B-159246, NOV. 25, 1966

B-159246: Nov 25, 1966

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TO LEONARD VALVE COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 23. THE REQUIREMENT IS DIVIDED BETWEEN TWO ITEMS. BIDDERS WERE REQUESTED TO QUOTE BOTH F.O.B. A PREDETERMINED SHIPPING WEIGHT OF 43 POUNDS PER UNIT IS TO BE USED IN THE EVALUATION OF F.O.B. EACH ITEM IS TO BE DELIVERED IN THREE SPECIFIED INCREMENTS WITHIN THREE DESIGNATED PERIODS AFTER DATE OF AWARD. BIDDERS WERE ADVISED THAT ALL BIDS WOULD BE SUBJECT. AS ARE ATTACHED TO THE IFB OR INCORPORATED BY REFERENCE IN THE SCHEDULE. WERE CHECKED AS BEING APPLICABLE TO THE PROCUREMENT. WHICH ARE REQUIRED BY SUBSECTION 3.5.2. TO HAVE CHECK VALVES AND UNION COUPLINGS ON INLETS. - PERFORMANCE OF WHICH IS THE RESPONSIBILITY OF THE SUPPLIER (CONTRACTOR).

B-159246, NOV. 25, 1966

TO LEONARD VALVE COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 23, 1966, AS SUPPLEMENTED BY CORRESPONDENCE FROM YOU AND FROM YOUR ATTORNEYS, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. DSA-700-66-3841, ISSUED MARCH 16, 1966, BY THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), DEFENSE SUPPLY AGENCY (DSA), COLUMBUS, OHIO.

THE IFB, AS AMENDED, COVERS THE PROCUREMENT OF A TOTAL QUANTITY OF 2,770 WATER MIXING VALVES, TO BE SHIPPED TO OGDEN, UTAH. THE REQUIREMENT IS DIVIDED BETWEEN TWO ITEMS, ITEM NO. 1 COVERING 1,185 UNITS, AND ITEM NO. 2 COVERING 1,585 UNITS. BIDDERS WERE REQUESTED TO QUOTE BOTH F.O.B. ORIGIN AND F.O.B. DESTINATION PRICES ON EACH ITEM, AND A PREDETERMINED SHIPPING WEIGHT OF 43 POUNDS PER UNIT IS TO BE USED IN THE EVALUATION OF F.O.B. ORIGIN BIDS. EACH ITEM IS TO BE DELIVERED IN THREE SPECIFIED INCREMENTS WITHIN THREE DESIGNATED PERIODS AFTER DATE OF AWARD, DELIVERY BEING REQUIRED WITHIN PERIODS RANGING FROM 60 TO 120 DAYS ON ITEM NO. 1 AND WITHIN PERIODS RANGING FROM 150 TO 210 DAYS ON ITEM NO. 2. IN ADDITION, THE GOVERNMENT HAS AN OPTION TO INCREASE THE QUANTITY OF EACH ITEM BY 100 PERCENT SUBJECT TO THE SAME DELIVERY SCHEDULE AS THE BASIC QUANTITY UNLESS OTHERWISE AGREED BY THE PARTIES.

ON THE FACE SHEET OF THE IFB, BIDDERS WERE ADVISED THAT ALL BIDS WOULD BE SUBJECT, AMONG OTHER CONDITIONS, TO BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS, STANDARD FORM 33-A, AND TO SUCH OTHER PROVISIONS, REPRESENTATIONS, AND CERTIFICATIONS, INCLUDING CERTAIN PORTIONS OF THE DCSC CONTRACT CLAUSE BOOK, EDITION 1--- 1 OCT. 65, AS ARE ATTACHED TO THE IFB OR INCORPORATED BY REFERENCE IN THE SCHEDULE. ON SUBSEQUENT PAGES OF THE BID SCHEDULE, VARIOUS CLAUSES IN THE DCSC CONTRACT CLAUSE BOOK, COVERING PACKING AND OTHER REQUIREMENTS, WERE CHECKED AS BEING APPLICABLE TO THE PROCUREMENT.

THE PURCHASE DESCRIPTION OF THE VALVE, ON PAGE 2 OF THE IFB, READS AS FOLLOWS:

"REQN. NO. SC0700-6031-1256

FSN 4510-273-1224

VALVE, WATER MIXING, HAND OPERATED. EXPOSED

INSTALLATION, ROUGH BRONZE BODY, BRONZE CASE,

UNION TYPE INLET, 2 IN., 11 1/2 NPT/FEMALE

INLET AND OUTLET CONNECTION, WITH INTEGRAL

MOUNTING BRACKET, WITH AUTOMATIC TEMP. CONTROL,

WITH SCREWDRIVER SLOTTED SUPPLY STOPS, 200

GFM, 45 LB. PRESSURE RATING. IN ACCORDANCE

WITH STYLE E OF MILITARY SPECIFICATION MIL-V-11152B,

DATED 29 APRIL 1965, TITLED, VALVE,

WATER MIXING, HAND OPERATED, THERMOSTATIC

TEMPERATURE REGULATING, AS MODIFIED BY OUTLET

CONNECTION AND CAPACITY.'

MILITARY SPECIFICATION NO. MIL-V-11152B, DATED APRIL 29, 1965, COVERING THERMOSTATIC, HAND-OPERATED, WATER-MIXING VALVES, PROVIDES IN SUBSECTION 6.2 THAT THE ORDERING DATA IN PROCUREMENT DOCUMENTS SHOULD INCLUDE (A) TITLE, NUMBER AND DATE OF THE SPECIFICATION; (B) SIZE, STYLE AND FINISH OF REQUIRED VALVE; (C) MAXIMUM DELIVERY TEMPERATURE WHEN OTHER THAN 115 DEGREES ; AND (D) LEVEL OF PRESERVATION AND PACKAGING AND LEVEL OF PACKING REQUIRED. SECTION 3 SETS FORTH THE REQUIREMENTS FOR THE VALVE. SUBSECTION 3.5.6 LISTS IN TWO GROUPS THE VARIOUS SIZES OF VALVES COVERED BY THE SPECIFICATION, THE SIZE VALVE REQUIRED BY THE IFB BEING INCLUDED IN THE LARGER VALVES IN GROUP Y, WHICH ARE REQUIRED BY SUBSECTION 3.5.2, ACCESSORIES, TO HAVE CHECK VALVES AND UNION COUPLINGS ON INLETS. SECTION 4, QUALITY ASSURANCE PROVISIONS, REQUIRES VARIOUS TESTS OF THE VALVE AND THREE SEPARATE INSPECTIONS--- INITIAL PRODUCTION, QUALITY CONFORMANCE AND PREPARATION FOR DELIVERY--- PERFORMANCE OF WHICH IS THE RESPONSIBILITY OF THE SUPPLIER (CONTRACTOR), EXCEPT THAT THE GOVERNMENT RESERVES THE RIGHT TO PERFORM ANY SUCH INSPECTIONS WHEN DEEMED NECESSARY TO ASSURE CONFORMANCE OF THE SUPPLIES AND SERVICES TO THE PRESCRIBED REQUIREMENTS. THERE IS NO SHIPPING WEIGHT LIMITATION STATED IN THE SPECIFICATION, NOR IS THERE ANY REQUIREMENT FOR DESCRIPTIVE DATA.

STANDARD FORM 33-A, WITH ADDITIONS AND ALTERATIONS, AS CONTAINED IN THE DCSC CONTRACT CLAUSE BOOK, READS, IN PERTINENT PART, AS FOLLOWS:

"1. PREPARATION OF BIDS.--- (A) BIDDERS ARE EXPECTED TO EXAMINE THE DRAWINGS, SPECIFICATIONS, SCHEDULE, AND ALL INSTRUCTIONS. FAILURE TO DO SO WILL BE AT THE BIDDER'S RISK.

