B-116480, AUG 19, 1953

B-116480: Aug 19, 1953

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PRECIS-UNAVAILABLE THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A LETTER DATED AUGUST 3. AN AWARD OF THE CONTRACT FOR THE RACKS INVOLVED WAS MADE TO FLEXA STEEL PRODUCTS. AGAINST THE AWARD ON THE GROUND THAT THE ADVERTISED SPECIFICATIONS WERE WRITTEN IN SUCH MANNER AS TO PERMIT ONLY ONE MANUFACTURER. PARAGRAPH 5 "I" IS WORDED SO AS TO REFER TO UNISTRUT'S UNICLIP FITTING WORTH APPROXIMATELY $.10 EACH. THIS CLIP IS PATENTED AND DESIGNED TO FIT UNISTRUT P-1000. NONE OF THE BIDDERS PRODUCTS ARE EQUAL TO UNISTRUT IN ALL PHASES OF THE RACKING CONSTRUCTION REQUIRED BY THIS PROJECT. THE CONTRACTING OFFICER STATES THAT IT IS HIS BELIEF THAT THE SPECIFICATIONS. HAVE SUFFICIENT LATITUDE TO PERMIT COMPETITION AND TO ALLOW FOR A FASTENING NUT NOT COVERED BY PATENTS HELD BY ANOTHER COMPANY.

B-116480, AUG 19, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED AUGUST 3, 1953, FROM THE DIRECTOR OF FINANCE OF YOUR DEPARTMENT, FORWARDING THE FILE RELATIVE TO THE PROTESTS OF THE AMERICAN STEEL AND IRON WORKS AND LANDES, ZACHARY AND PETERSON AGAINST THE AWARD OF A CONTRACT TO FLEXA STEEL PRODUCTS, INC., FOR FURNISHING STORAGE RACKS TO THE LOWRY AIR FORCE BASE, DENVER, COLORADO.

BY INVITATION NO. 05-600-53-48, THE PURCHASING AND CONTRACTING OFFICE, LOWRY AIR FORCE BASE, DENVER, COLORADO, REQUESTED BIDS TO BE OPENED JUNE 19, 1953, FOR FURNISHING STORAGE RACKS, TYPES A AND B, TO BE IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS THEREFOR, INCLUDING PARAGRAPH 18 ON PAGE 4 OF THE CONTINUATION SHEET OF THE BID SCHEDULE WHICH ADVISED BIDDERS THAT THE MATERIAL TO BE FURNISHED "SHALL BE SIMILAR AND EQUAL TO THAT FURNISHED BY UNISTRUT PRODUCTS COMPANY." AN AWARD OF THE CONTRACT FOR THE RACKS INVOLVED WAS MADE TO FLEXA STEEL PRODUCTS, INC. BY LETTER DATED JUNE 17, 1953, THE AMERICAN STEEL AND IRON WORKS PROTESTED TO THE PURCHASING AND CONTRACTING OFFICE, APPARENTLY ON BEHALF OF THE ELECTRIC SALES COMPANY, ONE OF THE BIDDERS, AGAINST THE AWARD ON THE GROUND THAT THE ADVERTISED SPECIFICATIONS WERE WRITTEN IN SUCH MANNER AS TO PERMIT ONLY ONE MANUFACTURER, UNISTRUT PRODUCTS COMPANY, TO QUOTE ON THE GOVERNMENT'S NEEDS.

IN LETTER OF JUNE 22, 1953, LANDES, ZACHARY AND PETERSON, ONE OF THE BIDDERS, PROTESTED THE AWARD OF THE CONTRACT ON THE FOLLOWING GROUNDS:

A. PARAGRAPH 5 "I" IS WORDED SO AS TO REFER TO UNISTRUT'S UNICLIP FITTING WORTH APPROXIMATELY $.10 EACH. THIS CLIP IS PATENTED AND DESIGNED TO FIT UNISTRUT P-1000, P-2000 OR P-4000 CHANNEL. FLEXA STEEL PRODUCTS, INC. HAS NEVER MADE A COMPARABLE FITTING AND MAY BE THINKING IN TERMS OF DESIGNING AN EXPENSIVE FITTING TO COVER THIS PORTION OF THE SPECIFICATION.

B. PARAGRAPH 7 CALLS FOR THE STRENGTH INHERENT WITH PYRAMID SHAPED 12- GAUGE CLAMPING RIDGE AND THE HARDENED TOOTHED SLOTTED NUTS AVAILABLE ONLY WITH UNISTRUT DESIGN.

C. PARAGRAPH 9 DESCRIBES THE ADVANTAGES OF THE UNISTRUT UNINUT WHICH MAKE FOR A STRONGER CONNECTION THAN AVAILABLE ELSEWHERE.

D. PARAGRAPH 18 FORMALLY TIES THE SPECIFICATION TO A PRODUCT EQUAL TO UNISTRUT. NONE OF THE BIDDERS PRODUCTS ARE EQUAL TO UNISTRUT IN ALL PHASES OF THE RACKING CONSTRUCTION REQUIRED BY THIS PROJECT.

IN COMMENTING UPON THE PROTEST OF THE AMERICAN STEEL AND IRON WORKS, THE CONTRACTING OFFICER STATES THAT IT IS HIS BELIEF THAT THE SPECIFICATIONS, AS WRITTEN, HAVE SUFFICIENT LATITUDE TO PERMIT COMPETITION AND TO ALLOW FOR A FASTENING NUT NOT COVERED BY PATENTS HELD BY ANOTHER COMPANY. IT IS OFTEN DIFFICULT TO KNOW, BEFORE ADVERTISING FOR BIDS, WHETHER EQUIPMENT "EQUAL" TO A SPECIFIED PROPRIETARY ARTICLE CAN BE FURNISHED WITHOUT INFRINGING PATENT RIGHTS HELD BY THE MANUFACTURER OF THE NAMED PRODUCT. THE INVITATION IN THE PRESENT PROCUREMENT CALLED FOR A MATERIAL SIMILAR AND EQUAL TO THAT FURNISHED BY UNISTRUT PRODUCTS COMPANY RATHER THAN IDENTICAL.

