B-174025, MAR 31, 1972

B-174025, MAR 31, 1972

BID PROTEST - RESPONSIVENESS - UNSOLICITED DATA - DETERMINATION OF CONFORMANCE DECISION DENYING THE PROTEST OF BLACK AND DECKER MANUFACTURING COMPANY AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER A SOLICITATION ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, FOR A PROCUREMENT OF PORTABLE PNEUMATIC GRINDERS. THE COMP. GEN. HAS NEVER OBJECTED TO THE CONTRACTING OFFICER'S USE OF AVAILABLE DATA TO RESOLVE ANY AMBIGUITIES CREATED BY THE INCLUSION OF A MANUFACTURER'S PART NUMBER IN A BID. HERE, IN ADDITION TO THE LISTING OF THE GARDNER-DENVER COMPANY'S MODEL BY THE DEFENSE LOGISTIC SUPPLY CENTER UNDER THE FEDERAL STOCK NUMBER FOR THE SUBJECT ITEM, GSA'S RELIANCE ON THE BIDDER'S CATALOGUE WAS SUFFICIENTLY DETAILED TO REASONABLY ESTABLISH CONFORMANCE WITH THE SPECIFICATIONS. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO THE BLACK & DECKER MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 3, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER SOLICITATION NO. FPNTP-B6-37250-A-7-14-71, ISSUED JUNE 14, 1971, BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION REGION 3, WASHINGTON, D.C.

THE SOLICITATION WAS FOR 432 PORTABLE PNEUMATIC GRINDERS, FEDERAL STOCK NUMBER 5130-293-2797. AT BID OPENING ON JULY 14, 1971, THE BID OF THE GARDNER-DENVER COMPANY WAS FOUND TO BE LOW. YOU WERE THE SIXTH LOW BIDDER. HOWEVER, IT IS YOUR CONTENTION THAT SINCE THE LOW BID CONTAINED THE TYPED ENTRY "GARDNER-DENVER MODEL 2RG25" THE BID WAS AMBIGUOUS AND FATALLY DEFECTIVE. YOU CLAIM THAT THREE OF THE OTHER FOUR LOWER BIDS WERE ALSO AMBIGUOUS BECAUSE OF INCLUSION OF MODEL NUMBERS OR REFERENCE TO EQUIPMENT FURNISHED ON A PREVIOUS CONTRACT, AND THAT THE REMAINING BIDDER DOES NOT MANUFACTURE A PRODUCT CONFORMING TO THE SOLICITATION. YOU URGE REJECTION OF ALL THESE BIDS AS NONRESPONSIVE AND REQUEST THAT AWARD BE MADE TO YOU AS THE LOWEST RESPONSIVE BIDDER. AWARD OF A CONTRACT HAS BEEN HELD IN ABEYANCE PENDING RESOLUTION OF YOUR PROTEST.

WE HAVE HELD, IN SEVERAL RECENT CASES, THAT THE UNSOLICITED LISTING OF PART NUMBERS IN A BID CREATED AN INITIAL AMBIGUITY IN THE ABSENCE OF A STATEMENT IN THE BID THAT THE SPECIFIED PART NUMBER CONFORMED TO THE SPECIFICATION. 50 COMP. GEN. 8 (1970); B-171417 (MARCH 9, 1971); B 174399 (FEBRUARY 18, 1972). AN AMBIGUITY REQUIRING REJECTION OF THE BID WAS FOUND IN THOSE CASES BECAUSE THE CONTRACTING OFFICER COULD NOT DETERMINE WHETHER THE BIDDER WAS OFFERING MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATION, AND BECAUSE THE BIDDER WAS AFFORDED AN OPTION TO AFFECT THE RESPONSIVENESS OF ITS BID.

HOWEVER, WE HAVE NEVER HELD THAT THE INCLUSION OF PART NUMBERS IN A BID WILL AUTOMATICALLY RENDER A BID NONRESPONSIVE UNDER ALL CIRCUMSTANCES. FACT, WE SPECIFICALLY STATED THAT WE DO NOT OBJECT TO THE CONTRACTING OFFICER'S USE OF CATALOG CUT SHEETS AND OTHER DATA AVAILABLE TO THE GOVERNMENT PRIOR TO BID OPENING TO TRY TO RESOLVE THE INITIAL AMBIGUITY. 50 COMP. GEN. 8 (1970). IN THAT CASE, WE FOUND THAT THE DATA RELIED ON BY THE CONTRACTING OFFICER WAS NOT ADEQUATE FOR RESOLUTION OF THE AMBIGUITY. AND IN B-171417, MAY 26, 1971, WE FOUND IT IMPOSSIBLE TO ESTABLISH THAT NUMBERS IN THE BID "CORRESPOND TO EXACT FEDERAL SUPPLY NUMBERS FOR ITEMS WHICH MEET THE INSTANT SPECIFICATION" OR THAT THE NUMBERS IDENTIFIED CONFORMING ITEMS IN A CATALOG OR OTHER DOCUMENT PUBLICLY AVAILABLE AT TIME OF BID OPENING.

