B-168332, DEC. 30, 1969

B-168332: Dec 30, 1969

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SHOULD HAVE REMAINED TOTAL SMALL BUSINESS SET-ASIDE. THAT USED PROPERTY OFFERING IN EXCHANGE/SALE TRANSACTION WAS IMPROPER. THAT SPECIFICATIONS WERE UNDULY RESTRICTIVE. ARE WITHOUT MERIT SINCE IT IS WITHIN ADMINISTRATIVE DISCRETION TO MAKE DETERMINATIONS RESPECTING WHAT TYPE OF CONTRACT ARRANGEMENT WILL BEST ACCOMPLISH PARTICULAR PROCUREMENT. WHAT SPECIFICATIONS ARE ADEQUATE. SUCH DETERMINATIONS WILL NOT BE DISTURBED ABSENT CLEAR AND CONVINCING EVIDENCE OF ERROR OR VIOLATION OF LAW. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 10. THE ABOVE-REFERENCED INVITATION IS A RESOLICITATION FOR THE FURNISHING AND INSTALLATION OF AN EXTENSION TO THE AUTOMATED MATERIALS HANDLING SYSTEM (AMHS) AT THE NAVAL SUPPLY CENTER (NSC).

B-168332, DEC. 30, 1969

EQUIPMENT--REPLACEMENT--TRADE-IN-ALLOWANCES OBJECTIONS THAT RESOLICITATION FOR HANDLING SYSTEM, REQUIRING TRADE IN OR DIRECT SALE QUOTATIONS ON GOVERNMENT-USED PARTS, SHOULD HAVE REMAINED TOTAL SMALL BUSINESS SET-ASIDE; THAT USED PROPERTY OFFERING IN EXCHANGE/SALE TRANSACTION WAS IMPROPER; AND THAT SPECIFICATIONS WERE UNDULY RESTRICTIVE, GIVING USED EQUIPMENT MANUFACTURER UNWARRANTED COMPETITIVE ADVANTAGE, ARE WITHOUT MERIT SINCE IT IS WITHIN ADMINISTRATIVE DISCRETION TO MAKE DETERMINATIONS RESPECTING WHAT TYPE OF CONTRACT ARRANGEMENT WILL BEST ACCOMPLISH PARTICULAR PROCUREMENT; WHAT REASONABLE EXPECTATION EXISTS OF SMALL BUSINESS PARTICIPATION; AND WHAT SPECIFICATIONS ARE ADEQUATE. SUCH DETERMINATIONS WILL NOT BE DISTURBED ABSENT CLEAR AND CONVINCING EVIDENCE OF ERROR OR VIOLATION OF LAW. MOREOVER, 30-DAY BIDDING TIME -- EXTENDED TO 56 -- ACCORDED WITH APPLICABLE REGULATION.

TO NAVIGATE, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 10, 1969, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AS UNDULY RESTRICTIVE THE SPECIFICATIONS OF INVITATION FOR BIDS (IFB) NO. N00600-70-B-0188, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE ABOVE-REFERENCED INVITATION IS A RESOLICITATION FOR THE FURNISHING AND INSTALLATION OF AN EXTENSION TO THE AUTOMATED MATERIALS HANDLING SYSTEM (AMHS) AT THE NAVAL SUPPLY CENTER (NSC), NORFOLK, VIRGINIA. THE FIRST INVITATION FOR THIS WORK, NO. N00600-69-B-0129, WAS THE SUBJECT OF OUR DECISIONS B-167216, DECEMBER 9, 1969, TO YOU AND TO RAPISTAN, INCORPORATED, AND OF OUR DECISION, B-167505, DECEMBER 9, 1969, TO HEWITT ROBINS, INCORPORATED. THE FIRST INVITATION, AND OUR DECISIONS PERTAINING THERETO, WILL BE DISCUSSED HEREIN ONLY TO THE EXTENT RELEVANT TO THE INSTANT PROTEST.

