B-129707, DEC. 5, 1956

B-129707, DEC. 5, 1956

TO DELAWARE VALLEY MACHINERY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 2, 1956, PROTESTING THE ACTION OF THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, IN REJECTING YOUR PROPOSAL OF JUNE 26, 1956, SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 383-2318-56, ISSUED JUNE 8, 1956, AND IN MAKING AWARD TO THE RACINE HYDRAULICS AND MACHINERY, INC., AT A HIGHER PRICE THAN THAT QUOTED BY YOU.

AS YOU WERE ADVISED IN OUR LETTER OF NOVEMBER 7, 1956, YOUR PROTEST WAS REFERRED TO THE SECRETARY OF THE NAVY FOR APPROPRIATE INVESTIGATION, AND IN A REPORT PREPARED BY THE CONTRACTING AGENCY THE FOLLOWING EXPLANATION HAS BEEN FURNISHED IN JUSTIFICATION OF THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER:

"2. THE BID OF DELAWARE VALLEY MACHINERY, INC. WAS REJECTED FOR NOT MEETING THE REQUIREMENTS OF THE SPECIFICATION * * * FOR THE FOLLOWING REASONS:

"A. DELAWARE VALLEY MACHINERY, INC. LETTER OF 26 JUNE 1956, SUBJECT: INVITATION NO. IFB-383-2318-56 METAL CUTTING SAW - DELAWARE VALLEY MACHINERY PROPOSAL NO. 56-4-761 * * * STATES ,1-1/2 HP. 1800 RPM, 220 VOLT" , SPECIFICATION PG. 5 PARA. 3.12.3. STATES "---THE OPERATING VOLTAGE, FREQUENCY SHALL BE 220/440 VOLTS, AC 60 CYCLE, 3 PHASE, READY FOR OPERATION ON 220 TS.'

"REMARKS: THE MACHINE MUST BE CAPABLE OF OPERATING ON 220 OR 440 VOLT ELECTRICAL CURRENT SINCE SOME LOCATIONS IN WHICH THE MACHINE MAY BE PLACED IN OPERATION WILL BE EQUIPPED WITH 220 VOLT CURRENT WHEREAS OTHER LOCATIONS MAY BE EQUIPPED ONLY WITH 440 VOLTS.

"B. TECHNICAL REVIEW OF THE MACHINE OFFERED BY DELAWARE VALLEY MACHINERY, INC. REVEALS THAT THE TRANSMISSION GEAR CASE IS NOT TOTALLY ENCLOSED AS REQUIRED BY THE SPECIFICATION (PAGE 3, PARA. 3.6). REVIEW INDICATES THAT THE GEAR TRANSMISSION SHAFTS EXTEND THROUGH THE GEAR CASE WITH THE SHAFT ENDS EXPOSED.

"REMARKS: THE SPECIFICATION SPECIFICALLY HAS THIS REQUIREMENT TO REDUCE THE NUMBER OF PARTS OF THE MACHINE WHICH ARE EXPOSED. THIS SPECIFICATION REQUIREMENT SERIOUSLY AFFECTS PRICE AND QUALITY OF THE MACHINE.'

ALTHOUGH IT IS INDICATED IN YOUR LETTER OF JUNE 26, 1956, ACCOMPANYING YOUR PROPOSAL OF THAT DATE, THAT THE EQUIPMENT OFFERED BY YOU NOT ONLY MET, BUT EXCEEDED THE REQUIREMENTS OF THE SPECIFICATIONS, IT HAS BEEN AFFIRMATIVELY REPORTED TO US AS A FACT THAT SUCH EQUIPMENT DOES NOT MEET THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS IN TWO MATERIAL RESPECTS AS HEREINABOVE INDICATED. IN CASES OF THIS CHARACTER, WHERE THERE IS INVOLVED A DISPUTE ON STRICTLY A FACTUAL MATTER, WE CONSISTENTLY HAVE ADHERED TO THE PROPOSITION THAT THE DUTY OR FUNCTION OF DETERMINING WHETHER THE EQUIPMENT OFFERED BY A BIDDER CONFORMS TO THE REQUIREMENTS OF THE SPECIFICATIONS IS PRIMARILY AN ADMINISTRATIVE ONE FOR EXERCISE BY THE GOVERNMENTAL ACTIVITY HAVING JURISDICTION OVER THE AWARD. SEE 35 COMP. GEN. 174, 179-180.

ACCORDINGLY, IN VIEW OF THE REPORTED FACTS AS STATED ABOVE, THERE APPEARS TO BE NO LEGAL BASIS FOR OBJECTION TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.