B-157705, MAR. 29, 1966

B-157705, MAR. 29, 1966

TO GRELLER SORTING SYSTEMS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 12, 1966, REQUESTING RECONSIDERATION OF OUR DECISION B-157705, DATED DECEMBER 16, 1965, WHICH DENIED YOUR PROTEST AGAINST AWARD OF CONTRACT TO ANY FIRM NOT UTILIZING THE GRELLER SORTING SYSTEM UNDER INVITATION FOR BIDS NO. DSA 003-66-4, ISSUED BY THE DEFENSE DEPOT OGDEN, OGDEN, UTAH. IN VIEW OF THE ALLEGATIONS IN YOUR MOST RECENT LETTER, WE REQUESTED A SUPPLEMENTAL REPORT FROM THE DEFENSE SUPPLY AGENCY.

WITHOUT REPEATING THE FACTS OF THE PROCUREMENT, IN YOUR LETTER OF JANUARY 12, 1966, YOU HAVE STRESSED THAT THE AEROJET SYSTEM INVOLVED IN THE SUBJECT PROCUREMENT WAS REJECTED ON A PRIOR PROCUREMENT AT OLMSTED AIR FORCE BASE BECAUSE IT DID NOT MEET THE REQUIREMENTS OF PARAGRAPH 1.1.26 OF THE SPECIFICATIONS UTILIZED FOR THE DEFENSE DEPOT OGDEN PROJECT. ALSO, YOU CONTEND THAT THE ORIENTATION REQUIREMENTS OF THE SPECIFICATIONS IN THE INSTANT PROCUREMENT WERE NOT FOLLOWED AND THE CONTRACTING OFFICER WAS IN ERROR IN HOLDING THAT BOTH AEROJET GENERAL AND SPEAKER SORTERS WILL FULLY COMPLY WITH THE SPECIFICATIONS IN THE INSTANT PROCUREMENT.

WITH REGARD TO THE CONTENTIONS IN YOUR LETTER OF JANUARY 12, 1966, THE DEFENSE SUPPLY AGENCY REPORTS, IN PERTINENT PART, AS FOLLOWS:

"4. THE WRITING OF THE TWO SETS OF SPECIFICATIONS CLEARLY DELINEATES DIFFERENT REQUIREMENTS IN WHOLLY DIFFERENT LANGUAGES AS FOLLOWS:

"A. THE DEFENSE DEPOT OGDEN SPECIFICATION PROVISION READS,"THE SYSTEM WILL OPERATE IN SUCH A MANNER THAT PACKAGES WILL REMAIN PROPERLY ORIENTED DURING THEIR MOVEMENT ON CONVEYORS AND WHEN TRANSFERRED FROM CONVEYOR TO CONVEYOR OR FROM SORTING EQUIPMENT TO CONVEYORS.'

"B. THE OLMSTED SPECIFICATION PROVISION STATES,"DIVERTING MECHANISM AND ACTION SHALL RESULT IN A TURNING MOTION OF THE CARGO AS IT LEAVES THE SORTING CONVEYOR TO THE 52 OUTLETS, THUS PERMITTING PROPER DIVERSION FOR ITEMS AS LONG AS 4 FEET. THE DIVERSION MOVEMENT FROM THE TRANSFER DEVICE TO THE DIVERSION SECTIONS, SUCH AS CHUTES, SPUR AND CURVE UNITS, ETC. SHALL BE SUCH THAT THE LENGTH AXIS OF THE CARGO IS TURNED TO BE PARALLEL WITH THE DESTINATION LINES. ALL CARGO MUST REMAIN IN THE ORIGINAL UPRIGHT POSITION DURING ITS TRAVEL FROM THE SORTING CONVEYOR TO THE DESTINATION ES.'

"5. IT CAN BE SEEN FROM THE ABOVE THAT THE DEFENSE DEPOT OGDEN PROVISION UTILIZES ONLY THE GENERAL WORDS," PROPERLY ORIENTED," IN ORDER TO DESCRIBE THE MOVEMENT OF PACKAGES. IN CONTRAST OLMSTED SPECIFICALLY REQUIRED A SYSTEM OF SORTERS THAT WOULD NOT ONLY TURN PACKAGES SO THAT THEY LINED UP ON CONVEYORS WITH THE LONG AXIS OF THE PACKAGES PARALLELING THE CONVEYOR FLOW BUT ALSO THAT ALL PACKAGES HAD TO REMAIN IN THEIR ORIGINAL UPRIGHT POSITIONS DURING TRAVEL.'

