B-148525, JUN. 14, 1962

B-148525: Jun 14, 1962

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THE SUBJECT INVITATION WAS ISSUED ON JANUARY 3. THE PURCHASING OFFICE REPORTS THAT THE REVISIONS WERE UNDERTAKEN PURSUANT TO A MEETING WITH FOUR OF THE LEADING FIRMS IN THE PNEUMATIC TOOL INDUSTRY HELD ON FEBRUARY 15. THAT CERTAIN OBJECTIONS TO THE SPECIFICATIONS OFFERED BY THE ARO CORPORATION WERE CONSIDERED AT THAT TIME. BIDS WERE OPENED ON MARCH 29. WE ARE ADVISED THAT NO AWARD HAS BEEN MADE. YOUR FIRST STATED OBJECTION TO THE CONSIDERATION OF BIDS UNDER THIS INVITATION IS THAT THE BROOKLYN NAVY PURCHASING OFFICE IS NOT AUTHORIZED TO MAKE THIS PROCUREMENT. IS THE ONLY DEPARTMENT OF DEFENSE PURCHASING AGENCY AUTHORIZED TO MAKE PROCUREMENTS OF FSC CLASS 5130 MATERIAL. THAT SECTION PROVIDES THAT THE SINGLE MANAGER AS LISTED IN THE REGULATION IS ASSIGNED PURCHASING RESPONSIBILITY FOR THE LISTED COMMODITIES.

B-148525, JUN. 14, 1962

TO THE ARO CORPORATION:

THIS REFERS TO YOUR LETTERS OF MAY 22 AND APRIL 30, 1962, WITH ENCLOSURES, AND TO PRIOR CORRESPONDENCE, PROTESTING AN AWARD UNDER INVITATION FOR BIDS NO. IFB N140-321-62, ISSUED BY THE NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK.

THE SUBJECT INVITATION WAS ISSUED ON JANUARY 3, 1962, CALLING FOR BIDS ON THREE SPECIFIED ITEMS OF PORTABLE PNEUMATIC TOOLS, VERTICAL AND HORIZONTAL. AMENDMENT NO. 3 TO THE INVITATION, ISSUED ON MARCH 15, 1962, SET A NEW OPENING DATE OF MARCH 29, 1962, AND MADE REVISIONS IN THE SPECIFICATIONS. THE PURCHASING OFFICE REPORTS THAT THE REVISIONS WERE UNDERTAKEN PURSUANT TO A MEETING WITH FOUR OF THE LEADING FIRMS IN THE PNEUMATIC TOOL INDUSTRY HELD ON FEBRUARY 15, 1962, AND THAT CERTAIN OBJECTIONS TO THE SPECIFICATIONS OFFERED BY THE ARO CORPORATION WERE CONSIDERED AT THAT TIME. BIDS WERE OPENED ON MARCH 29, 1962, AS SCHEDULED. HOWEVER, WE ARE ADVISED THAT NO AWARD HAS BEEN MADE. THE ARO CORPORATION DID NOT SUBMIT A BID ON THIS INVITATION.

YOUR FIRST STATED OBJECTION TO THE CONSIDERATION OF BIDS UNDER THIS INVITATION IS THAT THE BROOKLYN NAVY PURCHASING OFFICE IS NOT AUTHORIZED TO MAKE THIS PROCUREMENT. YOU CONTEND THAT UNDER THE SINGLE MANAGER COMMODITY ASSIGNMENT PROGRAM THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, IS THE ONLY DEPARTMENT OF DEFENSE PURCHASING AGENCY AUTHORIZED TO MAKE PROCUREMENTS OF FSC CLASS 5130 MATERIAL, ALLEGEDLY INVOLVED HERE. YOU CITE SECTION 5-1202 OF THE ARMED SERVICES PROCUREMENT REGULATION. THAT SECTION PROVIDES THAT THE SINGLE MANAGER AS LISTED IN THE REGULATION IS ASSIGNED PURCHASING RESPONSIBILITY FOR THE LISTED COMMODITIES. THE LISTING FOR THE MILITARY GENERAL SUPPLY AGENCY, RICHMOND, VIRGINIA, INCLUDES FEDERAL SUPPLY CLASS CODE NO. "HAND TOOLS" (SEE ASPR, SECTION 5- 1202.1).

