B-141753, MAY 2, 1960

B-141753: May 2, 1960

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TO NULOCK SUPPLY COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 18. SINCE THE PROCURING ACTIVITY DID NOT HAVE AN ADEQUATE DESCRIPTION OF THESE DEVICES. REFERENCED THREE PRODUCTS THAT WERE CONSIDERED ACCEPTABLE BY BRAND NAME AND MODEL NUMBERS. THAT "BIDS OFFERING "OR EQUAL" SUPPLIES WILL BE CONSIDERED FOR AWARD IF SUCH SUPPLIES ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL TO THE BRAND NAMED SUPPLIES IN ALL MATERIAL RESPECTS.'. TWELVE BIDS WERE RECEIVED IN RESPONSE TO THIS INVITATION. TO DETERMINE WHETHER THE PRODUCT OFFERED WAS THE EQUAL OF THOSE NAMED. THE CONTRACTING OFFICER CONTACTED THE USING AGENCY AND WAS INFORMED THAT CAST IRON WAS REQUIRED.

B-141753, MAY 2, 1960

TO NULOCK SUPPLY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 18, 1960, WITH ENCLOSURES, PROTESTING THE ACTION OF THE DEPARTMENT OF THE AIR FORCE IN AWARDING A CONTRACT TO HOWELL HARDWARE COMPANY UNDER INVITATION NO. 11-602 -60-35.

THE INVITATION, ISSUED BY CHANUTE AIR FORCE BASE, ILLINOIS, REQUESTED BIDS FOR FURNISHING 124 DOOR LOCKS OF A SPECIAL TYPE REFERRED TO IN THE TRADE AS "PANIC EXIT DEVICES.' SINCE THE PROCURING ACTIVITY DID NOT HAVE AN ADEQUATE DESCRIPTION OF THESE DEVICES, IT INSERTED A BRIEF DESCRIPTION OF THE ITEM IN THE INVITATION, REFERENCED THREE PRODUCTS THAT WERE CONSIDERED ACCEPTABLE BY BRAND NAME AND MODEL NUMBERS, AND SPECIFIED THAT BIDS SHOULD BE SUBMITTED FOR ANY OF THE NAMED PRODUCTS "OR EQUAL.' THE INVITATION FURTHER PROVIDED THAT IF A BIDDER OFFERED ANOTHER PRODUCT AS THE EQUAL OF THOSE NAMED HE SHOULD FURNISH DESCRIPTIVE DATA WITH HIS BID, AND THAT "BIDS OFFERING "OR EQUAL" SUPPLIES WILL BE CONSIDERED FOR AWARD IF SUCH SUPPLIES ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL TO THE BRAND NAMED SUPPLIES IN ALL MATERIAL RESPECTS.'

TWELVE BIDS WERE RECEIVED IN RESPONSE TO THIS INVITATION. YOUR COMPANY FURNISHED THE LOWEST BID OF $12.325 EACH, FOR A TOTAL BID OF $1,528.30. YOU OFFERED TO FURNISH A DEVICE DESCRIBED AS THE YALE AND TOWNE MODEL NO. 5A, WITH BROWN LACQUER FINISH. YOU SUBMITTED WITH YOUR BID LITERATURE DESCRIBING THE YALE AND TOWNE DEVICE. IN EXAMINING THE LITERATURE, TO DETERMINE WHETHER THE PRODUCT OFFERED WAS THE EQUAL OF THOSE NAMED, THE CONTRACTING OFFICER NOTED THAT THE YALE AND TOWNE DEVICE DIFFERED FROM THE DESCRIPTION IN THE INVITATION IN TWO RESPECTS. THE DESCRIPTION PROVIDED THAT THE CENTER CASE, IN CASE, AND CROSSBAR LEVER BE OF CAST IRON AND THAT THE CROSSBAR BE OF A MAROON GOLD FINISH. THE DESCRIPTIVE DATA SUBMITTED BY YOU CONSISTED OF A BROCHURE, ISSUED BY THE YALE AND TOWNE MANUFACTURING COMPANY, WHICH DESCRIBED ITS MODEL NO. 5A PANIC EXIT DEVICE AS BEING MADE OF "MALLEABLE IRON" AND HAVING A BROWN LACQUER FINISH. THE CONTRACTING OFFICER CONTACTED THE USING AGENCY AND WAS INFORMED THAT CAST IRON WAS REQUIRED. AS A RESULT, HE DETERMINED THAT A MATERIAL DEVIATION EXISTED IN YOUR BID, SINCE IT OFFERED MALLEABLE IRON IN RESPONSE TO AN INVITATION THAT SPECIFIED CAST IRON. YOUR BID AND FOUR OTHER BIDS, RANGING FROM $12.56 TO $20.60, WERE REJECTED AS NON-RESPONSIVE. AS THE HOWELL HARDWARE COMPANY'S BID OF $21.60 EACH WAS THE LOWEST ONE SUBMITTED THAT CONTAINED NO DEVIATIONS FROM THE DESCRIPTION IN THE INVITATION, AWARD WAS MADE TO THAT COMPANY.

AFTER YOUR PROTEST TO OUR OFFICE, THE CONTRACTING OFFICER AGAIN CONTACTED THE REQUESTING AGENCY IN AN EFFORT TO ASCERTAIN THE DIFFERENCE BETWEEN CAST IRON AND MALLEABLE IRON. HE WAS INFORMED THAT IN VIEW OF THE INTENDED USE EITHER CAST IRON OR MALLEABLE IRON WOULD BE ACCEPTABLE. THE CONTRACTING OFFICER, BY TELEPHONE CALL ON JANUARY 28, 1960, NOTIFIED THE HOWELL HARDWARE COMPANY OF THE PROTEST AND REQUESTED SHIPMENT OF THE SUPPLIES BE WITHHELD PENDING A DECISION ON THE PROTEST. ON FEBRUARY 2, 1960, THE LOCKS ARRIVED AT CHANUTE AIR FORCE BASE. BY LETTER DATED FEBRUARY 4, 1960, HOWELL HARDWARE COMPANY NOTIFIED THE CONTRACTING OFFICER THAT THEY HAD WIRED THE FACTORY TO STOP SHIPMENT ON JANUARY 28, 1960, IN COMPLIANCE WITH THE CONTRACTING OFFICER'S REQUEST, BUT THAT THE LOCKS HAD ALREADY BEEN SHIPPED THE PREVIOUS DAY.

IN VIEW OF THE ULTIMATE DETERMINATION THAT EITHER CAST IRON OR MALLEABLE IRON WOULD BE ACCEPTABLE, IT IS CLEAR THAT THE SPECIFIC REQUIREMENT FOR CAST IRON WAS RESTRICTIVE. NEVERTHELESS, THE FACT REMAINS THAT YOUR BID WAS NOT RESPONSIVE IN THIS RESPECT AND, THEREFORE, COULD NOT PROPERLY HAVE BEEN ACCEPTED UNDER THE INVITATION. IT IS OUR OPINION THAT THE INVITATION SHOULD HAVE BEEN CANCELLED AND THE PROCUREMENT READVERTISED. HOWEVER, AWARD WAS MADE AND THE LOCKS HAVE BEEN DELIVERED. IN VIEW OF THE GOVERNMENT'S POTENTIAL LIABILITY TO THE HOWELL COMPANY, WE DO NOT FEEL THAT CANCELLATION OF THE CONTRACT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT.