B-143450, SEP. 30, 1960

B-143450, SEP. 30, 1960

TO THE MACHINERY ASSOCIATES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1960, PROTESTING AGAINST THE AWARD OF A CONTRACT TO DELAWARE VALLEY MACHINERY, INC., FOR THE FURNISHING OF LATHES UNDER INVITATION FOR BIDS NO. ORD-18-001 60-199.

THE INVITATION FOR BIDS WAS ISSUED BY THE PROCUREMENT OFFICE, ABERDEEN PROVING GROUND, MARYLAND, ON MAY 24, 1960. BIDS WERE TO BE OPENED ON JUNE 8, 1960. THE ITEMS TO BE FURNISHED WERE EIGHT LATHES. BIDDERS WERE REQUESTED TO QUOTE PRICES ON USED LATHES LISTED IN THE INVITATION WHICH MIGHT BE TRADED-IN IF THE AMOUNTS ALLOWED WERE CONSIDERED IN THE BEST INTEREST OF THE GOVERNMENT.

THE DESCRIPTIONS OF THE LATHES TO BE FURNISHED UNDER THE VARIOUS ITEMS WERE SIMILAR IN MANY RESPECTS. THE TYPE OF LATHE TO BE FURNISHED UNDER EACH ITEM WAS IDENTIFIED BY A BRAND NAME "OR EQUAL" AND IN REGARD TO THIS MATTER THE INVITATION PROVIDED THAT---

"AS USED IN THIS CLAUSE, THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF SUPPLIES BY MAKE AND MODEL. CERTAIN SUPPLIES CALLED FOR BY THIS INVITATION FOR BIDS ARE IDENTIFIED IN THE SCHEDULE BY A BRAND NAME "OR EQUAL" DESCRIPTION. THIS IDENTIFICATION IS DESCRIPTIVE RATHER THAN RESTRICTIVE. BIDS OFFERING "OR EQUAL" SUPPLIES WILL BE CONSIDERED FOR AWARD IF SUCH SUPPLIES ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL TO THE BRAND NAMED SUPPLIES IN ALL MATERIAL RESPECTS.'

THE INVITATION ALSO INCLUDED A DETAINED DESCRIPTION OF THE LATHES. TYPICAL OF THE DESCRIPTIONS OF THE VARIOUS LATHES TO BE FURNISHED IS THE DESCRIPTION IN REGARD TO ITEM 1 WHICH IS AS FOLLOWS:

TABLE

"LATHE: TOOLMAKERS, GEARED HEAD, 54 INCHES 1 EA

CENTERS, MONARCH SERIES 62, MODEL 2013-T,

OR EQUAL. IN ACCORDANCE WITH PURCHASE

DESCRIPTION IDENTIFIED AS D AND PS SA1-91-59

DATED 27 APRIL 1959, PAGES 1-8 INCL.

BIDDING ON: MANUFACTURER'S NAME ---------- BRAND ------ NO. ---- "

THE CITED PURCHASE DESCRIPTION, D AND PS SA1-91-59, CONTAINS CONSIDERABLE DETAILED REQUIREMENTS FOR TOOLMAKERS LATHES WHICH WILL BE REFERRED TO HEREINAFTER.

YOU BID ON THE SIX ITEMS OF THE INVITATION AND YOUR PROPOSED TO FURNISH LATHES OF THE BRAND AND MODEL INDICATED IN THE INVITATION. EACH OF THE FIVE OTHER BIDDERS OFFERED LATHES OF DIFFERENT MANUFACTURERS. THE DESIGN OF THE MONARCH SERIES 62 LATHE, WHICH IS MENTIONED THROUGHOUT THE INVITATION, HAS, AS ONE OF ITS MAIN FEATURES, A PRESELECTOR DYNA-SHIFT HEADSTOCK WHICH AUTOMATICALLY CALCULATES, SELECTS AND SETS UP THE CORRECT SPINDLE SPEED FOR EACH DIAMETER OF THE WORK PIECE. THE CONTRACTING OFFICER CONSIDERED THAT LATHES WITHOUT A PRESELECTOR WERE NOT EQUAL TO THOSE WITH A PRESELECTOR. ON THAT BASIS THE MONARCH, SIDNEY, AND LODGE AND SHIPLEY LATHES OFFERED WERE CONSIDERED EQUAL AND AWARD OF THE SIX ITEMS UNDER THE INVITATION WAS MADE TO THE LOW BIDDER ON EACH ITEM OFFERING A LATHE WITH SPINDLE SPEED PRESELECTOR. ACCORDINGLY, YOU WERE AWARDED ITEMS 3, 4 AND 5, AND THE DELAWARE VALLEY MACHINERY, INC., WAS AWARDED ITEMS 1, 2 AND 6. YOU PROTEST THE AWARD TO DELAWARE ON THE GROUND THAT THE CONTRACTING OFFICE WAIVED THE REQUIREMENTS OF THE PURCHASE DESCRIPTION AND THAT YOU WERE NOT GIVEN THE OPPORTUNITY TO REQUIRE ,ON ANY OTHER BASIS.' IN THIS REGARD REFERENCE IS MADE TO A PORTION OF DELAWARE'S LETTER OF JUNE 3, 1960, SUBMITTING ITS BID AND CALLING ATTENTION TO THE DIFFERENCES BETWEEN THE SIDNEY LATHES IT WAS OFFERING AND THE DETAILED SPECIFICATIONS, IN PART, AS FOLLOWS:

"THE ITEMS LISTED ON PAGES 6 THRU 9 SPECIFY IN EACH CASE, THAT THE MACHINES ARE TO BE MONARCH OR EQUAL. THE DETAILED SPECIFICATIONS ACCOMPANYING THE BID PAPERS DATED 27 APRIL 1959, ARE AN EXACT DESCRIPTION OF MONARCH ENGINE LATHES. IT IS IMPOSSIBLE FOR ANY MANUFACTURER OF ENGINE LATHES TO MEET THESE SPECIFICATIONS IN DETAIL, EXCEPT THE ONE THAT IS SPECIFIED.

"WE DO NOT FEEL THAT IT IS TO THE BEST INTEREST OF THE GOVERNMENT TO PURCHASE ALL MACHINES FROM A SINGLE SOURCE OR MANUFACTURER. WE ARE OUTLINING ON THE FOLLOWING PAGES, DESCRIPTIONS OF THE MACHINES ON WHICH WE ARE BIDDING.

"ITEM 1

"PAGE 6

"ONE (1) SIDNEY DIALMASTER MODEL 32 P - 2013 TIMES 54 INCHES

CENTERS PRECISION TOOLROOM LATHE.

"WE REFER TO SPECIFICATION NUMBER D AND PS SA 1-91-59,

27, APRIL 1959.

"PAGE 1: THE MACHINE WE ARE OFFERING MEETS ALL THE DETAILED REQUIREMENTS ON PAGE 1, EXCEPT THE FOLLOWING:

"PARAGRAPH 5 - DETAILED REQUIREMENTS:

"NUMBER OF SPINDLE SPEEDS IN GEOMETRICAL PROGRESSION WITH THE INITIAL SHAFT RUNNING AT CONSTANT SPEED, AT LEAST 36. THE MACHINE WE ARE OFFERING HAS 32 SPINDLE SPEEDS.

"STANDARD RANGE OF SPINDLE SPEEDS, SLOW SPEED - 20 REVOLUTIONS PER MINUTE, HIGH SPEED AT LEAST 2500 REVOLUTIONS PER MINUTE. THE SPEED RANGE ON THE MACHINE WE ARE OFFERING IS 30 TO 2000.

"PAGE 2:

"PARAGRAPH 5 - DETAILED REQUIREMENTS:

"GEARS MESHING WITH THE SPINDLE SHALL BE HELICAL TO ASSURE SMOOTH TRANSMISSION OF POWER TO WORK. THE GEARING ON THE MACHINE WE ARE OFFERING IS OF THE HERRINGBONE TOOTH TYPE, AND IS SUPERIOR TO HELICAL GEARING IN EVERY RESPECT.

"TAILSTOCK SPINDLE DIAMETER AT LEAST 4 1/4 INCHES. THE TAILSTOCK SPINDLE DIAMETER ON THE MACHINE WE ARE OFFERING IS 4 INCHES.

"NUMBER OF THREAD AND FEED CHANGES - AT LEAST 66. THE MACHINE WE ARE OFFERING HAS 60 THREAD AND FEED CHANGES.

"THE RANGE OF THREADS PER INCH - 2 OR LESS, TO AT LEAST 120, INCLUDING 11 1/2 PIPE THREAD, RIGHT AND LEFT HAND. THE MACHINE WE ARE OFFERING HAS A THREAD RANGE OF 1 1/2 TO 92 THREADS PER INCH.

"RANGE OF FEEDS IN THOUSANDTHS OF AN INCH - .0011 OR LESS, TO AT LEAST .068. THE RANGE OF FEEDS ON THE MACHINE WE ARE OFFERING IS .0024 TO .147.

"PAGE 3:

"PARAGRAPH 8 - SPEED AND CHANGE

"ALL GEARS AND BEARINGS SHALL BE MIST LUBRICATED. THE MACHINE WE ARE OFFERING HAS FORCED FEED LUBRICATION TO ALL MOVING PARTS, WHICH EXCEEDS THE SPECIFICATION.

"THE MACHINE WE ARE OFFERING MEETS THE SPECIFICATION FULLY IN ALLOTHER INSTANCES.'

