B-148488, JUN. 28, 1962

B-148488: Jun 28, 1962

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YOUR PROPOSAL TO SUPPLY AN "EQUAL" PRODUCT RATHER THAN THE ONE MANUFACTURED BY AUTOMATIC SWITCH COMPANY WAS REJECTED AS NONRESPONSIVE. AWARD WAS MADE ON MARCH 21. THE DEPARTMENT OF THE ARMY INFORMS US THAT THE BALANCE OF THE GOODS BEING SUPPLIED BY FRANK ELECTRIC CORPORATION WAS TO BE SHIPPED ON MAY 17. SINCE THE CATALOG REFERRED TO IN THE INVITATION AS DESCRIPTIVE OF THE DESIRED SWITCH WAS AVAILABLE ONLY TO DISTRIBUTORS OF THE AUTOMATIC SWITCH COMPANY. THE DEPARTMENT OF THE ARMY INFORMS US THAT THE BALANCE OF THE GOODS BEING SUPPLIED BY FRANK ELECTRIC CORPORATION WAS TO BE SHIPPED ON MAY 17. SINCE THE CATALOG REFERRED TO IN THE INVITATION AS DESCRIPTIVE OF THE DESIRED SWITCH WAS AVAILABLE ONLY TO DISTRIBUTORS OF THE AUTOMATIC SWITCH COMPANY.

B-148488, JUN. 28, 1962

TO THE WHITE PLAINS ELECTRICAL SUPPLY CO., INC.:

YOUR LETTER OF MARCH 22, 1962, PROTESTS AWARD OF CONTRACT DA-36-237 SC- 1008 ON MARCH 21, 1962, TO FRANK ELECTRIC CORPORATION FOR AN ITEM DESCRIBED IN INVITATION FOR BIDS SC-36-237-62-87, AS FOLLOWS:

"1 SWITCH, AUTOMATIC, CAT NUMBER X3519, SERIAL NUMBER 43213K, COIL 208/60, - CONTACTS 600/60, 200 AMPS, AUTOMATIC SWITCH CO., FLORHAM PARK, N.J., OR EQUAL. 192 EA BIDDING ON:

CHART MANUFACTURER'S NAME ------------------------- BRAND -------- ------ ------------------------ NO. ----------------------------------- -----"

THE INVITATION CONTAINED THE STANDARD "BRAND NAME OR EQUAL" PROVISIONS. YOUR PROPOSAL TO SUPPLY AN "EQUAL" PRODUCT RATHER THAN THE ONE MANUFACTURED BY AUTOMATIC SWITCH COMPANY WAS REJECTED AS NONRESPONSIVE, AND AWARD WAS MADE ON MARCH 21, 1962, TO FRANK ELECTRIC CORPORATION, A DISTRIBUTOR FOR THE AUTOMATIC SWITCH COMPANY, WHICH OFFERED TO SUPPLY THE REQUESTED "BRAND NAME" ITEM. IN A REPORT SUBMITTED ON MAY 21, 1962, THE DEPARTMENT OF THE ARMY INFORMS US THAT THE BALANCE OF THE GOODS BEING SUPPLIED BY FRANK ELECTRIC CORPORATION WAS TO BE SHIPPED ON MAY 17, 1962, MEETING THE REQUIRED DELIVERY DATE OF JUNE 4, 1962.

YOU PROTEST ON THE GROUND THAT THE INVITATION RESTRICTED COMPETITION BY LIMITING ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCT, SINCE THE CATALOG REFERRED TO IN THE INVITATION AS DESCRIPTIVE OF THE DESIRED SWITCH WAS AVAILABLE ONLY TO DISTRIBUTORS OF THE AUTOMATIC SWITCH COMPANY, WHICH OFFERED TO SUPPLY THE REQUESTED "BRAND NAME" ITEM. IN A REPORT SUBMITTED ON MAY 21, 1962, THE DEPARTMENT OF THE ARMY INFORMS US THAT THE BALANCE OF THE GOODS BEING SUPPLIED BY FRANK ELECTRIC CORPORATION WAS TO BE SHIPPED ON MAY 17, 1962, MEETING THE REQUIRED DELIVERY DATE OF JUNE 4, 1962.

YOU PROTEST ON THE GROUND THAT THE INVITATION RESTRICTED COMPETITION BY LIMITING ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCT, SINCE THE CATALOG REFERRED TO IN THE INVITATION AS DESCRIPTIVE OF THE DESIRED SWITCH WAS AVAILABLE ONLY TO DISTRIBUTORS OF THE AUTOMATIC SWITCH COMPANY. THE DEPARTMENT OF THE ARMY REPORTS THAT YOUR ALLEGATION IS CORRECT, SINCE "THERE WAS NO POSSIBLE MEANS FOR BIDDERS OFFERING AN "EQUAL" ITEM TO APPRISE THEMSELVES OF THE PHYSICAL CHARACTERISTICS OF THE REQUIRED ITEM.' THE EXPLANATION OFFERED FOR THE FAILURE TO INCLUDE DESCRIPTIVE SPECIFICATIONS IN THE INVITATION WAS THAT THE CONTRACTING OFFICER DETERMINED ERRONEOUSLY THAT THE DESIGNATED AUTOMATIC SWITCH, WHICH HE HAD NOT PREVIOUSLY PURCHASED, WAS AN OFF THE-SHELF ITEM. THE PROCURING ACTIVITY DID NOT LEARN UNTIL AFTER THE PROTEST THAT THE SWITCH WAS A SPECIALLY MANUFACTURED ITEM, THE CATALOG SPECIFICATIONS FOR WHICH WERE NOT GENERALLY AVAILABLE.

THE REPORT ALSO STATES THAT SINCE THE SWITCH WAS IN FACT A SPECIALLY MANUFACTURED ARTICLE,"THE CONTRACTING OFFICER NOW REALIZES THAT THIS PROCUREMENT SHOULD HAVE BEEN NEGOTIATED INSTEAD OF ADVERTISED," NOTWITHSTANDING THE INITIAL INTEREST IN DEVELOPING ADDITIONAL SOURCES OF SUPPLY. WE ARE NOT CONVINCED THAT THIS IS THE LOGICAL CONCLUSION TO BE DRAWN UPON THE DISCOVERY THAT THE SWITCH WAS NOT AN OFF-THE-SHELF ITEM, AND ARE BRINGING THIS OBSERVATION TO THE ATTENTION OF THE SECRETARY OF THE ARMY.

IRRESPECTIVE OF THE FACT THAT THE INVITATION WAS NOT SUFFICIENTLY DESCRIPTIVE TO PERMIT FULL AND FREE COMPETITION, SINCE ALL OF THE GOODS NOW HAVE BEEN DELIVERED AND SUBSEQUENTLY FORWARDED FOR INCORPORATION INTO PROJECTS PU-407 AND 408 AND SINCE IT APPEARS THAT THE CONTRACTING OFFICER ACTED IN GOOD FAITH, OUR OFFICE WOULD NOT BE JUSTIFIED IN DIRECTING CANCELLATION OF THE CONTRACT WITH FRANK ELECTRIC CORPORATION.