B-159303, AUG. 9, 1966

B-159303: Aug 9, 1966

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TO EVERITE MACHINE PRODUCTS CO.: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MAY 27. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR LETTER OF JUNE 28. AS FOLLOWS: "/A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A "BRAND NAME" OR "EQUAL" DESCRIPTION. SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE. IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BID. "/B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN "EQUAL" PRODUCT.

B-159303, AUG. 9, 1966

TO EVERITE MACHINE PRODUCTS CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MAY 27, 1966, WITH ENCLOSURE, PROTESTING THE ACTION OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), MANNED SPACECRAFT CENTER, HOUSTON, TEXAS, IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. BG821- S13-6-240B. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR LETTER OF JUNE 28, 1966.

THE INVITATION REQUESTED BIDS FOR FURNISHING ONE MACHINE GRINDER DESCRIBED AS FOLLOWS:

"MACHINE GRINDER--- SHALL BE HAMMOND MODEL CBE-77 OSCILLATING CUP WHEEL AND CHIP BREAKER ELECTROLYTIC GRINDER WITH THE FOLLOWING STANDARD EQUIPMENT, AND IN ACCORDANCE TO ATTACHED SPECIFICATIONS, OR EQUAL.'

THE ATTACHED SPECIFICATIONS SET FORTH THE SALIENT FEATURES OF THE GRINDER ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. IN ADDITION, THE INVITATION UNDER CLAUSE ENTITLED "BRAND NAME OR EQUAL," PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"/A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A "BRAND NAME" OR "EQUAL" DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BID.

"/B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN "EQUAL" PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BID.

"/C) (1) IF THE BIDDER PROPOSES TO FURNISH AN "EQUAL" PRODUCT THE BRAND NAME, IF ANY, OR THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCTS 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 FURNISHED MAY INCLUDE SPECIFIC REFERENCES TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY.'

BIDS WERE OPENED ON MAY 2, 1966. THE FOLLOWING BIDS WERE RECEIVED:

TABLE

BIDDER TOTAL BID PRICE

EVERITE MACHINE PRODUCTS CO. $10,850.00

WESSENDORFF, NELMS AND CO. 16,470.00

HAMMOND MACHINERY BUILDERS, INC. 16,472.53

IN YOUR BID YOU OFFERED TO FURNISH YOUR EVERITE MODEL H4A GRINDER AS AN EQUAL IN LIEU OF THE BRAND NAME SPECIFIED. YOUR BID REFERENCED AN ATTACHMENT WHICH LISTED THE STANDARD AND OPTIONAL EQUIPMENT OF YOUR MACHINE AND REFERRED TO AN ENCLOSED BROCHURE FOR ILLUSTRATION OF SUCH MACHINE. YOUR BID AND ACCOMPANYING INFORMATION WERE FORWARDED BY THE CONTRACTING OFFICER TO THE TECHNICAL SERVICES DIVISION FOR EVALUATION OF THE EQUIPMENT OFFERED BY YOUR FIRM. BY MEMORANDUM DATED MAY 9, 1966, THE TECHNICAL SERVICES DIVISION ADVISED THE CONTRACTING OFFICER THAT YOUR BID WAS TECHNICALLY UNACCEPTABLE BECAUSE THE EQUIPMENT OFFERED BY YOUR FIRM FAILED TO MEET THE MINIMUM REQUIREMENTS OF THE INVITATION FOR BIDS IN TWO AREAS. THE TECHNICAL SERVICES DIVISION HAS REPORTED THE VARIATIONS OFFERED BY YOUR FIRM TO BE AS FOLLOWS:

"THIS PROCUREMENT IS FOR A HAMMOND ELECTROLYTIC MODEL CBE-77 OSCILLATING CUP WHEEL AND CHIP BREAKER GRINDER OR EQUAL, WITH ASSOCIATED EQUIPMENT AND IN ACCORDANCE WITH THE LISTED SPECIFICATION.

"EVERITE MACHINE PRODUCTS COMPANY QUOTING ON THEIR H4A MODEL: THIS BID IS CONSIDERED TECHNICALLY UNACCEPTABLE SINCE IT FAILS TO MEET MINIMUM CRITERIA IN AT LEAST TWO AREAS. DEVIATIONS NOTED ARE OF MAJOR IMPORTANCE; MINOR DEVIATIONS HAVE NOT BEEN CONSIDERED.

"A. PAGE 1, PARAGRAPH 3, OF SUBJECT IFB SPECIFICATIONS: SPINDLE SPEEDS SHALL BE APPROXIMATELY 3,000 RPM, OSCILLATE AT APPROXIMATELY 60 STROKES PER MINUTE THROUGH A VARIABLE STROKE RANGE 0 TO 1 1/2 INCHES OR MORE.'

