B-160830, MAR. 20, 1967

B-160830, MAR. 20, 1967

TO THE PALTIER CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 2, 1967, WITH ENCLOSURE, PROTESTING THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN THE PALTIER CORPORATION UNDER INVITATION FOR BIDS NO. DSA-400-67-B 2600, DEFENSE GENERAL SUPPLY CENTER, (DGSC), RICHMOND, VIRGINIA.

INVITATION FOR BIDS NO. DSA-400-67-B-2600 WAS ISSUED ON OCTOBER 24,1966, AND REQUESTED BIDS ON SUPPLYING ONE LOT OF PALLET RACKS, BOLTLESS ADJUSTABLE TYPE, DOUBLE OPENING, IN ACCORDANCE WITH DGSC PURCHASE DESCRIPTION 128, DATED APRIL 8, 1965, TYPE II, WITH COMPONENTS AND DEVIATIONS CITED IN THE INVITATION. BIDS WERE SOLICITED ON AN F.O.B. ORIGIN DELIVERY BASIS.

BIDS WERE OPENED AS SCHEDULE ON NOVEMBER 18, 1966, AND FOUR BIDS WERE RECEIVED. THE EVALUATED BIDS OF THE THREE LOWEST BIDDERS WERE AS FOLLOWS:

CHART

BIDDER EVALUATED ITEM PRICE

THE PALTIER CORPORATION $3,603.30

UNARCO INDUSTRIES, INC. $3,648.94

PALMER-SHILE COMPANY $3,675.33

THE PALTIER CORPORATION SUBMITTED THE LOW BID. ALTHOUGH THE INVITATION DID NOT REQUIRE THE SUBMISSION OF DESCRIPTIVE LITERATURE, THE PALTIER CORPORATION INSERTED ITS OWN DRAWINGS BETWEEN PAGES 4 AND 5 OF ITS BID. THE DRAWINGS WERE CONSIDERED AS A PART OF THE BID SINCE THEY WERE INSERTED IN THE INVITATION, IDENTIFIED THE INVITATION NUMBER AND BID SUBMISSION DATE AND CONTAINED THE NAME OF THE PROCURING AGENCY UNDER THE LEGEND "CUSTOMER.' THE BID AND DRAWINGS WERE REFERRED TO TECHNICAL PERSONNEL FOR EXAMINATION. THE TECHNICAL PERSONNEL OF THE SUPPLY CENTER DETERMINED THAT THE ITEM AS DESCRIBED IN THE PALTIER CORPORATION'S DRAWINGS WAS NONCONFORMING TO THE PURCHASE DESCRIPTION REQUIREMENTS IN SEVERAL MATERIAL AREAS, AS FOLLOWS:

(1) PARAGRAPH 3.2.3 OF THE SPECIFICATION, DGSC PD 128, SPECIFIED A MAXIMUM SHELF BEAM DEPTH OF 4-3/4 INCHES WHEREAS PALTIER CORPORATION'S DRAWINGS SHOW A BEAM DEPTH OF 5 INCHES.

(2) PARAGRAPH 3.3F OF THE SPECIFICATION PROVIDES THAT EACH UPRIGHT FRAME SHALL HAVE SUFFICIENT STRENGTH AND RIGIDITY TO SUSTAIN AN AXIALLY APPLIED LOAD OF 42,000 POUNDS EVENLY DISTRIBUTED BETWEEN BOTH POSTS. PALTIER CORPORATION'S DRAWING NO. 9125-AQ PROVIDES FOR AN UPRIGHT CAPACITY OF 24,800 POUNDS.

(3) PARAGRAPH 3.3D OF THE SPECIFICATION PROVIDES THAT EACH SHELF SHALL BE DESIGNED FOR 6,000 POUND CAPACITY WITH A SAFETY FACTOR OF NOT LESS THAN 1.65, AND SHALL HAVE SUFFICIENT STRENGTH AND RIGIDITY TO SUSTAIN A UNIFORMLY DISTRIBUTED LOAD OF 9,900 POUNDS. PALTIER CORPORATION'S DRAWING PROVIDES FOR A MAXIMUM LOAD PER SHELF OF 6,000 POUNDS WITHOUT PROVISION OR REPRESENTATION AS TO A SPECIFIC SAFETY FACTOR.

