B-154478, JUL. 7, 1964

B-154478, JUL. 7, 1964

TO MATHEWS CONVEYER COMPANY WEST COAST:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 16, 1964, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AWARD OF A CONTRACT TO THE ALVEY FERGUSON COMPANY UNDER INVITATION FOR BIDS NO. 600-845-64.

ON APRIL 13, 1964, THE UNITED STATES NAVY PURCHASING OFFICE ISSUED THE ABOVE INVITATION SOLICITING BIDS FOR AN AUTOMATED MATERIALS HANDLING CONVEYER SYSTEM FOR INSTALLATION AT THE NAVAL SUPPLY CENTER, LONG BEACH, CALIFORNIA. THE INVITATION REQUIRED THAT EACH BIDDER FURNISH CERTAIN DESCRIPTIVE LITERATURE FOR USE IN BID EVALUATION AND IN MAKING AWARD. INSOFAR AS THE SUBMISSION OF TECHNICAL DATA WAS CONCERNED, PARAGRAPH 3 OF THE ATTACHED "PURCHASE DESCRIPTION" PROVIDES:

"3. TECHNICAL DATA.

THE BIDDER MUST SUBMIT WITH HIS BID THE FOLLOWING DEFINITIVE DATA

(BIDS RECEIVED WITHOUT THIS DATA WILL BE CONSIDERED NON RESPONSIVE):

"3.1 SPECIFIC LAYOUT OF THE SYSTEM OFFERED AND DETAILED ENGINEERING AND DIMENSIONAL DATA FULLY ILLUSTRATING AND DESCRIBING EQUIPMENT TO BE PROVIDED. THIS INCLUDES THE FOLLOWING:

A. GRAVITY CONVEYOR, ROLLER AND WHEEL TYPE, IF APPLICABLE

B. GRAVITY CURVES, ROLLER AND WHEEL TYPE, IF APPLICABLE

C. LIVE ROLLER CONVEYOR

D. POWER ROLLER CURVES

E. LIVE ROLLER TRANSFER UNITS

F. ACCUMULATION CONVEYOR

G. TRANSPORTATION CONVEYOR

H. METERING BELT CONVEYOR

I. INCLINE BELT CONVEYOR INCLUDING FEEDER AND NOSE-OVER SECTIONS

J. DECLINE BELT CONVEYOR INCLUDING FEEDER AND NOSE-OVER SECTIONS

K. FLOW RACKS

"3.2 SPECIFIC TECHNICAL DESIGN AND DESCRIPTIVE DATA SUFFICIENT TO ASCERTAIN ENGINEERING AND FUNCTIONAL ADEQUACY OF SENSING DEVICES, LIMIT SWITCHES, DIVERTER, STOPS, TOTE BOX SIGNAL READING DEVICE, TOTE BOX SIGNAL DEVICE, CONTROL CONSOLE, AND THE MEMORY SYSTEMS.'

BY CORRESPONDENCE DATED JUNE 22, 1964, THE DEPARTMENT OF THE NAVY ADVISES THAT YOUR BID WAS REJECTED FOR THE FOLLOWING REASONS:

"/A) ITEM OFFERED DOES NOT MEET THE TECHNICAL REQUIREMENTS OF THE PURCHASE DESCRIPTION, DEVIATIONS ARE CONSIDERED MAJOR AND ARE NOT ACCEPTABLE;

"/B) BIDDER FAILED TO FURNISH COMPLETE TECHNICAL DATA AS REQUIRED BY SECTION 3 OF THE PURCHASE DESCRIPTION, (E.G., ENGINEERING AND DIMENSIONAL DATA COVERING THE ACCUMULATION CONVEYOR, TECHNICAL DESIGN AND DESCRIPTIVE DATA NOT FURNISHED FOR THE CONTROL CONSOLE AND THE TOTE BOX SIGNAL EVICE);

"/C) BIDDER HAS OFFERED SUBSTITUTE EQUIPMENT (E.G. WHEEL CONVEYOR CURVES IN LIEU OF ROLLER CONVEYOR CURVES).'

IN YOUR LETTER OF PROTEST TO OUR OFFICE DATED JUNE 16, 1964, YOU TAKE THE POSITION THAT YOUR BID IS RESPONSIVE TO THE INVITATION. SPECIFICALLY YOU STATE:

"REGARDING THE CONTENTION THAT WE DID NOT SUPPLY SUFFICIENT INFORMATION ON THE ACCUMULATION CONVEYOR, WE POINT OUT THAT WE SUPPLIED A CROSS SECTION DRAWING OF OUR (ZPLR) ZERO PRESSURE LIVE ROLLER, DWG. M-12069-6, AND ON PAGE 13 OF OUR SPECIFICATIONS IS SUFFICIENT DATA TO ENABLE SOMEONE TO BUILD THE EQUIPMENT. BY COMPARISON THE ALVEY FERGUSON BID GIVES VERY LITTLE DESCRIPTION.

