B-143774, JAN. 11, 1961

B-143774, JAN. 11, 1961

TO TOLEDO SCALE:

WE REFER TO YOUR LETTER OF AUGUST 15, 1960, PROTESTING A CHANGE IN THE SPECIFICATIONS UNDER POST OFFICE DEPARTMENT INVITATION NO. 336, AFTER AWARD OF A CONTRACT, WHICH MATTER IS THE SUBJECT OF REPORTS OF OCTOBER 4, 1960, AND NOVEMBER 15, 1960, FORWARDED TO THIS OFFICE FROM THE POST OFFICE DEPARTMENT.

THE RECORD INDICATES THAT ON AUGUST 12, 1959, THE POST OFFICE DEPARTMENT ISSUED INVITATION NO. 336 CALLING FOR 3,000 AUTOMATIC COMPUTING SCALES OF 70 POUNDS CAPACITY FOR PARCEL POST MAIL TO BE MADE IN CONFORMITY WITH THE PROVISIONS OF SPECIFICATIONS POD-S-111A (RE), DATED JULY 17, 1959. PARAGRAPH 3.4.2 OF THE SPECIFICATIONS REQUIRED THAT SCALES MUST HAVE CYLINDER TYPE CHARTS GRADUATED IN 2-OUNCE INCREMENTS TO THE TOTAL CAPACITY OF 70 POUNDS. THREE BIDS WERE RECEIVED BY OPENING DATE ON SEPTEMBER 4, 1959, AND WERE EVALUATED AS FOLLOWS:

TABLE

TRINER SCALE $300,000.00

TOLEDO SCALE $477,000.00

PITNEY-BOWES $587,172.50

TRINER WAS AWARDED THE CONTRACT ON SEPTEMBER 24, 1959.

PURSUANT TO THE INVITATION, TRINER HAD TO SUPPLY AN INITIAL PRODUCTION LINE MODEL AFTER AWARD FOR TESTING TO DETERMINE WHETHER THE SCALES WOULD CONFORM WITH THE SPECIFICATIONS. TESTS FOR TOLERANCE ACCURACY WERE CONDUCTED ON MODELS DURING MARCH AND APRIL, 1960, BY THE NATIONAL BUREAU OF STANDARDS PURSUANT TO A REQUEST BY THE POST OFFICE DEPARTMENT. THE TOLERANCES APPLIED WERE THOSE LISTED IN NATIONAL BUREAU OF STANDARDS HANDBOOK 44, 2ND EDITION, ENTITLED "SPECIFICATIONS, TOLERANCES, AND REGULATIONS FOR COMMERCIAL WEIGHING AND MEASURING DEVICES.' (TOLERANCE IS THEREIN DEFINED AS A VALUE FIXING THE LIMIT OF ALLOWABLE ERROR OR DEPARTURE FROM TRUE PERFORMANCE OR VALUE). FOR THE TYPE OF SCALES REQUIRED BY THE CONTRACT THE HANDBOOK PROVIDES THAT THE BASIC ACCEPTANCE TOLERANCE SHALL BE ONE HALF THE BASIC MAINTENANCE TOLERANCE AS SET FORTH IN TABLE NO. 6 OF THE HANDBOOK. AS OBTAINED FROM THAT TABLE, ACCEPTANCE TOLERANCES RANGE FROM 1/32 OUNCE FOR A 1 POUND LOAD UPWARD TO 1/2 OUNCE FOR A 70 POUND LOAD. HOWEVER, IT IS ADDITIONALLY PROVIDED IN THE HANDBOOK PERTINENT TO THESE SCALES, AS FOLLOWS:

"T.1.2.2 ON AUTOMATIC-INDICATING SCALES.--- ON A PARTICULAR SCALE, THE MAINTENANCE TOLERANCES APPLIED SHALL BE NOT SMALLER THAN ONE-FOURTH THE VALUE OF THE MINIMUM GRADUATED INTERVAL ON THE READING-FACE. THE ACCEPTANCE TOLERANCES APPLIED SHALL BE NOT SMALLER THAN ONE-EIGHTH THE VALUE OF THE MINIMUM GRADUATED INTERVAL ON THE READING-FACE. * * *"