INVITATION FOR BIDS NO. N00600-69-B-0129 WAS ISSUED ON NOVEMBER 12, 1968, AS A TWO-STEP FORMALLY ADVERTISED PROCUREMENT TOTALLY SET-ASIDE FOR SMALL BUSINESS CONCERNS. THE SPECIFICATIONS UNDER STEP ONE OF THE IFB INCLUDED A 7-1/4 PAGE LIST OF USED GOVERNMENT-FURNISHED CONVEYOR EQUIPMENT TO BE INCORPORATED INTO THE CONTRACT WORK. TECHNICALLY ACCEPTABLE PROPOSALS WERE SUBMITTED BY YOUR FIRM, BY RAPISTAN, INC; AND BY THE A. J. BAYER COMPANY. ON MAY 2, 1969, STEP TWO OF THE INVITATION WAS ISSUED SOLICITING BIDS FROM THESE FIRMS. HOWEVER, THE STEP TWO SPECIFICATIONS DELETED THE LIST OF GOVERNMENT-FURNISHED PROPERTY, THUS REQUIRING BIDS ON ALL NEW EQUIPMENT. NAVIGATE SUBMITTED THE LOW BID, BUT AWARD WAS WITHHELD PENDING OUR DECISION UPON A PROTEST BY RAPISTAN, WHICH ALLEGED THAT YOU INTENDED TO SUPPLY A PRODUCT OTHER THAN THAT DESCRIBED IN YOUR FIRST STEP PROPOSAL. ADDITIONALLY, HEWITT ROBINS PROTESTED AGAINST THE NAVY'S FAILURE TO SOLICIT BIDS FROM OTHER THAN THE THREE TECHNICALLY ACCEPTABLE SOURCES, SINCE THE SPECIFICATIONS HAD BEEN MATERIALLY ALTERED UNDER STEP TWO.

WHILE THESE PROTESTS WERE UNDER CONSIDERATION BY OUR OFFICE, WE WERE ADVISED BY THE DEPARTMENT OF THE NAVY THAT IFB NO. N00600-69-B-0129 HAD BEEN CANCELED AND THAT THE PROCUREMENT WAS BEING READVERTISED. IT WAS ADMINISTRATIVELY REPORTED THAT ADDITIONAL GOVERNMENT PROPERTY WHICH COULD BE USED IN CONNECTION WITH THE CONTRACT HAD BEEN DISCOVERED AND WOULD BE INCORPORATED INTO THE RESOLICITATION. YOU PROTESTED AGAINST THE CANCELLATION OF THE INVITATION AND REQUESTED THAT IT BE REINSTATED AND AWARD BE MADE TO YOU THEREUNDER. IN OUR DECISIONS CITED ABOVE, WE CONCLUDED THAT THERE WAS NO IMPROPRIETY IN THE DECISION TO CANCEL THE INVITATION AND TO RESOLICIT, AND WE THEREFORE DENIED YOUR PROTEST AND THOSE OF RAPISTAN AND HEWITT ROBINS.

THE RESOLICITATION WAS MADE BY THE INSTANT INVITATION FOR BIDS NO. N00600 -70-B-0188, ISSUED ON NOVEMBER 3, 1969. THE INVITATION ESTABLISHED A BID OPENING DATE OF DECEMBER 3, 1969, WHICH SUBSEQUENTLY HAS BEEN EXTENDED TO DECEMBER 29, 1969. THE INVITATION'S SCHEDULE SECTION A, ITEM 1, REQUIRES THE CONTRACTOR TO "FURNISH, INSTALL AND MAKE OPERABLE" THE MATERIALS HANDLING SYSTEM IN ACCORDANCE WITH A PURCHASE DESCRIPTION, DRAWINGS AND A "STANDARD FOR CONVEYOR SYSTEM CONSTRUCTION AND INSTALLATION" ATTACHED TO THE INVITATION. ITEMS 2 AND 3 RESPECTIVELY PROVIDE FOR TRADE-IN OR DIRECT SALE QUOTATIONS FOR USED CONVEYOR SECTIONS AND ANCILLARY PARTS FROM THE NAVAL SUPPLY CENTERS AT NORFOLK, VIRGINIA, AND BAYONNE, NEW JERSEY. THIS USED EQUIPMENT IS DESCRIBED IN TWO LISTS DATED OCTOBER 31, 1969, WHICH WERE ALSO INCLUDED IN THE INVITATION. THE PROVISION FOR TRADE-IN ALLOWANCES OR DIRECT SALE OF THIS PROPERTY PERMITS BIDS TO BE MADE IN ANY OF SEVERAL WAYS, AS EXPLAINED IN THE INVITATION:

