TO FORTNER BROS.-MIDWEST CORPORATION: WE HAVE RECEIVED FROM THE OFFICE OF THE SECRETARY. AMONG THE ITEMS LISTED IN THE INVITATION WERE 15 RANGES. IT IS REPORTED THAT SIX BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THAT ONE BID WAS INCOMPLETE AND ANOTHER BID OFFERED DELIVERY "F.O.B. WAS THE NEXT LOWEST BUT. IT WAS FOUND THAT OF THE EQUIPMENT OFFERED A TOTAL OF 48 PIECES COMPRISED OF ONE MIXING MACHINE. WERE SUBMITTED BY THE CARSON HOTEL SUPPLY COMPANY. IT WAS ADMINISTRATIVELY DETERMINED THAT THE GOVERNMENT SHOULD NOT ENTER INTO NEGOTIATIONS WITH A VIEW TOWARD AWARDING THE CONTRACT ON A BASIS DIFFERENT FROM THE ADVERTISED SPECIFICATIONS. PROVIDED THAT "BIDS ON EQUIPMENT DIFFERING IN MINOR DETAIL FROM THE SPECIFICATIONS WILL BE CONSIDERED.
B-128794, SEP. 4, 1956
TO FORTNER BROS.-MIDWEST CORPORATION:
WE HAVE RECEIVED FROM THE OFFICE OF THE SECRETARY, DEPARTMENT OF THE INTERIOR, A REPORT ON YOUR PROTEST AGAINST AN AWARD OF A CONTRACT TO THE CARSON HOTEL SUPPLY COMPANY, DENVER COLORADO, PURSUANT TO INVITATION FOR BIDS NO. 14-20-603, WHICH REQUESTED BIDS ON 50 SCHEDULES OF KITCHEN EQUIPMENT FOR THE NAVAJO INDIAN SCHOOLS. AMONG THE ITEMS LISTED IN THE INVITATION WERE 15 RANGES, GAS OPERATED (FOR USE WITH LIQUID PETROLEUM, HIGH ALTITUDE GAS), DETROIT-MICHIGAN STOVE CO.'S GARLAND MODEL NO. 45-29 SPECTRO-HEAT HOT TOP "OR EQUAL; " 28 RANGES, GAS OPERATED (FOR USE WITH LIQUID PETROLEUM, HIGH ALTITUDE GAS), DETROIT-MICHIGAN STOVE CO.'S GARLAND MODEL NO. 47-29 - UNITHERN FRY TOP "OR EQUAL; " AND ONE MIXING MACHINE, ELECTRIC HOBART MANUFACTURING CO.'S MODEL NO. H-600 "OR EQUAL.'
IT IS REPORTED THAT SIX BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION; THAT ONE BID WAS INCOMPLETE AND ANOTHER BID OFFERED DELIVERY "F.O.B. GALLUP RAILHEAD, NOT INSTALLED," WHEREAS THE ADVERTISEMENT CALLED FOR KITCHEN EQUIPMENT, INSTALLED; THAT THE BID OF YOUR COMPANY, IN THE AMOUNT OF $76,075.36, WAS THE NEXT LOWEST BUT, UPON EXAMINATION, IT WAS FOUND THAT OF THE EQUIPMENT OFFERED A TOTAL OF 48 PIECES COMPRISED OF ONE MIXING MACHINE, FOUR DISHWASHING MACHINES AND 43 GAS RANGES, DID NOT MEET THE ADVERTISED SPECIFICATIONS; AND THAT THE REMAINING THREE BIDS, EACH OF WHICH OFFERED TO FURNISH AND INSTALL EQUIPMENT MEETING SPECIFICATIONS, WERE SUBMITTED BY THE CARSON HOTEL SUPPLY COMPANY, BIVINS AND COMPANY OF AMARILLO, TEXAS, AND THE GOFF-BALL HOTEL SUPPLY COMPANY OF ALBUQUERQUE, NEW MEXICO, IN THE RESPECTIVE TOTAL AMOUNTS OF $78,768.52, $84,496 AND $105,224.05.
