B-152823, JAN. 23, 1964

B-152823: Jan 23, 1964

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THE INVITATION CONTAINS THE FOLLOWING PROVISION: "/A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A "BRAND NAME OR EQUAL" DESCRIPTION. SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE. IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE GRAND NAME SUPPLIES REFERENCED IN THE INVITATION FOR BIDS.'. AWARD IS SPECIFIED ON THE BASIS OF THE LOWEST AGGREGATE PRICE. BIDS WERE OPENED ON NOVEMBER 1. FOUR BIDS WERE RECEIVED AS FOLLOWS: CHART BIDDER TOTAL PRICE DISCOUNT SPEEDRACK INC. $3.

B-152823, JAN. 23, 1964

TO S. L. COOPER AND ASSOCIATES:

WE REFER TO YOUR LETTER OF NOVEMBER 1, 1963, PROTESTING AGAINST AN AWARD TO ANY OTHER BIDDER UNDER INVITATION NO. S-3064, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, GODDARD SPACE FLIGHT CENTER.

THE INVITATION CALLS FOR STORAGE RACKS, PALTIER MODEL 3200 OR EQUAL, CONSISTING OF ITEM NO. 1, UPRIGHTS (80 EACH), AND ITEM NO. 2, SHELF BEAMS (432 EACH). AS ORIGINALLY ISSUED, THE INVITATION PROVIDED THAT THE SPECIFIED ITEMS SHOULD BE PALTIER OR EQUAL AND SHOULD BE INTERCHANGEABLE AND COMPATIBLE WITH EXISTING RACKS. HOWEVER, ADDENDUM NO. 2 TO THE INVITATION DELETED THE ABOVE UNDERLINED REQUIREMENT FROM THE SPECIFICATION. IN ADDITION, ADDENDUM NO. 2 AMENDED THE SPECIFICATION AS FOLLOWS:

"/A) ITEM 1, ADD: "TWO SECTION UPRIGHT SHALL BE 44 INCHES WIDE

BY 108 INCHES HIGH WITH A MINIMUM LOAD LIMIT OF 4,000 POUNDS.'

"/B) ITEM 2, ADD: "SHELF BEAMS SHALL BE 108 INCHES LONG WITH A

MINIMUM LOAD LIMIT OF 4,000 POUNDS PER PAIR.'"

ADDENDUM NO. 3, DATED OCTOBER 29, 1963, CHANGED THE ITEM NO. 1 4,000 POUND LOAD LIMIT TO 12,000 POUNDS. (ADDENDUM NO. 1 MERELY EXTENDED THE BID OPENING DATE.)

WITH REGARD TO THE BRAND NAME REQUIREMENT, THE INVITATION CONTAINS THE FOLLOWING PROVISION:

"/A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A "BRAND NAME OR EQUAL" DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE GRAND NAME SUPPLIES REFERENCED IN THE INVITATION FOR BIDS.'

AWARD IS SPECIFIED ON THE BASIS OF THE LOWEST AGGREGATE PRICE.

BIDS WERE OPENED ON NOVEMBER 1, 1963, AND FOUR BIDS WERE RECEIVED AS FOLLOWS:

CHART

BIDDER TOTAL PRICE DISCOUNT SPEEDRACK INC.

$3,301.64 NONE STORACK CORP. 3,640.00 2 PERCENT-20 UNARCO INDUSTRIES, INC. 3,626.56 NONE THE PALTIER CORP.

5,546.44 1/2 PERCENT-20

C/O S. L. COOPER

EACH OF THE BIDDERS OFFERED ITS OWN PRODUCT; AND YOU CONTEND THAT NONE OF THE "OR EQUAL" RACKS OFFERED BY THE OTHER THREE BIDDERS IS IN ANY WAY EQUAL TO, OR COMPATIBLE WITH, THE INVITATION SPECIFIED PALTIER RACK. YOU SAY THAT THE OTHER MODELS OBVIOUSLY ARE NOT OF THE SAME QUALITY AS THE PALTIER MODEL, JUDGING BY THE LOW PRICES BID ON THESE MODELS. YOU POINT OUT THE FOLLOWING DIFFERENCES:

"1. THE SHELVES IN PALTIER RACKS ADJUST ON 2 INCH INCREMENTS.

ALL THE OTHERS ADJUST ON 4 INCH INCREMENTS.

"2. PALTIER RACKS CONSIST ONLY OF UPRIGHTS AND SHELF BEAMS. ON ALL

OTHER RACKS A THIRD COMPONENT IS NEEDED AT EACH END OF EACH

SHELF BEAM TO CONNECT IT TO THE UPRIGHT END FRAME. FURTHERMORE,

THIS THIRD COMPONENT, IN TWO OF THE THREE CASES, PROTRUDES BEYOND

THE FACE OF THE RACK AND CONSTITUTES A DEFINITE HAZARD TO

WAREHOUSE PERSONNEL.'

