Page 1, Item 2

"We completely withdraw our own conditions of sale and all references to them in our November 28, 1958 proposal and accept General Electric Company terms and conditions in their entirety."

The quoted provision in the amended bid specifically referred only to the withdrawal of Lombard's printed "Conditions of Sale" and acceptance of the GE Terms and Conditions set forth in Supplement No. 658, neither of which cover specifications or "construction details." Consequently we do not believe there is any basis for concluding that this amendment also operated to withdraw the bidder's exception to compliance with the specifications.

2. The qualification requirements which Lombard failed to satisfy are listed below together with an analysis of each such failure:

a. "(A) Proof that the prospective seller had built one (or more) currently and successfully operating press(es) of description and tonnage substantially as specified in HWS-6461-Rev. 1."

Of the presses listed in Lombard's bid, only the 3000 metric ton press which Lombard built for the Taiwan Aluminum Company of Taipei, Taiwan (Formosa) could be considered of substantially the same tonnage as the 2750 ton press specified. Lombard's bid, however, was not accompanied by proof that the 3000 metric ton press is of substantially the same description as that specified. The 12,000 ton press referred to in Lombard's bid is so much larger than the 2700 ton press specified that it cannot be said the two presses are substantially of the same tonnage. The 1500 ton press built for Detroit Gasket and Mfg. Co. clearly is also not of substantially the same tonnage as that specified, it being only slightly larger than half the size of the 2700 ton press specified. Each of the remaining presses listed in Lombard's bid are substantially smaller than that specified and in any event the bid was not accompanied by proof that they were being currently and successfully operated or that they were of a description substantially as specified.

b. "(B) Proof that such existing press (es) can extrude copper or brass tubes under conditions essentially as described in Section II G and to concentricity equal to or better than that specified in Section II F, of Specification HWS-646Rev."

Lombard's bid was not accompanied by the proof required by the quoted provision. It is true that, with respect to the 1500 ton press referred to above, Lombard represented in its bid that such press was "capable of extruding close tolerance tubes and rods similar to those you propose." This, in our opinion, does not constitute compliance with the quoted provision and, in any event, as explained in Paragraph a. above, the press in question was not of substantially the same tonnage as that specified nor was the bid accompanied by proof that it was of substantially the same description. No evidence was offered that any of the listed presses had extruded or could extrude brass or copper tubes or rods to close tolerances or even that they were tube and rod presses. No information was furnished as to the types of extrusions made by any of the presses, what the product was used for or any indication that close tolerance precision extrusions were required of the presses.

c. "(C) Assembly, sub-assembly, lay-out and detail drawings or sketches which will convey clearly to the buyer the description, principles of operation features, and adjustments of the press which the prospective seller is proposing." In addition, Paragraph D, page 1, of Specification HWS-6461, required that: "The prospective seller shall send to the buyer (with the seller's proposal), as many drawings, sketches, or photographs as may be necessary to enable the buyer to evaluate the seller's proposal and to learn and understand the methods and features that the seller intends to incorporate into his press, and to satisfy all the requirements of the Specifications and the requirements of good extrusion press design and fabrication. The buyer shall treat all such information as strictly confidential."

Two general arrangements, no-scale, drawings and a number of photographs of extrusion presses and other equipment built by Lombard were furnished with its proposal as complying with those provisions.

Page 2, paragraph 3, of Lombard's letter to your office dated April 1, 1959 states that:

"Paragraph 3, Report A, we contend that the drawings furnished with our quotation, copies of which are enclosed, PD-4764 and PD-4765, show completely the information requested in the inquiry, to any engineer having experience at

reading drawings; Specifically, item marked 1 of Exhibit 'A' the adjustment and alignment feature of the resistance platen are shown on drawing PD-4764, Photograph L-1121-74 and in the written specifications. It is further described on page 2 of our proposal, dated November 28, 1958 under the heading 'Platen'." Lombard in paragraph C under Qualifications of its proposal of November 28, 1958 refers to, the drawings being furnished as "General Arrangement Drawings." Such drawings being only general in scope could not be expected to and do not contain the detail necessary to clearly convey the description, principles of operation, features and adjustments of the press. These general arrangement drawings were specifically inadequate to demonstrate exactly how the following features of the press would operate to satisfy all requirements of the Specifications and to permit a determination that these features were of good design and would meet our requirements in operation: the method of suspension, adjustment and alignment of the resistance platen, the container, the main ram crosshead, the mandrel, the die head, the billet loader and the stump operating facilities. These features are of the utmost importance because of the vital role which the extrusion press will play in the fabrication of advanced design fuel elements. The need for this detailed information in order to make a realistic evaluation of the bidders' proposals is precisely the reason for the Request for Quotation requirement that detail drawings, not general drawings, be furnished.

