B-154397, SEP. 4, 1964

B-154397: Sep 4, 1964

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TO VOLAND CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF JUNE 4. IT ALSO SET FORTH CERTAIN SPECIFIC SUPPLEMENTARY SPECIFICATIONS FOR THE BALANCE INCLUDING THE FOLLOWING REQUIREMENT: "BOWS: SHALL HAVE A MINIMUM 18 1/2 INCH OPENING AT TOP SURFACE OF PAN. FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID.'. WHICH WERE OPENED AS SCHEDULED ON MARCH 30. WERE RECEIVED ON ITEM 2 OF THE INVITATION AND THE LOW BID AS TO PRICE WAS SUBMITTED BY VOLAND CORPORATION. FORWARDED WITH THIS BID AND CONSTITUTING AN INTEGRAL PART THEREOF WAS A LIST OF SPECIFICATIONS PREPARED BY VOLAND WHICH WAS DESIGNATED AS AN ALTERNATE FOR DRAWING A7910450.

B-154397, SEP. 4, 1964

TO VOLAND CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1964, PROTESTING AGAINST THE AWARDING OF A CONTRACT TO ANY OTHER CONCERN FOR BULLION BALANCES UNDER ITEM NO. 2 OF INVITATION FOR BIDS NO. ANC/A/36-038-64 522SP) ISSUED BY THE UNITED STATES ARMY, FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION, AS AMENDED, SOLICITED BIDS UNDER ITEM 2 FOR FURNISHING 26 BULLION BALANCES, 10 TO 200 POUNDS CAPACITY, IN ACCORDANCE WITH SPECIFICATION CONTROL DRAWING NO. A7910450, REV.B, DATED MARCH 2, 1964. WHILE THE DRAWING PROVIDED THAT, WHEREVER APPLICABLE, THE FEATURES OF CONSTRUCTION WOULD BE IN ACCORDANCE WITH FEDERAL SPECIFICATION AAA-S-121, A GENERAL SPECIFICATION APPLICABLE TO SEVERAL TYPES AND CLASSES OF WEIGHING SCALES, IT ALSO SET FORTH CERTAIN SPECIFIC SUPPLEMENTARY SPECIFICATIONS FOR THE BALANCE INCLUDING THE FOLLOWING REQUIREMENT:

"BOWS: SHALL HAVE A MINIMUM 18 1/2 INCH OPENING AT TOP SURFACE OF PAN. THIS 18 1/2 INCH OPENING SHALL EXTEND UPWARD FROM THE PAN SURFACE FOR A MINIMUM DISTANCE OF 5 INCHES. MAXIMUM OVERALL HEIGHT OF BOWS SHALL BE 40 INCHES.'

FOR PURPOSES OF EVALUATION AND AWARD, THE INVITATION REQUIRED THE FURNISHING OF DESCRIPTIVE LITERATURE TO ESTABLISH THE DETAILS OF THE PRODUCT THE BIDDER OFFERED TO FURNISH AS TO PHYSICAL AND PERFORMANCE CHARACTERISTICS. THIS REQUIREMENT OF THE INVITATION SPECIFICALLY PROVIDED ,FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID.'

FOUR BIDS, WHICH WERE OPENED AS SCHEDULED ON MARCH 30, 1964, WERE RECEIVED ON ITEM 2 OF THE INVITATION AND THE LOW BID AS TO PRICE WAS SUBMITTED BY VOLAND CORPORATION. FORWARDED WITH THIS BID AND CONSTITUTING AN INTEGRAL PART THEREOF WAS A LIST OF SPECIFICATIONS PREPARED BY VOLAND WHICH WAS DESIGNATED AS AN ALTERNATE FOR DRAWING A7910450. VOLAND'S SPECIFICATION FOR BOWS WAS STATED AS FOLLOWS:

"BOWS: TRIANGULAR APPROXIMATELY 18 INCHES AT BOTTOM APPROXIMATELY 40 INCHES HIGH. RODS OF STAINLESS STEEL.'

ON APRIL 28, 1964, THE CHIEF, ENGINEERING EVALUATION BRANCH, METROLOGY CALIBRATION GROUP AT FRANKFORD ARSENAL DETERMINED THAT THE BALANCE PROPOSED TO BE FURNISHED BY VOLAND DID NOT MEET THE INVITATION'S WIDTH REQUIREMENTS FOR THE BOWS AND WAS, THEREFORE, TECHNICALLY NONRESPONSIVE.

