B-165404, DEC. 9, 1968

B-165404, DEC. 9, 1968

TO TRADERS DISTRIBUTING CO., LIMITED:

WE REFER TO A LETTER DATED OCTOBER 7, 1968, PROTESTING AGAINST THE AWARD TO ANOTHER COMPANY OF A CONTRACT UNDER INVITATION FOR BIDS NO. 0953-69, ISSUED BY THE 14TH COAST GUARD DISTRICT, HONOLULU, HAWAII, FOR ONE AIR- COOLED CONDENSER, HORIZONTAL, IN ACCORDANCE WITH "ATTACHED SPECIFICATION.'

THE INVITATION WAS ISSUED ON SEPTEMBER 4, 1968, AND FOUR BIDS WERE RECEIVED AND OPENED ON SEPTEMBER 23, 1968. THE LOW BIDDER WAS DETERMINED TO BE NONRESPONSIVE AND ON SEPTEMBER 26, 1968, THE COAST GUARD'S CIVIL ENGINEERING BRANCH RECOMMENDED THAT AWARD BE MADE TO THE SECOND LOW BIDDER, AMERICAN EQUIPMENT COMPANY, INC. BY LETTER DATED SEPTEMBER 25, 1968, YOU LODGED A PROTEST AS THE THIRD LOW BIDDER WITH THE COMMANDER, 14TH COAST GUARD DISTRICT, AGAINST ANY AWARD TO AMERICAN. THE PROTEST WAS REVIEWED AND IT WAS DETERMINED THAT AMERICAN WAS NONRESPONSIVE TO THE ADVERTISED SPECIFICATIONS. AWARD WAS MADE TO THE HIGHEST BIDDER, OAHU AIR CONDITIONING COMPANY (OAHU), AS THE LOWEST RESPONSIVE BIDDER ON SEPTEMBER 30, 1968. YOU PROTEST SUCH AWARD ON THE BASIS THAT YOUR FIRM WAS THE LOWEST RESPONSIVE BIDDER.

THE CONDENSER, AS SPECIFIED IN THE INVITATION, WAS TO BE EQUIPPED WITH A COIL OF ,EXTENDED-SURFACE FIN-AND-TUBE TYPE CONSTRUCTED WITH COPPER TUBES AND COPPER FINS, ELECTROPLATED TIN COATED.' THE CASING OF THE UNIT WAS TO BE "CONSTRUCTED OF HEAVY GAUGE, DOUBLE WEIGHT GALVANIZED STEEL, EPOXY COATED TO PREVENT RUST AND CORROSION.' AS STATED IN THE STATEMENT AND CERTIFICATE OF AWARD DATED SEPTEMBER 30, YOUR FIRM WAS DETERMINED TO BE NONRESPONSIVE BECAUSE OF YOUR FAILURE TO OFFER THE REQUIRED COPPER FINS AND TUBES WITH ELECTROPLATED TIN COATING AND THE SPECIFIED GALVANIZED STEEL WITH EPOXY COATED CASING. IT IS NOTED THAT THE OTHER TWO LOWER BIDDERS WHO WERE DETERMINED TO BE NONRESPONSIVE ALSO FAILED TO MEET THE SPECIFICATIONS IN ONE OR BOTH OF THESE REQUIREMENTS.

THE INVITATION REQUIRED BIDDERS TO STATE THE MANUFACTURER, MODEL NUMBER AND OTHER PERTINENT DATA CONCERNING EQUIPMENT OFFERED, AND TO ENCLOSE BROCHURES OF THE MODEL. YOUR FIRM OFFERED A CONDENSER MANUFACTURED BY THE BOHN ALUMINUM AND BRASS COMPANY. YOU ATTACHED TO YOUR BID A BROCHURE ISSUED BY BOHN WHICH DESCRIBED ITS UNIT'S COIL AS BEING MADE OF "SEAMLESS COPPER TUBES WITH PLATE TYPE, DIE FORMED ALUMINUM FINS.' THIS LITERATURE DESCRIBED THE CONDENSER'S CASING IN PART AS FOLLOWS: "CASING IS CONSTRUCTED OF 12 GAUGE ).080) CORROSION RESISTANT ALUMINUM * * *.'

IT IS THEREFORE APPARENT THAT BOHN'S BROCHURE DID NOT DESCRIBE THE CONDENSER WHICH THE COAST GUARD ADVERTISED FOR BIDS.

