B-168979, MAY 13, 1970

B-168979: May 13, 1970

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OBJECTION THAT LOW BIDDER ON GROUP I WAS ALLOWED TO SUBSTITUTE EQUIPMENT MATERIALLY VARYING FROM BRAND NAME SPECIFICATION IS WELL TAKEN AND PROCURING AGENCY ADMITS AWARD THEREON WAS ERRONEOUS. CANCELLATION IS NOT BELIEVED TO BE IN GOVERNMENT'S BEST INTERESTS SINCE EQUIPMENT INVOLVED HAS ALREADY BEEN MANUFACTURED AND MEETS GOVERNMENT'S ACTUAL NEEDS. CONSIDERING THAT CONTRACTING OFFICER RELIED ON GEOLOGICAL SURVEY EXPERTS' BELIEF THAT SUCH EQUIPMENT WAS EQUAL. IT CANNOT BE CONCLUDED THAT AWARD WAS CLEARLY ILLEGAL. TO WESTINGHOUSE AIR BRAKE COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM RECEIVED BY THIS OFFICE ON FEBRUARY 4. THE REFERENCED SOLICITATION WAS FOR A NEGOTIATED DEFINITE QUANTITY PROCUREMENT ON A BRAND NAME OR EQUAL BASIS FOR FSC CLASS 5130.

B-168979, MAY 13, 1970

CONTRACTS--AWARDS--CANCELLATION--ERRONEOUS AWARDS--CANCELLATION NOT REQUIRED UNDER NEGOTIATED PROCUREMENT OF BRAND NAME OR EQUAL DRILLING EQUIPMENT WITH AWARDS MADE ON AGGREGATE BASIS, OBJECTION THAT LOW BIDDER ON GROUP I WAS ALLOWED TO SUBSTITUTE EQUIPMENT MATERIALLY VARYING FROM BRAND NAME SPECIFICATION IS WELL TAKEN AND PROCURING AGENCY ADMITS AWARD THEREON WAS ERRONEOUS, BUT CANCELLATION IS NOT BELIEVED TO BE IN GOVERNMENT'S BEST INTERESTS SINCE EQUIPMENT INVOLVED HAS ALREADY BEEN MANUFACTURED AND MEETS GOVERNMENT'S ACTUAL NEEDS. MOREOVER, CONSIDERING THAT CONTRACTING OFFICER RELIED ON GEOLOGICAL SURVEY EXPERTS' BELIEF THAT SUCH EQUIPMENT WAS EQUAL, IT CANNOT BE CONCLUDED THAT AWARD WAS CLEARLY ILLEGAL. SEE COMP. GEN. DECS. CITED.

TO WESTINGHOUSE AIR BRAKE COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM RECEIVED BY THIS OFFICE ON FEBRUARY 4, 1970, AND TO YOUR LETTER DATED MARCH 19, 1970, PROTESTING THE AWARD OF A CONTRACT TO SPEEDSTAR, A DIVISION OF THE KOEHRING COMPANY, UNDER SOLICITATION NO. WA-A3-N-E19562-7-29-69, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION.

THE REFERENCED SOLICITATION WAS FOR A NEGOTIATED DEFINITE QUANTITY PROCUREMENT ON A BRAND NAME OR EQUAL BASIS FOR FSC CLASS 5130, DRILLING EQUIPMENT, FOR ULTIMATE DELIVERY TO NEPAL. AWARDS WERE TO BE MADE ON AN AGGREGATE BASIS BY GROUPS. WHEN OFFERS WERE OPENED ON OCTOBER 1, 1969, SPEEDSTAR WAS LOW OFFEROR AS TO GROUPS I AND II AND INDUSTRIAL DIVISION OF BERGLUND MOTOR COMPANY WAS LOW AS TO GROUP III. AWARDS OF THE CONTRACTS WERE MADE TO THE TWO FIRMS FOR THESE GROUPS ON JANUARY 16, 1970.

YOUR PROTEST CONSISTS OF TWO MAIN CONTENTIONS. YOU FIRST ARGUE THAT BY AWARDING ITEMS IN THE SOLICITATION TO DIFFERENT FIRMS THERE IS A GOOD POSSIBILITY SOME OF THE EQUIPMENT BEING SUPPLIED WILL NOT BE COMPATIBLE WITH DRILLING, COULD NECESSITATE CHANGES, AND THEREFORE COULD RESULT IN ADDITIONAL EXPENSE AND DELAY TO THE PROJECT. YOU ALSO ARGUE THAT SPEEDSTAR IN RECEIVING THE AWARD FOR GROUP I, WAS ALLOWED AS TO ITEM 3 OF THAT GROUP TO SUBSTITUTE EQUIPMENT WITH MATERIAL VARIANCES FROM THE DESIGNATED BRAND NAME, WABCO WALKER--NEER MODEL FWN-30 OR EQUAL.