"REGARDING THE CONTROL SYSTEM, WE GAVE A THOROUGH DESCRIPTION OF THE PROPOSED OPERATION AND A PHOTOGRAPH OF A TYPICAL CONTROL CONSOLE. WE DID NOT FURNISH A DRAWING BECAUSE YOUR SPECIFICATION H33-64-23A DATED APRIL 15, 1964 REQUESTS DRAWINGS TO BE SUBMITTED FOR APPROVAL PRIOR TO FABRICATION AND NOT NECESSARILY WITH OUR QUOTATION.

"CONCERNING THE TOTE BOX SIGNAL CARD REQUIREMENTS, WE STIPULATED IN OUR SPECIFICATIONS PAGE 17, THAT THEY WILL BE OF THE RETRO-REFLECTIVE TYPE AND RATHER THAN SUBMIT DIMENSIONAL DATA, WE REFERRED TO YOUR SPECIFICATIONS PAGE 44, WHICH IS IN CONSIDERABLE DETAIL, INCLUDING DIMENSIONAL TOLERANCES.

"REGARDING OUR SUBSTITUTION OF WHEEL CONVEYER FOR ROLLER CONVEYER ON TWO SMALL CURVES, WE MADE THIS SUBSTITUTION BECAUSE THE EXISTING CONVEYER, WHICH WE FURNISHED AND OF WHICH THE PROPOSED SYSTEM IS AN EXTENSION, HAS ROLLER CURVES WHICH HAVE PROVEN TO BE SLUGGISH WHEN HANDLING LIGHT PACKAGES. WE, THEREFORE, PROPOSED THE MORE LIVELY WHEEL CURVES FOR A MORE SATISFACTORY JOB. WE CAN, OF COURSE, SUPPLY ROLLER CURVES IF YOU DESIRE. IN ANY EVENT, WE CONTEND THAT THIS SUBSTITUTION IS A VERY MINOR POINT AND CERTAINLY LESS OF A DIRECT DEVIATION FROM BOTH THE WORDING AND INTENT OF YOUR SPECIFICATIONS THAN ALVEY FERGUSON'S QUOTING ON ONE CARD READER ON YOUR SPECIFICATIONS 24.3.2.5, WHICH DEFINITELY CALL FOR ONE EACH, OR A TOTAL OF FIVE. LIKEWISE, ALVEY FERGUSON IS NOT COMPLYING WITH YOUR SPECIFICATIONS OF 4 IN. CENTERS ON THEIR POWERED CURVES SINCE THEY HAVE 4 1/2 IN. CENTERS.

"ON BUSANDA SPECIFICATIONS 24.1.8 YOU STATE "NO HOLDING DEVICES PERMITTED.' ALVEY FERGUSON NOT ONLY PROPOSES HOLDING DEVICES BUT THEIR DESCRIPTION DOES NOT SAY HOW IT WILL FUNCTION. THEY SEEM TO BE UNSURE THEMSELVES, BECAUSE THEY MAKE A STATEMENT TO THE EFFECT THAT AN ACCELERATING DEVICE MAY BE REQUIRED. AS A CONVEYER ENGINEER OF LONG EXPERIENCE, I CAN ASSURE YOU THAT AN ACCELERATING DEVICE WILL DEFINITELY BE REQUIRED BUT ALVEY FERGUSON DID NOT SKETCH IT NOR DESCRIBE IT. WE, THEREFORE, CONTEND THAT ALVEY FERGUSON'S DESCRIPTION IS INADEQUATE AND THAT FURTHERMORE, WHAT THEY PROPOSE FOR AN AUTOMATIC STOP IS IN DIRECT CONFLICT WITH YOUR SPECIFICATIONS.

"WE REQUEST THAT YOU CONFIRM YOUR ADVICE THAT A BIDDER MAY USE UP TO 50 PERCENT FOREIGN MADE COMPONENTS IN A CONVEYER SYSTEM AND STILL CERTIFY "NONE," AS ALVEY FERGUSON DID, UNDER THE "BUY AMERICAN ACT" CLAUSE. WOULD LIKE TO BE SURE OF THIS INFORMATION BECAUSE IT WOULD BE POSSIBLE TO BID A LOWER PRICE BY USING JAPANESE CHAIN AND BELTING AND BELGIAN STEEL.'

