B-133490, NOV. 12, 1957

B-133490, NOV. 12, 1957

TO AMERICAN SHUFFLEBOARD COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16, 1957, PROTESTING THE AWARD OF CONTRACT MADE UNDER REQUEST FOR PROPOSALS NO. QM 33-031-57- NEG-16 TO THE NATIONAL CORPORATION.

AS YOU WERE ADVISED, THE SECRETARY OF THE ARMY WAS REQUESTED TO FURNISH A COMPLETE REPORT CONCERNING THE AWARD. THE REQUESTED REPORT, TOGETHER WITH PERTINENT PAPERS, HAS BEEN RECEIVED.

THE RECORD DISCLOSES THAT A REQUEST FOR PROPOSALS DATED MAY 9, 1957, REQUESTED OFFERS TO BE RECEIVED UNTIL THE CLOSE OF BUSINESS MAY 27, 1957,FOR THE FURNISHING OF FIVE SHUFFLEBOARD TABLES AND ACCESSORIES IN ACCORDANCE WITH THE PURCHASE DESCRIPTION FOR INDOOR SHUFFLEBOARD TABLES. THE PURCHASE DESCRIPTION READS AS FOLLOWS:

"SHUFFLEBOARD, TABLE, INDOOR, WITHOUT ACCESSORIES;

TO BE REGULATION TOURNAMENT SIZE, AMERICAN SHUFFLEBOARD

"CLIPPER," NATIONAL SHUFFLEBOARD "CHAMPION,"

OR EQUAL, TO INCLUDE PERTINENT PLAYING INSTRUCTIONS

AND CLIMACTIC ADJUSTERS.'

IN RESPONSE TO THE REQUEST FOR PROPOSALS, YOU OFFERED TO FURNISH FIVE TABLES FOR $319.96 EACH, PLUS PACKING AND CRATING COSTS AND ACCESSORIES, OR FOR A TOTAL OF $2,240.50. THE OTHER RESPONSIVE BID RECEIVED FROM THE NATIONAL CORPORATION QUOTED A PRICE OF $390.18 EACH, PLUS THE COST OF TABLE ACCESSORIES, OR A TOTAL OF $2,105.65. SINCE THE PROPOSAL OF THE NATIONAL CORPORATION WAS LOW AS TO ALL ITEMS COVERED BY THE REQUEST AND RESPONSIVE IN ALL RESPECTS, AWARD WAS MADE TO THAT CORPORATION ON JUNE 29, 1957. WITH RESPECT TO YOUR PROTEST AND THE REASONS FOR THE AWARD TO THE LOW OFFERER, THE REPORT STATES, IN PART, AS FOLLOWS:

"4. PROCUREMENT DIRECTIVE CO 4032-00-7-27 AUTHORIZED THE PURCHASE OF, AMONG OTHER ITEMS, FIVE SHUFFLEBOARD TABLES AND CERTAIN ACCESSORIES FOR THE SAME. A PURCHASE DESCRIPTION FOR "TABLES, GAME, SHUFFLEBOARD" DATED 13 FEBRUARY 1956 EXISTED AT THIS TIME. HOWEVER, THE CONTRACTING OFFICER WAS AWARE OF CIRCUMSTANCES INDICATING THE PURCHASE DESCRIPTION TO BE RESTRICTIVE AND UNSATISFACTORY. HE THEREFORE, REFERRED THE PURCHASE DESCRIPTION TO THE TECHNICAL ADVISORY BRANCH, QUARTERMASTER PROCUREMENT AGENCY, FOR EVALUATION AND DETERMINATION AS TO WHETHER IT WAS SUITABLE FOR THE PROCUREMENT OF THE FIVE TABLES. UPON RECOMMENDATION OF THE TECHNICAL ADVISORY BRANCH, THE CONTRACTING OFFICER DETERMINED THAT THE PURCHASE DESCRIPTION WAS RESTRICTIVE, AND DETERMINED TO NEGOTIATE FOR THE PURCHASE OF TABLES EQUAL TO ONE OF THE TWO MAKES PREVIOUSLY PURCHASED BY THE ARMY, AND FOUND SATISFACTORY FOR THE USE TO WHICH PUT.