Page 2, paragraph 4 of Lombard's letter of April 1, 1959 states that:

"The container, marked 2-items 3, 4, 5 and 6 are similarly marked for your attention on drawing PD-4764 and in our proposal PL-3548."

With the possible exception of the piercer stop adjustment the drawing does not convey the description, principles of operation, features or adjustments proposed, nor does the drawing provide sufficient detail on any of these features to meet the specification requirement for drawings in such detail as to enable the buyer to learn and understand the methods and features the seller intends to incorporate into its press and to satisfy all the requirements of the specifications. There is no mention made in Lombard's written specifications of adjustment and alignment features of the platen. Lombard contends that the platen is further described on page 2 of its proposal dated November 28, 1958. The description referred to consists of one sentence reading "The cast steel platen is directly supported by the bed plate." We can see no relation between this statement and the requirement for showing the adjustment and alignment features of the resistance platen.

The photographs furnished with the proposal offered little in the way of information on the proposed press since they cover a number of types of presses of widely varying tonnage, and features, none of which are directly referenced to the features to be included in the press offered. Photograph L-1121-74 which Lombard submitted to your office with its protest and which it claims shows the adjustment and alignment features of the platen was not included in Lombard's proposal as submitted to General Electric Company. Consequently, since this was a competitive bid procurement this photograph cannot be considered in determining whether Lombard's proposal conforms to the Request for Quotation. However, to forestall possible further arguments by Lombard on this matter, we wish to point out that since the resistance platen of the 3000 metric ton press shown in photographs submitted with Lombard's proposal and the platen of the 12,000 ton press shown in photograph L-1121-74, are so different, inclusion of this photograph in Lombard's proposal would only have served to confuse the matter.

It should also be noted that as stated above, Lombard's proposal stated "the cast steel platen is directly supported by the bed plate," whereas photograph L-1121-74 shows a platen which is not directly supported by the bed plate. Page 2, paragraph 5, of Lombard's letter of April 1, 1959 states in part that: "They contend further in paragraph 4, on page 2 of Report 'A' that we made no mention of the speed of the billet loader. This is also an outright falsehood. This is shown in our proposal PL-3548, "Typical cycle for tube extrusion, moving mandrel, sheared butt.' Item 1 gives the speed of the billet loader as well as the speed of all other movements of the press. Also contrary to the Atomic Energy Commission's report, on page 5 of our description under 'Billet Loader' we state "The hydraulically operated billet loader * * * retracting automatically to clear the advancing crosshead.'"

We believe Lombard's apparent confusion on this issue may best be illustrated by quoting the section of our report it cites:

"The Specification stressed the importance of speed in loading the billet into the container; however, the Lombard proposal and drawings contain nothing to show how that speed can be achieved, nor was there any information to show whether the billet loader must be fully retracted after insertion of the billet into the container and before the actual pressing takes place."

It will be noted that we did not contend that no mention has been made of the speed of the billet loader. However, we did contend, and still contend, that there is nothing in the drawings or other data submitted in the Lombard proposal to show how the stated speed can be attained nor can we tell from the drawings or other data, other than the unsupported statement by Lombard quoted above, how Lombard's proposed billet loader is to operate. We believe it is abundantly clear in both the Request for Quotation and the Specifications that the prospective bidder must not only state what its proposed press can do and how it operates but it must also clearly show and prove through detail drawings and other information exactly how it intends to achieve compliance with the Specifications.

We think from the information available that the affirmation submitted by your firm that a press already built by you is capable of extruding copper or brass tubes under described conditions to designated concentricities cannot be regarded as the proof required by paragraph B under the heading "QUALIFICATION" quoted above. It appears, without consideration of the other points at issue, that your bid did not contain certain information even though the Inquiry clearly required its submission with your proposal and advised that failure to furnish such information would be cause for rejection of the proposal.

The procurement in this instance was made by a prime contractor with, and not by an agency of, the Government. Under the contract between the prime contractor and the agency and regulations approved pursuant thereto, the former is, nevertheless, required to employ procurement procedures compatible with those the agency must follow in its direct procurements. Were this an advertised procurement made directly by the agency, the failure of a bidder to submit data which under the terms of the invitation must accompany the bid would require rejection of such bid. 37 Comp. Gen. 763. We see no legal basis for precluding the application of this rule in this case.

You contend, however, that the procurement procedure used in this case was negotiation rather than competitive bidding and, therefore, that the prime contractor and the AEC had the right, and, indeed, were compelled, to negotiate with your firm in view of your low proposal and your offer to furnish any additional information required. We agree that the term "Request for Quotation" and words such as "proposals," which are freely used in the Inquiry, are normally associated with negotiated, as opposed to advertised, procurements.