WITH RESPECT TO YOUR FIRST CONTENTION REGARDING THE COMPATIBILITY OF THE EQUIPMENT FOR WHICH THE CONTRACTS WERE AWARDED, THE PROCURING ACTIVITY ADVISES THAT THEY HAVE BEEN ASSURED BY PERSONNEL OF THE WATER RESOURCES DIVISION, U. S. GEOLOGICAL SURVEY, DEPARTMENT OF THE INTERIOR (WHO MADE AN EXHAUSTIVE EVALUATION OF THE EQUIPMENT OFFERED, ARE CONSIDERED TO BE EXPERT IN THE DRILLING EQUIPMENT FIELD AND ARE FAMILIAR WITH THE TERRAIN IN NEPAL WHERE THE EQUIPMENT IS TO BE USED), THAT THE ITEMS FOR WHICH THE CONTRACTS WERE AWARDED ARE COMPATIBLE. THE AGENCY FURTHER STATES THAT SINCE SPEEDSTAR RECEIVED THE AWARD FOR THE MAJOR PART OF THIS PROCUREMENT (ALL EXCEPT GROUP III, CONSISTING ONLY OF THE MUD PUMP AND SPARE PARTS), IT IS REASONABLE TO EXPECT THAT THE VARIOUS ITEMS TO BE SUPPLIED WILL BE COMPATIBLE WITH EACH OTHER.

IN REGARD TO THE ALLEGED NONCOMPATIBILITY, WE NOTE THAT YOU HAVE PROVIDED NO INFORMATION SHOWING THE VARIOUS ITEMS WHICH WOULD BE NONCOMPATIBLE. BECAUSE OF THIS WE MUST ACCEPT THE ADMINISTRATIVE VERSION OF THE FACTS, SINCE THE PRESUMPTION OF CORRECTNESS ATTACHING THERETO IS NOT CLEARLY OVERCOME. 47 COMP. GEN. 627, 630 (1968).

IN REGARD TO YOUR ARGUMENT THAT THE AGENCY ALLOWED A MATERIAL VARIANCE FROM THE BRAND NAME OR EQUAL SPECIFICATION FOR ITEM 3 OF GROUP I, THE GENERAL SERVICES ADMINISTRATION AGREES YOUR CLAIM HAS MERIT AND THAT THE AWARD TO SPEEDSTAR OF GROUP I WAS ERRONEOUS. THE ADMINISTRATION'S REPORT STATES IN THIS RESPECT:

"* * * ITEM 3 REQUIRED A 'TABLE, ROTARY, 18 INCH.' THE SALIENT CHARACTERISTICS SET FORTH IN THE SOLICITATION FOR THAT ITEM REQUIRED, AMONG OTHER THINGS, THAT EACH RIG BE EQUIPPED WITH '* * * ROTARY TABLE PLATFORM PINNED TO MAST * * *'. IT IS APPARENT FROM AN EXAMINATION OF THE DESCRIPTIVE LITERATURE OF WABCO'S WALKER-NEER MODEL FWN 30 AND SPEEDSTAR'S MODEL 71R THAT THE SO-CALLED 'ROTARY ATTACHMENT' OFFERED BY SPEEDSTAR DIFFERS IN MATERIAL RESPECTS FROM THE ROTARY TABLE SPECIFIED IN THE SOLICITATION, AND OFFERED BY WABCO. INDEED, THE EQUIPMENT OFFERED BY SPEEDSTAR DOES NOT APPEAR TO INCLUDE ANY ROTARY 'TABLE' AS SUCH * * *.

"INFORMATION AVAILABLE TO US INDICATES THAT BOTH THE EXPERTS OF THE GEOLOGICAL SURVEY AND OUR OWN PROCUREMENT PERSONNEL WERE OF THE OPINION THAT THE RIG PROPOSED TO BE FURNISHED BY SPEEDSTAR WAS EQUAL TO THAT OFFERED BY WABCO BECAUSE BOTH WERE CAPABLE OF DRILLING A 6 INCH DIAMETER HOLE AS REQUIRED BY THE SOLICITATION (SEE ITEM 1, PAGE 13A OF AMENDMENT 2), IN ADDITION TO THE FACT THAT THE SPEEDSTAR EQUIPMENT COULD BE ADJUSTED TO ACCOMMODATE A 32 INCH CASING. IT ALSO APPEARS, HOWEVER, FROM THE DESCRIPTIVE LITERATURE THAT THE WABCO RIG CAN BE ADJUSTED TO ACCOMMODATE CASINGS UP TO 40 INCHES.