(4) PARAGRAPH 3.3E OF THE SPECIFICATION PROVIDES THAT EACH OF THE FRONT- TO-BACK MEMBERS OF THE RACK SHALL BE CAPABLE OF SUSTAINING A 1,750 POUND LOAD WITH A SAFETY FACTOR OF NOT LESS THAN 1.65 AND SHALL HAVE SUFFICIENT STRENGTH AND RIGIDITY TO SUSTAIN A UNIFORMLY DISTRIBUTED LOAD OF 2,887 POUNDS. PLATIER CORPORATION'S DRAWING PROVIDES FOR A FRONT-TO-BACK MEMBER CAPACITY OF 1,990 POUNDS WITHOUT PROVISION OR REPRESENTATION AS TO A SPECIFIC SAFETY FACTOR.

IT IS ADMINISTRATIVELY REPORTED THAT THE BID OF THE PALTIER CORPORATION WAS REJECTED AS NONRESPONSIVE PURSUANT TO ASPR SECTION 2 404.2 (B) AND THAT THE PALTIER CORPORATION WAS ADVISED OF THE DETERMINATION BY LETTER OF JANUARY 27, 1967. HOWEVER, THE NOTICE OF REJECTION DID NOT FULLY EXPLAIN THE BASIS FOR REJECTION OF THE BID. AWARD UNDER THE SUBJECT INVITATION WAS MADE TO UNARCO INDUSTRIES, INCORPORATED, THE LOW RESPONSIVE, RESPONSIBLE BIDDER ON JANUARY 24, 1967.

YOU PROTEST THAT YOUR BID WAS THE LOWEST OF ALL BIDS SUBMITTED, AND TO HAVE IT REJECTED BECAUSE THE BEAM YOUR PROPOSED TO FURNISH WAS FIVE INCHES DEEP INSTEAD OF THE SPECIFIED 4 3/4 INCHES "IS RIDICULOUS.'

IN OUR DECISION OF JUNE 26, 1963, B-151416, WE HELD THAT A LOW BID WHICH WAS INADVERTENTLY ACCOMPANIED BY DESCRIPTIVE DATE INDICATING THAT THE EQUIPMENT OFFERED DID NOT CONFORM MATERIALLY TO FEDERAL SPECIFICATIONS WAS PROPERLY REJECTED AS NONRESPONSIVE, EVEN THOUGH THE BIDDER ALLEGED THAT THE MATERIAL WAS MEANINGLESS AND SHOULD BE DISREGARDED, SINCE THE RULE IS THAT A BID ATTACHMENT IS AN INTEGRAL PART OF THE BID AND TAKES PRECEDENCE OVER FEDERAL SPECIFICATIONS. HENCE, IT WAS NECESSARY TO CONSIDER ALL DETAILS IN THE PALTIER CORPORATION'S DRAWINGS AS THEY RELATED TO THE SPECIFICATION SET FORTH IN THE INVITATION FOR BIDS.

ALTHOUGH THE NOTICE OF REJECTION OF THE PALTIER CORPORATION BID LISTED ONLY ONE AREA OF NONCONFORMANCE WHICH UNDER OTHER CIRCUMSTANCES MIGHT HAVE BEEN CONSIDERED A MINOR DEVIATION, IN THE PRESENT MATTER, IN CONJUNCTION WITH OTHER DEVIATIONS SET OUT ABOVE, IT CANNOT BE CONCLUDED THAT THE REJECTION OF THE PALTIER CORPORATION'S BID WAS IMPROPER. TECHNICAL PERSONNEL ARE CONSIDERING ALLOWANCE OF A BEAM DEPTH OF 5 INCHES FOR FUTURE PROCUREMENTS.

WE MUST ASSUME THAT THE SPECIFICATIONS, AS INCLUDED IN THE INVITATION FOR BIDS, REFLECTED THE EXACT NATURE OF THE ITEM DESIRED BY THE PROCURING AGENCY, AND WHICH, IN ITS OPINION, WOULD BEST SERVE THE GOVERNMENT'S INTEREST. THIS IS NOT A MATTER FOR OUR DETERMINATION. OUR FUNCTION IS TO MONITOR CONTRACTS TO SEE THAT STATUTES AND REGULATIONS ARE ADHERED TO; THAT THE BEST INTERESTS OF THE GOVERNMENT ARE SERVED; AND THAT THE COMPETITIVE SYSTEM OF PROCUREMENT IS PRESERVED. IN THIS MATTER THREE FIRMS OFFERED BIDS ON AN ITEM WHICH ACCORDED WITH THE ADVERTISED SPECIFICATIONS. YOUR BID OFFERED AN ITEM NOT IN CONFORMITY WITH THE SPECIFICATIONS, AND, HENCE, COULD NOT BE EQUATED ON A COMPETITIVE BASIS. WE MUST THEREFORE CONCLUDE THAT THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID IS CORRECT AND YOUR PROTEST MUST BE DENIED.