B-173189, AUG 4, 1972

B-173189, AUG 4, 1972

BID PROTEST - CONFORMABILITY TO SPECIFICATIONS DENIAL OF PROTEST BY TYCO, INC., AGAINST THE AWARD OF A CONTRACT TO C & M PRODUCTS, INC., UNDER AN RFP ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VA., FOR 93 MOTORS DESCRIBED AS "THE TRANE CO. P/N MOT 344." SINCE C & M SUPPLIED THE SAME PARTS, AND IN THE SAME MANNER AS DOES THE TRANE COMPANY ITSELF, NO BASIS EXISTS TO OBJECT TO THE CONTRACT. IN ANY EVENT, THE CONFORMABILITY OF DELIVERED ARTICLES TO THE CONTRACT REQUIREMENTS IS A MATTER OF CONTRACT ADMINISTRATION TO BE DETERMINED BY THE ADMINISTRATIVE AGENCY. FURTHER, C & M DID NOT HAVE TO BE A REGULAR DEALER IN THIS EQUIPMENT SINCE THE WALSH-HEALEY PUBLIC CONTRACTS ACT WAS NOT APPLICABLE TO THIS PROCUREMENT.

TO TYCO, INCORPORATED:

WE REFER TO YOUR LETTER OF JUNE 1, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AN AWARD TO ANOTHER FIRM UNDER REQUEST FOR PROPOSALS NO. DSA- 400-71-R-3842, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

THE REQUEST WAS ISSUED ON JANUARY 29, 1971, FOR PROPOSALS ON 93 MOTORS DESCRIBED AS "THE TRANE CO. P/N MOT 344." THE SOLICITATION ALSO CONTAINED A PRODUCTS OFFERED CLAUSE PERMITTING OFFERS ON ITEMS THAT WERE EQUAL AND INTERCHANGEABLE, BUT CAUTIONING PROSPECTIVE OFFERORS THAT THE GOVERNMENT DID NOT HAVE DETAILED DATA FOR THE ITEM REFERENCED IN THE PROCUREMENT IDENTIFICATION DESCRIPTION.

C & M PRODUCTS, INCORPORATED, OFFERED TO FURNISH THE TRANE PART NUMBER AT A PRICE OF $49.05 PER MOTOR AND A TOTAL PRICE OF $4,561.65. YOUR FIRM OFFERED ITS TYCO PART NUMBER 2500-285C, AS A PRODUCT MANUFACTURED IN ACCORDANCE WITH THE CITED MANUFACTURER'S DRAWING OR SPECIFICATION AND CERTIFIED AS IDENTICAL, AT A PRICE OF $51.00 PER MOTOR AND A TOTAL PRICE OF $4,743.00.

AWARD OF A CONTRACT TO C & M AS THE LOW OFFEROR WAS SIGNED ON MARCH 26, 1971, CALLING FOR DELIVERY OF 18 MOTORS ON OR BEFORE 12 DAYS AFTER AWARD AND THE REMAINING 75 MOTORS ON OR BEFORE 43 DAYS AFTER AWARD.

BY LETTER DATED MARCH 25, 1971, AND RECEIVED AT DGSC ON MARCH 29, 1971, YOU PROTESTED TO THE CONTRACTING OFFICER AGAINST AWARD TO C & M. ALTHOUGH YOU INDICATED YOUR UNDERSTANDING THAT CLASSIFICATION AS A DEALER PURSUANT TO THE WALSH-HEALEY ACT IS NOT APPLICABLE TO THIS PROCUREMENT, YOU BASED YOUR PROTEST ON YOUR ASSERTION THAT C & M IS NOT A TRANE DEALER AND COULD NOT, IN YOUR OPINION, FURNISH THE TRANE PART NUMBER. IN A SUBSEQUENT LETTER OF MAY 6, 1961, TO THE CONTRACTING OFFICER, YOU EXPRESSED YOUR BELIEF THAT C & M MUST BE A TRANE DEALER TO FULFILL THE REQUIREMENTS OF THE CONTRACT AND SUGGESTED THAT THE JUSTICE DEPARTMENT SHOULD DETERMINE THE TRUTHFULNESS OF C & M'S REPRESENTATIONS IN THIS REGARD.

