B-176699, NOV 30, 1972

B-176699, NOV 30, 1972

BID PROTEST - SIMILARITY OF QUALIFICATIONS DECISION CONCERNING THE PROTEST OF ALLEN AND VICKERS, INC., UNDER AN IFB ISSUED BY THE DEFENSE SUPPLY AGENCY FOR, INTER ALIA, A QUANTITY OF LAUNDRY WASHER-EXTRACTORS. AN IFB REQUIRING WASHER TO BE SPECIFICALLY DESIGNED FOR "SLING LOADING" DOES NOT PREVENT THE AWARD OF A CONTRACT FOR ON "END LOADING" MACHINE. SINCE THE "END LOADING" MACHINE MET THE SPECIFICATIONS OF SLING LOADING, AS SET FORTH IN THE IFB, THE COMP. GEN. SEES NO LEGAL BASIS TO DISTURB THE AWARD. ACCORDINGLY, THE PROTEST IS DENIED.

TO ALLEN AND VICKERS, INC.:

WE REFER TO YOUR LETTER OF AUGUST 4, 1972, AND SUBSEQUENT CORRESPONDENCE, CONCERNING YOUR PROTEST UNDER INVITATION FOR BIDS (IFB) NO. DSA400-72-B- 8870, ISSUED BY THE DEFENSE SUPPLY AGENCY (DSA) ON JUNE 9, 1972, FOR, AMONG OTHER THINGS, A REQUIREMENT OF LAUNDRY WASHER EXTRACTORS, FSN3510- 927-7457, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-W-43001D, AS AMENDED.

ITEM 0004 OF THE IFB REQUIRED THESE WASHERS TO BE SPECIFICALLY DESIGNED FOR SLING LOADING AND, IN CONNECTION WITH SUCH REQUIREMENT, CITED PARAGRAPH 3.5.4 OF THE ABOVE MILITARY SPECIFICATION. THE CITED PARAGRAPH IS AS FOLLOWS:

"3.5.4 TYPE II - MULTIPLE COMPARTMENTS, END OR SIDE LOADING. WHEN SPECIFIED (SEE 6.2), THE TYPE II WASHER-EXTRACTOR, IN SIZES 400 THROUGH 800, SHALL BE SPECIFICALLY DESIGNED FOR SLING LOADING. THE CYLINDER IN THE LOADING POSITION SHALL BE LOADED BY GRAVITY TO A MINIMUM OF 80 PERCENT OF ITS RATED CAPACITY WITH A MANUAL REDIRECT OF THE OVERHEAD SLING NOT TO EXCEED 32 DEGREES FROM VERTICAL. THE SLING, FOR LOADING PURPOSES, SHALL HAVE A MINIMUM DIAMETER OF 19 INCHES, SHALL BE LOADED WITH NON-RESIN COTTON MUSLIN SHEETS AND SHALL BE LOCATED DIRECTLY OVER THE CYLINDER DOOR OR IN A LOCATION IDEALLY SITUATED WHEN THE CYLINDER IS IN THE LOADING POSITION. IN ADDITION, THE CYLINDER SHALL HAVE SHELVES OR PARTITIONS DIVIDING THE CYLINDER INTO COMPARTMENTS SO THAT WHEN POSITIONED FOR UNLOADING THE SHELF OR PARTITION SHALL BE LEVEL WITH OR BELOW THE TRANSVERSE AXIS. THESE REQUIREMENTS SHALL BE DETERMINED WHEN THE WASHER- EXTRACTOR IS TESTED AS SPECIFIED IN 4.4.2."

WHEN BIDS WERE OPENED ON JULY 10, 1972, IT WAS NOTED THAT PELLERIN MILNOR CORPORATION (PM) HAD SUBMITTED THE LOWEST BID FOR THE REQUIREMENT. VIEW THEREOF, AND INASMUCH AS PM HAS CONFIRMED ITS BID, DSA HAS ANNOUNCED ITS INTENTION TO MAKE AN AWARD TO THAT CONCERN.

YOU MAINTAIN THAT PM'S WASHER-EXTRACTOR IS NOT SPECIFICALLY DESIGNED FOR SLING LOADING AS REQUIRED BY THE ABOVE SPECIFICATION, SINCE IT IS AN "END LOADING" MACHINE AND, THEREFORE, THE CONCERN SHOULD NOT BE CONSIDERED ELIGIBLE FOR THE AWARD.

THE DEPARTMENT STATES THAT THE REFERENCE TO "END LOADING" IN THE TITLE OF PARAGRAPH 3.5.4 OF THE SPECIFICATION IN QUESTION SHOWS THAT END LOADING MACHINES OF THE TYPE MANUFACTURED BY PM ARE CAPABLE OF MEETING THE SLING LOADING REQUIREMENTS OF THE SPECIFICATION; THAT THE PM UNIT HAS BEEN PREVIOUSLY TESTED BY THE USING AGENCY, THE DEPARTMENT OF THE ARMY; AND THAT SUCH TESTS DEMONSTRATED THE CONCERN'S UNIT MET ALL REQUIREMENTS OF PARAGRAPH 3.5.4.

