B-149824, OCT. 12, 1962

B-149824, OCT. 12, 1962

TO THE COMMANDANT, UNITED STATES MARINE CORPS:

BY LETTER CS-BTV DATED AUGUST 30, 1962, THE QUARTERMASTER GENERAL FORWARDED A FILE CONCERNING A PROTEST BY G. H. TENNANT COMPANY AGAINST

THE AWARD ON JUNE 29, 1962, TO WAYNE MANUFACTURING COMPANY OF CONTRACT N67004-4188 FOR AN INDUSTRIAL FLOOR SWEEPER AND REQUESTED TO BE ADVISED AS TO WHETHER ACCEPTANCE OF THE WAYNE MANUFACTURING COMPANY BID CONSTITUTED A VALID CONTRACT AND AS TO THE DISPOSITION THAT SHOULD BE MADE OF THE PROTEST.

IFB 67004-69-62, WHICH SOLICITED BIDS FOR THE INDUSTRIAL SWEEPER, DESCRIBED THE ARTICLE TO BE PROCURED AS FOLLOWS:

TABLE

"SWEEPER, FLOOR, INDUSTRIAL, HYDRAULIC POWERED,

SPECIFICATIONS AS FOLLOWS:

FRAME - HEAVY SHOCK RESISTANT WHELDED STEEL PLATE

REINFORCED. MASSIVE WRAP AROUND BUMPER 2 INCHES BY 4 INCHES

CHANNELS, PROTECTIVE 44 INCHES BY 32 INCHES OVERHEAD CANOPY.

ENGINE - 18 HP HEAVY DUTY INDUSTRIAL TYPE AIR

COOLED, 4 CYCLE, SELF STARTER, 12 VOLT SYSTEM.

MAIN BRUSH - 42 INCHES CYLINDRICAL ONE PIECE UNIT, 14 INCHES DIA.

DRIVES - PROPELLING, HYDRAULIC AND V-BELT.

STEERING - AUTOMATIC CAM AND LEVER 69 INCHES TURNING RADIUS.

CONTROLS - ONE PEDAL FORWARD AND REVERSE, SAFE FOOT

AND HAND BRAKE, CENTRAL LUBRICATION.

SIDEBRUSH - 21 INCHES DIA. ROTARY TYPE.

VACUUM SYSTEM - POWERFUL PULL THROUGH HOPPER (125 SQ.FT.)

DIRT HOPPER - 12 CU.FT., 800 LB. CAPACITY.

TIRES - (3) FRONT ZERO PRESSURE, REAR PNEUMATIC, ALL 16 INCHES

O.D. BY 400, SUPER HEAVY SERVICE RUBBER.

DIMENSIONS - LENGTH 88 1/2 INCHES, WIDTH (WITH SIDEBRUSH) - 58 IN.

HEIGHT (WITH OVERHEAD GUARD) - 75 INCHES, TO BE G. H. TENNANT

CO. MODEL NO. 88, OR EQUAL"

THE INVITATION ALSO CONTAINED THE STANDARD "BRAND NAME OR EQUAL" CLAUSE PROVIDED IN ASPR 1-1206.3 (B).

THREE BIDDERS BID ON THE INVITATION. WAYNE MANUFACTURING COMPANY BID $2,772 ON ITS MODEL 1044. IT ALSO OFFERED AN ALTERNATE BID ON MODEL 1044 IN THE AMOUNT OF $2,585 BASED ON THE OMISSION OF CERTAIN FEATURES AND A BID OF $3,215 ON ITS MODEL 1054. GOOD ROADS MACHINERY CORPORATION BID $3,170 ON ITS MODEL 99. G. H. TENNANT COMPANY BID $3,654.37 ON ITS MODEL 88.