"EXCEPTION: PAGE 3 OF THE EVERITE MACHINE BROCHURE INDICATES THE TABLE OF THE EVERITE MACHINE OSCILLATES, NOT THE SPINDLE, AS REQUIRED BY THE IFB SPECIFICATIONS. THIS TYPE OF MECHANICAL ACTION WOULD UNDULY INCREASE PRODUCTION COSTS REQUIRING MACHINE STOPPAGE FOR EACH TOOL CHANGE, INDUCE A MACHINE OPERATOR SAFETY HAZARD, AND INCREASE TOOLING AND FIXTURING COSTS, ALSO LIMIT THE FULL INTENDED USE OF THIS MACHINE.

"B. PAGE 1, PARAGRAPH 5, OF THE SUBJECT IFB SPECIFICATIONS: "THE TABLE SHALL BE PROVIDED WITH AN AIR FEED, STARTED BY PUSHBUTTON AND AUTOMATIC RETRACTION.'

"EXCEPTION: THE EVERITE MACHINE DOES NOT HAVE A POWERED FEED TO THE TABLE. AS AN ALTERNATE FOR THIS REQUIREMENT, EVERITE MACHINE PRODUCTS COMPANY IS OFFERING A TOOL HOLDING FIXTURE WITH POWER FEED. THIS FEED CAPABILITY IS LIMITED TO THE USE OF THE FIXTURE ONLY AND CANNOT BE CONSIDERED AS AN ACCEPTABLE ALTERNATE FOR A TABLE FEED.

"THE ABOVE CITED FEATURES ARE THE MINIMUM REQUIREMENTS OF THE GOVERNMENT AS STATED WITHIN THE SPECIFICATIONS.'

SUBSEQUENTLY, THE TECHNICAL SERVICES DIVISION ADVISED THE CONTRACTING OFFICER THAT THE BROCHURE SUBMITTED WITH YOUR BID CONTAINED THE SPECIFICATIONS FOR AN EVERITE MODEL H4 GRINDER RATHER THAN THE SPECIFICATIONS FOR AN EVERITE MODEL H4A GRINDER, THE MODEL WHICH YOU OFFERED TO FURNISH IN YOUR BID. SINCE YOUR BID DID NOT STATE WHAT DIFFERENCES THERE WERE BETWEEN YOUR MODEL H4 AND H4A GRINDERS, AN EFFORT WAS MADE BY THE CONTRACTING OFFICE TO LOCATE SUCH INFORMATION WITHIN THE MANNED SPACECRAFT CENTER BUT WITHOUT SUCCESS. IT WAS THEREFORE DETERMINED BY THE CONTRACTING OFFICER THAT THE DESCRIPTIVE LITERATURE NECESSARY TO ESTABLISH EXACTLY WHAT YOUR FIRM PROPOSED TO FURNISH AS AN "EQUAL" PRODUCT WAS NOT REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY AS REQUIRED BY THE "BRAND NAME OR EQUAL" PROVISION OF THE INVITATION FOR BIDS. ON THAT BASIS, YOUR BID WAS CONSIDERED BY THE CONTRACTING OFFICER AS BEING NONRESPONSIVE TO THE INVITATION FOR BIDS. ON MAY 20, 1966, AN AWARD WAS MADE TO WESSENDORFF, NELMS AND CO., THE LOWEST RESPONSIVE BIDDER WHO OFFERED TO FURNISH THE BRAND NAME MODEL SPECIFIED IN THE INVITATION FOR BIDS. ON THE SAME DATE YOUR FIRM WAS NOTIFIED OF THE AWARD MADE TO WESSENDORFF.

THE RECORD INDICATES THAT IN A TELEPHONE CONVERSATION ON MAY 26, 1966, THE CONTRACTING OFFICER ADVISED MR. WEBER OF YOUR FIRM THAT YOUR FIRM'S BID HAD BEEN DECLARED NONRESPONSIVE TO THE INVITATION BECAUSE IT STATED THAT "EVERITE OFFERS ITS MODEL H4-A IN LIEU OF HAMMOND MODEL CBE-77 MACHINE" BUT THAT THE DESCRIPTIVE LITERATURE SUBMITTED WITH THE BID CONSISTED OF A BROCHURE COVERING A MODEL H4 GRINDER; THAT MR. WEBER INFORMED THE CONTRACTING OFFICER THAT A MODEL H4 GRINDER AND A MODEL H4A GRINDER ARE THE SAME AND THAT HE HAD GIVEN THIS INFORMATION TO THE BUYER OVER THE TELEPHONE AFTER THE BID OPENING; AND THAT THE CONTRACTING OFFICER THEN ADVISED MR. WEBER THAT A BID MUST CONTAIN ALL PERTINENT INFORMATION AT THE TIME OF THE BID OPENING AND THAT NO ADDITIONS OR CHANGES MAY BE MADE THEREAFTER. IN A LETTER DATED MAY 26, 1966, YOUR FIRM STATED THAT THE STANDARD EVERITE MODEL H4A MACHINE IS AN IMPROVED VERSION OF THE MODEL H4 MACHINE.

