B-155998, APR. 5, 1965

B-155998: Apr 5, 1965

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE NEW YORK AIR BRAKE COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 25. THE INVITATION WAS ISSUED AUGUST 17. WERE AS FOLLOWS: CHART KINNEY VACUUM DIVISION $27. 850 LESS A DISCOUNT OF 1/2 PERCENT FOR 20 DAYS THE CONTRACTING OFFICER DETERMINED YOUR BID WAS NONRESPONSIVE AND ON JANUARY 22. YOU WERE ADVISED BY A LETTER OF THE SAME DATE THAT THE REASON YOUR BID WAS DETERMINED NONRESPONSIVE WAS BECAUSE: "THE BID SUBMITTED TO YOU WAS DETERMINED NONCONFORMING IN THAT THE MOTORS OFFERED WERE NOT IN ACCORDANCE WITH THE SPECIFICATION CITED UNDER THE INVITATION. WHEREAS THE MOTORS OFFERED UNDER YOUR BID WERE IN ACCORDANCE WITH SPECIFICATION MIL-M-17059. " THAT THE IFB DID NOT STATE SPECIFICALLY THAT THE MOTOR RPM WAS OF ANY CONSEQUENCE AND GOOD ENGINEERING PRACTICE FAVORS YOUR PROPOSAL IN THIS RESPECT.

B-155998, APR. 5, 1965

TO KINNEY VACUUM DIVISION, THE NEW YORK AIR BRAKE COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 25, 1965, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST AWARD OF A CONTRACT BY THE U.S. NAVY PURCHASING OFFICE TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 600-43- 65-S.

THE INVITATION WAS ISSUED AUGUST 17, 1964, AND SOLICITED BIDS ON FURNISHING 28 VACUUM PUMP ASSEMBLIES FOR LOX SYSTEM, AND OTHER RELATED ITEMS. THE SPECIFICATIONS PROVIDED THAT "MOTORS SHALL CONFORM TO MILITARY SPECIFICATIONS MIL-M-17060B (SHIPS) ...' THE TWO BIDS RECEIVED AND OPENED ON SEPTEMBER 25, 1964, WERE AS FOLLOWS:

CHART

KINNEY VACUUM DIVISION $27,090

VACUUM SYSTEM, INC. $27,850 LESS A DISCOUNT

OF 1/2 PERCENT FOR 20

DAYS

THE CONTRACTING OFFICER DETERMINED YOUR BID WAS NONRESPONSIVE AND ON JANUARY 22, 1965, MADE AWARD OF A CONTRACT TO THE OTHER BIDDER. YOU WERE ADVISED BY A LETTER OF THE SAME DATE THAT THE REASON YOUR BID WAS DETERMINED NONRESPONSIVE WAS BECAUSE:

"THE BID SUBMITTED TO YOU WAS DETERMINED NONCONFORMING IN THAT THE MOTORS OFFERED WERE NOT IN ACCORDANCE WITH THE SPECIFICATION CITED UNDER THE INVITATION. THE INVITATION SPECIFICALLY PROVIDED FOR THE MOTORS TO BE IN ACCORDANCE WITH SPECIFICATION MIL-M-17060, WHEREAS THE MOTORS OFFERED UNDER YOUR BID WERE IN ACCORDANCE WITH SPECIFICATION MIL-M-17059. IN VIEW OF THE FOREGOING, YOUR BID COULD NOT BE CONSIDERED FOR AWARD.'

