B-161377, JUN. 19, 1967

B-161377: Jun 19, 1967

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TO CHICAGO PNEUMATIC TOOL COMPANY: REFERENCE IS MADE TO THE COPY OF YOUR LETTER DATED APRIL 25. IN ACCORDANCE WITH SPECIFICATION NO. 81929/67) BIDS WERE OPENED ON APRIL 6. THE FOLLOWING BIDS WERE SCHEDULED: TABLE WORTHINGTON CORPORATION $164. 185 THE RECORD SHOWS THAT THE LOW BID SUBMITTED BY WORTHINGTON WAS ACCOMPANIED BY A LETTER WHICH INDICATED THAT THE BID WAS QUALIFIED AND THAT THE AIR COMPRESSORS OFFERED DID NOT CONFORM TO SPECIFICATION REQUIREMENTS WITH RESPECT TO THE COMPRESSOR CLASS PISTON CONSTRUCTION. YOUR BID WAS ACCOMPANIED BY A LETTER QUALIFYING YOUR BID FOR REASONS WHICH WILL BE DISCUSSED BELOW. AFTER A COMPLETE AND DETAILED EVALUATION OF ALL BIDS WAS MADE ON APRIL 21. UNSUCCESSFUL BIDDERS WERE SO NOTIFIED.

B-161377, JUN. 19, 1967

TO CHICAGO PNEUMATIC TOOL COMPANY:

REFERENCE IS MADE TO THE COPY OF YOUR LETTER DATED APRIL 25, 1967, ADDRESSED TO THE DEPARTMENT OF THE NAVY, IN WHICH YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO THE INGERSOLL-RAND COMPANY UNDER INVITATION FOR BIDS NO. N62470-67-B-0758.

THE SUBJECT INVITATION, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND ON MARCH 16, 1967, CALLED FOR THE FURNISHING OF TWO 250 PSI, 1000 CFM, AIR COMPRESSORS AND STORAGE TANKS, IN ACCORDANCE WITH SPECIFICATION NO. 81929/67) BIDS WERE OPENED ON APRIL 6, 1967, AND THE FOLLOWING BIDS WERE SCHEDULED:

TABLE

WORTHINGTON CORPORATION $164,055

CHICAGO PNEUMATIC TOOL CO. $164,474

INGERSOLL-RAND COMPANY $169,500

CLARK BROTHERS $196,185

THE RECORD SHOWS THAT THE LOW BID SUBMITTED BY WORTHINGTON WAS ACCOMPANIED BY A LETTER WHICH INDICATED THAT THE BID WAS QUALIFIED AND THAT THE AIR COMPRESSORS OFFERED DID NOT CONFORM TO SPECIFICATION REQUIREMENTS WITH RESPECT TO THE COMPRESSOR CLASS PISTON CONSTRUCTION, CROSS HEAD SHOES, LUBRICATORS, ETC. YOUR BID WAS ACCOMPANIED BY A LETTER QUALIFYING YOUR BID FOR REASONS WHICH WILL BE DISCUSSED BELOW. AFTER A COMPLETE AND DETAILED EVALUATION OF ALL BIDS WAS MADE ON APRIL 21, 1967, TO THE INGERSOLL-RAND COMPANY AS THE LOW, CONFORMING AND RESPONSIVE BIDDER, AND UNSUCCESSFUL BIDDERS WERE SO NOTIFIED.

IN YOUR PROTEST TO THE PROCURING AGENCY AND OUR OFFICE, YOU TAKE ISSUE WITH THE TECHNICAL EVALUATION MADE OF YOUR BID BY THE PROCURING AGENCY AND URGE THAT THE SPECIFICATION REQUIREMENTS WERE PROPRIETARY INASMUCH AS THEY COULD BE MET ONLY BY INGERSOLL-RAND. IN THIS RESPECT, YOU ALSO URGE THAT MANY FEATURES OF YOUR OFFERED UNIT WERE SUPERIOR TO INGERSOLL'S UNIT.

