B-159555, SEP. 13, 1966

B-159555, SEP. 13, 1966

TO THE SECRETARY OF THE ARMY:

THIS REFERS TO THE PROTEST OF PROMPT ELECTRICAL SUPPLY COMPANY, INC., UNIONDALE, NEW YORK, AGAINST THE AWARD OF A CONTRACT TO WHITE PLAINS ELECTRICAL SUPPLY COMPANY, INC., ELMSFORD, NEW YORK, UNDER INVITATION FOR BIDS NO. CIVENG-20064-66-57, ISSUED BY THE CORPS OF ENGINEERS, DETROIT DISTRICT, WHICH MATTER WAS THE SUBJECT OF A REPORT(ENGGC-C) DATED AUGUST 9, 1966, FROM MR. E. MANNING SELTZER, GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY.

THE RECORD SHOWS THAT THE INVITATION WAS ISSUED MAY 26, 1966, COVERING THE PROCUREMENT OF POLE TOP BRACKETS, MERCURY VAPOR LUMINAIRES, AND MERCURY VAPOR LAMP BALLASTS FOR MODERNIZATION OF CERTAIN LIGHTING EQUIPMENT AT ST. MARYS FALLS CANAL, SAULT STE. MARIE, MICHIGAN. THE INVITATION, PROVIDING FOR AWARD TO BE MADE AS A WHOLE TO ONE BIDDER, WAS DIVIDED INTO FOUR SEPARATE ITEMS, THREE OF WHICH SPECIFIED THAT A BRAND NAME OR EQUAL PRODUCT WAS TO BE OFFERED.

BIDS WERE OPENED ON JUNE 7, 1966, AND PROMPT ELECTRICAL WAS THE LOW BIDDER WITH A BID OF $22,450, AND WHITE PLAINS WAS SECOND LOW WITH A BID OF $22,901.01. AWARD WAS MADE TO WHITE PLAINS JUNE 20, 1966,FOLLOWING THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIVENESS OF THE LOW BID. THIS DETERMINATION WAS BASED UPON THE MANNER IN WHICH PROMPT ELECTRICAL SUBMITTED ITS BIDS ON ITEM 2 AND ITEM 3.

ITEM 2 APPEARED IN THE INVITATION AS FOLLOWS:

"TWIN BRACKETS OR ARMS, SUITABLE FOR USE ON EXISTING LIGHT POLES AND IN ACCORDANCE WITH ATTACHED TECHNICAL AND SPECIAL PROVISIONS, SIMILAR OR EQUAL TO REVERE CAT. NO. 819-22 BIDDING ON: MANUFACTURER'S NAME---------- ----------------------------------- BRAND- ------------------------------- -------------------------- NO. -------- ----------------------------------

PROMPT ELECTRICAL FIRST BID $32.30 EACH FOR 12 TWIN BRACKETS, WITH A TOTAL BID OF $387.60. THIS WAS COMPARABLE TO THE BIDS OF THE OTHER BIDDERS FOR THE SAME ITEM. PROMPT ELECTRICAL LATER MODIFIED THIS BID BY TELEGRAM PRIOR TO OPENING BY OFFERING THE ITEM FOR $29.25, OR A TOTAL OF $351. IT DID NOT GIVE A DESCRIPTION OF THE ITEM IT WAS BIDDING ON, BUT DID INSERT,"REVERE NO. 2620-400 G W/2600-6 SHIELD," BENEATH THE MAIN DESCRIPTIVE PARAGRAPH OF ITEM 2 BUT ABOVE THE SECTION REQUESTING THE MANUFACTURER'S NAME, BRAND OR NUMBER.