HOWEVER, YOUR FIRM INCLUDED A COVERING LETTER WITH YOUR BID AS FOLLOWS: "WITH REFERENCE TO THE ABOVE SOLICITATION, WE PROPOSE TO FURNISH A BOHN MODEL 100 RVD AIR COOLED CONDENSER. "THE ATTACHED MANUFACTURER'S CATALOG DESCRIBES THIS ITEM IN DETAIL AS WELL AS PROVIDING THE PERFORMANCE AND CAPACITY DATA. "THE UNIT WILL BE PROVIDED WITH COPPER TUBES AND COPPER FINS IN THE COIL AND WILL ALSO BE COATED WITH EPOXY AS SPECIFIED.'

TO THE EXTENT THIS LETTER CHANGES OR ADDS TO THE BROCHURE AND THE BID FORM, IT MUST BE REGARDED AS AN EFFECTIVE MODIFICATION AND MUST BE ACCORDED CONTROLLING SIGNIFICANCE WHERE THERE IS CONFLICT. SEE 40 COMP. GEN. 432, 435 (1961).

NEVERTHELESS, WE DO NOT REGARD THE CONDENSER PRODUCT OFFERED BY YOUR FIRM, EVEN AS MODIFIED, AS MEETING THE ADVERTISED SPECIFICATIONS. FOR INSTANCE, YOUR COVER LETTER WAS SILENT AS TO THE MATERIAL TO BE USED FOR THE CASING; HOWEVER, BOHN'S BROCHURE DESCRIBED THE CASING AS ALUMINUM. THE ONLY REASONABLE CONCLUSION TO BE DRAWN FROM THE FOREGOING WAS THAT YOUR FIRM INTENDED TO SUPPLY A UNIT WITH ALUMINUM CASING. THE SPECIFICATIONS REQUIRED THE CASING TO BE OF GALVANIZED STEEL, HEAVY GAUGE AND DOUBLE WEIGHT. SIMILARLY, THE LETTER MODIFIED THE BROCHURE BY CHANGING THE OFFER OF ALUMINUM COIL FINS TO THE REQUIRED COPPER FINS. BUT BOTH THE BROCHURE AND THE LETTER ARE SILENT AS TO WHETHER THE TUBES AND FINS WERE TO BE "ELECTROPLATED TIN COATED," AS REQUIRED BY THE INVITATION.

YOUR BID DID NOT OFFER A CONDENSER MEETING THE GOVERNMENT'S SPECIFICATIONS. WE HELD IN OUR DECISION B-152363, OCTOBER 28, 1963, AS FOLLOWS: "* * * THUS, WHERE IT IS SHOWN THAT AN ARTICLE OFFERED BY A BIDDER FAILS TO MEET THE SPECIFICATIONS IN SOME SPECIFIC RESPECT, A DETERMINATION THAT SUCH BID SHOULD BE REJECTED WOULD NOT BE QUESTIONED BY OUR OFFICE UNLESS THE FAILURE TO MEET SPECIFICATIONS RELATES TO A TRIVIAL OR IMMATERIAL REQUIREMENT. HERE, HOWEVER, THE ADMINISTRATIVE AGENCY WHICH NEEDED THE EQUIPMENT REPORTS THAT THE REQUIREMENTS AS TO THE PREAMPLIFIER AND LOUDSPEAKER ARE ESSENTIAL IN ORDER TO MEET ITS NEEDS. THIS IS A MATTER WHICH IS FOR DETERMINATION BY EXPERTS QUALIFIED IN THIS PARTICULAR FIELD. WE HAVE HELD THAT WHERE IT APPEARS THAT AN ADMINISTRATIVE AGENCY HAS MADE A BONA FIDE DETERMINATION OF ITS NEED FOR EQUIPMENT CONFORMING TO CERTAIN SPECIFICATIONS WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF SUCH AGENCY. * * *"

IN THE PRESENT CASE, THE PROCUREMENT AGENCY DETERMINED THAT THE DEFICIENCIES IN YOUR BID WERE CONSIDERED TO BE MATERIAL DEVIATIONS FROM THE ADVERTISED SPECIFICATIONS. SINCE WE ARE REQUIRED TO GIVE GREAT WEIGHT TO SUCH A TECHNICAL FINDING OF THE GOVERNMENT'S NEEDS, WE FIND NO LEGAL BASIS TO DISTURB THE AWARD MADE TO THE OAHU COMPANY. ACCORDINGLY, YOUR PROTEST IS DENIED.