IN APPLICATION THEREFORE, A 70 POUND CAPACITY SCALE WITH A 2-OUNCE GRADUATED INTERVAL HAS A BASIC ACCEPTANCE TOLERANCE RANGING FROM 1/4 OUNCE (AT 30 POUNDS OR LESS) TO 1/2 OUNCE (AT 60-70 POUNDS), WHEREAS THE SAME SCALE WITH 4-OUNCE GRADUATED CHART INTERVAL WOULD HAVE AN ACCEPTANCE TOLERANCE AT ALL WEIGHTS OF 1/2 OUNCE (1/8 OF THE GRADUATED INTERVAL ON THE SCALE CHART). THE MODELS TESTED BY NATIONAL BUREAU OF STANDARDS FAILED, GENERALLY, TO MEET THE STANDARDS OF ACCEPTANCE TOLERANCE APPLIED ON A 2-OUNCE INCREMENT GRADUATION SCALE.

SUBSEQUENTLY, DURING MAY OF 1960, MR. C. J. STUART, AN EXAMINER OF EQUIPMENT FOR THE POST OFFICE DEPARTMENT, CONDUCTED INSPECTIONS AT THE TRINER PLANT OF THE FIRST PRODUCTION RUN SCALES PRODUCED UNDER THE SUBJECT CONTRACT. IT WAS REPORTED BY MR. STUART THAT THE CONTRACTOR HAD PRODUCED A RUN OF SCALES WHICH WERE IN COMPLIANCE WITH THE SPECIFICATIONS. HOWEVER, MR. STUART'S MEMORANDUM ON THIS MATTER, UNDER DATE OF MAY 20, 1960, CONTAINS REFERENCE TO THE DESIRABILITY, FROM THE DEPARTMENT'S STANDPOINT, OF MODIFYING THE SPECIFICATIONS IN THE FOLLOWING PARTICULAR:

"ON INSPECTION OF 70-POUND AUTOMATIC-INDICATING SCALES AT THE FACTORIES FOR MORE THAN TWENTY YEARS, THE ACCEPTANCE TOLERANCE APPLIED WAS 1/8 (ONE- EIGHTH) THE VALUE OF THE MINIMUM GRADUATED INTERVAL ON THE READING FACE. THE BUREAU OF STANDARDS REPORT ON THE TEST OF PILOT MODEL, USED TOLERANCES TAKEN FROM TABLE NO. 6 IN HANDBOOK 44. * * *

"THIS SCALE IN MY OPINION IS TOO SENSITIVE FOR PARCEL POST WEIGHING AND THE DEPARTMENT IS IN FOR TROUBLE WHEN THESE SCALES ARE PLACED IN SERVICE. A COMPARISON OF WEIGHT ON THIS SCALE AGAINST OTHER 70-POUND SCALES ARE GOING TO SHOW SOME DIFFERENCE. ALSO, IN ORDER TO MEET THE TOLERANCES, KNIFE EDGES ON PIVOTS HAD TO BE GROUND TO A RAZOR SHARP EDGE, WHICH WILL SOON ROUND OFF DUE TO SHOCK OF DROPPING LEADS TO PLATFORM. THIS SCALE WILL BE OUT OF TOLERANCE (1/2 OUNCE), AS ALL OTHER 70-POUND SCALES HAVE A ONE OUNCE TOLERANCE IN THE FIELD--- TROUBLE LIES AHEAD. WEIGHING ON THIS SCALE IS LIKE TRYING TO WEIGH PARCEL POST ON A SCALE MADE TO WEIGH FIRST CLASS MAIL. IN MY OPINION, THE DEPARTMENT COULD PREVENT A LOT OF COMPLAINT BY HAVING THE CHARTS ON THIS SCALE CHANGED NOW TO FOUR-OUNCE MINIMUM GRADUATIONS AND MAINTAIN THE STANDARDS IN THE FIELD.

"ENGINEERING HAS ADMITTED AN ERROR WAS MADE AND SINCE IT IS ONE THAT CAN BE SERIOUS WHEN THIS SCALE GETS IN THE FIELD, I FEEL THAT I WOULD NOT BE DOING A GOOD JOB IF I DID NOT RECOMMEND THAT YOU TAKE NECESSARY STEPS TO PREVENT COMPLAINTS.'

