B-161121, B-161194, APR. 29, 1968

B-161121,B-161194: Apr 29, 1968

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TO HOOF PRODUCTS COMPANY: FURTHER REFERENCE IS MADE TO THE REQUEST OF THE MAIN OFFICE OF YOUR COMPANY IN CHICAGO. THAT IT IS THE DUTY AND OBLIGATION OF THE GOVERNMENT TO HAVE THE INFORMATION NECESSARY TO EVALUATE OFFERED "OR EQUAL" ITEMS OF EQUIPMENT. THE VIEW WAS EXPRESSED THAT A REFUSAL TO CONSIDER THE DRAWINGS SUBMITTED WITH THE COMPANY'S PROPOSALS. WAS CONTRARY TO ESTABLISHED BIDDING PROCEDURES AND MADE THE COMPANY'S PROPOSALS MEANINGLESS. IT WAS INDICATED THAT CONTRACTS UNDER THE TWO REQUESTS FOR PROPOSALS HAD BEEN AWARDED TO PIERCE GOVERNOR COMPANY. IT WAS SUGGESTED THAT TELEPHONE CALLS TO THOSE COMPANIES COULD HAVE OBTAINED FOR THE CONTRACTING OFFICER COMPLETE DRAWINGS AND INFORMATION TO ALLOW HIM TO EVALUATE THE PROPOSALS OF THE HOOF PRODUCTS COMPANY.

B-161121, B-161194, APR. 29, 1968

TO HOOF PRODUCTS COMPANY:

FURTHER REFERENCE IS MADE TO THE REQUEST OF THE MAIN OFFICE OF YOUR COMPANY IN CHICAGO, ILLINOIS, THAT WE ADDRESS FURTHER CORRESPONDENCE TO YOU IN THE MATTER OF ITS PROTESTS AGAINST THE REJECTION OF THE HOOF PRODUCTS COMPANY'S PROPOSALS SUBMITTED IN RESPONSE TO REQUESTS FOR PROPOSALS NOS. DSA-700-67-R-4748 AND DSA-700-67-R-5947, ISSUED ON NOVEMBER 22, 1966, AND JANUARY 31, 1967, BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, DEFENSE SUPPLY AGENCY (DCSC), COLUMBUS, OHIO.

THE HOOF PRODUCTS COMPANY CONTENDED IN LETTERS OF PROTEST DATED MARCH 22 AND APRIL 3, 1967, TO OUR OFFICE, THAT IT IS THE DUTY AND OBLIGATION OF THE GOVERNMENT TO HAVE THE INFORMATION NECESSARY TO EVALUATE OFFERED "OR EQUAL" ITEMS OF EQUIPMENT. THE VIEW WAS EXPRESSED THAT A REFUSAL TO CONSIDER THE DRAWINGS SUBMITTED WITH THE COMPANY'S PROPOSALS, AND THE SAMPLE SUBMITTED IN THE CASE OF REQUEST FOR PROPOSALS NO. DSA-700-67-R- 5947, WAS CONTRARY TO ESTABLISHED BIDDING PROCEDURES AND MADE THE COMPANY'S PROPOSALS MEANINGLESS. IT WAS INDICATED THAT CONTRACTS UNDER THE TWO REQUESTS FOR PROPOSALS HAD BEEN AWARDED TO PIERCE GOVERNOR COMPANY, INCORPORATED, UPLAND, INDIANA, AND TO THE KING-SEELEY DIVISION OF THE KING-SEELEY THERMOS COMPANY, ANN ARBOR, MICHIGAN. ALSO, IT WAS SUGGESTED THAT TELEPHONE CALLS TO THOSE COMPANIES COULD HAVE OBTAINED FOR THE CONTRACTING OFFICER COMPLETE DRAWINGS AND INFORMATION TO ALLOW HIM TO EVALUATE THE PROPOSALS OF THE HOOF PRODUCTS COMPANY.

