B-170700, JUN 3, 1971

B-170700, JUN 3, 1971

BID PROTEST - BID RESPONSIVENESS - BRAND NAME OR EQUAL DECISION CONCERNING PROTEST BY SECOND LOW BIDDER AGAINST AWARD OF A CONTRACT TO BOWES SEAL FAST CORP., UNDER AN IFB ISSUED BY THE ARMY, ROCK ISLAND ARSENAL FOR TUBELESS TIRE REPAIR KITS ON A BRAND NAME OR EQUAL BASIS. ALTHOUGH SUBSTANTIAL PERFORMANCE OF THE CONTRACT PRECLUDES THE COMP. GEN. FROM TAKING ANY CORRECTIVE ACTION AT THIS TIME, BECAUSE BOWES RESERVED THE RIGHT TO FURNISH CARBON STEEL INSERTION NEEDLES IF THE REQUIRED NICKLE PLATED CARBON STEEL NEEDLES WERE NOT AVAILABLE, THE BID WAS RENDERED NONRESPONSIVE. ALSO NOTWITHSTANDING THE IFB LANGUAGE THAT INTERCHANGEABILITY WITH PREVIOUSLY ACQUIRED ADAMS PSP PARTS WAS NOT REQUIRED, IT IS CLEAR THAT THE MINIMUM NEEDS OF THE GOVERNMENT WOULD BE BEST SERVED BY REFILL INTERCHANGEABILITY AND THAT THIS IN FACT WAS THE INTENTION OF THE INVITATION DRAFTERS. THESE MATTERS ARE BEING BROUGHT TO THE ATTENTION OF THE ARMY MATERIEL COMMAND.

TO SULLIVAN, BEAUREGARD, MEYERS & CLARKSON:

REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF ADAMS PSP INCORPORATED CONCERNING A CONTRACT AWARDED TO BOWES SEAL FAST CORPORATION FOR TUBELESS TIRE REPAIR KITS UNDER INVITATION FOR BIDS NO. DAAF01-70-B 0334, ISSUED BY THE UNITED STATES ARMY, ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS.

THE SUBJECT INVITATION WAS ON A "BRAND NAME OR EQUAL" BASIS LISTING ADAMS PSP INCORPORATED PART NUMBER M100 OR EQUAL. IN ADDITION, THE COMPONENT PARTS OF THE KIT WERE LISTED SEPARATELY WITH EACH COMPONENT PART REQUIRED TO BE EQUAL TO STATED SALIENT CHARACTERISTICS OF CORRESPONDING ADAMS PSP PARTS.

YOUR PROTEST IS TO THE EFFECT THAT AN UNDERSTATED ESTIMATE OF FIRST ARTICLE TESTING COST RESULTED IN AN ERRONEOUS BID EVALUATION AND THAT THE COMPONENT PARTS OF THE KIT OFFERED BY BOWES ARE NOT IN FACT EQUAL TO THE ADAMS PSP PARTS SET OUT IN THE INVITATION.

ON THE QUESTION OF BID EVALUATION, THE REPORT FURNISHED OUR OFFICE BY THE DEPARTMENT OF THE ARMY ADVISES THAT THE UNEVALUATED TOTAL PRICE OF THE BOWES BID WAS $179,643.60 WHILE THE ADAMS PSP UNEVALUATED BID WAS $180,397.50, A DIFFERENCE OF $753.90. THE EVALUATED BOWES BID PRICE WAS $176,550.73, WHICH FIGURE WAS ARRIVED AT BY DEDUCTING $3,592.87 FOR THE 2- PERCENT, 20-DAY PROMPT PAYMENT DISCOUNT, AS PROVIDED BY THE INVITATION, AND BY ADDING TO THAT FIGURE $500, THE AMOUNT STIPULATED BY THE INVITATION AS THE COST OF FIRST ARTICLE TESTING. THE EVALUATED BID PRICE OF THE ADAMS PSP BID, EVALUATED ON THE BASIS OF WAIVER OF FIRST ARTICLE TESTING, WAS $179,495.51, THE DEDUCTION REPRESENTING A 0.5 PERCENT, 20-DAY PROMPT PAYMENT DISCOUNT OF $901.99. THE DIFFERENCE IN THE EVALUATED TOTAL OF THE BOWES AND ADAMS PSP BIDS WAS THEREFORE $2,944.78, ASSUMING WAIVER OF FIRST ARTICLE TESTING FOR ADAMS PSP AND NONWAIVER FOR BOWES.

