B-152238, OCT. 29 , 1963

B-152238: Oct 29, 1963

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TO HARRIS-SEYBOLD COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 8. AFTER THE CLAMP IS BROUGHT DOWN TO GAUGE THE CUT THE OPERATOR PRESSES THE "RECORD" BUTTON TO RECORD THE CUT ON THE TAPE. "THE MEMORY SPACER SHALL HAVE AT LEAST EIGHT (8) CHANNELS FOR RECORDING CUTS. THERE SHALL BE A SIGNAL LIGHT TO NOTIFY THE OPERATOR TO MAKE A CUT WHEN IT IS IN CUTTING POSITION. AFTER THE LAST CUT IN A SERIES IS MADE. THE INVITATION WAS ISSUED TO 35 PROSPECTIVE BIDDERS ON JULY 25. THAT DELIVERY OF THE EQUIPMENT WOULD HAVE TO BE MADE WITHIN 180 DAYS AFTER RECEIPT OF THE ORDER. ONLY TWO BIDS WERE RECEIVED. BOTH BIDDERS OFFERED TO FURNISH AN AUTOMATIC SPACER DEVICE WITH THE MACHINE BUT THAT OF THE LAWSON COMPANY WAS A MAGNETIC TAPE SPACER IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS.

B-152238, OCT. 29 , 1963

TO HARRIS-SEYBOLD COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 8, 1963, AND LETTERS DATED AUGUST 8, 15, AND 22, 1963, PROTESTING THE USE BY THE GOVERNMENT PRINTING OFFICE OF ALLEGED RESTRICTIVE SPECIFICATIONS IN INVITATION FOR BIDS NO. 37355 FOR A 65-INCH PAPER-CUTTING MACHINE.

THE SPECIFICATIONS REQUIRED THE MACHINE TO BE EQUIPPED WITH A TAPE MEMORY SPACER DEVICE CAPABLE OF RECORDING SIGNALS ON MAGNETIC TAPE AS FOLLOWS:

"A. BY AUTOMATICALLY RECORDING CUTS AS THE OPERATOR MAKES A SERIES OF CUTS AND TRIMOUTS WITH WORK IN THE MACHINE.

"B. MANUALLY RECORD CUTS AND TRIMOUTS BY PUSHING THE "FORWARD" BUTTON AND STOPPING IT AT THE POINT OF CUT. AFTER THE CLAMP IS BROUGHT DOWN TO GAUGE THE CUT THE OPERATOR PRESSES THE "RECORD" BUTTON TO RECORD THE CUT ON THE TAPE.

"THE MEMORY SPACER SHALL HAVE AT LEAST EIGHT (8) CHANNELS FOR RECORDING CUTS. THE TAPE SHALL BE CAPABLE OF ERASING ANY SPOTS OR ERASING THE ENTIRE CHANNEL. THERE SHALL BE A SIGNAL LIGHT TO NOTIFY THE OPERATOR TO MAKE A CUT WHEN IT IS IN CUTTING POSITION. AFTER THE LAST CUT IN A SERIES IS MADE, THE BACK GAUGE SHALL MOVE FORWARD TO EJECT THE PILE THEN RETURN TO FIRST CUTTING POSITION. ALL CONTROLS FOR THE MEMORY SPACER SHALL BE LOCATED IN FRONT OF THE UNIT * * *.'

THE INVITATION WAS ISSUED TO 35 PROSPECTIVE BIDDERS ON JULY 25, 1963, WITH BID OPENING SCHEDULED FOR AUGUST 12, 1963. IT PROVIDED THAT THE SUCCESSFUL BIDDER WOULD RECEIVE A NOTICE OF AWARD BY AUGUST 21, 1963, AND THAT DELIVERY OF THE EQUIPMENT WOULD HAVE TO BE MADE WITHIN 180 DAYS AFTER RECEIPT OF THE ORDER.