THE SUBSTANCE OF YOUR PROTEST APPEARS TO BE THAT THE DIFFERENCES BETWEEN THE MOTORS AS SPECIFIED IN MILITARY SPECIFICATION MIL-M-17059 AND MIL-M- 17060B (SHIPS) RELATED TO FRAME SIZE AND MOTOR RPM; THAT THE DIFFERENCE IN FRAME SIZE WOULD NOT AFFECT "QUALITY, PERFORMANCE, OR DUTY; " THAT THE IFB DID NOT STATE SPECIFICALLY THAT THE MOTOR RPM WAS OF ANY CONSEQUENCE AND GOOD ENGINEERING PRACTICE FAVORS YOUR PROPOSAL IN THIS RESPECT; AND THAT THE PUMP YOU PROPOSE TO FURNISH WOULD GIVE BETTER PERFORMANCE AT LESS COST. WE ARE ADVISED THAT THE MOTOR SPECIFICATION TO WHICH YOU BID COVERS FRACTIONAL-HORSEPOWER MOTORS, WHEREAS THE SPECIFICATION REFERENCED IN THE INVITATION COVERS INTEGRAL HORSEPOWER MOTORS. CITATION OF THE LATTER SPECIFICATION SEEMS CLEARLY TO INDICATE THAT A FRACTIONAL-HORSEPOWER MOTOR WOULD NOT BE ACCEPTABLE.

SINCE YOU STATED IN YOUR BID THAT YOU OFFERED A PUMP WITH A MOTOR OF 3/4 HP., CONFORMING TO MIL-M-17059, A DIFFERENT SPECIFICATION, YOUR BID WAS NONRESPONSIVE AND COULD NOT HAVE BEEN ACCEPTED UNLESS THIS DEVIATION FROM THE SPECIFICATIONS CAN BE CONSIDERED AN INFORMAL OR MINOR IRREGULARITY WHICH DOES NOT AFFECT EITHER THE PRICE, QUALITY OR QUANTITY OF THE ITEMS OFFERED AND THEREFORE IS NOT PREJUDICIAL TO OTHER BIDDERS. 40 COMP. GEN. 458. THE DETERMINATION OF WHETHER TECHNICAL PERFORMANCE REQUIREMENTS ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, AND THE DETERMINATION OF THE MATERIALITY OF THE DIFFERENCES BETWEEN THE OFFERED PRODUCT AND THE ONE CALLED FOR IN THE SPECIFICATIONS IS NOT ORDINARILY WITHIN THE PROVINCE OF OUR OFFICE, BUT IS THE RESPONSIBILITY OF THE PROCURING ACTIVITY. B 158968, JUNE 18, 1964; B-148277, MAY 10, 1962.

IN THE INSTANT CASE, YOUR ARGUMENT THAT A FRACTIONAL-HORSEPOWER MOTOR CONFORMING TO MIL-M-17059 WOULD BE MORE BENEFICIAL TO THE GOVERNMENT THAN AN INTEGRAL HORSEPOWER MOTOR CONFORMING TO MIL-M 17060B HAS BEEN CONSIDERED BY THE ADMINISTRATIVE AGENCY CONCERNED AND DETERMINED TO BE WITHOUT MERIT. IN ANY EVENT, YOUR OBJECTION TO THE SPECIFICATIONS SHOULD HAVE BEEN PRESENTED PRIOR TO THE TIME FOR BIDDING SO THAT THE INVITATION MIGHT HAVE BEEN AMENDED IF THE NAVY AGREED WITH YOUR POSITION, THUS ENABLING OTHER BIDDERS TO COMPETE ON EQUAL TERMS.

SINCE IT IS THE NAVY'S POSITION THAT A MOTOR CONFORMING TO THE SPECIFICATIONS OF THE INVITATION WAS AN ESSENTIAL REQUIREMENT OF THE INVITATION, AND SINCE THE REQUIREMENT WAS CLEARLY STATED AND YOU DID NOT OFFER TO MEET IT, WE FIND NO BASIS FOR OBJECTING TO THE ACTION TAKEN. THERE IS NO REQUIREMENT THAT THE GOVERNMENT 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 PROCUREMENT ACTIVITY, REASONABLY MEET THE ACTIVITY'S NEEDS. 153169, MARCH 20, 1964.

IN THE ABSENCE OF ANY LEGAL BASIS UPON WHICH WE MAY OBJECT TO AWARD OF THIS CONTRACT, YOUR PROTEST IS DENIED.