B-139846, JUL. 14, 1959

B-139846, JUL. 14, 1959

TO MR. CHARLES W. POOLEY, JR.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE REJECTION BY THE SMITHSONIAN INSTITUTION OF YOUR LOW BID SUBMITTED IN RESPONSE TO INVITATION NO. 59-SI-755, ISSUED MARCH 18, 1959, AND AGAINST THE AWARD OF THE CONTRACT TO REMINGTON RAND.

THE INVITATION REQUESTED BIDS ON A QUANTITY OF "LIBRARY STACKS, METAL AND WOOD," AS THEREIN SPECIFIED, FOR DELIVERY TO THE NATIONAL AIR MUSEUM STORAGE AREA, SILVER HILL, MARYLAND.

INVITATIONS WERE SENT TO FIVE MANUFACTURERS AND THREE BIDS WERE RECEIVED AS FOLLOWS:

TABLE

ESTEY CORPORATION $13,673.00

REMINGTON RAND 16,107.00

VIRGINIA METAL PRODUCTS, INC. 17,977.00

IN COMPLIANCE WITH PARAGRAPH 1.2 OF THE SPECIFICATIONS THE ESTEY CORPORATION, BY LETTER DATED MARCH 21, 1959, LISTED THE FOLLOWING DEVIATIONS FROM THE ADVERTISED SPECIFICATIONS:

"1) UPRIGHTS PARAGRAPH 5. OUR UPRIGHTS ARE OF ONE PIECE CONSTRUCTION WHICH PROVIDE A NEATER APPEARANCE, A MORE PRECISE LOCATION OF SLOTS, AND 35 1/2 INCHES CLEAR BETWEEN SHELF BRACKETS AS COMPARED TO THE 35 1/4 DIMENSION CALLED FOR IN PARAGRAPH 2.2 (12.2). DIMENSION CALLED FOR IN PARAGRAPH 2.2 (12.2).

"2) BASE BRACKETS PARAGRAPH 8. OUR BASE BRACKETS ARE MADE OF TWO FORMED SECTIONS OF 16 GUAGE STEEL WHICH PROVIDE A ROUNDED EXPOSED EDGE, WHICH WOULD BE LESS LIKELY TO DAMAGE BOOKS THAN THE SINGLE THICKNESS OF 11 GUAGE METAL SPECIFIED.

"3) CLOSED BASES PARAGRAPH 9. OUR BASE IS OF A ONE PIECE CONSTRUCTION, COMPRISING A 4 INCH HIGH BASE AND SHELF, WHICH PROVIDES A NEATER APPEARANCE AND A MORE RIGID BASE.'

PARAGRAPH 5.1 OF THE SPECIFICATIONS, ENTITLED "UPRIGHTS," IS AS FOLLOWS:

"UPRIGHTS SHALL CONSIST OF TWO 16-GUAGE CHANNEL SHAPES WITH STIFFENED FLANGES PLACED BACK TO BACK TO MEASURE 2 INCH SQUARE IN CROSS SECTION. EACH UPRIGHT SHALL HAVE NOT LESS THAN 8 RIGHT ANGLE B/E/NDS IN CROSS SECTION, TO DEVELOP MAXIMUM STRENGTH. EACH UPRIGHT SHALL BE PERFORATED THE FULL HEIGHT, ON BOTH FACES, WITH TWO VERTICAL ROWS OF RECTANGULAR SLOTS 1/4 INCH TIMES 5/8 INCH IN SIZE, ON 1 INCH CENTERS, TO RECEIVE THE HOOKS AND SAFETY LUGS OF THE SHELF BRACKETS. INTERMEMBERING HOLES, FOR SWAY BRACES, TIE CHANNELS AND PARTICULARLY FOR THE ATTACHMENT OF PLATE BASE BRACKETS, SHALL BE LOCATED IN THE WEB OF THE UPRIGHTS TO DEVELOP FULL STRENGTH FOR THE CONNECTION OF THESE MEMBERS.'

PARAGRAPH 8.1 OF THE SPECIFICATIONS, ENTITLED "BASE BRACKETS," IS AS FOLLOWS:

"8.1 BASE BRACKETS, TO FUNCTION AS GUSSETS, SHALL BE MADE OF 11 GUAGE STEEL WITH NEATLY ROUNDED FRONT CORNERS, AND SHALL BE ATTACHED TO THE WEBS ONLY OF THE STACK UPRIGHTS WITH CONNECTING BOLTS WHICH MUST NOT PROJECT INTO THE SHELF AREA TO DAMAGE THE FILED MATERIAL.'

