B-129989, FEB. 1, 1957

B-129989: Feb 1, 1957

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INC.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30. REFERENCE IS MADE TO YOUR LETTER OF INQUIRY OF JANUARY 15. YOU STATE THAT THE SPECIFICATIONS FOR THE CROSS-MEMBERS AND THE UNDER-STRUCTURE WERE COPIED FROM THE ADVERTISING LITERATURE OF THE MORRISON STEEL PRODUCTS COMPANY AND THAT YOU PROTEST THE AWARD FOR REASONS AS FOLLOWS: "/A) - OUR UNDER-STRUCTURE IS DEFINITELY AS STRONG IF NOT STRONGER AND WE WILL GUARANTEE IT TO DO THE JOB INTENDED BY THE AIR FORCE. "/B) - OUR BODY HAS BEEN ACCEPTED THROUGHOUT THE UNITED STATES IN OTHER BIDS SIMILAR TO THAT REQUESTED AS DEFINITELY BEING EQUAL. "/C) - THE ANDREWS AIR FORCE BASE ARE PAYING MORE FOR A PRODUCT IN WHICH THE 5 CROSS MEMBERS ARE NECESSARY IN ACCORDANCE TO OUR COMPETITORS CONSTRUCTION BUT IS DEFINITELY NOT NECESSARY IN ACCORDANCE WITH OUR CONSTRUCTION. "/D) - I QUESTION THE COMPETENCY OF THE PERSONNEL THAT EVALUATED THIS BID AND WE WOULD BE WILLING TO PUT THIS MATTER BEFORE AN UNBIASED CERTIFIED ENGINEER AND FEEL VERY SURE THAT THE STATEMENTS WE ARE MAKING WOULD BE CONFIRMED. "/E) - WE WERE THE LOW BIDDERS AND WERE GIVING A PRODUCT THAT WAS EQUAL AS REQUESTED IN SPECIFICATIONS.'.

B-129989, FEB. 1, 1957

TO READING BODY WORKS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30, 1956, WITH ENCLOSURE, PROTESTING THE AWARD OF A CONTRACT TO S. J. MEEK'S SON BY THE ANDREWS AIR FORCE BASE, MARYLAND, PURSUANT TO INVITATION NO. 49 608-57-22. ALSO, REFERENCE IS MADE TO YOUR LETTER OF INQUIRY OF JANUARY 15, 1957.

IN THE LETTER OF NOVEMBER 30, YOU STATE THAT THE SPECIFICATIONS FOR THE CROSS-MEMBERS AND THE UNDER-STRUCTURE WERE COPIED FROM THE ADVERTISING LITERATURE OF THE MORRISON STEEL PRODUCTS COMPANY AND THAT YOU PROTEST THE AWARD FOR REASONS AS FOLLOWS:

"/A) - OUR UNDER-STRUCTURE IS DEFINITELY AS STRONG IF NOT STRONGER AND WE WILL GUARANTEE IT TO DO THE JOB INTENDED BY THE AIR FORCE.

"/B) - OUR BODY HAS BEEN ACCEPTED THROUGHOUT THE UNITED STATES IN OTHER BIDS SIMILAR TO THAT REQUESTED AS DEFINITELY BEING EQUAL.

"/C) - THE ANDREWS AIR FORCE BASE ARE PAYING MORE FOR A PRODUCT IN WHICH THE 5 CROSS MEMBERS ARE NECESSARY IN ACCORDANCE TO OUR COMPETITORS CONSTRUCTION BUT IS DEFINITELY NOT NECESSARY IN ACCORDANCE WITH OUR CONSTRUCTION.

"/D) - I QUESTION THE COMPETENCY OF THE PERSONNEL THAT EVALUATED THIS BID AND WE WOULD BE WILLING TO PUT THIS MATTER BEFORE AN UNBIASED CERTIFIED ENGINEER AND FEEL VERY SURE THAT THE STATEMENTS WE ARE MAKING WOULD BE CONFIRMED.

