B-148013, FEB. 14, 1962

B-148013: Feb 14, 1962

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TO THE AMERICAN COLEMAN COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM RECEIVED IN OUR OFFICE ON JANUARY 23. WE HAVE RECEIVED NO FURTHER COMMUNICATION FROM YOU REGARDING THE MATTER. IT MAY BE THAT YOU HAVE CONCLUDED TO ABANDON YOUR PROTEST. IN ANY EVENT THE UNITED STATES MARINE CORPS REPORTS THAT THE AWARD OF A CONTRACT UNDER THE CITED INVITATION IS BEING HELD IN ABEYANCE PENDING OUR CONSIDERATION OF YOUR PROTEST. CERTAIN COMPONENTS CALLED FOR BY THIS INVITATION FOR BIDS ARE IDENTIFIED IN THE DRAWINGS BY A BRAND NAME "OR EQUAL" DESCRIPTION. THIS IDENTIFICATION IS DESCRIPTIVE RATHER THAN RESTRICTIVE EXCEPT FOR M-R'S AXLES. HOIST AND BOOM ASSEMBLY FOR WHICH "OR EQUAL" WILL NOT BE ACCEPTED.

B-148013, FEB. 14, 1962

TO THE AMERICAN COLEMAN COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM RECEIVED IN OUR OFFICE ON JANUARY 23, 1962, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 91, ISSUED BY HEADQUARTERS, UNITED STATES MARINE CORPS, UNDER DATE OF DECEMBER 8, 1961, FOR FURNISHING A QUANTITY OF MOBILE CRANES.

AFTER SETTING FORTH IN YOUR TELEGRAM THE BASIS FOR YOUR PROTEST IN THIS CASE, YOU STATED THAT A LETTER WOULD FOLLOW. WE HAVE RECEIVED NO FURTHER COMMUNICATION FROM YOU REGARDING THE MATTER, AND IT MAY BE THAT YOU HAVE CONCLUDED TO ABANDON YOUR PROTEST. IN ANY EVENT THE UNITED STATES MARINE CORPS REPORTS THAT THE AWARD OF A CONTRACT UNDER THE CITED INVITATION IS BEING HELD IN ABEYANCE PENDING OUR CONSIDERATION OF YOUR PROTEST, AND UNDER THE CIRCUMSTANCES WE FEEL JUSTIFIED IN PROCEEDING TO CONSIDER THE MATTER ON THE BASIS OF THE RECORD NOW BEFORE US.

THE CITED INVITATION FOR BIDS CALLED FOR THE PRODUCTION AND DELIVERY OF 76 WHEEL-MOUNTED, RUBBER TIRED, DIESEL ENGINE DRIVEN, SECTIONALIZED CRANES OF 3-TON CAPACITY, IN ACCORDANCE WITH THE INDICATED SPECIFICATIONS. PAGE 11 OF THE INVITATION CONTAINED THE FOLLOWING LANGUAGE:

"BRAND NAME OR EQUAL

"AS USED IN THIS CLAUSE, THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF COMPONENTS BY MAKE AND MODEL. CERTAIN COMPONENTS CALLED FOR BY THIS INVITATION FOR BIDS ARE IDENTIFIED IN THE DRAWINGS BY A BRAND NAME "OR EQUAL" DESCRIPTION. THIS IDENTIFICATION IS DESCRIPTIVE RATHER THAN RESTRICTIVE EXCEPT FOR M-R'S AXLES, GMC ENGINES, ALLISON TRANSMISSIONS, AND ANTHONY CRANE, HOIST AND BOOM ASSEMBLY FOR WHICH "OR EQUAL" WILL NOT BE ACCEPTED. BIDS OFFERING "OR EQUAL" COMPONENTS WILL BE CONSIDERED FOR AWARD IF SUCH COMPONENTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL TO THE BRAND NAMED SUPPLIES IN ALL MATERIAL RESPECTS. * * *"

UNDER DATE OF JANUARY 5, 1962, YOU SUBMITTED A BID ON THE PRESCRIBED FORM PROPOSING TO FURNISH THE 76 MOBILE CRANES FOR THE STATED PRICE OF $1,633,620, THE SAME TO CONFORM IN ALL RESPECTS TO THE REQUIREMENTS OF THE INVITATION. THE UNITED STATES MARINE CORPS REPORTS THAT THIS BID WAS RESPONSIVE BUT THAT IT WAS NOT THE LOW BID. ATTACHED TO THE BID FORM WAS AN ALTERNATE BID DESCRIBED AS "BID NO. 2," STATING THAT--