ESSENTIALLY, IT APPEARS TO BE YOUR VIEW THAT THE INVITATION CALLED FOR BOWS 18 1/2 INCHES WIDE AND THAT YOUR BID SPECIFIED 18 INCHES. YOU CONTEND THAT YOUR BID SHOULD BE CONSIDERED RESPONSIVE TO THE INVITATION FOR THE REASON THAT "THE HALF INCH DIFFERENCE IN THE WIDTH OF THE BOWS HAS NOTHING TO DO WITH THE QUALITY OF THE BALANCE OR THE PERFORMANCE OF THE BALANCE AND THE ACTUAL DIFFERENCE OF SPACE BETWEEN THE BOWS IS INSIGNIFICANT SINCE THESE BALANCES ARE TO BE USED FOR THE CALIBRATION OF WEIGHTS AND ANY WEIGHTS THAT ARE TO BE CALIBRATED ON THIS BALANCE WILL EASILY FIT WITHIN THE 18 INCH WIDTH.'

IN JUSTIFICATION OF THE REJECTION OF YOUR BID THE CONTRACTING OFFICER HAS SUBMITTED A REPORT WHICH ADVISES IN PERTINENT PART AS FOLLOWS:

"THE SPECIFICATION REQUIREMENT IS NOT MERELY 18 1/2 INCHES AT THE BOWS. THE PROTESTOR HAS NEGLECTED TO MENTION THAT THE ACTUAL REQUIREMENT FOR THE BOWS IS:

"BOWS: SHALL HAVE A MINIMUM 18 1/2 INCH OPENING AT TOP SURFACE OF PAN. THIS 18 1/2 INCH OPENING SHALL EXTEND UPWARD FROM THE PAN SURFACE FOR A MINIMUM DISTANCE OF 5 INCHES. MAXIMUM OVERALL HEIGHT OF BOWS SHALL BE 40 INCHES.'

VOLAND DID NOT BID ON THE SPECIFIED BOWS REQUIREMENT, BUT BID ON AN ALTERNATE "TRIANGULAR APPROXIMATELY 18 INCHES AT BOTTOM. APPROXIMATELY 40 INCHES HIGH. RODS OF STAINLESS STEEL.' THUS, VOLAND'S BID WAS AN OFFER FOR AN APERTURE AT PAN LEVEL OF APPROXIMATELY 18 INCHES. VOLAND DID NOT SPECIFY WHAT THE TERM "APPROXIMATELY" MEANT TO THEM. ASSUMING A TOLERANCE OF 10 PERCENT, BASED ON THEIR BID AS SUBMITTED, VOLAND COULD HAVE DELIVERED BALANCES WITH AN OPENING (AT PAN LEVEL) OF 16.2.' FURTHERMORE, EVEN ASSUMING AN 18 INCH OPENING AT PAN LEVEL, THE APERTURE PROVIDED 5 INCHES ABOVE THE PAN WOULD BE ONLY 15 3/4 INCHES, WHICH IS 2 1/4 INCHES LESS THAN THE MINIMUM REQUIREMENT SPECIFIED ON THE DRAWING.