BEARING ON THE TECHNICAL ISSUES RAISED IN YOUR PROTEST, THE PROCURING AGENCY HAS ADVISED US AS FOLLOWS:

"THE CHICAGO PNEUMATIC TOOL COMPANY BID WAS REJECTED AS NONRESPONSIVE PRIMARILY BECAUSE IT OFFERED A TWO STAGE "Y" CLASS DESIGN (SEE CHICAGO PNEUMATIC TOOL COMPANY PROPOSAL, ENCLOSURE (3) (, INSTEAD OF THE THREE STAGE "T" OR "W" DESIGN REQUIRED BY THE SPECIFICATION. THE RELEVANT PARAGRAPH IN THE CONTRACT SPECIFICATION IS IN PERTINENT PART AS FOLLOWS:

SECTION 2A.4 AIR COMPRESSORS.

2A.4.1 GENERAL DISCUSSION. AIR COMPRESSORS SHALL CONFORM TO SPECIFICATION MIL-C-17596B, EXCEPT AS SPECIFIED OR INDICATED OTHERWISE. AIR COMPRESSORS SHALL BE INVERTED "T" OR "W" DESIGN, MULTI STAGE, DOUBLE ACTING, HEAVY DUTY, WATER COOLED UNITS WITH DIRECT CONNECTED ELECTRIC DRIVE MOTOR.

INVERTED "T" AND "W" DESIGN MULTI-STAGE, DOUBLE ACTING, HEAVY-DUTY WATER COOLED UNITS WITH DIRECT CONNECTED ELECTRIC DRIVE MOTOR ARE BY INDUSTRY STANDARDS THREE-STAGE COMPRESSORS. AS INDICATED BY ENCLOSURE (6), THE CHICAGO PNEUMATIC TOOL COMPANY PROPOSED TO FURNISH A "Y"-TYPE UNIT. INDUSTRY STANDARDS,"Y" UNITS ARE TWO-STAGE COMPRESSORS.'

ALSO, WITH REGARD TO YOUR ALLEGATION THAT SPECIFICATION WAS PROPRIETARY TO INGERSOLL-RAND INASMUCH AS IT COULD ONLY BE MET BY THAT MANUFACTURER, IT IS ADMINISTRATIVELY REPORTED THAT THE FOLLOWING OTHER MANUFACTURERS MAKE COMPRESSORS OF "T" OR "W" CONFIGURATION AND SHOULD BE ABLE TO MEET THE SPECIFICATION REQUIREMENTS: JOY MANUFACTURING COMPANY, WORTHINGTON CORPORATION, CLARK BROTHERS COMPANY, COOPER BESSEMER CORPORATION, PENNSYLVANIA PUMP AND COMPRESSOR COMPANY, AND THE NORDBERG MANUFACTURING COMPANY.

WHILE YOU STATE THAT YOU WERE DENIED AN OPPORTUNITY TO DISCUSS THE MERITS OF YOUR UNIT WITH PROCURING OFFICIALS BEFORE AWARD WAS MADE, THE PROCURING OFFICE REPORTS THAT NO REQUEST WAS EVER MADE BY YOUR FIRM FOR SUCH DISCUSSION DURING THE 14-DAY PERIOD FOLLOWING THE BID OPENING AND PRIOR TO AWARD. MOREOVER, THE RESPONSIVENESS OF A BID MUST BE DETERMINED SOLELY ON THE BASIS OF THE BID AS SUBMITTED, AND ANY EXPLANATORY INFORMATION SUBMITTED THEREWITH PRIOR TO BID OPENING. IF A BID IS SO PREPARED, AS HERE, AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO COMPLY WITH THE INVITATION REQUIREMENTS, ANY NEGOTIATIONS WITH THE BIDDER TO CLARIFY SUCH INTENTION WOULD BE OBJECTIONABLE ON THE GROUNDS THAT NO BIDDER SHOULD BE AFFORDED A SECOND CHANCE TO BID AFTER BIDS ARE OPENED. SEE 36 COMP. GEN. 705.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND TO DETERMINE FACTUALLY WHETHER EQUIPMENT OFFERED BY BIDDERS MEETS THOSE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE PROCUREMENT ACTIVITY. SEE 17 COMP. GEN. 554; 19 ID. 587; AND 40 ID. 35. THERE IS NO REQUIREMENT THAT THE GOVERNMENT 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 PROCUREMENT ACTIVITY, REASONABLY MEET THE ACTIVITY'S NEED.

IN THE CIRCUMSTANCES, NO LEGAL BASIS EXISTS FOR DISTURBING THE ACTION OF THE ADMINISTRATIVE OFFICIALS, AND YOUR PROTEST IS DENIED.