"6. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS.--- (A) BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED), IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION: PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT. HOWEVER, A MODIFICATION WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.

"/B) BIDDERS USING CERTIFIED MAIL ARE CAUTIONED TO OBTAIN A RECEIPT FOR CERTIFIED MAIL SHOWING A LEGIBLE, DATED POSTMARK AND TO RETAIN SUCH RECEIPT AGAINST THE CHANCE THAT IT WILL BE REQUIRED AS EVIDENCE THAT A LATE BID WAS TIMELY MAILED.

"/C) THE TIME OF MAILING OF LATE BIDS SUBMITTED BY REGISTERED OR CERTIFIED MAIL SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON THE REGISTERED MAIL RECEIPT OR REGISTERED MAIL WRAPPER OR ON THE RECEIPT FOR CERTIFIED MAIL UNLESS THE BIDDER FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES AN EARLIER TIME. IN THE CASE OF CERTIFIED MAIL, THE ONLY ACCEPTABLE EVIDENCE IS AS FOLLOWS:

"/1) WHERE THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING, EVIDENCE FURNISHED BY THE BIDDER WHICH ESTABLISHES THAT THE BUSINESS DAY OF THAT STATION ENDED AT AN EARLIER TIME, IN WHICH CASE THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE BUSINESS DAY OF THAT STATION; OR

"/2) AN ENTRY IN INK ON THE RECEIPT FOR CERTIFIED MAIL SHOWING THE TIME OF MAILING AND THE INITIALS OF THE POSTAL EMPLOYEE RECEIVING THE ITEM AND MAKING THE ENTRY, WITH APPROPRIATE WRITTEN VERIFICATION OF SUCH ENTRY FROM THE POST OFFICE STATION OF MAILING, IN WHICH CASE THE TIME OF MAILING SHALL BE SHOWN IN THE ENTRY. IF THE POSTMARK ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL DOES NOT SHOW A DATE, THE BID SHALL NOT BE CONSIDERED.

"/20) * * * PRODUCTS DELIVERED UNDER ANY RESULTING CONTRACT SHALL CONFORM TO THE SPECIFICATION/S) CITED IN THE INVITATION FOR BIDS.

"/21) RESPONSIBILITY OF BIDDERS. IN CONSIDERING THE RESPONSIBILITY OF ANY BIDDER, THE GOVERNMENT RESERVES THE RIGHT TO DETERMINE THE RESPONSIBILITY OF ANY SUBCONTRACTOR OR SUPPLIER WHICH THE BIDDER INTENDS TO UTILIZE IN THE PERFORMANCE OF ANY PART OF THE WORK CALLED FOR HEREIN.

"THE DETERMINATION OF THE RESPONSIBILITY OF A PROPOSED SUBCONTRACTOR OR SUPPLIER BY THE GOVERNMENT WILL BE BASED ON THE SAME FACTORS AS ARE APPLICABLE IN A DETERMINATION OF THE RESPONSIBILITY OF A BIDDER.

"ANY SUCH DETERMINATION OF RESPONSIBILITY OF A PROPOSED SUBCONTRACTOR OR SUPPLIER AS REQUIRED SHALL NOT BE CONSTRUED IN ANY WAY TO RELIEVE THE CONTRACTOR OF THE SOLE RESPONSIBILITY OF PERFORMING ANY AND ALL OF THE WORK CALLED FOR UNDER THIS CONTRACT IN STRICT ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE CONTRACT.'

ON APRIL 11, 1966 (A MONDAY), THE THREE BIDS WHICH HAD BEEN TIMELY RECEIVED WERE OPENED AT 0:30 A.M., EASTERN STANDARD TIME, AS SCHEDULED. EXACTLY 30 MINUTES LATER, HOWEVER, THERE WAS RECEIVED BY THE PROCURING ACTIVITY A BID FROM SAMUEL LEVINE PLUMBING AND HEATING SUPPLIES, INC., (LEVINE), WHICH HAD BEEN TRANSMITTED BY CERTIFIED MAIL IN AN ENVELOPE ADDRESSED TO THE DCSC, DIRECTORATE OF PROCUREMENT AND PRODUCTION, COLUMBUS, OHIO, ATTENTION BID ROOM, BUILDING 12-1B, THE PLACE OF BID OPENING AND THE MAILING ADDRESS SPECIFIED IN THE IFB, AND WHICH BORE A NOTATION IN THE LOWER LEFT CORNER AS TO THE IFB NUMBER AND THE DATE AND HOUR OF BID OPENING. THE ENVELOPE ALSO BORE AN APRIL 8, 1966 P.M. (NO HOUR SHOWN) POSTMARK OF THE CANAL STREET STATION, NEW YORK NEW YORK; A TIME STAMP SHOWING RECEIPT AT 10:00 A.M., APRIL 11, 1966, AT HEADQUARTERS, DCSC, COLUMBUS; AND A TIME STAMP SHOWING RECEIPT AT 11:00 A.M., APRIL 11, 1966, BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, DCSC, COLUMBUS. THE CERTIFIED MAIL RECEIPT FURNISHED BY LEVINE, LIKE THE BID ENVELOPE, CARRIED ON APRIL 8, 1966 P.M. (NO HOUR SHOWN) POSTMARK OF THE CANAL STREET STATION, NEW YORK, NEW YORK, AND A HANDWRITTEN NOTATION "5:01 PM," WHICH WAS NOT INITIALED BY A POST OFFICE EMPLOYEE. ON THE BASIS OF INFORMATION OBTAINED FROM THE MAILING POST OFFICE INDICATING THAT ITS BUSINESS HOURS TERMINATE AT 5:00 P.M., MONDAY THROUGH FRIDAY, THE BID OPENING OFFICER ACCEPTED THE 5:01 P.M. MAILING TIME, AND ON THE BASIS OF INFORMATION FURNISHED BY AN OFFICIAL OF THE RECEIVING POST OFFICE AT COLUMBUS TO THE EFFECT THAT A BID SO MAILED ON FRIDAY, APRIL 8, SHOULD HAVE ARRIVED AT THE VERY LATEST AT SUCH POST OFFICE AT 2:00 P.M. ON SUNDAY, APRIL 10, WHICH WOULD HAVE ALLOWED AMPLE TIME FOR DELIVERY OF THE BID TO THE BID OPENING ROOM BY THE 0:30 A.M. BID OPENING TIME ON THE NEXT DAY, MONDAY, APRIL 11, THE BID OPENING OFFICER ALSO ACCEPTED THE LEVINE BID FOR CONSIDERATION.

OF THE FOUR BIDS RECEIVED, THE BID OF THE POWERS REGULATOR CO., WAS LOWEST. HOWEVER, SINCE IT FAILED TO COMPLY WITH ESSENTIAL REQUIREMENTS OF THE IFB IT WAS ELIMINATED FROM CONSIDERATION AS NONRESPONSIVE. OF THE REMAINING BIDS, LEVINE WAS LOWEST ON BOTH AN F.O.B. ORIGIN BASIS, USING THE 43-POUND PREDETERMINED SHIPPING WEIGHT, AND ON AN F.O.B. DESTINATION BASIS, AND YOU WERE SECOND LOW. THE TWO BIDS WERE EVALUATED AS FOLLOWS:

TABLE

LEVINE LEONARD

F.O.B. ORIGIN:

BASE PRICE $146.45 $145.50

LESS DISCOUNT 2.93 (2 PERCENT) 1.46 (1 PERCENT)

NET PRICE $143.52 $144.04

PLUS TRANSPORTATION

CHARGES ORIGIN TO

OGDEN 1.90 2.07

DELIVERED UNIT PRICE $145.42 $146.11

F.O.B. DESTINATION:

BASE PRICE $148.47 $149.00

LESS DISCOUNT 2.97 (2 PERCENT) 1.49 (1 PERCENT)

NET PRICE $145.50 $147.51

ON PAGE 2 OF THE BID FORM, STANDARD FORM 33, LEVINE INDICATED THAT IT WAS A REGULAR DEALER, AND ON PAGE 7 OF THE BID SCHEDULE, LEVINE STATED THAT THE VALVES WOULD BE MANUFACTURED AT THE LAWLER AUTOMATIC CONTROLS (LAWLER) PLANT, MT. VERNON, NEW YORK, WHICH WAS ALSO DESIGNATED AS THE PLACE OF INSPECTION, PACKAGING AND PACKING, AND AS THE SHIPPING POINT. LEVINE SUBMITTED NO DESCRIPTIVE LITERATURE, AND TOOK NO EXCEPTION TO THE IFB REQUIREMENTS OR TO THE MILITARY SPECIFICATION.

