B-154938, NOV. 16, 1964

B-154938, NOV. 16, 1964

TO REYNOLDS ELECTRIC COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 7, 1964, PROTESTING THE AWARD OF CONTRACT MADE BY THE FEDERAL SUPPLY SERVICE UNDER INVITATION NO. SEB-31847.

THE INVITATION, WHICH WAS ISSUED ON JUNE 16, 1964, BY THE FEDERAL SUPPLY SERVICE REGIONAL OFFICE, SEATTLE, WASHINGTON, SOLICITED BIDS FOR 18 ELECTRIC MIXERS UNDER ITEM NO. 1. THE REGIONAL OFFICE DESIRED TO PROCURE 18 LARGE ELECTRIC MIXERS AND ADVERTISED ON THE BASIS OF "EQUAL TO HOBART MODEL A200T," SETTING FORTH ALSO, AMONG OTHERS, CERTAIN CAPACITY AND SPEED REQUIREMENTS. YOU SUBMITTED A BID OF $331 EACH FOR YOUR MODEL 266 MIXER. IT APPEARS THAT FIVE OTHER BIDS WERE RECEIVED RANGING FROM $334 TO $510 EACH. IN THE EVALUATION OF THE MODELS OFFERED BY THE VARIOUS BIDDERS THE REGIONAL OFFICE DETERMINED THAT YOUR MODEL 266 WAS NOT EQUAL TO THE HOBART A200T SPECIFIED AND, THEREFORE, REJECTED YOUR BID ON THE GROUNDS OF NONRESPONSIVENESS. AS AWARD OF CONTRACT WAS MADE TO BRODIE HOTEL SUPPLY, INCORPORATED, ON THE BASIS OF ITS BID OF $464.90 EACH FOR THE MIXERS COVERED BY ITEM NO. 1 AS BEING THE LOWEST BID MEETING ALL REQUIREMENTS OF THE SPECIFICATIONS FOR THE ITEM AND DELIVERY WAS COMPLETED ON AUGUST 12, 1964.

AS INDICATED, A BRAND NAME PROCUREMENT WAS INVOLVED. IN VIEW OF THIS, THE FEDERAL SUPPLY SERVICE REGIONAL OFFICE INCORPORATED IN THE INVITATION GENERAL SERVICES ADMINISTRATION FORM 1424, ARTICLE 2, OF WHICH IS THE USUAL CLAUSE WITH RESPECT TO GOVERNMENT SPECIFIED BRAND NAMES. SUBPARAGRAPH (C) (1) OF THAT CLAUSE PROVIDES AS FOLLOWS:

"IF THE BIDDER PROPOSES TO FURNISH AN "EQUAL" PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO BIDDERS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE INFORMATION MAY INCLUDE SPECIFIC REFERENCES TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY.'

NOTWITHSTANDING THIS REQUIREMENT OF THE INVITATION, THE GENERAL SERVICES ADMINISTRATION REPORTS THAT YOU FURNISHED NO LITERATURE WHATSOEVER IN SUPPORT OF YOUR LOW BID OF $331 EACH FOR YOUR MODEL 266 MIXER AND ALTHOUGH YOU DID SUPPLY SOME LITERATURE WITH AN ALTERNATE BID OF $498, WHICH WAS MADE BY YOU ON YOUR MODEL 922B MIXER, YOUR BID ON THE LATTER MODEL WAS TOO HIGH FOR CONSIDERATION. WHILE THE REGIONAL OFFICE RECEIVED NO LITERATURE FROM YOU IN THIS REGARD THE IDEAL RESTAURANT SUPPLY COMPANY, INC., ALSO BID ON YOUR MODEL 266 AND SUPPLIED MATERIAL AS TO THE PRODUCT, WHICH MATERIAL WAS USED IN DETERMINING WHETHER THE MODEL CONFORMED TO SPECIFICATION REQUIREMENTS. IN THIS REGARD, THE GENERAL SERVICES ADMINISTRATION POINTS OUT THAT THE MIXERS DESIRED ARE HEAVY DUTY MIXERS TO BE USED WITH GREAT FREQUENCY SO THAT ONLY WELL DESIGNED AND STRONGLY CONSTRUCTED ITEMS WOULD SERVE THE END USE. THE REGIONAL OFFICE ENDEAVORED TO MEASURE THE FEATURES OF YOUR MODEL 266 AGAINST THE HOBART A200T, THE BRAND NAME SPECIFIED, BY ADOPTING SEVERAL CRITERIA WHICH, AMONG OTHERS, HAD TO DO WITH THE PRESENCE OF AN AUTOMATIC TIMER, THE USE OF BALL BEARINGS IN THE MOTOR, THE PRESENCE OF HARDENED GEARS IN THE MECHANISM, AND OTHER GENERAL CHARACTERISTICS OF A HEAVY DUTY MIXER. HOWEVER, FROM THE LITERATURE ON HAND FOR JUDGING THE COMPARABILITY OF YOUR MODEL 266 IT COULD NOT BE FOUND THAT YOU WERE OFFERING A PRODUCT OF SUCH ESSENTIAL CHARACTERISTICS AS NAMED ABOVE--- EXCEPT FOR THE HARDENED GEARS WHICH FEATURE APPARENTLY WAS DISCOVERED UPON A SUBSEQUENT REVIEW.

THE FOREGOING FINDINGS OF THE REGIONAL OFFICE WERE REVIEWED BY THE GENERAL SERVICES ADMINISTRATION AND THE ADMINISTRATION ADVISES THAT THERE IS LITTLE DOUBT THAT THE REQUIRED FEATURES REPRESENT NECESSARY AND SALIENT CHARACTERISTICS, AND THAT THE INVITATION SHOULD HAVE SPECIFIED THEM. THE GENERAL SERVICES ADMINISTRATION FURTHER ADVISES, HOWEVER, THAT INSOFAR AS THE TIMER IS CONCERNED THE REQUIREMENT THEREFOR WAS IN EFFECT SPECIFIED SINCE THE SOLE DIFFERENCE BETWEEN THE HOBART A200 AND THE HOBART A200T IS THAT THE LATTER MODEL HAS AN AUTOMATIC TIMER. MOREOVER, IT WOULD APPEAR MOST PROBABLE THAT YOU WERE AWARE OF THE NEED OF THE FEDERAL SUPPLY SERVICE FOR A TIMER SINCE IN YOUR LETTER OF JUNE 24, 1964, TENDERING YOUR ALTERNATE HIGHER PRICED BID IT WAS STATED "/TIMER OPTIONAL)" IN PARAGRAPH 1 OF THE "SPECIFICATIONS" DEALING WITH THE 900 SERIES. FROM THE LITERATURE THAT WAS AVAILABLE TO THE ADMINISTRATION HOWEVER, IT WAS CLEAR THAT YOUR MODEL 266 DOES NOT HAVE A TIMER AND, THEREFORE, IS NOT IN COMPLIANCE WITH THE FEDERAL SUPPLY SERVICE NEEDS AND NOT EQUAL TO THE HOBART MODEL A200T.

AS MAY BE SEEN FROM THE FOREGOING, THE DETERMINATION TO REJECT YOUR BID WAS MADE ONLY AFTER A COMPLETE EVALUATION OF THE TECHNICAL ASPECTS OF THE LITERATURE PERTAINING TO YOUR MODEL 266 ELECTRIC MIXER. IN THIS CONNECTION, OUR OFFICE CONSISTENTLY HAS HELD THAT THE DETERMINATION AS TO WHETHER A PARTICULAR PRODUCT OFFERED BY A BIDDER COMPLIES WITH SPECIFICATION REQUIREMENTS IS PRIMARILY A FUNCTION OF THE DEPARTMENT OR AGENCY CHARGED WITH THE ADMINISTRATION OF THE CONTRACT--- IN THIS INSTANCE THE GENERAL SERVICES ADMINISTRATION. SUCH A DETERMINATION MUST, OF NECESSITY, BE BASED UPON FACTUAL INFORMATION AVAILABLE TO THE DEPARTMENT OR AGENCY PRIOR TO AWARD AND, IN THE ABSENCE OF A SHOWING OF BAD FAITH OR THE LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION, OUR OFFICE WILL NOT OBJECT TO THE CONCLUSION REACHED. THERE IS NEITHER ANY SHOWING IN THE RECORD BEFORE US OF BAD FAITH OR THE LACK OF SUCH A REASONABLE FACTUAL BASIS FOR THE DETERMINATION MADE BY THE FEDERAL SUPPLY SERVICE IN THIS MATTER.

ACCORDINGLY, WE FIND NO LEGAL OBJECTION TO THE ACTION TAKEN BY THE FEDERAL SUPPLY SERVICE IN AWARDING A CONTRACT TO THE BRODIE HOTEL SUPPLY, INC., AND, THEREFORE, YOUR PROTEST IS DENIED.