ALTHOUGH YOU CONTEND THAT SUFFICIENT INFORMATION WAS SUBMITTED FOR EVALUATION OF THE ACCUMULATION CONVEYER A REPRESENTATIVE OF THE NAVY ADVISES THAT THE DRAWINGS SUBMITTED FAILED TO INDICATE HOW THE "ACCUMULATION FEATURE" WOULD WORK. AS A MATTER OF FACT WE UNDERSTAND THAT ONE COULD NOT TELL WHETHER YOU WERE ACTUALLY OFFERING AN "ACCUMULATION TYPE" OF CONVEYER. THE COMPONENTS OR SUB-ASSEMBLIES MENTIONED ON PAGE 13 OF YOUR SPECIFICATIONS ARE STANDARD ITEMS WHICH ARE USED IN MOST TYPES OF POWERED UNITS. IN CONTRAST, ALVEY FERGUSON'S BID NOT ONLY EXPLAINS THE "ACCUMULATION FEATURE," BUT INDICATES HOW IT WOULD WORK IN THE SYSTEM. THE NAVY CONCLUDES THAT, TAKEN TOGETHER, ALVEY FERGUSON'S TEXT AND DRAWINGS ARE CLEARLY SUFFICIENT FOR A PROPER EVALUATION.

ON THE QUESTION OF THE CONTROL SYSTEM, THE NAVY TAKES EXCEPTION TO YOUR VIEWS AND HAS POINTED OUT THAT YOUR BID IS NONRESPONSIVE IN THAT IT FAILED TO DEPICT THE DESIGN AND FUNCTIONING OF THE CONTROL CONSOLE. IN EFFECT, ALL YOU HAVE SHOWN IS A TYPICAL CONSOLE HOUSING UNIT WHICH IS OF NO VALUE IN ASCERTAINING THE "ENGINEERING AND FUNCTIONAL ADEQUACY" OF THE CONTROL CONSOLE, AS REQUIRED BY PARAGRAPH 3.2 OF THE PURCHASE DESCRIPTION.

THE NAVY CRITICIZES YOUR RESPONSE ON THE TOTE BOX SIGNAL DEVICE ON THE GROUND THAT THE INFORMATION FURNISHED FAILED TO SHOW HOW THE DEVICE WAS TO BE ACTIVATED. WE UNDERSTAND THAT THERE ARE VARIOUS TYPES OF ACTIVATOR DEVICES AVAILABLE INCLUDING SLIDER-BARS AND TAB ARRANGEMENTS. SINCE THE TYPE OF ACTIVATOR DEVICE WAS NOT SPECIFIED, IT COULD NOT BE DETERMINED WHETHER THE TABS COULD IN FACT BE SET OR RESET WITHOUT RESTRICTION. VIEW OF THE VERY LIMITED OVERALL THICKNESS OF THE SIGNAL DEVICE (NOT TO EXCEED 7/32 INCH INCLUDING THE ATTACHMENT PLATE) WE BELIEVE IT MAY FAIRLY BE SAID THAT ITS "ENGINEERING AND FUNCTIONAL ADEQUACY" COULD NOT BE ASCERTAINED WITHOUT DESCRIPTIVE DATA AS TO THE MATERIALS AND MECHANICAL MEANS TO BE USED.