YOUR BID STATED THAT YOU WERE OFFERING YOUR TM-225 VALVE. IN A TYPEWRITTEN STATEMENT ATTACHED TO YOUR BID, YOU CALLED ATTENTION TO THE FACT THAT THE VALVES REQUIRED BY THE IFB WERE CLASSIFIED AS GROUP Y VALVES IN THE MILITARY SPECIFICATION, AND THAT SUCH SPECIFICATION REQUIRED GROUP Y VALVES TO HAVE CHECK VALVES AND UNION COUPLINGS (AND STRAINERS) ON INLETS RATHER THAN THE SCREW DRIVER SLOTTED SUPPLY STOPS LISTED IN THE IFB PURCHASE DESCRIPTION, AND YOU THEREFORE STATED THAT YOUR VALVES WOULD BE EQUIPPED WITH THE GROUP Y VALVE ACCESSORIES PRESCRIBED BY THE MILITARY SPECIFICATION. FURTHER, IN A LETTER DATED APRIL 29, TO THE DCSC, YOU CALLED THE ATTENTION OF THE PROCURING ACTIVITY TO VARIOUS OTHER FEATURES OF YOUR TEM-225 VALVE.

ON APRIL 27, THE CONTRACTING OFFICER ADDRESSED A TELEGRAM TO LEVINE REQUESTING CONFIRMATION THAT THE VALVE PROPOSED TO BE FURNISHED BY LEVINE WOULD BE IN STRICT COMPLIANCE WITH THE SPECIFICATIONS AND WITH THE IFB DESCRIPTION, PARTICULARLY THE 200 GALLONS PER MINUTE CAPACITY REQUIREMENT. LEVINE'S REPLY BY LETTER DATED APRIL 29 WAS IN THE AFFIRMATIVE. ON MAY 9, THE CONTRACTING OFFICER ALSO ADDRESSED A TELEGRAM TO LAWLER REQUESTING CONFIRMATION THAT THE VALVES PROPOSED TO BE FURNISHED WOULD BE IN STRICT COMPLIANCE WITH THE SPECIFICATIONS AND WITH THE IFB ITEM DESCRIPTION, PARTICULARLY THE SIZE, THE FLOW CAPACITY AND THE REQUIREMENT THAT THE FLOW MOUNTING BRACKET BE INTEGRAL. LAWLER'S TELEGRAPHIC REPLY DATED MAY 10, READS AS FOLLOWS: "CONFIRM THAT LAWLER VALVES AS SUBMITTED BY SAMUEL LEVINE COMPANY ARE IN COMPLIANCE WITH SPECIFICATIONS AND THAT VALVES WILL HAVE 2 INCH FEMALE INLETS AND 2 INCH FEMALE OUTLET. CAPACITY WILL BE 200 GPM AT 45 PS1 WITH TEMPERATURE TO BE CONTAINED AT THIS FLOW MOUNTING BRACKET WILL BE INTEGRAL WITH VALVE BODY AND ADJUSTABLE STOP FOR LIMITING THE TEMPERATURE DESIRED WILL BE FURNISHED.'

BY LETTER DATED MAY 18, YOU ADVISED DCSC THAT THE VALVE SPECIFIED AS FEDERAL STOCK NO. FSN-4510-273-1224 IN THE IFB IS YOUR TM-225 VALVE, AND YOU REQUESTED THAT, IF ANY OTHER VALVES WERE TO BE CONSIDERED, YOU BE GIVEN AN OPPORTUNITY TO BID ON OTHER MODELS MANUFACTURED BY YOU. ON MAY 23, YOU COMMUNICATED WITH THE DCSC BY TELEPHONE AND WERE INFORMED, IN ANSWER TO YOUR INQUIRY AS TO THE STATUS OF THE PROCUREMENT, THAT LEVINE'S BID HAD BEEN EVALUATED AS THE LOWEST RESPONSIVE BID. ACCORDINGLY, ON THE SAME DATE, YOU FILED PROTESTS BY TELEGRAM AND BY LETTER WITH BOTH THE DCSC AND OUR OFFICE AGAINST ANY AWARD TO LEVINE, STATING THAT LEVINE HAS DEVIATED SUBSTANTIALLY FROM THE SPECIFICATIONS, THAT YOU BELIEVE YOUR BID IS THE ONLY RESPONSIVE BID, AND THAT, THEREFORE, AWARD SHOULD BE MADE TO YOU.

THE RECORD MADE AVAILABLE TO OUR OFFICE BY DSA DISCLOSES THAT LEVINE ADVISED DCSC BY LETTER OF JUNE 10, 1966, THAT ITS VALVE DOES NOT EXCEED THE PREDETERMINED 43-POUND SHIPPING WEIGHT SPECIFIED IN THE IFB FOR USE IN EVALUATION OF F.O.B. ORIGIN BIDS. FURTHER, IN THE COURSE OF A PREAWARD SURVEY OF LAWLER'S PLANT TO DETERMINE WHETHER LAWLER, AS SUBCONTRACTOR TO LEVINE, HAS THE ABILITY TO PRODUCE THE VALVES IN QUESTION, IT WAS OBSERVED BY THE DEFENSE CONTRACT ADMINISTRATIVE SERVICES REGION (DCASR) EMPLOYEES WHO MADE THE SURVEY THAT THE VALVE WHICH LAWLER INTENDS TO FURNISH TO LEVINE IS A 2-INCH NEW SERIES VALVE WITH AN APPROXIMATE PACKED GROSS WEIGHT OF 40 POUNDS. MOREOVER, LAWLER HAS SUBSEQUENTLY ADVISED THE DCASR THAT ITS ESTIMATE OF THE GROSS SHIPPING WEIGHT OF THE ITEM IS 37 POUNDS.

THE RECORD FURTHER DISCLOSES THAT LEVINE HAS ADVISED THE DCSC THAT THE VALVES WHICH IT WILL SUPPLY WILL COMPLY WITH PARAGRAPH 3.5.2 OF MILITARY SPECIFICATION NO. MIL-V-11152B, WHICH REQUIRES VALVES IN GROUP Y TO HAVE CHECK VALVES AND UNION COUPLINGS ON INLETS.

