B-161892, OCT. 12, 1967

B-161892: Oct 12, 1967

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LOW BIDDER WHO SUBMITTED BID AND BROCHURE THAT DID NOT INDICATE BIDDER PROPOSED TO FURNISH TABLE WITH HARD-WOOD TOP AS REQUIRED BY BRAND-NAME OR EQUAL INVITATION MAY NOT HAVE ALLEGATION OF AMBIGUITY IN USE OF TERMS "HARDWOOD" AND "SOFTWOOD" SUSTAINED SINCE BIDDER COULD HAVE MADE INQUIRY IF HE HAD DOUBT. THEREFORE SINCE BIDDER FAILED TO DESCRIBE PRODUCT MEETING REQUIREMENTS HIS BID WAS PROPERLY REJECTED. TO STACOR CORPORATION: FURTHER REFERENCE IS MADE TO YOUR TELEFAX DATED JUNE 27 AND LETTER. THE ADVERTISED ITEMS WERE DESCRIBED AS FOLLOWS: "TABLE. TEN BIDS WERE RECEIVED AND OPENED ON APRIL 28. IT WAS DETERMINED TO REJECT YOUR BID BECAUSE IT FAILED TO OFFER "OR EQUAL" PRODUCTS. SELECTED SOLID SOFTWOOD" WHEREAS "HARDWOOD" WAS SPECIFIED IN THE INVITATION.

B-161892, OCT. 12, 1967

BIDS - DEVIATIONS - DESCRIPTIVE LITERATURE DECISION TO STACOR CORPORATION CONCERNING PROTEST AGAINST REJECTION OF BID FOR WOOD DRAFTING TABLES BY NAVAL SUPPLY CENTER, OAKLAND, CAL. UNDER BRAND-NAME OR EQUAL INVITATION. LOW BIDDER WHO SUBMITTED BID AND BROCHURE THAT DID NOT INDICATE BIDDER PROPOSED TO FURNISH TABLE WITH HARD-WOOD TOP AS REQUIRED BY BRAND-NAME OR EQUAL INVITATION MAY NOT HAVE ALLEGATION OF AMBIGUITY IN USE OF TERMS "HARDWOOD" AND "SOFTWOOD" SUSTAINED SINCE BIDDER COULD HAVE MADE INQUIRY IF HE HAD DOUBT, AND NO OTHER BIDDER HAD DIFFICULTY WITH REQUIREMENT. THEREFORE SINCE BIDDER FAILED TO DESCRIBE PRODUCT MEETING REQUIREMENTS HIS BID WAS PROPERLY REJECTED.

TO STACOR CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX DATED JUNE 27 AND LETTER, WITH ENCLOSURE, DATED JUNE 28, 1967, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. N00228-67-B 5932 ISSUED BY THE UNITED STATES NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA.

THE INVITATION ISSUED APRIL 13, 1967, REQUESTED BIDS ON A CONTEMPLATED AGGREGATE AWARD BASIS FOR 100 WOOD DRAFTING TABLES AND 100 WOOD AUXILIARY DRAWER UNITS, BOTH TO BE SIMILAR AND EQUAL TO ARTICLES MANUFACTURED BY THE HAMILTON MANUFACTURING COMPANY AS SHOWN IN KEUFFEL AND ESSER CATALOG. THE ADVERTISED ITEMS WERE DESCRIBED AS FOLLOWS: "TABLE, DRAFTING, FOUR POST, WOOD. DRAWING SURFACE AND BASES OF HARDWOOD. CHANNEL SHAPED, FINISHED STEEL CLEATS TO REINFORCE ENDS OF DRAWING SURFACE. HEAVY, SQUARE, SLIGHTLY ROUNDED LEGS. TOP SIZE: MINIMUM 43-1/2 X 84 INCHES. ONE TOOL DRAWER, ONE REFERENCE DRAWER. "EQUAL TO MODEL 45J4 MANUFACTURED BY HAMILTON MFG. CO., TWO RIVERS, WISCONSIN. "AUXILLARY UNIT, FOR ADDITIONAL STORAGE SPACE FOR ITEM 1, WOOD. WITH ONE STORAGE DRAWER AND ONE FILE DRAWER WITH FOLLOWER. APPROXIMATE OVERALL DIMENSIONS: 12-3/4 INCHES WIDE, 19-1/2 INCHES HIGH, 27-3/8 INCHES DEEP. "EQUAL TO MODEL 57J1 MANUFACTURED BY HAMILTON MFG. CO.'

