B-131862, AUG. 1, 1957

B-131862, AUG. 1, 1957

TO SHELDON MACHINE CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 15, 1957, ACKNOWLEDGED ON MAY 24, PROTESTING THE ACTION OF THE DEPARTMENT OF THE NAVY IN AWARDING A CONTRACT TO THE SOUTH BEND LATHE WORKS PURSUANT TO INVITATION FOR BIDS NO. 600-1335-57. SPECIFICALLY, YOU CONTEND (1) THAT WITH THE EXCEPTION OF SEVERAL SLIGHT VARIATIONS IN DIMENSIONS DUE TO DESIGN AND CONSTRUCTION WHICH YOU CONSIDER APPROXIMATE, YOUR LATHES WERE IN ACCORDANCE WITH SPECIFICATION MIL-L-15261 (AER), AND (2) THAT THE SPECIFICATION IS COMPLETELY PROPRIETARY EXCEPT FOR PARAGRAPH 3.15 CHARACTERISTICS.

WITH RESPECT TO YOUR FIRST CONTENTION, THE DEPARTMENT OF THE NAVY, IN A REPORT DATED JULY 22, 1957, ADVISED AS FOLLOWS:

"UNDER THIS INVITATION, SHELDON MACHINE COMPANY OFFERED ITS MODEL EM-70F LATHE TAKING EXCEPTION TO SEVEN OF THE CHARACTERISTICS IN THE SPECIFICATIONS. BASED ON THE TECHNICAL ADVICE OF BOTH THE REQUIRING ACTIVITY, THE AVIATION SUPPLY OFFICE, PHILADELPHIA, AND THE NAVY PURCHASING OFFICE, WASHINGTON, THE CONTRACTING OFFICER DETERMINED THE SHELDON BID TO BE NON-RESPONSIVE TO THE TERMS OF THE INVITATION. THE LATHES BID UPON BY SHELDON CONTAINED THE FOLLOWING MAJOR DEVIATIONS FROM THE SPECIFICATION:

"A. THE REDUCTION IN THE TRAVEL OF THE TAILSTOCK SPINDLE FROM 4 IN. TO 3 1/2 IN. INDICATES A SHORTER TAILSTOCK. THIS SHORTER TAILSTOCK, IN CONJUNCTION WITH THE BED LENGTH WHICH IS 2 IN. SHORTER THAN THAT SPECIFIED AND STILL MAINTAINS A DISTANCE OF 48 IN. BETWEEN CENTERS, CLEARLY INDICATES A MACHINE OF LIGHTER CONSTRUCTION. THE 70 IN. BED LENGTH MINUS THE 48 IN. BETWEEN CENTERS GIVES 22 IN. COMBINED HEADSTOCK AND TAILSTOCK LENGTH. MOST 13 IN. LATHES HAVE A MINIMUM OF 32 IN. COMBINED HEADSTOCK AND TAILSTOCK LENGTH. THIS DEFICIENCY LIMITS THE CAPACITY OF THE MACHINE FOR CERTAIN OPERATIONS, SUCH AS REAMING, TO 3 1/2 IN. INSTEAD OF 4 IN. AS REQUIRED.

"B. THE REDUCTION IN THE TRAVEL OF THE CROSS SLIDE FROM 8 IN. TO 7 IN. INDICATES A NARROWER BED WIDTH. AS THE BED IS THE ACTUAL BASE OF A LATHE, ANY REDUCTION IN THE WIDTH OF THE BED WILL SUBSTANTIALLY REDUCE ITS RUGGEDNESS. MOST 13 IN. LATHES HAVE A MINIMUM BED WIDTH OF 9 IN. INSTEAD OF 8 IN. AS SPECIFIED. THEREFORE, THIS REDUCTION IN THE CROSS SLIDE TRAVEL LIMITS THE MAXIMUM DIAMETER OF WORK, WHICH MAY BE CUT LONGITUDINALLY, TO 7 IN. INSTEAD OF 8 IN. AS REQUIRED.

"C. THE DECREASE IN THE LONGITUDINAL FEED RATES FROM .0015"--- .084 IN. TO .0009 IN.--- .0535 IN. LIMITS THE SIZE OF THE CUTS BELOW THAT REQUIRED.

"D. THE GREATER CROSS FEED RATES OFFERED, .0008 IN.--- .049 IN. IN LIEU OF .0006 IN.--- .031 IN., LIMITS THE CAPACITY OF THE MACHINE FOR THE FINER FACING CUTS WHICH ARE REQUIRED FOR THESE LATHES.

"THE LATHES PROCURED UNDER THIS INVITATION ARE TO BE USED FOR MACHINE SHOP WORK AT VARIOUS NAVAL AIR STATIONS. IF LATHES BELOW THE MINIMUM REQUIREMENTS WERE ACCEPTED, A GREAT DEAL OF WORK, WHICH COULD MORE EFFICIENTLY AND ECONOMICALLY BE PERFORMED ON SMALL LATHES, WOULD HAVE TO BE PERFORMED ON LARGER ONES; AND WHILE DOING SO, THESE LATTER LATHES WOULD NOT BE AVAILABLE FOR THE PURPOSE FOR WHICH THEY WERE INTENDED.'

