B-170309, OCT. 8, 1970

B-170309: Oct 8, 1970

Additional Materials:

Contact:

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

 

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

A DETERMINATION THAT LOW BIDDER'S ALTERNATE BID UNDER "BRAND NAME OR EQUAL" INVITATION DID NOT MEET SPECIFICATIONS MAY NOT BE QUESTIONED IN ABSENCE OF ANY BASIS FOR SUCH QUESTION SINCE DRAFTING OF SPECIFICATIONS TO MEET NEEDS IS PRIMARILY A RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR BID AND AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER SOLICITATION NO. 4 MUST HAVE DOORS SUITABLE FOR SLING LOADING AS WELL AS MANUAL LOADING. YOUR BID WAS TRANSMITTED WITH A COVER LETTER DATED JUNE 4. "WE ARE QUOTING ON THE BRAUN WASHER-EXTRACTORS FOR ITEMS 1 THROUGH 4. WE ARE QUOTING ON THE BRAUN TOP-SLIDE WASHER EXTRACTORS. THIS TYPE MACHINE IS COMMONLY REFERRED TO AS SIDE-LOADER.

B-170309, OCT. 8, 1970

BID PROTEST - EVALUATION - BRAND OR EQUAL CLAUSE DENIAL OF PROTEST OF G.A. BRAUN, INC., LOW BIDDER, AGAINST REJECTION OF BID AS NONRESPONSIVE AND AWARD OF CONTRACT TO PELLERIN MILNOR CORP., SECOND LOW BIDDER FOR FURNISHING AND INSTALLATION OF COMMERCIAL LAUNDRY EQUIPMENT, BY THE DEPARTMENT OF ARMY. A DETERMINATION THAT LOW BIDDER'S ALTERNATE BID UNDER "BRAND NAME OR EQUAL" INVITATION DID NOT MEET SPECIFICATIONS MAY NOT BE QUESTIONED IN ABSENCE OF ANY BASIS FOR SUCH QUESTION SINCE DRAFTING OF SPECIFICATIONS TO MEET NEEDS IS PRIMARILY A RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY.

TO G. A. BRAUN, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR BID AND AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER SOLICITATION NO. DABF03-70 -B-0118, BY THE DEPARTMENT OF THE ARMY.

THE SUBJECT SOLICITATION, ISSUED ON MAY 21, 1970, AND OPENED ON JUNE 24, 1970, CALLED FOR BIDS ON FURNISHING AND INSTALLING COMMERCIAL LAUNDRY EQUIPMENT. ITEMS 1 THROUGH 4 CALLED FOR EQUIPMENT OF VARYING CAPACITIES IN ACCORDANCE WITH SPECIFIED NAME BRANDS "OR EQUAL". ITEMS 3 AND 4 SPECIFIED YOUR BRAND "OR EQUAL". IN ADDITION, THE SPECIFICATIONS PROVIDED THAT ITEMS 2, 3, AND 4 MUST HAVE DOORS SUITABLE FOR SLING LOADING AS WELL AS MANUAL LOADING.

YOUR BID WAS TRANSMITTED WITH A COVER LETTER DATED JUNE 4, 1970, FROM WHICH WE QUOTE THE FOLLOWING.

"WE ARE QUOTING ON THE BRAUN WASHER-EXTRACTORS FOR ITEMS 1 THROUGH 4. ITEMS 2, 3, AND 4, WE ARE QUOTING ON THE BRAUN TOP-SLIDE WASHER EXTRACTORS, AS PER SPECIFICATIONS. THIS TYPE MACHINE IS COMMONLY REFERRED TO AS SIDE-LOADER. SINCE SOME MANUFACTURERS MIGHT ENDEAVOR TO HAVE END OR FRONT-LOADING TYPE WASHER-EXTRACTORS TO BE EQUIVALENT TO SIDE-LOADING TYPE, WE DO NOT WISH TO BE PENALIZED IN CASE THIS MIGHT BE CONSIDERED AND, THEREFORE, ARE QUOTING AN ALTERNATE ON END OR FRONT LOADING TYPE FOR ITEMS 2, 3, AND 4. WE DO HIGHLY RECOMMEND THE TOP SIDE OR SIDE-LOADING TYPE BECAUSE IT IS NOT ONLY EASIER TO LOAD, BUT IS ALSO MUCH EASIER TO UNLOAD.' IN ADDITION, YOU SUBMITTED SPECIFICATION SHEETS ON YOUR EQUIPMENT.

YOU SUBMITTED THE LOW AGGREGATE BID OF $103,598, ON THE BASIS OF YOUR ALTERNATE BID PRICES, AND PELLERIN MILNOR CORPORATION (PMC) SUBMITTED THE NEXT LOWEST AGGREGATE BID PRICE OF $103,696.62. YOUR ALTERNATE BID WAS REJECTED AS NONRESPONSIVE TO THE SPECIFICATIONS AND AWARD WAS MADE TO PMC ON JUNE 30, 1970, AS THE LOW RESPONSIVE BIDDER.

