B-151492, DEC. 2, 1963

B-151492, DEC. 2, 1963

TO WASHINGTON SCALE AND EQUIPMENT COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 6 AND JULY 16, 1963, WITH ENCLOSURES, PROTESTING ANY AWARD OF A CONTRACT TO ANOTHER BIDDER ON INVITATION FOR BIDS NO. PROC 63-35 (D) ISSUED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, FOOD AND DRUG ADMINISTRATION, UNDER DATE OF MARCH 6, 1963.

THE INVITATION WAS ISSUED IN THE AGGREGATE FOR TWO ITEMS (1) "SCALES PLATFORM, PORTABLE" AND (2) "SCALES, DIET, COMPLETE WITH PAN AND WEIGHTS AS HEREINAFTER DESCRIBED" AND REQUIRED THAT THEY SHOULD BE CATALOG NUMBER 2181, OR EQUAL, AND CATALOG NUMBER 4030, OR EQUAL, RESPECTIVELY, AS MANUFACTURED BY TOLEDO SCALE COMPANY, TOLEDO, OHIO. SEVERAL SALIENT PHYSICAL AND FUNCTIONAL CHARACTERISTICS FOUND TO MEET THE NEEDS OF THE GOVERNMENT FOR ITEM ONE WERE LISTED ON PAGE 8 AND INCLUDED REQUIREMENTS THAT THE SCALES POSSESS RECESSED RUBBER TIRED WHEELS, HAVE PRESCRIBED MINIMUM PLATFORM DIMENSIONS, CONTAIN A HYDRAULIC SHOCK ABSORBING MECHANISM FOR QUICK READINGS AND PROTECTION OF THE DIAL ASSEMBLY, AND, FOR SAFETY, BE FITTED WITH A POSITIVE LOCKING MECHANISM SO DESIGNED THAT WEIGHINGS CAN BE CARRIED OUT ONLY WHEN THE WHEELS ARE LOCKED. SALIENT FEATURE REQUIREMENTS IN CONNECTION WITH ITEM TWO WERE LISTED ON PAGE 9 OF THE INVITATION.

BIDS WERE OPENED ON MARCH 27, 1963, AND WHILE YOUR BID WAS FOUND TO BE LOW IT WAS REJECTED IN FAVOR OF THE OTHER BIDDER, THE TOLEDO SCALE CORPORATION, FOR THE REASON THAT THE ITEMS OFFERED BY YOU VARIED FROM THE SPECIFICATIONS IN SEVERAL RESPECTS, INCLUDING THOSE STATED ABOVE MOST OF WHICH WERE CONSIDERED AS MAJOR DEVIATIONS.

YOU STATE THAT SINCE THE NEED FOR A SCALE IS ONLY TO MAKE WEIGHINGS, THE AWARD SHOULD BE MADE ON THE BASIS OF WHETHER OR NOT YOUR SCALES WILL WEIGH AS WELL AS THE BRAND NAME REFERENCED IN THE INVITATION. FURTHER, YOU CONTEND THAT THE SCALES WHICH YOU PROPOSED TO FURNISH WILL MEET EXISTING FEDERAL SPECIFICATIONS APPLICABLE TO SUCH TYPES OF SCALES AND THE CONTRACTING OFFICER DID NOT COMPLY WITH FEDERAL PROCUREMENT REGULATIONS WHEN HE MADE THE AWARD TO THE ONLY OTHER BIDDER BECAUSE:

"1. HE DID NOT CONSIDER WHETHER OR NOT THE SCALES OFFERED WOULD MEET THE NEEDS OF THE GOVERNMENT IN ESSENTIALLY THE SAME MANNER AS THE BRAND NAME REFERENCED.

"2. THE CONTRACTING OFFICER USED DIFFERENCE IN DESIGN AS THE BASIS FOR REJECTING OUR BID.

"3. THE SALIENT FEATURES AS WRITTEN DID NOT INCLUDE A DESCRIPTION OF ANY SPECIAL WEIGHING JOBS THAT WOULD BE REQUIRED OF THE SCALES. THEY ONLY DESCRIBED DESIGN FEATURES OF THE BRAND NAME REFERENCED AND SHOULD NOT HAVE BEEN CONSIDERED IN EVALUATING THE BID.'

IN RESPONSE TO OUR REQUEST FOR A COMPLETE REPORT OF THE FACTS CONCERNING THE MATTER OF YOUR PROTEST, THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE HAS ADVISED US THAT ALTHOUGH FEDERAL SPECIFICATIONS DID EXIST FOR SCALES OF THE GENERAL TYPES NEEDED, THE CONTRACTING OFFICER ADMINISTRATIVELY DETERMINED NOT TO UTILIZE THEM BECAUSE THEY DID NOT POSSESS FEATURES WHICH WERE CONSIDERED ESSENTIAL TO THE NEEDS OF THE FOOD AND DRUG ADMINISTRATION AND UPON ADMINISTRATIVE REVIEW SUCH DETERMINATION IS CONCURRED IN BY THE DEPARTMENT. THE REPORT SHOWS THAT THE PORTABLE PLATFORM SCALES WILL BE MOVED INTO VARIOUS AREAS OF KENNEL UNITS FOR WEIGHING EXPERIMENTAL ANIMALS AND RUBBER TIRES ARE NECESSARY FOR EASE OF HANDLING AND QUIET ROLLING ON CONCRETE FLOORS SINCE KEEPING THE NOISE FACTOR TO A MINIMUM IS IMPORTANT BECAUSE OF THE NERVOUS SYSTEMS OF THE ANIMALS BEING USED IN RESEARCH PROJECTS. THE LITERATURE SUBMITTED WITH YOUR BID SHOWED STEEL WHEELS WITHOUT RUBBER TIRES AND NO MODIFICATION WAS MARKED THEREON OR INFORMATION FURNISHED INDICATING THAT THE SCALES WOULD BE EQUIPPED WITH THE SPECIFIED TYPE OF WHEELS AS REQUIRED IN THE INSTRUCTIONS ON PAGE FIVE OF THE INVITATION.

IT IS FURTHER REPORTED THAT RECESSED WHEELS AND POSITIVE WHEEL LOCKING MECHANISM PRIOR TO WEIGHING, WHICH ARE NOT FEATURES OF THE SCALES OFFERED BY YOU, ARE SAFETY FACTORS CONSIDERED ESSENTIAL FOR THE PROTECTION OF EMPLOYEES USING THE SCALES WHILE HOLDING LIVE ANIMALS IN THEIR ARMS. SINCE SOME OF THE ANIMALS TO BE WEIGHED MAY BE LARGE IN SIZE AND SUBJECT TO STRUGGLING OR VIOLENT MOVEMENT WHILE HELD BY AN EMPLOYEE DURING WEIGHING AND IN THE ACTS OF GETTING ON OR OFF THE SCALES, THE NECESSITY FOR AN ADEQUATELY-SIZED PLATFORM, SECURELY POSITIONED AND FREE FROM PROTRUDING WHEELS IS READILY APPARENT. THUS, CONSIDERING THE PARTICULAR PROBLEMS INVOLVED, IT SEEMS THAT A SOUND BASIS EXISTS FOR THE ADMINISTRATIVE VIEW THAT ABSENCE OF SUCH FEATURES CONSTITUTED MAJOR DEVIATIONS AND NOT MERELY MINOR DIFFERENCES IN DESIGN. IT IS ALSO REPORTED, CONTRARY TO YOUR ALLEGATION, THAT AT LEAST ONE OTHER COMPANY (SAUTER SCALE COMPANY) SELLS A PORTABLE PLATFORM SCALE WITH THE WHEEL LOCKING MECHANISM SPECIFIED IN THE INVITATION. IT IS FURTHER NOTED THAT SUCH SCALE IS EQUIPPED WITH RECESSED RUBBER TIRED WHEELS.