YOU CONTEND THAT THE ACTUAL COST OF FIRST ARTICLE TESTING GREATLY EXCEEDED THE $500 FIGURE STIPULATED BY THE INVITATION BECAUSE OF TIME, TRAVEL, AND THE COST OF RAW MATERIALS REQUIRED FOR TESTING. THE ADMINISTRATIVE REPORT STATES THAT ALTHOUGH THE ACTUAL COSTS INCURRED IN TESTING THE BOWES KIT WERE APPROXIMATELY $1,200, THE ORIGINAL ESTIMATE OF TESTING COST WAS APPROXIMATELY $400 BASED ON AN ASSUMPTION THAT VEHICLES WOULD BE AVAILABLE FOR TEST PURPOSES AT THE PROCURING ACTIVITY. THE INCREASED COST WAS CAUSED PRIMARILY BY THE FACT THAT SUCH TEST VEHICLES WERE NOT AVAILABLE AT THE PROCURING ACTIVITY AND IT WAS NECESSARY FOR THE INDIVIDUAL CHARGED WITH THE RESPONSIBILITY OF PERFORMING THE TESTS TO TRAVEL TO A DIFFERENT LOCATION, THEREBY INCURRING ADDITIONAL COSTS FOR PER DIEM, TRANSPORTATION, ETC.HOWEVER, IT IS POINTED OUT THAT THE BOWES BID WOULD STILL BE LOWER THAN THE ADAMS PSP BID IF THE ACTUAL TESTING COST WAS CONSIDERED IN THE BID EVALUATION. ALSO, THE REPORT POINTS OUT THAT OUR OFFICE HAS HELD THAT INVITATIONS FOR BIDS SHOULD STATE THE BASIS FOR BID EVALUATION IN ADVANCE AS CLEARLY, PRECISELY, AND EXACTLY AS POSSIBLE, AND CONCLUDES THAT THE $500 TEST COST WAS REASONABLE UNDER THE CIRCUMSTANCES. WE AGREE WITH THIS POSITION AND CONCLUDE THAT NO BASIS EXISTS FOR CHALLENGING THE BID EVALUATION.

ON THE QUESTION OF THE EQUALITY OF THE BOWES KIT, YOU POINT OUT THAT ADAMS PSP PARTICIPATED IN A SERIES OF EXHAUSTIVE TESTS SPONSORED BY THE DEPARTMENT OF THE ARMY TO DETERMINE IMPROVEMENTS REQUIRED TO BE MADE TO THE STANDARD ADAMS PSP REPAIR KIT TO RENDER IT SUITABLE FOR USE UNDER FIELD CONDITIONS. YOU STATE, AMONG OTHER THINGS, THAT THE TESTS REVEALED THAT AN ANODIZED ALUMINUM CANISTER WAS PREFERABLE TO A CHROME PLATED STEEL CANISTER BECAUSE IT WAS NECESSARY TO PROTECT AGAINST RUST AND FUNGUS GROWTH INSIDE THE CANISTER, AND THAT IT WAS DETERMINED THAT 10-GAUGE STAINLESS STEEL INSERTION NEEDLES WERE PREFERABLE TO CHROME PLATED CARBON STEEL NEEDLES IN VIEW OF THE TENDENCY OF THE PLATED NEEDLES TO CHIP AND CORRODE UNDER FIELD CONDITIONS. IT IS YOUR POSITION THAT THE ADAMS PSP KIT AS MODIFIED FOLLOWING THE ARMY FEASIBILITY TESTS PROPERLY BECAME THE STANDARD AGAINST WHICH COMPETING KITS SHOULD BE MEASURED.