"B. AMONG THE MEASURING WEIGHTS CONTEMPLATED TO BE USED ON THE BALANCES HEREIN INVOLVED ARE AMERICAN INSTRUMENT CO. WEIGHTS, WHICH ARE 50 LBS EACH, WAFER-SHAPED, 14 INCHES IN DIAMETER, 1 1/4 INCHES THICK, AND COME IN SETS OF FOUR. THEY ARE WEIGHED INDIVIDUALLY AND COLLECTIVELY TO GET AN AGGREGATE EXACT WEIGHT AND AN INDIVIDUAL EXACT WEIGHT FOR CALIBRATION PURPOSES AND TO ASSURE THAT THE WEIGHT TOLERANCES ARE NOT EXCEEDED. THE 14 INCH DIAMETER WEIGHT REQUIRES AN ADEQUATE HAND CLEARANCE AND THEREFORE THE SPECIFICATION CONTROL DRAWING SET FORTH A MINIMUM 18 1/2 INCH OPENING AT THE TOP SURFACE OF THE PAN. INASMUCH AS THE WEIGHTS ARE COLLECTIVELY WEIGHED (THE SET OF FOUR), THE 18 1/2 INCH OPENING WAS REQUIRED TO EXTEND UPWARD FROM THE PAN SURFACE FOR A MINIMUM DISTANCE OF 5 INCHES. THIS INFORMATION IS DOCUMENTED BY INCLOSURE 1 TO DF DATED 13 JULY 1964 FROM THE CHIEF, ENGR.DIV., METROLOGY CALIBRATION GROUP, U.S. ARMY MUNITIONS COMMAND, FRANKFORD ARSENAL. THE REQUIREMENT IS ALSO NECESSARY FOR CASE OF CALIBRATING WEIGHTS SUCH AS THE SECONDARY TRANSFER WEIGHTS (MANSFIELD AND GREEN 300 LBS) AND ALSO PROVIDE THE NECESSARY CLEARANCE IN ESTABLISHING TARE WEIGHT OF PRECISION PROVING RINGS AND TORQUE MEASURING INSTRUMENTS. THE CLEARANCE REQUIREMENT IS ALSO NECESSARY TO FACILITATE THE CASE OF HANDLING EACH OF THE LARGE MASS WEIGHTS IN THE PROCESS OF CALIBRATION.

"THEREFORE, AN AWARD BASED ON VOLAND'S BID WOULD HAVE RESULTED IN ACCEPTANCE OF A COUNTER-OFFER OBLIGATING THE GOVERNMENT TO ACCEPT AN ITEM WHICH WOULD NOT HAVE MET THE MINIMUM NEEDS OF THE GOVERNMENT OR BEEN SUITABLE FOR THE INTENDED PURPOSE (IN ADDITION TO BEING PREJUDICIAL TO THE OTHER BIDDERS AND CONTRARY TO THE SEALED BID SYSTEM).'

IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT AND DETERMINATIONS AS TO WHETHER THE BIDS RECEIVED ARE FACTUALLY RESPONSIVE TO SUCH SPECIFICATIONS ARE PRIMARILY A RESPONSIBILITY OF THE PARTICULAR AGENCY INVOLVED. IN THE INSTANT CASE IT APPEARS THAT THE DEPARTMENT OF THE ARMY HAS EXERCISED THAT RESPONSIBILITY BY THE PREPARATION OF SPECIFICATIONS WHICH INCLUDED A DIMENSION DESIGNED TO FACILITATE THE OPERATIONS FOR WHICH THE INSTRUMENT WAS INTENDED TO BE USED. FURTHER, THEY DETERMINED THAT THE DIMENSIONS SET FORTH ON DRAWING A7910450, REV.B, AS TO THE BOWS OF THE BALANCE, DESCRIBED THE GOVERNMENT'S MINIMUM NEEDS IN THAT RESPECT AND THAT SUCH PARTS ON THE ITEM OFFERED BY YOU DID NOT MEET THOSE NEEDS, THEREBY REQUIRING REJECTION OF YOUR BID. AS IT IS NOT APPARENT FROM THE ABOVE REPORT THAT THE ADMINISTRATIVE ACTION WAS ARBITRARY, CAPRICIOUS OR IN BAD FAITH, WE MAY NOT SUBSTITUTE OUR JUDGMENT OR THAT OF VOLAND CORPORATION FOR THE JUDGMENT OF THE CONTRACTING AGENCY AS TO THE MATERIALITY OF SUCH FEATURE. HOWEVER, IT IS OBVIOUS THAT THE DESCRIPTION FURNISHED FOR THE BOWS OF THE VOLAND PRODUCT DOES NOT SHOW OR EVEN INDICATE THAT THEY WILL CONFORM TO THE MINIMUM DIMENSIONS SPECIFIED BY THE GOVERNMENT AS REQUIRED UNDER THE DESCRIPTIVE LITERATURE CLAUSE ON PAGE 5 OF THE INVITATION.

EXCEPT TO THE EXTENT THAT A REQUIREMENT IS IMPOSED DIRECTLY OR INDIRECTLY BY, OR IS IN CONFLICT WITH, THE LAW, THIS OFFICE CANNOT DIRECT THE TERMS, CONDITIONS OR SPECIFICATIONS WHICH ARE TO BE INCLUDED IN AN INVITATION FOR BIDS. THE FACT THAT A BIDDER MAY BE UNWILLING TO MEET CERTAIN 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:

"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.'