IN REGARD TO THE ATTEMPTED SUBSTITUTION OF WHEEL CONVEYERS FOR ROLLER CONVEYERS THE NAVY STATES THAT ROLLER CONVEYERS WERE CALLED FOR SINCE THEY HAVE ENCOUNTERED EXTENSIVE WHEEL PENETRATION ON ORIGINAL CARTONS WHENEVER WHEEL CONVEYERS WERE USED. IT SHOULD BE NOTED THAT YOUR BID DID NOT SPECIFICALLY OFFER 28 WHEELS TO THE FOOT, AS WOULD BE REQUIRED ON CURVED SECTIONS IN ORDER TO MINIMIZE THE POSSIBILITY OF CARTON PENETRATION. WHILE YOU APPARENTLY RECOGNIZE THAT THE ATTEMPTED SUBSTITUTION WAS AN UNAUTHORIZED DEVIATION, YOU SUGGEST THAT THE MINIMUM DEVIATION WAS LESS THAN ALVEY FERGUSON'S DEVIATION ON THE CARD READERS AND ON THE POWERED CURVES. INSOFAR AS THE READERS ARE CONCERNED THE TECHNICAL DATA SUBMITTED BY ALVEY FERGUSON SHOWS A SINGLE COMBINATION MEMORY SENSITIVE READING DEVICE TO CONTROL DIVERSION OF TOTE BOXES ONTO EACH OF THE FIVE CUSTOMER SORT LINES WHICH RESULTS IN MEETING ALL OF THE PERFORMANCE REQUIREMENTS. THEREFORE, ALTHOUGH EACH OF THE CONVEYER UNITS (I.E. NOS. 68-72) REQUIRED TOTE BOX SIGNAL READING DEVICES THERE WAS NO NECESSITY FOR INDIVIDUAL HOUSING BUT EACH COULD BE HOUSED IN ONE MASTER UNIT AS OFFERED BY ALVEY FERGUSON. REGARDING THE 4 OR 4 1/2 INCH CENTERS, EXAMINATION OF THE SPECIFICATIONS FAILED TO DISCLOSE ANY REQUIRED ROLLER SPACING ON THE POWER CURVED SECTIONS. THE NAVY'S INTENDED OMISSION OF ROLLER SPACING ON THE POWER CURVED SECTIONS IS IN ACCORDANCE WITH ESTABLISHED PRACTICE.

YOU HAVE INTERPRETED ALVEY FERGUSON'S BID TO MEAN THAT IT INTENDS TO SUPPLY A "HOLDING DEVICE.' TECHNICAL REPRESENTATIVES OF THE NAVY HOWEVER, HAVE INTERPRETED THE INTENDED DEVICE TO BE IN THE NATURE OF A "POSITIONING AND RETAINING DEVICE," RATHER THAN A "HOLDING DEVICE.' WE HAVE BEEN ADVISED THAT OMISSION OF DETAILED INFORMATION ON A POSSIBLE ACCELERATING UNIT DID NOT AFFECT THE ENGINEERING ADEQUACIES OF THE INTENDED ITEM SINCE THE NAVY MAINTAINS THAT AN ACCELERATING UNIT IS NOT NEEDED WITH POWERED ROLLERS AT THE EXITS OF THE LINES.

CONCERNING THE INTENDED USE OF FOREIGN COMPONENTS IN THE MANUFACTURE OF THE CONTEMPLATED SYSTEM YOUR ATTENTION IS INVITED TO EXECUTIVE ORDER NO. 10582, WHICH IN PERTINENT PART, PROVIDES AS FOLLOWS:

"SEC. 2 (A) FOR THE PURPOSE OF THIS ORDER MATERIALS SHALL BE CONSIDERED TO BE OF FOREIGN ORIGIN IF THE COST OF THE FOREIGN PRODUCTS USED IN SUCH MATERIALS CONSTITUTES FIFTY PERCENTUM OR MORE OF THE COST OF ALL THE PRODUCTS USED IN SUCH MATERIALS.'

IN IMPLEMENTATION THEREOF PARAGRAPH V OF THE SUPPLEMENTAL PROVISIONS OF THE INVITATION REQUIRED BIDDERS TO CERTIFY THAT EACH "END PRODUCT" WAS A DOMESTIC SOURCE END PRODUCT, MEANING THAT, AS DEFINED IN THE CONTRACT BUY AMERICAN CLAUSE, OVER 50 PERCENT OF ITS COMPONENTS WERE KNOWN TO HAVE BEEN PRODUCED OR MANUFACTURED WITHIN THE UNITED STATES. THE "END PRODUCT" BEING PURCHASED WAS AN INSTALLED AUTOMATED MATERIALS HANDLING SYSTEM.

THE QUESTION AS TO WHETHER THE TECHNICAL PERFORMANCE REQUIREMENTS ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, AND THE QUESTION AS TO THE MATERIALITY OF THE DIFFERENCES BETWEEN YOUR PRODUCT AND THE ONE CALLED FOR IN THE SPECIFICATIONS, ARE NOT ORDINARILY CONSIDERED TO BE WITHIN THE JURISDICTION OF THIS OFFICE. IN OUR DECISION, B-139830, DATED AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * *

IN THIS REGARD, WE HELD IN OUR DECISION, B-143389, DATED AUGUST 26, 1960, AS FOLLOWS:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

" "IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *"

IN VIEW THEREOF WE ARE NOT IN A POSITION TO OBJECT TO AWARD BEING MADE TO ALVEY FERGUSON PROVIDED THEIR BID IS OTHERWISE IN ORDER. YOUR PROTEST IS THEREFORE DENIED.