IN SUBSEQUENT CORRESPONDENCE FROM YOU AND FROM YOUR ATTORNEYS, YOUR PROTEST HAS BEEN ENLARGED TO STATE SEVERAL SPECIFIC ISSUES. FOLLOWING IS A SUMMARY OF SUCH ISSUES AND OF THE ADMINISTRATIVE COMMENTS THEREON:

1. DEFECTIVE INVITATION: THE PURCHASE DESCRIPTION CALLS FOR SCREWDRIVER SLOTTED SUPPLY STOPS WHEREAS THE MILITARY SPECIFICATION, WHICH CLASSES THE VALVES IN QUESTION AS GROUP Y VALVES, REQUIRES THAT THE VALVES BE EQUIPPED WITH CHECK VALVES AND UNION COUPLINGS (AND STRAINERS) ON INLETS. YOU POINT OUT THAT UNDER THE PROVISIONS OF THE MILITARY SPECIFICATION, SCREWDRIVER SLOTTED SUPPLY STOPS ARE REQUIRED ONLY ON GROUP X VALVES, WHICH ARE SMALLER VALVES THAN THE VALVE BEING PROCURED UNDER THE IFB. THEREFORE, IT IS YOUR POSITION THAT THE PURCHASE DESCRIPTION CONTAINS A BASIC ERROR AND THAT ONLY THE REQUIREMENT IN THE MILITARY SPECIFICATION FOR GROUP Y VALVES SHOULD APPLY. ACCORDINGLY, YOU STATE THAT YOU WILL SUPPLY THE ACCESSORIES REQUIRED BY THE MILITARY SPECIFICATION FOR GROUP Y VALVES, BUT YOU CONTEND THAT THE ERROR IN THE PURCHASE DESCRIPTION MIGHT BE THE BASIS OF A COSTLY FUTURE CHANGE ORDER AS FAR AS LEVINE IS CONCERNED.

ADMINISTRATIVE COMMENTS: IN A REPORT FORWARDED TO OUR OFFICE ON AUGUST 17, 1966, DSA STATED THAT THE PURCHASE DESCRIPTION REQUIREMENT FOR SCREWDRIVER SLOTTED SUPPLY STOPS ON THE VALVES WAS AN OBVIOUS ERROR. SUCH STATEMENT WAS BASED ON INFORMATION FURNISHED TO THE CONTRACTING OFFICER BY THE DIRECTOR OF TECHNICAL OPERATIONS, DCSC, INDICATING THAT SUCH STOPS ARE NOT PRACTICAL FOR THE SIZE VALVE BEING PROCURED BECAUSE OF THE IMPOSSIBILITY OF GETTING SUFFICIENT LEVERAGE TO TURN THE STOPS USING THE NORMAL SIZE SCREWDRIVER AND BECAUSE FREQUENTLY THE STOPS ON SUCH VALVES ARE COVERED AND THEREFORE ARE INACCESSIBLE. ACCORDINGLY, DSA TOOK THE POSITION THAT THE ERROR BEING OBVIOUS, IT WAS NOT LIKELY THAT OTHER BIDDERS HAD BEEN PREJUDICED OR MISLED THEREBY.

IN A LETTER DATED NOVEMBER 2, 1966, HOWEVER, DSA HAS RESTATED ITS POSITION ON THIS ISSUE AND NOW ADVISES THAT THE REQUIREMENT IN THE PURCHASE DESCRIPTION IS VALID AND IS IN ADDITION TO THE REQUIREMENT IN THE MILITARY SPECIFICATION. THE CHANGE OF POSITION WAS PROMPTED BY RECONSIDERATION OF THE MATTER IN THE LIGHT OF THE SUBMISSION BY LAWLER TO OUR OFFICE OF A STATEMENT TO THE EFFECT THAT IT READ THE INVITATION AS REQUIRING BOTH SCREWDRIVER SLOTTED STOPS AND CHECK VALVES; THAT THE VALVE IT PROPOSES TO SUPPLY TO LEVINE WILL BE EQUIPPED WITH BOTH SCREWDRIVER SLOTTED SUPPLY STOPS AND CHECK VALVES; THAT IT NORMALLY FURNISHES SUCH FEATURES ON MIXING VALVES OF THE TYPE INVOLVED IN THE PROCUREMENT, AS EVIDENCED BY A DRAWING DATED JUNE 21, 1960, ATTACHED TO ITS STATEMENT; THAT IT HAD NOT MISUNDERSTOOD THE PROCUREMENT REQUIREMENTS; AND THAT NEITHER LAWLER NOR LEVINE WOULD ORIGINATE ANY CHANGE ORDER INCIDENT THERETO. COPIES OF LAWLER'S STATEMENT AND DRAWING WERE FURNISHED TO BOTH DSA AND TO YOUR ATTORNEYS.

THE DOCUMENTS ATTACHED TO THE NOVEMBER 2 LETTER FROM DSA INDICATE THAT ITS EARLIER REPORT, STATING THAT THE REQUIREMENT FOR SCREWDRIVER SLOTTED SUPPLY STOPS WAS ERRONEOUS, HAD NOT BE COORDINATED WITH THE USING ACTIVITY; THAT UPON REQUEST FOR CONFIRMATION OF THE REQUIREMENT BY SUCH ACTIVITY AFTER RECEIPT OF LAWLER'S STATEMENT, THE ACTIVITY ADVISED DCSC THAT THE SLOTTED SUPPLY STOPS ARE REQUIRED FOR MAINTENANCE AND SAFETY AND SUCH REQUIREMENT IS IN ACCORD WITH FEDERAL SPECIFICATION WW-P-541B CITED IN THE MILITARY SPECIFICATION; AND THAT THE DIRECTORATE OF TECHNICAL OPERATIONS, DCSC, NOW TAKES THE VIEW THAT SUCH REQUIREMENT IS NECESSARY AND REASONABLE EVEN THOUGH IT REPRESENTS AN ADDITION TO THE REQUIREMENT IN THE MILITARY SPECIFICATION.

IN A REBUTTAL TO DSA'S REPORT OF NOVEMBER 2 ON THIS ISSUE, YOUR ATTORNEYS CONTEND THAT THE FEDERAL SPECIFICATION IS NOT APPLICABLE TO THE PROCUREMENT INASMUCH AS IT COVERS SMALLER VALVES THAN THE VALVES BEING PROCURED, AND THE QUESTION IS RAISED AS TO WHY THE REQUIREMENT FOR SCREWDRIVER SLOTTED SUPPLY STOPS, IF NECESSARY, WAS NOT INCLUDED IN PRIOR SOLICITATIONS OF THE ITEM. ACCORDINGLY, IT IS FURTHER CONTENDED THAT SCREWDRIVER SLOTTED SUPPLY STOPS ARE NOT NECESSARY IN THIS PROCUREMENT; THAT THE DCSC TECHNICAL POSITION IS BASED ON ERRONEOUS AND MISLEADING INFORMATION; AND, THEREFORE, THAT THE PURCHASE DESCRIPTION IS INCONSISTENT WITH THE MILITARY SPECIFICATION.

2. LEVINE'S BID NOT TIMELY MAILED: YOU CONTEND THAT SINCE LEVINE'S BID WOULD NOT HAVE ARRIVED AT COLUMBUS UNTIL 2:00 P.M. ON SUNDAY, APRIL 10, A DAY WHICH, YOU STATE, IS CUSTOMARILY A HOLIDAY FOR POSTAL EMPLOYEES, IN ALL PROBABILITY THE MAIL WOULD NOT HAVE BEEN SORTED UNTIL THE FOLLOWING DAY, AND, THEREFORE, THE BID WOULD NOT HAVE BEEN AVAILABLE FOR THE FIRST PICKUP BY DCSC AT 6:00 A.M. ON MONDAY, APRIL 11. ACCORDINGLY, YOU ASSERT, THE PROCURING ACTIVITY'S CONCLUSION THAT LEVINE'S BID WAS EXCUSABLY LATE WAS TOTALLY UNSUPPORTED BY EVIDENCE AND VIOLATED THE SPIRIT OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 303.2 AND 2-303.3 RELATING TO LATE BIDS AND MODIFICATIONS.

