B-146446, SEP. 29, 1961

B-146446: Sep 29, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO ELGIN SWEEPER COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JULY 17. BIDS IN THIS CASE WERE OPENED ON JUNE 29. FOUR BIDS WERE RECEIVED. 514 EACH FOR TWO SWEEPERS WAS THE LOWEST RECEIVED. HOWEVER YOUR BID WAS REJECTED AND THE AWARD WAS MADE TO THE SECOND LOWEST BIDDER. THE BASIS OF YOUR PROTEST IS THAT INSTEAD OF USING THE STANDARD MILITARY SPECIFICATION FOR THIS EQUIPMENT (MIL-S-15619D). YOU STATE THAT THE SWEEPERS YOU PROPOSED TO FURNISH WOULD HAVE COMPLIED WITH THE GOVERNMENT SPECIFICATIONS. REFERENCE TO "WAYNE MODEL 1-550 OR EQUAL" WAS ELIMINATED FROM THE INVITATION BY AMENDMENT NO. 2 ISSUED JUNE 22. UNDER THE SAME AMENDMENT THE REFERENCE TO THE APPLICABLE MILITARY SPECIFICATIONS IN PARAGRAPH 1 OF TECHNICAL SPECIFICATIONS WAS AMENDED TO READ "MIL-S-15619D DATED 4 MAR 1960.'.

B-146446, SEP. 29, 1961

TO ELGIN SWEEPER COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 17, 1961, PROTESTING THE AWARD OF A CONTRACT TO WAYNE MANUFACTURING COMPANY UNDER INVITATION FOR BIDS NO. AVI 04-351-61-146 FOR FURNISHING TWO ROTARY SWEEPERS.

BIDS IN THIS CASE WERE OPENED ON JUNE 29, 1961. FOUR BIDS WERE RECEIVED. YOUR BID IN THE AMOUNT OF $9,514 EACH FOR TWO SWEEPERS WAS THE LOWEST RECEIVED. HOWEVER YOUR BID WAS REJECTED AND THE AWARD WAS MADE TO THE SECOND LOWEST BIDDER, WAYNE MANUFACTURING COMPANY, BECAUSE YOU HAD FAILED TO FURNISH THE DATA REQUIRED BY THE INVITATION.

THE BASIS OF YOUR PROTEST IS THAT INSTEAD OF USING THE STANDARD MILITARY SPECIFICATION FOR THIS EQUIPMENT (MIL-S-15619D), THE GOVERNMENT SPECIFIED THE MODEL OF A SINGLE MANUFACTURER AND INCORPORATED MOST OF THAT COMPANY'S IMPORTANT SPECIFICATIONS INTO THE GOVERNMENT'S SPECIFICATIONS. ALSO, YOU STATE THAT THE SWEEPERS YOU PROPOSED TO FURNISH WOULD HAVE COMPLIED WITH THE GOVERNMENT SPECIFICATIONS.

THE INVITATION AS ISSUED ON JUNE 10, 1961, REQUIRED THE SWEEPERS TO BE "IN ACCORDANCE WITH ATTACHED SPECIFICATIONS, WAYNE MODEL 1-550 OR EQUAL.' HOWEVER, REFERENCE TO "WAYNE MODEL 1-550 OR EQUAL" WAS ELIMINATED FROM THE INVITATION BY AMENDMENT NO. 2 ISSUED JUNE 22, 1961. UNDER THE SAME AMENDMENT THE REFERENCE TO THE APPLICABLE MILITARY SPECIFICATIONS IN PARAGRAPH 1 OF TECHNICAL SPECIFICATIONS WAS AMENDED TO READ "MIL-S-15619D DATED 4 MAR 1960.' UNDER THAT PARAGRAPH THE SPECIFICATIONS AND TECHNICAL PROVISIONS FOLLOWING IT WERE ALSO TO APPLY TO THE PROCUREMENT. PARAGRAPH 1B OF GENERAL SPECIFICATIONS PROVIDED THAT---

"EACH BIDDER SHALL ATTACH TO HIS BID ONE (1) SET OF CONTRACTOR SPECIFICATIONS, WHICH SHALL CONTAIN DETAILED DRAWINGS, LITERATURE, DIAGRAMS AND OTHER INFORMATION WHICH SUPPLIES INFORMATION NOT COVERED BY THESE SPECIFICATIONS. IN THE EVENT THE CONTRACTORS SPECIFICATIONS DIFFER IN ANY RESPECT FROM THE FOLLOWING SPECIFICATIONS, THE PURCHASING AND CONTRACTING AUTHORIZED REPRESENTATIVES SHALL BE SOLE JUDGE OF ACCEPTANCE OR REJECTION OF SAME.'