REGARDING YOUR CONTENTION THAT THE INVITATION SHOULD HAVE INCLUDED A DESCRIPTION OF ANY SPECIAL WEIGHING JOB THAT WOULD BE REQUIRED OF THE SCALES, NOTHING CONTAINED IN SECTION 1-1.307-4, FEDERAL PROCUREMENT REGULATIONS, RELATING TO PURCHASE DESCRIPTIONS OF BRAND NAME OR EQUAL PRODUCTS REQUIRES THE INCORPORATION OF SUCH DETAILS IN THE INVITATIONS TO BID.

IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT AND THE DETERMINATIONS AS TO WHETHER THE BIDS RECEIVED ARE RESPONSIVE TO SUCH SPECIFICATIONS IS PRIMARILY A RESPONSIBILITY OF THE PARTICULAR AGENCY INVOLVED. IN THE INSTANT MATTER, IT APPEARS THAT THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE HAS EXERCISED THAT RESPONSIBILITY BY THE PREPARATION OF CERTAIN SPECIFICATIONS TO MEET THE PARTICULAR CONDITIONS UNDER WHICH THE SCALES WOULD BE USED AS WELL AS TO INSURE A PROLONGED PERIOD OF QUICK AND ACCURATE WEIGHINGS. INASMUCH AS THE INVITATION PROVIDES THAT THE AWARD WILL BE MADE ONLY IN THE AGGREGATE AND AS IT APPEARS THAT THE SCALE SPECIFICALLY OFFERED BY YOU AS ITEM ONE DOES NOT MEET SUCH ESSENTIAL REQUIREMENTS OF THE INVITATION AS THOSE DISCUSSED ABOVE, WHICH ARE REGARDED AS REASONABLE AND PROPER, DISCUSSION OF THOSE DIFFERENCES ADMINISTRATIVELY DETERMINED AS CONSTITUTING ONLY MINOR DEVIATIONS AND THE RESPONSIVENESS OF YOUR BID TO THE SPECIFICATIONS FOR ITEM TWO IS NOT CONSIDERED NECESSARY. EVEN IF A DETERMINATION WAS MADE THAT YOUR BID IS OTHERWISE RESPONSIVE IT WOULD AFFORD NO CURE FOR THE FAILURE OF YOUR SCALE TO SATISFY THOSE MAJOR REQUIREMENTS OF THE SPECIFICATIONS FOR THE PORTABLE PLATFORM SCALES DEEMED ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.

IN SUCH MATTERS, IT IS OUR FUNCTION ONLY TO INSURE THAT PROCUREMENTS ARE MADE IN ACCORDANCE WITH LAW. EXCEPT TO THE EXTENT THAT A REQUIREMENT IS IMPOSED DIRECTLY OR INDIRECTLY BY, OR IS IN CONFLICT WITH, THE LAW, WE CANNOT DIRECT THE TERMS AND CONDITIONS WHICH ARE TO BE INCLUDED IN AN INVITATION FOR BIDS. THE FACT THAT A BIDDER MAY BE UNABLE TO MEET CERTAIN ESSENTIAL REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS WHICH HAVE BEEN DETERMINED TO REFLECT OR DESCRIBE THE GOVERNMENT'S NEEDS, IS NOT SUFFICIENT TO WARRANT THE CONCLUSION THAT SUCH SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION. IN THIS REGARD WE STATED IN 36 COMP. GEN. 251, 252, AS OLLOWS:

"THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.'

ACCORDINGLY, ON THE BASIS OF THE RECORD BEFORE US AND FOR THE REASONS STATED, WE DO NOT FEEL JUSTIFIED IN OBJECTING TO THE ACTION OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE IN THIS INSTANCE.