ADMINISTRATIVE COMMENTS: DURING THE WEEK OF APRIL 11, THE REGULAR WEEKDAY SCHEDULE FOR MAIL PICKUP BY DCSC EMPLOYEES AT THE DOWNTOWN COLUMBUS POST OFFICE SHOWED A DEPARTURE FROM THE DCSC AT APPROXIMATELY 5:05 A.M. AND A RETURN TO THE DCSC AT APPROXIMATELY 6:30 A.M., AS WELL AS THREE SUBSEQUENT PICKUPS, THE SECOND OF WHICH RETURNED TO THE DCSC AT 9:25 A.M. IN ADDITION, THE FIRST TWO DELIVERIES OF MAIL TO THE DIRECTORATE OF PROCUREMENT AND PRODUCTION FROM THE CENTRAL MAIL ROOM, DCSC, WERE SCHEDULED FOR 8:18 A.M. AND 9:48 A.M., THREE MINUTES AFTER ARRIVAL OF THE MAIL IN THE CENTRAL MAIL ROOM, WITH BIDS BEING HAND CARRIED TO THE DIRECTORATE OF PROCUREMENT AND PRODUCTION BY SPECIAL MESSENGER UNLESS A REGULAR MESSENGER WAS SCHEDULED TO MAKE A DELIVERY. ACCORDINGLY, IT IS THE POSITION OF THE DCSC THAT THE FAILURE OF LEVINE'S BID TO REACH THE DIRECTORATE OF PROCUREMENT AND PRODUCTION BY 10:30A.M., NOTWITHSTANDING ITS RECEIPT IN THE DCSC CENTRAL MAIL ROOM AT 10:00 A.M., CANNOT BE CHARGED TO LEVINE AND THAT THE BID QUALIFIES FOR CONSIDERATION AS A LATE BID.

IN CONNECTION WITH THIS ISSUE, OUR OFFICE HAS BEEN INFORMALLY ADVISED THAT SORTING OF MAIL RECEIVED AT THE DOWNTOWN COLUMBUS POST OFFICE IS PERFORMED ON A DAILY BASIS; THAT A DCSC ITEM RECEIVED AT THE POST OFFICE AT 2:00 P.M. ON A SUNDAY WOULD BE SORTED THE SAME DAY AND THUS MADE AVAILABLE FOR THE FIRST DCSC PICKUP AT 6:00 A.M. THE NEXT DAY; AND THAT UNLESS A CERTIFIED MAIL ITEM IS MARKED SPECIAL DELIVERY, IN WHICH CASE THE POST OFFICE WOULD DELIVER IT TO THE DCSC, IT WOULD BE INCLUDED IN THE REGULAR MAIL FOR THE FIRST DCSC PICKUP.

3. THE PROCUREMENT SHOULD BE "BRAND NAME OR EQUAL," AND OTHER BIDDERS HAVE THE OBLIGATION TO SUPPLY YOUR MODEL TM-225 OR EQUAL. THIS CONTENTION IS BASED ON THE SIMILARITY OF THE VALVE DESCRIBED IN THE IFB, IDENTIFIED BY FEDERAL STOCK NO. FSN 4510-273-1224, TO YOUR MODEL TM-225 VALVE. YOU STATE THAT THE FEDERAL STOCK NUMBER LISTS YOU AS THE SOLE MANUFACTURER OF THE VALVE AND ALSO LISTS YOUR MODEL TM-225; THAT YOUR MODEL TM-225 HAS A SHIPPING WEIGHT OF 43 POUNDS, AND, THEREFORE, THE STATEMENT OF A 43-POUND PREDETERMINED SHIPPING WEIGHT IN THE IFB IS NOT MERELY A COINCIDENCE; AND THAT THE MODIFICATIONS IN YOUR MODEL TM-225 WHICH MILITARY SPECIFICATION NO. MIL-V-11152B MAKES TO OUTLET CONNECTION AND CAPACITY DO NOT CHANGE THE BASIC VALVE STRUCTURE, DESIGN, OR PERFORMANCE CAPACITY AND CHARACTERISTICS OF THE VALVE DESCRIBED IN THE FEDERAL STOCK NUMBER. THEREFORE, YOU CONTEND, THE WORDS "OR EQUAL" SHOULD BE ADDED TO THE PURCHASE DESCRIPTION AND THE PROCUREMENT TREATED AS A PART NUMBER OR EQUAL PURCHASE THUS MAKING IT NECESSARY FOR LEVINE TO CLEARLY ESTABLISH PRIOR TO AWARD THAT THE ITEM HE OFFERS AS A SUBSTITUTE FOR THE BRAND NAME IS EQUAL.

ADMINISTRATIVE COMMENTS: THE FEDERAL STOCK CATALOG IS PREPARED FOR THE INFORMATION OF MILITARY USERS OF VARIOUS ITEMS OF SUPPLIES STOCKED BY THE DCSC, AND THE DESCRIPTION CONTAINED THEREIN IS NOT INTENDED TO BE A PURCHASE DESCRIPTION. THE FACT THAT YOUR CODE NUMBER AND PART NUMBER ARE SHOWN DOES NOT ESTABLISH THAT YOU ARE THE SOLE SOURCE FOR THE VALVE, BUT MERELY IDENTIFIES THE LAST SUPPLIER OF THE ITEM. FURTHER, THE STOCK NUMBER DESCRIPTION INDICATES THAT THE VALVE IS SUBJECT, AMONG OTHER REQUIREMENTS, TO MILITARY SPECIFICATION NO. MIL-V 11152 CITED IN THE IFB, AND IT IS THEREFORE ONLY NECESSARY THAT A BIDDER MANUFACTURE A VALVE ACCORDING TO SUCH REQUIREMENTS AND NOT NECESSARILY IDENTICAL TO YOUR TM- 225 VALVE. ALSO, WHILE THE 43-POUND WEIGHT WAS TAKEN FROM DATA RELATING TO THE PREVIOUS PROCUREMENT OF THE ITEM, SUCH FACT ALONE DOES NOT ESTABLISH THAT THE VALVE NOW BEING PROCURED IS SOLE SOURCE TO YOU.

4. LEVINE'S VALVE EXCEEDS THE IFB 43-POUND WEIGHT LIMIT: YOU ALLEGE (APPARENTLY ON THE BASIS OF INFORMATION IN LAWLER'S CATALOG) THAT THE VALVE OFFERED BY LEVINE WEIGHS 60 POUNDS, AND, THEREFORE, THE UNIT TRANSPORTATION CHARGE FOR ADDITION TO LEVINE'S F.O.B. ORIGINAL PRICE OF $143.52 (AFTER DISCOUNT) SHOULD BE INCREASED FROM $1.90 (BASED ON A WEIGHT OF 43 POUNDS) TO $2.93 (BASED ON A WEIGHT OF 60 POUNDS), RESULTING IN AN ORIGIN UNIT PRICE OF $146.16 FOR LEVINE AS OPPOSED TO YOUR NET ORIGIN PRICE OF $146.11.

ADMINISTRATIVE COMMENTS: IN ADDITION TO THE STATEMENTS OF LEVINE AND LAWLER REGARDING THE WEIGHT OF THE ITEM LEVINE OFFERS AND THE OBSERVATION OF THE DCASR EMPLOYEES DURING THE PREAWARD SURVEY OF LAWLER'S PLANT, AS RELATED ABOVE, THE CONTRACTING OFFICER POINTS TO THE FACT THAT EVEN IF LEVINE'S F.O.B. ORIGIN BID WERE EVALUATED ON THE BASIS OF A UNIT WEIGHT OF 60 POUNDS, LEVINE'S F.O.B. DESTINATION BID PRICE OF $145.50 PER UNIT AFTER DISCOUNT IS STILL LOWER THAN EITHER YOUR EVALUATED F.O.B. ORIGIN BID OF $146.11 PER UNIT OR YOUR NET F.O.B. DESTINATION BID OF $147.51 PER UNIT, THE WEIGHT OF THE VALVE HAVING NO EFFECT ON THE F.O.B. DESTINATION BID PRICE SINCE THE BIDDER IS TO ABSORB ALL TRANSPORTATION CHARGES TO OGDEN AND THE GOVERNMENT IS TO PAY ONLY THE NET PRICE QUOTED.