"(I) A SUPPLIER MAY BID FOR THE FURNISHING OF ANY ITEM WITHOUT REGARD TO ANY EXCHANGE OR TRADE-IN CREDIT ALLOWANCE ON ACCOUNT OF PROPERTY AVAILABLE FOR TRADE-IN AS SHOWN IN THE INVITATION; OR (II) A BIDDER MAY BID FOR THE FURNISHING OF ANY ITEM AND OFFER TRADE-IN CREDIT FOR THE EXCHANGE/SALE PROPERTY ASSOCIATED WITH THE ITEM ON WHICH HE IS PLACING A BID (IN THIS INSTANCE SHOW SEPARATELY THE PRICE OF THE ITEM BEING FURNISHED AND THE AMOUNT OF CREDIT OFFERED ON THE EXCHANGE/SALE PROPERTY; THE GOVERNMENT WILL DEDUCT THE CREDIT FOR PURPOSES OF EVALUATION OF BIDS AND CONTRACT AWARD.); OR (III) HE MAY BID FOR ONLY THE PURCHASE OF THE EXCHANGE/SALE PROPERTY; OR HE MAY PLACE A BID IN ONE OR MORE OF THE THREE WAYS INDICATED. BIDS MAY ALSO BE MADE BY USED MACHINE TOOL DEALERS, REBUILDERS, OR BY INDIVIDUALS HAVING NEITHER THE ABILITY NOR THE DESIRE TO FURNISH THE NEW ITEM."

IN YOUR LETTER OF NOVEMBER 12, 1969, YOU PROTEST AGAINST THE SPECIFICATIONS AS BEING UNDULY RESTRICTIVE AND AS GIVING AN UNWARRANTED COMPETITIVE ADVANTAGE TO RAPISTAN, INCORPORATED. YOUR OBJECTIONS SHALL BE DISCUSSED IN THE ORDER IN WHICH THEY ARE RAISED BY YOUR LETTER, BEGINNING WITH YOUR GENERAL CONTENTION THAT THE OFFERING OF THE USED GOVERNMENT PROPERTY IN AN EXCHANGE/SALE TRANSACTION IS IMPROPER. YOU HAVE NOT ALLEGED, AND THE RECORD DOES NOT INDICATE, THAT THERE HAS BEEN ANY VIOLATION OF THE PROVISIONS OF 40 U.S.C. 481 (C) AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) SECTION IV, PART 2, WHICH GOVERN ARMED SERVICES EXCHANGE/SALE PROCUREMENTS. YOU HAVE MADE THE MORE BASIC CONTENTION THAT THE ADMINISTRATIVE DETERMINATION TO USE THIS METHOD OF PROCUREMENT IS ERRONEOUS. IN BRIEF, YOU STATE THAT RAPISTAN, AS THE MANUFACTURER OF THE USED EQUIPMENT, HAS A UNIQUE ABILITY TO IDENTIFY, REPAIR AND UTILIZE THE EXCHANGE/SALE PROPERTY, WHICH GIVES RAPISTAN AN UNFAIR COMPETITIVE ADVANTAGE OVER ALL OTHER BIDDERS.

