B-132852, SEP. 17, 1957

B-132852, SEP. 17, 1957

TO WALTERS MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 5, 1957, TO THE CONTRACTING OFFICER, NAVAL SUPPLY DEPOT, GREAT LAKES, ILLINOIS, PROTESTING AGAINST THE REJECTION OF A BID SUBMITTED BY YOUR COMPANY UNDER IFB-128-202 -57.

WE HAVE RECEIVED A REPORT IN THIS MATTER FROM THE DEPARTMENT OF THE NAVY WHICH INDICATES THAT THE INVITATION IN QUESTION REQUESTED BIDS ON 1944 STEEL TABLES EQUAL TO MODEL MG 4201 OF MASKELL INC., PITTSBURGH, PENNSYLVANIA, IN ACCORDANCE WITH THE FOLLOWING SPECIFICATIONS.

"SPECIFICATION STEEL OFFICE TABLE

TABLE SHALL HAVE FORMICA PATTERN 956 GRAY OR ITS EQUIVALENT, PLASTIC TOP. SIZE OF TABLE SHALL BE 42 INCHES WIDE BY 24 INCHES DEEP. HEIGHT SHALL BE 30 1/2 INCHES. TABLE SHALL CONTAIN ONE DRAWER.

"TABLE TOP SHALL BE OF AT LEAST 1/16 INCH PATTERN 956 GRAY FORMICA OR ITS EQUIVALENT LAMINATED TO 1/4 INCH PHILIPPINE MAHOGANY, 3/4 INCH FIR PLYWOOD PLUS 3/16 INCH HARD-BOARD. OVERALL THICKNESS SHALL BE 1 1/4 INCHES. ALL CORNERS SHALL BE ROUNDED TO APPROXIMATELY 1 INCH RADIUS. ALL TOP EDGES SHALL BE PROTECTED BY A HEAT TREATED ANODIZED T SHAPED ALUMINUM MOLDING.

"APRONS SHALL EXTEND APPROXIMATELY 3 INCHES BELOW LOWER EDGE OF TOP ON ALL SIDES, AND SHALL BE AT LEAST 19 GAUGE STEEL WITH FLANGED TOP AND BOTTOM EDGES. APRON SPACERS AND TOP SUPPORTS SHALL BE 19 GAUGE STEEL, 3 INCHES HIGH. APRONS SHALL BE ASSEMBLED WITH HEAVY DUTY RIBBED BOX SECTION GUSSETS AT CORNERS TO FASTEN RIGIDLY BY MEANS OF A 3/8 INCH BOLT.

"DOUBLE WALL CONSTRUCTION SHALL BE USED ON DRAWER FRONTS. OUTSIDE DRAWER HEADS OF AT LEAST 22 GAUGE STEEL, INNER HEADS OF 24 GAUGE STEEL. BODY OF 22 GAUGE, BACKS OF 20 GAUGE. EDGES OF DRAWER SIDES SHALL BE HEMMED. SIZE OF DRAWER SHALL BE APPROXIMATELY 19 3/4 INCHES WIDE BY 1 3/4 INCHES HIGH BY 18 1/2 INCHES DEEP.

"ALL DRAWERS SHALL HAVE 16 GAUGE SUSPENSION CHANNELS WITH POSITIVE STOPS TO PREVENT DRAWER FROM PULLING OUT. CHANNEL TRACKS SHALL RIDE ON NYLON TWO-WAY BEARINGS FOR QUIET AND SMOOTHER DRAWER OPERATION. RUBBER BUMPERS SHALL BE MOUNTED ON CHANNEL TRACKS TO ELIMINATE NOISE IN CLOSING DRAWERS.

"LEGS SHALL BE OF AT LEAST 18 GAUGE STEEL TUBING 1 21/32 INCHES SQUARE WITH THREE ROUNDED AND ONE SQUARE CORNER. EACH LEG SHALL BE EQUIPPED WITH A CADMIUM PLATED ADJUSTABLE GLIDE AND A PLASTIC PROTECTOR CAP. ASSEMBLY BOLT OR NUT SHALL BE RIGIDLY FASTENED TO LET TO FACILITATE QUICK ASSEMBLY.

"APRONS, CORNER GUSSETS, DRAWER SUPPORT WALLS AND REINFORCING STRAPS SHALL BE ELECTRICALLY WELDED INTO A RIGID ASSEMBLY WHICH SHALL BE FASTENED TO THE TOP BY SCREWS. TABLES SHALL BE SHIPPED KD.

"METAL SHALL BE PROPERLY CLEANED AND PREPARED FOR PAINTING. BAKED ON ENAMEL SHALL BE IN ACCORDANCE WITH FEDERAL SPECIFICATION TTC-595, COLOR NO. 1615.

