B-140236, JAN. 28, 1960

B-140236, JAN. 28, 1960

TO MR. J. M. THOMSON, JR., UNDERWOOD CORPORATION:

IN ACCORDANCE WITH THE LAST PARAGRAPH OF OUR LETTER OF OCTOBER 6, 1959, TO YOU, WE ARE FURNISHING THE RESULTS OF OUR INVESTIGATION ON THE PROCUREMENT OF AUTOMATIC TAPE PRODUCING TYPEWRITERS BY THE VETERANS ADMINISTRATION FROM FRIDEN, INC., UNDER A CONTRACT AWARDED TO THAT FIRM IN ACCORDANCE WITH ITS BID SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. MS- 21-60 DATED JUNE 5, 1959.

IT HAS BEEN ALLEGED THAT THE VA CONSULTED WITH FRIDEN SEVERAL MONTHS BEFORE THE PURCHASE REQUIREMENTS WERE MADE KNOWN TO THE INDUSTRY; THAT THE PURCHASE DESCRIPTION WAS WRITTEN AROUND THE FRIDEN PRODUCT; AND THAT THE SHORT INTERVAL BETWEEN THE TIME WHEN THE INVITATION WAS ISSUED AND THE DATE WHEN SAMPLES HAD TO BE SUBMITTED WORKED TO THE DISADVANTAGE OF ALL BIDDERS EXCEPT FRIDEN. OUR FINDINGS DO NOT SUPPORT THOSE ALLEGATIONS. RATHER, IT IS OUR OPINION, BASED UPON OUR INVESTIGATIVE REVIEW, THAT THE PROCUREMENT WAS UNDERTAKEN IN ACCORDANCE WITH THE STATUTORY ADVERTISING REQUIREMENTS PRESCRIBED BY 41 U.S.C. 253.

IT IS TRUE THAT FRIDEN WAS CONSULTED IN CONNECTION WITH THIS PROCUREMENT SOME TIME PRIOR TO THE ISSUANCE OF THE FORMAL INVITATION. BUT IT IS LIKEWISE TRUE THAT OTHER TYPEWRITER MACHINE MANUFACTURERS WERE ALSO CONTACTED BY VA PERSONNEL. WE HAVE ASCERTAINED THAT THESE INDUSTRY CONTACTS WERE FOR THE PURPOSE OF ELICITING TECHNICAL COMMENT AND ADVICE ON THE TERMS OF THE PROPOSED PURCHASE DESCRIPTION WHICH WAS BEING DESIGNED TO MEET PROGRAMED SYSTEMS REQUIREMENTS FOR AUTOMATIC DATA PROCESSING IN CONNECTION WITH THE DISABILITY AND DEATH BENEFIT PROGRAMS OF THE VA. IN FACT, ON APRIL 22, 1959, YOUR COMPANY ADVISED THE ADMINISTRATION THAT "UNDERWOOD DATA-FLO MEETS THE MACHINE REQUIREMENTS AS OUTLINED IN THAT DESCRIPTION (VA PURCHASE DESCRIPTION).' IT WAS ALSO ASCERTAINED THAT THE FRIDEN MACHINE WAS OPERATIONAL PRIOR TO ISSUANCE OF THE INVITATION AND THAT THE FRIDEN FIRM ASSISTED VA IN PROGRAMING THE AUTOMATIC DATA PROCESSING OPERATION. HOWEVER, VA ALSO CONSULTED WITH REMINGTON, UNDERWOOD, AND ROYAL MCBEE TO OBTAIN THEIR VIEWS AND COMMENTS ON THE PROPOSED PROCUREMENT.