AND, IN CONNECTION WITH YOUR SECOND COMPLAINT, THE DEPARTMENT REPORTS:

"MR. PETTIGREW'S STATEMENT THAT SPECIFICATION MIL-L-15261 (AER) IS COMPLETELY PROPRIETARY EXCEPT FOR PARAGRAPH 3.15 "CHARACTERISTICS" IS NOT PROVEN BY THE FACTS. TWENTY-FOUR BIDS WERE INVITED UNDER THIS INVITATION AND FOUR BIDS RECEIVED. NONE OF THE THREE OTHER BIDDERS TOOK MAJOR EXCEPTIONS TO THE REQUIREMENTS OF THE SPECIFICATIONS.'

THE DEPARTMENT THEN CONTINUES:

"MR. PETTIGREW ALSO STATES IN HIS LETTER OF 15 MAY 1957 TO THE COMPTROLLER GENERAL THAT "THE AVIATION SUPPLY OFFICE, PHILADELPHIA, IN 1953, AWARDED HIS COMPANY A CONTRACT FOR ELEVEN 13 IN. LATHES UNDER CONTRACT N383S-90963. THIS AWARD WAS MADE UNDER THE IDENTICAL SPECIFICATION AS USED IN IFB 600-1335-57.'

"THE AWARD OF CONTRACT N383S-90963 TO SHELDON MACHINE COMPANY WAS BASED ON A LETTER FROM THAT COMPANY STATING THAT THE LATHES OFFERED WOULD COMPLY WITH MIL-L-15261 (AER) WITH MINOR DEVIATIONS IN THE TAILSTOCK TRAVEL, CROSS SLIDE TRAVEL, LEAD SCREW DIAMETER, AND LONGITUDINAL AND CROSS FEEDS. HOWEVER, VERBAL COMPLAINTS WERE RECEIVED FROM FIELD PERSONNEL THAT THE LATHES PROCURED UNDER THIS CONTRACT WERE NOT SUITABLE FOR THE SIZE WORK INTENDED.

"THEREFORE, IN VIEW OF THE FOREGOING, A CLOSER EVALUATION WAS MADE OF THE LATHES OFFERED BY SHELDON IN THE INSTANT CASE, AS WELL AS IN ANOTHER PROCUREMENT OF 13 IN. LATHES MADE SUBSEQUENT TO THE AWARD OF CONTRACT N383S-90963. THESE EVALUATIONS REVEALED THE FACT THAT THE DEVIATIONS WERE OF A MAJOR NATURE WITH REGARD TO SOUND LATHE DESIGN. ACCORDING TO SHELDON'S CATALOG, THE ONLY DIMENSIONAL DIFFERENCE BETWEEN ITS 11 IN. AND 13 IN. LATHES IS THE SWING OVER THE BED AND OVER THE CROSS SLIDE. THIS INDICATES THAT THE 13 IN. LATHE OFFERED BY SHELDON IS ITS STANDARD 11 IN. LATHE WITH THE HEAD AND TAIL STOCKS RAISED SO THAT THE LATHE WILL SWING 13 IN. SHOULD THE NAVY ACCEPT THIS LATHE, THERE WOULD BE NO BASIS IN FUTURE PROCUREMENTS FOR REJECTING EVEN SMALLER LATHES WHICH MIGHT BE RAISED TO SWING 13 IN. THE NAVY'S PRESENT, AS WELL AS ANTICIPATED, REQUIREMENTS ARE FOR LARGER AND HEAVIER EQUIPMENT.' PROCUREMENTS FOR REJECTING EVEN SMALLER LATHES WHICH MIGHT BE RAISED TO SWING 13 IN. THE NAVY'S PRESENT, AS WELL AS ANTICIPATED, REQUIREMENTS ARE FOR LARGER AND HEAVIER EQUIPMENT.'

THE COURTS AND ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE CONSISTENTLY ADHERED TO THE PROPOSITION THAT WHETHER EQUIPMENT FURNISHED BY A CONTRACTOR IS SUFFICIENT TO COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATIONS IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION. THIS CONNECTION, ATTENTION IS INVITED TO THE CASES OF O-BRIEN V. CARNEY, 6 F.SUPP. 761, ROYAL SUNDRIES CORP. V. UNITED STATES, 111 F.SUPP. 136, PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113, AND THE FAIRLY RECENT CASE OF FRIEND V. LEE, 96 U.S.APP.D.C. 224, 221 F.2D 96.

THE RECORD INDICATES THAT THE CONTRACTING OFFICIALS MADE A REASONED DETERMINATION BASED UPON A FULL KNOWLEDGE OF THE DIMENSIONS AND CHARACTERISTICS OF THE LATHES OFFERED, AND SUCH RECORD APPEARS TO BE COMPLETELY DEVOID OF ANY EVIDENCE OF FAVORITISM, OR ARBITRARY OR CAPRICIOUS ACTION. THE FACT THAT YOUR BID WAS LOWER THAN THE BID ACCEPTED IS, OF COURSE, IMPORTANT BUT NOT CONTROLLING IN THIS MATTER. THE APPLICABLE LAW REQUIRING ADVERTISING FOR BIDS AND AWARD TO THE LOWEST RESPONSIBLE BIDDER CONTEMPLATES THAT THE LOWEST RESPONSIBLE BIDDER SHALL BE THAT BIDDER WHOSE BID CONFORMS IN ALL MATERIAL RESPECTS TO THE INVITATION. ON THE BASIS OF THE FACTS REPORTED BY THE DEPARTMENT OF THE NAVY, THERE APPEARS NO DOUBT THAT YOUR BID DID NOT MEET THE ADVERTISED SPECIFICATIONS IN ALL MATERIAL RESPECTS.

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