TEN BIDS WERE RECEIVED AND OPENED ON APRIL 28, 1967, RANGING IN AMOUNTS FROM $15,000 TO $19,200, IN THE AGGREGATE. YOU OFFERED ALTERNATE AGGREGATE BIDS OF $15,350 AND $16,340. YOU OFFERED YOUR WOODMASTER WF284 DRAFTING TABLES AND YOUR WOODMASTER A290 OR A290 MODIFIED AUXILIARY UNITS, AS DESCRIBED ON PAGE 18 OF YOUR ATTACHED CATALOG NO. GC-64D. AFTER EVALUATION OF YOUR BID UNDER THE BRAND NAME OR EQUAL PROVISIONS OF THE INVITATION, IT WAS DETERMINED TO REJECT YOUR BID BECAUSE IT FAILED TO OFFER "OR EQUAL" PRODUCTS. THE PROCUREMENT AGENCY FOUND WITH REFERENCE TO THE DRAFTING TABLES OFFERED AS "EQUAL" THAT YOUR CATALOG DESCRIPTION SPECIFIED A TABLE TOP OF ,SELECTED SOLID SOFTWOOD" WHEREAS "HARDWOOD" WAS SPECIFIED IN THE INVITATION, AND THAT THE AUXILIARY UNIT DRAWERS OFFERED WERE OF STEEL WITH HARDWOOD FRONTS WITH A FILE DRAWER HAVING SUSPENSION FOR PENDAFLEX FILE FOLDERS WHEREAS WOOD DRAWERS WERE SPECIFIED IN THE INVITATION WITH A FILE DRAWER AND FOLLOWER. YOUR HIGHER ALTERNATE BID ON THE AUXILIARY UNITS FOR YOUR NO. A290 MODIFIED UNITS INCLUDED A FOLLOWER IN THE FILE DRAWER, BUT THE UNITS STILL HAD THE SAME STEEL DRAWERS WITH HARDWOOD FRONTS. SINCE YOUR BID DEVIATED FROM THE ADVERTISED SPECIFICATIONS, AWARD WAS MADE TO KEUFFEL AND ESSER COMPANY ON JUNE 12, 1967, AS THE LOWEST RESPONSIVE BIDDER.

YOU PROTEST THAT THE INVITATION WAS MISLEADING AND AMBIGUOUS AS TO THE DESCRIPTION OF THE DRAFTING TABLES AND THAT AS TO THE AUXILIARY UNITS YOUR PRODUCT EXCEEDS THE SPECIFICATIONS SINCE THEY ARE MADE OF STEEL AND WOOD. YOU REFER TO BOTANICAL DIFFERENCES BETWEEN HARD AND SOFTWOODS AS BEING INCONCLUSIVE IN DEFINING CHARACTERISTICS OF THOSE WOODS AND STATE THAT BASSWOOD, USED IN YOUR TABLETOPS, ALTHOUGH CLASSIFIED AS A HARDWOOD IS IN REALITY, AMONG THE SOFTEST OF WOODS, HAVING A QUALITY OF RESILIENCY.

