B-159024, AUG. 30, 1966

B-159024: Aug 30, 1966

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TO GAYSTON CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 20. THE SUBJECT OF INVITATION WAS ISSUED ON MARCH 10. NINE BIDS WERE RECEIVED AND OPENED ON APRIL 11. YOU WERE FIFTH LOW BIDDER AT A UNIT PRICE OF $28.88. IT IS REPORTED THAT THE AWARD IS BEING WITHHELD PENDING OUR DECISION ON YOUR PROTEST. IT IS YOUR CONTENTION THAT BECAUSE THE ENGINEERING REPORT CALLS FOR DISREGARDING THE "OR EQUAL" REFERENCE ON THE GAGE COMPONENT DRAWINGS. YOU CONCLUDE THAT ONLY YOUR BID IS RESPONSIVE TO THE SPECIFICATIONS AND YOU ARE THEREFORE ENTITLED TO THE AWARD. THE DRAFTING OF SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION WHETHER PRODUCTS OFFERED MEET THOSE SPECIFICATIONS ARE MATTERS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED. 17 COMP.

B-159024, AUG. 30, 1966

TO GAYSTON CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 20, 1966, PROTESTING AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER BY THE RED RIVER ARMY DEPOT, TEXARKANA, TEXAS, UNDER INVITATION FOR BIDS (IFB) NO. AMC-/T/-41117 -66-0551.

THE SUBJECT OF INVITATION WAS ISSUED ON MARCH 10, 1966, FOR A QUANTITY OF GAGE ASSEMBLIES IN ACCORDANCE WITH ORDNANCE DRAWING 10899180, AS MODIFIED BY ENGINEERING EVALUATION REPORT NO. 10899180, REVISION B DATED MAY 21, 1965. DRAWING NO. A5344989 FOR THE HOSE COMPONENT OF THE GAGE ASSEMBLY REFERS TO TWO MANUFACTURERS' PART NUMBERS, NAMELY, KENT-MOORE CORPORATION PART NO. J-1319-A-4 OR EQUAL, AND V. L. GRAF COMPANY PART NO. 6104-4-4X18 OR EQUAL. THE ENGINEERING REPORT INCLUDES THE FOLLOWING NOTIFICATION:

"REFERENCE DRAWING OF V. L. GRAF CO., DETROIT, MICH. THEIR PART NO. 6104- 4-4X18 GRAFCO HOSE ASSEMBLY. INCOMPLETE FOR MANUFACTURE. DISREGARD "OR EQUAL," NOT APPLICABLE TO THIS OCUREMENT.'

IN RESPONSE TO THE IFB, NINE BIDS WERE RECEIVED AND OPENED ON APRIL 11, 1966. RADAL METAL CRAFT, INCORPORATED, SUBMITTED THE LOW BID AT A UNIT PRICE OF $15.07. YOU WERE FIFTH LOW BIDDER AT A UNIT PRICE OF $28.88. ALTHOUGH THE CONTRACTING OFFICER HAS CONCLUDED, AFTER CONSULTATION WITH OTHER ADMINISTRATIVE PERSONNEL, THAT HE MAY PROPERLY AWARD THE CONTRACT TO RADAL, IT IS REPORTED THAT THE AWARD IS BEING WITHHELD PENDING OUR DECISION ON YOUR PROTEST.

BY LETTER DATED APRIL 20, 1966, TO THE PROCURING ACTIVITY, WITH A COPY TO OUR OFFICE, YOU PROTESTED THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN YOUR COMPANY. IT IS YOUR CONTENTION THAT BECAUSE THE ENGINEERING REPORT CALLS FOR DISREGARDING THE "OR EQUAL" REFERENCE ON THE GAGE COMPONENT DRAWINGS, ONLY COMPONENTS OF THE SPECIFIED MANUFACTURERS MAY BE INCORPORATED IN THE GAGE ASSEMBLY. SINCE ONLY YOUR COMPANY HAD RECEIVED A QUOTATION FOR THE GRAFCO HOSE FROM V. L. GRAF PRIOR TO BID OPENING, YOU CONCLUDE THAT ONLY YOUR BID IS RESPONSIVE TO THE SPECIFICATIONS AND YOU ARE THEREFORE ENTITLED TO THE AWARD.

THE DRAFTING OF SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION WHETHER PRODUCTS OFFERED MEET THOSE SPECIFICATIONS ARE MATTERS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED. 17 COMP. GEN. 554. THE ADMINISTRATIVE REPORT FURNISHED IN THE INSTANT CASE INDICATES THAT EITHER THE KENT-MOORE OR GRAF HOSE WILL SATISFY ITS NEEDS AND, THEREFORE, THE RADAL OFFER TO FURNISH THE KENT-MOORE HOSE IS ACCEPTABLE. ON THE OTHER HAND, WHETHER THE SPECIFICATIONS WERE SUFFICIENTLY DEFINITE TO INSURE THE FULL AND FREE COMPETITION REQUIRED IN ORDER TO EFFECT A VALID AWARD UNDER THE STATUTES AND REGULATIONS GOVERNING PROCUREMENT BY FORMAL ADVERTISING, IS A MATTER WITHIN THE PROVINCE OF OUR OFFICE. 38 COMP. GEN. 190. IN THIS CONNECTION, IT IS CLEAR THAT THE DRAWING FOR THE HOSE BEFORE MODIFICATION BY THE ENGINEERING REPORT PERMITTED FURNISHING EITHER THE KENT-MOORE, GRAF,"OR EQUAL" HOSE. ALTHOUGH THE ENGINEERING REPORT MODIFIED THE DRAWING TO THE EXTENT THAT IT DELETED THE "OR EQUAL" PHRASE, IT DID NOT ELIMINATE THE ACCEPTABILITY OF THE KENT-MOORE HOSE. THEREFORE, AN OFFER TO FURNISH EITHER HOSE, OR THE KENT-MOORE HOSE, WOULD BE RESPONSIVE TO THE SPECIFICATIONS AND ELIGIBLE FOR CONSIDERATION FOR AWARD. WHILE THE INVITATION COULD HAVE BEEN MORE EXPLICIT IN THIS RESPECT, WE DO NOT BELIEVE IT WAS EITHER UNDULY RESTRICTIVE OF COMPETITION OR SO AMBIGUOUS AS TO PRECLUDE AWARD OF A VALID AND BINDING CONTRACT. TO THE CONTRARY, THE ABSTRACT OF BIDS FURNISHED SHOWS THAT NINE BIDS WERE RECEIVED, INDICATING THAT THE FULL AND FREE COMPETITION CONTEMPLATED BY FORMAL ADVERTISING WAS ATTAINED.

ACCORDINGLY, THERE IS NO BASIS UPON WHICH OUR OFFICE MAY PROPERLY OBJECT TO AN AWARD TO RADAL. THEREFORE, YOUR PROTEST MUST BE AND IS DENIED.