5. LAWLER CANNOT MAKE THE MODIFICATIONS TO ITS VALVES NECESSARY TO MEET THE SPECIFICATION REQUIREMENTS IN TIME TO CONFORM TO THE DELIVERY SCHEDULE: YOU STATE THAT AVAILABLE TRADE LITERATURE ON THE LAWLER VALVE OFFERED BY LEVINE INDICATES THAT MANY SUBSTANTIAL MODIFICATIONS WOULD BE REQUIRED TO MAKE IT ACCEPTABLE. THEREFORE, YOU REQUEST THAT OUR OFFICE PREDETERMINE WHETHER LAWLER CAN AND WILL MAKE THESE MODIFICATIONS IN TIME TO MEET THE PROCUREMENT DELIVERY REQUIREMENTS. FURTHER, YOU SUGGEST THAT PREAWARD TESTS BE MADE OF THE LAWLER VALVE TO ASSURE COMPLIANCE WITH THE SPECIFICATIONS.

ADMINISTRATIVE COMMENTS:LEVINE HAS ADVISED DCSC THAT THE REQUIRED DELIVERY SCHEDULE WILL BE MET AND HAS FURNISHED EVIDENCE OF A WRITTEN COMMITMENT FROM ITS SUPPLIER. MOREOVER, THE DCASR PREAWARD SURVEYS INDICATE THAT LEVINE HAS HAD EXPERIENCE AS A GOVERNMENT SUPPLIER AND IS CONSIDERED TO BE A CAPABLE CONTRACTOR, AND THAT LAWLER, WHO LIKEWISE HAS COMMITMENTS FROM REPUTABLE SUPPLIERS, HAS THE FACILITIES AND CAPABILITY TO TIMELY PRODUCE THE REQUIRED VALVE, ONE OF A NEW REDESIGNED SERIES, AND HAS AN INSPECTION SYSTEM WHICH COMPLIES WITH THE APPLICABLE QUALITY ASSURANCE PROVISIONS IN THE MILITARY SPECIFICATION. THE CONTRACTING OFFICER POINTS OUT THAT YOUR OBJECTIONS TO CONSIDERATION OF A LAWLER MANUFACTURED VALVE ARE APPARENTLY BASED ON CATALOG INFORMATION PERTAINING TO OTHER LAWLER VALVES, AND NOT ON ANY SPECIFIC INFORMATION CONCERNING THE NEWLY DESIGNED VALVE WHICH IS PROPOSED TO BE FURNISHED TO LEVINE. 6. LATE MODIFICATION OF YOUR BID. ON THE BASIS THAT LEVINE'S BID SHOULD BE ELIMINATED FROM CONSIDERATION FOR THE REASONS HERETOFORE STATED AND THAT YOU ARE THE OTHERWISE SUCCESSFUL BIDDER, YOU OFFER FOR CONSIDERATION BY DCSC UNDER THE PROVISIONS IN CLAUSE 6 OF STANDARD FORM 33-A, RELATING TO LATE BID MODIFICATIONS FROM OTHERWISE SUCCESSFUL BIDDERS, AN INCREASE FROM 1 TO 2 PERCENT IN THE DISCOUNT STATED IN YOUR BID.

ADMINISTRATIVE COMMENTS: YOU ARE NOT THE LOWEST BIDDER UNLESS LEVINE'S BID IS REJECTED FOR A REASON OTHER THAN PRICE.

7. OBVIOUS ERROR IN YOUR BID. YOU ALLEGE THAT SINCE THE DIFFERENCE OF $3.50 PER UNIT BETWEEN YOUR F.O.B. ORIGIN PRICE OF $145.50 AND YOUR F.O.B. DESTINATION PRICE OF $149.00, REPRESENTING TRANSPORTATION CHARGES TO OGDEN, IS FAR IN EXCESS OF THE $2.07 FREIGHT CHARGE USED BY THE GOVERNMENT IN EVALUATING YOUR F.O.B. ORIGIN DELIVERED PRICE, DCSC WAS REQUIRED UNDER ASPR 2-406.1 TO REQUEST VERIFICATION OF YOUR BID AND MUST NOW RECTIFY THE MISTAKE. IN THIS CONNECTION, YOU STATE THAT THE FREIGHT CHARGES SHOULD HAVE BEEN COMPUTED AT $2.48 PER UNIT INSTEAD OF $3.50.

ADMINISTRATIVE COMMENTS: PROCESSING OF THE ALLEGED MISTAKE FOR CORRECTION IS NOT DEEMED NECESSARY UNDER ASPR 2-406.3 INASMUCH AS LEVINE IS LOWER ON AN F.O.B. DESTINATION BASIS THAN YOU WOULD BE EVEN WITH THE $1.43 UNIT PRICE REDUCTION; I.E., YOUR NET BID OF $147.51 REDUCED BY $1.43 TO $146.08 WOULD EXCEED LEVINE'S NET BID OF $145.50.

8. REQUEST FOR PERMISSION TO EXAMINE PREAWARD SURVEY REPORTS ON LAWLER. YOU CONTEND THAT YOU SHOULD BE PERMITTED TO READ THE PORTION OF THE PREAWARD SURVEY REPORTS BY THE DCASR ON LAWLER WHICH FORMED THE BASIS FOR THE CONCLUSION OF THE CONTRACTING OFFICER THAT LAWLER HAS THE CAPACITY TO PRODUCE THE REQUIRED VALVE IN COMPLIANCE WITH THE SPECIFICATIONS AND HAS ADEQUATE TESTING PROCEDURES.

ADMINISTRATIVE COMMENTS: DSA HAS INFORMALLY ADVISED OUR OFFICE THAT PURSUANT TO ASPR 1-907, WHICH PROHIBITS THE RELEASE OUTSIDE THE GOVERNMENT OF INFORMATION OBTAINED FROM A PREAWARD SURVEY, ACCUMULATED FOR THE PURPOSE OF DETERMINING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, YOUR REQUEST SHOULD BE DECLINED. FURTHER, DSA CITES 18 U.S.C. 1905 RELATING TO THE DISCLOSURE OF CONFIDENTIAL INFORMATION GENERALLY AS SUPPORT FOR ITS POSITION IN THE MATTER.

9. REPLACEMENT OF LEONARD VALVES WITH OTHER VALVES WILL COST AN ADDITIONAL $13 PER UNIT. YOU STATE THAT THE VALVES IN QUESTION ARE TO BE USED TO SUPPLEMENT OR TO REPLACE VALVES ORIGINALLY SUPPLIED BY YOU IN 1945 AND IN 1953 AND THAT, WHILE THE REPLACEMENT COST FOR SUBSTITUTION OF A LEONARD VALVE FOR ONE OF THE EXISTING VALVES WOULD BE NEGLIGIBLE, THE INSTALLATION OF VALVES OF OTHER MANUFACTURERS WILL REQUIRE COSTLY ALTERATIONS TO EXISTING PIPING, THE COST OF FITTINGS ALONE BEING APPROXIMATELY $13.56.

ADMINISTRATIVE COMMENTS: DCSC IN THE CENTRAL POINT FOR THE SUPPLY OF THE VALVE TO THE ARMY, THE NAVY AND THE AIR FORCE. INDICATIONS ARE THAT THE VALVE MAY BE USED BY THE VARIOUS SERVICES FOR REPLACEMENT OF EXISTING VALVES AND FOR NEW CONSTRUCTION. FURTHER, SUCH A VALVE NORMALLY DOES NOT WEAR OUT AND, AT MOST, REQUIRES A CHANGE OF THERMOSTAT FROM TIME TO TIME. MOREOVER, THE ADDITIONAL CHARGES, IF ANY, COULD NOT BE CONSIDERED IN EVALUATING THE BIDS IN THE PROCUREMENT IN QUESTION ABSENT LISTING OF SUCH FACTOR AS ONE OF THE CRITERIA FOR BID EVALUATION.

