B-142096, APR. 26, 1960

B-142096: Apr 26, 1960

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TO BARBER-COLMAN COMPANY: REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 22. THE INVITATION FOR BIDS WAS ISSUED BY THE NAVY PURCHASING OFFICE. BIDS WERE TO BE OPENED ON JANUARY 20. THE ITEMS TO BE FURNISHED WERE 7 HEAVY DUTY ENGINE LATHES. THE MACHINE SHALL BE (I) AN EXISTING MODEL OF A MACHINE WHICH WAS DESIGNED TO PERFORM ALL MAJOR FUNCTIONS SPECIFIED AND WHICH HAS PROVEN SATISFACTORY IN OPERATION. SEVEN BIDS WERE RECEIVED AND YOU WERE THE THIRD LOWEST BIDDER. H. ELLIOTT COMPANY WAS THE LOWEST BID RECEIVED FOR FURNISHING ITEMS 2 AND 3 AND AWARD OF THESE ITEMS WAS MADE TO THAT COMPANY. PROTESTING THE AWARD OF A CONTRACT TO ELLIOTT AND IT IS CONTENDED THAT YOU WERE IN FACT THE LOWEST BIDDER MEETING THE SPECIFICATIONS.

B-142096, APR. 26, 1960

TO BARBER-COLMAN COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 22, 1960, AND MARCH 1, 1960, AND THE LETTER OF MARCH 17, 1960, FROM YOUR REPRESENTATIVE, WILLIAM E. SUMMERBELL CO., PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE J. H. ELLIOTT COMPANY FOR THE FURNISHING OF LATHES UNDER ITEMS 2 AND 3 OF THE INVITATION FOR BIDS NO. IFB600-1172-60.

THE INVITATION FOR BIDS WAS ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., ON DECEMBER 30, 1959. BIDS WERE TO BE OPENED ON JANUARY 20, 1960. THE ITEMS TO BE FURNISHED WERE 7 HEAVY DUTY ENGINE LATHES. ITEM 1 CALLED FOR 4 LATHES, 14-INCH BY 30-INCH CENTERS; ITEM 2 CALLED FOR 2 LATHES, 16-INCH BY 30-INCH CENTERS; AND ITEM 3, 1 LATHE, 16-INCH BY 54- INCH CENTER. IN ADDITION TO A LISTING OF A NUMBER OF REQUIRED FEATURES, THE SPECIFICATIONS PROVIDED THAT---

"GENERAL: LATHE SHALL BE MANUFACTURER'S BONAFIDE, HEAVY DUTY, ENGINE OF THE GEARED SELECTIVE HEAD SCREW CUTTING PRECISION TYPE OF THE MOST MODERN DESIGN, CONFORMING TO AMERICAN STANDARDS ASSOCIATION BULLETIN OF THE LATEST ISSUE COVERING ACCURACY OF ENGINE LATHES.

"MANUFACTURER'S MODEL: THE MACHINE SHALL BE NEW. FURTHER, THE MACHINE SHALL BE (I) AN EXISTING MODEL OF A MACHINE WHICH WAS DESIGNED TO PERFORM ALL MAJOR FUNCTIONS SPECIFIED AND WHICH HAS PROVEN SATISFACTORY IN OPERATION, OR (II) A NEW MODEL OF SUCH A PROVEN MACHINE, EXCEPT THAT UNDER EITHER (I) OR (II) ABOVE, THE MACHINE MAY BE MODIFIED IN MINOR RESPECTS TO CONFORM TO APPLICABLE SPECIFICATIONS, AND ANY ATTACHMENTS OR PARTS INESSENTIAL TO PROPER OPERATION OF THE MACHINE IN CONFORMANCE WITH REQUIREMENTS OF THE APPLICABLE SPECIFICATIONS MAY BE OMITTED. HOWEVER, SPECIFIC MENTION SHALL BE MADE IN THE BID OF OMISSIONS OR MODIFICATIONS.'

