B-124390, SEP. 2, 1955

B-124390, SEP. 2, 1955

TO U.S. RECORDING COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 24, JULY 20 AND AUGUST 11, 1955, PROTESTING THE REJECTION OF YOUR BID FOR THE MANUFACTURE OF TALKING BOOK REPRODUCERS.

BY INVITATION NO. 56-3, ISSUED MAY 5, 1955, BY THE LIBRARY OF CONGRESS, DIVISION FOR THE BLIND, BIDS WERE REQUESTED FOR FURNISHING QUANTITIES OF TALKING BOOK REPRODUCERS MANUFACTURED IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS ATTACHED TO THE INVITATION. THESE SPECIFICATIONS CALLED FOR SPECIFIC PARTS BY BRAND NAME OR EQUIVALENT. HOWEVER, PARAGRAPH 17 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS ADVISED BIDDERS AS FOLLOWS:

"THE USE OF COMPONENT PARTS, IN THE MANUFACTURE OF TALKING BOOK REPRODUCERS CONSTRUCTED AS A RESULT OF THIS INVITATION TO BID, MADE BY MANUFACTURERS OTHER THAN THOSE SPECIFIED ON THE PARTS LIST INCORPORATED AS PART OF THE DETAILED SPECIFICATIONS SUBMITTED WITH THIS INVITATION, MUST BE APPROVED IN WRITING BY THE DIVISION FOR THE BLIND, LIBRARY OF CONGRESS.'

THE TWO LOWEST BIDS FOR FURNISHING THE QUANTITY OF 6,000 MACHINES IN WHICH THE LIBRARY WAS INTERESTED WERE ONE OF THE TWO BIDS SUBMITTED BY YOUR COMPANY AND THE BID OF THE DEWALD RADIO MANUFACTURING CORPORATION. AS INDICATED IN A LETTER ACCOMPANYING YOUR BIDS, YOUR LOWEST BID WAS BASED ON FURNISHING A UNIT WITH SUBSTITUTED COMPONENTS IN ACCORDANCE WITH THE COMPONENT SPECIFICATIONS AND THE OTHER WAS BASED ON FURNISHING A UNIT WITH THE PRECISE COMPONENTS LISTED IN THE SPECIFICATIONS WITH NO PROVISION FOR SUBSTITUTIONS. YOUR HIGHER BID, BEING LOWER THAN THAT OF THE DEWALD RADIO MANUFACTURING CORPORATION'S BID, WAS NOT FOR CONSIDERATION. YOUR LOWER BID WAS REJECTED ON THE GROUND THAT, NOT ONLY WERE YOU OFFERING SUBSTITUTED PARTS, BUT THAT THERE WAS NOTHING TO INDICATE THE EXTENT OF THE SUBSTITUTIONS YOU PROPOSED TO MAKE OR HOW MUCH OF A PROBLEM MIGHT BE INVOLVED IN CHECKING THE SUBSTITUTED PARTS TO MAKE SURE THEY MEASURED UP TO THE STANDARDS OF THE PARTS LISTED IN THE ADVERTISED SPECIFICATIONS.

IT HAS BEEN YOUR CONTENTION FROM THE OUTSET THAT PARAGRAPH 17 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS DOES NOT NULLIFY THE TERM "OR EQUIVALENT" FOLLOWING THE BRAND NAME FOR EACH PART, AND THAT SUCH PARAGRAPH MUST BE INTERPRETED IN THE LIGHT OF ALL OTHER PROVISIONS OF THE INVITATION AND ADVERTISED SPECIFICATIONS, NOT AS AN ISOLATED CONDITION INCONSISTENT WITH ALL THE OTHER PROVISIONS OF THE INVITATION.

WE SEE NO VALID OBJECTION TO THE ADMINISTRATIVE DETERMINATION TO REJECT YOUR LOWER BID. WHILE, AS POINTED OUT BY YOU, THE PARTS LIST SPECIFIED THAT THE PARTS TO BE FURNISHED WOULD BE THOSE OF CERTAIN MANUFACTURERS "OR EQUIVALENT," PARAGRAPH 17 EXPRESSLY INFORMED ALL BIDDERS THAT, TO BE ACCEPTABLE, COMPONENT PARTS MADE BY MANUFACTURERS OTHER THAN THOSE SPECIFIED WOULD HAVE TO BE APPROVED IN WRITING BY THE DIVISION FOR THE BLIND, LIBRARY OF CONGRESS. AS PARAGRAPH 17 EXPRESSLY REFERRED TO THE PARTS LIST, ITS PROVISIONS MUST BE CONSTRUED AS QUALIFYING THE PROVISIONS OF THE PARTS LIST AND THEREFORE AS REQUIRING APPROVAL IN WRITING BY THE DIVISION FOR THE BLIND OF ANY SUBSTITUTED PARTS.

ACCORDINGLY AND SINCE IT IS REPORTED BY THE LIBRARIAN THAT THE SUBSTITUTIONS OFFERED BY YOUR LOWER BID WERE NOT APPROVED "IN ORDER TO AVOID THE EXPENSE AND DELAY OF TESTING FOR EQUIVALENCE OF COMPONENTS, ARGUMENTS REGARDING EQUIVALENCE, AND EVEN THE POSSIBILITY OF EVENTUALLY CANCELLING THE CONTRACT AS A RESULT OF MISUNDERSTANDINGS REGARDING EQUIVALENCE," THERE APPEARS NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.

THE SPECIFICATIONS FOR A MODEL "C" TALKING BOOK REPRODUCER LEFT WITH THIS OFFICE ARE RETURNED IN ACCORDANCE WITH YOUR REQUEST.