B-154805, AUG. 10, 1964

B-154805: Aug 10, 1964

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SMITHSONIAN INSTITUTION: REFERENCE IS MADE TO YOUR LETTER OF JULY 24. BIDS WERE SOLICITED FOR FURNISHING ONE POWER SWEEPER. THE SPECIFICATIONS WERE BASED ON THE SPECIFICATIONS OF THE TENNANT SWEEPER MODEL 85 WITH THE FOLLOWING NOTATION: "NOTE: REFERENCE HEREIN TO MANUFACTURER'S BRAND NAMES AND CATALOG NUMBERS IS INTENDED TO BE DESCRIPTIVE AND FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS THE MATERIALS THAT WILL BE SATISFACTORY. BIDS BASED ON FURNISHING COMPARABLE MATERIAL OFFERED UNDER OTHER BRAND NAMES WILL BE CONSIDERED. IT SHALL BE UNDERSTOOD THAT THE BIDDER WILL FURNISH THE ITEMS AS SPECIFIED. TWO BIDS WERE RECEIVED. ONE BID WAS SUBMITTED BY G. 873.57 AND THE SECOND BID WAS SUBMITTED BY THE WAYNE MFG.

B-154805, AUG. 10, 1964

TO SECRETARY, SMITHSONIAN INSTITUTION:

REFERENCE IS MADE TO YOUR LETTER OF JULY 24, 1964, REQUESTING A DECISION AS TO THE PROPRIETY OF AN AWARD OF A CONTRACT MADE TO WAYNE MFG. CO. UNDER INVITATION FOR BIDS NO. 64-SI-957 ISSUED ON JUNE 8, 1964.

UNDER THE CITED INVITATION, BIDS WERE SOLICITED FOR FURNISHING ONE POWER SWEEPER, 42 INCHES "TENNANT MODEL 85 OR EQUAL, IN ACCORDANCE WITH ACCOMPANYING SPECIFICATIONS.' THE SPECIFICATIONS WERE BASED ON THE SPECIFICATIONS OF THE TENNANT SWEEPER MODEL 85 WITH THE FOLLOWING NOTATION:

"NOTE: REFERENCE HEREIN TO MANUFACTURER'S BRAND NAMES AND CATALOG NUMBERS IS INTENDED TO BE DESCRIPTIVE AND FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS THE MATERIALS THAT WILL BE SATISFACTORY. BIDS BASED ON FURNISHING COMPARABLE MATERIAL OFFERED UNDER OTHER BRAND NAMES WILL BE CONSIDERED, PROVIDED THE BIDDER CLEARLY STATES IN HIS BID THE EXACT ITEMS TO BE FURNISHED TOGETHER WITH A COMPLETE DESCRIPTION, INCLUDING THE MANNER AND EXTENT TO WHICH IT DIFFERS FROM THAT SPECIFIED. IN THE ABSENCE OF SUCH INFORMATION, IT SHALL BE UNDERSTOOD THAT THE BIDDER WILL FURNISH THE ITEMS AS SPECIFIED. THE CONTRACTING OFFICER SHALL BE THE JUDGE AS TO THE ACCEPTABILITY OF ALTERNATE ITEMS OFFERED.'

TWO BIDS WERE RECEIVED. ONE BID WAS SUBMITTED BY G. H. TENNANT COMPANY WHICH OFFERED ITS MODEL 85 SWEEPER AS DESCRIBED IN THE INVITATION, WITHOUT MODIFICATION, FOR THE AMOUNT OF $2,873.57 AND THE SECOND BID WAS SUBMITTED BY THE WAYNE MFG. CO. WHICH OFFERED ITS MODEL 1244 FOR THE AMOUNT OF $2,365. WAYNE'S BID WAS ACCOMPANIED BY A STATEMENT SETTING FORTH THE MANNER IN WHICH THE SWEEPER IT PROPOSED TO FURNISH DIFFERED FROM THAT NAMED IN THE INVITATION. AFTER A REVIEW OF THE POINTS OF DIFFERENCE, THE WAYNE SWEEPER WAS REGARDED AS COMPLYING WITH THE INTENT OF THE SPECIFICATIONS AND WAS CONSIDERED AS A COMPARABLE ITEM UNDER THE TERMS OF THE CITED NOTATION. WAYNE, BEING THE LOW BIDDER, WAS AWARDED THE CONTRACT. THEREAFTER, TENNANT PROTESTED THE AWARD TO WAYNE ON THE GROUND THAT WAYNE'S SWEEPER DID NOT MEET THE SPECIFICATIONS AND WAYNE WAS INSTRUCTED TO DEFER ACTION ON THE PURCHASE ORDER ISSUED TO IT.

