B-149420, DEC. 28, 1962

B-149420: Dec 28, 1962

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TO GENERAL STEEL PRODUCTS CORPORATION: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARDS MADE BY THE DIRECTORATE FOR PROCUREMENT. REFERENCE IS ALSO MADE IN YOUR PROTEST TO INVITATION FOR BIDS NO. YOU PROTEST THE AWARDS ON THE BASIS THAT IT WAS REASONABLY POSSIBLE TO SET FORTH SPECIFICATIONS TO DESCRIBE THE NEEDS OF THE GOVERNMENT INSTEAD OF USING BRANCH NAMES. THAT THE AWARD WAS MADE TO OTHER THAN THE LOW BIDDER. THE DEFENSE GENERAL SUPPLY CENTER REPORTS THAT A REQUISITION WAS RECEIVED FOR SEVEN LINE ITEMS. CATALOG NUMBERS WERE CITED. WHILE THE REPUBLIC STEEL CORPORATION CATALOG WAS CITED FOR THE REMAINING ITEM. THE REASON FOR REQUESTING OTHER THAN STANDARD ITEMS WAS STATED TO BE THE NECESSITY OF MATCHING EXISTING EQUIPMENT AND THE FACT THAT CATALOGUED ITEMS DID NOT COMPLY WITH THE REQUIRED SIZES AND DIMENSIONS.

B-149420, DEC. 28, 1962

TO GENERAL STEEL PRODUCTS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARDS MADE BY THE DIRECTORATE FOR PROCUREMENT, DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, UNDER INVITATION FOR BIDS NO. DSA 4-62-2014. REFERENCE IS ALSO MADE IN YOUR PROTEST TO INVITATION FOR BIDS NO. DSA 4-62-1972.

YOU PROTEST THE AWARDS ON THE BASIS THAT IT WAS REASONABLY POSSIBLE TO SET FORTH SPECIFICATIONS TO DESCRIBE THE NEEDS OF THE GOVERNMENT INSTEAD OF USING BRANCH NAMES; THAT THE FACTS INVOLVED DO NOT SUPPORT THE CONCLUSION THAT THE PROCUREMENT FALLS WITHIN THE CIRCUMSTANCES IN WHICH BRAND NAMES OR EQUAL DESCRIPTIONS MAY BE USED; THAT THE AWARD WAS MADE TO OTHER THAN THE LOW BIDDER; AND THAT THE AGENCY INVOLVED APPARENTLY SEEMS TO PREFER LYON METAL PRODUCTS, INCORPORATED, OVER OTHER COMPETITORS.

THE DEFENSE GENERAL SUPPLY CENTER REPORTS THAT A REQUISITION WAS RECEIVED FOR SEVEN LINE ITEMS, INCLUDING FOUR OF METAL LOCKERS AND SHELVING FOR THE AMERICAN DEPENDENT SCHOOLS, U.S. ARMY, RYUKYU ISLANDS. FOR SIX OF THE ITEMS LYON METAL PRODUCTS, INCORPORATED, CATALOG NUMBERS WERE CITED, WHILE THE REPUBLIC STEEL CORPORATION CATALOG WAS CITED FOR THE REMAINING ITEM. THE REASON FOR REQUESTING OTHER THAN STANDARD ITEMS WAS STATED TO BE THE NECESSITY OF MATCHING EXISTING EQUIPMENT AND THE FACT THAT CATALOGUED ITEMS DID NOT COMPLY WITH THE REQUIRED SIZES AND DIMENSIONS.

THE SIX ITEMS CITING LYON METAL PRODUCTS, INCORPORATED, PART NUMBERS WERE ADVERTISED UNDER INVITATION FOR BIDS NO. DSA 4-62-2014 FOR SUCH PARTNUMBERS OR EQUAL. THE REMAINING ITEM OF THE REQUISITION COVERING TRIPLE TIER LOCKERS AND CITING A REPUBLIC STEEL CORPORATION PART NUMBER WAS ADVERTISED UNDER INVITATION FOR BIDS NO. DSA 4-62-1972 FOR SUCH PART NUMBER OR EQUAL.

THE BIDS RECEIVED ON ITEMS 1, 2 AND 3 OF INVITATION FOR BIDS NO. DSA 4-62 -2014, WHICH ARE THE ITEMS INVOLVED IN YOUR PROTEST, WITH FREIGHT ADDED ARE AS FOLLOWS:

CHART

BIDDERS PLANT LOCATIONS 1A 2A 3A

UTILITY METAL PRODUCTS BEVERLY, MASS. $13.58 $8.76 ------

CO., INC.

