B-140041, SEP. 9, 1959

B-140041: Sep 9, 1959

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 26. PAGE 5 OF THE BID SCHEDULE PROVIDED THAT A BIDDER QUOTING ON A MACHINE VARYING IN ANY PART FROM THE SPECIFICATIONS MUST LIST IN DETAIL THE DEVIATIONS WHICH EXISTED IN HIS BID AND IT WAS PROVIDED THAT DEVIATIONS DETERMINED BY THE GOVERNMENT TO BE MINOR IN NATURE WOULD NOT BE A BASIS FOR REJECTING A BID. FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE BID OF STROMBERG-CARLSON COMPANY WAS THE LOW BID RECEIVED. THERE WAS SUBMITTED WITH THE STRONBERG-CARLSON BID A LETTER DATED MAY 28. WHEREIN IT WAS STATED THAT ITS BID COVERED TWO STANDARD BROWN AND SHARPE MODEL "B" TURRET DRILLING MACHINES EACH EQUIPPED WITH A STROMBERG-CARLSON DIGIMATIC MODEL 202 POSITIONING SYSTEM.

B-140041, SEP. 9, 1959

TO THE BURG TOOL MANUFACTURING CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 26, 1959, PROTESTING THE AWARD OF A CONTRACT TO THE STROMBERG-CARLSON COMPANY, A DIVISION OF GENERAL DYNAMICS CORPORATION, AT WATERVLIET ARSENAL, PURSUANT TO INVITATION FOR BIDS NO. ORD-30-144-59-210.

THE INVITATION REQUESTED BIDS FOR TWO TAPE CONTROLLED TURRET DRILLING MACHINES IN ACCORDANCE WITH CERTAIN SPECIFICATIONS. PAGE 5 OF THE BID SCHEDULE PROVIDED THAT A BIDDER QUOTING ON A MACHINE VARYING IN ANY PART FROM THE SPECIFICATIONS MUST LIST IN DETAIL THE DEVIATIONS WHICH EXISTED IN HIS BID AND IT WAS PROVIDED THAT DEVIATIONS DETERMINED BY THE GOVERNMENT TO BE MINOR IN NATURE WOULD NOT BE A BASIS FOR REJECTING A BID.

FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE BID OF STROMBERG-CARLSON COMPANY WAS THE LOW BID RECEIVED. THERE WAS SUBMITTED WITH THE STRONBERG-CARLSON BID A LETTER DATED MAY 28, 1959, WHEREIN IT WAS STATED THAT ITS BID COVERED TWO STANDARD BROWN AND SHARPE MODEL "B" TURRET DRILLING MACHINES EACH EQUIPPED WITH A STROMBERG-CARLSON DIGIMATIC MODEL 202 POSITIONING SYSTEM. THERE WAS ALSO ATTACHED A LIST OF DEVIATIONS FROM THE SPECIFICATIONS, A STROMBERG CARLSON MODEL 202 DIGIMATIC BROCHURE, AND A BROWN AND SHARPE TURRET MACHINES BROCHURE. THE AWARD WAS MADE TO STROMBERG-CARLSON COMPANY, A DIVISION OF GENERAL DYNAMICS CORPORATION, AS THE LOWEST RESPONSIVE BIDDER.

IN YOUR LETTER OF JUNE 26, ADDRESSED TO THIS OFFICE, THE PROTEST WAS PREMISED ON THE BASIS THAT STROMBERG-CARLSON INTENDED TO FURNISH A BURGMASTER TURRET DRILL WITH THEIR OWN CONTROL SYSTEM. AFTER ASCERTAINING THAT STROMBERG-CARLSON DID NOT INTEND TO USE THE BURGMASTER TURRET DRILL YOU CHANGED SOME OF THE BASIS OF YOUR PROTEST IN LETTER OF JULY 14, ADDRESSED TO THE WATERVLIET ARSENAL. IN BOTH OF YOUR LETTERS IT WAS ASSUMED THAT STROMBERG-CARLSON DID NOT TAKE ANY EXCEPTIONS TO THE SPECIFICATIONS AND THAT, THEREFORE, STROMBERG CARLSON COULD NOT FURNISH EQUIPMENT MEETING THE REQUIREMENTS OF THE SPECIFICATIONS AS SET FORTH IN THE INVITATION. IT APPEARS TO BE YOUR PRIMARY CONTENTION THAT THE EQUIPMENT OFFERED BY BURG TOOL MACHINERY COMPANY COMES THE CLOSEST TO MEETING THE SPECIFICATIONS IN ALL RESPECTS AND THAT THEREFORE YOUR BID SHOULD HAVE BEEN ACCEPTED.

