B-143662, OCT. 7, 1960

B-143662, OCT. 7, 1960

TO W. E. SHIPLEY MACHINERY CO.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1, 1960, PROTESTING AGAINST THE AWARD OF A CONTRACT TO CHESAPEAKE MACHINERY CO., INC., FOR THE FURNISHING OF A TOOLMAKERS LATHE UNDER INVITATION FOR BIDS NO. ORD 18-001- 60-195.

THE INVITATION FOR BIDS WAS ISSUED BY THE PROCUREMENT OFFICE, ABERDEEN PROVING GROUND, MARYLAND, ON MAY 24, 1960. BIDS WERE TO BE OPENED ON JUNE 9, 1960. THE ITEM TO BE FURNISHED WAS ONE TOOLMAKERS LATHE. BIDDERS WERE REQUESTED TO QUOTE A PRICE ON A USED LATHE LISTED IN THE INVITATION WHICH MIGHT BE TRADED-IN IF THE AMOUNT ALLOWED WAS CONSIDERED IN THE BEST INTEREST OF THE GOVERNMENT.

THE TYPE OF LATHE TO BE FURNISHED WAS IDENTIFIED AS A "TOOLMAKERS, "13 POWER TURN" 54" CENTERS, LODGE AND SHIPLEY 1610, OR EQUAL," AND TO BE IN ACCORDANCE WITH PURCHASE DESCRIPTION IDENTIFIED AS SA1-96-59, DATED 28 APRIL 1959, PAGES 1-9 INCLUSIVE.' THE NINE PAGES OF THE CITED PURCHASE DESCRIPTION, D AND PS SA1-96-59, CONTAIN THE DETAILED REQUIREMENTS.

YOU PROPOSED TO FURNISH THE TYPE OF LATHE NAMED IN THE INVITATION, NAMELY, LODGE AND SHIPLEY NO. 1610. FOUR OTHER BIDS WERE RECEIVED. THE BID OF CHESAPEAKE MACHINERY CO., INC., IN THE AMOUNT OF $17,633, LESS A TRADE-IN ALLOWANCE OF $3,030, OR A NET OF $14,603, WAS THE LOWEST BID RECEIVED AND WAS ACCEPTED ON JUNE 30, 1960. THE BID OF CHESAPEAKE SHOWED THAT IT PROPOSED TO FURNISH A LATHE MANUFACTURED BY THE AMERICAN TOOL WORKS COMPANY, IDENTIFIED AS THE PACEMAKER, MODEL NO. 14 ,B.' THE MANUFACTURER'S CATALOG WAS FURNISHED.

IN YOUR LETTER OF AUGUST 1, 1960, PROTESTING THE AWARD TO CHESAPEAKE YOU CONTEND THAT THERE WAS NO COMPLIANCE WITH "CERTAIN TECHNICAL ASPECTS FROM AN ADMINISTRATIVE PROCUREMENT STANDPOINT" AND THAT THE LIMITED SUPPORTING DATA SUBMITTED BY CHESAPEAKE INDICATES NUMEROUS DISCREPANCIES BETWEEN THE EQUIPMENT PROPOSED TO BE FURNISHED AND THE EQUIPMENT AS DESCRIBED IN D AND PS SA1-96-59.

IN REGARD TO YOUR FIRST CONTENTION, ARTICLE XII OF THE INVITATION CAPTIONED "BRAND NAME OR EQUAL" PROVIDED AS FOLLOWS:

"AS USED IN THIS CLAUSE, THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF SUPPLIES BY MAKE AND MODEL.

"CERTAIN SUPPLIES CALLED FOR BY THIS INVITATION FOR BIDS ARE IDENTIFIED IN THE SCHEDULE BY A BRAND NAME "OR EQUAL" DESCRIPTION. THIS IDENTIFICATION IS DESCRIPTIVE RATHER THAN RESTRICTIVE. 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.

"BIDDERS MUST CLEARLY INDICATE WHETHER THEIR BIDS ARE BASED ON A BRAND NAME ITEM OR ON AN ,EQUAL" ITEM BY FURNISHING THE INFORMATION REQUIRED BELOW. IF THE BIDDER DOES NOT IDENTIFY THE BRAND NAME OR DESCRIBE IN FULL THE "OR EQUAL" ITEM WHICH IS OFFERED, AS PROVIDED IN (1) AND (2) BELOW, THE BID WILL BE REJECTED.

