B-143420, AUG. 18, 1960

B-143420, AUG. 18, 1960

TO MERGENTHALER LINOTYPE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 5, 1960, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 105-4-12, AS AMENDED, ISSUED BY THE FEDERAL AVIATION AGENCY ON MAY 27, 1960.

THE INVITATION REQUESTED BIDS FOR THE FURNISHING OF TWO COMPOSING (LINE CASTING) MACHINES AND RELATED EQUIPMENT. TWO BIDS WERE RECEIVED AND OPENED ON JUNE 23, 1960. THE INTERTYPE COMPANY, A DIVISION OF HARRIS INTERTYPE CORPORATION, SUBMITTED THE LOWEST BID IN THE AMOUNT OF $44,548.52, AND YOUR FIRM SUBMITTED A BID IN THE AMOUNT OF $46,948.74. AWARD OF THE CONTRACT WAS MADE TO INTERTYPE ON JUNE 28, 1960, AS THE LOWEST, RESPONSIVE BIDDER UNDER THE INVITATION. YOU CONTEND THAT THE AWARD SHOULD NOT HAVE BEEN MADE SINCE INTERTYPE SUBMITTED A BID WHICH DEVIATED FROM ITEM 1A. A. (6) AND ITEM 1A. A. (15) OF THE INVITATION SPECIFICATIONS. SPECIFICALLY, YOU CONTEND:

"ITEM 1A. A. (6) QUADDING AND CENTERING DEVICE OF LATEST

DESIGN (DESCRIBE)

"THE LOW BIDDER, HARRIS-INTERTYPE CORPORATION, SPECIFICALLY STATED IN ITS LETTER QUALIFYING ITS PRODUCT WITH RESPECT TO THE SPECIFICATION OF THE INVITATION TO BID THAT IT WOULD FURNISH AN ,AUTOSPACER" TO SATISFY THIS SPECIFICATION. YOUR ATTENTION IS CALLED TO THE FACT THAT THE LOW BIDDER'S "QUADDING AND CENTERING DEVICE OF LATEST DESIGN" IS EITHER THE SINGLE DUTY QUADDER OR THE DUAL DUTY QUADDER WHICH WAS INTRODUCED IN 1958 WHEREAS THE AUTOSPACER WAS FIRST MARKETED IN THE LATE 1930-S, BUT IN ANY EVENT PRIOR TO THE INTRODUCTION OF THE SINGLE DUTY QUADDER OR THE DUAL DUTY QUADDER. THIS CAN BE SUBSTANTIATED WITHIN THE GOVERNMENT AS FOLLOWS:

"DURING EARLY 1957, THE INTERTYPE COMPOSING MACHINES WHICH WERE INSTALLED IN THE GOVERNMENT PRINTING OFFICE WERE EQUIPPED WITH AUTOSPACERS. HOWEVER, IN JANUARY 1958, THE LOW BIDDER INSTITUTED AN ADVERTISING CAMPAIGN FEATURING ITS "NEW" QUADDER, EVIDENCED BY ADS ON THE OUTSIDE COVER OF THE JANUARY, FEBRUARY AND MARCH ISSUES OF PRINTING EQUIPMENT ENGINEER (THIS PUBLICATION IS NOW KNOWN AS PRINTING PRODUCTION).

"ITEM 1A. A. (15) ONE (1) SET OF SPACEBANDS FOR CLOSE SPACING

(T-668) OR (J-3568), AND ONE (1) SET OF

SPACEBANDS FOR NORMAL OR REGULAR SPACING

(T-2932) OR (J-3572)

"THE UNDERSTANDING COMMON THROUGHOUT THE PRINTING TRADE IS THAT A "SET" OF SPACEBANDS CONSISTS OF 30 INDIVIDUAL SPACEBANDS. WE BELIEVE THAT ANY RESPONSIBLE OFFICIAL IN THE COMPOSING ROOM OF THE GOVERNMENT PRINTING OFFICE CAN CONFIRM THAT THIS IS THE TRADE PRACTICE AND UNDERSTANDING.

"THE LOW BIDDER IN THE LETTER QUALIFYING ITS PRODUCT WITH RESPECT TO THE SPECIFICATION OF THE INVITATION TO BID STATED THAT IT WOULD FURNISH 30 SPACEBANDS. THIS IS ONLY ONE SET OF SPACEBANDS--- NOT THE TWO SETS CALLED FOR IN THE SPECIFICATION.'

YOU FURTHER POINT OUT THAT IN RENDERING ASSURANCES TO THE CONTRACTING OFFICER THAT A SINGLE-DUTY QUADDER OR DUAL-DUTY QUADDER WOULD BE FURNISHED IN LIEU OF THE "AUTOSPACER" NAMED IN INTERTYPE'S BID, INTERTYPE HAS BEEN PERMITTED TO ALTER ITS BID IN A SUBSTANTIAL MANNER AFTER BIDS WERE OPENED TO THE COMPETITIVE DISADVANTAGE OF YOUR COMPANY.

IN A LETTER DATED JUNE 21, 1960, ACCOMPANYING ITS BID, INTERTYPE STATED WITH RESPECT TO THE SPACEBANDS AND QUADDING DEVICE THAT:

"4 MAIN MAGAZINES, 4 MOLDS, 30 SPACEBANDS, ETC. AND ADDITIONAL EQUIPMENT AS SPECIFIED IN ADDENDUMS NO. 1 AND NO. 2

"THE INTERTYPE AUTOSPACER QUADDING AND CENTERING DEVICE WILL BE APPLIED TO BOTH MODEL F-4 INTERTYPES COVERED IN THIS PROPOSAL. THIS FEATURE, WHICH INTERTYPE PIONEERED, MAKES IT POSSIBLE FOR THE QUADDING OF LINES EITHER FLUSH LEFT, CENTER, OR FLUSH RIGHT AUTOMATICALLY. THE QUADDING AND CENTERING DEVICE IS AN AUTOMATIC FEATURE AND FROM A MECHANICAL AND DESIGN STANDPOINT IS THE ULTIMATE IN SIMPLICITY AND ABSOLUTELY POSITIVE IN OPERATION.'

WE ARE ADVISED THAT THE AUTOSPACER QUADDING AND CENTERING DEVICE OFFERED BY THE LOW BIDDER IS ONE OF THREE SUCH DEVICES MARKETED BY INTERTYPE. HOWEVER, INTERTYPE HAS INDICATED THAT IT OFFERED THE AUTOSPACER SINCE THIS ATTACHMENT IS MORE ECONOMICAL AND PRACTICAL FOR USE IN COMPLETELY MANUAL OPERATIONS, SUCH AS INTENDED BY THE AGENCY. THE AUTOSPACER IS STILL REGULARLY MARKETED BY INTERTYPE AND THE MODEL OFFERED IS THE ONE INCORPORATING THE LATEST DESIGN TECHNIQUES.

WHILE INTERTYPE DID LIST 30 SPACEBANDS IN ITS JUNE 21 LETTER, IT DID SO BECAUSE ONE SET IS INCLUDED IN THE PRICE OF THE BASIC MACHINE IN ACCORDANCE WITH THEIR NORMAL PRICING POLICY. THE CHARGE FOR THE SECOND SET OF SPACEBANDS WAS INCLUDED BY INTERTYPE AS A PART OF THEIR BID FOR THE ADDITIONAL EQUIPMENT REQUIRED BY ADDENDUM NO. 1.

NO ASSURANCES WERE SOLICITED OR OBTAINED FROM INTERTYPE WHICH COULD BE REGARDED AS MODIFICATIONS OF THEIR BID. HENCE, THERE IS NOT FOR CONSIDERATION THE PRINCIPLE THAT BIDS MAY NOT BE ALTERED AFTER OPENING TO THE PREJUDICE OF THE COMPETITIVE BIDDING SYSTEM.

CONCERNING THE TECHNICAL CHARACTERISTICS OF QUADDING AND CENTERING DEVICES, THE COURTS HAVE CONSISTENTLY HELD THAT THE QUESTION WHETHER EQUIPMENT TO BE FURNISHED BY A CONTRACTOR IS SUFFICIENT TO COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATIONS IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION. O-BRIEN V. CARNEY, 6 F.SUPP. 761; ROYAL SUNDRIES CORP. V. UNITED STATES, 111 F.SUPP. 136; PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113; FRIEND V. LEE, 221 F.2D 97. IN THE LATTER CASE, IT WAS HELD THAT: "THE FINAL SELECTION OF A CONTRACTOR INVOLVES DISCRETION AND IS NOT SUBJECT TO REVIEW BY THE JUDICIAL BRANCH OF THE GOVERNMENT.' MOREOVER, THE DRAFTING OF SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT, AND BONA FIDE FACTUAL DETERMINATION WHETHER PRODUCTS OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS, ARE BOTH CONSIDERATIONS WITHIN THE PRIMARY RESPONSIBILITIES OF THE PROCUREMENT AGENCIES. 17 COMP. GEN. 54; 19 ID. 587. THE RECORD INDICATES THAT THE BIDS WERE EVALUATED BY COMPETENT TECHNICAL PERSONNEL. NO EVIDENCE HAS BEEN PRESENTED, AND NONE IS APPARENT FROM THE RECORD, WHICH WOULD TEND TO SHOW THAT THE ADMINISTRATIVE ACTION WAS ARBITRARY OR CAPRICIOUS, OR NOT SUPPORTED BY SUFFICIENT FACTUAL INFORMATION.

UNDER THE CIRCUMSTANCES, WE CAN FIND NO LEGAL BASES TO OBJECT TO THE AWARD OF THE CONTRACT TO ..END :