BY SPECIFICATION NO. POD-S-111B (RE), DATED MAY 27, 1960, THE SPECIFICATIONS WERE CHANGED, IN PART, TO REQUIRE 4-OUNCE INCREMENT CHART GRADATIONS. THE DEPARTMENT REPORTS THAT THIS CHANGE WAS MADE, NOT BECAUSE TRINER COULD NOT MEET THE ORIGINAL SPECIFICATIONS, BUT BECAUSE THE DEPARTMENT HAD BECOME CONVINCED THAT MANUFACTURING THE SCALES EXACTLY AS REQUIRED BY THE THEN EXISTING SPECIFICATIONS (PARTICULARLY AS TO THE TWO- OUNCE INCREMENT GRADATIONS) WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT. IT IS REPORTED THAT THE CONTRACT CONTAINS THE STANDARD "CHANGES" ARTICLE. THE DEPARTMENT STATES THAT IT WROTE YOU A LETTER INADVERTENTLY CONVEYING THE IMPRESSION THAT THE CHANGES MADE IN THE SPECIFICATIONS WERE MADE PRIOR TO THE TIME TRINER HAD SUBMITTED SCALES IN CONFORMITY WITH THE SPECIFICATIONS, BUT IN FACT, THE CHANGES WERE MADE AFTER SUCH TIME.

YOU REFER TO THE PART OF THE SYLLABUS OF OUR DECISION OF JULY 23, 1958, 38 COMP. GEN. 59, WHICH READS AS FOLLOWS:

"AN ADMINISTRATIVE PROCUREMENT REGULATION WHICH AFFORDS BIDDERS AN OPPORTUNITY TO CURE DEFICIENCIES RESULTING FROM MINOR INFORMALITIES OR IRREGULARITIES IN BIDS AND PERMITS THE WAIVER OF DEFICIENCIES IF NOT TO THE DISADVANTAGE OF THE GOVERNMENT, IS NOT APPLICABLE TO DEVIATIONS WHICH AFFECT PRICE, QUANTITY OR QUALITY OF THE ARTICLES OFFERED OR TO INFORMALITIES OR IRREGULARITIES WHICH ARE OF SUBSTANCE AS DISTINGUISHED FROM FORM.'

YOU SAY THAT THE RESULTANT INCREASE IN TOLERANCE BROUGHT ABOUT BY THE CHANGE IN GRADATION HERE WILL PERMIT SUBSTANTIAL SAVINGS IN MANUFACTURING COSTS BECAUSE IN ALL MEASURING DEVICES, INCLUDING WATCHES AND MICROMETERS AS WELL AS SCALES, THE COST OF MANUFACTURING THE PARTICULAR INSTRUMENT IS DETERMINED BY THE ACCURACY OF MEASUREMENT REQUIRED. IT IS YOUR CONTENTION THEREFORE, THAT THE CHANGE IN QUESTION SHOULD NOT BE PERMITTED UNDER THE RULE CITED IN OUR DECISION OF JULY 23, 1958, SINCE IT AFFECTS PRICE AND QUALITY. IT IS ALSO YOUR CONTENTION THAT A "RELAXATION" IN TOLERANCE BY THE POST OFFICE DEPARTMENT IS UNWISE AND UNNECESSARY. IN THIS REGARD, YOU STATE AS FOLLOWS:

"IN THE CASE OF THE U.S. POST OFFICE DEPARTMENT, WHICH IS THE LARGEST SINGLE USER OF WEIGHING SCALES IN THE WORLD, THE COST OF CARRYING ALL PACKAGES IS DETERMINED ON THE BASIS OF PACKAGE WEIGHT. THE REVENUE DERIVED BY THE POST OFFICE DEPARTMENT DEPENDS ON THE ACCURATE MEASUREMENT OF THE WEIGHT OF THE BILLIONS OF PACKAGES WHICH PASS OVER ITS WEIGHING SCALES. IF THESE SCALES SHOULD REGISTER LESS THAN THE TRUE WEIGHT, THE LOSS IN REVENUE MAY AMOUNT TO MILLIONS OF DOLLARS ANNUALLY. OR THE SITUATION COULD BE REVERSED, IN WHICH CASE THE GENERAL PUBLIC IS THE LOSER.

