B-127372, OCT. 1, 1956

B-127372, OCT. 1, 1956

TO SCHUTTE AND KIERTING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6, 1956, ACKNOWLEDGED APRIL 12, PROTESTING THE ACTION OF THE DEPARTMENT OF THE NAVY IN AWARDING TO GIMPEL MACHINE WORKS, INC., A CONTRACT FOR FURNISHING DESUPERHEATERS, REPAIR PARTS, ENGINEERING DRAWINGS AND TYPE B TECHNICAL MANUALS UNDER INVITATION FOR BIDS NO. 600-719-56-S, ISSUED JANUARY 5, 1956, BY THE BUREAU OF SHIPS. YOU QUESTION THE PROPRIETY OF THE AWARD FOR THE REASON THAT IT WAS MADE TO THE THIRD LOW BIDDER AND YOU URGE THAT YOU, AS SECOND LOW BIDDER, SUBMITTED A BID WHICH WAS SUBSTANTIALLY RESPONSIVE TO THE INVITATION.

IN RESPONSE TO REQUESTS BY THIS OFFICE, THE DEPARTMENT OF THE NAVY HAS FURNISHED A REPORT AND A SUPPLEMENTAL REPORT SETTING OUT THE FACTS AND ITS VIEWS IN THE MATTER. THE REPORT SHOWS THAT BIDS WERE RECEIVED AS FOLLOWS:

TABLE

TOTAL PRICE BIDDER

HORIZONTAL TYPE VERTICAL TYPE COPES-VULCAN DIVISION, BLAW KNOX CO.

$21,232.00 $24,928.00 SCHUTTE AND KOERTING CO. 25,440.99 25,440.00 GIMPEL MACHINE WORKS, INC. 33,536.00 NO BID SPENCE ENGINEERING CO., INC. 37,812.88 NO BID

ON MARCH 15, 1956, CONTRACT NO. NOBS-68119 WAS AWARDED TO GIMPEL MACHINE WORKS, INC., THE TWO LOWER BIDS BEING REJECTED AS NOT RESPONSIVE AND NOT CONFORMING TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION.

IT APPEARS THAT YOU PROPOSED TO FURNISH TYPE C TECHNICAL MANUALS INSTEAD OF TYPE B AS REQUIRED BY THE INVITATION, ALTHOUGH ALL OTHER BIDDERS PROPOSED TO FURNISH TYPE B. IN THIS CONNECTION, IT IS REPORTED THAT, ALTHOUGH THE SPECIFICATIONS STATED THAT TYPE C TECHNICAL MANUALS SHOULD BE FURNISHED, THE SCHEDULE OF THE INVITATION CALLED FOR TYPE B TECHNICAL MANUALS AND THAT PARAGRAPH 39 OF THE GENERAL PROVISIONS PROVIDES THAT THE SCHEDULE ALWAYS CONTROLS IN THE EVENT OF INCONSISTENCY BETWEEN SCHEDULE AND SPECIFICATIONS. IN ITS REPORT, THE DEPARTMENT STATES, IN SUBSTANCE, THAT YOUR PROPOSAL TO FURNISH TYPE C TECHNICAL MANUALS SHOULD NOT BE REGARDED AS A MINOR IRREGULARITY SINCE THE TYPE B MANUAL "IS A LARGER, MORE EXTENSIVE PIECE OF LITERATURE INCLUDING A GREATER NUMBER OF PHOTOGRAPHS, DIAGRAMS, DRAWINGS, TABLES, ETC., AND USUALLY IS MORE EXPENSIVE THAN TYPE C.'

IT IS REPORTED, ALSO, THAT YOUR FORMAL QUOTATION AND LETTERHEAD EACH INCLUDED IN BOLD RED TYPE AT THE BOTTOM OF EACH PAGE THE WORDS "SEE REVERSE SIDE FOR "TERMS OF SALE," " WHICH TERMS OF SALE CONFLICTED WITH THE TERMS AND CONDITIONS REQUIRED BY THE INVITATION IN THAT YOUR GUARANTY PERIOD WAS SIX MONTHS INSTEAD OF ONE YEAR AS REQUIRED BY THE GOVERNMENT; ALSO, IN THAT YOUR GUARANTY PROVIDED FOR REPLACEMENT ONLY, WHEREAS THE INVITATION PROVIDED FOR CORRECTION, REPLACEMENT OR ADJUSTMENT OF PRICE AT THE OPTION OF THE GOVERNMENT (PARAGRAPH 34 OF GENERAL PROVISIONS).

THE QUESTION WHETHER DEVIATIONS FROM THE REQUIREMENTS OF ADVERTISED SPECIFICATIONS OR CONDITIONS OF AN INVITATION TO BID MAY BE WAIVED IS DEPENDENT UPON THE PARTICULAR FACTS AND CIRCUMSTANCES PRESENT IN THE INDIVIDUAL CASE. THE PRIMARY QUESTION FOR DETERMINATION IN SUCH CASES IS WHETHER THE DEVIATION PROPOSED TO BE WAIVED GOES TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY OR QUALITY OF THE ARTICLES OR SERVICES OFFERED AND, THEREFORE, IS PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, OR IS MERELY A MATTER OF FORM OR SOME IMMATERIAL DEVIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION OR THE SPECIFICATIONS SUCH AS WOULD NOT AFFECT EITHER THE PRICE, QUALITY OR QUANTITY OF THE ARTICLES OR SERVICES OFFERED. 30 COMP. GEN. 179. IN THE INSTANT MATTER, IT SEEMS CLEAR THAT THE DEVIATIONS AND CONDITIONS ABOVE REFERRED TO WERE MATERIAL AND WOULD AFFECT THE PRICES SUBMITTED.

IN 17 COMP. GEN. 554 IT WAS STATED:

"TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY THE VIOLATION OF THE RULES.'

FOR THESE REASONS, THERE APPEARS NO PROPER BASIS FOR OBJECTION BY THIS OFFICE TO THE ADMINISTRATIVE ACTION TAKEN IN REJECTING YOUR BID.

YOUR QUESTION "AS TO WHETHER THE APPLICATION OF ALL PARAGRAPHS OF THE GENERAL PROVISIONS APPLY TO THE SCHEDULE BEFORE IT BECOMES A CONTRACT" APPARENTLY IS SUGGESTED BY YOUR CONTEMPLATION OF A POSSIBLE APPEAL FROM THE ACTION OF THE CONTRACTING OFFICER PURSUANT TO PARAGRAPH 12 OF THE GENERAL PROVISIONS. THE GENERAL PROVISIONS ARE ATTACHED TO AND MADE A PART OF THE INVITATION IN ORDER THAT ALL PARTIES MAY KNOW THEIR RIGHTS AND OBLIGATIONS UNDER THE CONTRACT IF AND WHEN AWARDED. IN OTHER RESPECTS, SUCH PROVISIONS DO NOT BECOME EFFECTIVE UNLESS AND UNTIL AN AWARD IS MADE. THUS, PARAGRAPH 12 (ENTITLED "DISPUTES") SPECIFICALLY APPLIES TO "ANY DISPUTE CONCERNING A QUESTION OF FACT ARISING UNDER THIS CONTRACT" AND, THEREFORE, COULD NOT PROPERLY BE REGARDED AS APPLICABLE TO QUESTIONS ARISING PRIOR TO AWARD.