B-124058, AUG. 2, 1955

B-124058: Aug 2, 1955

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TO WINPOWER MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO LETTER OF MAY 24. BY THE REFERRED-TO INVITATION BIDS WERE REQUESTED FOR FURNISHING GENERATORS FOR X-RAY UNITS. IT WAS PROVIDED THAT THE MAXIMUM WEIGHT OF EACH GENERATOR SHOULD NOT BE MORE THAN 140 POUNDS. PROSPECTIVE BIDDERS WERE ADVISED THAT "TWO COPIES OF DESCRIPTIVE LITERATURE GIVING COMPLETE SPECIFICATIONS SHALL ACCOMPANY ALL BIDS.'. - "ANY REFERENCE IN THE SCHEDULE TO MANUFACTURERS' BRAND NAMES AND NUMBERS IS DUE TO LACK OF A SATISFACTORY SPECIFICATION OR COMMODITY DESCRIPTION. SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE. IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF THE ARTICLES THAT WILL BE SATISFACTORY.

B-124058, AUG. 2, 1955

TO WINPOWER MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO LETTER OF MAY 24, 1955, WITH ENCLOSURES, FROM MR. H. C. BARTON PROTESTING, ON YOUR BEHALF, AGAINST THE ACTION OF THE GENERAL SERVICES ADMINISTRATION IN AWARDING A CONTRACT TO THE FAIRBANKS, MORSE AND COMPANY FOR FURNISHING GENERATOR SETS PURSUANT TO INVITATION NO. 4D-54490-R-1-28-55 ISSUED JANUARY 7, 1955, BY THE FEDERAL SUPPLY SERVICE. ALSO, THERE HAS BEEN RECEIVED A COPY OF A LETTER DATED JUNE 3, 1955, FROM HONORABLE K. M. LECOMPTE, HOUSE OF REPRESENTATIVES, TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, RELATIVE TO THE MATTER OF YOUR PROTEST.

BY THE REFERRED-TO INVITATION BIDS WERE REQUESTED FOR FURNISHING GENERATORS FOR X-RAY UNITS. IT WAS PROVIDED THAT THE MAXIMUM WEIGHT OF EACH GENERATOR SHOULD NOT BE MORE THAN 140 POUNDS; THAT "THE OVERALL DIMENSIONS SHALL NOT EXCEED: LENGTH 25 INCHES, WIDTH 18 INCHES, AND HEIGHT 22 INCHES" AND THAT THE GENERATOR "SHALL BE HOMELITE CORPORATION MODEL 24 A 115-3, OR EQUAL.' PROSPECTIVE BIDDERS WERE ADVISED THAT "TWO COPIES OF DESCRIPTIVE LITERATURE GIVING COMPLETE SPECIFICATIONS SHALL ACCOMPANY ALL BIDS.' PARAGRAPH 13 OF THE SPECIAL CONDITIONS PROVIDED WITH RESPECT TO BRAND NAMES, THAT---

"ANY REFERENCE IN THE SCHEDULE TO MANUFACTURERS' BRAND NAMES AND NUMBERS IS DUE TO LACK OF A SATISFACTORY SPECIFICATION OR COMMODITY DESCRIPTION. SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF THE ARTICLES THAT WILL BE SATISFACTORY. BIDS ON COMPARABLE ITEMS OFFERED WILL BE CONSIDERED, PROVIDED THE BIDDER STATES IN HIS BID THE EXACT ARTICLE HE IS OFFERING AND HOW IT DIFFERS FROM THAT SPECIFIED. CUTS, ILLUSTRATIONS, AND OTHER DESCRIPTIVE MATTER WHICH WILL CLEARLY INDICATE THE CHARACTER OF THE ARTICLE COVERED BY THE BID AND THE DIFFERENCE FROM THE REFERENCED BRAND SHOULD BE INCLUDED, IF AVAILABLE. IN THE ABSENCE OF SUCH INFORMATION, IT IS UNDERSTOOD THAT THE BIDDER IS OFFERING THE ITEM AS SPECIFIED. WHERE FORMAL SPECIFICATIONS ARE SHOWN OR REFERRED TO IN THE SCHEDULE, INSERTION OF BRAND NAMES AND NUMBERS BY THE BIDDER WILL, UNLESS OTHERWISE STATED, BE UNDERSTOOD TO MEAN THAT THE ARTICLES SO OFFERED FULLY COMPLY WITH THE SPECIFICATION REQUIREMENTS.'

