B-130922, APR. 23, 1957

B-130922, APR. 23, 1957

TO UNION SPECIAL MACHINE COMPANY:

REFERENCE IS MADE TO YOUR PROTEST AGAINST THE REJECTION OF YOUR BID ON ITEMS 15, 19, AND 20 OF INVITATION FOR BIDS NO. 600-563-57, ISSUED ON OCTOBER 8, 1956, BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., AND AGAINST THE AWARD OF A CONTRACT FOR THOSE ITEMS TO THE SINGER SEWING MACHINE COMPANY.

THE INVITATION REQUESTED BIDS ON 21 ITEMS OF SEWING MACHINES AND ELECTRIC MOTORS OF VARIOUS TYPES AND SIZES FOR DELIVERY TO THE NAVY SUPPLY DEPOT, BAYONNE, NEW JERSEY, FOR TRANS-SHIPMENT TO THE U.S. NAVAL GROUP, JOINT MILITARY MISSION FOR AID TO TURKEY, DERINCE, TURKEY. PROSPECTIVE BIDDERS WERE ADVISED UNDER EACH ITEM THAT THE SEWING MACHINE OR ELECTRIC MOTOR ON WHICH BIDS WERE REQUESTED SHOULD BE EQUAL TO A CERTAIN DESIGNATED SINGER MODEL; THAT THE REFERENCE TO PARTICULAR ARTICLES OR MATERIALS WAS INTENDED TO BE DESCRIPTIVE AND NOT RESTRICTIVE AND ONLY TO INDICATE TO PROSPECTIVE BIDDERS THE ARTICLES WHICH WOULD BE SATISFACTORY; AND THAT IN THE EVENT A BIDDER WAS NOT PREPARED TO BID IN EXACT ACCORDANCE WITH THE APPLICABLE MANUFACTURER'S SPECIFICATIONS OR NUMBERS NOTED IN THE BID SCHEDULE FOR EACH ITEM, ALTERNATE BIDS FOR SUCH ITEMS MIGHT BE SUBMITTED WITH THE UNDERSTANDING THAT THE BIDDER WOULD INSERT IN THE SPACE PROVIDED UNDER EACH ITEM THE IDENTIFYING NUMBER OF THE MATERIAL HE PROPOSED TO FURNISH FOR SUCH ITEM. IT WAS PROVIDED THAT ALTERNATE BIDS SO SUBMITTED WOULD BE CONSIDERED PROVIDED---

"/A) THE ITEM OFFERED WILL PROVIDE SERVICE EQUAL TO THAT OF THE ITEM SPECIFIED; AND

"/B) SUCH BIDS ARE FULLY EXPLAINED AND SUPPORTED BY COMPLETE DETAILED INFORMATION, DRAWINGS, AND DESCRIPTIVE LITERATURE AS MAY BE APPLICABLE; SUCH EXPLANATORY INFORMATION, DRAWINGS AND LITERATURE TO SET FORTH AND FULLY DESCRIBE IN EVERY RESPECT AND DETAIL ANY PROPOSED DEVIATIONS OR DEPARTURES FROM THE APPLICABLE MANUFACTURER'S SPECIFICATIONS OR NUMBERS NOTED HEREIN. UNLESS THE BIDDER CLEARLY AND EXPLICITLY STATES OTHERWISE, IT WILL BE PRESUMED THAT THE BIDDER INTENDS TO FURNISH, WITHOUT ALTERATION, THE CATALOGUE OR MODEL NUMBER INDICATED IN HIS BID WITHOUT REGARD TO THE STANDARD SET FORTH IN THE INVITATION. IF IT IS FOUND UPON COMPARISON OF THE SPECIFICATIONS OF THE ITEMS OFFERED AND THE SPECIFICATIONS OF THE ITEM REFERENCED THAT THE ITEM OFFERED VARIES IN ANY MAJOR RESPECT FROM THE ITEM REFERENCED, THE BID MUST BE REJECTED AS NON- RESPONSIVE TO THE INVITATION FOR BIDS.

