B-141967, MAR. 29, 1960

B-141967, MAR. 29, 1960

TO HOUSTON FEARLESS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 10, 1960, AND TO YOUR LETTER OF FEBRUARY 15, 1960, PROTESTING THE AWARD OF A CONTRACT TO FILMLINE CORPORATION UNDER INVITATION FOR BIDS NO. IFB-151 123-60 ISSUED BY THE PHILADELPHIA NAVAL SHIPYARD ON NOVEMBER 30, 1959.

BIDS WERE INVITED FOR FURNISHING 2 MOTION PICTURE PROCESSOR MACHINES, F.O.B. SUPPLY OFFICER, U.S. NAVAL AIR STATION, LAKEHURST, NEW JERSEY. ITEM 1 CALLED FOR THE DELIVERY OF A 35 MM. MACHINE, TO BE SIMILAR AND EQUAL TO "FILMLINE" MANUFACTURED BY FILMLINE CORPORATION, MILFORD, CONNECTICUT, PER NATF (SI) SPECIFICATION NO. MA-4. ITEM 2 CALLED FOR THE DELIVERY OF A 16 MM. MACHINE, TO BE SIMILAR AND EQUAL TO "FILMLINE" MANUFACTURED BY FILMLINE CORPORATION, MILFORD, CONNECTICUT, PER NATF (SI) SPECIFICATION NO. MA-5. THE INVITATION FOR BIDS PROVIDED THAT BIDS OFFERING "OR EQUAL" SUPPLIES WOULD BE CONSIDERED FOR AWARD IF SUCH SUPPLIES WERE CLEARLY IDENTIFIED IN THE BIDS AND WERE DETERMINED BY THE GOVERNMENT TO BE EQUAL TO THE BRAND NAMED SUPPLIES IN ALL MATERIAL RESPECTS. THE INVITATION PROVIDED FURTHER THAT:

"BIDDERS MUST CLEARLY INDICATE WHETHER THEIR BIDS ARE BASED ON A BRAND NAME ITEM ON AN "EQUAL" ITEM BY FURNISHING THE INFORMATION REQUIRED BELOW. IF THE BIDDER DOES NOT IDENTIFY THE BRAND NAME OR DESCRIBE IN FULL THE "OR EQUAL" ITEM WHICH IS OFFERED, AS PROVIDED IN (1) AND (2) BELOW, THE BID WILL BE REJECTED.

"/1) IF THE BIDDER PROPOSES TO FURNISH A BRAND NAME ITEM SPECIFIED IN THE INVITATION FOR BIDS, THE ITEM SHOULD BE IDENTIFIED BY BRAND NAME IN THE FOLLOWING SPACE. BRAND NAME ---------------------.

"/2) IF THE BIDDER PROPOSES TO FURNISH AN "OR EQUAL" ITEM, THE FOLLOWING DESCRIPTIVE DATA MUST BE FURNISHED: BRAND NAME OF THE ITEM PROPOSED TO BE FURNISHED, IF ANY, AND FULL DESCRIPTION THEREOF, INCLUDING PERTINENT PHYSICAL, MECHANICAL, ELECTRICAL, AND CHEMICAL DETAILS AND A STATEMENT EXPLAINING THE DIFFERENCES BETWEEN THE ITEM BEING OFFERED AND ANY ONE OF THE CORRESPONDING BRAND NAME ITEMS CALLED FOR BY THIS INVITATION FOR BIDS. (THIS INFORMATION MAY BE SUPPLIED BY SEPARATE ATTACHMENTS TO THE BID.)

DELIVERY WAS TO BE MADE NO LATER THAN 60 DAYS AFTER DATE OF CONTRACT AND ANY BIDS OFFERING DELIVERY AFTER THAT TIME OR OFFERING AN INDEFINITE TIME OF DELIVERY WERE TO BE REJECTED.

THREE BIDS WERE RECEIVED. YOU PROPOSED TO FURNISH YOUR OWN MODELS UNDER ITEMS 1 AND 2, FOR THE PRICE OF $8,285 EACH AND TO MAKE DELIVERY WITHIN 50 DAYS FROM RECEIPT AND ACCEPTANCE OF FORMAL AUTHORITY TO PROCEED. THE SECOND LOW BIDDER, FILMLINE CORPORATION, PROPOSED TO FURNISH ITS OWN MODELS, WITHIN 60 DAYS FROM DATE OF CONTRACT, FOR THE PRICE OF $9,800 (ITEM 1) AND THE PRICE OF $8,640 (ITEM 2). YOUR LETTER OF DECEMBER 23, 1959, ACCOMPANYING YOUR BID STRESSED THAT YOUR PROCESSORS HAD CERTAIN FEATURES, INCLUDING THE FOLLOWING:

"RECIRCULATION IS PROVIDED FOR THE FIRST DEVELOPER, BLEACH AND SECOND DEVELOPER AND REPLENISHMENT IS ACCOMPLISHED BY FEEDING THE SOLUTION INTO THE SUCTION SIDE OF THE PUMPS. THIS METHOD OF REPLENISHMENT INSURES IMMEDIATE MIXING OF THE REPLENISHER INTO THE TANK SOLUTION AND DOES NOT REQUIRE ELEVATED TANKS FOR GRAVITY FEED.'