ALSO, PARAGRAPH 35C OF THE TECHNICAL SPECIFICATIONS PROVIDED THAT--

"THE PURCHASING AND CONTRACTING OFFICER RESERVES THE RIGHT TO REJECT ANY AND ALL BIDS WHEREIN CONFORMANCE WITH THIS SPECIFICATION IS A MATTER OF BIDDERS CONJECTURE AND CANNOT BE ASCERTAINED BY DEFINITE RECOGNIZED STANDARDS. IT ALSO RESERVES THE RIGHT TO ACCEPT BIDS DEVIATING SLIGHTLY, OR IN MINOR DETAILS FROM THIS SPECIFICATION WHERE SUCH DEVIATION DOES NOT AFFECT THE PERFORMANCE OF THE STREET SWEEPER OR ITS ALLIED APPARATUS.'

WITH YOUR LETTER OF JUNE 26, 1961, TRANSMITTING YOUR BID, YOU ENCLOSED YOUR STANDARD SPECIFICATIONS COVERING THE SWEEPER OFFERED BY YOU. YOU STATED THAT WHERE YOUR STANDARD SPECIFICATIONS DID NOT CONFORM TO THE GOVERNMENT'S REQUIREMENTS ALL NECESSARY MODIFICATIONS AND ADDITIONS WOULD BE MADE SO THAT THE SWEEPER SUPPLIED WOULD CONFORM IN ALL RESPECTS TO THE APPLICABLE GOVERNMENT SPECIFICATIONS, EXCEPT AS TO THE TYPE OF CLUTCH YOU OFFERED. WHEN THE BIDS WERE EVALUATED ON JUNE 30, 1961, IT WAS DISCOVERED THAT YOU HAD FAILED TO ANSWER ALL QUESTIONS ON PAGE 29 OF THE TECHNICAL SPECIFICATIONS. EVEN AFTER YOU SUPPLIED CERTAIN INFORMATION AFTER BEING CONTACTED ON JUNE 30, NOT ALL OF THE QUESTIONS ASKED HAD BEEN ANSWERED. IN REVIEWING YOUR BID FURTHER, THE CONTRACTING OFFICER FOUND THAT YOU HAD FAILED TO COMPLY WITH PARAGRAPH 1B OF THE GENERAL SPECIFICATIONS WHICH REQUIRED YOU TO ATTACH TO YOUR BID ONE SET OF "CONTRACTOR SPECIFICATIONS" WHICH SHALL CONTAIN DETAILED DRAWINGS, LITERATURE, DIAGRAMS AND OTHER INFORMATION WHICH SUPPLIES INFORMATION NOT COVERED BY THE SPECIFICATIONS. YOU WERE NOTIFIED BY THE CONTRACTING OFFICER ON JULY 21, 1961, OF THESE REASONS FOR THE REJECTION OF YOUR BID.

WITH REGARD TO YOUR CONTENTION THAT THE SPECIFICATIONS USED IN THIS INVITATION INCORPORATED MOST OF THE WAYNE COMPANY'S IMPORTANT SPECIFICATIONS AND THAT THE PROCUREMENT WAS IN EFFECT A PROPRIETARY PROCUREMENT, IT MAY BE POINTED OUT THAT FOUR BIDS WERE RECEIVED WHICH WOULD TEND TO INDICATE THAT THIS WAS NOT A PROPRIETARY PROCUREMENT. ADDITION, WAYNE MANUFACTURING COMPANY HAS STATED THAT ITS STANDARD EQUIPMENT SOLD TO THE GENERAL PUBLIC REQUIRED A NUMBER OF MODIFICATIONS IN ORDER TO MEET THE INVITATION SPECIFICATIONS. INCLUDED IN SUCH MODIFICATIONS WERE SPECIAL METALS PREPARATION, WELDING TECHNIQUES, PAINT PROCESSING, ADDITION OF A SPECIAL ENGINE OIL COOLING SYSTEM, FUEL LINE SHUT-OFF LEVER LOCATED BETWEEN THE FUEL TANK AND CARBURETOR, ETC.

WITH REGARD TO GENERAL OVERALL OFFER TO MEET THE GOVERNMENT SPECIFICATIONS AND YOUR FAILURE TO FURNISH THE REQUIRED DESCRIPTIVE LITERATURE, DRAWINGS, ETC., REFERRED TO IN PARAGRAPH 1B OF GENERAL SPECIFICATIONS, OUR OFFICE HAS HELD THAT AN OVERALL OFFER TO COMPLY CANNOT BE REGARDED AS OVERCOMING THE SPECIFIC PROVISIONS OF THE INVITATION REQUIRING THE FURNISHING OF MATERIAL DESCRIPTIVE DATA. 40 COMP. GEN. 132, 135; AND 36 ID. 415, 417.