"MANUFACTURER'S MODEL:

"THE MACHINE SHALL BE NEW AND THE MANUFACTURER'S CONTEMPLATED NEW, OR EXISTING MODEL OF A MACHINE PREVIOUSLY MANUFACTURED AND PLACED IN SUCCESSFUL OPERATION, EXCEPT THAT (I) SUCH MODEL MAY BE MODIFIED TO CONFORM TO APPLICABLE SPECIFICATIONS; (II) ANY ATTACHMENTS OR PARTS INESSENTIAL TO PROPER OPERATION OF THE MACHINE IN CONFORMANCE WITH THE REQUIREMENTS OF APPLICABLE SPECIFICATIONS MAY BE OMITTED, OR SUBSTITUTIONS MADE THEREFOR.'

THE DEPARTMENT OF THE NAVY REPORTS THAT BID FORMS WERE MAILED TO SIX PROSPECTIVE SUPPLIERS AND THAT TWO BIDS WERE RECEIVED AS FOLLOWS:

TABLE

SINGER SEWING UNION SPECIAL "ITEM QUANTITY MACHINE COMPANY MACHINE COMPANY

15 1 $500.80 $423.40

19 42 316.80 279.63

20 10 316.80279.63"

YOU OFFERED MACHINES OF YOUR OWN MANUFACTURE, AND INSERTED IN YOUR BID THE MODEL NUMBERS APPLICABLE TO ITEMS 15, 19, AND 20, AND SUBMITTED WITH YOUR BID A SALES BROCHURE, WHICH, HOWEVER, DID NOT GIVE A DETAILED EXPLANATION OR DESCRIPTION OF THE EQUIPMENT OFFERED AS REQUIRED BY THE ADVERTISED CONDITIONS. THE DEPARTMENT REPORTS THAT BOTH BIDS WERE REVIEWED BY COGNIZANT TECHNICAL PERSONNEL PRIOR TO AWARD TO THE SINGER SEWING MACHINE COMPANY. BECAUSE OF THE LACK OF TECHNICAL MATERIAL, YOU WERE REQUESTED BY TELEPHONE ON DECEMBER 20, 1956, TO FURNISH ADDITIONAL DATA DESCRIBING IN DETAIL THE SPECIFIC MACHINES ON WHICH PRICES WERE QUOTED. AFTER SEVERAL DAYS HAD PASSED WITHOUT RECEIPT OF THE REQUESTED INFORMATION, THE DATA ON HAND WAS REVIEWED AND YOUR OFFER TO FURNISH THE MACHINES DESCRIBED IN YOUR BID WAS REJECTED FOR REASONS AS FOLLOWS:

"ITEM 15 - MACHINE OFFERED WAS NOT EQUIPPED WITH ANTI-FRICTION BEARINGS. ANTI-FRICTION BEARINGS ARE INCORPORATED IN THE MODEL SPECIFIED AND ARE CONSIDERED ESSENTIAL FOR PRECISION MACHINES OF HIGH SPEED CHARACTERISTICS.

"ITEMS 19 AND 20 - MACHINES OFFERED HAD A STITCH REGULATING PLUNGER WITH SET-SCREW TYPE LOCK. THIS ARRANGEMENT WOULD REQUIRE THE RAISING OF THE MACHINE AND THE HAND TIGHTENING OF THE SET-SCREW TO THE LOCK PLUNGER. THE MODEL SPECIFIED PROVIDES A PUSH BUTTON STITCH REGULATOR WITH POSITIVE LOCK, WITH NO HAND TIGHTENING. IN ADDITION, THE STITCH REGULATOR WAS BELOW THE CLOTH PLATE IN LIEU OF BEING A DIAL LOCATED ON MACHINE HEAD, AS IN THE MODEL SPECIFIED.'

