B-148369, MAY 8, 1962

B-148369: May 8, 1962

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DECLARED IN THE INVITATION THAT SUCH PRODUCT WAS EQUAL TO THE BRAND NAMED IN THE SPECIFICATIONS. ALL DATA ON THE MODEL HCT-30 WERE SUBMITTED WITH YOUR BID. SUBJECTED TO A TECHNICAL REVIEW TO DETERMINE IF THE MACHINE YOU PROPOSED TO SUPPLY WAS IN FACT AN "OR EQUAL" MACHINE. THE DIRECTORATE OF ENGINEERING DETERMINED THAT YOUR REF MODEL HCT-30 (WITH OPTIONS) WAS NOT EQUAL TO THE BRAND NAME FOR THE FOLLOWING REASONS: "A. "C. THE TEST GAUGES ARE OF DIFFERENT RANGES THAN WHAT IS REQUIRED TO PROVIDE ADEQUATE DINGS.'. THE PRODUCT YOU OFFERED WAS REEVALUATED BEFORE AWARD. WAS STILL REJECTED AS NONCONFORMING. THE GOVERNMENT WAS STILL UNCONVINCED THAT IT WAS EQUAL TO THE BRAND NAME. YOU ARGUED THAT EACH OF THE THREE GOVERNMENT OBJECTIONS WAS NOT VALID.

B-148369, MAY 8, 1962

TO REF DYNAMICS CORPORATION:

YOUR TELEGRAM OF MARCH 9, 1962, PROTESTS THE AWARD OF A CONTRACT, ORDER NO. P-4635-62-G, BY U.S. ARMY TRANSPORTATION MATERIEL COMMAND, ST. LOUIS, MISSOURI, UNDER INVITATION FOR BIDS TC 23-204-62-150, TO GREER HYDRAULICS, INC. THE SUBJECT INVITATION, WHICH REQUESTED "TEST MACHINE HYDRAULIC ACCESSORIES" AND GAVE SPECIFICATIONS THEREFOR, CALLED FOR A CERTAIN MACHINE MANUFACTURED BY GREER HYDRAULICS, INC., OR EQUAL. YOU SUBMITTED A BID TO FURNISH YOUR OWN PRODUCT, MODEL HCT 30 (WITH OPTIONS), AND DECLARED IN THE INVITATION THAT SUCH PRODUCT WAS EQUAL TO THE BRAND NAMED IN THE SPECIFICATIONS.

ALL DATA ON THE MODEL HCT-30 WERE SUBMITTED WITH YOUR BID, AND SUBJECTED TO A TECHNICAL REVIEW TO DETERMINE IF THE MACHINE YOU PROPOSED TO SUPPLY WAS IN FACT AN "OR EQUAL" MACHINE. IN EVALUATING THE DRAWINGS AND OTHER DATA, THE DIRECTORATE OF ENGINEERING DETERMINED THAT YOUR REF MODEL HCT-30 (WITH OPTIONS) WAS NOT EQUAL TO THE BRAND NAME FOR THE FOLLOWING REASONS:

"A. NO AUTOMATIC SHUTDOWN TO PROTECT TEST MACHINE PUMP FROM CAVITATION.

"B. INSUFFICIENT PRESSURE RELIEF AND SHUTOFF VALVES IN THE 25,000 PSI BOOST SYSTEM.

"C. THE TEST GAUGES ARE OF DIFFERENT RANGES THAN WHAT IS REQUIRED TO PROVIDE ADEQUATE DINGS.'

AT YOUR REQUEST, THE PRODUCT YOU OFFERED WAS REEVALUATED BEFORE AWARD, BUT WAS STILL REJECTED AS NONCONFORMING. ON MARCH 8, 1962, YOU CONFERRED WITH THE GOVERNMENT ENGINEERS AND EXPLAINED THE FUNCTIONING OF YOUR MACHINE, BUT THE GOVERNMENT WAS STILL UNCONVINCED THAT IT WAS EQUAL TO THE BRAND NAME. IN THE LETTERS WHICH REQUESTED REEVALUATION, AND IN THE CONFERENCE, YOU ARGUED THAT EACH OF THE THREE GOVERNMENT OBJECTIONS WAS NOT VALID, AND THAT THE PRODUCT YOU PROPOSED TO FURNISH WAS ESSENTIALLY AN EQUAL OF THE BRAND NAME. THIS CONTENTION REMAINS THE BASIS OF YOUR PROTEST SUBMITTED TO THIS OFFICE.

THE RECORD REASONABLE ESTABLISHES THAT THE CHARACTERISTICS OF YOUR PRODUCT DIFFERED IN A DEMONSTRATIVE MANNER FROM THE GOVERNMENT'S REQUIREMENTS AND FROM THE BRAND NAME. THE DEPARTMENT OF THE ARMY STATES THAT THESE DIFFERENCES CAUSED YOUR MACHINE TO OPERATE IN A MANNER WHICH IS INFERIOR TO THE BRAND NAME AND THEREFORE NOT IN COMPLIANCE WITH THE SPECIFICATIONS. THE QUESTION AS TO THE MATERIALITY OF THE DIFFERENCES BETWEEN YOUR MACHINE AND THE BRAND NAME PRODUCT IS ONE WHICH IS NOT ORDINARILY WITHIN THE JURISDICTION OF THIS OFFICE. IN OUR DECISION B- 139830, DATED AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICER HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * *

IN THIS REGARD, WE HELD IN OUR DECISION B-143389, DATED AUGUST 26, 1960, AS FOLLOWS:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

" "IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *" "

IN VIEW OF THE FACTS REPORTED IN THIS CASE, AND FOR THE REASONS SET OUT IN THE ABOVE-CITED DECISIONS, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN.