B-149962, DEC. 26, 1962

B-149962: Dec 26, 1962

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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 20. THAT THE SOLICITATION WAS LIMITED TO A 3001-E MODEL PUMP WHICH IS COVERED BY A PATENT AND. IT IS FURTHER CONTENDED THAT IF THE SPECIFICATIONS HAD BEEN RELAXED AFTER ISSUANCE. YOU COULD HAVE FURNISHED A SUBSTITUTE PRODUCT. YOU SHOULD NOT HAVE BEEN DEPRIVED OF AN OPPORTUNITY TO OFFER AN EQUIVALENT SUBSTITUTE. WAS ISSUED BECAUSE THE PROCUREMENT AGENCY HAD NO SPECIFICATIONS TO FURNISH POTENTIAL BIDDERS AND ASSUMED THAT ONLY THE ABOVE MODEL WAS AVAILABLE. DURING NEGOTIATIONS WITH YOUR COMPANY IT WAS DISCOVERED THAT A SIMILAR PUMP FOR MODEL 4000A TRAILERS HAD BEEN FURNISHED PREVIOUSLY BY REGENT JACK MANUFACTURING COMPANY. A REQUEST FOR A PROPOSAL WAS ISSUED TO THAT FIRM.

B-149962, DEC. 26, 1962

TO GROUND SYSTEMS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 20, 1962, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER COMPANY UNDER REQUEST FOR PROPOSALS NO. 01-601-62-3962, ISSUED BY BROOKLEY AIR FORCE BASE, COVERING A QUANTITY OF RECIPROCATING HAND PUMPS. YOU CONTEND, IN SUBSTANCE, THAT THE SOLICITATION WAS LIMITED TO A 3001-E MODEL PUMP WHICH IS COVERED BY A PATENT AND, THEREFORE, ONLY THAT PUMP COULD BE FURNISHED IN THE ABSENCE OF AN "OR EQUAL" PROVISION IN THE SAID REQUEST. IT IS FURTHER CONTENDED THAT IF THE SPECIFICATIONS HAD BEEN RELAXED AFTER ISSUANCE, YOU COULD HAVE FURNISHED A SUBSTITUTE PRODUCT, AND YOU SHOULD NOT HAVE BEEN DEPRIVED OF AN OPPORTUNITY TO OFFER AN EQUIVALENT SUBSTITUTE.

THE SUBJECT REQUEST FOR PROPOSALS, RATHER THAN THE CUSTOMARY INVITATION FOR BIDS, WAS ISSUED BECAUSE THE PROCUREMENT AGENCY HAD NO SPECIFICATIONS TO FURNISH POTENTIAL BIDDERS AND ASSUMED THAT ONLY THE ABOVE MODEL WAS AVAILABLE. THEREFORE IT CONTEMPLATED NEGOTIATION OF A CONTRACT PURSUANT TO THE AUTHORITY CONTAINED IN 10 U.S.C. 2304 (A) (10), COVERING SOLE SOURCE PROCUREMENTS. DURING NEGOTIATIONS WITH YOUR COMPANY IT WAS DISCOVERED THAT A SIMILAR PUMP FOR MODEL 4000A TRAILERS HAD BEEN FURNISHED PREVIOUSLY BY REGENT JACK MANUFACTURING COMPANY, INCORPORATED. CONSEQUENCE, A REQUEST FOR A PROPOSAL WAS ISSUED TO THAT FIRM, WHOSE PRODUCT WAS FOUND TO BE TECHNICALLY ACCEPTABLE AND FUNCTIONALLY INTERCHANGEABLE WITH YOUR MODEL 3001-E. SINCE ITS OFFER WAS LOWER, YOU WERE GIVEN AN OPPORTUNITY TO REVISE YOUR PROPOSAL PRICE AND YOU CONFIRMED YOUR ORIGINAL OFFER.

IN ADDITION TO THE EQUIPMENT, THE REQUEST FOR PROPOSALS SOUGHT A QUOTATION FOR FURNISHING ENGINEERING DATA (ITEM 1A), SO THAT SUITABLE SPECIFICATIONS COULD BE DEVELOPED FOR USE IN FUTURE PROCUREMENTS. YOUR OFFER FAILED TO QUOTE A PRICE FOR THAT MATERIAL AND INDICATED THAT SUCH DATA COULD NOT BE FURNISHED BECAUSE THE EQUIPMENT YOU MANUFACTURE IS A PATENTED ITEM. SINCE REGENT JACK MANUFACTURING COMPANY OFFERED TO SUPPLY EQUIVALENT EQUIPMENT AT A LESSER PRICE AND TO FURNISH THE DESIRED ENGINEERING DATA, AWARD OF A CONTRACT WAS MADE ON AUGUST 6, 1962, TO THAT FIRM.

WITH RESPECT TO YOUR CONTENTION THAT ONLY A 3001-E PUMP COULD BE FURNISHED, IT IS APPARENT THAT SUCH RESTRICTIVE SOLICITATION WAS DUE TO AN OVERSIGHT ON THE PART OF THE PROCUREMENT OFFICE. IN THE ABSENCE OF LANGUAGE IN THE REQUEST FOR PROPOSALS WHICH WOULD PRECLUDE CONSIDERATION OF OFFERS FOR OTHER BRAND NAME ARTICLES OR IDENTIFIED MODELS, WE CONCLUDE THAT ANY OFFERS ON A PRODUCT OF EQUAL QUALITY SHOULD HAVE BEEN CONSIDERED. SEE ARMED SERVICES PROCUREMENT REGULATION, SECTION 1-1206 (C) (2). WHERE, AS HERE, THE TRANSACTION CONTEMPLATES A NEGOTIATED PROCUREMENT, THE ADMINISTRATIVE REGULATIONS REQUIRE CONSIDERATION OF ALL COMPETITIVE SOURCES, NOTWITHSTANDING MINOR DIFFERENCES WHICH DO NOT AFFECT USE OR PERFORMANCE. ASPR 1-1206 (C) (3).

YOUR OTHER CONTENTION, SET FORTH IN LETTER OF AUGUST 10, 1962, TO THE PROCUREMENT OFFICE, IS THAT SINCE YOU WERE NOT INFORMED OF THE CHANGE IN REQUIREMENTS YOU WERE DEPRIVED OF AN EQUAL OPPORTUNITY TO OFFER A SUBSTITUTE EQUIVALENT PUMP. THE RECORD DISCLOSES THAT THE ORIGINAL REQUIREMENTS OF THE SOLICITATION WERE NEITHER AMENDED OR RELAXED. WHILE THE CONTRACTING OFFICER COULD AND PROBABLY SHOULD HAVE ISSUED AN AMENDMENT TO INCLUDE THE LEGEND "OR EQUAL," AS TO THE DESCRIBED EQUIPMENT LISTED IN THE REQUEST FOR PROPOSALS, THERE IS NOTHING IN THE ADMINISTRATIVE FILE TRANSMITTED TO US, OR IN YOUR PROTEST, TO INDICATE THAT YOUR FIRM WOULD HAVE OFFERED ANY PUMP OTHER THAN THE MODEL QUOTED ON, WHICH APPEARS TO BE YOUR STANDARD PRODUCTION EQUIPMENT. ALL PROSPECTIVE SUPPLIERS WERE CAUTIONED TO SUBMIT THEIR MOST FAVORABLE OFFER, FROM A PRICE AND TECHNICAL STANDPOINT AND, THEREFORE UNDER THE CIRCUMSTANCES OF THIS CASE, FAILURE TO NOTIFY YOU SPECIFICALLY OF THE ACCEPTABILITY OF AN EQUAL PRODUCT DOES NOT APPEAR TO HAVE BEEN PREJUDICIAL TO YOUR INTERESTS.

IN VIEW OF THE FOREGOING AND, SINCE THE CONTRACT HAS BEEN COMPLETED, YOUR PROTEST IS DENIED.