PROPOSALS WERE SOLICITED UNDER REQUEST FOR PROPOSALS NO. DSA-700-67 R- 4748 FOR THE FURNISHING OF 100 GOVERNORS TO BE USED ON HERCULES GASOLINE ENGINE GENERATOR SETS (ITEM NO. 1), AND FOR THE FURNISHING OF 100 GOVERNORS TO BE USED ON HERCULES GASOLINE ENGINE GENERATOR SETS (ITEM NO. 2). THE ITEM DESCRIPTIONS CONTAINED REFERENCES TO MODELS OF GOVERNORS MANUFACTURED BY PIERCE GOVERNOR COMPANY, INCORPORATED. THE PIERCE MODEL REFERRED TO IN ITEM NO. 2 WAS IDENTIFIED AS PART NO. GC 3349.

PROPOSALS WERE SOLICITED UNDER REQUEST FOR PROPOSALS NO. DSA-700-67 R- 5947 FOR THE FURNISHING OF 500 GASOLINE GOVERNORS TO BE USED ON FORK LIFT TRUCKS, HYSTER MODEL H100C-AF-48. THE ITEM DESCRIPTION REFERRED TO MODELS OF GOVERNORS MANUFACTURED BY THE KING-SEELEY DIVISION OF THE KING-SEELEY THERMOS COMPANY, THE HYSTER COMPANY AND THE CHEVROLET MOTOR DIVISION OF THE GENERAL MOTORS CORPORATION. THE TWO LISTED KING SEELEY MODELS OF GASOLINE GOVERNORS WERE IDENTIFIED AS KING-SEELEY PART NOS. 601-642D AND 601-642.

THE SCHEDULES OF THE TWO REQUESTS FOR PROPOSALS INCORPORATED THE PROVISIONS OF CLAUSE 2.102 OF THE DCSC CONTRACT CLAUSE BOOK. CLAUSE 2.102 INDICATES THAT THE GOVERNMENT WOULD CONSIDER OFFERS OTHER THAN FROM THE MANUFACTURERS OF THE REFERENCED MODELS OF EQUIPMENT IF CERTAIN CONDITIONS WERE MET. IT REQUIRES THE PRODUCTS OFFERED TO BE IDENTICAL TO OR FUNCTIONALLY, PHYSICALLY, MECHANICALLY AND ELECTRICALLY INTERCHANGEABLE WITH THE PRODUCTS CITED IN THE GOVERNMENT'S ITEM DESCRIPTIONS. THE CLAUSE STATES THAT, FOR EVALUATION PURPOSES, OFFERORS ARE REQUIRED TO INDICATE, BY MARKING THE APPROPRIATE BLOCK/S), WHICH OF FOUR SITUATIONS IS APPLICABLE TO EACH ITEM UPON WHICH THEY ARE BIDDING, AND TO FURNISH "WHATEVER SUPPORTING INFORMATION IS REQUIRED BELOW.'

THE LISTED SITUATION (4) CONCERNS OFFERS TO FURNISH PRODUCTS BELIEVED BY THE OFFEROR TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCTS REFERENCED IN THE GOVERNMENT'S ITEM DESCRIPTIONS. THE NOTE MADE APPLICABLE TO SITUATION (4) OFFERS PROVIDES:

"OFFERORS MUST FURNISH WITH THEIR PROPOSALS DRAWINGS AND OTHER INFORMATION AS TO THEIR PRODUCT AND THE PRODUCT REFERENCED TO ESTABLISH THAT THE PRODUCT OFFERED IS EQUAL TO THE PRODUCT REFERENCED IN THE ITEM DESCRIPTION.'

THE HOOF PRODUCTS COMPANY SUBMITTED PROPOSALS FOR DELIVERY OF 100 GASOLINE GOVERNORS UNDER ITEM NO. 2 OF THE FIRST REQUEST FOR PROPOSALS, AND FOR THE FURNISHING OF 500 GASOLINE GOVERNORS UNDER THE SECOND REQUEST FOR PROPOSALS. THE PRODUCTS BID ON WERE IDENTIFIED AS HOOF PRODUCTS COMPANY PART NOS. GS307-C4146 AND S30M-145. IN EACH CASE THE COMPANY MARKED THE BLOCK FOR SITUATION (4) OF CONTRACT CLAUSE 2.102, INDICATING THAT THE OFFERED GASOLINE GOVERNORS WERE CONSIDERED TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCT REFERENCED IN THE GOVERNMENT'S ITEM DESCRIPTION.

