B-143383, SEP. 30, 1960

B-143383, SEP. 30, 1960

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO YOUR DEPARTMENT'S LETTER OF AUGUST 25, 1960, IN RESPONSE TO OUR REQUEST FOR A REPORT RELATIVE TO THE PROTEST OF UNION SPECIAL MACHINE COMPANY, CHICAGO, ILLINOIS, AGAINST AWARD TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 36-600-60-487 ISSUED BY HEADQUARTERS, MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, PENNSYLVANIA.

THE INVITATION WAS ISSUED MAY 3, 1960, REQUESTING BIDS--- TO BE OPENED MAY 27, 1960--- FOR FURNISHING 90 SEWING MACHINES, INCLUDING 48 MACHINES UNDER ITEM NO. 1,"IN ACCORDANCE WITH FEDERAL SPECIFICATION 00 S-256A DATED 3 OCTOBER 1958," SOME OF THE MACHINES TO BE PACKED FOR EXPORT SHIPMENT. PARAGRAPH 3.1 OF THE REFERRED-TO SPECIFICATION PROVIDES IN PART:

"UNLESS OTHERWISE SPECIFIED (SEE 6.2), MACHINES AND EQUIPMENT, INCLUDING ACCESSORIES, IF ANY, SHALL BE NEW AND A CURRENTLY MANUFACTURED PRODUCT AT THE TIME OF DELIVERY, EXCEPT AS HEREINAFTER MODIFIED. * * *"

THE EXCEPTIONS REFERRED TO APPARENTLY HAVE NO RELATION TO THE REQUIREMENT THAT MACHINES SHALL BE "NEW AND A CURRENTLY MANUFACTURED PRODUCT.'

IN RESPONSE TO THE INVITATION, THREE BIDS WERE RECEIVED ON ITEM NO. 1 QUOTING UNIT PRICES AS FOLLOWS:

TABLE

DOMESTIC PACKING EXPORT PACKING WILLCOX AND GIBBS SEWING

MACHINE CO. $494.57 $497.07 UNION SPECIAL MACHINE COMPANY

519.11 523.42 SINGER SEWING MACHINE COMPANY 521.00 528.00

UNION SPECIAL MACHINE COMPANY HAS PROTESTED AGAINST AWARD TO THE LOW BIDDER, WILLCOX AND GIBBS SEWING MACHINE COMPANY, ASSERTING THAT THE MODEL OFFERED BY THE LOW BIDDER HAS BEEN DISCONTINUED AND THEREFORE DOES NOT FULFILL THE REQUIREMENT OF THE INVITATION THAT MACHINES FURNISHED SHALL BE "A CURRENTLY MANUFACTURED PRODUCT AT THE TIME OF DELIVERY.' IT IS STATED IN YOUR DEPARTMENT'S LETTER OF AUGUST 25, 1960, THAT AWARD IS BEING WITHHELD PENDING OUR DECISION IN THE MATTER.

THE MODEL OFFERED BY WILLCOX AND GIBBS SEWING MACHINE COMPANY IS "TYPE 802-A-3-1/4 SUPERLOCK.' IN ITS LETTER OF JUNE 29, 1960, TO OUR OFFICE, UNION SPECIAL MACHINE COMPANY STATES:

"WILLCOX AND GIBBS DISCONTINUED SOME TIME AGO THE MANUFACTURE OF COMPLETE MACHINES STYLE 802 A-3-1/4. OBVIOUSLY, THEY MAKE REPAIR PARTS FOR MACHINES PREVIOUSLY SOLD.'

THERE IS NOT FOUND IN THE FILE ANYTHING CHALLENGING THE CORRECTNESS OF THE QUOTED STATEMENTS. IN ITS LETTER OF JUNE 3, 1960, WILLCOX AND GIBBS SEWING MACHINE COMPANY STATES:

"THE MACHINES ON WHICH WE BID MAY 20, 1960 (INVITATION NO. 36-600-60 487) WILL BE NEW, WHEN ASSEMBLED, AND TO THE SPECIFICATIONS ON THE FACE OF THE INVITATION TO BID. THE PARTS WHICH WILL BE USED IN ASSEMBLING THESE MACHINES ARE EITHER IN STOCK OR IN PRODUCTION AND WILL BE AVAILABLE SO THAT DELIVERY CAN BE MADE AS SPECIFIED IN OUR BID.'