"5. ON 9 MAY 1957, THEREFORE, THE CONTRACTING OFFICER ISSUED REQUEST FOR PROPOSALS NO. QM 33-031-57-NEG-16 WHICH WAS SENT TO SIX SHUFFLEBOARD MANUFACTURERS. THREE PROPOSALS WERE RECEIVED IN RESPONSE, INCLUDING THE PROPOSAL OF THE AMERICAN SHUFFLEBOARD COMPANY AND THAT OF THE NATIONAL CORPORATION. ACCOMPANYING THE PROPOSAL OF THE AMERICAN SHUFFLEBOARD COMPANY WAS A LETTER DATED 22 MAY 1957 IN WHICH THE COMPANY STATED EMPHATICALLY THAT IT WOULD NOT OFFER ANY SHUFFLEBOARD TABLE OTHER THAN ITS "CLIPPER" MODEL.

"6. IT WILL BE NOTED THAT THE ORIGINAL REQUEST PROVIDED THAT PROPOSALS IN RESPONSE WOULD BE RECEIVED THROUGH THE CLOSE OF THE BUSINESS DAY 27 MAY 1957. HOWEVER, THE REQUEST ALSO RESERVED THE RIGHT TO THE GOVERNMENT TO RECEIVE AND CONSIDER PROPOSALS OR MODIFICATIONS OF PROPOSALS RECEIVED AFTER THAT DATE. ON 27 MAY 1957, AMENDMENT NO. 1 OF THE REQUEST WAS ISSUED, EXTENDING THE OPENING DATE TO 4 JUNE 1957.

"7. ON 29 MAY 1957, THE AMERICAN SHUFFLEBOARD COMPANY ACKNOWLEDGED THE RECEIPT OF THE AMENDMENT EXTENDING THE OPENING DATE, AND REGISTERED AN OBJECTION TO THE EXTENSION OF TIME. IN ITS LETTER OF 29 MAY 1957, THE COMPANY STATED THAT ITS OFFER WAS TO "STAND AS IS" DESPITE ITS OBJECTIONS TO THE DELAY IN OPENING.

"8. THE PROPOSAL OF THE NATIONAL CORPORATION WAS FOUND TO BE LOW ON BOTH ITEMS COVERED BY THE REQUEST, AND WAS FOUND TO BE RESPONSIVE IN ALL RESPECTS. INASMUCH AS AMERICAN SHUFFLEBOARD HAD ALREADY STATED ITS POSITION IN REGARD TO OFFERING AN ALTERNATIVE PROPOSAL ON A BOARD EQUAL (IN ITS OPINION) TO THAT OFFERED BY NATIONAL, NO FURTHER NEGOTIATION WITH AMERICAN WAS CONSIDERED USEFUL, AND NATIONAL CORPORATION'S PROPOSAL WAS ACCEPTED 29 JUNE 1957. A COMPARATIVE SUMMARY OF THE OFFERS FROM AMERICAN AND NATIONAL ARE FOUND IN VERIFICATION OF PROPOSED AWARDS.

"10. THE BASES FOR THE PROTEST OF THE AMERICAN SHUFFLEBOARD COMPANY DO NOT APPEAR TO BE SOUND. THE COMPANY IS APPARENTLY PRESUMING THAT THE PROCUREMENT WAS BY FORMAL ADVERTISING FOR SEALED BIDS WHEREAS IT WAS, IN FACT, A PROCUREMENT BY NEGOTIATION UNDER AUTHORITY OF TITLE 10 U.S.C.A. SECTION 2304 (A) (1) AND ASPR 3-201.2 (B) (V). UNDER THE PROCEDURE PRESCRIBED FOR PROCUREMENT BY NEGOTIATION IT IS NOT IMPROPER TO ACCEPT AND CONSIDER PROPOSALS RECEIVED AFTER THE PRESCRIBED OPENING DATE, NOR WAS IT IMPROPER TO OPEN THE OFFEROR'S PROPOSAL PRIOR TO THE PRESCRIBED OPENING DATE.