4.11 1.62

$17.69 $10.38 MEDART PRODUCTS, INC. GREENWOOD, MISS. $13.85 $6.93 ------

3.44 1.37

$17.29 $8.30 INTERIOR STEEL EQUIPMENT CO. CLEVELAND, OHIO $ 9.40 $5.85 $23.49

3.37 1.51 8.28

$12.77 $7.36 $31.77 LYON METAL PRODUCTS, INC. LOS ANGELES, $12.63 $7.56 $42.49

CALIF. .775 .268 2.56

$13.405 $7.828 $45.05 GENERAL STEEL PRODUCTS CORP. LEBANNON, PA. $ 9.57 $5.70 $19.82

3.91 1.62 9.73

$13.48 $7.32 $29.55

AS SHOWN FROM THE ABOVE, AFTER EVALUATION OF THE BIDS TO INCLUDE FREIGHT, CONTRARY TO YOUR UNDERSTANDING, THE LOW BIDDER ON ITEM 1 WAS INTERIOR STEEL EQUIPMENT COMPANY, AND THE SECOND LOW BID WAS SUBMITTED BY LYON METAL PRODUCTS, INCORPORATED. ON ITEMS 2 AND 3 YOU WERE THE LOW BIDDER, AND LYON WAS THE THIRD LOW BIDDER. BASED UPON ADVICE FROM THE TECHNICAL SERVICES OFFICE OF THE CENTER, TO THE EFFECT THAT LOCKERS OFFERED BY INTERIOR STEEL EQUIPMENT COMPANY, INTERIOR TYPE S FOR ITEM 1, AND INTERIOR TYPE D FOR ITEM 2, WERE NOT CONSIDERED EQUAL TO THE LOCKERS CITED IN THE INVITATION, INTERIOR'S LOW BID ON ITEM 1 AND ITS SECOND LOW BID ON ITEM 2 WERE REJECTED. TECHNICAL ADVICE ALSO INDICATED THAT THE LOCKERS OFFERED BY YOU FOR ITEM 2 AND THE SHELVING OFFERED FOR ITEM 3 WERE NOT THE EQUAL OF THE CITED LYON ITEMS AND, THEREFORE, YOUR LOW BID ON ITEMS 2 AND 3 WERE REJECTED. AWARD ON ITEMS 1 AND 2, AND ALSO ITEMS 4, 5 AND 6, WHICH ARE NOT INVOLVED IN THE PROTEST, WAS MADE TO LYON. THE SHELVING OFFERED BY INTERIOR WAS DETERMINED TO BE EQUAL TO THE CITED LYON SHELVING AND AWARD OF ITEM 3 WAS MADE TO INTERIOR, NOT TO LYON AS ALLEGED. INCLUDING FREIGHT, THE DIFFERENCE IN COST TO THE GOVERNMENT BETWEEN THE AWARDS WHICH WERE MADE AND THE COST WHICH WOULD HAVE BEEN INCURRED HAD AWARDS BEEN MADE TO THE LOW BIDDERS TOTALS $1,312.24, RATHER THAN $5,215.70 AS ALLEGED.

IT IS REPORTED THAT YOUR BID ON ITEM 2 WAS REJECTED FOR THE REASON THAT THE CATALOG SUBMITTED WITH YOUR BID INDICATES THAT THE LOCKER OFFERED IS ONLY DECREASED, CLEANED AND DRIED PRIOR TO APPLYING BAKED ON ENAMEL FINISH. THE SPECIFICATIONS FOR THE LOCKER CITED IN THE INVITATION INDICATE THAT A BONDING AND RUST INHIBITIVE PHOSPHATE TREATMENT IS APPLIED PRIOR TO THE APPLICATION OF THE BAKED-ON ENAMEL. SINCE PHOSPHATE TREATMENT IS AN ESTABLISHED AND ACCEPTED PRACTICE IN THE METAL PRODUCTS INDUSTRY, WHICH GREATLY RETARDS OXIDATION OF FERROUS METAL SURFACES AND INCREASES PAINT ADHESION THEREBY PROTECTING AGAINST RUST FORMATION AND SEALING OF PAINT, THE USE OF A PHOSPHATE PRETREATMENT PRIOR TO FINAL PAINTING ON EXPOSED METAL SURFACES RESULTS IN A SUPERIOR PRODUCT WITH A SIGNIFICANT INCREASE IN THE LIFE OF THE END ITEM. WITH RESPECT TO ITEM 3, YOU DID NOT SUBMIT ANY LITERATURE WITH THE BID DESCRIBING THE TYPE OF SHELVING OFFERED, BUT MERELY STATED THAT THE SHELVING WAS IN ACCORDANCE WITH FEDERAL SPECIFICATIONS AA-S-271B. SINCE THE FEDERAL SPECIFICATION COVERS BOTH BOLT AND CLIP TYPE SHELVING, IT WAS NOT POSSIBLE TO DETERMINE FROM YOUR BID WHETHER THE SHELVING OFFERED WAS OF THE CLIP TYPE AS REQUIRED. LITERATURE COVERING GENERAL STEEL SHELVING ON FILE AT THE CENTER INDICATED THAT SUCH SHELVING IS OF BOLT CONSTRUCTION RATHER THAN THE FULLY ADJUSTABLE BOLTLESS CONSTRUCTION FEATURED BY THE LYON CATALOG NUMBER CITED IN THE INVITATION.