THE NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK, STATES THAT THE DEFENSE SUPPLY AGENCY PURCHASES ONLY STANDARD STOCK ITEMS FOR WHOLESALE REQUIREMENTS, WHEREAS THE TOOLS BEING PURCHASED UNDER THIS INVITATION ARE NOT STANDARD STOCK ITEMS AND ARE FOR USE BY THE REQUISITIONING ACTIVITY. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE NAVY THAT APPROVAL WILL BE OBTAINED FROM THE DEFENSE SUPPLY AGENCY BEFORE AN AWARD IS MADE ON THIS PROCUREMENT.

SINCE CONSIDERATION WILL BE GIVEN BY OFFICIALS WITHIN THE DEPARTMENT OF DEFENSE TO THE QUESTION YOU RAISE AS TO THE PROPRIETY OF THIS PURCHASE BY THE NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK, WE DO NOT CONSIDER IT NECESSARY TO OFFER COMMENT ON THE MATTER HERE.

YOUR SECOND OBJECTION TO AN AWARD IS THAT THE PROPER SPECIFICATIONS ARE ARE NOT BEING UTILIZED. YOU CONTEND THAT THESE TOOLS SHOULD BE PURCHASED UNDER FEDERAL SPECIFICATION OO-G-669A AND ITS RELATED QUALIFIED PRODUCTS LIST. THE ADMINISTRATIVE OFFICE ADVISES THAT MANY IMPROVEMENTS HAVE BEEN MADE IN THE MANUFACTURE OF PNEUMATIC GRINDERS SINCE THE DATE OF THE LAST AMENDMENT TO SPECIFICATION OO-G-669A, WHICH WAS JULY 1, 1955. TOOLS AS DESCRIBED UNDER THE SUBJECT INVITATION ARE SUPERIOR TO THOSE COVERED IN THE SPECIFICATION, AND THE NEEDS OF THE REQUISITIONING AGENCY ARE SUCH AS TO DEMAND THE IMPROVED TOOLS NOW AVAILABLE. THE FEDERAL SPECIFICATION COULD NOT BE USED WITH MODIFICATION BECAUSE THE QUALIFIED PRODUCTS LIST ESTABLISHED WHEN THE SPECIFICATION WAS PREPARED IN 1955, AND THE PERFORMANCE CHARACTERISTICS FOR THIS SPECIFICATION, ARE NOT APPLICABLE TO CURRENT REQUIREMENTS. ANY ATTEMPT TO MODIFY THE FEDERAL SPECIFICATION WOULD REQUIRE PROLONGED TESTING AND EVALUATION TO ESTABLISH A NEW QUALIFIED PRODUCTS LIST OF MANUFACTURERS. THE URGENT NEED FOR THESE TOOLS TO SUPPORT CURRENT WORKLOAD WAS CONSIDERED AS JUSTIFYING THE USE OF A PURCHASE DESCRIPTION.

IT IS WELL ESTABLISHED THAT THE DETERMINATION OF THE NEEDS OF AN AGENCY AND THE DRAFTING OF SPECIFICATION REQUIREMENTS TO REFLECT SUCH NEEDS ARE MATTERS WHICH ARE PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. SEE 17 COMP. GEN. 554. THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE ADMINISTRATIVE AGENCY IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY DETERMINATION IS IN ERROR AND THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATIONS WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE IN VIOLATION OF LAW. SEE 40 COMP. GEN. 294, 297. WE DO NOT FIND ANY BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT A PURCHASE DESIGNATION WAS NECESSARY FOR THE NEEDS OF THE GOVERNMENT IN THIS CASE IN LIEU OF EXISTING SPECIFICATIONS.

YOU CONTEND THAT THE SPECIFICATIONS SET FORTH IN THIS INVITATION ARE PROPRIETARY AND UNJUSTIFIABLY RESTRICTIVE OF COMPETITION. SPECIFICALLY, YOU ALLEGE THAT THE SPECIFICATIONS FAVOR THE PRODUCTS OF THE INGERSOLL- RAND COMPANY.