SEVEN BIDS WERE RECEIVED AND YOU WERE THE THIRD LOWEST BIDDER. THE BID OF THE J. H. ELLIOTT COMPANY WAS THE LOWEST BID RECEIVED FOR FURNISHING ITEMS 2 AND 3 AND AWARD OF THESE ITEMS WAS MADE TO THAT COMPANY. LETTER DATED FEBRUARY 23, 1960, YOUR REPRESENTATIVE PRESENTED YOUR LETTER OF FEBRUARY 22, 1960, PROTESTING THE AWARD OF A CONTRACT TO ELLIOTT AND IT IS CONTENDED THAT YOU WERE IN FACT THE LOWEST BIDDER MEETING THE SPECIFICATIONS. WITH REGARD TO THE ELLIOTT BID, YOU LISTED 14 DEVIATIONS ALLEGED TO HAVE BEEN MADE BY THAT BIDDER, AS INDICATED IN DOCUMENT "A" ATTACHED TO YOUR LETTER OF MARCH 1, 1960. THE 14 POINTS INVOLVED HAVE BEEN THE SUBJECT OF COMMENT BY THE ADMINISTRATIVE OFFICE AND WILL BE DISCUSSED IN THE ORDER APPEARING ON DOCUMENT "A.'

AS TO POINT 1, PAGE 3 OF THE CONTRACT FORM PROVIDES UNDER THE PARAGRAPH FOR "DESIGN" THAT THE GEARED HEADSTOCK IS TO PROVIDE REQUIRED SPINDLE SPEED RANGES. PAGE 6 OF THE CONTRACT FORM PROVIDES THAT THE SPINDLE SPEEDS SHALL BE OBTAINED BY A COMBINATION OF SLIDING SPUR GEARS AND/OR POSITIVE INTERNAL-EXTERNAL GEAR TOOTH TYPE CLUTCHES, INTEGRAL WITH SLIDING GEARS OR COMBINATION GEAR AND V BELT DRIVE. THE ADMINISTRATIVE OFFICE CONSIDERS THAT THE LATHE OFFERED BY ELLIOTT MEETS THESE REQUIREMENTS AS IT CONTAINS A GEARED HEADSTOCK AND THE SPINDLE SPEEDS ARE OBTAINED EITHER BY A COMBINATION OF SLIDING SPUR GEARS AND/OR POSITIVE INTERNAL-EXTERNAL GEAR TOOTH TYPE CLUTCHES, INTEGRAL WITH SLIDING GEARS OR A COMBINATION GEAR AND BELT DRIVE. WITH REGARD TO POINT 2, THE ADMINISTRATIVE OFFICE REPORTS THAT---

"THE CATALOG SHEET (BULLETIN SD-230) WHICH THE J. H. ELLIOTT COMPANY SUBMITTED WITH THEIR BID DESCRIBES THE LATHES OFFERED AS "STANDARD DUTY.' HOWEVER, THIS TERMINOLOGY SHOULD NOT BE MISCONSTRUED AS MEANING THAT THE LATHE OFFERED IS OF LIGHTER CAPACITY THAN THE LATHE SPECIFIED. THE TERMINOLOGY "STANDARD DUTY" AS APPLIES TO THE LEBLOND LATHE OFFERED MEANS THAT OF THEIR HEAVY DUTY MODELS OF LATHES, THE LATHE OFFERED IS THEIR STANDARD MODEL. IT SHOULD BE NOTED THAT CERTAIN DESIGN AND CONSTRUCTION FEATURES WHICH ARE SPECIFIED IN THE INVITATION ARE INHERENT CHARACTERISTICS OF LATHES CONSIDERED TO BE IN THE "HEAVY DUTY" CLASSIFICATION. THESE FEATURES ARE MET OR EXCEEDED BY THE LATHES OFFERED BY THE J. H. ELLIOTT COMPANY. REFERENCE TO THE ,SOUL-GEARED SELECTIVE HEAD" WHICH IS INCLUDED IN THIS POINT HAS BEEN CLEARLY ANSWERED IN THE DISCUSSION OF POINT NO. 1 ABOVE. ACCORDINGLY, IT IS RECOMMENDED THAT POINT NO. 2 BE REJECTED IN ITS ENTIRETY.'