THE AGENCY REPORTS THAT THE BRAND NAME PURCHASE DESCRIPTION WAS USED IN THIS INVITATION BECAUSE THERE WAS NO EXISTING SPECIFICATION FOR THE ITEM, A LACK OF MANPOWER, AND BECAUSE THE PURCHASING ORGANIZATION WAS PREPARING TO MOVE TO ANOTHER LOCATION; AND THAT THE PALTIER BRAND NAME WAS SELECTED BECAUSE THE AGENCY WAS FAMILIAR WITH THE QUALITIES AND FEATURE OF THIS MODEL THROUGH A PRIOR PROCUREMENT. IT IS FURTHER REPORTED THAT THE INTERCHANGEABILITY FEATURE WAS DELETED BECAUSE THE INVITATION WOULD OTHERWISE HAVE BEEN RESTRICTIVE; AND THAT AFTER DELETING INTERCHANGEABILITY AS A REQUIREMENT, THE ADDENDA CLARIFIED AND SET FORTH MINIMUM WEIGHT STANDARDS AND HEIGHTS OF THE UPRIGHTS AND SHELF BEAMS AS A MATTER OF CLARIFICATION RATHER THAN AS A CHANGE. SPECIFICALLY REGARDING THE DEPARTURES WHICH YOU SAY EXIST BETWEEN THE PALTIER AND OTHER MODELS, THE AGENCY REPORTS AS FOLLOWS:

"/B) THE ALLEGATION BY THE PROTESTANT THAT THE ADJUSTMENT OF THE SHELVING 2 INCH INCREMENTS RATHER THAN 4 INCH INCREMENTS IS WITHOUT FOUNDATION AS THIS ORGANIZATION DOES NOT CONSIDER THIS OF MAJOR IMPORTANCE AND IT WAS NEVER THE INTENT TO RESTRICT BIDDERS ON THIS BASIS.

"/C) THE PROTESTANT'S ALLEGATION THAT OTHER BIDDERS REQUIRED A THIRD COMPONENT IS IMMATERIAL TO THIS ORGANIZATION AND IN MY MIND DOES NOT RENDER THE LOW BIDDER NON-RESPONSIVE EVEN IF HE WERE TO USE ADDITIONAL PARTS. THE LOW BID DOES MEET THE WEIGHT AND HEIGHT STANDARD OF THE INVITATION FOR BID. AS FAR AS THE THIRD COMPONENT CONSTITUTING A SAFETY HAZARD, THE SAFETY OFFICER OF GODDARD WAS CONTACTED AND IT WAS HIS DETERMINATION THAT THIS WAS INCORRECT.'

THE CONTRACTING OFFICER REPORTS THAT THE LOW BID SUBMITTED BY SPEEDTRACK IS RESPONSIVE AND PROPER FOR AWARD. A COPY OF THE SPEEDRACK BID HAS BEEN RECEIVED IN THIS OFFICE; AND THE DESCRIPTIVE DATA SUBMITTED WITH THE SPEEDRACK BID SHOWS THAT THE SPEEDRACK MODEL UPRIGHT (U44-108) IS 44 INCHES WIDE, 108 INCHES HIGH, HAS AN ALLOWABLE LOAD OF 16,400 POUNDS AND THE UPRIGHT TRUSS IS BUILT WITH VERTICAL CENTERS AT 2-INCH INTERVALS THROUGHOUT THE FULL HEIGHT OF THE COLUMN, ALLOWING THE BEAMS TO BE CONNECTED TO THE UPRIGHT BY A CONNECTOR WHICH, WE ARE ADVISED, PROTRUDES BEYOND THE FACE OF THE RACK BY 3/8 OF ONE INCH. BUT THE AGENCY POINTS OUT THAT MOST OF THE STACKING WORK WILL BE ACCOMPLISHED WITH FORK LIFT TRUCKS, SO THAT THE WAREHOUSE PERSONNEL SHOULD HAVE LITTLE OCCASION TO BRUSH AGAINST THE 3/8 INCH PROTRUDING CONNECTOR.

WE HAVE RECOGNIZED THAT WHERE A "BRAND NAME OR EQUAL" DESCRIPTION IS USED IN AN INVITATION, IT IS NOT NECESSARY THAT THE "EQUAL" ITEM BE AN EXACT DUPLICATE OF THE BRAND NAME, SINCE SUCH AN INTERPRETATION WOULD BE UNDULY RESTRICTIVE OF COMPETITION. B-146302, OCTOBER 24, 1961. THE "OR EQUAL" REQUIREMENT HAS BEEN CONSTRUED TO MEAN THAT THE ALTERNATE ITEM OFFERED MUST BE EQUAL TO THE SPECIFIED PRODUCT IN ALL MATERIAL RESPECTS FOR THE PURPOSES INTENDED. B-147370, MARCH 28, 1962. IN THIS CONNECTION, THE BRAND NAME PROVISION OF THE INVITATION, QUOTED ABOVE, STATES THAT "EQUAL" PRODUCTS MUST BE EQUAL "* * * IN ALL MATERIAL RESPECTS * * *.' CERTAINLY THE SALIENT FEATURES OF THE STORAGE RACK ARE THE SIZE AND THE ALLOWABLE LOAD. THESE FEATURES WERE SPELLED OUT IN THE ADDENDA, AND THE LOW BIDDER HAS OFFERED A MODEL WHICH MEETS THE STATED REQUIREMENTS. THE INITIAL REQUIREMENT FOR INTERCHANGEABILITY WAS DELETED; AND WHILE THERE ARE SOME PHYSICAL DIFFERENCES BETWEEN THE PALTIER MODEL AND THE SPEEDRACK MODEL, WE DO NOT FIND THAT THE SPEEDRACK MODEL IS NONRESPONSIVE TO THE GOVERNMENT'S NEEDS. SEE 41 COMP. GEN. 366, 370.