ONLY TWO BIDS WERE RECEIVED. PROTESTANT, THE HARRIS-SEYBOLD COMPANY, SUBMITTED A BID OF $25,787.40 LESS TRADE-ON ALLOWANCE OF $4,500, OR A NET PRICE OF $21,787.40. THE LAWSON COMPANY, A DIVISION OF MIEHLE-GOSS- DEXTER, INCORPORATED, QUOTED A PRICE OF $28,370 LESS TRADE-IN ALLOWANCE OF $2,651.45, OR A NET PRICE OF $25,718.55. BOTH BIDDERS OFFERED TO FURNISH AN AUTOMATIC SPACER DEVICE WITH THE MACHINE BUT THAT OF THE LAWSON COMPANY WAS A MAGNETIC TAPE SPACER IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS, WHEREAS, THE HARRIS SEYBOLD DEVICE WAS ELECTRIC AND MECHANICAL. THE HARRIS-SEYBOLD BID WAS DECLARED NONRESPONSIVE AND THE PROCUREMENT OFFICIALS PROPOSE TO MAKE AN AWARD TO THE LAWSON COMPANY. BECAUSE OF AN ORAL PROTEST MADE BY MR. PAUL H. SCHAFER, WASHINGTON REPRESENTATIVE OF THE HARRIS-SEYBOLD COMPANY, ON OR ABOUT JULY 31, 1963, THE AWARD HAS NOT BEEN MADE AS OF THIS DATE AND THE MATTER IS BEFORE THIS OFFICE FOR DETERMINATION OF THE MERITS OF THE PROTEST.

THE QUESTION IS WHETHER THE REQUIREMENT THAT THE MACHINE BE EQUIPPED WITH A MAGNETIC TAPE MEMORY SPACER UNREASONABLY RESTRICTED COMPETITION FOR THE AWARD.

IT IS ARGUED ON BEHALF OF PROTESTANT THAT WHEREAS ITS ELECTRIC MECHANICAL SPACER MIGHT BE SLIGHTLY MORE TIME CONSUMING TO SET UP A JOB ON, ITS OVERALL MACHINE IS FASTER IN TERMS OF PRODUCTION THAN ITS COMPETITOR'S MACHINE BECAUSE THE BACK GAUGE CAN BE SET TO TRAVEL NO FURTHER THAN IS NECESSITATED BY THE DIMENSIONS OF THE PAPER BEING CUT. PROTESTANT ASSERTS THAT THE PAPER-CUTTING BUSINESS OF THE GOVERNMENT PRINTING OFFICE IS CHARACTERIZED BY A HIGH DEGREE OF JOB REPETITION FOR WHICH THE HARRIS- SEYBOLD MACHINE IS MOST SUITABLE. PROTESTANT MAINTAINS THAT ITS MACHINE IS MORE ACCURATE THAN THE MAGNETIC TAPE SPACER AND THAT, SINCE IT DOES NOT CONTAIN ELECTRONIC PARTS, IT IS LIKELY TO REQUIRE SUBSTANTIALLY LESS MAINTENANCE THAN ITS COMPETITOR'S SPACER. THE HARRIS-SEYBOLD COMPANY NOTES THAT THE LAWSON COMPANY HAS NEVER BEFORE PRODUCED A 65-INCH MACHINE EQUIPPED WITH A MAGNETIC TAPE SPACER AND THAT G.P.O. IS BUYING THE AS YET UNTRIED AND UNPROVEN MACHINE SIGHT UNSEEN. HARRIS-SEYBOLD FURTHER CONTENDS THAT THE SPECIFICATIONS, BY REQUIRING A MAGNETIC TAPE SPACER, RESTRICT COMPETITION FOR THE AWARD TO BIDDERS WHO ARE IN A POSITION TO SUPPLY SUCH A DEVICE AND THAT ONLY ONE DOMESTIC MANUFACTURER, THE LAWSON COMPANY, IS IN SUCH A POSITION. WE ARE GIVEN TO UNDERSTAND THAT EVEN THOUGH THE HARRIS-SEYBOLD COMPANY HAS A MAGNETIC MEMORY SPACER (UTILIZING A CYLINDER AND NOT A TAPE MECHANISM) AS STANDARD EQUIPMENT UPON ITS NEW LINE, THE SEYBOLD "CITATION 42," IT IS NOT NOW ABLE TO SUPPLY THE DEVICE ON ITS LARGER MACHINES AND HAS NO PRESENT INTENTION OF REDESIGNING THESE MACHINES SINCE IT DEEMS THE PRESENT SPACER, AND OLDER SYSTEM, TO BE AS GOOD AS, IF NOT BETTER THAN, THE MAGNETIC MEMORY SPACER. THUS, ARGUES HARRIS-SEYBOLD, FUTURE INVITATIONS REQUIRING A LARGE PAPER-CUTTER TO BE SUPPLIED WITH THE MAGNETIC TAPE SPACER WOULD BE PRECLUSIVE OF COMPETITION AS THEY WOULD NECESSARILY EXCLUDE "THE ONLY MANUFACTURER OF PAPER CUTTERS WITH A COMPLETE LINE OF SIZES" (HARRIS-SEYBOLD), A MANUFACTURER WHICH HAS BEEN IN BUSINESS FOR 70 YEARS AND WHICH HAS PROVIDED MANY CUSTOMERS, INCLUDING THE GOVERNMENT PRINTING OFFICE, WITH PROVEN, ACCURATE AND ECONOMICAL PAPER CUTTERS.