WE BELIEVE THE PHRASE "SPECIFICALLY DESIGNED FOR SLING LOADING" AS USED IN THE IFB, AND CONTAINED IN THE FIRST SENTENCE OF PARAGRAPH 3.5.4, MUST BE READ IN CONJUNCTION WITH THE STANDARDS WHICH WERE SUBSEQUENTLY SHOWN IN THEREFORE BE CONSIDERED "SPECIFICALLY DESIGNED FOR SLING LOADING" FOR PURPOSES OF THE PROCUREMENT IF THEY MET THOSE REQUIREMENTS. ALTHOUGH YOU CONTEND (APPARENTLY AS A MATTER OF DESIGN ENGINEERING) THAT ONLY SIDE LOADING MACHINES ARE "SPECIFICALLY DESIGNED FOR SLING LOADING," IT IS OUR VIEW THAT THE PHRASE, AS USED IN THE IFB, DOES NOT REQUIRE SUCH AN INTERPRETATION AND THAT PROSPECTIVE BIDDERS WERE ADEQUATELY INFORMED THAT END LOADING MACHINES WOULD BE ACCEPTABLE WHEN DESIGNED SO AS TO MEET THE REQUIREMENTS OF PARAGRAPH 3.5.4. ITEM 0004 OF THE IFB CLEARLY SHOWED THAT ITS USE OF THE PHRASE "SPECIFICALLY DESIGNED FOR SLING LOADING" WAS IN REFERENCE TO PARAGRAPH 3.5.4, AND WE THEREFORE CANNOT CONCLUDE THAT THE DEPARTMENT HAS UNREASONABLY DETERMINED THAT BOTH END AND SIDE LOADING WASHERS CAN BE CONSIDERED AS HAVING BEEN SPECIFICALLY DESIGNED FOR SLING LOADING, WITHIN THE CONTEMPLATION OF THE IFB, WHEN THEY CAN ACCOMMODATE SUCH LOADING OPERATIONS AS SET OUT IN THAT SPECIFICATION.

IN THIS REGARD, IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT THE RESPONSIVENESS OF A BID, THAT IS, THE BIDDER'S INTENT TO COMPLY WITH ALL IFB SPECIFICATIONS, MUST BE DETERMINED FROM THE FACE OF THE BID ITSELF. 45 COMP. GEN. 221 (1965). SINCE PM DID NOT TAKE EXCEPTION TO ANY OF THE REQUIREMENTS DEFINING THE PHRASE "SPECIFICALLY DESIGNED FOR SLING LOADING," IN PARAGRAPH 3.5.4, ITS BID MUST BE CONSIDERED RESPONSIVE TO THE SLING LOADING REQUIREMENT OF THE IFB.

YOUR LETTER OF AUGUST 4, 1972, ALSO STATED THAT PM WOULD SUBMIT THE ONLY END LOADING BID UNDER IFB NO. DSA400-73-B-0593, ISSUED BY DSA AS A TOTAL SMALL BUSINESS SET-ASIDE ON JULY 21, 1972, FOR AN ADDITIONAL QUANTITY OF THESE WASHERS AND THAT COMPETITION WOULD THEREFORE BE IMPROPERLY RESTRICTED. THE CONTRACTING OFFICER REPORTS THAT HE BELIEVED THERE WAS A REASONABLE EXPECTATION THAT BIDS FOR THE REQUIREMENT WOULD BE OBTAINED FROM FIVE RESPONSIBLE SMALL BUSINESS CONCERNS SO AS TO INSURE A REASONABLE EXPECTATION OF COMPETITION AND JUSTIFY ISSUANCE OF THE SET-ASIDE. IN THIS REGARD, HE FURTHER STATES THAT OF THE FIVE SMALL BUSINESS CONCERNS, THREE MANUFACTURE END LOADING WASHERS ONLY, ONE MANUFACTURES SIDE LOADING WASHERS ONLY, AND ONE MANUFACTURES BOTH SIDE AND END LOADING WASHERS.

THE RECORD SHOWS THAT THREE BIDS WERE RECEIVED ON SEPTEMBER 6, 1972, UNDER IFB -0593. WHILE PM'S LOW BID ON AN F.O.B. DESTINATION BASIS WAS MORE THAN $4,000 LOWER THAN YOUR BID, IT WAS LESS THAN $300 LOWER THAN THE BID OF G. A. BRAUN, INC., WHICH OFFERED A SIDE LOADING MACHINE. SINCE THE CONTRACTING OFFICER CONSIDERS THAT COMPETITION FOR THE REQUIREMENT WAS ADEQUATE AND THAT PM'S BID IS REASONABLE, HE PROPOSES TO MAKE AN AWARD TO THAT CONCERN.

BASED ON OUR REVIEW OF THE RECORD WE CANNOT CONCLUDE THAT COMPETITION FOR THE AWARD UNDER IFB -0593 WAS IMPROPERLY RESTRICTED, AS YOU CONTEND, AND WE MUST CONCLUDE THAT NO BASIS HAS BEEN PRESENTED FOR THIS OFFICE TO OBJECT TO DSA'S ANNOUNCED DECISION TO MAKE AWARDS TO PM UNDER IFBS -0593 AND -8870.

FOR THE REASONS SET FORTH ABOVE YOUR PROTEST MUST BE DENIED.