YOUR PROTEST WAS CONSIDERED BY THE ADMINISTRATIVE OFFICE AND UNDER DATE OF AUGUST 11, 1960, THE CHIEF, INDUSTRIAL DIVISION OF THE OFFICE, CHIEF OF ORDNANCE, REPORTED THAT---

"REPRESENTATIVES OF THIS OFFICE, THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, AND THE JUDGE ADVOCATE GENERAL, REVIEWED IFB NO. ORD-18-001 60-199 PRIOR TO AWARD. IT WAS DETERMINED THAT THE DETAILED SPECIFICATIONS OF THE 6 LATHES, MONARCH SERIES 62, SET FORTH IN THE PURCHASE DESCRIPTIONS, IF USED IN EVALUATING BIDS ON OTHER MANUFACTURER'S MACHINES, WOULD BE RESTRICTIVE OF COMPETITION. THE INTENT OF THE PURCHASE DESCRIPTION WAS TO DESCRIBE THE TYPE AND QUALITY OF THE EQUIPMENT DESIRED AND WAS NOT INTENDED TO BE RESTRICTIVE OR TO LIMIT BIDDERS TO EQUIPMENT OF THE PARTICULAR BRAND NAME STATED IN THE IFB. ACCORDINGLY, THE PROCUREMENT OFFICIALS AT ABERDEEN PROVING GROUND WERE INSTRUCTED TO EVALUATE ALL BIDS ON THE BASIS OF THE GENERAL PERFORMANCE CHARACTERISTICS OF THE BRAND NAME SPECIFIED AND THE MINIMUM REQUIREMENTS OF THE GOVERNMENT. THIS WAS DONE. THE ADMINISTRATIVE ACTION TAKEN WILL PRECLUDE THE FURTHER ISSUANCE OF IFB'S ON AN "OR EQUAL" BASIS CONTAINING THE DETAILED DIMENSIONAL OR PROPRIETARY SPECIFICATIONS OF THE NAMED BRAND. THE PROPOSED AWARD OF ITEMS 1, 2 AND 6 TO DELAWARE VALLEY MACHINERY, INC. WAS REVIEWED BY MY STAFF AND APPROVED BY ME ON JUNE 29, 1960. IN REVIEWING THE FILE I FIND THAT NO ADDITIONAL EVIDENCE HAS BEEN SUBMITTED TO CAUSE ME TO CHANGE MY DECISION IN THE MATTER.'

THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THESE NEEDS CAN BE MET BY A GIVEN PRODUCT ARE PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. 38 COMP. GEN. 190. HOWEVER, PURCHASES ADVERTISED, AS HERE, PURSUANT TO 10 U.S.C. 2305 (A), MUST PERMIT FULL AND FREE COMPETITION CONSISTENT WITH THE PROCUREMENT OF PROPERTY. IT WILL BE NOTED FROM THE REPORT OF AUGUST 11, 1960, QUOTED ABOVE, THAT THE MATTER OF WHETHER THE SPECIFICATIONS WERE RESTRICTIVE WAS GIVEN THOROUGH CONSIDERATION PRIOR TO AWARD BY REPRESENTATIVES OF THE OFFICE, CHIEF OF ORDNANCE, THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, AND THE JUDGE ADVOCATE GENERAL. THAT REPORT INDICATED THAT THE DETAILED SPECIFICATIONS OF THE SIX LATHES, MONARCH SERIES 62--- THE BRAND YOU PROPOSED TO FURNISH--- SET FORTH IN THE PURCHASE DESCRIPTIONS, IF USED IN EVALUATING BIDS ON OTHER MANUFACTURER'S MACHINES, WOULD BE RESTRICTIVE OF COMPETITION. AS A RESULT OF THE REVIEW OF THE SPECIFICATIONS THE PROCUREMENT OFFICIALS AT THE ABERDEEN PROVING GROUND WERE INSTRUCTED TO EVALUATE ALL BIDS ON THE BASIS OF THE GENERAL PERFORMANCE CHARACTERISTICS OF THE BRAND NAME SPECIFIED BY EACH BIDDER AND THE MINIMUM REQUIREMENTS OF THE GOVERNMENT. THIS ACTION RESULTED IN THE ACCEPTANCE OF THE LOW BID OF DELAWARE ON ITEMS 1, 2 AND 6. AND IT IS INDICATED THAT FURTHER ISSUANCE OF INVITATIONS ON AN "OR EQUAL" BASIS CONTAINING DETAILED DIMENSIONAL OR PROPRIETARY SPECIFICATIONS OF THE NAMED BRAND WILL BE DISCONTINUED.

ACCORDINGLY, WHILE IT MIGHT HAVE BEEN ADVISABLE TO READVERTISE IN THIS CASE ON THE BASIS OF NEW AND REVISED SPECIFICATIONS IF CIRCUMSTANCES PERMITTED SUCH ACTION, NEVERTHELESS SINCE CORRECTIVE ACTION HAS BEEN TAKEN AND SINCE WORK UNDER THE CONTRACTS MAY BE WELL UNDERWAY, OUR OFFICE DOES NOT FEEL THAT IT WOULD BE PRACTICABLE TO REQUIRE THAT THE CONTRACT AWARDED TO DELAWARE BE CANCELLED.