IN ITS LETTER OF JULY 7, 1964, TO THE CONTRACTING OFFICER, TENNANT LISTS THE FOLLOWING POINTS OF DIFFERENCE BETWEEN THE WAYNE MODEL 1244 SWEEPER AND THE SPECIFICATIONS---

"2. THE WAYNE MODEL 1244 HAS A 16.5 H.P. ENGINE. YOUR SPECIFICATIONS CALL FOR "A GASOLINE ENGINE OF NOT LESS THAN EIGHTEEN (18) H.P.'

"3. THE SPECIFICATIONS STATE THAT "THE SWEEPER SHALL HAVE A HYDRAULIC PROPULSION SYSTEM THAT UTILIZES HIGH PRESSURE, HIGH VOLUME PUMPS TO DRIVE THE VEHICLE.' THE MODEL 1244 DOES NOT UTILIZE HIGH PRESSURE, HIGH VOLUME PUMPS.

YOUR SPECIFICATIONS ALSO STATES "THE HYDRAULIC DRIVE SYSTEM SHALL ELIMINATE CHAINS, GEARS, AND BELTS IN THE FINAL DRIVE TO REDUCE MAINTENANCE AND INCREASE RELIABILITY.' THE WAYNE 1244 USES A COMBINATION OF BELTS AND CHAINS IN THEIR DRIVE SYSTEM.

"5. THIS SECTION STATES "THE SWEEPER SHALL BE EQUIPPED WITH CAM AND-LEVER STEERING.' THE WAYNE 1244 USES A LESS EXPENSIVE PINION AND SECTOR STEERING. IN THE PAST THEY HAVE FURNISHED CAM-AND-LEVER UPON REQUEST.

THIS SECTION ALSO STATES "TURNING RADIUS OF THE SWEEPER SHALL NOT EXCEED 68.' TO THE BEST OF OUR KNOWLEDGE THE WAYNE 1244 CAN NOT MEET THIS REQUIREMENT.

"7.2 "THE MAIN SWEEPING BRUSH SHALL BE EASILY REMOVED FOR REPLACEMENT OR CLEANING IN NO MORE THAN 10 MINUTES.' HERE AGAIN WAYNE'S MODEL 1244 DOES NOT MEET YOUR SPECIFICATIONS. THE 1244 HAS A STEEL BROOM CORE WHICH HAS TO BE REMOVED. EIGHT BRUSH STRIPS ARE THEN REMOVED AND NEW BRUSHES BOLTED TO THE FRAME. EACH STRIP HAS FOUR BOLTS SO YOU HAVE A TOTAL OF 32 BOLTS TO REMOVE AND REPLACE. THIS OPERATION CAN NOT BE PERFORMED BY YOUR OPERATOR IN LESS THAN 10 MINUTES.

"8. "HOPPER SHALL AUTOMATICALLY AND WITHOUT ATTENTION OF THE OPERATOR, ADJUST TO UNEVEN SURFACES AND DEBRIS TO TWO INCHES IN SIZE.' THE WAYNE 1244 WILL NOT PICK UP LIGHT BULKY MATERIAL WITHOUT YOUR OPERATOR MANUALLY RAISING THE FRONT SKIRT, BY MEANS OF A LEVER, TO ALLOW THE DEBRIS INTO THE BROOM COMPARTMENT.

"THE HOPPER AND FILTER UNIT SHALL DISMOUNT FROM THE MACHINE IN NO MORE THAN 10 MINUTES TO FACILITATE INSPECTION AND SERVICE OF MAJOR COMPONENTS.' THE WAYNE MODEL 1244 CAN NOT MEET THIS REQUIREMENT.

"9.2 "A POWER OPERATED SHAKER MECHANISM SHALL BE PROVIDED TO CLEAN THE DUST FROM THE FILTERS.' THE WAYNE 1244 USES THEIR DUST CONTROL VACUUM IN REVERSE TO CLEAN THEIR FILTERS.' THESE POINTS OF DIFFERENCE WERE DULY CONSIDERED IN DETERMINING THE AWARD AND IT WAS THE JUDGMENT OF THE CONTRACTING OFFICER THAT THE SWEEPER OFFERED BY WAYNE DID SUBSTANTIALLY CONFORM TO THE SPECIFICATIONS.

SECTION 1-1.307-1 OF THE FEDERAL PROCUREMENT REGULATIONS PERMITS THE USE OF PURCHASE DESCRIPTIONS IN THE PROCUREMENT OF SUPPLIES ONLY WHEN THE USE OF FORMAL GOVERNMENT SPECIFICATIONS AND STANDARDS IS NOT REQUIRED UNDER APPLICABLE REGULATIONS. ALSO, THAT SECTION PROVIDES THAT PURCHASE DESCRIPTIONS USED IN COMPETITIVE PROCUREMENTS SHALL NOT SPECIFY A PRODUCT HAVING FEATURES WHICH ARE PECULIAR TO THE PRODUCT OF ONE MANUFACTURER, PRODUCER OR DISTRIBUTOR, UNLESS IT HAS BEEN DETERMINED THAT THOSE PARTICULAR FEATURES ARE ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS. WHILE NO REGULAR SPECIFICATION FOR SELF PROPELLED POWER-DRIVEN SWEEPERS HAS BEEN ADOPTED, THERE IS AVAILABLE FOR USE INTERIM FEDERAL SPECIFICATIONS OO-S- 00870A--- ALTHOUGH NOT REQUIRED TO BE USED UNDER SECTION 1-1.305-4 OF FEDERAL PROCUREMENT REGULATIONS--- WHICH IS SUFFICIENTLY BROAD IN ITS REQUIREMENTS SO AS TO PRESERVE THE COMPETITIVE STATUS OF BIDS BY DIFFERENT MANUFACTURERS.

THE LANGUAGE OF THE PURCHASE DESCRIPTION IN THIS CASE, WHILE PATTERNED AFTER THE SPECIFICATIONS FOR THE TENNANT MODEL 85 SWEEPER, WAS RESTRICTIVE TO A CERTAIN EXTENT. FOR EXAMPLE, THE INSTANT SPECIFICATIONS STATED THAT THE SWEEPER SHALL BE EQUIPPED WITH A GASOLINE ENGINE OF NOT LESS THAN 18 HORSEPOWER AND YET AN ENGINE WITH ONLY 16.5 HORSEPOWER WAS CONSIDERED AS MEETING THE SPECIFICATIONS. A NUMBER OF OTHER VARIATIONS FROM THE SPECIFIC REQUIREMENTS OF THE PURCHASE DESCRIPTION WERE PERMITTED IN CONSIDERING THE WAYNE MODEL 1244 SWEEPER TO BE ACCEPTABLE.

WITH REGARD TO THE USE OF "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS, SECTION 1-1.307.5 OF THE FEDERAL PROCUREMENT REGULATIONS PROVIDES THAT SUCH DESCRIPTIONS SHOULD BE USED ONLY WHEN A SUITABLE FORMAL GOVERNMENT SPECIFICATION OR STANDARD OR STANDARDIZATION DOCUMENT APPROVED FOR AGENCY USE IS NOT AVAILABLE AND A PURCHASE DESCRIPTION OF THE TYPE REFERRED TO IN SECTION 1-1.307-3 OF SAID REGULATIONS IS INADEQUATE OR UNAVAILABLE, AND A PURCHASE DESCRIPTION MEETING THE GENERAL REQUIREMENTS OF SECTION 1-1.307-2 OF THE REGULATIONS CANNOT BE PREPARED BECAUSE OF REASONS THERE ENUMERATED. SEE IN THIS REGARD OUR DECISION OF DECEMBER 5, 1963, B- 152422, 43 COMP. GEN. - , INVOLVING THE PURCHASE OF POWER SWEEPERS.

IN VIEW OF THE SPECIFIC REQUIREMENTS FOR THE POWER SWEEPER TO BE FURNISHED AS SET FORTH IN THE SPECIFICATIONS HERE INVOLVED AND THE FACT THAT THE WAYNE MODEL 1244 SWEEPER DID NOT MEET THE SPECIFICATIONS AS TO SIX OF THE NINE ITEMS LISTED IN THE PURCHASE DESCRIPTION, WE MUST CONCLUDE THAT THE BID OF WAYNE WAS NONRESPONSIVE AND THE WAIVING OF THESE REQUIREMENTS WAS IMPROPER. ON THE OTHER HAND, AN AWARD TO TENNANT WOULD HAVE BEEN OPEN TO QUESTION AS BEING MADE UNDER RESTRICTIVE SPECIFICATIONS SINCE IT APPEARS THAT THE PURCHASE DESCRIPTION FOLLOWS CLOSELY THE SPECIFICATIONS OF THE TENNANT MODEL 85 SWEEPER. ACCORDINGLY, THE CONTRACT AWARDED TO WAYNE SHOULD BE CANCELED AND THE PROCUREMENT RESOLICITED SETTING FORTH THE ACTUAL NEEDS OF THE GOVERNMENT.

THE DOCUMENTS SUBMITTED WITH YOUR LETTER ARE RETURNED HEREWITH.