CONCERNING THE PRODUCT OFFERED BY BOWES AS EQUAL TO THE ADAMS PSP KIT, YOU POINT OUT THAT THE CANISTER PROPOSED BY BOWES WAS CHROME PLATED STEEL, NOT ANODIZED ALUMINUM, AND THAT THE CANISTERS INITIALLY FURNISHED FOR FIRST ARTICLE TESTING CONTAINED AN UNACCEPTABLE AMOUNT OF RUST. YOU ALSO POINT OUT THAT THE INSERTION NEEDLES INITIALLY FURNISHED BY BOWES FOR FIRST ARTICLE TESTING WERE REJECTED BECAUSE OF EXCESSIVE BREAKAGE, AND YOU CONTEND THAT THE BOWES OFFER TO SUPPLY NICKEL-PLATED CARBON NEEDLES OR CARBON STEEL NEEDLES WITH A BRIGHT METAL FINISH, IF NICKEL-PLATED NEEDLES ARE NOT AVAILABLE, WAS AN UNACCEPTABLE CONDITION TO THE INVITATION REQUIREMENT THAT NEEDLES MUST BE MADE OF EITHER NICKEL-PLATED CARBON STEEL OR STAINLESS STEEL WITH A 10-GAUGE MINIMUM DIAMETER.

FINALLY, YOU POINT OUT THAT IN ORDER TO PERMIT REUSE OF INSERTION TOOLS AND CANISTERS PREVIOUSLY SUPPLIED BY ADAMS PSP, IT IS NECESSARY THAT REFILL CARTRIDGES FIT WITHIN THE DIMENSIONS OF THE ADAMS PSP CANISTER. YOU CONTEND THAT THIS INTERCHANGEABILITY REQUIREMENT WAS STATED IN THE INVITATION AND THAT THE FAILURE OF THE BOWES REFILL CARTRIDGE TO FIT WITHIN THE ADAMS PSP CANISTER RENDERED THE BOWES BID NONRESPONSIVE.

THE POSITION TAKEN BY THE DEPARTMENT OF THE ARMY IS THAT THE DETERMINING FACTOR AS TO THE EQUALITY OF KITS, OTHER THAN THE ADAMS PSP KIT, IS THE LANGUAGE OF THE INVITATION CONCERNING THE REQUIRED SALIENT CHARACTERISTICS RATHER THAN THE RESULTS OF THE PREVIOUSLY CONDUCTED ARMY FEASIBILITY TESTS. DECISIONS OF OUR OFFICE ARE CITED IN THE ADMINISTRATIVE REPORT TO THE EFFECT THAT PRODUCTS OFFERED AS THE EQUAL OF SPECIFIED PRODUCTS NEED NOT BE IDENTICAL TO THE SPECIFIED PRODUCT BUT NEED ONLY BE "EQUAL TO THE PRODUCT SPECIFIED, INSOFAR AS THE NEEDS OF THE PROCURING AGENCY ARE CONCERNED." 43 COMP. GEN. 761 (1964). CONCERNING THE CANISTER OFFERED BY BOWES, THE ADMINISTRATIVE REPORT NOTES THAT THE ONLY SALIENT CHARACTERISTIC CONCERNING THE CANISTER LISTED IN THE INVITATION WAS THAT IT BE MADE OF METAL, WITH NO ADDITIONAL REQUIREMENTS WITH REGARD TO CORROSION OR FUNGUS RESISTANCE.

ON THE QUESTION OF THE NEEDLES PROPOSED BY BOWES, THE ADMINISTRATIVE REPORT TAKES THE POSITION THAT THE BOWES OFFER TO FURNISH NEEDLES WITH EITHER NICKEL-PLATED CARBON STEEL OR CARBON STEEL WITH A BRIGHT METAL FINISH WAS SUFFICIENT TO MEET THE INVITATION REQUIREMENTS AND THAT THE INITIAL FAILURE OF THE BOWES NEEDLES TO PASS FIRST ARTICLE TESTING DID NOT BEAR UPON THE CONTRACTUAL DUTY OF BOWES TO FURNISH NEEDLES MEETING THE INVITATION REQUIREMENTS. IN THIS REGARD, SIGNED STATEMENTS FROM SUPERVISORY ENGINEERING PERSONNEL RESPONSIBLE FOR EVALUATING THE BOWES BID ARE TO THE EFFECT THAT IT WAS ASSUMED THAT NICKEL-PLATED CARBON STEEL WOULD BE AVAILABLE FOR USE BY BOWES BECAUSE THAT MATERIAL WAS READILY AVAILABLE IN THE COMMERCIAL MARKET. ALSO, IT IS STATED THAT IT WAS ASSUMED THAT IF CARBON STEEL NEEDLES WITH A BRIGHT METAL FINISH WERE FURNISHED, AS ALTERNATIVELY PROPOSED BY BOWES, THAT SUCH NEEDLES WOULD BE COATED BY AN ELECTROLYTIC PROCESS WHICH WOULD RENDER THEM ACCEPTABLE AS MEETING OR EXCEEDING THE CORROSION RESISTANCE OBTAINABLE THROUGH THE USE OF EITHER NICKEL-PLATED CARBON STEEL OR STAINLESS STEEL.

