B-125148, NOV. 23, 1955

B-125148, NOV. 23, 1955

TO THE WINTER-WEISS COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5, 1955, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO THE ACME WELL SUPPLY COMPANY UNDER INVITATION FOR BID NO. 4N-50159-F-R, DATED MARCH 11, 1955, FOR THE FURNISHING OF A REVERSE CIRCULATION ROTARY DRILL, COVERED BY ITEM 1 OF THE INVITATION.

WITH YOUR LETTER THERE WAS TRANSMITTED A COPY OF YOUR LETTER OF JULY 19, 1955, TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, PROTESTING THE AWARD IN THIS CASE GENERALLY ON THE GROUNDS (1) THAT THE SUCCESSFUL BIDDER'S EQUIPMENT DID NOT MEET THE SPECIFICATIONS, AND (2) THAT THE SUCCESSFUL BIDDER'S EQUIPMENT DID NOT MEET THE REQUIREMENTS OF THE INVITATION FOR BIDS THAT ,ALL EQUIPMENT TO BE MANUFACTURER'S NEW STANDARD PRODUCTION CURRENT MODEL, EQUIPPED WITH ALL STANDARD EQUIPMENT NORMALLY FURNISHED TO THE GENERAL PUBLIC.'

UNDER DATE OF AUGUST 18, 1955, THE MATTER OF YOUR PROTEST WAS BROUGHT TO THE ATTENTION OF THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, WITH A REQUEST FOR A FULL REPORT OF THE FACTS. THERE HAS NOW BEEN RECEIVED FROM THE ADMINISTRATOR A LETTER DATED OCTOBER 21, 1955, FROM WHICH IT APPEARS THAT A HEARING WAS HELD ON YOUR PROTEST (APPEAL) BEFORE THE BOARD OF REVIEW, GENERAL SERVICES ADMINISTRATION, ON AUGUST 4, 1955, AND THAT AFTER GIVING CONSIDERATION TO THE FACTS OF RECORD AND THOSE DEVELOPED AT THE HEARING, THE BOARD RECOMMENDED THAT YOUR APPEAL BE DENIED, IT BEING THE CONCLUSION OF THE BOARD THAT THE BID OF THE ACME WELL SUPPLY COMPANY DID MEET THE REQUIREMENTS OF THE INVITATION FOR BIDS THE BOARD'S ACTION WAS APPROVED BY THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, ON OCTOBER 21, 1955, AND ON THE SAME DAY TWO COPIES OF THE BOARD'S REPORT WERE TRANSMITTED TO YOU.

THE RECORD DISCLOSES THAT BY TELEGRAM DATED APRIL 6, 1955--- FOLLOWING THE BID OPENING--- YOU ALLEGED THAT THE BID OF ACME DID NOT MEET THE SPECIFICATIONS IN THAT THERE WAS NO SHOWING THAT THE BIDDER HAD PREVIOUSLY FURNISHED A DRILL OF THE KIND BID UPON AND THAT, IN FACT, THE COMPANY HAD NEVER PRODUCED SUCH A DRILL. THEREAFTER, THE FEDERAL SUPPLY SERVICE CAUSED AN INSPECTION TO BE MADE OF ACME'S PLANT, PARTICULAR REFERENCE BEING MADE TO THE REQUIREMENT OF THE INVITATION THAT THE UNIT OFFERED BE THE MANUFACTURER'S NEW STANDARD PRODUCTION EQUIPMENT MODEL, EQUIPPED WITH ALL STANDARD EQUIPMENT FURNISHED THE GENERAL PUBLIC. INCLUDED IN THE BOARD'S FINDINGS (PAGE 12) IS A MEMORANDUM BY THE CHIEF OF THE INSPECTION DIVISION, FEDERAL SUPPLY SERVICE, STATING THAT THE BIDDER APPEARED TO BE SUITABLY EQUIPPED AND COMPETENT TO PRODUCE THE TYPE OF EQUIPMENT UNDER CONSIDERATION. FURTHER, THERE WAS CITED A NUMBER OF USERS OF EQUIPMENT SIMILAR AND EQUAL TO THE UNIT UNDER BID CONSIDERATION.