"11. INASMUCH AS THE PROPOSAL OF THE NATIONAL CORPORATION WAS FORMALLY ACCEPTED 29 JUNE 1957, THE AMERICAN SHUFFLEBOARD COMPANY'S ALLEGATION THAT "NO AWARD WAS MADE UNTIL JULY 25" IS NOT UNDERSTOOD. EVEN WERE THE ALLEGATION TRUE, IT WOULD NOT CONSTITUTE GROUNDS FOR PROTEST.

"12. THE PROTESTING OFFEROR STATES THAT SPECIFICATIONS USED PREVIOUSLY WERE NOT USED IN THIS PROCUREMENT. THE REASON FOR THIS WAS EXPLAINED IN PARAGRAPH 4 ABOVE.

"13. THE PRINCIPAL OBJECTIONS OF THE AMERICAN SHUFFLEBOARD COMPANY ARE BELIEVED TO BE THOSE DESCRIBED IN 2B AND 2F ABOVE. THE GOVERNMENT HAD PREVIOUSLY PURCHASED SHUFFLEBOARDS OF THE TWO MAKES MENTIONED IN THE REQUEST FOR PROPOSALS. BOTH TABLES HAD BEEN FOUND SATISFACTORY FOR THE USE TO WHICH PUT BY THE ARMY. THE NATIONAL "CHAMPION" AND AMERICAN "CLIPPER" (REGULATION TOURNAMENT SIZE) HAD APPROXIMATELY THE SAME OVERALL DIMENSIONS, EACH BEING 22 FEET LONG. THE NATIONAL "CHAMPION" HAS A 20 FEET 4 1/2 INCHES LONG PLAYING SURFACE WHILE THE AMERICAN CLIPPER-S" PLAYING SURFACE WAS 20 FEET 8 INCHES LONG. EACH COMPANY CLAIMS THAT ITS TABLE IS ,REGULATION TOURNAMENT SIZE.' THERE IS NO "REGULATION TOURNAMENT SIZE" AS SUCH, THE TERM MEANING WHAT EACH INDIVIDUAL MANUFACTURER INTENDS IT TO MEAN WHEN APPLIED TO ITS PRODUCT. FOR THE PURPOSE OF THIS NEGOTIATION, THE SIZE TABLE DESIRED WAS CLEARLY SPELLED OUT BY THE TERM--- I.E.--- A TABLE THE SIZE NATIONAL SOLD AS REGULATION SIZE OR A TABLE THE SIZE AMERICAN SOLD AS REGULATION SIZE.'

IN CONNECTION WITH YOUR LATER ALLEGATION THAT THE SHUFFLEBOARDS SUPPLIED BY THE NATIONAL CORPORATION WERE REBUILT OR COMPOSED OF USED MATERIAL, THE QUARTERMASTER CORPS HAS ADVISED THAT ITS COMPLETE INSPECTION OF THE TABLES PROCURED FROM THE NATIONAL CORPORATION DISCLOSED NO EVIDENCE THAT REBUILT SHUFFLEBOARDS WERE USED IN FULFILLING THE CONTRACT REQUIREMENTS.

THE RECORD IS CLEAR THAT, IN VIEW OF A DETERMINATION THAT EITHER YOUR TABLES OR NATIONAL'S WERE SATISFACTORY FOR ARMY PURPOSES, PROPOSALS WERE SOLICITED FOR TABLES WHICH CONFORMED EITHER TO YOUR "CLIPPER" MODEL OR TO NATIONAL'S "CHAMPION" MODEL, OR EQUAL; THAT NO "REGULATION TOURNAMENT SIZE" TABLE EXISTS BUT THAT SIZE VARIES SLIGHTLY BETWEEN MANUFACTURERS; AND THAT THERE WAS NO DEVIATION FROM THE SPECIFICATIONS IN MAKING AWARD ON THE BASIS OF THE TABLES OFFERED BY NATIONAL CORPORATION. FURTHER, IT APPEARS THAT THE TABLES OFFERED BY YOU WERE ENTIRELY ACCEPTABLE BUT THAT AWARD TO THE NATIONAL CORPORATION WAS BASED SOLELY UPON ITS PROPOSAL TO FURNISH TABLES AT A PRICE LOWER THAN THAT QUOTED BY YOU.

WE THEREFORE CONCLUDE THAT ON THIS RECORD THERE IS NO LEGAL BASIS UPON WHICH OUR OFFICE COULD OBJECT TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.