YOU CONTEND THAT YOU WERE THE LOW RESPONSIVE BIDDER ON THE TOP OR SIDE LOAD EQUIPMENT SPECIFIED IN THE "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION, AS PMC BID ON FRONT OR END LOADING EQUIPMENT. FURTHER, YOU CONTEND THAT IF THE LETTER TYPE EQUIPMENT IS ACCEPTABLE, EVEN THOUGH YOU DO NOT CONSIDER IT EQUAL IN LOADING OR UNLOADING CAPABILITY, YOUR ALTERNATE BID SHOULD HAVE BEEN ACCEPTED AS YOUR FRONT OR END LOADING EQUIPMENT WILL ACCOMMODATE SLING LOADING.

ALTHOUGH YOU FILED A PROTEST WITH THE CONTRACTING OFFICER BEFORE AWARD, THE CONTRACT WAS AWARDED TO PMC PRIOR TO RESOLUTION OF YOUR PROTEST PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 2 407.8(B)(3), WHICH AUTHORIZES SUCH ACTION WHERE IT IS DETERMINED THAT THE ITEMS TO BE PROCURED ARE URGENTLY REQUIRED OR A PROMPT AWARD WILL OTHERWISE BE ADVANTAGEOUS TO THE GOVERNMENT. THE CONTRACTING OFFICER MADE SUCH A DETERMINATION, CONCLUDING THAT CONTINUED USE OF THE EQUIPMENT TO BE REPLACED WOULD NECESSITATE REPAIR WORK COSTING APPROXIMATELY $3,750, AND FAILURE TO MAKE AN AWARD ON JUNE 30, 1970, WOULD RESULT IN LOSS OF THE FUNDS EARMARKED FOR PURCHASE OF THE EQUIPMENT.

PRIOR TO THE AWARD TECHNICAL EVALUATIONS WERE REQUESTED ON YOUR EQUIPMENT OFFERED UNDER THE ALTERNATE BID AND ON PMC'S EQUIPMENT. ON THE BASIS OF THE TECHNICAL INFORMATION SUBMITTED WITH THE RESPECTIVE BIDS, THE TECHNICAL ADVISORS CONCLUDED THAT EXCEPT IN ONE RESPECT THE FRONT OR END LOADING EQUIPMENT OF BOTH FIRMS WAS EQUAL TO THAT SPECIFIED. THEY FOUND THAT ONLY WITH RESPECT TO SUITABILITY OF THE DOORS FOR SLING LOADING WAS THERE ANY QUESTION. AFTER A DETAILED EVALUATION, THEY CONCLUDED AS FOLLOWS:

"1. THE DOORS OF THE BRAUN END-LOADING WASHER-EXTRACTORS ARE NOT SUITABLE FOR SLING LOADING FOR THE FOLLOWING REASONS:

"A. DOORS TOO HIGH (39" TO 43") FOR REASONABLE ACCESS. AS CONFIRMED BY MIL-W-4300ID, DATED 1 JUN 1970, WHICH STIPULATES A MAXIMUM ACCEPTABLE DOOR HEIGHT REQUIREMENT OF 38", THE GOVERNMENT (ARE PRESUMABLY ITS INDUSTRY ADVISORS) HAVE RECOGNIZED THE SAFETY AND EFFICIENCY PROBLEMS WHICH ARISE FROM AN EXCESSIVE ELEVATION WHEN LIFTING OR HANDLING OF HEAVY LOADS IS INVOLVED.

"B. DOORS ARE TOO SMALL TO PERMIT REASONABLY GRAVITY ASSIST IN UNLOADING SLINGS. IN THE CASE OF THE NEUTRON 200, THE DOOR HEIGHT OF 11 7/8", WITH ONLY A 23" WIDTH WILL CAUSE A BLOCKAGE OF THE FUNNEL IN EXCESS OF 50% OF ITS INTENDED FREE FLOW, WHICH WILL CERTAINLY BIND THE CONTENTS OF THE SLING AGAINST EFFICIENT UNLOADING. IT APPEARS CONCEIVABLE THAT ANY SLING UNLOADING INTO THIS MACHINE MUST CONSIST OF A COMPLEX CONTROLLED DROP ONTO THE CYLINDER DOOR (TRAY) WITH THE CONTENTS THEN HAVING TO BE MANUALLY INSERTED INTO THE COMPARTMENT CHAMBER. THIS WOULD APPEAR TO BE A COMBERSOME, SLOW PROCEDURE WITH EXCESSIVE SPILLAGE, ALMOST COMPLETELY NEGATING THE VALUE OF SLING LOADING. OTHER BRAUN MODELS WOULD HAVE SIMILAR PROBLEMS, REDUCED PROPORTIONATELY TO THEIR INCREASED SIZES IN RELATION TO THE 24" FUNNEL DIAMETER.

