B-153987, JUN. 9, 1964

B-153987: Jun 9, 1964

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LEVENE: REFERENCE IS MADE TO YOUR LETTER OF APRIL 16. EXCEPT THAT ITEM 1 WAS TO HAVE A RIGHT-HAND FEED AND ITEM 2 A LEFT-HAND FEED. THE PURCHASE DESCRIPTION WAS THE SAME FOR BOTH MACHINES. THE PRICES QUOTED IN ITEM 1 WERE $3. THE PRICES ON ITEM 2 WERE IDENTICAL. YOUR COMPANY WAS THE SECOND LOW BIDDER ON THE ITEMS. THE AWARD FOR ITEMS 1 AND 2 WAS MADE TO THE FIFTH LOW BIDDER. SINCE LOWER BIDDERS WERE DETERMINED TO BE NONRESPONSIVE TO THE INVITATION FOR BIDS FOR VARIOUS REASONS. THE LOW BID OFFERED BY YOUR COMPANY ON ITEMS 1 AND 2 WAS PASSED OVER IN FAVOR OF A BID OFFERING THE NAMED BRAND ARTICLE. IT IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES OF THE GOVERNMENT TO DETERMINE THE NEEDS OF THE GOVERNMENT. 17 COMP.

B-153987, JUN. 9, 1964

TO MR. B. N. LEVENE:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 16, 1964, PROTESTING THE AWARD MADE UNDER DEPARTMENT OF THE NAVY INVITATION IFB-128-53-64.

THE SUBJECT INVITATION SOLICITED BIDS ON TWO ITEMS DESCRIBED AS DOUBLE TANK DISHWASHING MACHINES. EXCEPT THAT ITEM 1 WAS TO HAVE A RIGHT-HAND FEED AND ITEM 2 A LEFT-HAND FEED, THE PURCHASE DESCRIPTION WAS THE SAME FOR BOTH MACHINES. IT SPECIFIED A HOBART MODEL CCM-2 OR EQUAL AND THE FOLLOWING CHARACTERISTICS: 19 3/4 INCHES BY 19 3/4 INCHES RACKS, AUTOMATIC CONVEYOR, MINIMUM CAPACITY 450 RACKS PER HOUR, TABLE TO TABLE LENGTH 95 3/4 INCHES, 220 VOLTS, 3 PHASE, 60 CYCLES.

SEVEN BIDDERS RESPONDED TO THE INVITATION FOR BIDS. THE PRICES QUOTED IN ITEM 1 WERE $3,393, $3,599, $3,683, $3,713, $4,216.15, $4,288.45, AND $4,333. THE PRICES ON ITEM 2 WERE IDENTICAL. YOUR COMPANY WAS THE SECOND LOW BIDDER ON THE ITEMS. THE AWARD FOR ITEMS 1 AND 2 WAS MADE TO THE FIFTH LOW BIDDER, SINCE LOWER BIDDERS WERE DETERMINED TO BE NONRESPONSIVE TO THE INVITATION FOR BIDS FOR VARIOUS REASONS.

IN YOUR LETTER OF APRIL 16, 1964, YOU PROTEST THAT THE PURCHASING OFFICE DID NOT UTILIZE GOVERNMENT SPECIFICATIONS IN THE INVITATION AND THAT, NOTWITHSTANDING THAT YOUR COMPANY OFFERED A MODIFIED VERSION OF ITS STANDARD MODEL AS AN EQUAL TO THE MODEL SPECIFIED IN THE INVITATION, THE LOW BID OFFERED BY YOUR COMPANY ON ITEMS 1 AND 2 WAS PASSED OVER IN FAVOR OF A BID OFFERING THE NAMED BRAND ARTICLE.

IT IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES OF THE GOVERNMENT TO DETERMINE THE NEEDS OF THE GOVERNMENT. 17 COMP. GEN. 554, 557. THIS CASE, THE AGENCY DECIDED THAT IT NEEDED A MACHINE WITH A CAPACITY OF 450 RACKS PER HOUR. THE FEDERAL SPECIFICATION ON DISHWASHING MACHINES DOES NOT COVER A MACHINE OF THAT CAPACITY. IN THE CIRCUMSTANCES, THE FAILURE TO UTILIZE THE FEDERAL SPECIFICATION WAS NOT IMPROPER.

AN AWARD WAS NOT MADE TO YOUR COMPANY BECAUSE THE BID SUBMITTED WAS NOT CONSIDERED RESPONSIVE. THE FOLLOWING REASONS WERE AMONG THOSE RELIED UPON FOR THE REJECTION OF THE BID. IT WAS ACCOMPANIED BY A COVERING LETTER AND DESCRIPTIVE LITERATURE INDICATING THAT YOUR COMPANY'S STANDARD MODEL WOULD BE MODIFIED TO INCREASE THE CAPACITY OF RACKS PER HOUR FROM 390 TO 450. THE BRAND NAME OR EQUAL CLAUSE IN THE INVITATION PROVIDES THAT IF THE BIDDER PROPOSES TO MODIFY A PRODUCT TO MAKE IT CONFORM TO THE INVITATION REQUIREMENTS, IT SHALL INCLUDE IN THE BID A CLEAR DESCRIPTION OF THE PROPOSED MODIFICATION AND SHALL MARK CLEARLY ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS. WHILE THE MATERIAL SUBMITTED WITH THE BID INDICATED THAT THE CAPACITY OF RACKS PER HOUR WOULD BE MODIFIED, A DESCRIPTION WAS NOT PROVIDED INDICATING HOW THE MODIFICATION WAS TO BE INCORPORATED. ALSO, WHILE THE PURCHASE DESCRIPTION SPECIFIED A TABLE TO TABLE LENGTH OF 95 3/4 INCHES, THE LITERATURE FURNISHED WITH THE BID SPECIFIED A DISTANCE OF 93 3/8 INCHES.

THE BID SUBMITTED BY YOUR COMPANY APPARENTLY WAS NOT TOTALLY RESPONSIVE. ACCORDINGLY, IT DOES NOT APPEAR THAT YOUR BID WAS REJECTED IMPROPERLY.