IN THE MATTER OF THE MINIMUM BED WIDTH OF 16 INCHES (POINT 3), IT IS REPORTED THAT THE SUCCESSFUL BIDDER'S BULLETIN SD-230 ERRONEOUSLY LISTS THE BED WIDTH AS 15 15/16 INCHES AND THAT THE PRODUCTION MODEL OF THE LATHE OFFERED HAS A BED WIDTH EXCEEDING THE 16-INCH MINIMUM SPECIFIED. ALSO, THE MANUFACTURER'S BLUEPRINTS PREPARED IN 1958 SHOW THE DIMENSION TO BE 16 1/16 INCHES. AS TO POINT 4, IT IS TRUE THAT THE WEIGHTS OF THE TWO TYPES OF LATHES DESCRIBED UNDER ITEMS 2 AND 3 ARE 8,000 AND 8,200 POUNDS, RESPECTIVELY. THESE WEIGHTS ARE CONSIDERED AS APPROXIMATIONS ONLY AND THE WEIGHTS OF THE LATHES OFFERED BY ELLIOTT (7,320 LBS. AND 7,845 LBS. AS TO ITEMS 2 AND 3, RESPECTIVELY) ARE CONSIDERED AS COMPLYING WITH THE SPECIFICATIONS. AS TO POINT 5, IT IS ADMINISTRATIVELY REPORTED THAT THE TWO-SPEED TAILSTOCK ON THE LEBLOND LATHES OFFERED BY ELLIOTT IS SHOWN ON THE REVERSE SIDE OF BULLETIN SD-230 AND IS DESCRIBED ON PAGE 4 OF THE BULLETIN AS AN ITEM OF STANDARD EQUIPMENT. THE SPINDLE DIAMETER OF THIS TAILSTOCK IS 3 5/8 INCHES--- NOT 3 1/8 INCHES AS SHOWN ON THE BULLETIN--- AND THEREFORE MEETS THE SPECIFICATIONS. IN REGARD TO POINTS 6, 7, AND 8, IT IS REPORTED THAT BULLETIN SD-230 ACCOMPANYING ELLIOTT'S BID DOES NOT SHOW THE AUTOMATIC AND MICROMETER BALL STOPS, AND A GRADUATED LENGTH MEASURING DIAL FOR THE APRON HANDSPOOL, REFERRED TO BY YOU; HOWEVER, THE LEBLOND COMPANY OFFERS THESE FEATURES AS OPTIONAL ITEMS TO PURCHASERS OF THE SD-230 LATHES. SINCE ELLIOTT SPECIFICALLY STATED IN ITS BID THAT IT WILL COMPLY WITH THE SPECIFICATIONS, IT IS CONSIDERED THAT THE LATHES WILL BE SO EQUIPPED WHEN FURNISHED.

WITH REGARD TO POINT 9 (SPEED AND FEED CHANGES), THE ADMINISTRATIVE OFFICE REPORTS THAT---

"THIS POINT WAS PARTIALLY EXPLAINED IN POINT NO. 1 ABOVE, HOWEVER, THE BARBER-COLMAN COMPANY CLAIMS THAT THE LEBLOND LATHE OFFERED BY THE J. H. ELLIOTT COMPANY HAS 18 GEARED HEAD SPEEDS MOUNTED INSIDE THE HEAD AND 9 FLAT BELT SPEEDS (NOT V) MOUNTED OUTSIDE THE HEAD. THIS STATEMENT IS NOT TRUE. ALL SPINDLE SPEED CHANGES ON THE LEBLOND LATHE OFFERED ARE MADE BY GEARING CHANGES LOCATED INSIDE OF THE HEADSTOCK. ON THIS MACHINE THE LOWEST SPEEDS ARE TRANSMITTED DIRECTLY TO THE SPINDLE BY GEARING ALONE, HOWEVER, FOR THE NINE HIGHEST SPEEDS THE POWER TRANSMISSION TO THE SPINDLE IS MADE THROUGH A COMBINATION OF GEARING AND BELT DRIVE. THE LATHE OFFERED BY THE J. H. ELLIOTT COMPANY IS CONSIDERED TO MEET OR EXCEED THE SPECIFICATION REQUIREMENTS IN THESE AREAS. ACCORDINGLY, IT IS RECOMMENDED THAT POINT NO. 9 BE REJECTED IN ITS ENTIRETY.'