IN ADDITION TO THE AFOREMENTIONED ISSUES, YOU CONTEND THAT THE MILITARY SPECIFICATION REQUIRES STOPS FOR ANY MARK SETTING AND THAT THE ADJUSTABLE STOP FOR LIMITING THE TEMPERATURE DESIRED, WHICH LAWLER OFFERS ON THE VALVE IT PROPOSES TO SUPPLY TO LEVINE, DOES NOT MEET THIS REQUIREMENT. YOUR ATTENTION IS INVITED, HOWEVER, TO THE FACT THAT SUBSECTION 3.5.4 OF THE MILITARY SPECIFICATION REQUIRES "AN ADJUSTABLE STOP FOR LIMITING THE TEMPERATURE RANGE OBTAINABLE FOR ANY MARK SETTING.' IN VIEW THEREOF, IT WOULD APPEAR THAT AN ADJUSTABLE STOP WILL MEET THE SPECIFICATION, AND THAT NO FURTHER DISCUSSION OF YOUR CONTENTION ON THIS POINT IS REQUIRED.

BASED ON THE FOREGOING, IT IS THE POSITION OF THE CONTRACTING OFFICER, WITH WHICH DSA HEADQUARTERS CONCURS, THAT YOUR PROTEST SHOULD BE DENIED.

WITH RESPECT TO THE CHALLENGE BY YOUR ATTORNEYS OF THE DSA POSITION THAT THE PURCHASE DESCRIPTION REQUIREMENT FOR SCREWDRIVER SLOTTED SUPPLY STOPS IS NECESSARY AND REASONABLE AND THEREFORE NOT ERRONEOUS, IT ISOUR VIEW THAT THE FAILURE TO INCLUDE A REQUIREMENT FOR SCREWDRIVER SLOTTED SUPPLY STOPS FOR VALVES OF THE SIZE AND TYPE IN QUESTION IN PRIOR PROCUREMENTS OF THE ITEM DOES NOT OF ITSELF ESTABLISH THAT SUCH REQUIREMENT IS NOT NOW NECESSARY OR REASONABLE. FURTHER, WHILE THE FEDERAL SPECIFICATION REFERRED TO BY THE USING ACTIVITY IN ITS TELETYPE OF OCTOBER 28, WHICH IS ALSO CITED IN THE MILITARY SPECIFICATION, COVERS SMALLER SIZE VALVES AS YOUR ATTORNEYS POINT OUT, IT APPEARS THAT THE REFERENCE BY THE USING ACTIVITY TO THE FEDERAL SPECIFICATION WAS FOR THE PURPOSE OF SHOWING THAT SUCH STOPS ARE REQUIRED ON EXPOSED INSTALLATIONS FOR MAINTENANCE AND SAFETY, AND THAT THE REQUIREMENT FOR SCREWDRIVER SLOTTED STOPS AS SET OUT IN THE SCHEDULE IS THEREFORE REASONABLE. ACCORDINGLY, AND IN THE LIGHT OF THE FACT THAT VALVES OF THE TYPE BEING PROCURED ARE EQUIPPED WITH BOTH SLOTTED SUPPLY STOPS AND CHECK VALVES, AS EVIDENCED BY LAWLER'S STATEMENT AND ITS DRAWING, WE ARE UNABLE TO CONCUR IN YOUR BELIEF THAT THE IFB MUST BE INTERPRETED AS REQUIRING CHECK VALVES RATHER THAN SCREWDRIVER SLOTTED STOPS. WHILE THE FAILURE OF THE DSA TO ASCERTAIN THE POSITION OF THE USING AGENCY PRIOR TO SUBMISSION OF ITS FIRST TWO REPORTS TO THIS OFFICE IS REGRETTABLE, ON THE BASIS OF THE PRESENT RECORD WE ARE UNABLE TO DISAGREE WITH THE POSITION OF THE USING AGENCY THAT BOTH SLOTTED STOPS AND CHECK VALVES ARE NECESSARY. IN THE CIRCUMSTANCES, WE MUST AGREE WITH THE POSITION OF THE DSA THAT INCLUSION OF A REQUIREMENT IN THE PURCHASE DESCRIPTION FOR SLOTTED STOPS, IN ADDITION TO THE REQUIREMENT IN THE MILITARY SPECIFICATION FOR CHECK VALVES, DOES NOT RENDER THE IFB DEFECTIVE. IN THIS CONNECTION, IT IS TO BE NOTED THAT HAD YOU REQUESTED A PRE-BID INTERPRETATION OF THE PURCHASE DESCRIPTION REQUIREMENT AS PROVIDED IN CLAUSE 2, STANDARD FORM 33-A, THE MATTER MIGHT WELL HAVE BEEN CLARIFIED BEFORE YOU SUBMITTED YOUR BID.

WITH RESPECT TO YOUR CONTENTION THAT LEVINE'S BID WAS NOT TIMELY MAILED, UNDER THE REGULATION WHICH GOVERNS CONSIDERATION OF LATE BIDS (ASPR 2- 303), AND THE IFB PROVISION BASED THEREON (CLAUSE 6, STANDARD FORM 33-A), A MAILED BID WHICH IS RECEIVED AT A GOVERNMENT INSTALLATION AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED, MAY BE CONSIDERED FOR AWARD. WE HAVE CONSTRUED SUCH PROVISIONS AS AUTHORIZING CONSIDERATION OF MAILED BIDS, WITHOUT REGARD TO WHETHER CERTIFIED, REGISTERED OR ORDINARY MAIL WAS USED, WHICH ARRIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME PRIOR TO THE SCHEDULED BID OPENING TO HAVE BEEN TIMELY DELIVERED TO THE PLACE DESIGNATED IN THE INVITATION FOR BIDS UNDER ESTABLISHED PROCEDURES BUT NEVERTHELESS DID NOT REACH THE DESIGNATED PLACE UNTIL AFTER THE BID OPENING, THE DELAY IN SUCH CASES BEING REGARDED AS MISHANDLING ON THE PART OF THE GOVERNMENT. 152173, OCTOBER 2, 1963; 42 COMP. GEN. 508, 511.

THE REPORTED FACTS EVIDENCE THAT LEVINE'S MAILED BID, BEARING THE ADDRESS OF THE BID OPENING OFFICE DESIGNATED IN THE IFB AND THE DATE AND TIME OF BID OPENING, AS REQUIRED BY CLAUSE 3 (A), STANDARD FORM 33 A, ARRIVED AT THE DCSC CENTRAL MAIL ROOM BY 10:00 A.M., APRIL 11, 1966, OR 30 MINUTES BEFORE THE SCHEDULED TIME OF BID OPENING; THAT UNDER NORMAL CIRCUMSTANCES DELIVERY BY REGULAR MESSENGER OF REGULARLY SCHEDULED MAIL TO THE BID OPENING ROOM WOULD HAVE BEEN ACCOMPLISHED WITHIN 3 MINUTES AFTER ITS RECEIPT IN THE MAIL ROOM; AND THAT NOTWITHSTANDING DCSC PROCEDURE REQUIRED DELIVERY OF BIDS BY SPECIAL MESSENGER WHERE, AS HERE, THE BID WAS RECEIVED AT A TIME WHEN NO REGULAR MAIL DELIVERY WAS SCHEDULED, THE BID DID NOT REACH THE BID OPENING ROOM UNTIL 30 MINUTES AFTER THE SCHEDULED TIME OF BID OPENING, OR ONE FULL HOUR AFTER ITS RECEIPT IN THE CENTRAL MAIL ROOM. IN THE CIRCUMSTANCES, IT IS OUR VIEW THAT THERE WAS MISHANDLING BY THE GOVERNMENT WITHIN THE MEANING OF THE IFB PROVISIONS AND ASPR 2-303.2 AND THAT THE BID, WITHOUT REGARD TO ANY DELAY WHICH MIGHT HAVE OCCURRED IN THE MAILS EN ROUTE FROM NEW YORK CITY TO COLUMBUS, THEREFORE MUST BE REGARDED AS A MAILED BID WHICH WAS TIMELY RECEIVED AT THE GOVERNMENT INSTALLATION AND WHICH FAILED TO TIMELY REACH THE BID OPENING ROOM DUE TO SUCH MISHANDLING. ACCORDINGLY, THE BID MAY NOT BE ELIMINATED FROM CONSIDERATION ON THE BASIS OF LATE MAILING.

