B-151909, NOV. 18, 1963

B-151909: Nov 18, 1963

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WAS REJECTED ON THE BASIS THAT THE INFORMATION FURNISHED IN CONNECTION WITH THIS BID INDICATED THAT THE PRODUCT WHICH BECKER PROPOSED TO FURNISH DID NOT COMPLY WITH THE SPECIFICATIONS. IN THIS REGARD YOU ALLEGED THAT BECKER'S CATALOGUE WAS SUBMITTED WITH ITS BID FOR INFORMATION ONLY AND SHOULD NOT HAVE BEEN CONSIDERED IN EVALUATING THE BECKER BID. MARSHALL SPACE FLIGHT CENTER STATED THAT IF THE CATALOGUE SUBMITTED WITH THE BECKER BID WERE NOT CONSIDERED IN EVALUATING THE BECKER BID IT WOULD BE IMPOSSIBLE TO DETERMINE EXACTLY WHAT BECKER PROPOSED TO FURNISH. AS THIS PROCUREMENT WAS FOR A BRAND NAME "OR EQUAL" PRODUCT. BIDDERS WHO PROPOSED TO FURNISH PRODUCTS WHICH WERE EQUAL TO THE BRAND NAME SPECIFIED CLEARLY HAD THE RESPONSIBILITY OF ESTABLISHING THIS EQUALITY.

B-151909, NOV. 18, 1963

TO C AND M INDUSTRIAL ASSOCIATES, INCORPORATED:

WE REFER TO YOUR LETTER DATED OCTOBER 4, 1963, REQUESTING RECONSIDERATION OF OUR DECISION TO YOU, B-151909, OCTOBER 2, 1963, IN WHICH WE DENIED YOUR PROTEST ON BEHALF OF BECKER CRANE AND CONVEYOR COMPANY TO THE AWARD OF CONTRACT NO. NAS8-10150, DATED JUNE 14, 1963, TO S.L. MORROW ENGINEERING COMPANY, 113 NORTH 9TH STREET, BIRMINGHAM, ALABAMA.

THE BID OF BECKER CRANE AND CONVEYOR COMPANY, THE LOWEST BID RECEIVED PURSUANT TO INVITATION FOR BIDS NO. MSFC-63-344, ISSUED BY THE GEORGE C. MARSHALL SPACE FLIGHT CENTER, WAS REJECTED ON THE BASIS THAT THE INFORMATION FURNISHED IN CONNECTION WITH THIS BID INDICATED THAT THE PRODUCT WHICH BECKER PROPOSED TO FURNISH DID NOT COMPLY WITH THE SPECIFICATIONS. IN THIS REGARD YOU ALLEGED THAT BECKER'S CATALOGUE WAS SUBMITTED WITH ITS BID FOR INFORMATION ONLY AND SHOULD NOT HAVE BEEN CONSIDERED IN EVALUATING THE BECKER BID. IN ANSWER TO THIS CONTENTION THE GEORGE C. MARSHALL SPACE FLIGHT CENTER STATED THAT IF THE CATALOGUE SUBMITTED WITH THE BECKER BID WERE NOT CONSIDERED IN EVALUATING THE BECKER BID IT WOULD BE IMPOSSIBLE TO DETERMINE EXACTLY WHAT BECKER PROPOSED TO FURNISH. WE POINTED OUT TO YOU THAT, AS THIS PROCUREMENT WAS FOR A BRAND NAME "OR EQUAL" PRODUCT, BIDDERS WHO PROPOSED TO FURNISH PRODUCTS WHICH WERE EQUAL TO THE BRAND NAME SPECIFIED CLEARLY HAD THE RESPONSIBILITY OF ESTABLISHING THIS EQUALITY. WE ALSO POINTED OUT THAT THE OVER-ALL OFFER IN THE BECKER BID TO COMPLY WITH THE SPECIFICATIONS WAS NOT CONSIDERED AS COMPLYING WITH THE SPECIFIC REQUIREMENTS OF THIS INVITATION FOR FURNISHING THE MATERIAL DATA NECESSARY FOR THE EVALUATION OF BIDS. WE FOUND THAT THE BECKER BID WAS PROPERLY REJECTED.