AFTER THE OPENING OF BIDS, YOU WERE CONTACTED BY TELEPHONE AND REQUESTED TO FURNISH DESCRIPTIVE LITERATURE. PRIOR TO THE RECEIPT OF YOUR REPLY, THE REQUESTING ACTIVITY AT LAKEHURST, NEW JERSEY, RECONSIDERED THE DATA AT HAND AND ADVISED THE CONTRACTING OFFICE AT THE PHILADELPHIA NAVAL SHIPYARD BY MEMORANDUM DATED JANUARY 8, 1960, THAT YOU WERE TAKING EXCEPTION TO THE SPECIFICATIONS INSOFAR AS IT CONCERNED THE REPLENISHMENT SYSTEM OF THE PROCESSORS. AS INDICATED HEREINABOVE YOU PROPOSED RECIRCULATION AND REPLENISHMENT THROUGH THE SUCTION SIDE OF THE PUMPS. IN YOUR LETTER OF JANUARY 6, 1960, YOU REFER TO THE PROPOSED RECIRCULATION OF SOLUTIONS AND STATE THAT YOU IN NO WAY REVISED THE NAVY SPECIFICATION AS WRITTEN BUT THAT YOUR PLAN IMPLEMENTED THE SPECIFICATION "AS AN ADDITIONAL FEATURE.' YOUR LETTER OF JANUARY 6 WAS REVIEWED BY THE LAKEHURST ACTIVITY AND THEY STATED THAT THE MATERIAL FURNISHED DID NOT ALTER THEIR PRIOR RECOMMENDATION THAT THE MACHINES OFFERED FAILED TO MEET THE SPECIFICATION REQUIREMENTS AND THAT YOU DID "NOT COMPLY WITH SUBJECT INVITATION IN SO FAR AS PAGES 4 AND 5 WHICH STATE BIDDER MUST FURNISH DESCRIPTIVE DATA ON THE PHYSICAL, MECHANICAL, ELECTRICAL AND CHEMICAL DETAILS BETWEEN THE FILMLINE OR EQUAL.' ACCORDINGLY, AWARD WAS MADE TO THE FILMLINE CORPORATION.

IN YOUR LETTER OF FEBRUARY 5, 1960, TO THE CONTRACTING OFFICE AND IN YOUR LETTER OF FEBRUARY 15, 1960, TO OUR OFFICE, YOU STATED THAT THE EQUIPMENT PROPOSED TO BE FURNISHED BY YOU MET ALL THE REQUIREMENTS OF THE SPECIFICATIONS AND THAT IN ALL YOUR COMMUNICATIONS YOU HAD STATED YOUR WILLINGNESS TO COMPLY WITH THE SPECIFICATIONS.

IT IS NOT THE RESPONSIBILITY OF OUR OFFICE TO DETERMINE THE PROCUREMENT NEEDS OF THE GOVERNMENT. 16 COMP. GEN. 171, 172. THE DRAFTING OF SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT, AND THE BONA FIDE FACTUAL DETERMINATION WHETHER PRODUCTS OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS, ARE BOTH MATTERS WITHIN THE PRIMARY RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554, 557 AND 19 ID. 587, 589. THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE. 36 COMP. GEN. 251, 252. THE FACT THAT YOU OFFERED TO COMPLY WITH THE SPECIFICATIONS SUBSEQUENT TO A DETERMINATION THAT YOUR REPLENISHMENT SYSTEM DID NOT CONFORM TO THE SPECIFICATIONS MAY NOT BE CONSIDERED AFTER THE BIDS ARE OPENED. 37 COMP. GEN. 757, 759. ACCORDINGLY YOUR BID WAS PROPERLY REJECTED.

ALTHOUGH THE ADMINISTRATIVE OFFICE HAS STATED THAT THEY CONSIDERED YOUR BID AS NONRESPONSIVE BECAUSE OF YOUR FAILURE TO CONFORM TO THE REQUIRED DELIVERY DATE AND BECAUSE YOU FAILED TO FURNISH SUFFICIENT DATA WITH YOUR BID TO EVALUATE YOUR BID, THESE MATTERS NEED NOT BE CONSIDERED SINCE YOUR BID WAS NOT FOR ACCEPTANCE IN ANY EVENT AS HEREINABOVE INDICATED.