CONCERNING THE PURCHASE DESCRIPTION OF THE INVITATION, WE HAVE FOUND THAT, WHILE CERTAIN FEATURES OF THE STANDARD FRIDEN "FLEXOWRITER" MACHINE WERE EMBODIED IN THE SPECIFICATIONS, THE MACHINE CALLED FOR BY THE PURCHASE DESCRIPTION WAS NOT A STANDARD PRODUCTION MODEL. THE MACHINE DESCRIBED IN THE INVITATION HAD TO BE SPECIALLY DESIGNED AND MANUFACTURED TO MEET THE NEEDS OF THE PROCUREMENT AGENCY, AND THE SPECIAL CHARACTERISTICS OF THE REQUIRED MACHINE COULD NOT BE MET BY COMMERCIALLY AVAILABLE MODIFICATION OR ADAPTATIONS. THE STANDARD, KNOWN CHARACTERISTICS OF THE FRIDEN "FLEXOWRITER" ARE, TO SOME DEGREE, COMMON TO OTHER SIMILAR COMMERCIAL MODELS MANUFACTURED BY OTHERS IN THE INDUSTRY.

IT MAY BE THAT THE REQUIREMENT IN THE INVITATION THAT THE SUCCESSFUL BIDDER SHALL, NOT MORE THAN 20 DAYS AFTER BID OPENING, SUBMIT A COMPLETE SAMPLE OF THE MACHINE IT PROPOSED TO FURNISH WOULD NOT AFFORD SUFFICIENT TIME UNDER ORDINARY CIRCUMSTANCES BUT IT APPEARS HERE THAT FIRMS EVIDENCING INTEREST IN THE PROCUREMENT HAD SUFFICIENT ADVANCE NOTICE OF THE NEEDS OF THE VA BEFORE THE INVITATION WAS ISSUED TO PLACE THEMSELVES IN A POSITION WHERE PRODUCTION OF A SAMPLE COULD HAVE BEEN FEASIBLE WITHIN THE STIPULATED TIME. IN FACT, UNDERWOOD DID SUBMIT A SAMPLE MACHINE IN COMPLIANCE WITH THE INVITATION, HOWEVER, AS POINTED OUT IN OUR DECISION OF OCTOBER 6, 1959, TO YOU, THE UNDERWOOD BID WAS PROPERLY REJECTED BECAUSE OF ITS QUALIFICATIONS OF LIABILITY. ALSO, CONSIDERATION MUST BE GIVEN TO THE FACT THAT THIS PROCUREMENT HAD TO BE TIME-PHASED TO MEET AUTOMATIC DATA PROCESSING TARGET DATES AFFECTING MANY VA INSTALLATIONS. BUDGET AND FISCAL COMMITMENTS WERE INVOLVED IN CONNECTION WITH THE UTILIZATION OF THIS NEW TYPE OF EQUIPMENT IN THE PROGRAMED OPERATION.

WE HAVE CONSIDERED THE ADDITIONAL ALLEGATIONS RAISED IN YOUR LETTER OF DECEMBER 18, 1959, BUT, UPON FURTHER REVIEW, WE ARE NOT PERSUADED THAT SUCH ALLEGATIONS AFFECT THE CONCLUSIONS REACHED HEREIN.

OUR REVIEW DISCLOSED THAT THE PURCHASE DESCRIPTION APPEARS TO HAVE BEEN WRITTEN WITH A VIEW TOWARD PERMITTING A REASONABLE AMOUNT OF COMPETITION AMONG CONCERNS EQUIPPED TO SUPPLY THE NEEDS OF THE GOVERNMENT. WE HAVE FOUND NOTHING WHICH WOULD ESTABLISH THAT THE INVITATION CONTEMPLATED A PREFERRED SOURCE OF SUPPLY OR THAT OTHER CONCERNS WERE DELIBERATELY EXCLUDED BY THE PURCHASE DESCRIPTION. THE RECORD INDICATES THAT THE UNDERWOOD MACHINE WOULD HAVE BEEN CONSIDERED ALONG WITH THE FRIDEN "FLEXOWRITER" AS MEETING THE PURCHASE DESCRIPTION HAD YOUR COMPANY NOT QUALIFIED ITS BID TO MAKE IT NONRESPONSIVE TO THE INVITATION.