B-166731, AUG. 14, 1969

B-166731, AUG. 14, 1969

BID PROTEST - EQUIPMENT CONFORMABILITY DECISION TO PENCO PRODUCTS INC., REAFFIRMING DECISION OF JUNE 9, 1969, CONCERNING DENIAL OF PROTEST OF DISTRIBUTOR, MAYO CASTER AND EQUIPMENT CO. ON BASIS THAT EQUIPMENT DOES NOT MEET REQUIREMENTS.

TO PENCO PRODUCTS INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 25, 1969, REGARDING OUR DECISION OF JUNE 9, 1969, B-166731, RELATIVE TO THE PROTEST OF YOUR DISTRIBUTOR, MAYO CASTER AND EQUIPMENT CO.

IN YOUR LETTER OF JUNE 25, YOU STATE THAT OUR DECISION CONTAINS ERRONEOUS INFORMATION. SPECIFICALLY, YOU SAY THAT THE NEXT TO LAST PARAGRAPH OF OUR JUNE 9 DECISION STATES THAT THE GOVERNMENT PRINTING OFFICE (GPO) OBJECTION "IS THAT THE HANDLE MUST BE REPLACED IN ITS ENTIRETY, WHEREAS, WITH MACHINE SCREWS, HANDLES CAN BE REPLACED IN PARTIAL SEGMENTS IF NECESSARY.' YOU ALLEGE THAT THIS IS NOT A CORRECT STATEMENT. YOU STATE THAT IF YOUR LOCKER HANDLE IS TO BE REPLACED IT MUST BE REPLACED AS A COMPLETE ASSEMBLY. THEREFORE, IT SHOULD MAKE NO DIFFERENCE WHETHER THE REPLACEMENT HAS TO BE DONE BY REMOVING MACHINE SCREWS OR WHETHER IT CAN BE DONE BY THE SIMPLE MEANS PROVIDED IN YOUR DESIGN. FURTHER, YOU ALLEGE THAT THE COST OF REPLACING THE COMPLETE HANDLE IS LESS THAN $2, AN INCONSEQUENTIAL AMOUNT. YOU ALSO STATE THAT OVER THE PAST SEVERAL YEARS YOU HAVE FURNISHED 200 LOCKERS TO THE GPO; THAT YOU HAVE CONTINUALLY ASKED GPO TO REFRAIN FROM THE USE OF ANY BRAND NAME OR EQUAL AND TO USE THE FEDERAL SPECIFICATION AS USED BY THE GOVERNMENT AGENCIES GENERALLY; AND THAT, AS AN EXAMPLE OF THE CONFUSION EXISTING IN GPO, UP UNTIL A YEAR AGO GPO WAS REFERENCING THE BRAND NAME OF A COMPANY THAT HAD BEEN OUT OF BUSINESS.

WE HAVE BEEN FURNISHED AN ADDITIONAL REPORT BY THE GPO WITH RESPECT TO YOUR ALLEGATIONS. IT IS REPORTED WITH RESPECT TO THE HANDLE ON THE LOCKERS THAT ANY HANDLE IS USUALLY SUPPORTED IN TWO PLACES ON A LOCKER DOOR. IN THE CASE OF YOUR LOCKER, WHEN EITHER SUPPORT BREAKS, THEN THE HANDLE MUST BE CHANGED IN ITS ENTIRETY. ON THE OTHER HAND, THE EXPERIENCE OF GPO HAS SHOWN THAT, WITH OTHER TYPE HANDLES PROVIDED WITH MACHINE SCREWS, BREAKAGE USUALLY OCCURS WITH ONE OR BOTH OF THE MACHINE SCREWS AND ONLY REQUIRES SCREW REPLACEMENT (REPLACING "IN PARTIAL SEGMENTS").

REGARDING THE COST OF THE COMPLETE HANDLE REPLACEMENT AT LESS THAN $2, THE GPO ADVISES THAT, BASED ON THE FACT THAT A LOCKER CAN BE LOCATED ANYWHERE IN ITS 33 ACRES OF FLOOR SPACE AND THAT ITS LABOR COST (INCLUDING OVERHEAD) IS $10.22 PER HOUR, IT CANNOT CONSIDER THE COST OF REPLACING A COMPLETE HANDLE AS INCONSEQUENTIAL. IT IS FURTHER REPORTED THAT, SUBSEQUENT TO 1966, YOU REDESIGNED YOUR HANDLES AND THAT THE GPO DID ACCEPT IN EXCESS OF 200 PENCO LOCKERS WITH THE REDESIGNED HANDLE. THE ACCEPTANCE WAS BASED ON A PERIOD OF TRIAL EVALUATION WHICH THUS FAR HAS PROVED UNSATISFACTORY.

REGARDING THE REFERENCING OF A BRAND NAME OF A COMPANY THAT HAS BEEN OUT OF BUSINESS IT IS REPORTED THAT A COMPANY IS KEPT ON THE GPO BIDDERS LIST FOR 1 YEAR EVEN THOUGH NO RESPONSE IS RECEIVED TO BID SOLICITATIONS. HENCE, IF A COMPANY LIQUIDATES WITHOUT NOTIFICATION TO GPO IT SEEMS APPARENT THAT UNDER GPO POLICY THE COMPANY WOULD BE RETAINED ON THE GPO BIDDING LIST FOR AT LEAST 1 YEAR.

WHILE YOU ALLEGE THAT YOUR LOCKERS FULLY COMPLY WITH THE REQUIREMENTS OF OTHER GOVERNMENT AGENCIES, THE GPO REPORTS THAT IT HAS USED PENCO LOCKERS FOR SOMETIME AND HAS FOUND THAT THE TYPE OF DOOR HANDLE IS UNSATISFACTORY FROM THE STANDPOINT OF MAINTENANCE AND REPAIR IN THE GPO HEAVY-DUTY INDUSTRIAL ENVIRONMENT.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY FOR ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554. WHILE IT MAY BE THAT THE PENCO LOCKER MEETS THE NEEDS OF SOME AGENCIES OF THE GOVERNMENT, THERE IS NO REQUIREMENT THAT AN AGENCY OF THE GOVERNMENT MUST PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED. FURTHERMORE, THE GOVERNMENT MAY NOT BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.

IN VIEW OF THE ADMINISTRATIVE REPORT REGARDING YOUR ALLEGATIONS AND HAVING REGARD FOR THE FACT THAT YOUR PRODUCT DOES NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS, WE HAVE NO ALTERNATIVE BUT TO AFFIRM OUR DECISION OF JUNE 9, 1969.