEP 1) AND INVITATION FOR BIDS NO. 600-1103-64'S (STEP 2).

THE SUBJECT REQUEST ISSUED BY THE DEPARTMENT OF THE NAVY, BUREAU OF SHIPS, ON APRIL 3, 1964, INVITED UNPRICED TECHNICAL PROPOSALS FOR SPECIFIED QUANTITIES OF AIR COMPRESSORS WITH MOTORS AND CONTROLLERS, REPAIR PARTS, AND RELATED DRAWINGS AND DATA, IN ACCORDANCE WITH BUREAU OF SHIPS SPECIFICATIONS SHIPS-C-4597, DATED OCTOBER 28, 1963, EXCEPT AS MODIFIED. OF THE FOUR PROPOSALS RECEIVED, THREE WERE FOUND TECHNICALLY ACCEPTABLE. HOWEVER, PRIOR TO ISSUING THE SUBJECT IFB (STEP 2) CERTAIN MINOR CHANGES WERE MADE TO THE SPECIFICATIONS. IT IS REPORTED THAT THE CHANGES WERE ACCEPTABLE TO THE THREE ELIGIBLE BIDDERS. ON THE BASIS OF ITS LOW BID, AWARD WAS MADE TO CLARK BROTHERS COMPANY ON JUNE 27, 1964.

BASICALLY YOU CONTEND THAT CLARK'S PROPOSAL SHOULD NOT HAVE BEEN ACCEPTED SINCE THE DRAWINGS FURNISHED SHOWED THAT CLARK INTENDED TO FURNISH A COMPRESSOR WHICH EXCEEDED THE PHYSICAL DIMENSIONS SPECIFIED IN THE SOLICITATION. WHILE THE NAVY AGREES THAT THE DRAWINGS DID INDICATE A SLIGHT DEVIATION IT WAS FELT THAT THE PROPOSAL WAS TECHNICALLY ACCEPTABLE SINCE THE VARIOUS COMPONENT ITEMS COULD BE SIMPLY RELOCATED ON THE COMPRESSOR UNIT TO BRING THEM WITHIN THE SPACE LIMITATIONS. INSOFAR AS CLARK'S EXCEPTIONS TO THE SPECIFICATIONS WERE CONCERNED, THE NAVY REPORTS AS FOLLOWS:

"THE THREE EXCEPTIONS TO THE SPECIFICATIONS WHICH CLARK BROS DOES ENUMERATE ARE ACCEPTABLE, AS FOLLOWS:

"A. OPERATION IN SURGE FOR FIVE MINUTES OR A FAIL SAFE ANTISURGE DEVICE. THE SPECIFICATIONS OF THE INVITATION WERE CHANGED TO MAKE CLARK BROS. CO.'S EXCEPTION ACCEPTABLE. ALL BIDDERS WERE NOTIFIED AND THESE WERE INCLUDED IN THE INVITATION FOR BIDS, STEP 2.

"B. STRAIGHT MOTOR SLOTS IN LIEU OF SKEWED SLOTS. THIS IS SATISFACTORY AND ACTUALLY NOT AN EXCEPTION SINCE THE SKEWED SLOT REQUIREMENT IS NOT APPLICABLE FOR THIS SIZE MOTOR.

"C. CLASS F VERSUS CLASS B MOTOR INSULATION. CLASS F INSULATION WHICH THEY PROPOSE TO FURNISH IS BETTER THAN THE SPECIFIED CLASS B INSULATION AND CONSEQUENTLY IS AN EXCEPTION TO THE SPECIFICATION.'