THE BID ABSTRACT REVEALS THAT 10 BIDS WERE SUBMITTED ON ITEMS NOS. 1 AND 3 AND EIGHT BIDS WERE SUBMITTED ON ITEM NO. 2. YOU COMPILED A TECHNICAL ANALYSIS OF THE BIDS AVAILABLE FOR INSPECTION ON EACH OF THE THREE ITEMS AND IT IS YOUR CONCLUSION THAT THE INVITATION PURCHASE DESCRIPTIONS WERE WRITTEN AROUND INGERSOLL-RAND MODELS. ON ITEM NO. 1 YOU CONCLUDE THAT EVERY BIDDER APPEARED TO DEVIATE FROM AT LEAST ONE OF THE REQUIREMENTS OF THE INVITATION. AS TO ITEM NO. 2, YOU CONCLUDE THAT THREE BIDS APPEAR TO BE RESPONSIVE, WHILE ON ITEM NO. 3 ONLY INGERSOLL-RAND APPEARS TO BE RESPONSIVE.

YOUR TECHNICAL EVALUATION WAS SUBMITTED TO THE PURCHASING ACTIVITY FOR REVIEW AND COMMENT. THE PURCHASING ACTIVITY REPORTED ON MAY 2, 1962, THAT SEVERAL OF THE BIDDERS ON EACH ITEM WERE RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. IT IS STATED THAT THE SPECIFICATIONS ARE NOT AIMED AT ONE PARTICULAR VENDOR AND THAT THERE IS A SATISFACTORY RESPONSE ON ALL THE ITEMS TO PROPERLY PROCURE THOSE DESIRED. THE DIFFERENCES IN CONCLUSIONS REACHED BETWEEN YOU AND THE ADMINISTRATIVE OFFICE APPEAR TO BE BASED, ESSENTIALLY, ON THE INTERPRETATIONS PLACED ON CERTAIN PROVISIONS OF THE SPECIFICATIONS.

IN YOUR COMMENTS YOU STATE, AS TO ALL THREE ITEMS, THAT COMPLIANCE WITH THE LIMITATION SET FORTH IN PURCHASE DESCRIPTION PARAGRAPH 6--- HOUSING ON THE PERCENTAGE OF MAGNESIUM IN TOOL HOUSINGS WAS NOT APPARENT FROM THE DATA EXAMINED. CLAUSE 51.1-1C OF THE INVITATION, ENTITLED ,PRELIMINARY DATA TO BE SUBMITTED WITH BID FOR EVALUATION," STATES IN PART AS FOLLOWS:

"THE BIDDER SHALL SUBMIT * * * WITH HIS BID, THE PRELIMINARY DRAWINGS, SKETCHES, CALCULATIONS OR OTHER DESCRIPTIVE DATA OF THE EQUIPMENT PROPOSED TO BE FURNISHED HEREUNDER, AS SET FORTH BELOW. THE DRAWINGS OR SKETCHES AND DESCRIPTIVE MATTER MUST SUFFICIENTLY SHOW, FOR PURPOSES OF BID EVALUATION, THE CHARACTER AND DESIGN OF THE EQUIPMENT WHICH THE BIDDER PROPOSES TO FURNISH. * * * FAILURE TO FURNISH THE REQUIRED DRAWINGS OR SKETCHES AND DESCRIPTIVE MATTER BY THE TIME SPECIFIED FOR THE OPENING OF BIDS OR FAILURE OF THE EQUIPMENT SHOWN IN SUCH DRAWINGS OR SKETCHES AND DESCRIPTIVE MATTER TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS AND ANY OTHER REQUIREMENTS OF THIS INVITATION, WILL RESULT IN REJECTION OF THE BID. * * *"

CLAUSE 51.1-2A, ENTITLED "PRE-AWARD SAMPLE," PURSUANT TO AMENDMENT NO. 3 TO THE INVITATION, ISSUED MARCH 15, 1962, READS IN PART AS FOLLOWS:

"* * * THE SAMPLES SUBMITTED HEREUNDER SHALL NOT BE EVALUATED AS TO MAGNESIUM CONTENT, PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL RELIEVE THE CONTRACTOR OF THE OBLIGATION TO DELIVER SUPPLIES WHICH CONFORM TO THE MAXIMUM MAGNESIUM CONTENT SET FORTH IN THE SPECIFICATIONS.'

