B-157372, SEP. 30, 1965

B-157372, SEP. 30, 1965

TO LEGION UTENSILS CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 30, 1965, WITH ENCLOSURES, PROTESTING THE AWARD MADE BY THE GENERAL SERVICES ADMINISTRATION (GSA), REGION 10, UNDER INVITATION NO. SE-B-20766.

THE INVITATION WAS ISSUED MAY 10 AND BIDS WERE OPENED JUNE 1, 1965. THE INVITATION CONTAINED (PAGE 4) THE FOLLOWING DESCRIPTION OF THE ITEM TO BE PROCURED:

"1. STEAM JACKETED KETTLE, STATIONARY, GAS FIRED COMPLETELY AUTOMATIC, SELF-CONTAINED STEAM JACKETED KETTLE. TYPE 304, STAINLESS STEEL INSIDE AND OUTSIDE, INSIDE FINISHED TO 180 GRIT, OUTSIDE FINISHED TO A SEMI- DELUXE BUFF. STEAM JACKETED FIRE BOX MILD STEEL, KETTLE TO BE INSULATED TO RIM BY 2 INCHES OF HIGH TEMPERATURE INSULATION WITH LOW HEAT TRANSFER COEFFICIENT. KETTLE FURNISHED WITH A SANITARY TANGENT OUTLET, 1 1/2-INCH DIAMETER COMPLETE WITH COMPRESSION DISC VALVE AND PERFORATED STRAINER. KETTLE SHALL BE ASME CONSTRUCTED AND TESTED FOR 30 PSI MAXIMUM WORKING PRESSURE. CONTROLS TO INCLUDE THERMOSTAT, LOW WATER CUT-OFF, PRESSURE LIMIT REGULATOR, PRESSURE GAUGE, WATER LEVEL SIGHT GLASS, ASME APPROVED SAFETY VALVE AND 100 PERCENT SAFETY PILOT BURNER. UNIT CHARGED AT PLANT WITH CHEMICALLY PURE WATER. COVER TO BE SANITARY ONE-PIECE SPUN DOME. STEAM KETTLE SHALL BE MODEL AH AS MANUFACTURED BY GROEN MFG. CO., 1900 PRATT BLVD., ELK GROVE VILLAGE, ILLINOIS, OR EQUAL.'

ITEM 1A REQUESTED BIDS ON 1 EACH, 20-GALLON CAPACITY; ITEM 1B ON 2 EACH, 40-GALLON CAPACITY, OF ABOVE-SPECIFIED ITEM.

THE THREE LOWEST BIDS WERE THAT OF JAX'S FIXTURE AND SUPPLY COMPANY WHOSE TOTAL BID WAS $2,383.24, THE BID SUBMITTED BY YOUR COMPANY WHOSE TOTAL BID PRICE WAS $2,565, AND THAT OF LEONARD HAIMES CO., INC., AT A TOTAL BID PRICE OF $2,592. ACME RESTAURANT SUPPLY CORP., WHOSE TOTAL BID PRICE WAS $2,715, WAS THE FOURTH LOWEST BIDDER. THE THREE LOWEST BIDS, INCLUDING YOURS, WERE REJECTED AS NONRESPONSIVE INASMUCH AS THE MODELS OFFERED VARIED FROM THE SPECIFICATIONS AND THE CONTRACT WAS AWARDED TO ACME RESTAURANT SUPPLY CORP. AS THE LOWEST RESPONSIVE BIDDER.