YOU PROPOSED TO FURNISH A CARRIER SYSTEM WITH A V-BELT FRICTION DRIVE RATHER THAN THE GEAR DRIVE SYSTEM SPECIFIED IN THE INVITATION FOR BIDS. THE GEORGE C. MARSHALL SPACE FLIGHT CENTER INFORMS US THAT A GEAR DRIVEN RATHER THAN A FRICTION DRIVEN CARRIER SYSTEM IS NECESSARY AT THIS INSTALLATION FOR THE FOLLOWING REASONS:

"A GEAR TYPE DRIVE FOR TRANSMITTING MOTION THROUGH THE CARRIER SYSTEMS ON OVERHEAD HOISTING EQUIPMENT IS NECESSARY IN THE MANUFACTURING OPERATIONS AT MARSHALL SPACE FLIGHT CENTER. A GEAR MESHED TRAIN OR GEAR-TO-RACK SYSTEM REDUCES SLIPPAGE, AND INCREASES EFFICIENCY IN MOTION CONTROL WITH A MINIMUM OF DOWN-TIME. A RUBBER WHEEL, FRICTION TYPE SYSTEM OF TRANSMITTING MOTION IS UNDESIRABLE FOR MSFC APPLICATION DUE TO SLIPPAGE THROUGH SERVICE FRICTION. THIS TYPE OF FRICTION DRIVE DOES NOT PROVIDE AN EVEN DRIVE, IS NOT POSITIVE UNDER HEAVY LOADS, AND REQUIRES FREQUENT ADJUSTMENT AND MAINTENANCE. MSFC HAS EXPERIENCED THESE DIFFICULTIES WITH FRICTION CARRIER SYSTEMS ON CRANES IN THE MSFC MANUFACTURING ENGINEERING DIVISION, AND CONSIDERS SUCH SYSTEM UNSATISFACTORY FOR OUR SPECIFIC MSFC REQUIREMENTS.'

THE QUOTED PROVISION CLEARLY INDICATES THAT THE GEORGE C. MARSHALL SPACE FLIGHT CENTER DETERMINED THAT ONLY A GEAR DRIVEN SYSTEM WOULD BEST MEET ITS NEEDS. THE RULE HERE IS WELL ESTABLISHED THAT DETERMINATIONS OF AN AGENCY'S NEEDS AND THE DRAFTING OF SPECIFICATIONS FOR ITEMS TO SATISFY THESE NEEDS ARE PRIMARILY THE RESPONSIBILITY OF THE PROCURING AGENCY AND WE WILL NOT QUESTION SUCH DETERMINATIONS UNLESS FOUND TO BE ARBITRARY OR CAPRICIOUS. SEE 38 COMP. GEN. 190 AND DECISIONS CITED THEREIN. IT IS ALSO WELL ESTABLISHED THAT AGENCIES OF THE GOVERNMENT ARE NOT REQUIRED TO MAKE PURCHASES WHICH DO NOT FULFILL THEIR REQUIREMENTS SIMPLY BECAUSE OFFERED AT A LOWER PRICE. SEE B 146516, JANUARY 10, 1962; B-149398, SEPTEMBER 5, 1962. WE ALSO POINTED OUT IN OUR DECISION OF OCTOBER 2, 1963, TO YOU, THAT FACTUAL DETERMINATIONS REGARDING THE QUESTION OF WHETHER OFFERINGS MEET THE GOVERNMENT'S SPECIFICATIONS ARE ALSO PRIMARILY THE FUNCTION OF THE PROCURING AGENCY. YOU HAVE NOT OFFERED EVIDENCE IN YOUR LETTER OF OCTOBER 4, 1963, OR IN YOUR ORIGINAL PROTEST, THAT WOULD ESTABLISH THAT THE ACTIONS OF THE PROCURING ACTIVITY IN DRAFTING THESE SPECIFICATIONS OR IN REJECTING THE BECKER BID FOR FAILING TO COMPLY WITH THESE SPECIFICATIONS WERE ARBITRARY OR CAPRICIOUS OR IN BAD FAITH. THESE CIRCUMSTANCES WE FIND NO BASIS TO QUESTION THE CONCLUSIONS IN OUR DECISION TO YOU, B-151909, OCTOBER 2, 1963.

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