THE GOVERNMENT PRINTING OFFICE, ON THE OTHER HAND, CONTENDS THAT THE MAGNETIC TAPE MEMORY SPACER IS A NEWER CONTROL SYSTEM WHICH REDUCES THE TIME NECESSARY FOR SETTING UP JOBS AND WHICH IS THEREFORE MORE PRODUCTIVE. THE GOVERNMENT PRINTING OFFICE ARGUES THAT IT IS CALLED UPON TO CUT PAPER TO A MULTIPLICITY OF DIMENSIONS REQUIRING AN AVERAGE OF FIVE DIFFERENT JOBS TO BE SET UP PER SHIFT DURING THE USUAL TWO SHIFT DAY. THE GOVERNMENT CONTENDS THAT A MACHINE EQUIPPED WITH A MAGNETIC MEMORY SPACER IS MORE SUITABLE FOR PERFORMING A WIDE VARIETY OF CUTS AND TRIMOUTS THAN IS THE ELECTRIC-MECHANICAL, ROD TYPE SPACER, MACHINE, SINCE NEW DIMENSIONS CAN BE QUICKLY AND EASILY PROGRAMMED ON IT BY THE MERE ACT OF CUTTING. FURTHERMORE, THE GOVERNMENT MAINTAINS THAT ANY SLIGHT TIME ADVANTAGE THE HARRIS-SEYBOLD MACHINE MIGHT POSSESS ON REPETITIVE PRODUCTION JOBS IS OUTWEIGHED BY THE FACT THAT AN ORDINARILY SKILLED OPERATOR IS NEVER AS FAST AS THE BACK GAUGE ON ANY AUTOMATIC SPACER PAPER-CUTTER.

BY WAY OF REBUTTAL, PROTESTANT ASSERTS THAT ON ITS MACHINE (THE SEYBOLD SPACER BEING OFFERED IN THIS PROCUREMENT HAS A METAL ROD ON WHICH SNAP-ON OR SCREW TYPE SIGNALS ARE AFFIXED AND POSITIONED BY THE OPERATOR TO RECORD THE CUTTING POINTS) AN UNLIMITED NUMBER OF RODS MAY BE PURCHASED WHICH NEED ONLY BE SET ONCE FOR EACH JOB AND WHICH MAY BE TAKEN OUT OF STORAGE AND EASILY INSERTED IN THE MACHINE IN NO MORE TIME, IF NOT LESS TIME, THAN IT TAKES TO SET A MAGNETIC TAPE SPACER CHANNEL OR CHANNELS WHENEVER THAT PARTICULAR JOB RECURS. THUS, PROTESTANT MAINTAINS ITS MACHINE, ONCE THE RODS HAVE BEEN PROGRAMMED, CAN PERFORM AN UNLIMITED NUMBER OF JOBS ON WHICH ALL MAKE-READY TIME IS ELIMINATED.

THE GOVERNMENT PRINTING OFFICE CONTENDS WITH EQUAL FORCEFULNESS THAT TO HAVE AS MANY RODS ON THE PREMISES (SUBJECT TO ACCIDENTAL DISTURBANCES) AS WOULD BE NECESSARY TO HANDLE THE WIDE VARIETY OF JOBS WHICH IT IS CALLED UPON TO HANDLE WOULD BE AN EXPENSIVE AND UNNECESSARY INCONVENIENCE. ALSO STATES THAT THE HARRIS-SEYBOLD COMPANY CANNOT BUCK THE INEVITABLE TREND IN THE PAPER-CUTTER INDUSTRY TOWARD MEMORY SPACERS.

YOUR COMPANY URGES US TO HOLD THAT A PAPER-CUTTER SPECIFICATION WHICH CALLS FOR A MAGNETIC MEMORY SPACER IS PER SE RESTRICTIVE OF COMPETITION.

THE ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT, AND NOT THE GENERAL ACCOUNTING OFFICE BEAR COMPLETE RESPONSIBILITY FOR DRAFTING CONTRACT SPECIFICATIONS AND FOR DETERMINING WHETHER ARTICLES OFFERED THEREUNDER ARE RESPONSIVE THERETO. 17 COMP. GEN. 554. COMPETITIVE BIDDING STATUTES ARE NOT VIOLATED BY THE GOVERNMENT MERELY BECAUSE ONLY ONE DOMESTIC COMPANY CAN SUPPLY ITS NEEDS, B 148200 DATED SEPTEMBER 26, 1962.