PARAGRAPH 9 OF THE SPECIFICATIONS IS AS FOLLOWS:

"9. CLOSED BASES SHALL CONSIST OF BOTTOM SHELVES OF THE SAME DESIGN AS ADJUSTABLE SHELVES. CLOSURE PLATES OF 18-GUAGE STEEL SHALL BE FURNISHED AT THE FRONT EDGE OF THE BASE SHELVES, CLOSING THE SPACE TO THE FLOOR.'

THE SMITHSONIAN INSTITUTION HAS REPORTED THAT THE ADVERTISED SPECIFICATIONS WERE DEVELOPED TO ASSURE THE PROCUREMENT OF EQUIPMENT WHICH WOULD PROVIDE MAXIMUM RIGIDITY AND PERMANENCE COMPARABLE TO AND IN KEEPING WITH OTHER ASPECTS OF THE BUILDING IN WHICH IT WAS TO BE INSTALLED. IT IS FURTHER REPORTED THAT THE SPECIFICATIONS WERE PREPARED AFTER CAREFUL CONSIDERATION OF THESE REQUIREMENTS AND OF THE TYPES OF CONSTRUCTION AVAILABLE IN THE OPEN MARKET.

WHILE THE ADVERTISED SPECIFICATIONS WERE FULLY DETAILED AS TO MATERIALS TO BE USED, METHODS OF CONSTRUCTION, DIMENSIONS, ETC., THE PROVISIONS OF PARAGRAPH 1.2, CALLING FOR DISCLOSURE OF ANY DEVIATIONS OF ITEMS OFFERED ARE INDICATIVE OF A WILLINGNESS TO CONSIDER ITEMS DIFFERING IN MINOR OR IMMATERIAL DETAILS. HOWEVER, THE SMITHSONIAN INSTITUTION REJECTED THE LOW BID OF YOUR CORPORATION AS BEING NONRESPONSIVE TO THE MINIMUM REQUIREMENTS OF THE SPECIFICATIONS.

THE DETERMINATION OF THE NEEDS OF THE GOVERNMENT, AND THE PREPARATION OF SPECIFICATIONS STATING THOSE NEEDS, ARE MATTERS WITHIN THE AUTHORITY OF THE PROPER ADMINISTRATIVE OFFICIALS OF THE PURCHASING OR USING AGENCIES, AND THE QUESTION WHETHER EQUIPMENT OFFERED BY A BIDDER CONFORMS WITH THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS IS PRIMARILY FOR DETERMINATION BY THEIR CONTRACTING OR ADMINISTRATIVE OFFICIALS. SEE O- BRIEN V. CARNEY, 6 F.SUPP. 761; ROYAL SUNDRIES CORP. V. UNITED STATES, 111 F.SUPP. 136; 35 COMP. GEN. 174, 179-180.

WITH RESPECT TO THE SPECIFIC DEVIATIONS PROPOSED IN YOUR BID, THE ADMINISTRATIVE OFFICE OFFERS NO COMMENT ON THE THIRD ITEM, AND WE THEREFORE ASSUME THAT IT WAS NOT CONSIDERED MATERIAL. AS TO THE SECOND, WE ARE ADVISED THAT THE THICKNESS OF 11-GUAGE STEEL IS EXACTLY TWICE THAT OF 16-GUAGE, AND IT WOULD THEREFORE APPEAR, IN THE ABSENCE OF A SPECIFIC STATEMENT TO THE CONTRARY, THAT TWO SECTIONS OF THE LIGHTER METAL MIGHT BE SUBSTANTIALLY EQUIVALENT TO ONE OF THE HEAVIER. THE UPRIGHTS, HOWEVER, INVOLVED IN THE FIRST DEVIATION, ARE REQUIRED BY PARAGRAPH 5.1 OF THE SPECIFICATIONS TO BE SO CONSTRUCTED AS TO GIVE NOT LESS THAN 8 BENDS IN CROSS-SECTION, WHEREAS THE ADMINISTRATIVE OFFICE REPORTS THAT THE DESIGN OFFERED BY YOU IS ONE PIECE TUBULAR SECTION HAVING ONLY SIX BENDS IN CROSS -SECTION. WE ARE THEREFORE UNABLE TO SAY THAT THERE IS NO SUBSTANTIAL BASIS FOR THE ADMINISTRATIVE CONCLUSION THAT THE STACKS OFFERED BY YOU VARIED MATERIALLY FROM THE SPECIFICATION REQUIREMENTS, AND HAVE NO ALTERNATIVE BUT TO AFFIRM THE ADMINISTRATIVE REJECTION OF YOUR BID.