THE DETERMINATION OF WHICH TYPE OF CONTRACTUAL ARRANGEMENT WILL BEST ACCOMPLISH A CERTAIN PROCUREMENT IS CIRCUMSCRIBED TO A CONSIDERABLE EXTENT BY STATUTE AND REGULATION. HOWEVER, WITHIN THE STATUTORY AND REGULATORY STRUCTURE, THE CHOICE OF CONTRACT TYPE IS LARGELY A MATTER FOR ADMINISTRATIVE DISCRETION. IN THE INSTANT CASE, THE NAVY HAS CHOSEN AN EXCHANGE/SALE TRANSACTION TO UTILIZE THE USED PROPERTY AND YET OBTAIN THE MOST REASONABLE PRICE FOR IT. THE DEPARTMENT'S REPORT TO THIS OFFICE RECOGNIZES THAT AN EQUIPMENT MANUFACTURER, IN CONTRAST TO A DEALER OR ASSEMBLER, POSSESSES THE FACILITIES TO REFURBISH SUCH EQUIPMENT AND THUS MAY OFFER A MORE REASONABLE PRICE FOR IT. SINCE YOU ARE NOT A MANUFACTURER OF CONVEYOR EQUIPMENT, THIS MAY PLACE YOU AT SOME DISADVANTAGE. HOWEVER, ON THE PRESENT RECORD, WE MUST CONCLUDE THAT THE USE OF AN EXCHANGE/SALE TRANSACTION IS NOT AN ABUSE OF ADMINISTRATIVE DISCRETION TO WHICH WE WOULD FEEL COMPELLED TO OBJECT.

YOU HAVE ALSO CONTENDED THAT THE INSTANT PROCUREMENT SHOULD BE A TOTAL SMALL BUSINESS SET-ASIDE. WE HAVE BEEN INFORMED BY THE DEPARTMENT OF THE NAVY THAT THE SMALL BUSINESS ADMINISTRATION PROTESTED AGAINST THE UNRESTRICTED NATURE OF THE PROCUREMENT, WHICH PROTEST WAS CONSIDERED AND REJECTED BY THE ASSISTANT SECRETARY OF THE NAVY (INSTALLATIONS AND LOGISTICS). ASPR 1-706.5 (A) (1) PROVIDES THAT TOTAL SMALL BUSINESS SET- ASIDES MAY BE MADE WHERE "THERE IS REASONABLE EXPECTATION THAT BIDS OR PROPOSALS WILL BE OBTAINED FROM A SUFFICIENT NUMBER OF RESPONSIBLE SMALL BUSINESS CONCERNS SO THAT AWARDS WILL BE MADE AT REASONABLE PRICES." HAVE CONSISTENTLY HELD THAT THE DETERMINATION WHETHER SUCH "REASONABLE EXPECTATION" EXISTS IS A MATTER WITHIN THE DISCRETION OF THE CONTRACTING OFFICIALS AND THAT OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF SUCH OFFICIALS ABSENT A CLEAR SHOWING OF ABUSE OF DISCRETION. B-165510, DECEMBER 16, 1968; B 165229, NOVEMBER 21, 1968; B-164596 (2), SEPTEMBER 20, 1968. WE FIND NO SUCH ABUSE ON THE PRESENT RECORD.

YOU HAVE ALSO ALLEGED THAT "IN THE BID PACKAGE ITSELF THERE ARE SEVERAL ITEMS THAT CONSTITUTE FAVORITISM TOWARD RAPISTAN, INC." FIRST, "THE CRITICALLY SHORT TIME GIVEN FOR PREPARATION OF BID FAVORS RAPISTAN SINCE IT IS IMPRACTICABLE FOR COMPETITIVE COMPANIES TO IDENTIFY, INSPECT AND EVALUATE THE EXCHANGE/SALE PROPERTY. RAPISTAN AS MANUFACTURER AND SUPPLIER OF THE EQUIPMENT WOULD HAVE THE INFORMATION."