UPON FURTHER CONSIDERATION OF THE EQUIPMENT OFFERED BY YOU FOLLOWING YOUR PROTEST, THE DEPARTMENT OF THE NAVY REPORTED AS FOLLOWS:

"NOTWITHSTANDING THE CONTENTION OF THE UNION SPECIAL MACHINE COMPANY, REGARDING THE PERFORMANCE CHARACTERISTICS OF PLAIN BEARINGS, AS COMPARED WITH ANTI-FRICTION BEARINGS, FOR ITEM 15, THE FACT REMAINS THAT THIS IS CONSIDERED A MAJOR DEVIATION FROM THE MODEL SPECIFIED AND ANTI-FRICTION BEARINGS ARE REQUIRED.

"SUBSEQUENT TO THE FOREGOING TECHNICAL DETERMINATION THAT THE ARTICLES OFFERED BY UNION WERE NOT RESPONSIVE, DISCUSSIONS WITH REPRESENTATIVES OF THE UNION SPECIAL MACHINE COMPANY TOGETHER WITH A REVIEW OF UNION SPECIAL MACHINE COMPANY'S CURRENT CATALOG (WHICH CATALOG WAS FURNISHED AFTER THE NAVY HAD MADE THE FOREGOING DETERMINATION) DISCLOSED THAT THE FEATURES OF THE MACHINES OFFERED BY UNION SPECIAL MACHINE COMPANY ON WHICH THE REJECTION WAS BASED FOR ITEMS 19 AND 20, WERE EQUAL TO THE SINGER SEWING MACHINE COMPANY'S MACHINE. HOWEVER, THIS LATER REVIEW ALSO REVEALED THAT MODELS 61400B AND 61400A OFFERED BY UNION SPECIAL MACHINE COMPANY FOR ITEMS 19 AND 20 DID NOT INCORPORATE A FULLY AUTOMATIC FULL CYCLE LUBRICATION SYSTEM AS DID THE SINGER MODELS 251-2 AND 251-1 SPECIFIED IN THE INVITATION. THE BROCHURE FROM WHICH THE ORIGINAL DETERMINATION WAS MADE DID NOT REVEAL THIS DISCREPANCY.

"THE REQUIREMENT FOR FULLY AUTOMATIC LUBRICATION IS CONSIDERED AN ESSENTIAL FEATURE OF THE EQUIPMENT, SINCE IT IS TO BE USED IN TURKEY BY NATIVE PERSONNEL, WHERE THERE IS A CONSTANT SHORTAGE OF SKILLED TECHNICIANS AND MACHINE OPERATORS. MAXIMUM DEPENDABILITY OF MACHINES IS REQUIRED WITH MINIMUM DEPENDENCY ON SKILL OF PERSONNEL FOR MAINTENANCE AND CARE. IN THIS REGARD, AUTOMATIC LUBRICATION IS CONSIDERED HIGHLY DESIRABLE TO ASSURE PROPER LUBRICATION OF THESE HIGH SPEED MACHINES TO MINIMIZE THE FREQUENCY OF REPLACING PARTS AND TO REDUCE, TO THE GREATEST EXTENT POSSIBLE, THE NECESSITY FOR INTERRUPTING PRODUCTION FOR PERIODIC OVERHAULS. THE UNION MACHINES RELY ON HAND LUBRICATION AT LEAST TWICE DAILY IN FOUR AREAS OF MACHINE HEAD IN ADDITION TO MANUAL LUBRICATION OF CERTAIN OTHER AREAS. AS EVIDENCED BY THE INSTRUCTION MANUAL, UNION CATALOG 83R, OILING INSTRUCTIONS MUST BE FOLLOWED CAREFULLY IN ORDER TO ACHIEVE EFFICIENT RESULTS. IN THE UNION MACHINE, LUBRICATION BELOW THE BED PLATE DEPENDS UPON A GRAVITY FEED SYSTEM. WHEN IT IS NECESSARY TO REMOVE ANY OF THE PARTS FROM THE GEAR CASE, EXTREME CARE MUST BE TAKEN IN THE ADJUSTMENT OF THE PARTS TO OBTAIN PROPER FUNCTIONING OF THE LUBRICATION SYSTEM IN THE LOWER PART OF THE MACHINE.'