IN SPECIAL NOTICE NO. 1 DATED JANUARY 19, 1955, BIDDERS WERE ADVISED OF CERTAIN CHANGES IN THE INVITATION INCLUDING, AMONG OTHERS, INFORMATION THAT A WEIGHT OF 150 POUNDS SHOULD BE SUBSTITUTED FOR THE ADVERTISED WEIGHT OF 140 POUNDS.

THE RECORD SHOWS THAT TWO BIDS WERE RECEIVED WHICH WERE LOWER THAN YOURS BUT WHICH WERE REJECTED BECAUSE THEY WERE NOT RESPONSIVE TO THE INVITATION. IN LETTER DATED FEBRUARY 2, 1955, WHICH ACCOMPANIED YOUR BID, IT WAS STATED THAT YOU WERE PLEASED TO SUBMIT A BID ON THE GENERATOR SETS BUILT TO THE SPECIFICATIONS OUTLINED IN THE INVITATION AND THE ACCOMPANYING SPECIAL NOTICE TO BIDDERS. THERE WAS ATTACHED TO BID, HOWEVER, DESCRIPTIVE LITERATURE WHICH SHOWED THAT THE MODEL 14 FB BRIGGS AND STRATTON ENGINE WHICH YOU OFFERED WOULD DEVELOP 5.25 HORSEPOWER AT 3,600 RPM, INSTEAD OF 5.4; THAT THE GENERATOR WHICH YOU OFFERED HAD A 2,250 WATT CAPACITY INSTEAD OF 2,500 AS REQUIRED, AND THAT YOUR BID WAS BASED ON FURNISHING A GENERATOR OF A LENGTH OF 25 1/4 INCHES AND A WIDTH OF 19 INCHES, WHEREAS THE ADVERTISED SPECIFICATIONS CALLED FOR OVER-ALL DIMENSIONS OF NOT TO EXCEED 25 INCHES IN LENGTH AND 18 INCHES IN WIDTH. THE GENERAL SERVICES ADMINISTRATION REPORTS THAT IN VIEW OF SUCH DEVIATIONS THE CONTRACT WAS AWARDED TO FAIRBANKS MORSE AND COMPANY ON MARCH 21, 1955, AS THE LOWEST BIDDER MEETING THE REQUIREMENTS OF THE INVITATION.

WHEN YOUR PROTEST WAS RECEIVED AN ADMINISTRATIVE REPORT THEREON WAS REQUESTED FROM THE GENERAL SERVICES ADMINISTRATION. THAT ADMINISTRATION REFERRED THE PROTEST TO ITS BOARD OF REVIEW FOR CONSIDERATION AND RECOMMENDATION TO THE ADMINISTRATOR. THE BOARD HELD HEARINGS AT WHICH YOUR REPRESENTATIVES AND THOSE OF THE FEDERAL SUPPLY SERVICE WERE PRESENTED. THE ADMINISTRATOR NOW ADVISES THAT THE BOARD CONCLUDED THAT THE CONTRACTING OFFICER ACTED PROPERLY IN REJECTING YOUR BID AND THAT HE APPROVED THE RECOMMENDATION OF THE BOARD AND ADVISED YOU OF HIS ACTION IN SO APPROVING THE RECOMMENDATION.

THE CONTRACT WAS AWARDED TO THE FAIRBANKS MORSE AND COMPANY ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT YOUR BID WAS NOT RESPONSIVE TO THE ADVERTISED SPECIFICATIONS IN ALL MATERIAL RESPECTS. THE CONTRACTING OFFICER NECESSARILY IS VESTED WITH A CERTAIN AMOUNT OF DISCRETION IN SUCH MATTERS AND IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR A COMPLETE DISREGARD OF THE FACTS WE WOULD NOT BE WARRANTED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL. WHILE YOU CLAIM THAT YOUR BID WAS RESPONSIVE TO THE INVITATION, THE DESCRIPTIVE LITERATURE SUBMITTED BY YOU INDICATED OTHERWISE AND YOU DID NOT EVEN EXPLAIN, AS YOU WERE REQUIRED TO DO, THE FACT THAT SUCH LITERATURE INDICATED THAT THE EQUIPMENT OFFERED DEVIATED FROM THE SPECIFICATION REQUIREMENTS IN WHAT THE CONTRACTING OFFICER REPORTS WERE MATERIAL RESPECTS.

ACCORDINGLY, YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL OR IMPROPER.