"/E) - WE WERE THE LOW BIDDERS AND WERE GIVING A PRODUCT THAT WAS EQUAL AS REQUESTED IN SPECIFICATIONS.'

THE INVITATION REQUESTED BIDS FOR FURNISHING 10 UTILITY BODY ASSEMBLIES, MORRISON SERIES 700, MORRISON MODEL 700-6, OR EQUAL, FOR MOUNTING ON CHEVROLET PICK-UP TRUCKS, THE SAID ASSEMBLIES TO BE IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS THEREFOR. THE ABSTRACT OF BIDS SHOWS THAT, ALTHOUGH BIDS WERE SOLICITED FROM NINE BIDDERS, ONLY TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, ONE IN THE AMOUNT OF $334.60 PER UNIT FROM FRED S. GICHNER IRON WORKS, INC., OFFERING YOUR MODEL 78-B, AND ONE FROM S. J. MEEK'S SON IN THE AMOUNT OF $389.70 PER UNIT LESS A DISCOUNT OF ONE PERCENT FOR PAYMENT WITHIN 20 DAYS. THE LOW BID WAS REJECTED ON THE GROUND THAT IT DID NOT MEET THE ADVERTISED SPECIFICATIONS AND THE CONTRACT WAS AWARDED TO S. J. MEEK'S SON ON THE BASIS OF HIS QUOTED PRICE.

THE DEPARTMENT OF THE AIR FORCE REPORTS THAT PRIOR TO THE AWARD OF THE CONTRACT A TECHNICAL COMPARISON OF THE EQUIPMENT OFFERED BY BOTH BIDDERS WAS MADE BY QUALIFIED PERSONNEL AT THE BASE AND THAT IT WAS FOUND THAT THE EQUIPMENT OFFERED BY YOU WAS NOT EQUAL TO THAT OFFERED BY THE SUCCESSFUL BIDDER. FOLLOWING THE AWARD OF THE CONTRACT PROTESTS WERE RECEIVED FROM THE FRED S. GICHNER IRON WORKS, INC., WHOSE PRODUCT YOU OFFERED AND FROM YOU BASED ON THE CONTENTION THAT THE EQUIPMENT OFFERED BY YOU FULLY MET THE SPECIFICATIONS. THE CONTRACTING OFFICER THEN REQUESTED A REVIEW OF THE TECHNICAL EVALUATION ON WHICH THE AWARD WAS BASED BY A GROUP OF QUALIFIED AIR FORCE AUTOMOTIVE SUPPLY AND MAINTENANCE PERSONNEL AT THE BASE AND A DETERMINATION WAS AGAIN MADE THAT THE READING 78-B MODEL WAS NOT EQUAL TO THE MORRISON 700-6 MODEL OFFERED BY THE SUCCESSFUL BIDDER. THE BASIS FOR THE DETERMINATION THAT THE EQUIPMENT OFFERED BY YOU WAS NOT EQUAL TO THAT OFFERED BY THE HIGHER BIDDER IS SET FORTH IN A REPORT OF SURVEY AS FOLLOWS:

"A. THE MORRISON NO. 700-6 HAS 5 EA CROSS MEMBERS AND 2 EA LONGITUDINAL MEMBERS AS COMPARED TO THE READING NO. 78-B WITH 4 EA CROSS MEMBERS. WAS ALSO FOUND THAT THE LONGITUDINAL MEMBERS OF THE READING NO. 78-B DID NOT RUN THE FULL LENGTH OF THE BODY. PICTORIAL COMPARISON CAN BE MADE WITH THE ATTACHED PAMPHLETS.