THE PROCURING AGENCY AT OGDEN GOES ON TO REPORT THAT IN COMMUNICATIONS WITH OLMSTED AIR FORCE BASE, IT HAD BEEN MADE CLEAR THAT OLMSTED INTENDED TO USE A "READ-OUT" SYSTEM TO IDENTIFY PACKAGE DESTINATION AND THIS NECESSITATED A SYSTEM WHEREIN ALL PACKAGES WOULD STAY RIGHT SIDE UP WITH THE SIDES IN THE SAME RELATION AS WHEN PLACED ON THE CONVEYOR SYSTEM ORIGINALLY. OLMSTED THUS HAD TO PRECLUDE TUMBLING OF PACKAGES OR THEIR TURNING IN ANY WAY FROM THE ORIGINAL UPRIGHT POSITION. BASED ON THE FOREGOING, IT DOES NOT FOLLOW, AS YOU CONTEND, THAT A REJECTION OF THE AEROJET SYSTEM AT OLMSTED IN A DIFFERENT PROCUREMENT, HAVING DIFFERENT OBJECTIVES, CAN OPERATE TO REQUIRE REJECTION OF THE AEROJET SYSTEM AT DEFENSE DEPOT OGDEN IN A PROCUREMENT HAVING LESS STRINGENT PERFORMANCE CHARACTERISTICS. WHILE THE PROCURING AGENCY AGREES WITH YOU THAT THE AEROJET SORTER DID NOT MEET THE SPECIFICALLY STATED CONDITIONS OF THE OLMSTED PROCUREMENT, IT CATEGORICALLY REAFFIRMS THAT EITHER AEROJET, SPEAKER, OR GRELLER SORTERS FULLY MEET THE NEEDS OF THE DEFENSE DEPOT OGDEN SYSTEM AND ARE RESPONSIVE TO THE SPECIFICATIONS AS WRITTEN.

AS TO YOUR SECOND CONTENTION, THAT NEITHER THE AEROJET NOR THE SPEAKER SYSTEM MEETS THE ORIENTATION REQUIREMENTS OF PARAGRAPH 1.1.26 OF THE DEFENSE DEPOT OGDEN SPECIFICATIONS, IT IS REPORTED AS FOLLOWS:

"9. THIS BRINGS US TO THE CONSIDERATION OF THE SECOND ISSUE LISTED ABOVE. THAT IS THE INTENT AND MEANING OF DEFENSE DEPOT OGDEN SPECIFICATION PARAGRAPH 1.1.26 AND THE RESPONSIVENESS OF THE VARIOUS SORTERS THERETO.

"10. IN THIS CONNECTION, THE USE OF THE SAID PARAGRAPH WAS ALWAYS INTENDED TO PRODUCE A SORTER SYSTEM, WHICH WHEN JOINED TO CONVEYORS, WOULD PROVIDE FOR THE SMOOTH AND UNINTERRUPTED FLOW OF PACKAGES THROUGH THE SYSTEM. IT HAD ONLY TO OPERATE WITHOUT THE BLOCKING AND JAMMING THAT WOULD BE CAUSED IF PACKAGES LONGER THAN THE WIDTH OF TAKE AWAY CONVEYORS WERE ALLOWED TO MOVE CROSS-WISE TO CONVEYOR FLOW. THUS THE ONLY NEED WAS TO HAVE A SYSTEM THAT WOULD PROPERLY ORIENT ALL PACKAGES THAT WERE OF SUCH LENGTH THAT THEY COULD CAUSE JAMMING AND BLOCKING.

"11. IT WAS NOT INTENDED, DESIRED OR NEEDED TO HAVE PACKAGES, HAVING A LENGTH LESS THAN THE WIDTH OF THE TAKE AWAY CONVEYORS, STAY IN AN UPRIGHT POSITION AS ORIGINALLY PLACED ON THE CONVEYOR NOR, IN FACT, TO HAVE THEM MOVE ALONG THE CONVEYORS IN ANY CERTAIN MANNER. DEFENSE DEPOT OGDEN DOES NOT NEED NOR DOES IT INTEND TO USE ANY AUTOMATIC OR OTHER "READ OUT" SYSTEM THAT WOULD REQUIRE THE SAME CONTROL OF MOVEMENT ALONG CONVEYORS AS WAS EVIDENCED AT OLMSTED.

"12. THUS AT DEFENSE DEPOT OGDEN, IF PACKAGES TUMBLE WHEN MOVING FROM SORTER TO CONVEYOR OR VICE VERSA NO HARM WILL BE DONE. NEITHER WILL HARM BE CAUSED IF A PACKAGE ROTATES WHEN SO MOVING OR IF, IN FACT, THE LONG AXIS OF THE PACKAGE IS CROSS-WISE TO THE FLOW SO LONG AS THE PACKAGE LENGTH IS NOT IN EXCESS OF THE WIDTH OF THE TAKE AWAY CONVEYOR.

