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B-151646, MAY 26, 1964

B-151646 May 26, 1964
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GOOD PASTURE AND BLOCK: THIS IS WITH REFERENCE TO YOUR LETTER OF JULY 26. OUR RECONSIDERATION WAS DEPENDENT UPON RECEIPT OF THIS INFORMATION AND IT WAS NOT UNTIL APRIL 10. THAT SUCH INFORMATION WAS FURNISHED TO US. THE BASIC ISSUE INVOLVED IS WHETHER FRICK-GALLAGHER'S SHELVING CONFORMS TO THE ADVERTISED SPECIFICATIONS WHICH REQUIRES A DOUBLE RIGHT-ANGLE BEND IN THE DOWN-TURNED PORTION OF THE SHELF WHEREAS FRICK GALLAGHER OFFERED AN ACUTE-ANGLE BEND. THE QUESTION WHETHER ARTICLES OFFERED BY BIDDERS CONFORM TO THE ADVERTISED SPECIFICATIONS IS FOR DETERMINATION. WHEN A DETERMINATION IS MADE ON SUCH A TECHNICAL FACTUAL MATTER BY THE PROCUREMENT AGENCY. WE DO NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY IN THE ABSENCE OF CONVINCING EVIDENCE THAT THE DETERMINATION WAS ERRONEOUS. 17 COMP.

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B-151646, MAY 26, 1964

TO BROWN, GOOD PASTURE AND BLOCK:

THIS IS WITH REFERENCE TO YOUR LETTER OF JULY 26, 1963, WHEREIN YOU REQUEST, ON BEHALF OF THE FRONTIER MANUFACTURING COMPANY, RECONSIDERATION OF OUR DECISION OF JULY 16, 1963, WHICH DENIED FRONTIER'S PROTEST AGAINST THE AWARD OF A CONTRACT TO THE FRICK GALLAGHER MANUFACTURING COMPANY UNDER INVITATION FOR BIDS NO. 9825, ISSUED BY THE GENERAL SERVICES ADMINISTRATION FROM DENVER REGIONAL OFFICE ON APRIL 8, 1963.

OUR RECONSIDERATION OF THIS PROTEST HAS BEEN DELAYED DUE TO THE INABILITY OF THE PROCUREMENT AGENCY TO DEVELOP THE INFORMATION NECESSARY FOR A RESPONSIVE REPLY TO YOUR LETTER. AS WE ADVISED YOU INFORMALLY ON NUMEROUS OCCASIONS, OUR RECONSIDERATION WAS DEPENDENT UPON RECEIPT OF THIS INFORMATION AND IT WAS NOT UNTIL APRIL 10, 1964, THAT SUCH INFORMATION WAS FURNISHED TO US.

THE BASIC ISSUE INVOLVED IS WHETHER FRICK-GALLAGHER'S SHELVING CONFORMS TO THE ADVERTISED SPECIFICATIONS WHICH REQUIRES A DOUBLE RIGHT-ANGLE BEND IN THE DOWN-TURNED PORTION OF THE SHELF WHEREAS FRICK GALLAGHER OFFERED AN ACUTE-ANGLE BEND. THE QUESTION WHETHER ARTICLES OFFERED BY BIDDERS CONFORM TO THE ADVERTISED SPECIFICATIONS IS FOR DETERMINATION, AS A FACTUAL MATTER, BY THE PROCUREMENT AGENCY. WHEN A DETERMINATION IS MADE ON SUCH A TECHNICAL FACTUAL MATTER BY THE PROCUREMENT AGENCY, WE DO NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY IN THE ABSENCE OF CONVINCING EVIDENCE THAT THE DETERMINATION WAS ERRONEOUS. 17 COMP. GEN. 554; 36 ID. 251. THERE IS SET OUT BELOW THE ADMINISTRATIVE REPORT IN THE MATTER:

"THE ABOVE INVITATION PROVIDES UNDER ARTICLE 26, SPECIFICATIONS, THAT ". . . ROTARY STORAGE AND DISPLAY BINS AND ACCESSORIES . . . SHALL BE IN ACCORDANCE WITH REQUIREMENTS OF INTERIM FEDERAL SPECIFICATION GG-B-00351A . . .'AND" . . . ADDITIONAL STORAGE FEATURES NOT COVERED BY SUCH SPECIFICATIONS SHALL BE IN ACCORDANCE WITH FEDERAL SPECIFICATION AA-S-271B AND INTERIM AMENDMENT NO. 1 . . . " ITEM 30 (D) PROVIDES FOR THE SHELF TO BE FURNISHED IN ACCORDANCE WITH CLASS 1 REQUIREMENTS BUT THAT THE SHELF SHOULD HAVE WELDED CORNERS. PARAGRAPH 3.3.3, SHELVES, OF THE SPECIFICATION PROVIDES FOR SHELVES TO CONFORM TO THE REQUIREMENTS SPECIFIED IN FIGURES 3 AND 5 AS APPLICABLE, AND ARTICLE 3.3.1, PLAIN SHELF, PROVIDES FOR THE FRONT AND REAR TO BE FLANGED AS SHOWN ON FIGURE 5. BOTH FIGURES 3 AND 5 SHOW THAT THE SHELF FLANGE SHALL BE CONSTRUCTED WITH A DOUBLE RIGHT ANGLE BEND IN THE DOWN TURNED PORTION.

"ARTICLE 25, SAMPLES, RESERVES FOR THE GOVERNMENT THE RIGHT TO REQUIRE, IF DESIRED, PRIOR TO AWARD, A SAMPLE OF EACH ITEM REPRESENTING EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH FOR THE PURPOSE OF DETERMINING WHETHER THE ITEM OFFERED BY THE BIDDER COMPLIES WITH THE REQUIREMENT OF THE GOVERNMENT. THE CONTRACTING OFFICER DID NOT REQUEST SAMPLES AS HE BELIEVED THE ITEMS OFFERED BY FRICK GALLAGHER FULLY COMPLIED WITH THE SPECIFICATIONS AND MET THE NEEDS OF THE GOVERNMENT. SHELVING DELIVERED UNDER PRIOR CONTRACTS WITH FRICK GALLAGHER HAS BEEN SATISFACTORILY USED BY GOVERNMENT ACTIVITIES FOR MANY YEARS AND THERE ARE NO COMPLAINTS ON RECORD REGARDING UNSATISFACTORY SHELVING OR NONCOMPLIANCE WITH SPECIFICATIONS.

"THE BID OFFERED BY FRICK-GALLAGHER WAS COMPLETELY RESPONSIVE ON ITS FACE AND THE CONTRACT WAS AWARDED IN GOOD FAITH. THE SHELVING DELIVERED, HOWEVER, DID NOT FULLY MEET THE LETTER OF THE SPECIFICATIONS. THIS FACT WAS DISCOVERED BY BOTH THE INSPECTOR AND THE PURCHASING AGENT CONCERNED WITH THIS PROCUREMENT, BUT WAS REGARDED AS BEING A MINOR DEVIATION FROM THE SPECIFICATIONS. WE HAVE CAREFULLY REVIEWED THIS DECISION AND HAVE CONCLUDED THAT THE FRICK-GALLAGHER SHELVING FULLY COMPLIES WITH THE INTENT OF THE SPECIFICATIONS AND FURTHER HAVE ASCERTAINED THAT THE SHELVING OFFERED FULLY MEETS THE NEEDS OF THE GOVERNMENT.'

IN VIEW THEREOF, AND SINCE THE CONTRACT WILL BE COMPLETED WITHIN THE NEAR FUTURE, THERE IS NO ACTION WHICH THIS OFFICE MIGHT PROPERLY TAKE IN THE MATTER.

THE ASSIGNED DEMAND FACTORS WHICH WERE WEIGHED IN THE EVALUATION OF BIDS UNDER THE INVITATION WERE FULLY CONSIDERED IN OUR DECISION OF JULY 16, 1963, AND WE FIND NO BASIS AT THIS TIME TO CONCLUDE THAT THE FACTORS UNREASONABLY FAVORED FRICK-GALLAGHER TO THE PREJUDICE OF FRONTIER.

WITH RESPECT TO THE ALLEGATION THAT FRICK-GALLAGHER HAS PRACTICED UNFAIR COMPETITION INSOFAR AS AWARD OF THE CONTRACT IS CONCERNED, AS WE INFORMED YOU IN OUR DECISION OF JULY 16, 1963, THIS APPEARS TO BE A MATTER OF CONTROVERSY INDEPENDENT OF YOUR PROTEST.

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