THE INSTANT IFB ORIGINALLY PROVIDED A BIDDING TIME OF 30 CALENDAR DAYS, WHICH SUBSEQUENTLY HAS BEEN EXTENDED TO 56 CALENDAR DAYS. THE BID OPENING IS TO BE ON DECEMBER 29, 1969, WHICH IS 2 DAYS BEFORE THE FUNDS FOR THE PROCUREMENT EXPIRE. WE ALSO NOTE THAT THE INSTANT PROCUREMENT IS A RESOLICITATION OF A REQUIREMENT THAT WAS INITIALLY ADVERTISED ON NOVEMBER 12, 1968. THE AMOUNT OF USED PROPERTY AVAILABLE FOR INCORPORATION INTO THE SYSTEM HAS INCREASED. HOWEVER, UNDER THE ORIGINAL SOLICITATION, BIDDERS WERE THEN GIVEN THE OPPORTUNITY TO VISIT THE SITE OF THE WORK AND TO INSPECT MUCH OF THE GOVERNMENT PROPERTY AVAILABLE FOR PERFORMANCE OF THE CONTRACT.

ASPR 2-202.1 PROVIDES THAT, EXCEPT UNDER SPECIAL CIRCUMSTANCES, AS "A GENERAL RULE, BIDDING TIME SHALL BE NOT LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES AND SERVICES AND NOT LESS THAN 30 CALENDAR DAYS WHEN PROCURING OTHER THAN STANDARD COMMERCIAL ARTICLES OR SERVICES." IN VIEW OF THE CIRCUMSTANCES OF THE INSTANT PROCUREMENT, WE MUST CONCLUDE THAT THE PRESENT BIDDING TIME OF 56 DAYS IS NOT UNDULY SHORT, AND YOUR PROTEST IN THAT REGARD MUST BE DENIED.

YOUR SECOND SPECIFIC OBJECTION IS THAT THE "VAGUENESS OF THE INVENTORY DESCRIPTION OF THE EQUIPMENT AND THE FACT THAT IT IS IN BULK STORAGE IN A MANNER DIFFICULT TO INSPECT INCREASES THE HANDICAPS TO COMPETITIVE BIDDERS."

ENCLOSURES 3 AND 4 TO THE REPORT FURNISHED OUR OFFICE IN THIS MATTER BY THE NAVY COMPRISE THE TWO INVENTORY LISTS OF THE USED GOVERNMENT EQUIPMENT. ENCLOSURE 3 IS A LIST DATED OCTOBER 31, 1969, ENTITLED "INVENTORY OF EXCESS CONVEYOR SECTIONS AND ANCILLARY PARTS FROM NAVAL SUPPLY CENTER, BAYONNE." IT CONSISTS OF A 9-PAGE, SINGLE-SPACED TABULATION OF THIS EQUIPMENT WHICH IS IDENTIFIED BY BUILDING LOCATION AND PALLET NUMBER. ENCLOSURE 4 IS A LIST OF THE SAME DATE ENTITLED "INVENTORY OF EXCESS CONVEYOR SECTIONS AND ANCILLARY PARTS FROM NAVAL SUPPLY CENTER, NORFOLK, BUILDING 143," WHICH IS A 7-1/2 PAGE DESCRIPTION OF SUCH EQUIPMENT. WITH RESPECT TO THESE ENCLOSURES, THE DEPARTMENT'S REPORT STATES:

"THE INVENTORY LISTS, ENCLOSURES (3) AND (4), ARE NOT CONSIDERED TO BE VAGUE; THEY FURNISH A DESCRIPTION OF THE MATERIAL INCLUDING DIMENSIONS OF THE VARIOUS TYPES OF CONVEYORS OFFERED FOR EXCHANGE/SALE. AS FOR THE MATERIAL IN 'BULK STORAGE,' ENCLOSURE (3), THIS MATERIAL IS ON OPEN PALLETS AND MAY BE VISUALLY INSPECTED. THE OTHER MATERIAL, ENCLOSURE (4), IS CURRENTLY FUNCTIONING IN THE AMHS SYSTEM AT NSC NORFOLK AND MAY BE INSPECTED IN TOTAL. WITH REGARD TO ANY MOTORS OR CONTROLS SET FORTH IN ENCLOSURE (3) NO BIDDER, EVEN A PRIOR MANUFACTURER, WOULD HAVE ANY ADVANTAGE OVER ANY OTHER WITH REGARD TO THE CONDITION OF SUCH MOTORS OR CONTROLS TO BE USED IN THE SYSTEM, IF FOR NO OTHER REASON THAT THIS MATERIAL HAS BEEN IN STORAGE FOR APPROXIMATELY THREE (3) YEARS."