THE ADMINISTRATIVE OFFICE CONCLUDES THAT SINCE NO EXCEPTIONS WERE TAKEN BY BIDDERS, IT IS ASSUMED THAT THE SUCCESSFUL LOW BIDDER WILL COMPLY WITH THE MAXIMUM MAGNESIUM CONTENT AS REQUIRED BY THE SPECIFICATIONS. YOU CONTEND THE INVITATION REQUIRES BIDS TO AFFIRMATIVELY ESTABLISH THAT THE PRODUCTS OFFERED MEET THE 10 PERCENT MAGNESIUM LIMITATION.

SIMILAR DIFFERENCE OF INTERPRETATION APPEARS WITH REGARD TO THE LIMITATION REQUIRED ON OVERSPEED IN THE EVENT OF PRIMARY GOVERNOR FAILURE, AND THE REQUIREMENT FOR AN ARBOR SAFETY LOCK SCREW, BOTH ON ITEM NO. 1. AS TO EACH OF THESE, YOU CONTEND THAT BIDDERS MUST AFFIRMATIVELY ESTABLISH COMPLIANCE, WHICH MOST HAVE FAILED TO DO, WHEREAS THE PURCHASING OFFICE INTERPRETS A BID AS CONFORMING TO THESE REQUIREMENTS UNLESS AN EXCEPTION IS INDICATED IN THE BID.

ANOTHER MATTER YOU RAISE IS THE REQUIREMENT SET FORTH IN THE PURCHASE DESCRIPTION PERFORMANCE TABLE ON PAGE 17 OF THE INVITATION, SPECIFYING THAT ITEM NO. 3 SHALL HAVE A FREE SPEED, AT NO LOAD, OF 17,000 R.P.M. PAGE 16, PARAGRAPH 18 OF THE INVITATION, STATES THAT ITEM NO. 3 SHALL HAVE A NOMINAL NO LOAD SPEED OF 17,000 TO 18,000 R.P.M. YOU REGARD "FREE SPEED" AND "NO-LOAD SPEED" AS MEANING THE SAME THING, AND THEREFORE CONCLUDE THE INVITATION IS CONFLICTING. THE PURCHASING OFFICE REGARDS ALL BIDS OFFERING NOMINAL NO LOAD SPEED OF 17,000 TO 18,000 R.P.M. AS RESPONSIVE. IN ADDITION TO THE FOREGOING, YOU HAVE COMMENTED ON CERTAIN NONCONFORMING CHARACTERISTICS OFFERED BY SOME INDIVIDUAL BIDS.

YOU DID NOT SUBMIT A BID ON THIS PROCUREMENT. THE MATTERS YOU HAVE RAISED INVOLVE QUESTIONS OF INTERPRETATION OF TECHNICAL SPECIFICATIONS. WHILE YOUR INTERPRETATIONS MAY BE REASONABLE, IT APPEARS THAT THE SEVERAL BIDDERS HAVE INTERPRETED THE SPECIFICATIONS IN LINE WITH THE ADMINISTRATIVE INTERPRETATION. WE ARE NOT PREPARED TO ADOPT YOUR INTERPRETATIONS CONTRARY TO THE MEANING ADOPTED BY THE ADMINISTRATIVE OFFICE AND, APPARENTLY, MOST OF THE BIDDERS.

THE BID RESPONSE INDICATES THAT THE BIDDERS DID NOT REGARD THE PURCHASE DESCRIPTION AS UNREALISTIC OR UNDULY RESTRICTIVE. WE MUST COME TO THE SAME CONCLUSION. ACCORDINGLY, YOUR PROTEST AGAINST AN AWARD UNDER THE SUBJECT SPECIFICATIONS MUST BE DENIED.

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