YOUR BID WAS REJECTED FOR FAILURE TO MEET THE SPECIFICATION REQUIREMENT "UNIT CHARGED AT PLANT WITH CHEMICALLY PURE WATER.' IN REJECTING YOUR BID, AND DENYING YOUR PROTEST, THE GENERAL SERVICES ADMINISTRATION STATED THAT FACTORY-CHARGED UNITS WERE SPECIFIED BY THE REQUISITIONING OFFICE AND THAT THIS WAS A SPECIFIC AND SEPARATE REQUIREMENT IN THE BID DESCRIPTION. THE CONTRACTING OFFICER DETERMINED THAT THE INFORMATION ATTACHED TO YOUR BID CLEARLY INDICATED THAT YOU PROPOSED TO FURNISH UNCHARGED UNITS. THIS DETERMINATION WAS MADE FROM THE LITERATURE ATTACHED TO YOUR BID IN WHICH IT IS STATED THAT "KETTLES MUST BE FILLED BY HAND WITH WATER WHEN INSTALLATION IS COMPLETED AND REPLENISHED AS REQUIRED.' YOU DID NOT SPECIFICALLY MODIFY THIS STATEMENT IN YOUR LITERATURE SUBMITTED WITH YOUR BID. YOUR BID DID STATE THAT ITEM 1A (AND PRESUMABLY 1B) WAS TO BE "COMPLETE AS SPECIFIED.' IN CORRESPONDENCE WITH THE ADMINISTRATIVE OFFICE YOU ALSO POINTED OUT THAT IF THE BUYING OFFICE HAD CONTACTED YOUR COMPANY YOU WOULD HAVE CLARIFIED YOUR WILLINGNESS TO FURNISH CHARGED UNITS.

SECTION 1-1.307-4/B) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) REQUIRES THAT "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. ONE CHARACTERISTIC DEEMED ESSENTIAL BY THE BUYING OFFICE AND BY THE BUREAU OF INDIAN AFFAIRS, FOR WHOSE USE IN ALASKA THE KETTLES WERE TO BE PURCHASED, WAS THAT THE KETTLES BE CHARGED AT THE MANUFACTURER'S PLANT WITH CHEMICALLY PURE WATER.

GSA FORM 1424 WAS INCORPORATED BY REFERENCE IN THE INVITATION FOR BIDS. ARTICLE 24 OF THAT FORM IS THE GOVERNMENT-SPECIFIED BRAND NAMES CLAUSE REQUIRED BY FPR. UNDER THAT CLAUSE A BIDDER OFFERING AN EQUAL PRODUCT MUST IDENTIFY THE PRODUCT BID UPON AND IS RESPONSIBLE FOR PROVIDING INFORMATION NECESSARY FOR THE PURCHASING ACTIVITY TO DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION. THAT CLAUSE FURTHER REQUIRES THAT:

"IF THE BIDDER PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS, HE SHALL (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.'

ARTICLE 24 ALSO STATES THAT ANY MODIFICATION PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS WILL NOT BE CONSIDERED.

FROM THE LITERATURE FURNISHED WITH YOUR BID IT APPEARED THAT YOU DID NOT INTEND TO COMPLY WITH THE REQUIREMENT FOR CHARGING. YOUR STATEMENT WITH THE BID THAT THE ITEM WAS TO BE "COMPLETE AS SPECIFIED" REPRESENTS ONLY A BLANKET OFFER TO COMPLY WHICH WE HAVE HELD ORDINARILY DOES NOT CURE ANY DEFICIENCY IN A BID. 40 COMP. GEN. 132. THE PROHIBITION SET FORTH IN ARTICLE 24 OF THE INVITATION AGAINST PERMITTING ANY CLARIFICATION AFTER BID OPENING IS CLEAR AND PRECLUDED THE PROCURING AGENCY FROM SEEKING FURTHER ADVICE FROM YOU.

SINCE YOUR DESCRIPTIVE LITERATURE INDICATED A NONCOMPLIANCE WITH THE REQUIREMENT OF THE INVITATION, NO LEGAL BASIS EXISTS FOR THIS OFFICE TO OBJECT TO THE ACTION TAKEN BY THE GSA IN REJECTING YOUR BID AS NON RESPONSIVE. FOR THIS REASON YOUR PROTEST MUST BE DENIED.