Under advertising, or competitive bid procedures, award must be made to the responsible bidder submitting the lowest responsive bid.

To "negotiate" is to make without advertising. The negotiating authority has generally been regarded as a means of providing greater discretion to the contracting officer in the award of contracts. We are unaware of any purpose to permit a greater degree of discretion to prospective contractors; nor are we aware of any statute or regulation, whether under advertising or negotiation, requiring the contracting agency to "negotiate" further with an offeror who failed to comply with the explicit requirements of the solicitation simply because his offer was low in price.

Accordingly, we must conclude that there has not been presented any legal basis to support a finding that the award to a firm other than yours should be regarded as invalid.

[B-139456]

Contracts-Allegation of Mistake After PerformanceSpecification Misinterpretation

A contractor who proceeds with performance of a contract after receipt of complete drawings, enters into a supplemental agreement which acknowledges the contract to be a binding and subsisting agreement and completes deliveries before alleging a mistake based on furnishing a less costly item or presenting a claim for additional compensation must be held to have affirmed the contract in all its terms and to have waived whatever rights he might otherwise have had arising out of the mistake.

To the Secretary of the Army, July 14, 1959:

Reference is made to letter dated April 27, 1959, from the Assistant Secretary of the Army (Logistics), requesting a decision as to whether relief may be granted to General Electronics Co., Inc., Montgomery, Alabama, because of an alleged mistake in its bid, the acceptance of which formed the basis for contract No. DA-36-038-OR-20396, dated January 15, 1958.

By invitation No. ORD-36-038-58-M-154, Frankford Arsenal requested bids to be opened December 30, 1957, for furnishing 57 units of Item No. 1, described as "Amplifier, Intermediate Frequency, AM1059 MS, D153884, in accord. with Drg. E7620695". (Stock and Part No. 1230-762-0695, F342). Bidders were advised in the invitation that certain drawings and specifications referred to therein as applicable to the manufacture of the amplifiers were not being furnished with the invitations, but that they could be obtained from the "local Ordnance District Office." Bidders were also advised in paragraph 10 of the Terms and Conditions of the Invitation for Bids as follows: 10. BIDS.

d. Mistake. Bidders are expected to examine the drawings, specifications, circulars, Schedule, and all instructions pertaining to the supplies or services. Failure to do so will be at the bidder's risk. ***

Complete delivery of the amplifiers, the inspection and acceptance of which were to take place at the contractor's plant, was to be made within 120 days from date of award of the contract.

The record shows that ten bids were received in response to the invitation, the lowest of which was that submitted by General Electronics Co., Inc., which offered to furnish the amplifiers at the price of $87.49 each. The other bids ranged from $150 to $363.43 per unit. Following the opening of bids, the Buyer at Frankford Arsenal appears to have pointed out that confirmation of the low bid would be necessary under the circumstances, and by teletype dated December 30, 1957, the U.S. Army Ordnance District, Birmingham, Alabama, was requested to make a preaward survey in connection with the bid which had been submitted by General Electronics Co., Inc. On January 7, 1958, the Commanding General of the Birmingham Ordnance District advised the Commanding General of Frankford Arsenal by teletype as follows:

Reurtt 30043 rqsting Pre-Awd Survey on General Electronics Co., Inc., IFB 58-M-154. Specified mandatory delivery schedule, unit price $87.49, total bid price $4,986.93, confirmed by contractor. Subj firm has sufficient productive capacity, technical ability, plant facilities and finances available to perform in accordance with the requirements of the proposed award. Favorable consideration is recommended. Complete report forwarded by mail. [Italics supplied.]

On January 15, 1958, the contract was awarded to General Electronics Co., Inc., for the amount of its bid. Attached to the contract is Modification No. 1, Change Order, dated April 10, 1958, whereby the contracting officer, as authorized under the contract, directed the contractor to delete a certain drawing referred to in the specifications, and substitute another, the change order stating that, except as modified therein, the terms of the contract were to remain in full force. Also attached thereto is Modification No. 2, Supplemental Agreement, which was executed by the contractor and the contracting officer for the Government under date of September 5, 1958, and provided for an extension of time under the contract to September 15, 1958, because of delays in delivery due to excusable causes, as authorized by article 11, Default, of the General Provisions of the contract.

Deliveries under the contract were completed on December 11, 1958. In his memorandum of March 17, 1959, the contracting officer of the Birmingham Ordnance District (which is stated to have accepted the contract for administration on January 23, 1958) states that during the period to December 11, 1958, the contractor experienced difficulties in meeting the delivery schedule, "caused in part by certain drawing being illegible." Any delay due to the latter cause was, of course, excusable under the contract. The seventh and final