B-151597, OCT. 2, 1963

B-151597: Oct 2, 1963

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TO MINNESOTA MINING AND MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO THE COPIES OF YOUR TWO LETTERS DATED MAY 15. THE RECORD SHOWS THAT THE DEPARTMENT OF THE NAVY HAD A NEED FOR FEDERAL STOCK NUMBER Z7440-987-7228 TYPE TAPE WHICH WAS REQUIRED IN TEST INSTRUMENTATION EQUIPMENT FOR CHECKOUT OF MISSILE FIRING EQUIPMENT ON CLASS 616FBM SUBMARINES PRIOR TO OPERATIONAL DEPLOYMENT. IT IS REPORTED THAT THIS TAPE IS USED CONTINUOUSLY NINE TO TWELVE MONTHS PRIOR TO DEPLOYMENT OF THE SUBMARINE AND THAT THE CURRENT CLASS 616FBM SCHEDULE REQUIRES IMMEDIATE AND CONTINUING AVAILABILITY OF THE TAPE IN ORDER TO PRECLUDE ANY DELAY IN THE INSTRUMENTATION CHECKOUT OF THE SUBMARINES CURRENTLY UNDER CONSTRUCTION.

B-151597, OCT. 2, 1963

TO MINNESOTA MINING AND MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO THE COPIES OF YOUR TWO LETTERS DATED MAY 15, 1963 TO THE CONTRACTING OFFICER, UNITED STATES NAVY ORDNANCE SUPPLY OFFICE, MECHANICSBURG, PENNSYLVANIA, PROTESTING THE CANCELLATION OF ITEM 1 UNDER INVITATION FOR BIDS NO. 195-626-63 (W) AND PROTESTING AS RESTRICTIVE THE PURCHASE DESCRIPTION OF THE SUPPLIES COVERED BY INVITATION FOR BIDS NO. 195-669-63 (W).

THE RECORD SHOWS THAT THE DEPARTMENT OF THE NAVY HAD A NEED FOR FEDERAL STOCK NUMBER Z7440-987-7228 TYPE TAPE WHICH WAS REQUIRED IN TEST INSTRUMENTATION EQUIPMENT FOR CHECKOUT OF MISSILE FIRING EQUIPMENT ON CLASS 616FBM SUBMARINES PRIOR TO OPERATIONAL DEPLOYMENT. IT IS REPORTED THAT THIS TAPE IS USED CONTINUOUSLY NINE TO TWELVE MONTHS PRIOR TO DEPLOYMENT OF THE SUBMARINE AND THAT THE CURRENT CLASS 616FBM SCHEDULE REQUIRES IMMEDIATE AND CONTINUING AVAILABILITY OF THE TAPE IN ORDER TO PRECLUDE ANY DELAY IN THE INSTRUMENTATION CHECKOUT OF THE SUBMARINES CURRENTLY UNDER CONSTRUCTION.

TO FULFILL THE NEED FOR THIS TAPE INVITATION FOR BIDS NO. IFB 195 626-63 (W) WAS ISSUED. THE TAPE WAS DESCRIBED UNDER ITEM 1 THEREOF AS PARTICULAR PARTS NUMBERS OF MINNESOTA MINING AND MANUFACTURING COMPANY AND AMPEX CORPORATION,"OR EQUAL.' THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. AMPEX CORPORATION QUOTED A PRICE OF $38.23 PER ROLL ON THE SPECIFIED PART NUMBER, BUT THE BID WAS NOT RESPONSIVE TO THE DELIVERY REQUIREMENTS. REEVES SOUND CRAFT CORPORATION SUBMITTED A BID ON AN "OR EQUAL" PRODUCT FOR A PRICE OF $41.39 PER ROLL AND THERE WAS INCLUDED WITH THE BID DESCRIPTIVE LITERATURE IDENTIFYING AND DESCRIBING THE PRODUCT OFFERED. THE 3M COMPANY SUBMITTED A BID QUOTING A PRICE OF $68.07 PER ROLL ON THE SPECIFIED PART NUMBER AND ALSO OFFERING AN ALTERNATE PRODUCT AT A PRICE OF $42.94 PER ROLL. IT WAS REPORTED THAT 3M'S ALTERNATE PRODUCT HAD BEEN PREVIOUSLY EVALUATED AND WAS NOT CONSIDERED ACCEPTABLE FOR USE IN THE CLASS 616FBM TEST INSTRUMENTATION EQUIPMENT SINCE IT DID NOT MEET THE REQUIREMENT OF INTERSTATE ELECTRONICS CORPORATION, THE PRIME CONTRACTOR TO THE SPECIAL PROJECTS OFFICE FOR TEST INSTRUMENTATION EQUIPMENT IN WHICH THE TAPE IS USED.

THE SECOND LOW BID FROM REEVES SOUND CRAFT CORPORATION WAS SUBMITTED FOR TECHNICAL REVIEW TO DETERMINE WHETHER THE PRODUCT OFFERED WAS EQUAL TO THE MATERIAL REQUIRED. HOWEVER, IT WAS DETERMINED THAT THE TAPE OFFERED BY REEVES SOUND CRAFT CORPORATION AS AN "OR EQUAL" COULD ONLY BE EVALUATED BY TESTING IN THE SPECIFIC INSTRUMENTATION TEST EQUIPMENT IN WHICH IT WOULD BE USED AND THAT THE SPECIAL PROJECTS OFFICE ADVISED THAT SUCH EVALUATION WOULD REQUIRE THREE TO SIX MONTHS TO PERFORM.

IN SUCH CIRCUMSTANCES THE CONTRACTING OFFICER DETERMINED THAT THE ADVERTISEMENT OF ITEM 1 ON AN "OR EQUAL" BASIS CONSTITUTED AN INADEQUATE SPECIFICATION SINCE THE GOVERNMENT COULD NOT REASONABLY DETERMINE WHETHER A PRODUCT OFFERED AS AN EQUAL WAS ACCEPTABLE AS AN ALTERNATE TO THE BRAND NAMES SPECIFIED AND THEREFOR ITEM 1 OF INVITATION FOR BIDS NO. 195-626-63 (W) WAS CANCELLED. THE MATERIAL WAS READVERTISED UNDER INVITATION FOR BIDS NO. 195-669-63 (W) UNDER SPECIFICATIONS LISTING ONLY THE SPECIFIC PARTS NUMBERS OR THE 3M COMPANY AND AMPEX CORPORATION WITHOUT AN "OR EQUAL.'

IN THE LETTERS OF MAY 15, 1963, YOU PROTESTED THE CANCELLATION OF THE FIRST INVITATION ON THE BASIS THAT THE 3M BID WAS THE ONLY RESPONSIVE BID AND THAT AWARD SHOULD HAVE BEEN MADE TO 3M UNDER THAT INVITATION. IN THIS CONNECTION, IT WAS POINTED OUT THAT AMPEX CORPORATION OFFERED DELIVERY OF ONE-THIRD OF THE REQUIREMENT WITHIN 30 DAYS RATHER THAN 15 DAYS AS REQUIRED BY THE INVITATION, AND THAT THEREFORE ITS BID WAS NONRESPONSIVE. WITH RESPECT TO THE BID OF REEVES SOUND CRAFT CORPORATION IT WAS ALLEGED THAT THE BID WAS NON RESPONSIVE FOR FAILURE TO SUBMIT WITH THE BID DATA AS TO THE "PRECISION OR INSTRUMENTATION REEL" OFFERED AS BEING EQUAL TO THE 3M PART SPECIFIED AND THAT THEREFORE THERE WAS NO NEED TO TEST THE "OR EQUAL" TAPE OFFERED BY REEVES SINCE THE BID WAS NON-RESPONSIVE FOR THAT REASON.

AS STATED BY THE CONTRACTING OFFICER IN HIS LETTER TO YOU OF MAY 22, 1963, SINCE REEVES SOUND CRAFT CORPORATION TOOK NO EXCEPTION IN ITS BID TO THE SPECIFIED PRECISION ALUMINUM REEL, THE BID WAS REQUIRED TO BE CONSIDERED AS OFFERING THE SPECIFIED REEL UNDER THE TERMS OF PARAGRAPH (B) OF THE "BRAND NAME OR EQUAL" CLAUSE OF THE INVITATION AND THAT THEREFORE THE BID COULD NOT BE CONSIDERED NON-RESPONSIVE FOR THAT REASON.

THE DETERMINATION MADE TO CANCEL ITEM 1 OF THE INVITATION AND TO READVERTISE WAS DUE TO THE FACT THAT THE GOVERNMENT HAD NO REASONABLE METHOD TO DETERMINE WHETHER THE PRODUCT OFFERED AS EQUAL WAS ACCEPTABLE AS AN ALTERNATE TO THE BRAND NAMES SPECIFIED. WE FIND NO BASIS TO QUESTION SUCH DETERMINATION.

YOU PROTESTED THE FAILURE OF THE PURCHASE DESCRIPTION IN THE SECOND INVITATION TO PROVIDE AN ,OR EQUAL" TO THE MANUFACTURERS' PARTS NUMBERS LISTED. IT WAS STATED THAT THE 3M COMPANY WOULD LIKE THE OPPORTUNITY TO BID ON A PRODUCT WHICH IT FEELS IS EQUAL TO THE SPECIFIED AMPEX CORPORATION PART AND THAT UNDER ASPR 1-1206.1 (B) THE DELETION OF THE WORDS "OR EQUAL" IS PERMITTED ONLY WHEN ONE SOURCE IS AVAILABLE.

THE PROVISIONS OF ASPR WITH RESPECT TO BRAND NAMES OR EQUAL PURCHASE DESCRIPTIONS ARE, AS STATED IN ASPR 1-1206.1, FOR GENERAL APPLICATION. THEY DO NOT APPLY WHERE IT IS DETERMINED IN GOOD FAITH THAT ONLY TWO SPECIFIC MANUFACTURERS' PARTS MEET THE ESSENTIAL REQUIREMENTS OF THE GOVERNMENT AND THAT THERE IS NO REASONABLE METHOD TO DETERMINE WHETHER AN ALTERNATE WOULD BE ACCEPTABLE. IN SUCH CIRCUMSTANCES TO ADD "OR EQUAL" WOULD BE INAPPROPRIATE AND MISLEADING TO BIDDERS. THE GOVERNMENT SHOULD, OF COURSE, AVOID SUCH SITUATIONS WHERE POSSIBLE AND ATTEMPT WITH THE AID OF INDUSTRY TO BROADEN THE SOURCE BASIS AS PROMPTLY AS PRACTICAL.

FOR THE FOREGOING REASONS WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN IN CONNECTION WITH THE INVITATION FOR BIDS NO. 195-626-63 (W) AND 195-669-63 (W).