B-145639, MAY 3, 1961

B-145639, MAY 3, 1961

TO THE SECRETARY OF THE ARMY:

BY LETTER DATED APRIL 12, 1961, WITH ENCLOSURES, THE CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, FORWARDED FOR OUR CONSIDERATION THE PROTEST OF AMERICAN TYPE FOUNDERS CO., INC., AGAINST THE AWARD MADE UNDER INVITATION FOR BIDS NO. QM-33 031-61-212, ISSUED ON OCTOBER 13, 1960, BY THE QUARTERMASTER PURCHASING AGENCY FOR ONE PAPER CUTTING MACHINE.

THE INVITATION, AS AMENDED, REQUESTED BIDS FOR ONE "CUTTER, PAPER, GUILLOTINE, MOTOR DRIVEN, NOT LESS THAN 51 INCH, IN ACCORDANCE WITH PURCHASE DESCRIPTION CONTAINED HEREIN.' ALL BIDDERS WERE REQUIRED TO SUBMIT AN EXCHANGE ALLOWANCE ON AN EXISTING PAPER CUTTER AS TRADEIN ALLOWANCE ON THE PAPER CUTTER DESIRED TO BE FURNISHED.

FIVE BIDS WERE OPENED ON NOVEMBER 14, 1960, AND ARE ABSTRACTED AS FOLLOWS:

TABLE

BIDDER ITEM BID EXCHANGE ALLOWANCE AMERICAN TYPE FOUNDERS,

CO., INC. $11,590.00 $1,600.00 ROYAL ZENITH CORP. 11,995.00 500.00 GANE BROS. AND CO. OF

NEW YORK, INC. 12,400.00 2,200.00 THE LAWSON CO. 16,049.20 3,099.20 HARRIS SEYBOLD CO. 16,925.00 1,500.00

ATTACHED TO, AND MADE A PART OF, THE PROTESTANT'S BID WAS A LETTER WHEREIN IT PROPOSED TO FURNISH A PAPER CUTTER WITH A ONE-END PULL BAR SYSTEM IN LIEU OF A TWO-END PULL BAR SYSTEM AS REQUIRED BY THE PURCHASE DESCRIPTION. THE PROTESTANT ALSO STATED IN THAT LETTER THAT THE PAPER CUTTER IT PROPOSED TO FURNISH DID NOT FEATURE A HYDRAULIC FOOT TREADLE TO BRING DOWN THE CLAMP FOR GAUGING THE CUT AND APPLYING FULL CLAMP PRESSURE AS PRESET BY THE OPERATOR, AS REQUIRED BY THE PURCHASE DESCRIPTION.

ALL BIDS WERE EVALUATED BY THE TECHNICAL ADVISORY BRANCH WITH THE RESULT THAT IT WAS DETERMINED THAT THE PROTESTANT'S BID, AS WELL AS THOSE RECEIVED FROM THE ROYAL ZENITH CORPORATION AND FROM GANE BROTHERS AND CO., WERE NONRESPONSIVE TO THE TECHNICAL REQUIREMENTS OF THE PURCHASE DESCRIPTION. THE BIDS SUBMITTED BY THE LAWSON COMPANY AND THE HARRIS SEYBOLD COMPANY, WHICH WERE THE ONLY BIDS OFFERING PAPER CUTTERS OF DOMESTIC MANUFACTURE, WERE DETERMINED TO BE RESPONSIVE TO THE INVITATION. THE LEGAL OFFICE CONCURRED IN SUCH CONCLUSIONS AND INDICATED THAT AWARD SHOULD BE MADE TO THE LAWSON COMPANY AS THE LOWEST RESPONSIVE BIDDER IF THE USING AGENCY--- THE U.S. MILITARY ACADEMY--- COULD SUPPORT THE REQUIREMENT FOR A TWO-END PULL BAR. OTHERWISE, IT WAS THE OPINION OF THE LEGAL OFFICE THAT IT WOULD BE NECESSARY TO READVERTISE UNDER A REVISED PURCHASE DESCRIPTION. THEREFORE, THE USING AGENCY WAS CONTACTED TO DETERMINE WHETHER AN ADEQUATE JUSTIFICATION EXISTED TO SUPPORT AN AWARD TO THE LOWEST RESPONSIVE BIDDER. SUCH ACTION WAS DEEMED NECESSARY IN VIEW OF THE PROVISIONS OF SECTION 1-1206 (A), ASPR.