THE CONTRACTING OFFICER DECIDED THAT THE WAYNE MODEL 1044 UPON WHICH A PRICE OF $2,772 HAD BEEN BID WAS ACCEPTABLE AND MADE THE AWARD TO ITS MANUFACTURER. TENNANT HAS STATED THAT THE WAYNE SWEEPER DOES NOT MEET THE BID SPECIFICATION IN THAT IT LACKS A HEAVY 2 INCHES BY 4 INCHES STEEL BUMPER, ONE PEDAL FORWARD AND REVERSE DIRECTIONAL CONTROL AND A CENTRAL LUBRICATING SYSTEM, AND IT HAS A 13.6 HP. ENGINE INSTEAD OF AN 18 HP. ENGINE AND HYDRAULIC AND MECHANICAL DRIVE INSTEAD OF A FULLY HYDRAULIC DRIVE. THE QUARTERMASTER GENERAL INDICATED THAT WAYNE THEREFORE DID NOT MEET THE BID SPECIFICATIONS IN A NUMBER OF IMPORTANT AREAS AND THAT THERE ARE ALSO OTHER FEATURES SET FORTH IN THE SPECIFICATIONS THAT THE WAYNE SWEEPER DOES NOT MEET. HE STATES: "FROM A REVIEW AND RE-EVALUATION OF THE FILE AND FACTS, IT IS FELT THAT DUE TO THE SPECIFIC NATURE OF THE SPECIFICATIONS AND REQUIREMENTS FOR THE SWEEPER, THE ITEM PROPOSED TO BE FURNISHED BY THE WAYNE MANUFACTURING COMPANY DOES NOT MEET THE STANDARDS REQUIRED BY THE INVITATION FOR BIDS.'

THE DIFFERENCE OF OPINION BETWEEN THE CONTRACTING OFFICER AND THE QUARTERMASTER GENERAL DEMONSTRATES THE AMBIGUITY THAT WAS CREATED IN THE PROCUREMENT BY THE USE OF DEFINITE SPECIFICATIONS AND A BRAND NAME OR EQUAL STIPULATION TO DESCRIBE THE ARTICLE TO BE PROCURED. ON THE ONE HAND, THE CONTRACTING OFFICER INDICATES THAT HE WAS NOT CONCERNED THAT THE EXACT REQUIREMENTS PROVIDED IN THE ITEM DESCRIPTION BE MET AS LONG AS DEVIATIONS FROM IT WOULD NOT AFFECT THE SUITABILITY OF THE SWEEPER FOR ITS INTENDED USE. ON THE OTHER HAND, THE QUARTERMASTER GENERAL POINTS UP THAT THE ITEM DESCRIPTION CONTAINED PRECISE DETAILS THAT SHOULD HAVE BEEN MET. THE DIFFERENCE IN VIEWPOINT IS THAT THE CONTRACTING OFFICER PLACES EMPHASIS UPON THE "OR EQUAL" REQUIREMENT WHICH GENERALLY HAS BEEN CONSIDERED TO MEAN THAT AN ACCEPTABLE PRODUCT NEED ONLY BE CAPABLE OF MEETING THE SAME STANDARD OF PERFORMANCE AS THE BRAND DESIGNATED, WHEREAS THE QUARTERMASTER GENERAL EMPHASIZES THE PARTICULAR SPECIFICATIONS. THE CONFUSION CREATED BY THE ITEM DESCRIPTION IS HIGHLIGHTED FURTHER IN THE TENNANT PROTEST WHEREIN THAT COMPANY INDICATES IT MANUFACTURES A MODEL 85 WHICH MORE CLOSELY COMPARES TO THE WAYNE MODEL 1044, BUT THAT MODEL WAS NOT OFFERED SINCE THE INVITATION SPECIFIED ITS MODEL 88 WHICH IT MANUFACTURES FOR MORE SEVERE SERVICE. THE INVITATION THEREFORE DOES NOT APPEAR TO HAVE BEEN CONDUCIVE TO GOOD ADVERTISING PROCEDURES DESIGNED TO PERMIT THE BROADEST FIELD OF COMPETITION OBTAINABLE TO MEET THE GOVERNMENT'S NEEDS AND MAY HAVE OPERATED TO PRECLUDE THE SUBMISSION OF LOWER BIDS FOR EQUIPMENT WHICH WOULD HAVE MET THE GOVERNMENT'S NEEDS.

IN VIEW OF THE AMBIGUOUS NATURE OF THE ITEM DESCRIPTION AND THE POSSIBLE RESULTANT RESTRICTION UPON COMPETITION, AND FURTHER ADVICE THAT THE WAYNE MANUFACTURING COMPANY HAS BEEN INSTRUCTED TO SUSPEND PRODUCTION AND DELIVERY, THE AWARD SHOULD BE CANCELED AS CONTRARY TO LAW IN THAT THE ADVERTISEMENT DID NOT PERMIT SUCH FULL AND FREE COMPETITION ON AN EQUAL BASIS AS WOULD BE CONSISTENT WITH THE PROCUREMENT OF THE SWEEPER NEEDED, AND THE PROCUREMENT SHOULD BE ADVERTISED UNDER SPECIFICATIONS THAT MORE ACCURATELY REFLECT THE NEEDS OF THE CORPS.