IT HAS LONG BEEN THE POSITION OF OUR OFFICE THAT WHETHER SPECIFICATIONS ARE ADEQUATE TO PERMIT THE FURNISHING OF A PRODUCT WHICH WILL MEET THE NEEDS OF AN AGENCY IS A QUESTION WHICH IS PRIMARILY WITHIN THE JURISDICTION OF A CONTRACTING AGENCY. OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY OPINION IS IN ERROR AND THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATIONS WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE A VIOLATION OF LAW. 17 COMP. GEN. 554 (1938); 40 ID. 294 (1960). IT IS OUR OPINION, UPON EXAMINATION OF ENCLOSURES 3 AND 4 AND IN VIEW OF THE ADMINISTRATIVE POSITION QUOTED ABOVE, THAT THE GOVERNMENT PROPERTY WAS ADEQUATELY DESCRIBED AND EQUALLY AVAILABLE FOR VISUAL INSPECTION BY ALL BIDDERS. THEREFORE, WE FIND YOUR SECOND CONTENTION IS WITHOUT MERIT.

THIRD, YOU ASSERT THAT "TIME FOR BIDDING IS NOT SUFFICIENT TO MAXIMIZE INTEGRATION OF THE SURPLUS EQUIPMENT INTO THE INSTALLATION WITHOUT PRIOR KNOWLEDGE AND EVALUATION SUCH AS RAPISTAN HAS."

THE DEPARTMENT'S RESPONSE TO THIS ASSERTION STATES:

"WITH REGARD TO THE ALLEGED SHORTNESS OF BIDDING TIME INSOFAR AS PERMITTING THE MAXIMUM INTEGRATION OF THE SURPLUS EQUIPMENT INTO THE INSTALLATION, PARAGRAPH 9 'CONVEYOR SCHEDULE' OF THE PURCHASE DESCRIPTION, ENCLOSURE (5), SETS FORTH THE VARIOUS TYPES OF CONVEYOR SECTIONS REQUIRED FOR THE EXTENSION OF THE AMHS. THIS PERMITS THE CROSS-REFERENCING WITH THE MATERIAL SET FORTH IN ENCLOSURES (3) AND (4) AND THEREFORE PERMITS SYSTEM INTEGRATION FOR ANY BIDDER. THE FACT THAT RAPISTAN, INC. IS THE PRIOR MANUFACTURER OF THE HARDWARE, WOULD GIVE THIS COMPANY NO UNDUE ADVANTAGE OVER ANY OTHER MANUFACTURER OF EQUIPMENT WHERE THERE IS A FOLLOW -ON PROCUREMENT."

THE PURCHASE DESCRIPTION REFERRED TO IN THE ADMINISTRATIVE REPORT PROVIDES A 26-PAGE DESCRIPTION OF THE WORK TO BE PERFORMED. PARAGRAPH 9 THEREOF, "CONVEYOR SCHEDULE", IS A 9-1/2 PAGE TABULATION OF THE CONVEYOR EQUIPMENT NEEDED FOR PERFORMANCE OF THE CONTRACT. EACH CONVEYOR SECTION IS IDENTIFIED BY LOCATION, APPROXIMATE LENGTH, TYPE, WIDTH, HEIGHT OF CONVEYING SURFACE, WHETHER IT IS CEILING OR FLOOR MOUNTED, SPEED, AND OTHER PERTINENT FACTS. FROM OUR ANALYSIS OF THESE PROVISIONS WE ARE UNABLE TO STATE THAT THEY ARE INADEQUATE TO PERMIT BIDDERS TO INTEGRATE THE EQUIPMENT INTO THE SYSTEM, AND SINCE THE BIDDING TIME DOES NOT APPEAR TO BE UNREASONABLY SHORT UNDER THE APPLICABLE PROCUREMENT REGULATIONS WE CANNOT CONCLUDE THAT THE INVITATION WAS DEFECTIVE IN THIS AREA. FINALLY, YOU OBJECT TO THE SPECIFICATIONS OF THE SUBJECT INVITATION ON THE BASIS THAT "ACCUMULATION CONVEYOR SPECIFICATIONS (ARE) WRITTEN IDENTIFIABLY AROUND RAPISTAN EQUIPMENT;" THAT THE SPECIFICATIONS REQUIRE SAFETY "POP- OUT" ROLLERS WHICH ARE PROPRIETARY TO RAPISTAN; AND THAT THE INVITATION MAKES "REPEATED REFERRAL" TO RAPISTAN AND SUCH TERMS AS "APC," "TRANSPORTATION" AND "METERING" CONVEYORS WHICH WERE COINED BY RAPISTAN OR ARE ASSOCIATED WITH THAT FIRM BY THE CONVEYOR INDUSTRY.