THE ADMINISTRATIVE REPORT SETS FORTH THAT, AFTER THE OPENING OF BIDS, YOUR COMPANY INDICATED THAT IT WOULD BE WILLING TO CHANGE ITS BID BY OFFERING TO FURNISH THE EXACT MAKES AND MODELS DESCRIBED IN THE GOVERNMENT'S INVITATION FOR BIDS. HOWEVER, IT WAS ADMINISTRATIVELY DETERMINED THAT THE GOVERNMENT SHOULD NOT ENTER INTO NEGOTIATIONS WITH A VIEW TOWARD AWARDING THE CONTRACT ON A BASIS DIFFERENT FROM THE ADVERTISED SPECIFICATIONS. ALTHOUGH PARAGRAPH 2 (B) OF THE TECHNICAL REQUIREMENTS, PAGE 15 OF THE INVITATION, PROVIDED THAT "BIDS ON EQUIPMENT DIFFERING IN MINOR DETAIL FROM THE SPECIFICATIONS WILL BE CONSIDERED," IT HAS BEEN REPORTED THAT THE DEVIATIONS IN YOUR BID WITH RESPECT TO 44 OF THE 48 QUESTIONED ITEMS OF EQUIPMENT WERE CONSIDERED TO BE MAJOR FOR THE FOLLOWING REASONS:
"/1) THE MIXING MACHINE OFFERED BY FORTNER BROS.-MIDWEST CORPORATION WAS WITHOUT FIXED SPEEDS. IT IS IMPERATIVE, AS AN AID TO PERSONNEL PREPARING MEALS FOR INDIAN SCHOOL CHILDREN AND IN ORDER TO MEET ESTABLISHED COOKING SCHEDULES THAT MIXING EQUIPMENT HAVE POSITIVE SPEED SELECTION; OTHERWISE MIXING OPERATIONS WOULD BE STRICTLY GUESS WORK AND INCONSISTENCY IN PREPARATION WOULD RESULT. ALSO IT IS NOT BELIEVED ANY RECIPES OR MIXING INSTRUCTIONS MAY BE FOUND WHICH GIVE THE MIXING TIMES AND/OR SPEEDS BY RPM -S.
"/2) FIFTEEN OF THE RANGES OFFERED BY FORTNER BROS.-MIDWEST CORPORATION HAD 253 SQUARE INCHES LESS COOKING SPACE PER RANGE ON THE GRILL (30 3/16 BY 31 INCHES AS COMPARED WITH 33 1/2 BY 35 1/2 (; TWENTY EIGHT RANGES HAD 84 SQUARE INCHES LESS COOKING SURFACE TOP PER RANGE (32 BY 42 INCHES AS COMPARED WITH 34 BY 42) THAN SPECIFIED AND REQUIRED TO MEET COOKING SCHEDULES AND SERVE THE NUMBER OF PERSONS WITHIN THE TIME ALLOTTED FOR THIS PURPOSE. THE DUAL RINGBURNER OFFERED WOULD NOT ALLOW FOR THE FLEXIBILITY NEEDED IN OPERATION, AS WOULD THE SEVEN-BURNER, WITH A SEPARATE VALVE FOR EACH BURNER, WHICH WOULD ALSO FURNISH THE VARIATION OF HEAT REQUIRED. THE OVEN WITH ONLY TWO POSITIONS FOR RACKS REDUCES THE FUNCTIONAL OPERATION 33 1/3 PERCENT; THE THREE POSITIONS FOR RACKS ARE NECESSARY TO MEET FEEDING REQUIREMENTS. IN ADDITION, THE OVEN AFFORDED ONLY 10,080 CUBIC INCHES OF BAKING AREA AS AGAINST 13,464 CUBIC INCHES NEEDED (24 BY 28 BY 15 INCHES AS COMPARED WITH 25 1/2 BY 32 BY 16 1/2 INCHES).'
IT SEEMS APPARENT FROM THE FOREGOING THAT THE 43 RANGES AND THE MIXER WHICH YOU PROPOSED TO FURNISH COULD NOT HAVE BEEN CONSIDERED TO BE THE EQUAL OF THE MODELS OF EQUIPMENT DESCRIBED IN THE INVITATION FOR BIDS SO FAR AS THE PARTICULAR REQUIREMENTS OF THE GOVERNMENT IN THIS INSTANCE WERE CONCERNED. ALSO, THE ADVERTISED SPECIFICATIONS, IN PROVIDING THAT THE MIXING MACHINE SHOULD HAVE FOUR POSITIVE SPEEDS, THAT THE GAS RANGES SHOULD HAVE CERTAIN DIMENSIONS AND THAT 15 OF THE RANGES SHOULD BE EQUIPPED "WITH SEVEN INDIVIDUAL BURNERS, EACH CONTROLLED BY A SEPARATE VALVE," DO NOT APPEAR TO HAVE BEEN MORE RESTRICTIVE THAN NECESSARY TO MEET THE GOVERNMENT'S MINIMUM REQUIREMENTS.
IN THE CIRCUMSTANCES, AND SINCE WE HAVE CONSISTENTLY ADHERED TO THE PRINCIPLE THAT TO PERMIT A BIDDER TO CHANGE HIS BID AFTER OPENING MUST BE REGARDED AS ACTION IN CONTRAVENTION OF THE STATUTES GOVERNING THE LETTING OF PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS, YOU ARE ADVISED THAT WE WOULD NOT BE WARRANTED IN TAKING EXCEPTION TO THE AWARD MADE TO THE CARSON HOTEL SUPPLY COMPANY.