"VARIATIONS IN CONSTRUCTION OF TOP WILL BE ACCEPTABLE PROVIDING OVER-ALL THICKNESS IS AT LEAST 1 1/4 INCHES AND TOP IS FORMICA OR ITS EQUAL.'

ALTERNATE BIDS ON THE SAME NUMBER OF TABLES WERE ALSO REQUESTED UNDER THE FOLLOWING PROVISION OF THE INVITATION:

"ALTERNATE BIDS--- SPECIFICATIONS

THE SPECIFICATIONS AND ANY REFERENCE TO PARTICULAR ARTICLES OR MATERIALS ARE INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND ONLY TO INDICATE TO PROSPECTIVE BIDDERS ARTICLES WHICH WILL BE SATISFACTORY. IF THE BIDDER IS NOT PREPARED TO BID IN EXACT ACCORDANCE WITH THE APPLICABLE MANUFACTURER'S SPECIFICATIONS OR NUMBERS HEREIN NOTED FOR EACH ITEM, ALTERNATE BIDS FOR SUCH ITEMS MAY BE SUBMITTED, AND THE BIDDER SHALL INSERT IN THE SPACE PROVIDED UNDER EACH ITEM THE IDENTIFYING, NUMBER OF THE MATERIAL HE PROPOSES TO FURNISH FOR SUCH ITEM. ALTERNATE BIDS SO SUBMITTED SHALL BE CONSIDERED, PROVIDED:

"/A) THE ITEM OFFERED WILL PROVIDE SERVICE EQUAL TO THAT OF THE ITEM SPECIFIED; AND

"/B) SUCH BIDS ARE FULLY EXPLAINED AND SUPPORTED BY COMPLETE DETAILED INFORMATION, DRAWINGS, AND DESCRIPTIVE LITERATURE AS MAY BE APPLICABLE; SUCH EXPLANATORY INFORMATION, DRAWINGS, AND LITERATURE TO SET FORTH AND FULLY DESCRIBE IN EVERY RESPECT AND DETAIL ANY PROPOSED DEVIATIONS OR DEPARTURES FROM THE APPLICABLE MANUFACTURER'S SPECIFICATIONS OR NUMBERS NOTED HEREIN.

"SUBMISSION OF A BID WITHOUT INDICATION AND COMPLETE EXPLANATION OF ANY SUCH DEVIATION OR DEPARTURES SHALL CONSTITUTE A WARRANTY BY THE BIDDER THAT THE MATERIAL OFFERED IS IN EXACT ACCORDANCE WITH APPLICABLE MANUFACTURER'S SPECIFICATIONS OR PART NUMBERS NOTED HEREIN.'

YOUR BID WAS SUBMITTED AS AN ALTERNATE AND OFFERED TO SUPPLY TABLES CONFORMING TO GSA SPECIFICATION NO. WCXNM 52-69B SUBJECT TO QUALIFICATIONS CONTAINED IN A LETTER ACCOMPANYING YOUR BID WHICH READ, IN PERTINENT PART, AS FOLLOWS:

"IT IS UNDERSTOOD THAT ALL DIMENSIONS WILL BE HELD ACCORDING TO THE ABOVE INVITATION REQUIREMENTS; AS WELL AS TO INCLUDE THE NECESSARY PRODUCT FEATURES SUCH AS THE SINGLE DRAWER WITH CENTRAL LOCATION. THE DEVIATION SHALL CONSIST ONLY OF CONSTRUCTION DETAILS IN ACCORDANCE WITH THE AFOREMENTIONED SPECIFICATIONS.

"IT IS ALSO UNDERSTOOD THAT CONTRACT AWARD WILL BE SUBJECT TO APPROVAL OF A SAMPLE TO BE SUBMITTED FOR INSPECTION AND TESTING.'

YOUR FORMAL PROTEST TO THE CONTRACTING OFFICER DATED JULY 9, 1957, INDICATES YOUR DISSATISFACTION ARISES OUT OF THE FACT THAT THE DEPARTMENT OF THE NAVY HAD PREVIOUSLY ATTEMPTED TO PROCURE THE TABLES IN QUESTION UNDER IFB-128-160-57, THAT YOUR COMPANY SUBMITTED A BID ON AN ALTERNATE BASIS BUT NO AWARD WAS MADE THEREUNDER, AND THAT UPON READVERTISEMENT UNDER THE PRESENT INVITATION THE SPECIFICATIONS WERE CHANGED TO CONFORM WITH THE PRODUCT MANUFACTURED BY HASKELL, INC. YOU CONTEND THAT YOUR BID, SUBMITTED ON AN ALTERNATE BASIS IN RESPONSE TO THIS INVITATION, OFFERED TO SUPPLY TABLES CONFORMING TO THE INVITATION REQUIREMENTS IN ALL RESPECTS EXCEPT CONSTRUCTION DETAILS AT A PRICE CONSIDERABLY LOWER THAN THAT UPON WHICH AWARD WAS BASED AND THAT ITS REJECTION BY THE DEPARTMENT OF THE NAVY WAS THEREFORE IMPROPER.