ON THE OTHER HAND, ALTHOUGH THIS OFFICE IS LOATHE TO OVERTURN THE JUDGMENT OF KNOWLEDGEABLE TECHNICAL PERSONNEL ABSENT COMPELLING REASONS, WE MUST BE CERTAIN THAT THE MATERIAL REQUIREMENTS OF A CONTESTED SPECIFICATION ARE REASONABLE, NECESSARY, AND NO MORE THAN AN EXPRESSION OF THE BONA FIDE NEEDS OF THE GOVERNMENT. A SPECIFICATION WHICH IS ARBITRARILY DRAWN AROUND THE PRODUCT OF ONE MANUFACTURER ON THE BASIS OF A PARTICULAR FEATURE OF ITS PRODUCT NOT HAVING ANY ADVANTAGES OVER COMPARABLE DEVICES ON COMPETING PRODUCTS, MAY NOT BE ALLOWED TO STAND.

WE CANNOT HOLD ON THE BASIS OF THE RECORD BEFORE US THAT A PAPER CUTTER SPECIFICATION REQUIRING THE MACHINE TO BE EQUIPPED WITH A MAGNETIC MEMORY SPACER IS, PER SE, RESTRICTIVE. A DEFINITE ISSUE OF FACT AS TO THE RELATIVE MERITS OF THE TWO SPACER DEVICES IS PRESENTED AND THE DEMONSTRATIONS OF BOTH SIDES ARE PERSUASIVE. BUT WE CANNOT SAY THAT THE GOVERNMENT PRINTING OFFICE'S PREFERENCE FOR A MAGNETIC MEMORY SPACER LACKS AN OBJECTIVE TECHNOLOGICAL BASIS AND IS UNREASONABLE OR UNNECESSARY TO THE BONA FIDE NEEDS OF THE GOVERNMENT. WE DO NOT SUBSCRIBE TO THE VIEW THAT A MAGNETIC MEMORY SPACER IS SUPERIOR TO AN ELECTRIC-MECHANICAL SPACER FOR ALL PURPOSES OR EVEN FOR MOST PURPOSES, NOR DO WE EXPRESS ANY TECHNICAL OPINION AT ALL BY MERELY ACCEPTING THE DETERMINATION OF THE GOVERNMENT'S OWN ENGINEERS THAT THE MAGNETIC MEMORY SPACER DEVICE APPEARS AT THIS TIME TO BE MOST SUITABLE FOR THEIR PARTICULAR PURPOSES. COMPARE 34 COMP. GEN. 364 AND 36 COMP. GEN. 251 (AS OF THE DATE OF THIS DECISION THE U.S. GOVERNMENT PRINTING OFFICE POSSESSED AND WAS USING MANY MACHINES OF THE TYPE BEING OFFERED BY HARRIS-SEYBOLD ON THIS PROCUREMENT BUT NO MACHINES EQUIPPED WITH MAGNETIC TAPE SPACERS.)

WE THINK, HOWEVER, THAT THE GOVERNMENT'S OFFICERS MAY HAVE INADVERTENTLY GONE TOO FAR WHEN THEY DRAFTED THE SPECIFICATIONS TO EXCLUDE FROM COMPETITION ALL TYPES OF MAGNETIC MEMORY SPACERS EXCEPT THE MAGNETIC TAPE SPACER DEVICE. WE SAY THIS BECAUSE OF THE QUESTION WHICH WOULD HAVE ARISEN IF HARRIS-SEYBOLD HAD BID ITS MAGNETIC MEMORY SPACER, WHICH GPO STATES WOULD HAVE BEEN ACCEPTABLE AS A MINOR DEVIATION FROM SPECIFICATIONS. SINCE HARRIS-SEYBOLD DID NOT CHOOSE TO SUBMIT A BID ON THIS BASIS, HOWEVER, WE CANNOT SAY IT WAS PREJUDICED.

IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THAT THE REJECTION OF YOUR BID UNDER THE INVITATION IN QUESTION WAS PROPER.

WITH RESPECT TO FUTURE PURCHASES OF PAPER-CUTTERS, YOU ARE ADVISED THAT WE HAVE TODAY SUGGESTED TO THE PUBLIC PRINTER THAT THE GOVERNMENT PRINTING OFFICE REVIEW ITS REASONABLE NEEDS AFTER IT HAS HAD SOME EXPERIENCE WITH THE LAWSON MACHINE AND CONSIDER ANY MODIFICATION OF PRESENT REQUIREMENTS, NOT INCONSISTENT WITH SUCH NEEDS, WHICH WOULD RESULT IN BROADENING THE COMPETITIVE ..END :