B-151923, JAN. 23, 1964

B-151923, JAN. 23, 1964

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED DECEMBER 16, 1963, WITH ATTACHED FILE, FROM THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, CONCERNING THE PROTEST OF C AND M INDUSTRIAL ASSOCIATES, INC., IN CONNECTION WITH ITEMS 1, 2, 3 AND 5 OF INVITATION FOR BIDS NO. 08-617 63-34, ISSUED AT MCCOY AIR FORCE BASE.

IN OUR DECISION TO YOU DATED OCTOBER 4, 1963, WE CONCLUDED THAT THE SPECIFICATIONS FOR THE ELECTRIC FORK LIFT TRUCK (WALKIE STACKER) AND STEEL STORAGE RACKS WERE UNDULY RESTRICTIVE, AND AUTHORIZED CANCELLATION OF CONTRACT NO. AF 08/617/-2169 WITH PAUL H. WERRES COMPANY, INC. THE CONTRACTOR REQUESTED RECONSIDERATION OF THE MATTER AND SUBMITTED INFORMATION AND EVIDENCE IN SUPPORT OF ITS CONTENTION THAT THE SPECIFICATIONS WERE NOT RESTRICTIVE.

ITEMS 2, 3 AND 5 ARE COMPONENTS OF THE ADJUSTABLE STEEL STORAGE RACKS AND REPRESENT SLIGHTLY MORE THAN 50 PERCENT OF THE DOLLAR VALUE OF THE CONTRACT. THE OBJECTION OF C AND M TO THE SPECIFICATIONS FOR THESE ITEMS WAS THAT THEY WERE REQUIRED TO BE HOT-DIPPED GALVANIZED, WHICH WAS ALLEGEDLY FURNISHED AS A STANDARD FINISH ONLY BY THE STURDI-BILT DIVISION OF UNION ASBESTOS, AND ALSO THAT THE DOUBTFUL ADVANTAGE OF THIS FINISH MADE THE REQUIREMENT OTHERWISE QUESTIONABLE. IT IS BELIEVED TO BE GENERALLY ACKNOWLEDGED THAT HOT-DIPPED GALVANIZING PRODUCES A FINISH WHICH IS FAR SUPERIOR TO A PAINTED FINISH, AND A DETERMINATION BY THE AIR FORCE THAT GALFANIZING IS REQUIRED TO PREVENT RUSTING DUE TO CLIMATIC CONDITIONS WOULD APPEAR TO BE PROPER. ALSO, THERE APPEARS TO BE NO QUESTION AS TO THE AVAILABILITY OF GALVANIZING FACILITIES.

THE OBJECTIONS TO THE REQUIREMENTS FOR THE WALKIE STACKER INCLUDED THE THICKNESS OF STEEL COVERS, VERTICAL TRAVEL OF THE DRIVE UNIT, TRAVEL CONTROLS, LOCKING OF FORKS, SIZE OF DRIVE WHEEL, AND BATTERY AND CHARGER SPECIFICATIONS. IT IS NOTED, FIRST OF ALL, THAT THE REQUIREMENTS COMPLAINED OF WERE, IN THE MAIN, NOT EXACT, BUT WERE STATED AS MINIMA, AS INDICATED BY REPEATED USE OF THE WORDS "NOT LESS THAN.' THIS PERMITS ANY MANUFACTURER TO BID WITHOUT MODIFYING HIS PRODUCT AS TO ANY CHARACTERISTIC WHICH EQUALS OR EXCEEDS THE MINIMUM REQUIREMENT.

NO OBJECTION IS PERCEIVED TO A DETERMINATION BY THE AIR FORCE THAN AT LEAST 3/16-INCH STEEL PLATE IS NEEDED AS A PROTECTIVE COVER, SINCE LITERATURE IN THE FILE SHOWS THAT SEVERAL MANUFACTURERS USE SUCH PLATE. THE VERTICAL TRAVEL AND TRAVEL CONTROL REQUIREMENTS WOULD DEPEND ON CONDITIONS AT THE PLACE OF USE. AS TO THE FORKS, OUR INFORMATION IS THAT THEY WILL MOVE WHEN THE TRUCK IS MOVING WITHOUT A LOAD AND THAT, IF NOT ADJUSTED BEFORE LOADING, THIS CAN CAUSE THE LOAD TO TILT.