"IT MAY BE ARGUED THAT THE GRADUATED INTERVAL ON A CHART COULD BE TWO OUNCES OR FOUR OUNCES WITHOUT AFFECTING SCALE ACCURACY IN ANY WAY. THIS IS SO. IT MAY ALSO BE ARGUED THAT AS THE BREAKING POINT FOR PARCEL POST RATES IS AT INTERVALS OF ONE POUND, IT WOULD BE MORE APPROPRIATE TO GRADUATE THE CHART AT INTERVALS OF ONE POUND. IF THIS WERE DONE, THE TOLERANCES WOULD BE INCREASED, BECAUSE THE NATIONAL BUREAU OF STANDARDS TOLERANCE FIGURES ARE COMPILED NOT ONLY ON THE BASIS OF TOTAL SCALE CAPACITY BUT ALSO ON THE MINIMUM GRADUATED INTERVAL; THE WIDER THE WEIGHT SPREAD OF THE GRADUATED INTERVAL, THE GREATER THE ALLOWABLE TOLERANCE IN THE LOWER RANGE OF THE SCALE. THE FACT, IN THE OPINION OF THE POST OFFICE INSPECTOR, THAT THE GRADUATED INTERVAL SHOULD BE DOUBLED FROM TWO OUNCES TO FOUR OUNCES, AUTOMATICALLY DOUBLES THE ALLOWABLE TOLERANCES IN THE LOWER RANGE OF THE SCALE, THE VERY PLACE WHERE CLOSE TOLERANCES ARE REQUIRED. THE REPORT SHOWED THE BUREAU OF STANDARDS PRONOUNCED THE LOW BIDDER'S SCALE TO BE "INCORRECT.' I SUBMIT THAT THE BEST INTERESTS OF THE POST OFFICE AND THE GOVERNMENT WOULD BE SERVED BY TAKING ACTION ON THE RESULTS OF THEIR TESTS. WHAT PURPOSE WAS SERVED BY SUBMITTING THE SCALE FOR TEST TO THE N.B.S. IF THE RESULTS WERE DISREGARDED?

"THE POST OFFICE DEPARTMENT INSPECTOR HAS STATED IN HIS REPORT THAT THE SCALES INSPECTED AT THE LOW BIDDER'S PLANT WERE TOO SENSITIVE AFTER PIVOT MODIFICATION. THERE IS A DIFFERENCE BETWEEN THE SENSITIVITY AND THE ACCURACY OF A SCALE.

"IT MAY BE SENSITIVE WITHOUT BEING ACCURATE, BUT IT CANNOT BE ACCURATE WITHOUT BEING SENSITIVE. ACCURACY THEREFORE IMPLIES SENSITIVITY. ARGUE THAT A SCALE IS TOO SENSITIVE FOR A GIVEN PURPOSE WOULD BE LOGICAL IF SIMILAR SCALES MEETING THE N.B.S. TOLERANCES WERE NOT CONSTANTLY BEING MANUFACTURED BY OTHER SCALE COMPANIES AND USED FOR PRECISELY THE SAME WEIGHING APPLICATION. TO RECOMMEND A RELAXATION OF THE TOLERANCES INDICATES EITHER AN UNAWARENESS OF THE STATE OF THE ART OR A DISINCLINATION TO ACCEPT A PROVEN ACCOMPLISHMENT.'