BY LETTER OF JUNE 2, 1971, THE CONTRACTING OFFICER ADVISED YOU THAT THE CONTRACT IS FOR A TOTAL AMOUNT OF $4,561.65 AND WHETHER C & M QUALIFIES AS A REGULAR DEALER UNDER THE WALSH-HEALEY ACT IS IMMATERIAL. HE FURTHER ADVISED YOU THAT THE CONTRACT DOES NOT REQUIRE C & M TO BE DEALER FOR THE TRANE COMPANY. AFTER RECEIVING YOUR PROTEST, THE CONTRACTING OFFICER OBTAINED FROM THE TRANE COMPANY A PROPRIETARY DRAWING OF ITS MOTOR MOT 344 AND ASCERTAINED THAT THE MOTOR SUPPLIED BY C & M TO THE GOVERNMENT IS THE TRANE COMPANY PART NUMBER AS IDENTIFIED FROM THE TRANE COMPANY DRAWING. ACCORDINGLY, THE CONTRACTING OFFICER DENIED YOUR PROTEST.

IN YOUR PROTEST TO OUR OFFICE, YOU CONTINUE TO ASSERT THAT C & M HAS REPRESENTED ITSELF TO BE A DEALER AND YOU DISCUSS FURTHER YOUR BELIEF THAT C & M DID NOT SUPPLY THE TRANE PART NUMBER. THE ENCLOSURE TO YOUR LETTER OF JUNE 7, 1971, INDICATES YOU HAVE FURNISHED A COPY OF YOUR ALLEGATIONS TO THE DEPARTMENT OF JUSTICE.

YOUR ASSUMPTIONS OF FACT IN THIS CASE ARE ERRONEOUS AS RELATED TO C & M'S REPRESENTATIONS OF ITS STATUS AS A DEALER. WE HAVE EXAMINED THE SOLICITATION IN QUESTION AND THE OFFER OF C & M THEREUNDER AND WE FIND THAT C & M DID NOT REPRESENT ITSELF TO BE A REGULAR DEALER, NOR WAS IT REQUIRED TO MAKE SUCH REPRESENTATION.

WE HAVE PREVIOUSLY HAD OCCASION TO ADVISE YOU, IN OUR DECISION B 166285, NOVEMBER 26, 1969, ADDRESSED TO YOU, THAT THE PROVISIONS IN THE WALSH- HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45, REQUIRE THAT ALL GOVERNMENT SUPPLY CONTRACTS IN EXCESS OF $10,000, WITH CERTAIN EXCEPTIONS, CONTAIN A STIPULATION THAT THE CONTRACTOR IS A REGULAR DEALER OR MANUFACTURER OF SUCH SUPPLIES. SINCE THE CONTRACT AGAINST WHICH YOU PROTEST IN THIS CASE IS FOR $4,561.65, THE PROVISIONS OF THE ACT ARE CLEARLY INAPPLICABLE. SEE B-166012, APRIL 3, 1969.