AS TO THE PROTEST OF LANDES, ZACHARY AND PETERSON, THE CONTRACTING OFFICER REPORTS AS FOLLOWS:

"3. PARAGRAPH A OF THE PROTEST, REFERS TO A CLIP WHICH FITS INTO THE FRAMING MEMBERS TO ALLOW FOR ADJUSTMENT OF THE SHELVING WITHOUT BOLTING. FURNISHING THE CLIP IS NOT A PART OF THE INVITATION AND THE COST OF THE ITEM IS NOT A FACTOR IN THE DETERMINATION OF THE LOW BID. ALL COMPETITORS ARE ABLE TO FURNISH THE CLIPS FOR THE INTERMEDIATE SUPPORTS THAT WOULD MEET THE REQUIREMENT OF PARAGRAPH 5I OF THE INVITATION.

"4. WITH REFERENCE TO PARAGRAPH B, OF THE PROTEST, THE INVITATION DOES NOT SPECIFY THE GAUGE OF STEEL TO BE USED IN THE FRAMING MEMBERS BUT DOES REQUIRE THAT THE MATERIALS USED MEET THE TEST FOR SAFETY AS PRESCRIBED ELSEWHERE IN THE INVITATION. THE RACK SYSTEM TO BE FURNISHED BY THE FLEXA STEEL PRODUCTS COMPANY WILL BE BASED ON A CALCULATED STRENGTH OF 1900# PER OPENING WITH A SAFETY FACTOR OF 3 WHICH WOULD AMOUNT TO A SAFETY FACTOR OF 4 ON THE BASIS OF THE SPECIFIED CAPACITY OF 1000# PER OPENING. THIS MEETS THE REQUIREMENTS OF THE INVITATION.

"5. WITH REFERENCE TO PARAGRAPH C, OF THE PROTEST, ALL COMPETITORS WERE ASSURED THAT CONSIDERATION WOULD BE GIVEN TO AN EQUAL LOCKING NUT PROVIDED THAT THE FITTING DID MEET THE REQUIREMENTS OF EASY HANDLING AND FURNISH THE NECESSARY LOCKING AND ALIGNMENT REQUIREMENTS. ALTHOUGH THE FLEXA STEEL PRODUCT DOES NOT PARALLEL THE SPECIFICATIONS TO THE EXTENT OF FURNISHING A NUT WITH TWO GROOVES TO FIT WITHIN INTURNED SLOTTED EDGES OF THE FRAMING MEMBERS, THEIR PRODUCT DOES MEET THE REQUIREMENTS OF EASY HANDLING AND IS DESIGNED TO HOLD ITSELF INTO POSITION DURING INSTALLATION.

"6. THE STATEMENT OF THE COMPANY IN PARAGRAPH D, OF THE PROTEST, DENIES THE EXISTENCE OF ANY PRODUCT EQUAL TO THEIR OWN. AN INSTALLATION OF THE FLEXA STEEL COMPANY IS NOW IN USE AT THE ROCKY MOUNTAIN ARSENAL AND HAS BEEN FOR APPROXIMATELY TWO YEARS. SO FAR, THE PRODUCT HAS BEEN ENTIRELY SATISFACTORY IN EVERY RESPECT.

"7. AWARD TO THE FLEXA STEEL COMPANY WOULD RESULT IN THE GOVERNMENT OBTAINING A PRODUCT WHICH WILL ACCOMPLISH EQUAL RESULTS ACCORDING TO THE CONCEPTS OF THE OPERATION AS OUTLINED IN THE INVITATION. THIS WILL BE VERIFIED BY TESTS MADE ON SAMPLE RACK TO BE FURNISHED PRIOR TO INSTALLATION OF ALL STORAGE RACKS.

"8. AT THE TIME OF RELEASE OF THE INVITATION, IT WAS BELIEVED TO BE AN ADEQUATE PURCHASE DESCRIPTION AND, IN EFFECT, CONCENTRATED ON THE FUNDAMENTAL PROPERTIES OF THE ARTICLE TO BE PURCHASED. THE KNOWLEDGE THAT PARAGRAPH 9, OF THE INVITATION, DESCRIBED A FITTING PECULIAR TO THE UNI- NUT CAME TO ATTENTION TOO LATE FOR CHANGING THE SPECIFICATIONS. THE AWARD TO THE FLEXA STEEL PRODUCTS COMPANY WAS THEN BASED ON THE GOVERNMENT ACCEPTING EQUIPMENT VARYING IN A REASONABLE MEASURE FROM THE ADVERTISEMENT."

WHILE THE ADVERTISED SPECIFICATIONS IN THIS CASE SEEM TO DESCRIBE MATERIAL OF THE UNISTRUT PRODUCTS COMPANY, THERE HAS BEEN FURNISHED A REASONABLE SHOWING AS TO THE NEED FOR THE REQUIREMENTS GENERALLY; AND ON THE BASIS OF THE EXPLANATION BY THE CONTRACTING OFFICER, IT DOES NOT APPEAR THAT COMPETITION WAS UNDULY RESTRICTED.

ACCORDINGLY, UNDER THE CIRCUMSTANCES, THIS OFFICE WILL NOT OBJECT TO THE AWARD OF THE CONTRACT TO FLEXA STEEL PRODUCTS, INC.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT, ARE RETURNED HEREWITH.