THE OBJECTIONS MADE IN YOUR LETTER RELATE TO TECHNICAL REQUIREMENTS OF VARIOUS PARAGRAPHS OF THE SPECIFICATIONS. AN ANALYSIS WAS MADE OF THE VARIOUS PARAGRAPHS OF THE SPECIFICATIONS REFERRED TO IN EACH OF YOUR LETTERS AS COMPARED TO THE EQUIPMENT OFFERED BY STROMBERG-CARLSON COMPANY BY THE ENGINEERING PERSONNEL OF WATERVLIET ARSENAL. COPIES OF THESE ANALYSES (3 PAGES EACH) ARE ENCLOSED. IT WAS CONCLUDED BY WATERVLIET ARSENAL THAT THE EQUIPMENT OFFERED BY STROMBERG-CARLSON WOULD MEET THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS.

APPARENTLY, THE SPECIFICATIONS TO A GREAT DEGREE WERE BASED UPON THE BURGMASTER TURRET DRILL AND IN THIS CONNECTION IT IS STATED IN YOUR LETTER OF JULY 14 IN PART, AS FOLLOWS:

"ON PAGE 7 OF THE SPECIFICATION, CALLING FOR ACCESSORIES, EXPECTING A AND B, ALL OF THE ACCESSORIES SHOWN ARE BURGMASTER ACCESSORIES AND CAN ONLY MOUNT TO THE BURGMASTER TURRET DRILL, AND SINCE ECS DID NOT TAKE EXCEPTION TO THE SPECIFICATION, THEY CERTAINLY CANNOT BE MEETING GOVERNMENT SPECS.'

SINCE THE STROMBERG-CARLSON BID WAS BASED ON FURNISHING A BROWN AND SHARPE MACHINE IT IS OBVIOUS THAT THEY WOULD NOT BE OFFERING ACCESSORIES THAT CAN ONLY BE MOUNTED ON A BURGMASTER MACHINE. AS IS POINTED OUT IN THE ATTACHED ANALYSIS STROMBERG-CARLSON DID TAKE EXCEPTION TO THE REFERRED ACCESSORIES AND LISTED IN ITS BID THE ACCESSORIES WHICH IT PROPOSED TO FURNISH IN LIEU THEREOF AND WHICH APPARENTLY CAN BE MOUNTED ON THE TYPE OF MACHINE IT PROPOSED TO FURNISH.

THE INVITATION SPECIFICALLY PROVIDED FOR DEVIATIONS AND SUCH PROVISION OBVIOUSLY WAS FOR THE EXPRESS PURPOSE OF PERMITTING A BIDDER TO QUOTE OF A DIFFERENT MAKE MACHINE BUT STILL COMPLYING WITH THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS. IF THE SPECIFICATIONS WERE TO BE INTERPRETED AS PERMITTING ONLY A BURGMASTER TURRET DRILL WITH A GENERAL ELECTRIC CONTROL SYSTEM WHEN THERE ARE OTHER MACHINES AND/OR CONTROL SYSTEMS WHICH WILL COMPLY WITH THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS, ALTHOUGH EMPLOYING DIFFERENT TECHNIQUES, THE SPECIFICATIONS WOULD BE RESTRICTIVE.

THE GOVERNMENT ADVERTISING STATUTES CONSISTENTLY HAVE BEEN HELD TO REQUIRE EVERY EFFORT TO BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE ADVERTISED SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE GOVERNMENT'S NEEDS. ACCORDANCE WITH THAT RULE THE QUESTION AS TO WHETHER OR NOT THE EQUIPMENT OFFERED BY YOU COMES THE CLOSEST TO MEETING THE SPECIFICATIONS IN ALL RESPECTS, AS CONTENDED BY YOU, COULD NOT BE CONSIDERED IN DETERMINING THE AWARD TO BE MADE IN THIS CASE, SO LONG AS THE EQUIPMENT OFFERED BY THE LOW BIDDER MEETS THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS.

IN THE CIRCUMSTANCES, AND CONSIDERING THAT THE ADMINISTRATIVE OFFICE HAD THE PRIMARY RESPONSIBILITY OF DETERMINING WHETHER THE EQUIPMENT OFFERED BY THE VARIOUS BIDDERS MET THE REQUIREMENTS OF THE SPECIFICATIONS, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE IN THIS CASE.