"* * * IF THE MARINE CORPS WILL FURNISH US WITH DRAWINGS OF ALL OF THOSE PARTS IN THE MRS AXLE WHICH ARE NOT FURNISHED BY CLARK EQUIPMENT COMPANY TO MRS, OR BY ANY OTHER MANUFACTURER WHO HAS THESE PARTS COMMERCIALLY AVAILABLE TO ALL BIDDERS, WE WILL DUPLICATE ALL SUCH PARTS AS FAR AS INTERCHANGEABLILITY, MATERIALS, DESIGN, CAPACITY, TOLERANCES AND OTHER NORMAL ENGINEERING FACTORS, GIVING THE MARINE CORPS AN AXLE THAT IS COMPLETELY INTERCHANGEABLE WITH THE MRS AXLE AS A COMPLETE ASSEMBLY, AS TO MAJOR ASSEMBLIES AND AS TO ALL INDIVIDUAL PIECE PARTS. IF THE MARINE CORPS CANNOT PROVIDE THE FOREGOING DRAWINGS, THE SAME INTERCHANGEABILITY AS SET FORTH ABOVE CAN BE ACCOMPLISHED IF THE MARINE CORPS WILL PROVIDE US WITH A COMPLETE MRS AXLE ASSEMBLY AT NO CHARGE, FROM WHICH DRAWINGS WILL BE MADE AND FURNISHED TO THE MARINE CORPS.'

THE RECORD INDICATES THAT THE MARINE CORPS CONSIDERED THIS ALTERNATE BID AS NOT RESPONSIVE BECAUSE IT WAS CONDITIONED UPON RECEIPT BY YOUR COMPANY OF DRAWINGS FROM THAT AGENCY, AND THE AGENCY HAS PROPERLY POINTED OUT THAT IT DOES NOT HAVE THE RIGHT TO USE SUCH DRAWINGS FOR PROCUREMENT PURPOSE. ALSO, THE ADDITIONAL SUGGESTION CONTAINED IN "BID NO. 2," THAT IS TO SAY, IF THE MARINE CORPS WOULD FURNISH YOUR COMPANY A "COMPLETE M-R'S AXLE ASSEMBLY AT NO CHARGE," YOU WOULD MAKE DRAWINGS THEREOF, ETC., IS NOT ACCEPTABLE SINCE THE MARINE CORPS IS WITHOUT AUTHORITY TO FURNISH AN AXLE ASSEMBLY FOR SUCH PURPOSE. PRESUMABLY YOU COULD SECURE AN M-R'S AXLE ASSEMBLY YOURSELF IF YOU DESIRED.

THE MARINE CORPS POINTS OUT THAT EVEN IF YOUR REQUEST COULD BE COMPLIED WITH, OF NECESSITY THAT AGENCY WOULD REQUIRE EXTENSIVE TESTING OF AN AXLE MADE BY A COMPANY OTHER THAN M-R'S TO DETERMINE THAT THE MANUFACTURER UTILIZED QUALITY CONTROLS IN MANUFACTURE AND THAT THE FINAL PRODUCT COULD MEET THE RIGID PERFORMANCE REQUIREMENTS ESTABLISHED BY THE MARINE CORPS. ALSO, IT APPEARS THAT THE COST OF SUCH EXTENSIVE TESTING AND THE TIME CONSUMED THEREIN WOULD PROBABLY EXCEED THE POTENTIAL SAVINGS ALLEGED BY YOU. IN CONNECTION WITH YOUR "BID NO. 2," WE INVITE YOUR ATTENTION TO A PARAGRAPH IN OUR DECISION DATED OCTOBER 13, 1960, B-144369, DENYING YOUR PROTEST UNDER INVITATION FOR BIDS NO. 160-60, ISSUED BY THE UNITED STATES MARINE CORPS UNDER DATE OF MAY 11, 1960, FOR THE PRODUCTION AND DELIVERY OF A QUANTITY OF MOBILE CRANES UNDER THE SAME SPECIFICATIONS AS ARE HERE INVOLVED. THE INDICATED PARAGRAPH IS, IN PART, AS FOLLOWS:

"* * * THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE PROCUREMENT ACTIVITY, REASONABLY MEET THE ACTIVITY'S NEED.'

ALSO ATTACHED TO THE BID FORM WAS YOUR ALTERNATE "BID NO. 3" IN WHICH YOUR COMPANY OFFERED A CLARK AXLE IN LIEU OF THE M-R'S AXLE CALLED FOR BY THE INVITATION, IT BEING STATED BY YOU THAT THE "MAJOR COMPONENTS" WOULD BE INTERCHANGEABLE BUT THAT, HOWEVER, A "FEW MINOR PIECE PARTS" MIGHT NOT BE INTERCHANGEABLE. THIS ALTERNATIVE BID IS NOT FOR CONSIDERATION SINCE IT IS CLEARLY NOT RESPONSIVE TO THE INVITATION.

UPON CONSIDERATION OF THE FACTS AND CIRCUMSTANCES IN THIS CASE, IT IS OUR VIEW THAT THE BIDS SUBMITTED BY YOUR COMPANY, INCLUDING THE ALTERNATE BIDS, ARE NOT FOR ACCEPTANCE BY THE MARINE CORPS AND, ACCORDINGLY, YOUR PROTEST IS HEREBY DENIED.