"15. THE WORD "ORIENTED" WAS USED AND INTENDED TO BE USED IN THE SPECIFICATION IN ITS GENERAL SENSE ONLY. THE FACT THAT THE TRADE OR INDUSTRY CONCERNED MIGHT ATTACH SOMETHING MORE TO ITS MEANING IS NOT MATERIAL FOR IT APPEARS CLEAR THAT THE GOVERNMENT IS NOT UNDER ANY OBLIGATION TO USE TRADE "WORDS OF ART" IN ITS SPECIFICATION.

"16. IT SHOULD ALSO BE NOTED THAT ONE MEANING OF THE WORD "ORIENT" IN THE 1961 WEBSTER'S NEW COLLEGIATE DICTIONARY IS "TO ACQUAINT WITH THE EXISTING SITUATION.' WHEN THE WORD "ORIENTED" IN THE SPECIFICATION IN PARAGRAPH 1.1.26 IS READ IN CONJUNCTION WITH THE OTHER APPLICABLE SPECIFICATION PROVISIONS IT IS CLEAR THAT THE FORCED AND NARROW CONSTRUCTION PLACED UPON THE SPECIFICATION BY THE GRELLER PROTEST IS IN VIEW OF THE EXISTING SITUATION, UNWARRANTED AND UNSUPPORTABLE.

"17. NOTEWORTHY IN THIS RESPECT IS THE FACT THAT THERE IS NO REQUIREMENT IN THE SPECIFICATION FOR INSTALLATION OF A "READ OUT" SYSTEM OR THAT THE SYSTEM MUST BE COMPATIBLE WITH EITHER MECHANICAL OR NON-MECHANICAL "READ OUT" METHODS. NO REQUIREMENT WAS IMPOSED IN THE SPECIFICATION TO THE EFFECT THAT BOXES HAD TO REMAIN UPRIGHT AND IN ORIGINAL POSITIONS. ON THE OTHER HAND, PARAGRAPH 1.1.4 SPECIFIED THAT THE CONTRACTOR HAD TO FURNISH AND INSTALL, IN ACCORDANCE WITH HIS PROPOSAL, A CONVEYOR AND SORTER SYSTEM THAT WOULD OPERATE FREELY AND WITHOUT JAMMING AT ANY AND ALL POINTS. WHEN WHAT IS OMITTED AND WHAT IS REQUIRED ARE READ TOGETHER IT IS APPARENT THAT THE ,ORIENTATION" OF PACKAGES IN PARAGRAPH 1.1.26 WAS ONLY THAT LIMITED AMOUNT THAT WOULD INSURE THAT PACKAGES LONGER THAN CONVEYOR WIDTH WOULD BE TURNED BY SORTERS SO THAT THEY WOULD NOT AT ANY TIME IMPEDE PACKAGE FLOW. IT IS ALSO CLEAR THAT AS TO PACKAGES HAVING A SHORTER LENGTH THAN CONVEYOR WIDTH, IT WOULD BE IMMATERIAL WHETHER THEY TURNED FROM THEIR ORIGINAL POSITION OR ALWAYS MOVED WITH THEIR LONG AXIS PARALLEL TO CONVEYOR MOVEMENT.'

WE THINK THAT THE FOREGOING EXPLANATION OF THE TECHNICAL FEATURES OF THE SUBJECT PROCUREMENT IS ENTIRELY REASONABLE. MOREOVER, IT APPEARS THAT THE PRIME POINT OF CONTENTION IS THE DIFFERENCE OF OPINION BETWEEN YOU AND THE PROCURING AGENCY AS TO WHAT "PROPERLY ORIENTED" MEANS. WE THINK THAT THE FACILITY USING THE SORTING EQUIPMENT IS BEST ABLE TO JUDGE WHAT IT MEANT BY "PROPERLY ENTED.' THIS TIES IN DIRECTLY WITH THE ADMINISTRATIVE DETERMINATION TO UTILIZE THE TWO-STEP FORMAL ADVERTISING PROCEDURE FOR THE PROCUREMENT AT DEFENSE DEPOT OGDEN. WHILE THIS WAS NOT STRESSED TO YOU IN OUR DECISION OF DECEMBER 16, 1965, THE GENERAL PURPOSE, OF AND THE BASIC REASON FOR THE TWO-STEP PROCUREMENT IS STATED IN ASPR 2-501, AS FOLLOWS:

"2-501 GENERAL. TWO-STEP FORMAL ADVERTISING IS A METHOD OF PROCUREMENT DESIGNED TO EXPAND THE USE AND OBTAIN THE BENEFITS OF FORMAL ADVERTISING WHERE INADEQUATE SPECIFICATIONS PRECLUDE THE USE OF CONVENTIONAL FORMAL ADVERTISING. IT IS ESPECIALLY USEFUL IN PROCUREMENTS REQUIRING TECHNICAL PROPOSALS, ESPECIALLY THOSE FOR COMPLEX ITEMS. IT IS CONDUCTED IN TWO STEPS:

"/I) STEP ONE CONSISTS OF THE REQUEST FOR, AND SUBMISSION, EVALUATION, AND, IF NECESSARY, DISCUSSION OF A TECHNICAL PROPOSAL, WITHOUT PRICING, TO DETERMINE THE ACCEPTABILITY OF THE SUPPLIES OR SERVICES OFFERED. AS USED IN THIS CONTEXT, THE WORD "TECHNICAL" HAS A BROAD CONNOTATION ADN INCLUDES ENGINEERING APPROACH, SPECIAL MANUFACTURING PROCESSES, AND SPECIAL TESTING TECHNIQUES. WHEN IT IS NECESSARY IN ORDER TO CLARIFY BASIC TECHNICAL REQUIREMENTS, RELATED REQUIREMENTS SUCH AS MANAGEMENT APPROACH, MANUFACTURING PLAN, OR FACILITIES TO BE UTILIZED MAY BE CLARIFIED IN THIS STEP. CONFORMITY TO THE TECHNICAL REQUIREMENTS IS RESOLVED IN THIS STEP, BUT CAPACITY AND CREDIT, AS DEFINED IN 1-705.4, ARE NOT.

"/II) STEP TWO IS A FORMALLY ADVERTISED PROCUREMENT CONFINED TO THOSE WHO SUBMITTED ACCEPTABLE TECHNICAL PROPOSALS IN STEP ONE. BIDS SUBMITTED IN STEP TWO ARE EVALUATED AND THE AWARDS MADE IN ACCORDANCE WITH PARTS 3 AND 4 OF THIS SECTION. TWO-STEP FORMAL ADVERTISING REQUIRES THAT THE CONTRACTING OFFICER WORK CLOSELY WITH TECHNICAL PERSONNEL AND THAT HE UTILIZE THEIR SPECIALIZED KNOWLEDGE IN DETERMINING THE TECHNICAL REQUIREMENTS OF THE PROCUREMENT, IN DETERMINING THE CRITERIA TO BE USED IN EVALUATING TECHNICAL PROPOSALS, AND IN MAKING SUCH EVALUATION. OBJECTIVE OF THIS METHOD IS TO PERMIT THE DEVELOPMENT OF A SUFFICIENTLY DESCRIPTIVE AND NOT UNDULY RESTRICTIVE STATEMENT OF THE GOVERNMENT'S REQUIREMENT, INCLUDING AN ADEQUATE TECHNICAL DATA PACKAGE, SO THE SUBSEQUENT PROCUREMENTS MAY BE MADE BY CONVENTIONAL FORMAL ADVERTISING.'

WE VIEW THE ABOVE-QUOTED PROVISIONS AS PLACING IN THE TECHNICAL AND PROCUREMENT PERSONNEL CHARGED WITH THIS PROCUREMENT CONSIDERABLE LATITUDE IN THE EVALUATION OF PROPOSALS. NONE OF THE PROPOSALS SUBMITTED IN THE FIRST STEP OF THIS PROCUREMENT UTILIZED A SYSTEM WHICH DID NOT PROPERLY ORIENT PACKAGES AS DESIRED BY DEFENSE DEPOT OGDEN. MOREOVER, ALL THREE BIDDERS ON THIS PROCUREMENT OFFERED PROPOSALS WHICH WERE FOUND ACCEPTABLE AND EACH OFFERED EITHER AEROJET OR SPEAKER SORTERS. IN SUCH A SITUATION THIS OFFICE HAS STATED THAT THE DETERMINATION OF THE ACCEPTABILITY OF TECHNICAL PROPOSALS IS VESTED IN THE PROCUREMENT AGENCY WHICH IS BEST QUALIFIED TO EVALUATE THEM AND, IN ACCORDANCE WITH WELL-ESTABLISHED PRECEDENTS, WE WILL NOT QUESTION ITS DETERMINATION. SEE 40 COMP. GEN. 35, AND B-157827, DATED FEBRUARY 7, 1966. TO HOLD OTHERWISE WOULD BE TO DEFEAT THE CONCEPT OF "TWO STEP" PROCUREMENTS, AND RENDER MEANINGLESS THE PROCEDURES OR JUDGMENTS INVOLVED IN THE "FIRST STEP.'

IN VIEW OF THE FOREGOING, WE AFFIRM OUR DECISION OF DECEMBER 16, 1965, DENYING YOUR PROTEST.