THE TRINER SCALE COMPANY CONCLUDED A BINDING CONTRACT WITH THE GOVERNMENT ON SEPTEMBER 24, 1959, UNDER TERMS WHICH REQUIRED THE CONTRACTOR TO FURNISH SCALES WITH CYLINDER TYPE CHARTS CONTAINING 2 OUNCE INCREMENT GRADATION UP TO 70 POUNDS. THEREAFTER, UNDER DATE OF MAY 27, 1960, THE CONTRACT TERMS WERE ALTERED TO REQUIRE 4 OUNCE INCREMENT GRADATIONS. THE SITUATION CONSIDERED IN OUR DECISION OF JULY 23, 1958 (38 COMP. GEN. 59) HAD REFERENCE TO THE QUESTION, AMONG OTHERS, OF WHEN A BIDDER MIGHT BE GIVEN THE OPPORTUNITY TO EXPLAIN OR CORRECT ANY ALLEGED DEFICIENCIES IN ITS BID AFTER OPENING FOR PURPOSES OF AWARD. IN THOSE SITUATIONS WE SAID THAT THE BID SHOULD BE REJECTED IF, AS SUBMITTED, IT FAILED IN ANY MATERIAL RESPECTS TO CONFORM TO THE TERMS AND CONDITIONS OF THE INVITATION. FOR IF THE BIDDER IS ALLOWED TO CORRECT HIS BID IN SUCH CASE IT WOULD SOON UNDERMINE THE SYSTEM OF COMPETITIVE BIDDING. HERE, WE ARE NOT CONSIDERING A SITUATION WHERE THE BIDDER WAS GRANTED THE OPPORTUNITY TO REVISE HIS BID AFTER OPENING AND PRIOR TO AWARD. RATHER, THERE IS INVOLVED THE PROPRIETY OF A CHANGE INITIATED BY THE GOVERNMENT IN THE TERMS OF AN EXISTING CONTRACT AFTER THE BID HAS BEEN ACCEPTED.

IT IS APPARENT THAT SITUATIONS WILL OFTEN ARISE SUBSEQUENT TO THE AWARD OF A GOVERNMENT CONTRACT WHERE IT IS IN THE GOVERNMENT'S INTEREST TO MAKE CHANGES OR MODIFICATIONS IN THE TERMS OF THE AGREEMENT. BROADLY SPEAKING, WITH CONSIDERATION GIVEN TO THE PUBLIC ADVERTISING STATUTES, CHANGES OR MODIFICATIONS IN EXISTING CONTRACTS LET OUT PURSUANT TO PUBLIC BIDDING SHOULD BE LIMITED IN EXTENT SO AS TO BE WITHIN THE SCOPE OF THE ORIGINAL CONTRACT. SEE 30 COMP. GEN. 34 AND DECISIONS CITED THEREIN. WHERE THE BEST INTERESTS OF THE GOVERNMENT ARE SERVED BY A CHANGE IN THE TERMS OF THE CONTRACT AND THE PARTIES AGREE TO THE CHANGE, OR THE CONTRACT MAKES PROVISION THEREOF, THERE EXISTS NORMALLY NO OBJECTION TO AN ALTERATION OF THE EXISTING CONTRACT.

HOWEVER, THE CONTRACTING PARTIES MAY NOT EMPLOY A CHANGE IN THE TERMS OF THE CONTRACT SO AS TO INTERFERE WITH OR DEFEAT THE PURPOSE OF COMPETITIVE BIDDING (19 COMP. GEN. 662, 666), AS WOULD BE THE CASE IF THE CHANGE WAS UNDERTAKEN SOLELY FOR THE PURPOSE OF ENABLING THE CONTRACTOR TO AVOID THE MORE STRINGENT AND COSTLY DEMANDS OF THE CONTRACT. IN THE PRESENT CASE, THE FACTS SHOW THAT THE CHANGE WAS ADMINISTRATIVELY CONSIDERED NECESSARY BECAUSE OF CONDITIONS DISCOVERED AFTER AWARD. THE DEPARTMENT REPORT TO US STATES IN PART AS FOLLOWS:

"* * * AN EXAMINATION OF TRINER'S INITIAL PRODUCTION RUN OF 54 SCALES SHOWED THOSE SCALES WERE IN FULL COMPLIANCE WITH THE SPECIFICATIONS. HOWEVER, DURING THAT EXAMINATION MR. C. T. STUART, EXAMINER OF EQUIPMENT, CONCLUDED THAT TO MEET THE TWO-OUNCE INCREMENT GRADATIONS REQUIRED BY PARAGRAPH 3.4.2 OF THE SPECIFICATIONS, TRINER HAD TO GRIND THE KNIFE EDGES ON THE PIVOTS TO RAZOR-SHARP EDGES, AND THOSE EDGES IN THE COURSE OF TIME, WOULD BE ROUNDED OFF, WHILE THE SCALES WERE BEING USED. THIS PROBLEM COULD BE SOLVED IF THE TWO-OUNCE INCREMENT GRADATIONS WERE CHANGED TO FOUR -OUNCE INCREMENT GRADATIONS. * * *" THE POST OFFICE DEPARTMENT ADVISES THAT TRINER SCALE DID PRODUCE SCALES IN FULL CONFORMITY WITH THE ORIGINAL SPECIFICATIONS BUT THAT THE DEPARTMENT THEN CONCLUDED THAT A CHANGE WAS NECESSARY IN THE MAKE UP OF THE PRODUCT. WE DO NOT CONSIDER THAT A CHANGE UNDERTAKEN IN THESE CIRCUMSTANCES IS IMPROPER OR VIOLATIVE OF THE PUBLIC BIDDING STATUTES.

WITH REGARD TO THE OBJECTIONS YOU RAISE CONCERNING THE WISDOM AND NECESSITY FOR THE CHANGE IN QUESTION, THIS OFFICE HAS LONG RECOGNIZED THAT THE DETERMINATION OF GOVERNMENT PROCUREMENT NEEDS AND THE DRAFTING OF SPECIFICATIONS TO SUPPLY SUCH NEEDS ARE MATTERS WHICH LIE PRIMARILY WITHIN THE PROVINCE OF THE VARIOUS PROCURING AGENCIES. IT IS THE PROVINCE OF THIS OFFICE IN SETTLING ACCOUNTS AND DETERMINING THE AVAILABILITY OF APPROPRIATIONS TO SEE THAT CONTRACTS INVOLVING THE EXPENDITURE OF PUBLIC FUNDS BE LEGALLY MADE, INCLUDING OBSERVANCE OF THE LAW RESPECTING COMPETITIVE BIDDING. 17 COMP. GEN. 554, 557. WE THEREFORE DO NOT FEEL JUSTIFIED IN SUBSTITUTING OUR JUDGMENT FOR THAT OF THE POST OFFICE DEPARTMENT WITH REGARD TO THE WISDOM OR NECESSITY FOR REVISING THE CHART INTERVAL FROM TWO TO FOUR OUNCES. IN THIS RESPECT, MR. STUART'S MEMORANDUM OF MAY 20, STATES THAT WITH A 4-OUNCE GRADUATED CHART, THESE SCALES WILL CONFORM TO THE STANDARD OF TOLERANCE BEING APPLIED IN ALL OTHER POSTAL SCALES PRESENTLY IN USE.

YOU CALL ATTENTION, ALSO, TO THE PROVISIONS OF THE SPECIFICATIONS WHICH REQUIRE THAT THE SCALE BE ADAPTED TO PERMIT SUBSTITUTION OF A NEW CHART IN THE EVENT OF POSTAL RATE CHANGES. (PARAGRAPH 3.4.2.2 OF THE SPECIFICATIONS). YOU EXPRESS INTEREST IN KNOWING IF TRINER SCALE HAS CONFORMED WITH THIS REQUIREMENT. THE ADMINISTRATIVE REPORT RECEIVED BY THIS OFFICE MAKES NO DIRECT REFERENCE TO THE CONFORMITY OF THE TRINER SCALE TO THE REQUIREMENTS OF PARAGRAPH 3.4.2.2 OF THE SPECIFICATIONS. HOWEVER, IT IS REPORTED, AS PREVIOUSLY MENTIONED, THAT TRINER'S INITIAL PRODUCTION RUN OF 54 SCALES SHOWED THOSE SCALES WERE IN FULL COMPLIANCE WITH THE SPECIFICATIONS. APPARENTLY THEREFORE, THE SCALES DO CONFORM TO THE REQUIREMENTS OF PARAGRAPH 3.4.2.2.

ON CONSIDERATION OF THE FACTS PRESENTED HERE, WE FIND NO LEGAL BASIS TO OBJECT TO THE ACTION OF THE POST OFFICE DEPARTMENT WITH RESPECT TO THE CHANGE IN CHART GRADATION TAKEN UNDER THE CONTRACT AWARDED PURSUANT TO INVITATION NO. 336. ACCORDINGLY, YOUR PROTEST IS DENIED.