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B-151923, OCT. 4, 1963

B-151923 Oct 04, 1963
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TO THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO LETTER DATED SEPTEMBER 9. ITEM NO. 1 IS AN ELECTRIC FORK LIFT TRUCK. 3 AND 5 ARE THE COMPONENTS OF ADJUSTABLE STEEL STORAGE RACKS. BIDS WERE SOLICITED FROM 18 SOURCES OF SUPPLY AND AWARD OF ITEMS 1. 3 AND 5 WAS MADE TO PAUL H. THAT THE DESCRIPTION OF ITEM NO. 1 WAS PATTERNED AFTER AN ITEM MANUFACTURED BY THE BIG JOE MANUFACTURING COMPANY AND CONTAINED FEATURES WHICH ARE FOUND ONLY IN THAT COMPANY'S PRODUCT AND WHICH CANNOT BE JUSTIFIED AS ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. 3 AND 5 WAS BASED ON EQUIPMENT MANUFACTURED BY THE STURDIBUILT DIVISION OF UNION ASBESTOS AND RUBBER COMPANY. THAT IT IS SUBJECT TO THE SAME OBJECTION AS ITEM NO. 1 AND THAT THE INVITATION FOR BIDS WAS NOT IDENTIFIED AS A BRAND NAME OR EQUAL PURCHASE.

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B-151923, OCT. 4, 1963

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 9, 1963, WITH ATTACHMENT, FROM THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DCS/S AND L, REPORTING ON THE PROTEST OF C AND M INDUSTRIAL ASSOCIATES, INC., IN CONNECTION WITH ITEMS 1, 2, 3 AND 5 OF INVITATION FOR BIDS NO. 08-617-63-34, ISSUED AT MCCOY AIR FORCE BASE.

ITEM NO. 1 IS AN ELECTRIC FORK LIFT TRUCK, DESCRIBED AS A WALKIE TYPE STACKER, FOR USE IN HANDLING AND STACKING FOOD, AND ITEMS 2, 3 AND 5 ARE THE COMPONENTS OF ADJUSTABLE STEEL STORAGE RACKS. BIDS WERE SOLICITED FROM 18 SOURCES OF SUPPLY AND AWARD OF ITEMS 1, 2, 3 AND 5 WAS MADE TO PAUL H. WERRES COMPANY, INC., THE SOLE BIDDER ON THESE ITEMS.

THE PROCUREMENT OF THE ABOVE ITEMS HAD BEEN APPROVED ON CONDITION THAT FREE AND OPEN COMPETITION BE OBTAINED FROM A NUMBER OF MANUFACTURERS OR SUPPLIERS OF THIS TYPE EQUIPMENT. IT APPEARS, HOWEVER, AS ALLEGED BY C AND M INDUSTRIAL ASSOCIATES, INC., THAT THE DESCRIPTION OF ITEM NO. 1 WAS PATTERNED AFTER AN ITEM MANUFACTURED BY THE BIG JOE MANUFACTURING COMPANY AND CONTAINED FEATURES WHICH ARE FOUND ONLY IN THAT COMPANY'S PRODUCT AND WHICH CANNOT BE JUSTIFIED AS ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. APPEARS, FURTHER, THAT THE DESCRIPTION OF ITEMS 2, 3 AND 5 WAS BASED ON EQUIPMENT MANUFACTURED BY THE STURDIBUILT DIVISION OF UNION ASBESTOS AND RUBBER COMPANY, THAT IT IS SUBJECT TO THE SAME OBJECTION AS ITEM NO. 1 AND THAT THE INVITATION FOR BIDS WAS NOT IDENTIFIED AS A BRAND NAME OR EQUAL PURCHASE.

FROM THE FOREGOING IT SEEMS CLEAR AS INDICATED BY YOUR DEPARTMENT THAT THE SPECIFICATIONS UPON WHICH THIS INVITATION FOR BIDS WAS BASED WERE, IN FACT, RESTRICTIVE AND DID NOT PERMIT THE FULL AND FREE COMPETITION REQUIRED BY SECTION 2305 (A) OF TITLE 10, UNITED STATES CODE. ACCORDINGLY, CONTRACT NO. AF 08/617/-2169 WITH PAUL H. WERRES COMPANY, INC., SHOULD BE CANCELED AND THE ITEMS REPROCURED UNDER APPROPRIATE SPECIFICATIONS, AS SUGGESTED IN THE ABOVE LETTER.

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