CONCERNING YOUR CONTENTION THAT THE PROCUREMENT MUST BE TREATED AS A BRAND NAME PROCUREMENT, ASPR 1-1206 (B) STATES THAT BRAND NAME OR EQUAL PROCUREMENT PROCEDURES SHOULD BE USED ONLY AS A LAST RESORT. FURTHER, ASPR 1-1202 REQUIRES THE USE OF EXISTING SPECIFICATIONS UNLESS DETERMINED NOT TO MEET THE PARTICULAR NEEDS OF THE PROCURING ACTIVITY. IN THIS CASE, WHILE IT IS TRUE THAT THE FEDERAL STOCK NUMBER DESCRIPTION LISTED YOUR CODE AND PART NUMBERS, THE MILITARY SPECIFICATION APPLICABLE TO THE PROCUREMENT SETS FORTH ONLY THE GOVERNMENT'S MINIMUM REQUIREMENTS IN LINE WITH THE PRINCIPLE THAT ADVERTISED SPECIFICATIONS SHOULD BE STATED IN TERMS PERMITTING THE BROADEST FIELD OF COMPETITION WITHIN THE MINIMUM NEEDS REQUIRED, NOT THE MAXIMUM DESIRED. W. A. SCOTT V. UNITED STATES, 44 CT.CL. 524; UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461; 15 COMP. GEN. 949; 16 ID. 225. ACCORDINGLY, IT IS NOT NECESSARY THAT THE VALVE OFFERED UNDER THE IFB BE THE EQUAL OF YOUR MODEL TM-225, AND IT FOLLOWS THAT NEITHER LEVINE NOR ANY OTHER BIDDER IS REQUIRED TO PROVE SUCH EQUALITY EITHER PRIOR OR SUBSEQUENT TO AWARD.

CONCERNING THE WEIGHT OF THE VALVE OFFERED BY LEVINE, WE CONCUR WITH THE CONCLUSION OF THE DCSC THAT SINCE LEVINE'S NET F.O.B. DESTINATION BID IS LOWER THAN BOTH YOUR F.O.B. ORIGIN AND F.O.B. DESTINATION BIDS, THE ISSUE HAS NO BEARING ON THE STANDARD OF THE BIDDERS.

REGARDING THE ADMINISTRATIVE DETERMINATION THAT LAWLER HAS THE CAPABILITY TO FURNISH THE REQUIRED ITEM WITHIN THE NECESSARY DELIVERY TIME, YOU ARE ADVISED THAT NORMALLY THE DETERMINATION OF THE RESPONSIBILITY OF A SUBCONTRACTOR RESTS WITH THE PRIME CONTRACTOR. HOWEVER, UNDER ASPR 1-906 (B), AND THE TERMS OF CLAUSE 21, STANDARD FORM 33-A BASED THEREON, THE CONTRACTING AGENCY MAY, IN THE INTERESTS OF THE GOVERNMENT, MAKE A DIRECT DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE SUBCONTRACTOR PRIOR TO AWARD OF THE PRIME CONTRACT, THE DETERMINATION TO BE BASED ON THE SAME FACTORS AS ARE APPLICABLE IN A DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE PRIME CONTRACTOR. IN THIS CONNECTION, THE RULE IS WELL ESTABLISHED THAT ABSENT LACK OF SUFFICIENT EVIDENCE TO SUPPORT THE ADMINISTRATIVE DETERMINATION OR EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION, OUR OFFICE WILL NOT QUESTION AN ADMINISTRATIVE DETERMINATION AS TO THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. IN THE LIGHT OF THE INFORMATION DISCLOSED BY THE PREAWARD SURVEY AND OF THE REPORTED FACTS, IT IS OUR VIEW THAT THE RECORD SUPPORTS THE DETERMINATION THAT LAWLER IS CAPABLE OF FULFILLING THE PROCUREMENT NEEDS.

CONCERNING YOUR REQUEST THAT YOU BE PERMITTED TO SEE THE PORTIONS OF THE PREAWARD SURVEY REPORT ON LAWLER WHICH FORM THE BASIS FOR THE ADMINISTRATIVE CONCLUSION REGARDING LAWLER'S CAPABILITY, WE MUST CONCUR WITH THE VIEW OF DSA THAT DISCLOSURE OF SUCH INFORMATION IS PRECLUDED BY ASPR 1-907, A STATUTORY REGULATION, WHICH HAS THE FORCE AND EFFECT OF LAW. IT MAY BE NOTED, HOWEVER, THAT THE PURPOSE OF THE PREAWARD SURVEYS WAS TO DETERMINE ONLY THE RESPONSIBILITY OF BOTH LEVINE AND OF LAWLER, AND NOT THE RESPONSIVENESS OF LEVINE'S BID, A MATTER WHICH IS ALSO PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND WHICH MUST BE DECIDED ON THE BASIS OF THE BID AS TIMELY SUBMITTED, WITHOUT REGARD TO LEVINE'S SUBSEQUENT STATEMENTS. IN THIS CONNECTION, HOWEVER, IT IS ALSO TO BE NOTED THAT LEVINE'S BID OFFERS COMPLIANCE WITH THE DELIVERY SCHEDULE; THAT THERE IS NO INDICATION THAT SUCH SCHEDULE CANNOT BE MET; AND THAT LEVINE HAS NOT QUESTIONED THE SPECIFICATIONS.

WITH RESPECT TO POSSIBLE ADDITIONAL COSTS ATTENDANT UPON USE OF THE VALVES AS REPLACEMENT FOR EXISTING VALVES OF YOUR MANUFACTURE, IT WOULD APPEAR THAT YOUR ESTIMATE OF SUCH COSTS IS BASED UPON THE ASSUMPTION THAT LEVINE WILL FURNISH A VALVE WHICH LAWLER PRESENTLY HAS IN PRODUCTION. SINCE THIS ASSUMPTION IS ERRONEOUS, AND SINCE THE ADMINISTRATIVE REPORT DOES NOT APPEAR TO SUPPORT YOUR BELIEF THAT THE VALVES ARE SOLELY FOR REPLACEMENT PURPOSES, WE SEE NO VALID BASIS ON WHICH COSTS OF THIS NATURE COULD PROPERLY BE INCLUDED IN THE EVALUATION OF LEVINE'S BID.

IN VIEW OF THE FOREGOING, IT IS OUR VIEW THAT THE LEVINE BID, WHICH TAKES NO EXCEPTION TO THE IFB, OR TO THE MILITARY SPECIFICATION WHICH INCLUDES QUALITY ASSURANCE PROVISIONS PRESCRIBING INSPECTION AND TESTING BEFORE ACCEPTANCE OF THE ITEM BY THE GOVERNMENT, MAY PROPERLY BE CONSIDERED FOR AWARD. IN VIEW OF SUCH CONCLUSION, IT FOLLOWS THAT SINCE LEVINE IS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER, THE PROCURING ACTIVITY NEED NOT DEVELOP THE CIRCUMSTANCES SURROUNDING THE ALLEGED MISTAKE IN YOUR BID, THE INTENDED AMOUNT OF WHICH IS NOT ASCERTAINABLE FROM THE BID ITSELF, AND YOUR POST BID OPENING MODIFICATION INCREASING THE DISCOUNT IN YOUR BID THEREFORE MAY NOT BE CONSIDERED.