YOU STATE THAT THE SPECIFICATIONS REQUIRE THAT THE DESIGN OF THE TAILSTOCK SHALL PERMIT SETTING THE COMPOUND REST PARALLEL WITH THE BEDWAYS (POINT 10) BUT THAT THE TAILSTOCK OF THE SD-230 LATHE DOES NOT MEET THIS REQUIREMENT. IT IS POINTED OUT BY THE ADMINISTRATIVE OFFICE THAT THE TWO- SPEED TAILSTOCK REFERRED TO IN CONNECTION WITH POINT 5 WILL PERMIT THE COMPOUND REST TO BE SET PARALLEL WITH THE BEDWAYS WHEN THE TAILSTOCK IS SET CLOSE TO THE CARRIAGE. AS TO YOUR CONTENTION THAT THE LATHE IS REQUIRED TO HAVE AN OIL RESERVOIR ENTIRELY SEPARATE FROM THE MAIN HEADSTOCK CASTING (POINT 11), IT IS REPORTED THAT THE LATHE OFFERED BY ELLIOTT HAS SUCH AN OIL RESERVOIR ENTIRELY SEPARATE FROM THE HEADSTOCK CASTING AND LOCATED DEEP IN THE BED CASTING. WITH REGARD TO YOUR CONTENTION THAT THE LATHE OFFERED BY ELLIOTT DOES NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS IN THAT THE GEARS AND BEARINGS BETWEEN THE HEADSTOCK AND FEED GEAR BOX SHALL BE TOTALLY ENCLOSED AND AUTOMATICALLY LUBRICATED (POINT 12), IT IS REPORTED THAT THESE FEATURES ARE INCORPORATED AS STANDARD FEATURES IN THE PRODUCTION MODEL OF THE LATHE OFFERED AND IT IS CONSIDERED THAT THESE FEATURES WILL BE INCLUDED ON THE LATHES FURNISHED. AS TO THE MATTER OF LUBRICATION TO BE PROVIDED TO PRIME OR LUBRICATE THE SYSTEM AFTER A PERIOD OF IDLENESS (POINT 13), IT IS REPORTED THAT THIS FEATURE IS REGULARLY OFFERED BY THE MANUFACTURER AS AN OPTIONAL ITEM TO PURCHASERS OF LATHES OF THIS TYPE AND IT IS CONSIDERED THAT THE LATHES WILL BE SO EQUIPPED WHEN FURNISHED.

AS TO POINT 14, YOU STATE THAT THE SD-230 BULLETIN DOES NOT SHOW THAT THE LATHES OFFERED HAVE HARDENED AND GROUND GUIDEWAYS. THE ADMINISTRATIVE OFFICE STATES THAT IT IS IMPOSSIBLE TO SHOW SUCH GUIDEWAYS IN AN ILLUSTRATION AND THAT THE BULLETIN ACCOMPANYING ELLIOTT'S BID FAILS TO MENTION THIS FEATURE. THE ENGINEERS OF THE LEBLOND COMPANY HAVE ASSURED THE ADMINISTRATIVE OFFICE THAT THESE GUIDEWAYS WILL BE FURNISHED AS REQUIRED. AND WHILE IT IS NOT KNOWN IF THOSE GUIDEWAYS ARE NORMALLY FURNISHED HARDENED AND GROUND, SUCH AN OPERATION IS NOT CONSIDERED A MODIFICATION OF THE LATHE IN THAT NO DESIGN OR CONSTRUCTION FEATURES ARE CHANGED.