IN AN EFFORT TO DEVELOP FURTHER INFORMATION CONCERNING THE AVAILABILITY OF A "NEW STANDARD EQUIPMENT MODEL," THE CONTRACTING OFFICER ON JUNE 9, 1955, REQUESTED THE REGIONAL OFFICE OF THE GENERAL SERVICES ADMINISTRATION AT DALLAS, TEXAS, TO FURNISH CERTAIN ADDITIONAL INFORMATION, AND ON JUNE 10, 1955, THE INSPECTOR OF THE REGIONAL OFFICE SUBMITTED TO THE CONTRACTING OFFICER A MEMORANDUM CONTAINING THE FOLLOWING PARAGRAPH:

"THIS MANUFACTURER HAS ONE BASIC DESIGN WITH A MORE RECENTLY DEVELOPED NEW MODEL. HOWEVER, STANDARD PARTS AND SUB-ASSEMBLIES WILL BE REARRANGED TO CONFORM TO A CUSTOMER'S WISHES. AS EXAMPLES DRILLS, BASICALLY THE VERY SAME IN DESIGN, CAPACITY AND GENERAL APPEARANCE MAY BE MOUNTED ON SEMI- TRAILERS, ON TRUCKS OR ON FULL TRAILERS; THEY MAY HAVE CONTROLS LOCATED DIFFERENTLY; THEY MAY HAVE ONE OR SEVERAL POWER SOURCES; OR THEY MAY BE EQUIPPED WITH ROCK TRAPS BUILT INTO THE REVERSE CIRCULATING SYSTEMS.'

BY TELEGRAM DATED JUNE 10, 1955, THE FEDERAL SUPPLY SERVICE REQUESTED YOU TO INDICATE WHEREIN THE EQUIPMENT OFFERED BY ACME FAILED TO COMPLY WITH THE SPECIFICATIONS INVOLVED IN INVITATION NO. 4N-50159, AND BY LETTER OF THE SAME DAY YOUR EXPORT SALES MANAGER SET FORTH WHAT HE ALLEGED WERE DIFFERENCES BETWEEN THE EQUIPMENT OFFERED AND THAT CALLED FOR BY THE SPECIFICATIONS. THIS WAS FOLLOWED BY CORRESPONDENCE BETWEEN THE GENERAL SERVICES ADMINISTRATION, THE ACME WELL SUPPLY COMPANY AND THE FRANKS MACHINE COMPANY, AND ON THE BASIS OF THE SHOWING MADE CONTRACT NO. GS-03P- 5972-FOA WAS AWARDED TO ACME UNDER DATE OF JUNE 17, 1955, IT BEING STATED THAT THE PRICES WERE "CONSIDERED REASONABLE AND ADVANTAGEOUS TO THE GOVERNMENT.'

UNDER DATE OF JUNE 20, 1955, YOUR EXPORT SALES MANAGER PROTESTED THE AWARD OF THE CONTRACT IN THIS CASE, ALLEGING THAT THE CONTRACTOR'S SUPPLIER HAD NEVER BUILT A DRILL MEETING THE CONTRACT SPECIFICATIONS, AND THAT SUCH A DRILL HAD NEVER BEEN OFFERED TO THE WATER WELL INDUSTRY. THE FOREGOING TELEGRAM THE CONTRACTING OFFICER MADE THE FOLLOWING REPLY:

"REURTEL 6-20-55 INVITATION 4N-50159-F ACME WELL SUPPLY CO. FURNISHED SUFFICIENT PROOF THAT MODEL OFFERED IS STANDARD EQUIPMENT SIMILAR AND EQUAL THAT NORMALLY FURNISHED GENERAL PUBLIC AND MEETING SPECIFICATIONS WITHOUT EXCEPTION. SPECIFICATIONS SHOWN IN WATER WELL JOURNAL SUBMITTED BY YOUR COMPANY NOT MODEL OFFERED BY ACME WELL IN ABOVE INVITATION. LETTER DATED 3-29-55 ATTACHED YOUR BID MADE SPECIFICATION SHEETS AND DESCRIPTIVE LITERATURE PART OF BID. YOUR SPECIFICATION SHOWS CAPACITY OF MAST 40,000 POUNDS, DESCRIPTIVE LITERATURE SHOWS 30,000 POUNDS, SUB ITEM 5 OF REQUIREMENT SHOWS 55,000 POUNDS. YOUR BID FAILED TO COMPLY WITH SPECIFICATIONS. AWARD MADE TO ACME WELL SUPPLY COMPANY WHO MEETS SPECIFICATION REQUIREMENTS.'