THE PRICES QUOTED BY THE HOOF PRODUCTS COMPANY WERE IN THE RESPECTIVE TOTAL AMOUNTS OF $2,850 AND $3,445. HOWEVER, CONTRACTS WERE AWARDED TO PIERCE GOVERNOR COMPANY, INCORPORATED, AND TO THE KING SEELEY DIVISION OF THE KING-SEELEY THERMOS COMPANY AT TOTAL PRICES IN THE RESPECTIVE SUMS OF $5,910 AND $3,875, EXCLUSIVE OF THE PRICE QUOTED BY THE PIERCE GOVERNOR COMPANY, INCORPORATED, ON ITEM NO. 1 OF THE FIRST REQUEST FOR PROPOSALS. THE OFFER ACCEPTED ON ITEM NO. 2 OF THE FIRST REQUEST FOR PROPOSALS REQUIRES THE DELIVERY OF 100 PIERCE GASOLINE GOVERNORS, PART NO. GC 3349 R1, AND THE OFFER ACCEPTED UNDER THE SECOND REQUEST FOR PROPOSALS REQUIRED THE DELIVERY OF 500 KING SEELEY GASOLINE GOVERNORS, PART NO. 601-642D.

THE HOOF PRODUCTS COMPANY SUBMITTED DRAWINGS WITH ITS PROPOSALS AND A SAMPLE OF THE PRODUCT OFFERED BY THE COMAPNY UNDER ITS SECOND PROPOSAL WAS ALSO SUBMITTED. HOWEVER, THE COMPANY DID NOT COMPLY FULLY WITH THE REQUIREMENTS OF THE NOTE MADE APPLICABLE TO SITUATION (4) OFFERS, SINCE NO DRAWINGS WERE FURNISHED AND NO OTHER INFORMATION WAS FURNISHED IN REGARD TO THE PRODUCT REFERENCED IN ITEM NO. 2 OF THE FIRST REQUEST FOR PROPOSALS OR IN REGARD TO ANY OF THE FOUR REFERENCED PRODUCTS OF THE SECOND REQUEST FOR PROPOSALS. IT ALSO APPEARS THAT THE COMPANY DID NOT SUBMIT PERFORMANCE DATA ON THE PRODUCTS OFFERED AS EQUAL TO THE PRODUCTS REFERENCED IN THE GOVERNMENT'S ITEM DESCRIPTIONS.

THE CONTRACTING OFFICER HAS REPORTED THAT THE DRAWING SUBMITTED WITH THE HOOF PRODUCTS COMPANY'S FIRST PROPOSAL WAS FORWARDED TO THE ARMY MOBILITY EQUIPMENT CENTER, ST. LOUIS, MISSOURI, THE ENGINEERING SUPPORT ACTIVITY FOR THE PARTICULAR CLASS OF SUPPLIES, FOR EVALUATION. THE ARMY MOBILITY EQUIPMENT CENTER DETERMINED THAT IT COULD NOT EVALUATE THE HOOF GASOLINE GOVERNOR BECAUSE NO INFORMATION WAS AVAILABLE TO SERVE AS A BASIS FOR COMPARISON OF THE HOOF GASOLINE GOVERNOR WITH THE NAMED PIERCE GOVERNOR. IT WAS ALSO DETERMINED THAT THE PRODUCT OFFERED BY YOUR COMPANY UNDER ITS SECOND PROPOSAL COULD NOT BE EVALUATED BECAUSE NO INFORMATION WAS AVAILABLE TO SERVE AS A BASIS FOR COMPARISON OF THAT PRODUCT WITH ANY OF THE FOUR MODELS OF EQUIPMENT REFERENCED IN THE ITEM DESCRIPTION OF REQUEST FOR PROPOSALS NO. GSA-700-67-R-5957.

THE CONTRACTING OFFICER'S REPORT SETS FORTH THAT THE PROCUREMENTS HERE INVOLVED WERE NEGOTIATED BECAUSE OF THE LACK OF INFORMATION ON THE REFERENCED ITEMS OF EQUIPMENT OTHER THAN THAT THEY HAD BEEN FOUND TO BE SATISFACTORY FOR THEIR INTENDED USE. IN THIS CONNECTION, CLAUSE 2.104 OF THE DCSC CONTRACT CLAUSE BOOK, WHICH WAS MADE APPLICABLE TO EACH OF THE TWO REQUESTS FOR PROPOSALS, STATES THAT "SPECIFICATIONS, PLANS OR DRAWINGS RELATIVE TO THE PROCUREMENT DESCRIBED ARE NOT AVAILABLE AND CANNOT BE FURNISHED BY THE GOVERNMENT.'