"/1) IF THE BIDDER PROPOSES TO FURNISH A BRAND NAME ITEM SPECIFIED IN THIS INVITATION FOR BIDS, THE ITEM SHOULD BE IDENTIFIED BY BRAND NAME IN THE INDICATED SPACE FOLLOWING EACH ITEM.

"/2) IF THE BIDDER PROPOSES TO FURNISH AN "OR EQUAL" ITEM,

THE FOLLOWING DESCRIPTIVE DATA MUST BE FURNISHED:

"BRAND NAME OF THE ITEM PROPOSED TO BE FURNISHED, IF ANY, AND FULL DESCRIPTION THEREOF, INCLUDING PERTINENT PHYSICAL, MECHANICAL, ELECTRICAL AND CHEMICAL DETAILS AND A STATEMENT EXPLAINING THE DIFFERENCES BETWEEN THE ITEM BEING OFFERED AND ANY ONE OF THE CORRESPONDING BRAND NAME ITEMS CALLED FOR BY THIS INVITATION FOR BIDS. (THIS INFORMATION MAY BE SUPPLIED BY SEPARATE ATTACHMENTS TO THE BID.)"

PARAGRAPH E, PAGE 2, OF THE PURCHASE DESCRIPTION ALSO PROVIDED THAT LATHES OFFERED WHICH DIFFER FROM THE SPECIFICATIONS WILL BE CONSIDERED PROVIDED SUCH DIFFERENCES FROM THE SPECIFICATIONS ARE CLEARLY INDICATED TO PERMIT A DEFINITE DETERMINATION AS TO WHETHER OR NOT SUCH DIFFERENCES WILL MATERIALLY AFFECT THE USE OF THE LATHE FOR THE PARTICULAR OPERATIONS FOR WHICH IT IS INTENDED. AS TO YOUR SECOND CONTENTION DEALING WITH THE ENGINEERING AREA OF THE TECHNICAL SPECIFICATIONS YOU STRESS THE FACT THAT CHESAPEAKE DID NOT FURNISH ANY DATA EXCEPT THAT CONTAINED IN THE COMMERCIAL BULLETIN OF THE MANUFACTURER AND THAT THE DATA CONTAINED THEREIN SHOWED NUMEROUS DISCREPANCIES BETWEEN THE DETAILED SPECIFICATIONS OF THE INVITATION AND THOSE SET OUT IN THE COMMERCIAL BULLETIN.

IN YOUR LETTER OF JUNE 15, 1960, TO THE PROCUREMENT OFFICE YOU HAD PRESENTED YOUR REASONS FOR CONSIDERING THAT YOU WERE THE LOW RESPONSIVE BIDDER, WHICH REASONS ARE THOSE NOW ADVANCED BY YOU. IN A MEETING ON JUNE 20, 1960, BETWEEN REPRESENTATIVES OF THE ABERDEEN PROVING GROUND, IT WAS DETERMINED, AMONG OTHER THINGS, THAT CHESAPEAKE WAS RESPONSIVE TO THE INVITATION FOR BIDS SINCE IT HAD FURNISHED DESCRIPTIVE LITERATURE WHICH IS KNOWN TO THE TRADE. IT WAS DECIDED, HOWEVER, TO FORWARD THE MATTER TO HIGHER AUTHORITY FOR APPROVAL. THIS WAS DONE AND THE PROPOSED AWARD TO CHESAPEAKE WAS APPROVED ON JUNE 29, 1960.

YOUR PROTEST HAS BEEN CONSIDERED BY THE ADMINISTRATIVE OFFICE AND IN AN UNDATED STATEMENT THE CHIEF, INDUSTRIAL DIVISION, OF THE OFFICE, CHIEF OF ORDNANCE, REPORTED THAT---