THE CONTRACTING OFFICER HAS REPORTED THAT WHILE ELLIOTT DID NOT SUBMIT COMPLETE DATA WITH ITS BID, ITS LETTER OF JANUARY 18, 1960, TRANSMITTING ITS BID TO THE CONTRACTING OFFICE, CONTAINED A STATEMENT THAT IT SHALL BE EXPRESSLY UNDERSTOOD THAT THE LEBLOND LATHES OFFERED ARE GUARANTEED TO MEET AND/OR EXCEED SPECIFICATIONS IN EVERY RESPECT. THE BID, ALONG WITH THE OTHER TWO LOW BIDS RECEIVED, WERE FORWARDED TO THE BUREAU OF SHIPS FOR TECHNICAL EVALUATION AND AS A RESULT OF THIS TECHNICAL EVALUATION, THE BUREAU OF SHIPS STATED THAT ADDITIONAL INFORMATION ON THE ELLIOTT BID WOULD BE REQUIRED TO DETERMINE WHETHER THE LATHES OFFERED WOULD MEET THE SPECIFICATIONS. THE FOUR POINTS ON WHICH ADDITIONAL INFORMATION WAS REQUIRED WERE (1) BED WIDTH; (2) END GEARING TOTALLY ENCLOSED AND AUTOMATICALLY LUBRICATED; (3) SIGHT GAGE ON ALL RESERVOIR; AND (4) OIL RESERVOIR TO BE SEPARATE FROM HEADSTOCK CASTING. BY LETTER DATED FEBRUARY 2, 1960, ELLIOTT GAVE INFORMATION WHICH INDICATED THAT THE LATHES CONFORM TO THE FOUR REQUIREMENTS IN QUESTION.

IT IS YOUR CONTENTION THAT SINCE THE ELLIOTT BID WAS SUPPLEMENTED BY INFORMATION AFTER THE OPENING OF BIDS, THE FURNISHING OF SUCH INFORMATION "IS IN DIRECT CONTRADICTION OF THE LATE BIDS AND WITHDRAWALS CLAUSE FOUND AT THE TOP OF PAGE 2 OF THE INVITATION AND BID.' IT IS OUR VIEW THAT THE INFORMATION FURNISHED AFTER THE BIDS WERE OPENED AMOUNTED TO NOTHING MORE THAN A CLARIFICATION OF THE BID RATHER THAN A SUBSTANTIVE CHANGE IN THE BID AS YOU CONTEND.

AS RECOGNIZED BY YOU, PARAGRAPH 2-404 OF THE ARMED SERVICES PROCUREMENT REGULATION IN EFFECT ON THE DATE OF OPENING OF BIDS PROVIDED THAT THE CONTRACTING OFFICER SHALL GIVE TO THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID. THE SPECIFICATIONS IN THIS CASE WERE IN GREAT DETAIL AND IT CAN BE READILY SEEN THAT A BID MIGHT NOT BE ENTIRELY CLEAR IN THIS RESPECT FROM AN EXAMINATION OF THE CATALOGS FURNISHED. THIS IS NOT TO SAY, HOWEVER, THAT A BIDDER SHOULD BE ALLOWED TO CHANGE A BID WHICH SHOWS DEFINITELY THAT THE PRODUCT OFFERED DOES NOT MEET THE SPECIFICATIONS.

WE DO NOT AGREE WITH YOUR CONTENTION THAT MERELY STATING THE GENERAL AREAS OF MINOR MODIFICATION DOES NOT COMPLY WITH THE "MANUFACTURER'S MODEL" CLAUSE. WE THINK THAT SUCH CLAUSE ONLY REQUIRES MENTION OF THE PARTS PROPOSED TO BE MODIFIED. THE DETERMINATION AS TO WHETHER THE PROPOSED CHANGES ARE MINOR IN NATURE SO AS TO COMPLY WITH THE CLAUSE IS A MATTER FOR DETERMINATION BY THE ADMINISTRATIVE OFFICE.

THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THESE NEEDS CAN BE MET BY A GIVEN PRODUCT ARE PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. 38 COMP. GEN. 190. ORDINARILY, THE MATTER OF TECHNICAL EVALUATION OF WHETHER A PRODUCT OFFERED BY A BIDDER CONFORMS TO THE SPECIFICATIONS IS ONE FOR THE PROCURING AGENCY TO DECIDE. IT IS WITHIN THE PROVINCE OF OUR OFFICE, HOWEVER, TO DETERMINE WHETHER THE SPECIFICATIONS WERE SUFFICIENTLY DEFINITE TO JUSTIFY ACCEPTANCE OR REJECTION OF CERTAIN PRODUCTS OFFERED, UNDER STATUTES GOVERNING PROCUREMENT BY FORMAL ADVERTISING. 36 COMP. GEN. 314. IN VIEW OF THE FOREGOING, OUR OFFICE WOULD NOT BE WARRANTED IN RAISING ANY OBJECTION TO THE DETERMINATION MADE BY THE ADMINISTRATIVE OFFICE IN REGARD TO POINT 2, WHEN CONSIDERED IN RELATION TO THE FACTS RECITED IN POINT 4, RAISES SERIOUS DOUBTS THAT THE LATHES OFFERED BY ELLIOTT QUALIFIED AS THE MANUFACTURER'S BONA FIDE HEAVY DUTY ENGINE LATHES FOR REASONS HEREINAFTER SET OUT.

IT APPEARS THAT THE LEBLOND MACHINE TOOL COMPANY ADVERTISES TWO TYPES OF 16 INCH ENGINE LATHE. ITS BULLETIN NUMBER SD-230 CARRIES A CAPTION ENTITLED "16 INCH STANDARD DUTY ENGINE LATHE" WHILE ITS BULLETIN NUMBER HD -128 CARRIES A CAPTION ENTITLED "16 INCH HEAVY DUTY ENGINE LATHE.' ALTHOUGH ELLIOTT AGREED IN EFFECT BY SUBMITTING A BID THAT IT WOULD FURNISH A "MANUFACTURER'S BONA FIDE, HEAVY DUTY ENGINE"LATHE, IT NEVERTHELESS STATED THAT IT WOULD FURNISH THE SD-230 TYPE WHICH IS DESCRIBED AS A STANDARD DUTY TYPE. ALSO, WHEN THE WEIGHTS OF THE SD-230 LATHE AND THE HD-128 LATHE ARE CONSIDERED (POINT 4) IT MUST BE SERIOUSLY DOUBTED THAT THE SD-230 LATHE SHOULD BE CONSIDERED AS A BONA FIDE HEAVY DUTY LATHE SINCE THE WEIGHT OF 8,200 POUNDS LISTED IN BULLETIN NUMBER HD- 128 IS THE APPROXIMATE WEIGHT REQUIRED UNDER THE SPECIFICATIONS FOR HEAVY DUTY LATHES. IN THIS REGARD IT APPEARS THAT THE EVALUATION OF ELLIOTT'S BID WAS IN ERROR. HOWEVER, SINCE A LARGE AMOUNT OF WORK HAS ALREADY BEEN DONE ON THE CONTRACT AWARDED TO ELLIOTT, CANCELLATION OF THAT CONTRACT IS IMPRACTICAL AND WE WILL RAISE NO QUESTION IN REGARD TO THE MATTERS COVERED HEREIN. WE ARE, HOWEVER, BY SEPARATE LETTER ADVISING THE SECRETARY OF THE NAVY TO CLARIFY THE REQUIREMENTS OF THE SPECIFICATIONS WITH REGARD TO THE FURNISHING OF THE MANUFACTURER'S BONA FIDE HEAVY DUTY ENGINE LATHES.

ALTHOUGH YOU RAISE OBJECTIONS TO THE POSSIBILITY OF AWARDING THE CONTRACT UNDER INVITATION FOR BIDS NO. IFB600-1172-60 TO THE SECOND LOW BIDDER, GEORGE E. VIEROCK AND CO., INC., IT BECOMES UNNECESSARY TO DISCUSS THESE OBJECTIONS IN VIEW OF OUR CONCLUSION THAT THE ELLIOTT CONTRACT ..END :