WITH REGARD TO YOUR CONTENTION THAT C & M DID NOT SUPPLY MOTORS BEARING THE TRANE COMPANY PART NUMBER, YOU ARE CORRECT IN A CERTAIN LIMITED SENSE. AFTER OBTAINING A COPY OF THE TRANE COMPANY DRAWING, THE CONTRACTING OFFICER FOUND THAT THE MOTOR IS NOT MANUFACTURED BY TRANE BUT BY THREE MANUFACTURERS LISTED IN THE DRAWING FOR PART NUMBER MOT 344. FURTHER ASCERTAINED FROM A TRANE DISTRIBUTOR THAT TRANE FILLS ORDERS FOR THE MOTOR IN QUESTION BY SUPPLYING A MOTOR BEARING THE NAME PLATE DATA FROM THE ACTUAL MANUFACTURER, C & M OBTAINED MOTORS BEARING THE PART NUMBER LISTED IN THE TRANE DRAWING FROM ONE OF THE THREE SPECIFIED MANUFACTURERS. THE CONTRACTING OFFICER CONTACTED THE MANUFACTURER AND LEARNED THAT ITS MOTOR UNDER THE LISTED PART NUMBER IS MADE ONLY TO THE TRANE DRAWING. SINCE C & M DELIVERED THE MOTORS TO THE GOVERNMENT IN THE SAME MANNER THAT TRANE SUPPLIES THE MOTORS, I.E., BEARING THE NAME PLATE DATA FROM THE ACTUAL MANUFACTURER, THE CONTRACTING OFFICER IS SATISFIED THAT THE ITEMS DELIVERED WERE THE ITEMS REQUIRED BY THE CONTRACT.

WE FIND NO BASIS FOR DISAGREEING WITH THE CONCLUSION OF THE CONTRACTING OFFICER. THE MOTORS DELIVERED BY C & M WERE MANUFACTURED TO THE TRANE DRAWING AND BEAR A MANUFACTURER'S PART NUMBER LISTED THEREIN. IN OUR OPINION, ADDING THE TRANE PART NUMBER TO THE MOTORS, WHICH EVEN TRANE DOES NOT CONSIDER NECESSARY IN ITS REGULAR COURSE OF BUSINESS, WOULD HAVE ADDED NOTHING TO THE SUITABILITY OF THE MOTORS FOR THE GOVERNMENT'S NEEDS.

IN YOUR MORE RECENT LETTERS YOU HAVE ENCLOSED COPIES OF YOUR FURTHER CORRESPONDENCE WITH VARIOUS GOVERNMENT AGENCIES RELATING TO YOUR OPINION THAT THE MOTORS DELIVERED UNDER THE CONTRACT WERE NOT THE TRANE PART AND WERE THEREFORE NOT SUITABLE FOR THE GOVERNMENT'S NEEDS. WE HAVE CAREFULLY REVIEWED THIS CORRESPONDENCE AND FIND NOTHING THEREIN WHICH WOULD REQUIRE US TO CONCLUDE THAT THE MOTORS DID NOT MEET THE SPECIFICATIONS, AS INDICATED ABOVE. IN ANY EVENT, THE CONFORMABILITY OF DELIVERED ARTICLES TO THE CONTRACT REQUIREMENTS IS A MATTER OF CONTRACT ADMINISTRATION, PROPERLY FOR DETERMINATION BY THE AGENCY CONCERNED, AND THE DELIVERY OF NONCONFORMING ARTICLES WOULD NOT AFFECT THE VALIDITY OF THE CONTRACT AWARD.

IN OUR DECISION B-166285, SUPRA, WE ALSO HAD OCCASION TO ADVISE YOU THAT IT IS NOT WITHIN OUR JURISDICTION TO DETERMINE WHAT CONSTITUTES A VIOLATION OF A CRIMINAL STATUTE. YOUR CORRESPONDENCE INDICATES THAT YOU HAVE FURNISHED COPIES OF YOUR ALLEGATIONS TO THE DEPARTMENT OF JUSTICE. THOSE ALLEGATIONS ARE PROPERLY FOR CONSIDERATION BY THAT DEPARTMENT AND WE EXPRESS NO OPINION THEREON.

FOR THE REASONS STATED, WE FIND THAT YOUR PROTEST TO OUR OFFICE, WHICH WAS RECEIVED SOME 27 DAYS AFTER THE LAST SCHEDULED DELIVERY UNDER THE CONTRACT IN QUESTION, PRESENTS NO VALID BASIS FOR LEGAL OBJECTION TO THE ACTIONS OF THE CONTRACTING OFFICER. ACCORDINGLY, YOUR PROTEST IS DENIED.