WITH RESPECT TO YOUR OBJECTION TO THE USE OF SPECIFICATIONS DESCRIPTIVE OF TABLES MANUFACTURED BY HASKELL, INC., YOUR ATTENTION IS INVITED TO THE PROVISIONS OF SECTION 2-201/D) OF THE ARMED SERVICES PROCUREMENT REGULATIONS, WHICH AUTHORIZE THE USE OF COMMERCIAL PRODUCT DESIGNATIONS OR SPECIFICATIONS IF FULL AND FREE COMPETITION IS ASSURED BY ADDITION OF THE WORDS "OR EQUAL.' STANDARD GOVERNMENT SPECIFICATIONS ARE DRAWN TO REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND THE REPORT FROM THE DEPARTMENT OF THE NAVY IN THIS MATTER INDICATES THAT PROCUREMENT OF THESE TABLES HAD PREVIOUSLY BEEN ATTEMPTED UNDER FEDERAL SPECIFICATION AA-T-91A, BUT NO RESPONSIVE BIDS HAD BEEN RECEIVED THEREUNDER. IN VIEW THEREOF, IT WAS WITHIN THE PROVINCE OF THE DEPARTMENT OF THE NAVY UPON READVERTISEMENT TO RELAX THE PREVIOUS REQUIREMENTS TO SUCH EXTENT AS MIGHT BE NECESSARY TO ASSURE THE RECEIPT OF BIDS ON ARTICLES CONFORMING AS NEARLY AS POSSIBLE WITH ESTABLISHED GOVERNMENT SPECIFICATIONS. THERE WAS NO REQUIREMENT, HOWEVER, THAT SPECIFICATIONS BE RELAXED TO AN EXTENT WHERE ARTICLES CONFORMING THERETO WOULD, IN THE OPINION OF THE DEPARTMENT OF THE NAVY, BE INADEQUATE TO THE USE INTENDED. IT IS THEREFORE OUR OPINION THAT THE REQUEST FOR TABLES "EQUAL TO MODEL MG 4201 OF HASKELL INC., " UNDER IFB 128-202-57, SUPPORTED BY DETAILED SPECIFICATIONS THEREON AND QUALIFIED BY THE REQUEST FOR ALTERNATE BIDS, WAS PROPER.

WITH RESPECT TO THE CONTENTION THAT YOUR ALTERNATE BID PROPOSED TO FURNISH TABLES WHICH COMPLIED WITH THE SPECIFICATIONS AND WOULD HAVE BEEN SUFFICIENT FOR THE PURPOSES INTENDED BY THE DEPARTMENT OF THE NAVY, IT SHOULD BE NOTED THAT THE REQUEST FOR ALTERNATE BIDS DID NOT SERVE TO RELAX THE GENERAL RULE, APPLICABLE TO COMPETITIVE BIDDING, THAT ALL BIDDERS, MUST BE GIVEN AN EQUAL OPPORTUNITY TO BID ON THE SAME BASIS AND THAT OFFERS NOT IN SUBSTANTIAL COMPLIANCE WITH THE SPECIFICATIONS SHOULD BE CONSIDERED NONRESPONSIVE. THUS, WHILE THE CONTRACTING OFFICER COULD CONSIDER BIDS WHICH DEVIATED FROM THE ADVERTISED SPECIFICATIONS ONLY IN MINOR ASPECTS, HE WAS REQUIRED TO REJECT ANY BIDS UNDER WHICH THE BIDDER PROPOSED PERFORMANCE DIFFERING IN ANY MATERIAL MANNER FROM THAT SET OUT IN THE INVITATION AND OFFERED TO ALL BIDDERS. THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD THAT ANY DEVIATION FROM THE REQUIREMENTS OF THE INVITATION WHICH AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE MATERIALS TO BE FURNISHED ARE MATERIAL DEVIATIONS AND RENDER THE BID NONRESPONSIVE.