THE CONTRACTING OFFICER'S REPORT SUGGESTS THAT THE QUESTION WHETHER THE GOVERNMENT COULD HAVE OBTAINED COPIES OF THE SUCCESSFUL OFFERORS' DRAWINGS ON REQUEST IS IMMATERIAL BECAUSE PERFORMANCE DATA ON THEIR OFFERED GOVERNORS AND ON THE HOOF PRODUCTS COMPANY'S GOVERNORS WOULD BE REQUIRED TO MAKE AN ENGINEERING DETERMINATION OF EQUALITY. THE REPORT FURTHER INDICATES THAT IT WAS SUGGESTED TO YOUR COMPANY THAT IT SHOULD ARRANGE WITH THE ARMY MOBILITY EQUIPMENT CENTER TO PERFORM OPERATIONAL TESTS OF ITS GASOLINE GOVERNORS TO ESTABLISH THEIR ACCEPTABILITY ON FUTURE PROCUREMENTS OF THE DEFENSE SUPPLY AGENCY.

IT IS RECOGNIZED THAT THE GOVERNMENT NORMALLY COULD BE EXPECTED TO HAVE INFORMATION CONCERNING THE ESSENTIAL CHARACTERISTICS OF EQUIPMENT INDICATED AS MEETING ITS PARTICULAR REQUIREMENTS. HOWEVER, IT APPEARS THAT PROSPECTIVE OFFERORS IN THE CASES HERE INVOLVED WERE EFFECTIVELY PLACED ON NOTICE THAT SUCH INFORMATION WAS NOT AVAILABLE AND THAT A SITUATION (4) OFFEROR MUST THEREFORE PROVIDE INFORMATION BOTH IN REGARD TO THE NAMED PRODUCT AND IN REGARD TO A PRODUCT OFFERED AS BEING THE EQUAL THERETO IN ALL MATERIAL RESPECTS.

YOUR COMPANY EVIDENTLY COULD NOT FURNISH ALL OF THE REQUIRED INFORMATION AND IT APPEARS, SINCE ALL OF THE REQUIRED INFORMATION WAS NOT FURNISHED, THAT THE GOVERNMENT WOULD NOT HAVE BEEN IN A POSITION TO DETERMINE WHETHER YOUR COMPANY'S GOVERNORS WERE EQUAL IN ALL MATERIAL RESPECTS TO THE PIERCE AND KING-SEELEY PRODUCTS UNLESS IT PERFORMED OPERATIONAL TESTS ON THE TWO HOOF PRODUCTS COMPANY GOVERNORS. SUCH OPERATIONAL TESTS ARE NOT PROVIDED FOR IN THE REQUESTS FOR PROPOSALS AND THEY DO NOT OTHERWISE APPEAR TO HAVE BEEN CONTEMPLATED.

IN VIEW OF THE FOREGOING, WE HAVE FOUND NO PROPER BASIS FOR CONCLUDING THAT THE DECISIONS TO REJECT YOUR COMPANY'S PROPOSALS WERE ARBITRARY. THE PROTESTS MADE TO OUR OFFICE IN THE MATTER ARE THEREFORE DENIED.

AS INDICATED IN OUR EARLIER CONVERSATIONS WITH PERSONNEL OF YOUR COMPANY, THIS PROBLEM OF CONSIDERING ALTERNATIVE PRODUCTS HAS BEEN UNDER CONSIDERATION IN A CASE ANALOGOUS TO YOURS IN MANY RESPECTS. WE ARE THEREFORE ENCLOSING A COPY OF OUR DECISION, B-161521, OF TODAY TOGETHER WITH A COPY OF OUR LETTER OF THE SAME NUMBER TO THE DIRECTOR, DEFENSE SUPPLY AGENCY, FOR YOUR INFORMATION.