THE PROCUREMENT ACTIVITY ADVISES, WITH REGARD TO THE INTERCHANGEABILITY OF TOOLS AND REFILL CARTRIDGES SUPPLIED UNDER THE INSTANT CONTRACT WITH TOOLS AND REFILLS PREVIOUSLY SUPPLIED BY ADAMS PSP, THAT SUCH INTERCHANGEABILITY WAS NOT REQUIRED BY THE INVITATION. IN THIS REGARD, THE INVITATION REQUIREMENT FOR REFILL CARTRIDGES REQUIRES ONLY THAT "THE OUTSIDE DIAMETER OF THE REFILL TUBE SHALL EASILY FIT THE CANISTER WHICH IS ASSEMBLED TO THE INJECTOR TOOL HEAD AS WELL AS TO OPERATE SATISFACTORILY IN ITS INTENDED APPLICATION AND FUNCTION WITH ADAMS PSP INC., PART NO. M150 OR EQUAL INJECTOR TOOL." IN OTHER WORDS, THE REFILL TUBE IS REQUIRED TO FIT EITHER THE ADAMS PSP INJECTOR TOOL OR THE EQUIVALENT BOWES INJECTOR TOOL, IT IS NOT REQUIRED ALSO TO FIT INSIDE THE ADAMS PSP TOOL.

THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER ITEMS OFFERED MEET THOSE SPECIFICATIONS ARE PRIMARILY FUNCTIONS OF THE ADMINISTRATIVE AGENCY SINCE THE ADMINISTRATIVE AGENCY IS UNIQUELY KNOWLEDGEABLE AS TO WHAT WILL SERVE THE GOVERNMENT'S MINIMUM NEEDS IN A GIVEN INSTANCE. THUS, THE DETERMINATION BY THE CONTRACTING OFFICIALS IN THIS CASE THAT A TUBELESS TIRE REPAIR KIT SUBJECT TO LESS STRINGENT REQUIREMENTS THAN THOSE DETERMINED IN THE FEASIBILITY TESTS OF THE ADAMS PSP KIT IS NOT SUBJECT TO QUESTION BY OUR OFFICE. WHILE IT IS UNFORTUNATE THAT ADAMS PSP ASSUMED THAT THE KIT DEVELOPED FOLLOWING FEASIBILITY TESTING REPRESENTED THE GOVERNMENT'S MINIMUM NEEDS, A CLOSE READING OF THE SALIENT CHARACTERISTICS SET OUT IN THE BRAND NAME OR EQUAL DESCRIPTIONS IN THE INSTANT INVITATION INDICATES A REDUCTION IN THE REQUIREMENTS DEVELOPED BY THE FEASIBILITY TESTS.

HOWEVER, IN OUR OPINION, THERE ARE ELEMENTS OF THIS PROCUREMENT WHICH ARE SUBJECT TO QUESTION. BECAUSE DELIVERIES UNDER THE CURRENT CONTRACT WERE SUBSTANTIALLY COMPLETED BEFORE YOUR FINAL BRIEFS IN THE MATTER WERE SUBMITTED TO OUR OFFICE, WE ARE PRECLUDED FROM NOW TAKING ANY CORRECTIVE ACTION IN THE INSTANT PROCUREMENT. WE ARE, HOWEVER, ADVISING THE ARMY MATERIEL COMMAND OF THE DEFECTS IN THIS PROCUREMENT IN ORDER THAT THEY WILL NOT BE REPEATED IN FUTURE PROCUREMENTS.