CONCERNING YOUR STATEMENT THAT THE SPECIFICATIONS WERE INADEQUATE FOR SECURING A PRECISION INSTRUMENT SUITABLE FOR THE GOVERNMENT'S NEEDS, OUR OFFICE HAS NEITHER A SCIENTIFIC AND ENGINEERING STAFF NOR TESTING FACILITIES FOR ESTABLISHING OR EVALUATING THE TECHNICAL ASPECTS OF SPECIFICATIONS OR BIDS, AND MUST NECESSARILY RELY ON THE TECHNICAL PERSONNEL EMPLOYED BY THE PROCURING AGENCIES FOR SUCH DETERMINATIONS. THIS CONNECTION THE DEPARTMENT OF THE ARMY REPORTS THAT THE TECHNICAL PERSONNEL INVOLVED IN THIS PROCUREMENT CONSIDER THAT THE SPECIFICATIONS ARE COMPLETELY ADEQUATE AND SET FORTH THE MINIMUM NEEDS OF THE GOVERNMENT, WITHOUT UNDULY RESTRICTING COMPETITION, AND REQUIRE DELIVERY OF ACCURATE CALIBRATION EQUIPMENT SUITABLE FOR THE INTENDED USE. THE CAPABILITY OR STANDING IN THE INDUSTRY OF VOLAND CORPORATION IS NOT QUESTIONED, BUT WE DO NOT UNDERSTAND THAT YOU CONTEND THAT THE OTHER BIDDERS ARE NOT ALSO OF EXCELLENT CAPABILITY AND OF LONG ESTABLISHED STANDING. THE ORIGINAL SPECIFICATIONS WERE AMENDED BY REVISION B OF DRAWING A7910450 AFTER CONSULTATIONS WITH REPRESENTATIVES OF THE BALANCE INDUSTRY INCLUDING THOSE OF BOTH VOLAND CORPORATION AND HENRY TROSMER, INC., FOR THE PURPOSE OF MAKING THE GOVERNMENT'S SPECIFICATIONS LESS RESTRICTIVE AND STILL SATISFY THE MINIMUM REQUIREMENTS. SUCH ACTION IS IN ACCORDANCE WITH THE GOVERNMENT'S ESTABLISHED POLICY OR OBTAINING THE GREATEST POSSIBLE COMPETITIVE PROCUREMENT SITUATION. WE ARE ADVISED THAT THIS TYPE OF BALANCE IN THE QUANTITY DESIRED IS NOT NORMALLY REGARDED AS A SHELF ITEM, BUT ONE TO BE MANUFACTURED IN ACCORDANCE WITH A PLACED ORDER THE SELECTION OF MATERIALS, PRODUCTION, FINISHES AND CRAFTSMANSHIP ARE SATISFIED FULLY BY REPUTABLE COMPANIES IN THE INDUSTRY. SKILL OF THIS PRECISION TRADE AND METHODS AND MATERIALS ARE CONCURRENT WITH THE LATEST "STATE OF THE ART" NORMALLY PROVIDED BY THE INDUSTRY. SUCH EXPERT CRAFTSMANSHIP AND GOOD MATERIALS ARE REQUIRED IN THE PRESENT PROCUREMENT BY THE PROVISIONS OF PARAGRAPH D-1 UNDER GENERAL REQUIREMENTS OF FEDERAL SPECIFICATION AAA-S- 121 WHICH WAS MADE A PART OF THE CONTRACT AND PROVIDES THAT "IN THE CASE OF ANY SCALE THE WORKMANSHIP SHALL CONFORM TO GOOD COMMERCIAL PRACTICE, THE MATERIALS SHALL BE WELL ADAPTED FOR THE PERFORMANCE OF THE SERVICE TO WHICH THEY ARE PUT, AND THE FINISH SHALL BE DURABLE AND APPROPRIATE FOR THE USES INTENDED * * *.' IN ADDITION, THE INVITATION SET FORTH A REQUIREMENT FOR SUBMISSION OF A PREPRODUCTION SAMPLE FOR EVALUATION AND TEST PRIOR TO STARTING PRODUCTION.

FOR THE REASONS SET OUT HEREIN WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN OBJECTING TO THE AWARD, AND YOUR PROTEST IS THEREFORE DENIED.