B-141988, APR. 5, 1960

B-141988, APR. 5, 1960

TO THE DOALL BALTIMORE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19, 1960, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO A BIDDER OTHER THAN YOUR FIRM UNDER INVITATION FOR BIDS NO. 60482 Y, ISSUED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA ON DECEMBER 4, 1959, FOR THE PURCHASE OF A 36 INCH VERTICAL BAND SAW.

THE INVITATION DESCRIBED THE BAND SAW, IN PART, AS FOLLOWS:

"SAW, BAND, VERTICAL 36 INCH, WITH WELDER AND GRINDER FOR HEAVY DUTY PRECISION WORK, COMPLETE IN ALL RESPECTS AND READY FOR INSTALLATION BY THE DISTRICT OF COLUMBIA. TO BE EQUIPPED WITH A HYDRAULIC OR MECHANICAL TABLE FEEDING FORCE OF O-350 LBS. AND VARIABLE TOOL SPEED NOT LESS THAN 35 TO 6000 F.P.M., UNIVERSAL CALIBRATED WORK FIXTURE, 7 1/2 H.P. MOTOR, 3/60/230 VOLT, A.C., OPEN BEARING OR MANUFACTURER'S STANDARD WITH MAGNETIC STARTER; * * * TO BE DO ALL MODEL 3612-3 OR TANNEWITZ MODEL, GV-1, OR EQUAL"

TWO BIDS WERE RECEIVED AND OPENED AS SCHEDULED ON DECEMBER 18, 1959, ONE FROM YOUR FIRM AND THE OTHER FROM THE J. H. ELLIOTT COMPANY. YOU OFFERED TO FURNISH YOUR MODEL NO. 3612-3 FOR $6,693 AND THE ELLIOTT COMPANY OFFERED TO FURNISH TANNEWITZ MODEL GVIN FOR $7,266.50. IN A LETTER ACCOMPANYING YOUR BID, IT WAS STATED:

"THE 7 1/2 HP MOTOR WAS LISTED APPARENTLY IN ERROR. OUR BID INCLUDES THE STANDARD 3 HP MOTOR FOR WHICH THE MACHINE IS DESIGNED.'

THE ELLIOTT COMPANY, IN A LETTER ACCOMPANYING ITS BID, STATED THAT IT WOULD FURNISH A TENNEWITZ BAND SAW, TYPE GVIN, WITH A 7 1/2 HP MOTOR. ITS BID WAS ACCEPTED BY THE DISTRICT OF COLUMBIA ON FEBRUARY 8, 1960, SINCE IT WAS ENTIRELY RESPONSIVE TO THE INVITATION IN THAT IT AGREED TO FURNISH A VERTICAL BAND SAW WITH A 7 1/2 HORSEPOWER MOTOR AS REQUIRED BY THE INVITATION.

IT IS YOUR VIEW, IN EFFECT, THAT THE TERM "MANUFACTURER'S STANDARD" AS USED IN THE INVITATION HAD REFERENCE TO A MOTOR SIZE OF 3 HORSEPOWER WHICH IS THE STANDARD MOTOR USED IN YOUR MODEL 3612-3 AS INDICATED IN YOUR CURRENT TOOL CATALOG. IT IS THE POSITION OF THE DISTRICT OF COLUMBIA THAT THE PURCHASE DESCRIPTION HAD REFERENCE TO THE TYPE OF MOTOR AND NOT TO HORSEPOWER. WE AGREE WITH THE ADMINISTRATIVE INTERPRETATION OF THE LANGUAGE OF THE INVITATION. IT IS SIGNIFICANT TO NOTE THAT THE OTHER BIDDER WHOSE STANDARD MOTOR IS 5 HORSEPOWER HAD NO TROUBLE IN DETERMINING THAT THE INVITATION REQUIRED THE FURNISHING OF A 7 1/2 HORSEPOWER MOTOR. IN ANY EVENT, SINCE YOU INDICATED IN YOUR BID THAT YOU BELIEVED THE 7 1/2 HORSEPOWER MOTOR WAS SPECIFIED IN ERROR IT IS OUR VIEW THAT YOU SHOULD HAVE REQUESTED CLARIFICATION PRIOR TO SUBMITTING YOUR BID. ALSO, IT IS REPORTED BY THE ADMINISTRATIVE OFFICE THAT ON TWO SEPARATE OCCASIONS PRIOR TO SOLICITATION OF BIDS YOUR REPRESENTATIVES ADVISED THAT A 7 1/2 HORSEPOWER MOTOR COULD BE FURNISHED WITH YOUR MODEL NO. 3612-3. ON THE BASIS OF THE RECORD BEFORE US, WE BELIEVE THAT YOUR BID WAS PROPERLY REJECTED AS NOT CONFORMING TO THE INVITATION REQUIREMENTS. THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY FOR ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554. THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET ITS NEED.

PARAGRAPH 12 OF THE INSTRUCTIONS TO BIDDERS, MADE A PART OF THE INVITATION PROVIDED, IN PART, AS FOLLOWS:

"THE CONTRACT WILL BE AWARDED THE LOWEST RESPONSIBLE BIDDER COMPLYING WITH ALL THE PROVISIONS OF THE INVITATION, PROVIDED THE BID PRICE IS REASONABLE AND IT IS TO THE INTEREST OF THE DISTRICT TO ACCEPT IT. * * *"

THE COURTS AND OUR OFFICE HAVE CONSISTENTLY ADHERED TO THE PROPOSITION THAT THE PROCUREMENT AGENCIES OF THE GOVERNMENT ARE PRIMARILY RESPONSIBLE FOR DETERMINING WHETHER EQUIPMENT TO BE FURNISHED BY A CONTRACTOR MEETS THE NEEDS OF THE GOVERNMENT AND COMPLIES WITH THE ADVERTISED REQUIREMENTS OF THE SPECIFICATIONS. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761; ROYAL SUNDRIES CORPORATION V. UNITED STATES, 111 F.SUPP. 136; PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113; FRIEND V. LEE, 221 F.2D 96; 17 COMP. GEN. 554; 37 ID. 251.

FOR THESE REASONS THERE IS NO LEGAL BASIS TO OBJECT TO THE AWARD AS MADE UNDER THE SUBJECT INVITATION.