"REPRESENTATIVES OF THIS OFFICE, THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, AND THE JUDGE ADVOCATE GENERAL, REVIEWED IFB NO. ORD-18-001 60-195 PRIOR TO AWARD. IT WAS DETERMINED THAT THE DETAILED SPECIFICATIONS OF THE TOOLMAKERS LATHE, LODGE AND SHIPLEY 1610, OR EQUAL, SET FORTH IN PURCHASE DESCRIPTION, IF USED IN EVALUATING BIDS ON OTHER MANUFACTURER'S MACHINES, WOULD BE RESTRICTIVE OF COMPETITION. THE INTENT OF THE PURCHASE DESCRIPTION WAS TO DESCRIBE THE TYPE AND QUALITY OF THE EQUIPMENT DESIRED AND WAS NOT INTENDED TO BE RESTRICTIVE OR TO LIMIT BIDDERS TO EQUIPMENT OF THE PARTICULAR BRAND NAME STATED IN THE IFB. ACCORDINGLY, THE PROCUREMENT OFFICIALS AT ABERDEEN PROVING GROUND WERE INSTRUCTED TO EVALUATE ALL BIDS ON THE BASIS OF GENERAL PERFORMANCE CHARACTERISTICS OF THE BRAND NAME SPECIFIED AND THE MINIMUM REQUIREMENTS OF THE GOVERNMENT. THIS WAS DONE. THE ADMINISTRATIVE ACTION TAKEN WILL PRECLUDE THE FURTHER ISSUANCE OF IFB'S ON AN "OR EQUAL" BASIS CONTAINING THE DETAILED DIMENSIONAL OR PROPRIETARY SPECIFICATIONS OF THE NAMED BRAND. THE PROPOSED AWARD OF ITEM 1 TO CHESAPEAKE MACHINERY COMPANY, INC. WAS REVIEWED BY MY STAFF AND APPROVED ON JUNE 29, 1960. IN REVIEWING THE FILE I FIND THAT NO ADDITIONAL EVIDENCE HAS BEEN SUBMITTED TO CAUSE THIS OFFICE TO CHANGE ITS OPINION IN THE MATTER.'

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. HOWEVER, PURCHASES ADVERTISED, AS HERE, PURSUANT TO 10 U.S.C. 2305 (A), MUST PERMIT FULL AND FREE COMPETITION CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY. IT WILL BE NOTED FROM THE REPORT OF THIS OFFICE, CHIEF OF ORDNANCE, QUOTED ABOVE, THAT THE MATTER OF WHETHER THE SPECIFICATIONS WERE RESTRICTIVE WAS GIVEN THOROUGH CONSIDERATION BY REPRESENTATIVES OF THE OFFICE, CHIEF OF ORDNANCE, THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, AND THE JUDGE ADVOCATE GENERAL. THAT REPORT INDICATED THAT THE DETAILED SPECIFICATIONS OF THE LATHE, LODGE AND SHIPLEY 1610--- THE BRAND YOU PROPOSED TO FURNISH--- SET FORTH IN THE PURCHASE DESCRIPTION, IF USED IN EVALUATING BIDS ON OTHER MANUFACTURERS' LATHES WOULD BE RESTRICTIVE OF COMPETITION. AS A RESULT OF THE REVIEW OF THE SPECIFICATIONS, THE PROCUREMENT OFFICIALS AT THE ABERDEEN PROVING GROUND WERE INSTRUCTED TO EVALUATE ALL BIDS ON THE BASIS OF THE GENERAL PERFORMANCE CHARACTERISTICS OF THE BRAND NAME SPECIFIED AND THE MINIMUM REQUIREMENTS OF THE GOVERNMENT. AND, AS STATED HEREINABOVE, THE PROCUREMENT OFFICE HAD THERETOFORE CONSIDERED THE SUFFICIENCY OF THE DESCRIPTIVE LITERATURE FURNISHED BY CHESAPEAKE AND HAD REGARDED IT AS SUFFICIENTLY DETAILED IN NATURE. AS A RESULT, THE LOW BID OF CHESAPEAKE WAS ACCEPTED. ITIS INDICATED THAT FURTHER ISSUANCE OF INVITATIONS ON AN "OR EQUAL" BASIS CONTAINING DETAILED DIMENSIONAL OR PROPRIETARY SPECIFICATIONS OF THE NAMED BRAND WILL BE DISCONTINUED.

ACCORDINGLY, WHILE IT MIGHT HAVE BEEN ADVISABLE TO READVERTISE IN THIS CASE ON NEW AND REVISED SPECIFICATIONS IF CIRCUMSTANCES PERMITTED, NEVERTHELESS SINCE CORRECTIVE ACTION HAS BEEN TAKEN AND SINCE IT IS UNDERSTOOD THAT THE CONTRACTOR DELIVERED THE NEW LATHE ON SEPTEMBER 28, OUR OFFICE DOES NOT FEEL THAT IT WOULD BE PRACTICABLE TO REQUIRE THAT THE CONTRACT AWARDED TO CHESAPEAKE BE CANCELED.