THE SOLICITATION IN THE INSTANT CASE LISTED AS THE ITEM TO BE PROCURED, "FSN 5130-293-2797." IMMEDIATELY BENEATH THAT LISTING, THE FOLLOWING DESCRIPTION APPEARED:

"GRINDER, PNEUMATIC, PORTABLE: SHALL CONFORM TO THE APPLICABLE REQUIREMENTS OF FEDERAL SPECIFICATION 00-G-669E, DATED APRIL 10, 1967 AND INTERIM AMENDMENT 2, DATED DECEMBER 15, 1969. TYPE I (HORIZONTAL) WITH A STRAIGHT HANDLE, LEVER THROTTLE AND A 1/8 OR 1/4 INCH NPTF AIR INLET. EXCEPTION TO SPECIFICATION: 1 1/2 INCH DIAMETER BY 3/4 INCH WIDE WHEEL CAPACITY; 22,500 MINIMUM TO 25,000 MAXIMUM AT NO LOAD; 1/4 INCH CAPACITY COLLER AND COLLET WRENCH; MAXIMUM AIR CONSUMPTION OF 22 CFM AT NO LOAD; 7 INCH LENGTH; 1.5 POUNDS MAXIMUM WEIGHT AND WITHOUT WHEEL GUARD."

DEFENSE LOGISTIC SUPPLY CENTER LISTING DATED APRIL 8, 1971, INDICATES SOURCES OF SUPPLY FOR FEDERAL STOCK NUMBER ITEMS. THIS LISTING INCLUDES UNDER FSN 5130-293-2797, "MODEL 2RG25." YOU CLAIM THAT THIS LISTING DOES NOT ESTABLISH COMPLIANCE WITH THE SOLICITATION BECAUSE THE DEFENSE LOGISTIC SUPPLY CENTER IS NOT TECHNICALLY QUALIFIED OR CAPABLE OF MAKING THIS DETERMINATION. HOWEVER, GSA ADVISES THAT THE LISTING OF A COMMERCIAL MODEL IS A "DEFINITE FINDING" THAT THE MODEL "MEETS ALL THE REQUIREMENTS OF THE ITEM IDENTIFIED BY THE FEDERAL STOCK NUMBER." ACCORDINGLY, WE BELIEVE THE CONTRACTING OFFICER COULD PROPERLY RELY ON THIS LISTING TO DETERMINE THAT MODEL 2RG-25 DID CONFORM TO THE ESTABLISHED SPECIFICATIONS FOR FSN 5130-293-2797, AND IN THE ABSENCE OF EVIDENCE THAT THE INDICATED MODEL DOES NOT CONFORM TO THOSE SPECIFICATIONS, WE MUST UPHOLD HIS DETERMINATION.

HOWEVER, THE SOLICITATION MODIFIED THE ESTABLISHED SPECIFICATIONS FOR FSN 5130-293-2797 BY INCLUDING 7 EXCEPTIONS TO FEDERAL SPECIFICATION 00 G- 669E. WE REQUESTED GSA TO SPECIFICALLY INDICATE HOW IT WAS DETERMINED THAT GARDNER-DENVER'S MODEL 2RG-25 CONFORMED TO THESE EXCEPTIONS. REPLY DATED FEBRUARY 22, 1972, A COPY OF WHICH WAS FURNISHED TO YOU, GSA STATED THE FOLLOWING:

" *** . THE DETERMINATION THAT THE GARDNER MODEL 2RG25 WAS RESPONSIVE TO THE SOLICITATION EXCEPTIONS TO FEDERAL SPECIFICATION 00-G 669E, DATED APRIL 10, 1967, AND INTERIM AMENDMENT 2 DATED DECEMBER 15, 1969, WAS MADE AS FOLLOWS: THE FIRST EXCEPTION TO THE SPECIFICATION INVOLVES THE SIZE OF THE GRINDING WHEEL TO BE FITTED TO THE TOOL. THE EXCEPTION REQUIRES A 1 1/2 INCH DIAMETER WHEEL CAPACITY. THE GARDNER CATALOG IN OUR POSSESSION (ENCLOSURE 1) STATES THAT GARDNER DIE GRINDERS (INCLUDING MODEL 2RG25) ARE DESIGNED TO UTILIZE GRINDERS TO 1 1/2 INCHES IN DIAMETER. THE SECOND EXCEPTION INVOLVES THE SPEED WITH WHICH THE GRINDER OPERATES AND SPECIFIES 22,500 MINIMUM TO 25,000 MAXIMUM AT NO LOAD. (THESE FIGURES REFER TO RPM'S.) THE GARDNER CATALOG SHOWS THE 2RG25 AS HAVING A FREE SPEED OF 25,000 RPM'S. (FREE SPEED IS EQUIVALENT TO NO LOAD IN THIS CASE.) THE THIRD EXCEPTION SPECIFIES THAT THE TOOL HAVE A 1/4 INCH CAPACITY COLLET AND COLLET WRENCH. THE COLLET SIZE FOR MODEL 2RG25 SHOWN IN THE CATALOG IS 1/4 INCH AND THE CATALOG ALSO INDICATES THAT COLLET WRENCHES ACCOMPANY THE GRINDERS AS SPECIFIED. THE FOURTH EXCEPTION INVOLVES MAXIMUM AIR CONSUMPTION. IT IS TRUE, AS B & D STATES, THAT THE CATALOG DOES NOT INDICATE THE MAXIMUM AIR CAPACITY OF MODEL 2RG25. HOWEVER, OUR STANDARDIZATION AND QUALITY CONTROL STAFF IS OF THE OPINION THAT A TOOL WITH THE CHARACTERISTICS OF GARDNER MODEL 2RG25 WOULD HAVE TO MEET THESE REQUIREMENTS. THIS IS BECAUSE THE PARTICULAR AIR CONSUMPTION LEVEL SPECIFIED IS NOT PARTICULARLY RESTRICTIVE CONSIDERING THE SIZE OF THE TOOLS INVOLVED AND WAS INCLUDED MAINLY TO INSURE PROPER QUALITY CONTROL FOR THE ITEMS. THEREFORE, THIS AGENCY IS CONFIDENT THAT THE 2RG25 WOULD BE A COMPLETELY ACCEPTABLE ITEM AS CONCERNS THIS PARTICULAR REQUIREMENT. THE FIFTH EXCEPTION STATES A REQUIREMENT OF A 7-INCH LENGTH. THIS SIZE WAS INTENDED TO BE A NOMINAL MAXIMUM FOR THE PURPOSE OF INSURING THAT THESE TOOLS COULD BE USED EASILY WHILE BEING HELD IN ONE HAND. THE WORD MAXIMUM WAS NOT USED IN THE PURCHASE DESCRIPTION, BUT ANY OTHER INTERPRETATION OF THE INTENT OF THIS EXCEPTION WOULD RENDER THIS REQUIREMENT ABSURD SINCE NO MANUFACTURER TO OUR KNOWLEDGE MAKES A TOOL EXACTLY 7 INCHES IN LENGTH. THE 2RG25 IS APPROXIMATELY 5 3/4 INCHES IN LENGTH AND IS CONSIDERED WELL WITHIN THE INTENDED REQUIREMENT. THE LAST EXCEPTION CONCERNS THE MAXIMUM WEIGHT FOR THE TOOL. THE GARDNER CATALOG GIVES A WEIGHT OF 1 POUND 1 OUNCE FOR MODEL 2RG25, WITHIN THE 1.5 POUNDS SPECIFIED. ALSO, ALL CATALOG PICTURES OF 2RG25 SHOW THE TOOL WITHOUT A WHEEL GUARD, AS SPECIFIED. THUS, BASED UPON THE ABOVE, IT WAS DETERMINED THAT GARDNER MODEL 2RG25 MEETS ALL THE EXCEPTIONS TO THE SPECIFICATION SET FORTH IN THE SOLICITATION."

WE THINK THIS EXPLANATION IS AN ADEQUATE ONE AND SUFFICIENTLY ESTABLISHES CONFORMITY WITH THE SPECIFICATION SO AS TO RESOLVE THE AMBIGUITY CREATED BY INSERTION OF THE MODEL NUMBER. WHILE GSA COULD NOT ESTABLISH ABSOLUTE COMPLIANCE WITH THE AIR CAPACITY REQUIREMENT, THE TECHNICAL OPINION THAT THIS REQUIREMENT WOULD NECESSARILY BE MET BY MODEL 2RG-25 APPEARS TO BE REASONABLE AND HAS NOT BEEN CHALLENGED. UNDER THE CIRCUMSTANCES, WE DO NOT BELIEVE ANYTHING MORE IS REQUIRED.

WE CONCLUDE, THEREFORE, THAT THE CONTRACTING OFFICER WAS PROPERLY ABLE TO DETERMINE THAT GARDNER-DENVER WAS OFFERING A PRODUCT THAT COMPLIED WITH THE SOLICITATION AND THAT ITS BID WAS RESPONSIVE. IN VIEW OF THIS CONCLUSION, IT IS NOT NECESSARY FOR US TO CONSIDER YOUR ALLEGATIONS REGARDING OTHER BIDDERS.

FOR THE FOREGOING REASONS, YOUR PROTEST MUST BE DENIED.