SPECIFYING A MINIMUM SIZE OF DRIVE WHEEL SEEMS REASONABLE, AND THE RECORD SHOWS THAT SEVERAL MANUFACTURERS USE THIS PARTICULAR SIZE. ANENT THE BATTERY AND CHARGER SPECIFICATIONS, THERE IS ON FILE A LETTER OF RECENT DATE FROM A BATTERY MANUFACTURER, WHO IS NOT A SUPPLIER OF THE BIG JOE MANUFACTURING COMPANY, OFFERING TO FURNISH THE REQUIRED BATTERY AND CHARGER AND STATING THAT THE BATTERY IS A STANDARD INDUSTRIAL SIZE. HAVE BEEN ADVISED THAT SOME OF THE LIGHTER BATTERIES LAST LESS THAN A YEAR AND THAT THESE HEAVIER BATTERIES, IN ADDITION TO GIVING EXTRA POWER, CARRY AS MUCH AS A FIVE YEAR WARRANTY.

WITH REFERENCE TO THE NEED FOR MAKING CHANGES IN ORDER TO MEET THE SPECIFICATIONS, IT APPEARS THAT IT WAS NECESSARY FOR THE BIG JOE MANUFACTURING COMPANY TO MAKE THE FOLLOWING MODIFICATIONS IN ITS STANDARD PRODUCT:

"MODIFY UNIT TO PROVIDE FOR 2500 LB. CAPACITY.

PROVIDE SPRING MOUNTING OF DRIVE EXACTLY AS SPECIFIED.

FURNISH A SAFETY DEVICE ON THE HEAD OF THE T OPERATING HANDLE.

CHANGE THE BASE LEG SPACING FROM THE STANDARD OF 38 INCHES TO 37 INCHES.

NARROW BASE LEGS FROM 5 INCHES WIDE TO 4 INCHES WIDE.

INCREASE FORK LENGTH FROM 36 INCHES TO 42 INCHES.

INSTALL REMOTE CONTROL PUSHBUTTON STATION.

PROVIDE A CHARGER WITH AUTOMATIC SHUT OFF.'

BASED ON INFORMATION NOW IN THE FILE IT WOULD BE NECESSARY FOR ANY MANUFACTURER TO MAKE SOME CHANGES IN ITS STANDARD ITEM IN ORDER TO MEET THE GOVERNMENT'S REQUIREMENTS, WHICH PUTS ALL BIDDERS IN A COMPARABLE POSITION, PROVIDED THE CHANGES CAN BE MADE WITH REASONABLY EQUAL FACILITY.

IT IS, OF COURSE, THE FUNCTION OF THE USING ACTIVITY TO DETERMINE ITS NEEDS, AND IN SO DOING CARE SHOULD BE TAKEN TO INSURE THAT NOTHING IS SPECIFIED WHICH IS NOT REQUIRED AND WHICH MIGHT, FROM ITS PROPRIETARY NATURE OR OTHERWISE, HAVE THE EFFECT OF UNDULY RESTRICTING COMPETITION. IN THIS CONNECTION, IT IS NOW REPORTED THAT AIR FORCE TECHNICAL PERSONNEL, UPON REVIEW OF THE MATTER, HAVE DETERMINED THAT THE STACKER SPECIFICATION WAS BASED ON SPACE REQUIREMENTS AT MCOY AIR FORCE BASE, SUCH AS MAXIMUM FLOOR LOAD, RAMP CONDITIONS, CEILING HEIGHT, AISLE WIDTH, DOOR WIDTH, AND FLOOR CONDITIONS.

UPON RECONSIDERATION OF THE ENTIRE MATTER, AND FOR THE REASONS YOU NOW ADVANCE AND AS SET FORTH ABOVE, WE CONCLUDE THAT THE SPECIFICATION FOR STEEL STORAGE RACKS WAS NOT RESTRICTIVE, THAT THE SPECIFICATION FOR THE WALKIE STACKER WAS NEITHER PROPRIETARY TO THE BIG JOE MANUFACTURING COMPANY NOR SO RESTRICTIVE AS TO PREVENT COMPETITION FROM OTHER MANUFACTURERS OF THIS TYPE OF EQUIPMENT, AND THAT CONTRACT NO. A 08/617/- 2169 WITH PAUL H. WERRES COMPANY, INC., IS THEREFORE NOT CONSIDERED TO BE LEGALLY OBJECTIONABLE AND MAY BE PERMITTED TO STAND.