"ALTHOUGH WE ARE CONVINCED THAT THE AWARD TO SPEEDSTAR WAS MADE IN GOOD FAITH, YOUR OFFICE HAS CONSISTENTLY HELD THAT IN BRAND NAME OR EQUAL PROCUREMENTS AN AWARD TO A BIDDER OFFERING EQUIPMENT WITH MATERIAL VARIANCES FROM THE DESIGNATED NAME BRAND IS IMPROPER. B 165409, DECEMBER 26, 1968; 43 COMP. GEN. 761; 38 COMP. GEN. 380. UNDER THE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE AWARD TO SPEEDSTAR WAS ERRONEOUS.

"ADDITIONALLY, ASSUMING THAT THE EQUIPMENT OFFERED BY SPEEDSTAR IS ADEQUATE AND WILL MEET ALL OF THE GOVERNMENT'S REQUIREMENTS FOR THE DRILLING WHICH IS TO BE UNDERTAKEN WITH THE EQUIPMENT COVERED BY THE SOLICITATION, THE SOLICITATION OVERSTATED THE MINIMUM NEEDS OF THE GOVERNMENT IN THAT THE BRAND NAME EQUIPMENT DESCRIBED IN THE SOLICITATION IS MORE SOPHISTICATED AND SUPERIOR TO THAT WHICH ACTUALLY IS REQUIRED IN ORDER TO PERFORM THE CONTEMPLATED TASKS. FOR THAT REASON, THE SOLICITATION WAS DEFECTIVE. B-165409, SUPRA; 41 COMP. GEN. 242."

AFTER EXAMINING THE FILE IN THIS CASE, WHICH INCLUDES CORRESPONDENCE FROM SPEEDSTAR DATED MARCH 17 AND MARCH 31, 1970, WE MUST AGREE THAT AS TO ITEM 3 A MATERIAL VARIANCE FROM THE SPECIFICATION WAS GRANTED TO SPEEDSTAR, AND AS A RESULT THE AWARD OF GROUP I TO THAT FIRM WAS ERRONEOUS. HOWEVER, SINCE THE FILE ALSO INDICATES THAT THE EQUIPMENT OFFERED BY SPEEDSTAR WAS BELIEVED, BY BOTH THE GEOLOGICAL SURVEY EXPERTS AND THE GSA PROCUREMENT PERSONNEL, TO BE EQUAL TO THE BRAND NAME EQUIPMENT, AND THE CONTRACTING OFFICER APPARENTLY RELIED ON SUCH OPINIONS AND MADE THE AWARD TO SPEEDSTAR ON THAT BASIS, WE ARE UNABLE TO CONCLUDE THAT THE AWARD IS CLEARLY ILLEGAL. BROWN & SONS ELECTRIC CO. V. UNITED STATES, 163 CT. CL. 465 (1963); JOHN REINER & CO. V. UNITED STATES, 163 CT. CL. 381 (1963); WARREN BROTHERS ROADS CO. V. UNITED STATES, 173 CT. CL. 714 (1965).

IN VIEW THEREOF, AND SINCE WE UNDERSTAND THAT EQUIPMENT OF THE TYPE REQUIRED UNDER ITEM 3 IS, IN EACH CASE, BUILT TO ORDER; THAT SPEEDSTAR HAS ALREADY COMPLETED ITS MANUFACTURE; AND THAT SUCH EQUIPMENT WILL FULFILL THE GOVERNMENT'S ACTUAL NEEDS, WE MUST AGREE WITH THE RECOMMENDATION OF GSA, AS SET OUT IN ITS REPORT TO THIS OFFICE, THAT CANCELLATION OF THE CONTRACT AT THIS TIME WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT.

THE GENERAL SERVICES ADMINISTRATION HAS ADVISED US THAT THE PROCUREMENT PERSONNEL RESPONSIBLE FOR THE PROCUREMENT HAVE BEEN ADVISED OF THE MISTAKES MADE IN CONNECTION THEREWITH, SO THERE SHOULD BE NO RECURRENCES.