THE DESCRIPTION OF ITEM NO. 3 IN THE INVITATION SCHEDULE IS AS FOLLOWS:

"LUMINAIRE, END-MOUNTED, SUITABLE FOR USE WITH A 400 WATT MERCURY VAPOR CLEAR OR COLOR CORRECTED LAMP, IN ACCORDANCE WITH ATTACHED SPECIAL AND TECHNICAL PROVISIONS, SIMILAR OR EQUAL TO REVERE ENDOVAL 2600 SERIES; LINE MATERIAL INDUSTRIES LINE 2A2 SERIES; OR G.E. TYPE 400 SERIES BIDDING ON: MANUFACTURER'S NAME--------------------------- ----------------- BRAND---- -------------------------------------------- ---------- NO. --------------

NOTE: LUMINAIRE UNIT PRICE SHALL BE COMPLETE INCLUDING GLARE SHIELD.'

PROMPT ELECTRICAL INSERTED "REVERE" FOR THE MANUFACTURER'S NAME AND "AS SPECIFIED" FOR THE NUMBER. THEIR ORIGINAL AND ONLY BID FOR ITEM NO. 3 WAS $60 EACH, WITH A TOTAL BID FOR 173 UNITS AMOUNTING TO $10,380. THIS WAS COMPARABLE TO THE BIDS OF THE OTHER BIDDERS FOR THE SAME ITEM.

IN THE ADMINISTRATIVE REPORT SUBMITTED TO OUR OFFICE THE DISTRICT ENGINEER STATED:

"5. INASMUCH AS THE IDENTIFICATION BY PROMPT ELECTRICAL FOR ITEM NO. 2 WAS NOT PERTINENT TO THE DESCRIBED ITEM, AND COULD ONLY HAVE APPLIED TO ITEM NO. 3, IT WAS IMPOSSIBLE TO DETERMINE FROM THE BID ITSELF, WHAT PROMPT ELECTRICAL WAS PROPOSING TO FURNISH AS TWIN BRACKETS OR ARMS UNDER ITEM NO. 2; THAT THE BID WAS THEREFORE PATENTLY AMBIGUOUS BECAUSE OF OBSCURITY AND NON-RESPONSIVE TO THE INVITATION. ACCORDINGLY, SINCE AWARD WAS TO BE MADE AS A WHOLE TO ONE BIDDER, REJECTION OF THE ENTIRE BID WAS REQUIRED. PROMPT ELECTRICAL WAS NOTIFIED OF SUCH REJECTION BY LETTER DATED JUNE 17, 1966.'

PARAGRAPH 6B OF THE INVITATION'S ADDITIONAL TERMS AND CONDITIONS PROVIDED:

"UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN "EQUAL" PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS.'

THE ISSUE HERE IS WHETHER OR NOT THE BID SUBMITTED BY PROMPT ELECTRICAL FOR ITEM 2 WAS OBSCURE OR AMBIGUOUS. SINCE THE PHRASE "REVERE NO. 2620 G W/2600-6 SHIELD," PLACED IN THE ITEM 2 PART OF THE INVITATION, CLEARLY APPLIED TO ITEM 3, THE BID FOR ITEM 2 WAS, UNDER THE ABOVE-QUOTED PARAGRAPH 6B, FOR THE BRAND NAME AS REFERENCED IN THE INVITATION. ACCEPTANCE BY THE GOVERNMENT OF THE PROMPT ELECTRICAL BID AS TENDERED WOULD HAVE LEFT NO ROOM FOR DISPUTE AND DOUBT AS TO THE TERMS OF THE CONTRACT CREATED BY THE OFFER AND ACCEPTANCE, OR AS TO WHETHER THERE HAD BEEN A MEETING OF THE MINDS OF THE PARTIES.

CONCEDEDLY, QUESTIONS OF AMBIGUITY IN A BID MUST BE DETERMINED BY THE FACTS AND CIRCUMSTANCES IN EACH PARTICULAR CASE. HERE, BECAUSE OF THE INVITATION'S PROVISION 6B IT WOULD APPEAR THE THE CONTRACTING OFFICER'S DETERMINATION OF AMBIGUITY WAS ERRONEOUS.

HOWEVER, SINCE THE CONTRACT PRESUMABLY HAS ALREADY BEEN PERFORMED NO FURTHER ACTION WILL BE TAKEN ON THE MATTER BY THIS OFFICE.