IT IS, OF COURSE, THE DUTY OF ALL OFFICERS OF THE GOVERNMENT CHARGED WITH THE RESPONSIBILITY OF PROCURING SUPPLIES AND EQUIPMENT FOR THE UNITED STATES TO BE GUIDED IN THEIR ACTIONS BY THE BEST INTEREST OF THE GOVERNMENT AND BY THE EXERCISE OF GOOD FAITH IN THEIR DEALING WITH BIDDERS SEEKING GOVERNMENT BUSINESS. THE RESPONSIBILITY, HOWEVER, FOR MAKING FACTUAL DETERMINATIONS AS TO WHAT EQUIPMENT WILL BEST MEET THE GOVERNMENT'S REQUIREMENTS NECESSARILY IS A MATTER OF ADMINISTRATIVE DISCRETION WITH WHICH WE MAY NOT INTERFERE EXCEPT IN THOSE CASES WHERE IT IS CLEARLY ESTABLISHED THAT THE CONTRACTING OFFICIALS OF THE GOVERNMENT HAVE ABUSED THEIR AUTHORITY BY ACTING IN BAD FAITH OR IN DISREGARD OF THE MANDATE OF THE APPLICABLE LAW. IT IS UNDERSTOOD THAT THERE ARE FEDERAL SPECIFICATIONS COVERING INDUSTRIAL SEWING MACHINES, BUT WE ARE ADVISED THAT IT WAS THE CONSIDERED JUDGMENT OF THE PROCURING OFFICIALS IN THIS CASE THAT, BECAUSE OF THE SPECIAL CONDITIONS OBTAINING IN THE LOCALITY WHERE THESE MACHINES ARE TO BE USED THAT THE SPECIFICATIONS ADOPTED IN THIS INSTANCE WERE BETTER ADAPTED TO MEET THE NEEDS OF THE SERVICE.

THE CONTRACT IN THE PRESENT MATTER WAS AWARDED TO THE SINGER SEWING MACHINE COMPANY ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT THE EQUIPMENT OFFERED BY YOU WAS NOT EQUAL IN ALL MATERIAL RESPECTS TO THAT REQUIRED BY THE GOVERNMENT AND OFFERED BY THE SUCCESSFUL BIDDER. WE FIND NO EVIDENCE OF FAVORITISM OR BAD FAITH ON THE PART OF THE CONTRACTING OFFICIALS NOR DO WE FIND THAT THE AWARD TO THE SINGER SEWING MACHINE COMPANY WAS THE RESULT OF INCOMPETENCY OR A LACK OF QUALIFICATION ON THE PART OF THE GOVERNMENT'S PERSONNEL. THE FACT THAT YOUR BID WAS LOWER THAN THE BID ACCEPTED IS, OF COURSE, IMPORTANT BUT NOT CONTROLLING IN THIS MATTER. THE APPLICABLE LAW REQUIRING ADVERTISING FOR BIDS AND AWARD TO THE LOWEST RESPONSIBLE BIDDER CONTEMPLATES THAT THE LOWEST RESPONSIBLE BIDDER SHALL BE THAT BIDDER WHOSE BID CONFORMS IN ALL MATERIAL RESPECTS TO THE INVITATION. ON THE BASIS OF THE FACTS REPORTED BY THE DEPARTMENT OF THE NAVY THERE APPEARS NO DOUBT THAT YOUR BID DID NOT MEET THE ADVERTISED SPECIFICATIONS IN ALL MATERIAL RESPECTS.

ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO HOLD THAT THE AWARD RESULTED IN A BINDING LEGAL OBLIGATION.