IT IS OUR VIEW THAT, IN ITS ORDINARY MEANING, THE LANGUAGE ABOVE QUOTED FROM PARAGRAPH 3.1 OF FEDERAL SPECIFICATION 00-S-256A WOULD REQUIRE THAT THE MACHINES NOT ONLY BE NEW AND UNUSED BUT ALSO OF A MODEL WHICH IS IN ACTUAL PRODUCTION AT THE TIME OF DELIVERY. THE REASONABLE PURPOSE OF THE PROVISION APPARENTLY IS TO PROTECT THE GOVERNMENT AGAINST PURCHASING DISCONTINUED MODELS. ALTHOUGH SUCH MODELS MIGHT MEET THE OTHER REQUIREMENTS OF THE SPECIFICATIONS, THEY PRESUMABLY ARE NOT AS EFFICIENT AND DESIRABLE AS THE LATEST MODEL BEING CURRENTLY PRODUCED BY THE SAME MANUFACTURER. MOREOVER, THE COST, DIFFICULTY AND UNCERTAINTY OF OBTAINING PARTS AND SERVICES MAY WELL BE PRESUMED TO BE GREATER WITH RESPECT TO A DISCONTINUED MODEL.

IN YOUR DEPARTMENT'S LETTER OF AUGUST 25, 1960, IT IS STATED WITH REFERENCE TO PARAGRAPH 3.1 OF FEDERAL SPECIFICATION 00-S-256A:

"* * * IT IS THE OPINION OF THIS DEPARTMENT, HOWEVER, THAT THE QUOTED PORTION OF THE FEDERAL SPECIFICATION SIMPLY PREVENTS A BIDDER FROM OFFERING EITHER SURPLUS PROPERTY, USED MACHINES OR DELIVERING MACHINES OF AN EARLIER MODEL THAN THE LATEST MODEL PREVIOUSLY OFFERED TO THE PUBLIC.'

SUCH INTERPRETATION APPARENTLY WOULD PERMIT THE FURNISHING OF MACHINES MADE LONG BEFORE DELIVERY BY A MANUFACTURER WHICH HAD NOT PRODUCED A LATER MODEL OR HAD ENTIRELY DISCONTINUED MANUFACTURING MACHINES.

THE INFORMATION FOUND IN THE FILE DOES NOT ESTABLISH THE CORRECTNESS OR THE INCORRECTNESS OF THE PROTESTING BIDDER'S STATEMENT THAT "WILLCOX AND GIBBS DISCONTINUED SOME TIME AGO THE MANUFACTURE OF COMPLETE MACHINES STYLE 802 A-3-1/4.' IF THE MODEL OFFERED BY WILLCOX AND GIBBS IS IN FACT A DISCONTINUED MODEL, THE ADDITION OF SUCH PARTS AS NECESSARY TO ENABLE IT TO MEET THE OTHER REQUIREMENTS OF THE SPECIFICATIONS COULD NOT PROPERLY BE REGARDED AS QUALIFYING IT TO MEET THE REQUIREMENT THAT IT MUST BE "A CURRENTLY MANUFACTURED PRODUCT AT THE TIME OF DELIVERY.'

FOR THE REASONS ABOVE INDICATED, OUR CONCLUSION IS THAT, IF IT BE DETERMINED BY YOUR DEPARTMENT THAT THE ABOVE-QUOTED STATEMENT OF THE PROTESTING BIDDER IS CORRECT, THE MACHINES OFFERED BY WILLCOX AND GIBBS WOULD NOT MEET THE REQUIREMENTS OF THE INVITATION AND ITS BID SHOULD BE DISREGARDED AS NONRESPONSIVE; BUT IF YOUR DEPARTMENT DETERMINES THAT THE MACHINES OFFERED BY WILLCOX AND GIBBS ARE NOT DISCONTINUED MODELS ITS BID WOULD BE FOR CONSIDERATION IN MAKING THE AWARD. THEREFORE, THE QUESTION OF FACT MAY BE DETERMINED AND THE MATTER DISPOSED OF IN YOUR DEPARTMENT ON THE BASIS OF OUR VIEWS HEREINABOVE SET FORTH.

IT WILL BE APPRECIATED IF OUR OFFICE MAY BE FURNISHED INFORMATION AS TO YOUR DISPOSITION OF THE MATTER.