AS TO THE TRIPLE TIER LOCKERS, WHICH WERE ADVERTISED UNDER INVITATION FOR BIDS NO. DSA 4-62-1972 AND WERE DESCRIBED AS REPUBLIC STEEL CORPORATION CATALOG NO. 152, CAT NO. EL-2005 REV 3-61, OR EQUAL, IT IS REPORTED THAT SPECIFICATIONS ARE NOT AVAILABLE FOR SUCH LOCKERS. BIDS ON THIS INVITATION WERE SOLICITED ON AN F.O.B. DESTINATION BASIS ONLY. THE LOWEST OF THE SIX BIDS RECEIVED, $4.58 EACH, WAS SUBMITTED BY LYON METAL PRODUCTS, CITING LYON STANDARD CONSTRUCTION THREE TIER LOCKER PER BULLETIN 601-K AS THE ITEM IT PROPOSED TO FURNISH. IT WAS DETERMINED THAT THE PRODUCT OFFERED BY LYON WAS EQUAL TO THE REPUBLIC STEEL CORPORATION CATALOG ITEM CITED IN THE INVITATION AND, THEREFORE, AWARD WAS MADE TO LYON AS THE LOWEST RESPONSIBLE BIDDER.

AS HEREINBEFORE STATED, THE REASON FOR REQUESTING OTHER THAN STANDARD ITEMS AND USING BRAND NAMES OR EQUAL SPECIFICATIONS WAS THE NECESSITY OF MATCHING EXISTING EQUIPMENT AND THE FACT THAT CATALOGUED ITEMS DID NOT COMPLY WITH REQUIRED SIZES AND DIMENSIONS. AS TO THE ITEMS COVERED BY FEDERAL SPECIFICATIONS WE ARE NOT SATISFIED THAT THE USE OF BRAND-NAMED SPECIFICATIONS WAS ENTIRELY PROPER, PARTICULARLY SINCE THERE WAS NO REFERENCE TO THE PARTICULAR FEATURES OR CHARACTERISTICS OF THE NAMED BRAND WHICH WERE PARTICULARLY REQUIRED AND WHICH WOULD NOT BE MET BY ANY ITEM MEETING THE FEDERAL SPECIFICATION. HOWEVER, THE RECORD IN THE INSTANT CASE INDICATES THAT THE PURCHASING OFFICIALS CONSIDERED ALL BIDS RECEIVED, AND THE LOW BIDS WERE REJECTED ONLY IN THOSE INSTANCES WHERE IT WAS FOUND THAT THEY DIFFERED IN MATERIAL RESPECTS FROM THE BRAND NAME CITED IN THE INVITATION AS THE STANDARD. THE RECORD DOES NOT APPEAR TO SUBSTANTIATE YOUR ALLEGATION THAT THE BRAND NAMES WERE USED OUT OF PREFERENCE FOR THE PRODUCTS OF A PARTICULAR MANUFACTURER, SINCE ON THE FOUR ITEMS REFERRED TO IN YOUR PROTEST AWARD UNDER TWO OF THE ITEMS WAS MADE TO FIRMS OTHER THAN THE MANUFACTURER OF THE NAMED BRAND.

FOR THE FOREGOING REASONS WE DO NOT FIND SUFFICIENT BASIS TO QUESTION THE AWARDS MADE UNDER INVITATION DSA 4-62-2014. HOWEVER, WE ARE BRINGING THE MATTER TO THE ATTENTION OF THE ADMINISTRATOR, DEFENSE SUPPLY AGENCY, WITH THE SUGGESTION THAT IN FUTURE INVITATIONS FOR BIDS WHERE THERE ARE FEDERAL SPECIFICATIONS COVERING THE ITEMS, BUT IT IS DETERMINED TO BE NECESSARY TO USE BRAND-NAME SPECIFICATIONS, SUCH SPECIFICATIONS SHOULD SET OUT THE PARTICULAR FEATURES OR CHARACTERISTICS OF THE NAMED BRAND WHICH ARE PARTICULARLY REQUIRED AND WHICH WOULD NOT BE MET BY ANY ITEM MEETING THE FEDERAL SPECIFICATION.