AS INDICATED ABOVE, THE REQUEST FOR ALTERNATE BIDS IN IFB-128-202-57 REQUIRED THE SUBMISSION OF COMPLETE DETAILED INFORMATION, DRAWINGS, AND DESCRIPTIVE LITERATURE SETTING FORTH AND FULLY DESCRIBING IN EVERY RESPECT AND DETAIL THE PROPOSED DEVIATIONS AND DEPARTURES FROM THE SPECIFICATIONS SET OUT IN THE INVITATION. OGSA SPECIFICATION NO. WGXNM 52-69B, UPON WHICH YOUR BID WAS BASED, FAILS TO CONFORM IN VARIOUS MATERIAL ASPECTS WITH THE SPECIFICATIONS SET OUT IN THE INVITATION. THUS, THE SPECIFICATION REFERENCED BY YOUR BID REQUIRES A TABLE TOP OF LESS THAN ONE INCH IN THICKNESS WHILE THE INVITATION REQUIRED A ONE AND ONE-QUARTER INCH THICKNESS. WHILE THE LETTER ACCOMPANYING YOUR BID STATED THAT ALL DIMENSIONS WILL BE HELD ACCORDING TO THE REQUIREMENTS OF THE INVITATION, WE NOTE THAT PARAGRAPH 3.1 OF THE GSA SPECIFICATION NO. WCXNM 52-69B LIMITS ,DIMENSIONS" TO HEIGHT, WIDTH AND DEPTH OF THE OVERALL TABLE, WHILE A DESCRIPTION OF THE TABLE TOP IS SET OUT SEPARATELY. THIS IS ALSO TRUE OF THE SPECIFICATIONS CONTAINED IN THE INVITATION. UNDER THE CIRCUMSTANCES, IN THE EVENT YOUR BID HAD BEEN ACCEPTED IN ACCORDANCE WITH THE TERMS OF YOUR LETTER ACCOMPANYING THE BID, THERE WOULD APPEAR TO BE A SERIOUS QUESTION AS TO WHETHER YOU HAD, BY USE OF THE WORD "DIMENSIONS" IN SUCH LETTER, QUALIFIED THE OTHERWISE SPECIFIC SPECIFICATIONS DESCRIPTION OF THE TABLE TOP SET OUT IN GSA SPECIFICATION NO. WCXNM 52-69B IN SUCH MANNER AS TO REQUIRE YOU TO FURNISH A TABLE TOP OF EITHER A COMPARABLE THICKNESS OR QUALITY TO THAT SPECIFIED IN THE INVITATION.

SIMILARLY, WHILE THE INVITATION REQUIRED DOUBLE WALL CONSTRUCTION ON DRAWER FRONTS, 16 GAUGE SUSPENSION CHANNELS, RUBBER BUMPERS AND NYLON BEARINGS FOR SMOOTH AND QUIET OPERATIONS, NO SUCH REQUIREMENTS WERE IMPOSED BY THE SPECIFICATIONS REFERENCED IN YOUR BID. ADDITIONALLY, THE INVITATION REQUIRED A RIGID NUT AND BOLT ASSEMBLY AND WHILE YOUR LETTER OF AUGUST 5, 1957, STATES THAT SUCH ASSEMBLY WAS OFFERED BY YOUR BID, WE NOTE THAT PARAGRAPH 3.7.2 OF GSA SPECIFICATION WCXNM 52 69B DOES NO MORE THAN STATE THAT SUCH CONSTRUCTION MAY BE USED, WHILE PARAGRAPH 3.8.4 REQUIRES THE METHOD OF ASSEMBLY TO BE "IN ACCORDANCE WITH GOOD COMMERCIAL PRACTICES CHARACTERISTIC OF THE QUALITY OF FURNITURE REQUIRED BY THIS SPECIFICATION.'

UNDER THE CIRCUMSTANCES, IT IS OUR OPINION THAT AN ACCEPTANCE OF YOUR ALTERNATE BID, AS QUALIFIED BY YOUR LETTER OF JUNE 3, 1957, ACCOMPANYING SUCH BID, WOULD NOT HAVE OBLIGATED YOU TO PERFORM IN ACCORDANCE WITH THE INVITATION FOR BIDS, AND THAT THE DEVIATIONS PERMISSIBLE UNDER SUCH BID MAY REASONABLY BE PRESUMED TO AFFECT BOTH THE PRICE AND QUALITY OF THE ARTICLES TO BE PROCURED. SUCH DEVIATIONS WOULD, OF COURSE, RESULT IN AN ADVANTAGE TO YOUR COMPANY IN THE BIDDING WHICH WAS NOT OFFERED TO YOUR COMPETITORS UNDER THE TERMS OF THE INVITATION AND THIS OFFICE THEREFORE WOULD NOT BE JUSTIFIED IN HOLDING THAT REJECTION OF YOUR BID WAS IMPROPER.