IT SEEMS CLEAR FROM WHAT HAS BEEN SET FORTH HEREINBEFORE THAT THE CONTRACTING OFFICER CONCLUDED THAT THE SUCCESSFUL BIDDER HAD MET THE REQUIREMENTS OF THE INVITATION BY FURNISHING PROOF THAT THE MODEL OFFERED WAS STANDARD EQUIPMENT SIMILAR AND EQUAL TO THAT NORMALLY FURNISHED THE GENERAL PUBLIC, AND THAT IT MET THE SPECIFICATIONS WITHOUT EXCEPTION. DEALING WITH THE CONTROVERSY IN THIS CASE, THE CONTRACTING OFFICER TOOK THE POSITION IN HIS LETTER OF JULY 11, 1955, TO YOUR EXPORT SALES MANAGER, THAT THE REQUIREMENTS OF THE INVITATION THAT THE EQUIPMENT OFFERED MUST BE THE MANUFACTURER'S NEW STANDARD PRODUCTION CURRENT MODEL, ETC., CANNOT BE STRICTLY INTERPRETED INASMUCH AS MOST EQUIPMENT PURCHASED HAS SOME PECULIARITIES THAT WOULD PRECLUDE A BIDDER FROM QUOTING UNDER SUCH AN INTERPRETATION. IT WAS STATED FURTHER THAT IN THE CASE OF WELL DRILLING EQUIPMENT, ALL MANUFACTURERS ARE PREDOMINANTLY ASSEMBLERS SINCE THEY DO NOT MANUFACTURE ALL OF THE COMPONENTS NORMALLY USED IN CONSTRUCTING A DRILLING RIG; THAT THE COMPONENTS AS SUPPLIED BY THE CONTRACTOR MUST BE STANDARD EQUIPMENT NORMALLY FURNISHED THE PUBLIC, AND MUST BE NEW AND OF A STANDARD PRODUCTION CURRENT MODEL. IT SEEMS PROPER TO REFER TO A FURTHER STATEMENT IN PARAGRAPH FIVE OF THE LETTER OF JULY 11, 1955, TO THE EFFECT THAT UNDER A STRICT INTERPRETATION OF THE SPECIFICATIONS THE BID OF YOUR COMPANY FAILED TO MEET THE REQUIREMENTS OF THE INVITATION IN THAT YOUR PRINTED LITERATURE SHOWED THAT YOUR COMPANY HAD NEVER PRODUCED A REVERSE CIRCULATION DRILL HAVING A MAST CAPACITY IN EXCESS OF 30,000 POUNDS--- SEE PARAGRAPH FIVE OF THE INVITATION CALLING FOR A MAST OF TUBULAR STEEL CONSTRUCTION OF 55,000 POUNDS CAPACITY AS A MINIMUM REQUIREMENT.

WITH RESPECT TO YOUR CONTENTION THAT, BY FAILING TO SUBMIT DESCRIPTIVE LITERATURE WITH ITS BID, ACME DID NOT COMPLY WITH THE STRICT REQUIREMENTS OF THE INVITATION, THERE WAS CONSIDERED A SOMEWHAT SIMILAR SITUATION INVOLVING THE QUESTION AS TO THE PROCEDURE TO BE FOLLOWED IN THOSE CASES WHERE BIDDERS FAILED TO SUBMIT SAMPLES BEFORE THE BID OPENING--- A REQUIREMENT OF THE INVITATION--- IN A DECISION DATED MAY 13, 1938, 17 COMP. GEN. 940. IT WAS HELD THAT IF THE ADVERTISED SPECIFICATIONS FULLY SET FORTH THE REQUIREMENTS OF THE GOVERNMENT, AND A BIDDER WITHOUT SUBMITTING A REQUESTED SAMPLE WITH HIS BID, NEVERTHELESS PROPOSES TO MEET THE SPECIFICATIONS AND IS OTHERWISE ENTITLED TO THE AWARD, IT WOULD APPEAR IN THE INTEREST OF THE GOVERNMENT TO WAIVE AS AN INFORMALITY THE FAILURE TO SUBMIT A SAMPLE AND, BY AN ACCEPTANCE OF THE PROPOSAL AS SUBMITTED, TO BIND SUCH BIDDER TO STRICT COMPLIANCE WITH THE SPECIFICATIONS. THAT PRINCIPLE WOULD APPEAR TO BE APPLICABLE HERE.

IN THE INSTANT MATTER THE SUCCESSFUL BIDDER HAS FURNISHED EVIDENCE SATISFACTORY TO THE CONTRACTING OFFICER THAT IT HAD MET THE REQUIREMENTS OF THE INVITATION IN THAT THE MODEL OFFERED WAS STANDARD EQUIPMENT SIMILAR AND EQUAL TO THAT FURNISHED THE GENERAL PUBLIC. FURTHERMORE, THE BOARD OF REVIEW CONCLUDED THAT THE EQUIPMENT OFFERED BY ACME FULLY MET THE TECHNICAL REQUIREMENTS OF THE SPECIFICATIONS INCLUDED IN THE INVITATION AS MODIFIED BY SPECIAL NOTICE NO. 1.

UNDER THE REPORTED FACTS IT DOES NOT APPEAR THAT THE ACTION OF THE CONTRACTING OFFICER IN AWARDING THE CONTRACT IN THIS CASE WAS IMPROPER OR THAT ANY INJUSTICE HAS BEEN DONE TO YOU THEREBY. ACCORDINGLY, THERE IS NO ACTION WHICH MAY PROPERLY TAKE IN THE MATTER.