"B. THE CONSTRUCTION OF THE MORRISON NO. 700-6 AS COMPARED TO THE READING NO. 78-B LEAVES MUCH IN FAVOR OF THE MORRISON NO. 700-6 WHEN UTILIZED AS AIR FORCE EQUIPMENT. THE MORRISON NO. 700-6 IS CONSTRUCTED IN INDIVIDUAL PARTS BOLTED TOGETHER AND MAY EASILY BE REMOVED FOR REPLACEMENT OR MAINTENANCE WHEREAS THE READING NO. 78-B HAS INDIVIDUAL PARTS TACK WELDED TOGETHER THAT COULD CAUSE A MAINTENANCE PROBLEM WHEN REPLACING A DAMAGED PART.

"C. THE INTERIOR OF COMPARTMENTS OF THE MORRISON NO. 700-6 IS REINFORCED BY CROSS MEMBERS TO PREVENT ANY DEFLECTION WHEREAS THE READING NO. 78-B HAS NONE.

"D. THE MOST NOTEWORTHY DIFFERENCE IN THE TWO PRODUCTS FOUND IS THE WORKMANSHIP. THE READING NO. 78-B WAS FOUND TO HAVE A VERY POOR AND HAPHAZARD WELDING WORK. THE EDGES OF THE METAL WELDED WERE BURNED, GREAT BLOBS OF WELD WERE LEFT ON AND SUPPOSED FLUSH EDGES WERE CONTRACTED BY TOO MUCH HEAT.

"E. IN VIEW OF THE ABOVE IT IS THE OPINION OF THE UNDERSIGNED THAT THE READING NO. 78-B BODY IS NOT AN "OR EQUAL" ITEM.'

WE ARE NOT UNMINDFUL OF THE FACT THAT IT IS THE DUTY OF ALL OFFICERS OF THE GOVERNMENT CHARGED WITH THE RESPONSIBILITY OF PROCURING SUPPLIES AND SERVICES FOR THE UNITED STATES TO THE GUIDED IN THEIR ACTIONS BY THE BEST INTERESTS OF THE GOVERNMENT AND BY THE EXERCISE OF GOOD FAITH IN THEIR DEALINGS WITH BIDDERS SEEKING GOVERNMENT BUSINESS. HOWEVER, THE RESPONSIBILITY FOR MAKING FACTUAL DETERMINATIONS AS TO WHAT EQUIPMENT WILL BEST MEET THE GOVERNMENT'S REQUIREMENTS 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 HAVE ABUSED THEIR AUTHORITY.

THE CONTRACT IN THE PRESENT MATTER WAS AWARDED TO S. J. MEEK'S SON ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION, MADE AFTER A CAREFUL INVESTIGATION, THAT THE EQUIPMENT OFFERED BY YOU WAS NOT EQUAL 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 AND THE ADMINISTRATIVE REPORT IS TO THE EFFECT THAT, CONTRARY TO YOUR ALLEGATIONS, QUALIFIED PERSONNEL AT THE BASE MADE THE TECHNICAL COMPARISON OF THE EQUIPMENT OFFERED BY YOU AND THE OTHER BIDDER. THE FACT THAT A BIDDER MAY BE UNABLE TO MEET THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS WHICH HAVE BEEN DETERMINED TO REFLECT OR TO DESCRIBE THE GOVERNMENT'S NEEDS, IS NOT SUFFICIENT TO WARRANT THE CONCLUSION THAT SUCH SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION. THE REFERENCE IN THE INVITATION TO MORRISON MODEL 700-6 WHICH WAS MERELY DESCRIPTIVE, WAS FOLLOWED BY THE WORDS "OR EQUAL.' THEREFORE, OTHER BIDDERS OFFERING EQUIPMENT EQUAL TO THAT SPECIFIED WERE NOT PRECLUDED FROM BIDDING.

ACCORDINGLY, ON THE BASIS OF THE RECORD BEFORE US, WE HAVE NO ALTERNATIVE BUT TO HOLD THAT THE AWARD RESULTED IN A BINDING LEGAL OBLIGATION.