YOU STATE THAT THE MODEL YOUR FIRM OFFERED TO FURNISH AND THE BRAND NAME MODEL SPECIFIED IN THE INVITATION CONFORM TO MILITARY SPECIFICATION MIL-E- 80022 AND ARE THEREFORE CONSIDERED TO BE EQUAL. YOU CONTEND THAT THE SPECIFICATIONS USED IN THE PROCUREMENT ARE APPARENTLY RESTRICTIVE TO THE BRAND NAMED IN THE INVITATION SINCE A NASA REPRESENTATIVE REFUSED YOUR FIRM'S OFFER TO DEMONSTRATE THE "EQUAL" PERFORMANCE BY SHOWING HIM ONE OF YOUR MACHINES IN OPERATION AT ONE OF THE PLANTS IN THE HOUSTON, TEXAS, AREA.

IN REGARD TO MILITARY SPECIFICATION MIL-E-80022, IT IS REPORTED THAT THE REFERRED-TO SPECIFICATION COVERS GRINDERS FOR GENERAL PURPOSE MACHINE SHOP PRACTICE, NOT SUITED TO USE IN NASA'S EXPERIMENTAL PROGRAMS; THAT THE SPECIFIC APPLICATION OF THE GRINDER BEING PROCURED BY NASA REQUIRES AN OSCILLATING WHEEL AND A TABLE FEED, WHILE THE MILITARY SPECIFICATION ALLOWS EITHER AN OSCILLATING WHEEL OR TABLE AND DOES NOT PROVIDE FOR A TABLE FEED. IT IS STATED THAT THE OSCILLATING TABLE WITH WHICH YOUR MACHINE IS EQUIPPED WOULD NOT MEET NASA'S REQUIREMENTS BECAUSE THE ACTION OF THE TABLE WOULD REQUIRE MORE EXOTIC FIXTURING AND WOULD PRESENT WORK- HOLDING PROBLEMS IN EXTENDED USE. IT ALSO IS STATED THAT A TABLE FEED IS REQUIRED SO THAT THE ENTIRE TABLE MAY BE USED AS A WORK-HOLDING SURFACE WHILE USING THE FEED.

THE CONTRACTING OFFICER HAS TAKEN THE POSITION THAT YOUR BID ON THE GRINDER WAS PROPERLY REJECTED. IT IS HIS OPINION THAT, WHILE A BRAND NAME WAS USED IN THE GOVERNMENT'S DESCRIPTION OF THE UNIT WHICH IT DESIRED TO PURCHASE, THE CONTROLLING FACTOR IS WHETHER THE PRODUCT OFFERED BY YOUR FIRM MEETS THE BASIC REQUIREMENTS OF THE INVITATION, INCLUDING THE CHARACTERISTICS WHICH WERE ADDED TO COVER THE PARTICULAR NEEDS OF THE GOVERNMENT. HE CONCLUDES THAT, TO BE RESPONSIVE TO THE INVITATION, THE MODEL OFFERED IN YOUR BID MUST NOT ONLY BE EQUAL TO THE CITED HAMMOND MODEL BUT MUST ALSO MEET THE OTHER REQUIREMENTS AS STATED IN THE ATTACHED SPECIFICATION SHEET.

WE AGREE WITH THE CONTRACTING OFFICER THAT THE BID OF YOUR FIRM WAS NOT RESPONSIVE TO THE INVITATION IN CERTAIN MATERIAL RESPECTS AND, AS SUCH, WAS PROPERLY REJECTED.

WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER ADVERTISED SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION, WE CANNOT, ON THE PRESENT RECORD, CONCLUDE THAT THE MANNED SPACE-CRAFT CENTER WAS NOT JUSTIFIED IN SPECIFYING THE REQUIREMENTS WHICH YOUR OFFERED EQUIPMENT FAILS TO MEET. AS STATED IN 36 COMP. GEN. 251, THERE IS NO REQUIREMENT THAT THE UNITED STATES 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 CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEEDS. THE OBJECTIVE TO BE ACHIEVED IS THE DRAFTING OF SPECIFICATIONS WHICH WILL NOT BE UNDULY RESTRICTIVE OF COMPETITION. BUT IT IS NEVERTHELESS PROPER FOR THE GOVERNMENT CONTRACTING AGENCY TO ADVERTISE FOR BIDS ON THE BASIS OF OBTAINING EQUIPMENT WHICH WILL FULFILL ITS NEEDS.