IN YOUR CORRESPONDENCE OF OCTOBER 22, 1964, YOU QUESTION WHETHER IT IS PROPER TO NOW ALLOW CLARK TO SUBSTITUTE A MOTOR AND GEAR DIFFERENT FROM THAT WHICH WAS EVALUATED UNDER STEP 1 UNLESS THE SUBSTITUTE WAS ORIGINALLY OFFERED AS AN ALTERNATE. THIS CONCLUSION IS PREDICATED UPON THE ASSUMPTION THAT CLARK HAD ORIGINALLY COMMITTED ITSELF TO FURNISH A MOTOR IDENTICAL TO THAT FURNISHED UNDER THEIR FORMER CONTRACT. CONTRARY TO THIS CONCLUSION, THE NAVY REPORTS THAT CLARK'S TECHNICAL PROPOSAL SHOWED A PRELIMINARY DESIGN WITH RESPECT TO THE MOTOR THAT WAS DIFFERENT FROM THE MOTOR FURNISHED UNDER CONTRACT NOBS 88189. IT IS ALSO REPORTED THAT OFFERORS WERE NOT REQUIRED TO SPECIFY A GIVEN MAKE OF MOTOR BUT WERE ONLY REQUIRED TO SUBMIT GENERAL MOTOR INFORMATION AND CERTAIN MOTOR PERFORMANCE REQUIREMENTS. REGARDLESS OF WHETHER THE INFORMATION WAS AS COMPLETE AS IT SHOULD HAVE BEEN THE FACT REMAINS THAT THE PROCURING ACTIVITY FELT THAT IT WAS SUFFICIENT. WHILE IT IS TRUE THAT CLARK REFERRED TO THE EQUIPMENT FURNISHED UNDER ITS PRIOR CONTRACT, EXAMINATION OF ITS PROPOSAL SHOWS THAT CLARK REPRESENTED ONLY THAT THE PROPOSED EQUIPMENT WAS SIMILAR TO THAT FURNISHED UNDER CONTRACT NOBS 88189. THROUGHOUT THE PROPOSAL HOWEVER THERE IS CLEARLY INDICATED AN INTENT TO FURNISH EQUIPMENT THAT MEETS SPECIFICATIONS, EXCEPT AS NOTED OTHERWISE.

UNLIKE THE SITUATION UNDER FORMAL ADVERTISING, AFTER SUBMISSION OF A PROPOSAL UNDER "PART 1" OF A "TWO STEP PROCUREMENT," THE GOVERNMENT IS FREE TO DISCUSS AN OTHERWISE UNACCEPTABLE PROPOSAL WITH THE OFFEROR IF CLARIFICATION OR ADDITIONAL INFORMATION COULD BRING THE PROPOSAL TO AN ACCEPTABLE STATUS. ASPR 2-503.1 (C). THEREFORE THERE IS NO QUESTION BUT THAT THE CONTRACTING OFFICER COULD HAVE ALLOWED CLARK TO CLARIFY ITS PROPOSAL. HOWEVER, RATHER THAN FOLLOW THE PROCEDURE ESTABLISHED IN THE ASPR THE CONTRACTING OFFICER UNILATERALLY CONCLUDED THAT THE PROPOSAL COULD BE EASILY MODIFIED AND THAT IT WAS THEREFORE TECHNICALLY QUALIFIED. ALTHOUGH THE ACTIONS OF THE CONTRACTING OFFICER ARE SUBJECT TO CRITICISM, THE FACT REMAINS THAT CLARK--- HAD IT BEEN GIVEN THE OPPORTUNITY--- COULD HAVE EASILY CLARIFIED ITS PROPOSAL. SEE B-152261, SEPTEMBER 12, 1963, 43 COMP. GEN. 255; B 153195, FEBRUARY 6, 1964.

CONSEQUENTLY, SINCE THERE IS NO QUESTION BUT THAT CLARK WILL FURNISH A COMPRESSOR THAT IS IN FULL ACCORD WITH THE GOVERNMENT'S SPECIFICATIONS, THE FACT THAT CLARIFICATION WAS NOT REQUESTED WILL NOT INVALIDATE AN OTHERWISE VALID AWARD. MOREOVER, CANCELLATION AT THIS LATE DATE WOULD SUBJECT THE GOVERNMENT TO SUBSTANTIAL LIABILITY.