THE ADVERTISED SPECIFICATIONS MADE REFERENCE TO HAMILTON MANUFACTURING COMPANY MODELS SINCE THOSE WERE THE ONLY KNOWN PRODUCTS MEETING THE SALIENT FEATURES OF THE GOVERNMENT'S REQUIREMENTS AT THE TIME OF THE SOLICITATION FOR BIDS. SEE ASPR 1-1206.2 (A) CONCERNING BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS. THE SALIENT CHARACTERISTICS OF THE PRODUCTS WERE LISTED IN THE INVITATION IN ACCORDANCE WITH ASPR 1-1206.2 (B); THAT IS, THE DRAWING SURFACES AND BASES WERE TO BE MADE OF HARDWOOD. YOUR CATALOG SHOWED THE DRAWING SURFACE OF YOUR PRODUCT TO BE MADE OF SOFTWOOD. IN THIS RESPECT, WE ARE ADVISED THAT THE DISTINCTION BETWEEN THE TERMS "HARDWOOD" AND "SOFTWOOD" IS GENERALLY UNDERSTOOD IN THE INDUSTRY. WHILE YOU ADVISE THAT YOU INTENDED TO FURNISH BASSWOOD TOPS (EQUAL TO HAMILTON) NEITHER YOUR BID NOR YOUR ATTACHED BROCHURE SO INDICATED. AN AWARD BASED UPON YOUR BID, THEREFORE, WOULD HAVE PERMITTED YOU TO FURNISH ANY SOFTWOOD TOP. IF YOU HAD ANY DOUBT AS TO THE TYPE OF WOOD TO BE FURNISHED UNDER THE INVITATION, YOU COULD HAVE MADE APPROPRIATE INQUIRIES TO THE PROCUREMENT AGENCY.

ASPR 1-1201 (A) PROVIDES, INSOFAR AS HERE PERTINENT, THAT PLANS, DRAWINGS, SPECIFICATIONS, OR PURCHASE DESCRIPTIONS FOR PROCUREMENT SHALL STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND DESCRIBE THE SUPPLIES AND SERVICES IN A MANNER WHICH WILL ENCOURAGE MAXIMUM COMPETITION AND ELIMINATE, INSOFAR AS POSSIBLE, ANY RESTRICTIVE FEATURES WHICH MIGHT LIMIT ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCT OR THE PRODUCTS OF A RELATIVELY FEW SUPPLIERS. IF THE MINIMUM REQUIREMENTS OF THE GOVERNMENT WERE FOR WOOD AND STEEL, COMBINED IN THE AUXILIARY UNITS, IT WOULD HAVE SO SPECIFIED. WHETHER YOUR UNIT OF STEEL DRAWERS WITH WOOD FRONTS IS BETTER THAN THE ONE ADVERTISED IS IMMATERIAL. IT IS WELL-ESTABLISHED THAT IT IS SOLELY WITHIN THE PROVINCE OF THE PROCURING AGENCY TO DETERMINE WHETHER OFFERED PRODUCTS MEET THE GOVERNMENT'S ADVERTISED NEEDS.

THIS OFFICE HAS CONSISTENTLY ADHERED TO THE PROPOSITION THAT WHETHER SPECIFICATIONS ARE ADEQUATE TO MEET THE NEEDS OF THE PROCUREMENT AGENCY IS A QUESTION WHICH IS PRIMARILY WITHIN THE JURISDICTION OF THE AGENCY, AND THAT IN ANY GIVEN PROCUREMENT THIS QUESTION MAY WELL BE SUBJECT TO A DIFFERENCE OF EXPERT TECHNICAL OPINION. WHERE SUCH DIFFERENCES OF OPINION EXIST, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE OF ERROR OR THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATIONS WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE IN VIOLATION OF LAW. 17 COMP. GEN. 554. THE REQUIREMENT FOR HARDWOOD PROVIDED NO DIFFICULTIES FOR OTHER BIDDERS. MOREOVER, IT WAS DETERMINED THAT DRAWERS HAVING STEEL CONSTRUCTION WITH HARDWOOD FRONTS WERE NOT ACCEPTABLE TO THE USING ACTIVITY. SINCE OTHER BIDDERS CONFORMED TO THIS REQUIREMENT, IT CANNOT BE CONSIDERED TO HAVE BEEN RESTRICTIVE.

UNDER THE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE REJECTION OF YOUR BID BECAUSE OF THE FAILURE OF YOUR PRODUCT, AS DESCRIBED IN YOUR CATALOG, TO MEET THE REQUIREMENTS OF THE SPECIFICATION WAS PROPER EXERCISE OF PROCUREMENT RESPONSIBILITY VESTED IN THE AGENCY BY ASPR 2 301 (A) DEALING WITH THE MANDATORY REQUIREMENT THAT BIDS MUST BE RESPONSIVE IN ALL MATERIAL RESPECTS TO BE CONSIDERED FOR AWARD.