"C. DOOR LOCATIONS ARE UNSUITABLE, IN THAT THEY ARE LEVEL WITH THE FLOOR OF THE COMPARTMENT, WITH NO DROP AREA FOR GRAVITY FEED, AND IN FACT REQUIRING AN UPWARD THRUST TO FILL THE COMPARTMENT CHAMBER, WITH LOADS UP TO 150 LBS. REQUIRING THIS MAN HANDLING. AN UPWARD THRUST THROUGH THE SLING FUNNEL TO UNLOAD AND PACK A WASHER CHAMBER IS CONSIDERED AT BEST HIGHLY IMPRACTICAL, AND MAY WELL BE IMPOSSIBLE, AT LEAST IN THE NEUTRON 200 MACHINE.

"D. DOOR ANGLE - THE VERTICAL ANGLE OF THE DOOR CAN BE CONSIDERED ACCEPTABLE ONLY WHEN THE DOOR ITSELF IS LARGE ENOUGH TO PERMIT A STRAIGHT LINE CHUTING ACTION FROM THE BAG THROUGH THE SLING FUNNEL. WITH THE DOOR SIZES ON THE BRAUN MODELS, PARTICULARLY NEUTRON 200, THIS STRAIGHT LINE CHUTING APPEARS IMPOSSIBLE, AND THE FUNNEL MUST EITHER JACK-KNIFE OR DRASTICALLY COMPRESS TO ENTER THE DOOR OPENING.

"2. THE DOORS OF THE PELLERIN MILNOR END LOADING WASHER EXTRACTORS ARE SUITABLE FOR SLING LOADING FOR THE FOLLOWING REASONS:

"A. DOOR LEVELS ARE WELL BELOW THE MAXIMUM HEIGHT PRESCRIBED BY MIL W- 43001D, AND IN FACT THE 38" LEVEL PRESCRIBED THEREIN IS APPROXIMATELY EQUIVALENT TO THE LEVEL OF THE BOTTOM OF THE SLING FUNNEL IN ITS UNLOADING POSITION, IF THE SLING IS MOUNTED IN ACCORDANCE WITH VENDOR'S RECOMMENDATIONS (SEE INCLOSURE #1).

"B. DOOR SIZES ARE ADEQUATE TO RECEIVE THE FULL CIRCUMFERENCE OF THE SLING, WITH LITTLE OR NO CONTORTION OF ITS CIRCULAR SHAPE. ON SMALLER MODELS, THE OPENING SIZE OF 533 SQUARE INCHES IS APPROXIMATELY 20% GREATER THAN THE 452.4 SQUARE INCHES WHICH THE 24" DIAMETER OF THE FUNNEL REPRESENTS. ON THE LARGER 600# MODEL, THIS RATIO INCREASES TO ALMOST 100% WHICH COULD THEREBY PERMIT USE OF WIDER DIAMETER 75 LB OR 100 LB SLINGS IF DESIRED.

"C. DOOR LOCATIONS ARE ACCEPTABLE IN THAT APPROXIMATELY 27" OF CYLINDER DEPTH REMAINS BELOW DOOR LEVEL IN THE LOADING POSITION, AND DOOR CONFIGURATION ALLOWS THE FUNNEL MOUTH TO BE EMPTIED 5" HIGHER, PERMITTING A GRAVITY DROP IN EXCESS OF 50% OF CYLINDER DIAMETER. WITH BUILT-IN SPRAY DOWN FEATURE OF THIS MACHINE A CONSIDERABLY HIGHER COMPACTION RESULTS.

"D. DOOR ANGLE - WHILE IT IS TRUE THAT THE VERTICAL ANGLE OF THE DOOR IS A FULL 90 DEG. DEVIATION FROM THE IDEAL FOR SLING LOADING, THE DESIGN OF THE MACHINE NEVERTHELESS PERMITS THE APPLICATION OF A SLING LOADING OPERATION, IN THAT A STRAIGHT LINE CHUTING ACTION CAN BE REASONABLY ACHIEVED."

UPON THEIR RECOMMENDATIONS, THE CONTRACT AWARDS BOARD CONCURRED IN THE CONTRACTING OFFICER'S DECISION TO AWARD THE CONTRACT TO PMC.

THE DRAFTING OF SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AND THE DETERMINATION OF WHETHER PRODUCTS OFFERED MEET THE SPECIFICATIONS, IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY CONCERNED, TO BE QUESTIONED BY OUR OFFICE ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 38 COMP. GEN. 190 (1958). IN THE INSTANT CASE, WE SEE NO BASIS FOR QUESTIONING THE ADMINISTRATIVE DETERMINATION.

ACCORDINGLY, YOUR PROTEST IS DENIED.