THE CONTRACTING OFFICER'S REPORT MAKES THE FOLLOWING REPLY TO YOUR ALLEGATIONS:

"* * * SPECIFICATIONS ARE NOT WRITTEN AROUND ANY PARTICULAR MANUFACTURER'S EQUIPMENT. THE REQUIREMENTS CITED IN PARAGRAPH 8.2.5, ('ACCUMULATION CONVEYORS') AND SUB-PARAGRAPHS, OF 'STANDARD FOR CONVEYOR SYSTEM CONSTRUCTION AND INSTALLATION' 1090002 AS AMENDED, ENCLOSURE (6), CAN BE MET BY SEVERAL CONVEYOR MANUFACTURERS.

"* * * 'POP-OUT' ROLLERS ARE NOT REQUIRED. THE SAFETY ROLLERS REQUIRED BY PARAGRAPH 8.2.4 ('LIVE ROLLER CONVEYOR') OF ENCLOSURE (6) ARE NOT PROPRIETARY TO ANY SINGLE MANUFACTURER. FURTHER, THIS REQUIREMENT ONLY APPLIES TO CONVEYORS INSTALLED BELOW 78" AND NOT ON ALL CONVEYORS AS ALLEGED.

"* * * REPEATED REFERRAL TO RAPISTAN TERMS IS NOT MADE EXCEPT IN THE LISTS OF AVAILABLE CONVEYOR EQUIPMENT, ENCLOSURES (3) AND (4). IN FACT, PARAGRAPH 8.2.6 ('TRANSPORTATION CONVEYORS') OF THE STANDARD, ENCLOSURE (6), CLARIFIES THE USE OF 'TRANSPORTATION' WITHOUT USE OF ANY 'COINED' PHRASES."

WITH RESPECT TO THIS ASPECT OF YOUR PROTEST, WE HAVE THOROUGHLY EXAMINED THE 112 PAGES (EXCLUSIVE OF MATERIAL INCORPORATED BY REFERENCE) OF THE INVITATION AND ACCOMPANYING INVENTORY LISTS OF USED CONVEYOR EQUIPMENT, THE PURCHASE DESCRIPTION, AS AMENDED, AND THE NAVY SUPPLY SYSTEMS COMMAND STANDARD FOR CONVEYOR SYSTEM CONSTRUCTION AND INSTALLATION, NO. 1090002, REVISION A, AS AMENDED THROUGH AMENDMENT 3. THE REQUIREMENT FOR SAFETY ROLLERS APPEARS IN PARAGRAPH 8.2.4 OF THE STANDARD, WHICH PROVIDES: "SAFETY ROLLERS (ROLLERS WHICH AUTOMATICALLY RELEASE WHEN A HAND IS CAUGHT BETWEEN THEM) ARE REQUIRED ON CONVEYORS INSTALLED WITH CONVEYING SURFACE BELOW AN ELEVATION OF 78 INCHES." NO FURTHER DEFINITION OF "SAFETY ROLLERS" NOR REQUIREMENT THEREFOR BY BRAND NAME APPEARS IN THE SOLICITATION. SINCE YOU HAVE NOT FURNISHED OUR OFFICE WITH EVIDENCE THAT "SAFETY ROLLERS" ARE SOLELY THE PRODUCT OF RAPISTAN, WE MUST ACCEPT THE POSITION OF THE ADMINISTRATIVE REPORT THAT THIS REQUIREMENT MAY BE MET BY SEVERAL MANUFACTURERS. WE THEREFORE CONCLUDE THAT THE "SAFETY ROLLER" REQUIREMENT IS NOT UNDULY RESTRICTIVE OF COMPETITION.