"/A) A PURCHASE DESCRIPTION MAY BE USED IN LIEU OF A SPECIFICATION WHEN AUTHORIZED BY 1-1202 (B) AND, SUBJECT TO THE RESTRICTION ON REPETITIVE USE IN 1-1202 (B) (VII), WHERE NO APPLICABLE SPECIFICATION EXISTS. A PURCHASE DESCRIPTION SHOULD SET FORTH THE ESSENTIAL CHARACTERISTICS AND FUNCTIONS OF THE ITEMS OR MATERIALS REQUIRED. PURCHASE DESCRIPTIONS SHALL NOT BE WRITTEN SO AS TO SPECIFY A PRODUCT, OR A PARTICULAR FEATURE OF A PRODUCT, PECULIAR TO ONE MANUFACTURER AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT MANUFACTURED BY ANOTHER COMPANY, UNLESS IT IS DETERMINED THAT THE PARTICULAR FEATURE IS ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THE PARTICULAR FEATURE WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM. PURCHASE DESCRIPTIONS OF SERVICES TO BE PROCURED SHOULD OUTLINE TO THE GREATEST DEGREE PRACTICABLE THE SPECIFIC SERVICES THE CONTRACTOR IS EXPECTED TO PERFORM.'

THE USING AGENCY, AFTER REVIEWING ALL BIDS IN THE LIGHT OF THE PURCHASE DESCRIPTION, ADVISED THE PROCUREMENT AGENCY THAT THE CUTTING MACHINE OFFERED BY THE LAWSON COMPANY MET THEIR REQUIREMENTS; THAT THE REQUIREMENTS SET FORTH IN THE PURCHASE DESCRIPTION WERE FIRM, AND THAT THE TWO-END PULL BAR FEATURE AND INSTANTANEOUS CLAMPING PRESSURE AS PRESET BY THE OPERATOR AND ACTUATED BY A HYDRAULIC FOOT TREADLE WERE REQUIRED FOR EFFICIENT OPERATION. THEREFORE, ON DECEMBER 13, 1960, CONTRACT NO. O.I. 5007-61Q WAS AWARDED TO THE LAWSON COMPANY AT ITS BID PRICE, LESS EXCHANGE ALLOWANCE.

SUBSEQUENTLY, AMERICAN TYPE FOUNDERS CO., INC., PROTESTED AGAINST THE AWARD ON THE BASIS THAT THE REQUIREMENT IN THE PURCHASE DESCRIPTION FOR A TWO-END PULL BAR AND A HYDRAULIC FOOT TREADLE TO BRING DOWN THE CLAMP FOR GAUGING THE CUT AND TO APPLY FULL CLAMP PRESSURE AS PRESET BY THE OPERATOR WAS NOT ESSENTIAL TO THE MINIMUM NEEDS OF THE GOVERNMENT. THE PROTEST, HOWEVER, WAS ADMINISTRATIVELY DENIED.

WE FIND NO MERIT IN THE PROTESTANT'S CONTENTIONS. ON THE CONTRARY, THE RECORD REASONABLY ESTABLISHES THAT THE PURCHASE DESCRIPTION, IN COMPLIANCE WITH SECTION 1-1206 (A), ASPR, WAS DELIBERATELY DRAFTED TO MEET THE BONA FIDE MINIMUM NEEDS OF THE USING AGENCY BASED ON THEIR PRIOR EXPERIENCE AND THE PURPOSES SOUGHT TO BE ACCOMPLISHED BY A PAPER CUTTER MEETING THE REQUIREMENTS OF THE PURCHASE DESCRIPTION. SEE 17 COMP. GEN. 554. AS WE HAVE HELD PREVIOUSLY, WHILE THE PROCUREMENT STATUTE CONTEMPLATES FAIR AND UNRESTRICTED COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY NOT BE ABLE TO MEET THE MINIMUM REQUIREMENTS OF AN INVITATION DOES NOT WARRANT A CONCLUSION THAT THE PURCHASE DESCRIPTION IS UNDULY RESTRICTIVE. 30 COMP. GEN. 368. MOREOVER, A PROCUREMENT AGENCY CANNOT BE REQUIRED TO PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN A POSITION OF ALLOWING BIDDERS TO DICTATE PURCHASE DESCRIPTIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE PROCUREMENT AGENCY, MEET THE USING AGENCY'S LEGITIMATE NEEDS. 36 COMP. GEN. 251.

ACCORDINGLY, AND IN THE ABSENCE OF CONVINCING EVIDENCE THAT THE PURCHASE DESCRIPTION DID NOT IN FACT REPRESENT THE BONA FIDE NEEDS OF THE U.S. MILITARY ACADEMY, THE DENIAL OF THE PROTEST WAS PROPER.