FIRST, WE NOTE THAT THE INVITATION REQUIRED THAT INSERTION NEEDLES TO BE FURNISHED WITH THE REPAIR KIT WERE TO BE ADAMS PSP M80 OR EQUAL AND THAT THE INVITATION SPECIFIED THAT THE NEEDLES WERE TO BE MADE OF "NICKEL PLATED CARBON STEEL, HEAT TREATED AND POLISHED OR STAINLESS STEEL 10 GAUGE MINIMUM DIAMETER." THE BOWES BID IN RESPONSE TO THIS REQUIREMENT OFFERED TO FURNISH NEEDLES OF "NICKEL PLATED CARBON STEEL, IF AVAILABLE. IF NOT, THE NEEDLES WILL BE CARBON STEEL WITH A BRIGHT METAL FINISH." WHILE SIGNED STATEMENTS IN THE ADMINISTRATIVE FILE TAKE THE POSITION THAT IT WAS KNOWN BY THE EVALUATORS THAT NICKEL-PLATED CARBON STEEL NEEDLES WOULD BE AVAILABLE, AND WHILE IT IS REPORTED THAT THE NEEDLES ACTUALLY FURNISHED BY BOWES WERE NICKEL-PLATED CARBON STEEL, IT IS OUR OPINION THAT THE RESERVATION OF THE RIGHT BY BOWES TO FURNISH NEEDLES OTHER THAN AS SPECIFIED BY THE INVITATION RENDERED THE BOWES BID NONRESPONSIVE. SEE, IN THIS REGARD, 48 COMP. GEN. 441 (1968) WHERE IT WAS HELD THAT THE FAILURE TO MEET SALIENT CHARACTERISTICS SET OUT IN A "BRAND NAME OR EQUAL" INVITATION WAS SUFFICIENT TO RENDER A BID NONRESPONSIVE NOTWITHSTANDING THE CONTRACTING OFFICER'S POSITION THAT THE DEVIATIONS FROM THE STATED SALIENT CHARACTERISTICS WERE MINOR IN NATURE.

SECOND, ON THE QUESTION OF THE INTERCHANGEABILITY OF REFILL CARTRIDGES WITH ADAMS PSP CANISTERS AND INSERTION TOOLS ALREADY IN USE, WE MUST AGREE THAT A LITERAL READING OF THE INVITATION LANGUAGE DOES NOT REQUIRE INTERCHANGEABILITY. HOWEVER, WE NOTE THAT AN INTERNAL MEMORANDUM CONCERNING THE FIRST ARTICLE TESTING OF THE BOWES KIT ADVISES THAT THE LOSS OF REFILL INTERCHANGEABILITY IS NOT ACCEPTABLE AND POINTS OUT THAT LACK OF INTERCHANGEABILITY WILL PROBABLY RESULT IN THE DISCARDING IN THE FIELD OF OTHERWISE REUSABLE CANISTERS. NOTWITHSTANDING THE INVITATION LANGUAGE TO THE CONTRARY, WE THINK THAT IT IS CLEAR THAT THE MINIMUM NEEDS OF THE GOVERNMENT WOULD BEST BE SERVED BY REFILL INTERCHANGEABILITY AND THAT THIS, IN FACT, WAS THE INTENT OF THE INVITATION DRAFTERS. THIS VIEW IS REINFORCED BY THE FACT THAT A LATER INVITATION FOR BIDS FOR REPLACEMENT CARTRIDGES (INVITATION NO. DAAF01-71-B-0168) WAS CANCELED BECAUSE OF REVISED SPECIFICATIONS APPARENTLY FOR THE EXPLICIT PURPOSE OF REQUIRING INTERCHANGEABILITY.

CONCERNING FUTURE PROCUREMENTS OF REPAIR KITS, WE HAVE BEEN INFORMALLY ADVISED BY THE ARMY MATERIEL COMMAND THAT AN INVITATION FOR BIDS FOR CURRENT REQUIREMENTS CONTAINS REVISED SPECIFICATIONS. WHILE WE ARE NOT AWARE OF THE NATURE OF THE REVISED SPECIFICATIONS AT THIS TIME, WE TRUST THAT THE DEFECTS INDICATED ABOVE HAVE BEEN CURED.