WITH RESPECT TO THE "REPEATED REFERRAL" TO "RAPISTAN" AND "APC", "TRANSPORTATION" AND "METERING" CONVEYORS, WE NOTE THE WORD "RAPISTAN" APPEARS ONCE IN THE SOLICITATION, ON PAGE 8 OF THE "INVENTORY OF EXCESS CONVEYOR SECTIONS AND ANCILLARY PARTS FROM NAVAL SUPPLY CENTER, BAYONNE," WHICH CONTAINS THE LISTING: "20 RAPISTAN STANDS (GRA 18-24 36)." SIMILARLY, PAGE 6 OF THIS INVENTORY LISTS "25 RAPISTANDS (GRA 18 24-36)." THE TERM "APC", ALTHOUGH FREQUENTLY USED IN BOTH INVENTORIES OF GOVERNMENT EQUIPMENT, DOES NOT APPEAR ELSEWHERE IN THE INVITATION. SINCE THE USED GOVERNMENT EQUIPMENT DESCRIBED BY THE INVENTORY LISTS IS OF RAPISTAN MANUFACTURE, WE SEE NO IMPROPRIETY IN USING "RAPISTAN" AND "APC" IN REFERRING TO SUCH EQUIPMENT.

PARAGRAPH 8.2.6 OF THE STANDARD STATES:

"THE TERM TRANSPORTATION CONVEYOR INDICATES A POWERED CONVEYOR USED TO TRANSPORT MATERIALS. WHERE TRANSPORTATION CONVEYORS ARE SPECIFIED, EITHER A BELT CONVEYOR OR LIVE ROLLER CONVEYOR SHALL BE USED (AT THE OPTION OF THE CONTRACTOR)." THE ONLY OTHER REFERENCES TO "TRANSPORTATION" CONVEYORS APPEAR AT PARAGRAPHS 4.1.1, 6.1.1, 6.2.3, AND 9 OF THE PURCHASE DESCRIPTION. THESE REFERENCES IDENTIFY THE TYPE OF CONVEYOR BUT DO NOT FURTHER DEFINE "TRANSPORTATION" OR RESTRICT THE MEANING OF THE TERM.

PARAGRAPH 8.2.3.4 OF THE STANDARD PRESCRIBES THAT:

"METERING BELT CONVEYORS TO CONFORM TO THE GENERAL CONFIGURATIONAL AND DIMENSIONAL REQUIREMENTS OF FIGURE 1-C.BED TO BE SLIDER TYPE. MINIMUM BELT WIDTH * * * IS FOUR INCHES LESS THAN THE BETWEEN THE FRAME DISTANCE * * *. CONVEYOR MAY BE LEVEL OR INCLINED TO A MAXIMUM SLOPE OF 10 DEGREES. NO FEEDER OR NOSE-OVER SECTIONS ARE REQUIRED WHEN INCLINED." "METERING BELT" CONVEYORS ARE ALSO MENTIONED IN PARAGRAPHS 4.1.1 AND 9 OF THE PURCHASE DESCRIPTION AND IN THE INVENTORY OF USED EQUIPMENT FROM NORFOLK. THERE IS NO EVIDENCE OF RECORD THAT "METERING BELT" CONVEYORS AS REQUIRED UNDER THIS SOLICITATION ARE PROPRIETARY TO RAPISTAN AND THUS UNAVAILABLE FROM OTHER SOURCES. WE MUST THEREFORE CONCLUDE THAT THE RECORD DOES NOT DEMONSTRATE THAT THE SPECIFICATIONS ARE "WRITTEN AROUND" RAPISTAN EQUIPMENT.