B-143146, AUG. 22, 1960

B-143146, AUG. 22, 1960

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 10, 1960, WITH ENCLOSURE, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 11454 TO ANY BIDDER OTHER THAN YOUR COMPANY.

BY PURCHASE REQUEST DATED MAY 10, 1960, THE PROCUREMENT OFFICE, BROOKLEY AIR FORCE BASE, WAS DIRECTED TO PROCURE 80 FILES, VISIBLE, INDEX, FSN 7110 -483-4480, DESCRIBED AS FOLLOWS:

"FILE, VISIBLE, INDEX, CABINET: STEEL: ENAMELED FINISH: REMOVABLE POCKET TYPE SLIDES, 1 POCKET WIDE: W/PARACENTRIC KEYLOCK: OLIVE GREEN. CARD SIZE, 6 BY 11: NO. OF SLIDES, 16: POCKET SLIDE CAPACITY, 53: CARD EXPOSURE 9/32 INCHES: POINT THICK BUILD-UP CAPACITY, 20.'

INITIALLY, THE CONTRACTING OFFICER FOUND ONLY REMINGTON RAND LISTED AS A SOURCE OF THE ITEM IN THE CURRENT FEDERAL SUPPLY SCHEDULE. IN AN EFFORT TO OBTAIN COMPETITION, REQUESTS FOR PROPOSALS WERE SENT ON MAY 20, 1960, TO YOUR COMPANY, ACME VISIBLE RECORDS, INC., AND DIEBOLD, INC., FOR THE ITEM DESCRIBED IN THE PURCHASE REQUEST. ACME SUBMITTED A PROPOSAL TO FURNISH THE ITEM UNDER ITS CURRENT SCHEDULE CONTRACT NO. GS-00S-2223 AT A UNIT COST OF $262.65, LESS DISCOUNT OF 10 PERCENT, AND DESCRIBED THE ITEM AS FOLLOWS:

"80-D-11616-1 ACME VISIBLE CABINETS DESCRIBED AS FOLLOWS: FILE VISIBLE INDEX CABINET: STEEL; ENAMELED FINISH: REMOVABLE POCKET TYPE SLIDES: 1 POCKET WIDE: WITH PARACENTRIC KEYLOCK: OLIVE GREEN: CARD SIZE 11 BY 6; NO. OF SLIDES 16: POCKET SLIDE CAPACITY 53: CARD EXPOSURE 9/32 INCHES: POINT THICK BUILD-UP CAPACITY 20.'

DIEBOLD, INC., DID NOT RESPOND TO THE REQUEST FOR PROPOSALS. BY TELEGRAM DATED MAY 23, 1960, YOUR COMPANY OFFERED TO FURNISH AN ALTERNATIVE FILE AS FOLLOWS:

"REFERRING REQUISITION 11454 WAS SELL ORGANIZATION GSA CONTRACT GS 00S- 22383 SPECIAL ITEM 50-65 PAGE S-5 LISTS VISIBLE CABINET 11614 WITH 14 SLIDES WITH DOOR LOCK SEVENTY NINE POCKETS TO SLIDE AND 1106 POCKETS TO CABINET QUARTER INCH EXPOSURE YOUR REQUEST CALLS FOR 80 CABINETS WITH TOTAL CAPACITY 67,840 POCKETS YOU WOULD ONLY REQUIRE 62 OF OUR CABINETS TO SECURE 68,572 POCKETS AND PRICE IS $332.25 PER CABINET LESS 10 PERCENT DISCOUNT PLUS 2-1/2 PERCENT OF LIST BEFORE DISCOUNT FOR TRANSPORTATION MAKING TOTAL DELIVERED PRICE $19,054.54 TO BROOKLEY * * *"

SINCE IT WAS NOT KNOWN WHETHER THE ITEM OFFERED BY ACME WAS UNDER CONTRACT WITH THE GENERAL SERVICES ADMINISTRATION (GSA), ADVICE WAS OBTAINED ON JUNE 1, 1960, FROM GSA THAT CONTRACT NO. GS-00S-2223 HAD BEEN AMENDED ON MAY 31, 1960, TO INCLUDE ACME CABINET NO. D-11616-P. REMINGTON RAND ADVISED THAT ITS SCHEDULE CONTRACT PRICE FOR THE ITEM WAS ITS QUOTATION ON THIS PROCUREMENT, WHICH PRICE WAS IDENTICAL TO THAT QUOTED BY ACME. SINCE YOUR COMPANY WAS OFFERING A LESSER NUMBER OF CABINETS WITH DIFFERENT DIMENSIONS THAN THOSE SET OUT IN THE REQUEST FOR PROPOSALS IT WAS ADMINISTRATIVELY DETERMINED THAT YOUR QUOTATION WAS NONRESPONSIVE TO THE REQUEST FOR PROPOSALS. ACCORDINGLY, LOTS WERE DRAWN BETWEEN ACME AND REMINGTON RAND, AND PURCHASE ORDER NO. (01-601/60-23572 DATED JUNE 6, 1960, WAS PLACED WITH ACME UNDER FEDERAL SUPPLY SCHEDULE CONTRACT NO. GS- OOS-2223.

YOU CONTEND THAT AWARD SHOULD HAVE BEEN MADE TO YOUR COMPANY AS THE LOWEST BIDDER AND THAT THE TYPE OF FILE OFFERED BY YOUR COMPANY WOULD HAVE EFFECTED FURTHER SAVINGS TO THE GOVERNMENT. SPECIFICALLY, YOU SUMMARIZE YOUR PROTEST AS FOLLOWS:

"1. THE OBVIOUS LACK OF FAMILIARITY WITH THIS MATERIAL, AND LACK OF ORIGINAL CONCRETE SPECIFICATIONS.

"2. THE REPEATED ASSURANCES THAT BID WOULD BE AWARDED ON THE "LOW BID" BASIS.

"3. THE FACT THAT WE WERE ORIGINALLY TOLD WE HAD LOST THE AWARD OF CONTRACT BECAUSE WE WERE NOT LOW BIDDER.

"4. THE FACT THAT IT WOULD APPEAR THAT OUR CASH DISCOUNT WAS NOT TAKEN INTO CONSIDERATION IN DETERMINING LOW BID.

"5. THAT ONLY AFTER THIS WAS DONE, WAS A NEW REASON FOR AWARD GIVEN.

"6. THAT THE ONLY FAIR BASIS OF AWARD IS LOWEST PRICE.

"7. THAT SINCE THE NUMBER OF MANUFACTURERS OF THIS TYPE OF EQUIPMENT, MANUFACTURERS DO MAKE CABINETS OF VARIOUS CAPACITIES, THE ONLY WAY TO DETERMINE NUMBER OF CABINETS REQUIRED TO HOUSE A SPECIFIC NUMBER OF RECORDS, IS TO TAKE THE NUMBER OF POCKETS PER CABINET (REGARDLESS OF MANUFACTURER) AND DIVIDE INTO THE NUMBER OF RECORDS TO BE HOUSED.'

RESPECTING POINT 1, ABOVE, YOU ARE ADVISED THAT THERE WAS NO "LACK OF FAMILIARITY WITH THIS MATERIAL," RATHER, THERE WAS SOME DIFFICULTY IN LOCATING THE ITEM IN A FEDERAL SUPPLY CONTRACT. FOR THIS REASON, REQUESTS FOR QUOTATION WERE SENT TO KNOWN SOURCES OF SUPPLY UNDER THE SCHEDULE. THE ITEM DESCRIPTION USED IN THE REQUEST FOR PROPOSALS WAS TRANSCRIBED VERBATIM FROM THE USAF SUPPLY CATALOG, FEBRUARY 1955 EDITION.

REGARDING POINT 2, WE ARE ADVISED THAT NO ASSURANCE WAS GIVEN THAT AN AWARD WOULD BE MADE ON THE BASIS OF PRICE ALONE. AS IN ALL CONTRACT AWARDS, RESPONSIVENESS OF THE BID OR QUOTATION IS THE FIRST CONSIDERATION.

AS TO POINT 3, THIS RELATES TO POINTS 2, 4 AND 5 AND ARE ANSWERED ACCORDINGLY.

REGARDING POINT 4, THE CASH DISCOUNT OFFERED BY YOUR COMPANY WAS NOT CONSIDERED AS A FACTOR IN EVALUATING YOUR PROPOSAL SINCE YOUR PROPOSAL WAS NONRESPONSIVE TO THE REQUEST FOR PROPOSALS.

CONCERNING POINT 5, THE MATTER OF YOUR COMPANY'S NONRESPONSIVENESS TO THE REQUEST FOR PROPOSALS WAS NOT A NEW REASON FOR THE REJECTION OF YOUR PROPOSAL. WE ARE ADVISED THAT THIS POINT WAS CLARIFIED AT THE TIME THE QUESTION OF CASH DISCOUNT WAS BROUGHT UP.

CONCERNING POINT 6, CONTRARY TO YOUR UNDERSTANDING, THE FAIR BASIS OF CONTRACT AWARD IS NOT PRICE ALONE, BUT ALSO THERE MUST BE CONSIDERED THE RESPONSIVENESS OF THE QUOTATION TO THE REQUEST FOR PROPOSALS BEFORE A VALID AWARD MAY BE MADE.

AS TO POINT 7, THE NUMBER AND SIZE OF FILE UNITS REQUISITIONED BY THE ORDERING ACTIVITY DID NOT PERMIT ANY VARIANCE; HENCE, THE CONTRACTING OFFICER HAD NO AUTHORITY TO CONSIDER QUOTATIONS NOT MEETING THE SPECIFICATIONS.

IN VIEW OF THE FACTS AND THE LAW APPLICABLE THERETO, IT IS OUR VIEW THAT THE AWARD AS MADE TO ACME IS NOT SUBJECT TO QUESTION BY OUR OFFICE. THE ORDERING AGENCY HERE HAD THE RIGHT UNDER SECTION 1 OF THE SPECIAL PROVISIONS OF THE FEDERAL SUPPLY SCHEDULE TO SELECT ANY TYPE OF EQUIPMENT WHICH MET ITS REQUIREMENTS, PROVIDED THE EQUIPMENT WAS PURCHASED AT THE LOWEST PRICE AVAILABLE. SEE, IN THIS CONNECTION, B 142386, APRIL 14, 1960, COPY HEREWITH.

ACCORDINGLY, WE SEE NO LEGAL BASIS FOR QUESTIONING THE VALIDITY OF THE AWARD TO ACME.