B-149323, MAR. 13, 1963

B-149323, MAR. 13, 1963

TO COOPER AND MINICH, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 29, 1962, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE USE OF ALLEGED RESTRICTIVE SPECIFICATIONS BY THE POST OFFICE DEPARTMENT UNDER INVITATION FOR BIDS NO. 2219, AND BY GENERAL SERVICES ADMINISTRATION UNDER INVITATION FOR BIDS NO. FNVM-H-42664-A-6-20-62.

WITH RESPECT TO THE LATTER PROCUREMENT, THE GENERAL SERVICES ADMINISTRATION RECEIVED A REQUISITION TO PURCHASE ONE REACH TYPE FORKLIFT TRUCK IN ACCORDANCE WITH SPECIFICATION MIL-T-21643, DATED OCTOBER 2, 1958, FOR USE BY THE NORTHEAST SERVICE CENTER OF INTERNAL REVENUE SERVICE. RESPONSE TO AN INQUIRY WHETHER OTHER, AND POSSIBLY BROADER, SPECIFICATIONS MIGHT ALSO BE INCLUDED IN THE INVITATION, THE USING AGENCY ADVISED THAT THE SPECIFICATION WAS BASED UPON OPERATIONAL REQUIREMENTS DUE TO THE LIMITED OVERHEAD SPACE AND AISLE WIDTH WHERE THE EQUIPMENT WAS TO OPERATE.

AS TO THE FIRST REFERRED-TO PROCUREMENT, INVITATION FOR BIDS NO. 2219 SOUGHT PROPOSALS ON ONE TRUCK, LOW LIFT PALLET, WITHOUT SKID ADAPTER, IN ACCORDANCE WITH SPECIFICATION NO. POD-T-132/RE), ISSUED BY THE POST OFFICE DEPARTMENT. THREE BIDS WERE RECEIVED, TWO OF WHICH CONTAINED SEVERAL MATERIAL DEVIATIONS FROM THE TERMS OF THE INVITATION OR THE REQUIREMENTS OF THE SPECIFICATIONS, OR BOTH, AND THEREFORE WERE REJECTED.

IT IS YOUR CONTENTION, IN SUBSTANCE, THAT BOTH SPECIFICATIONS ARE RESTRICTIVE, BUT YOU FAIL TO STATE, WITH ONE EXCEPTION, THE BASIS FOR SUCH ALLEGATION. THE EXCEPTED INSTANCE IS SET FORTH IN YOUR TELEGRAM OF JUNE 29, 1962, AS FOLLOWS:

"THE BATTERY COMPARTMENT SHALL BE COMPLETELY INDEPENDENT OF THE FORKS AND SKID ADAPTER AND SHALL REMAIN IN A FIXED PROTECTED POSITION. ONLY ONE MANUFACTURER TO OUR KNOWLEDGE BUILDS EQUIPMENT THIS WAY. THIS SENTENCE HAS NOTHING TO DO WITH EITHER FUNCTION OR PERFORMANCE OF THE EQUIPMENT.

IN RESPONSE TO THAT CONTENTION THE POST OFFICE DEPARTMENT, BY LETTER OF NOVEMBER 9, 1962, HAS ADVISED THAT---

"ON SOME PALLET TRUCKS, THE BATTERY COMPARTMENT RESTS ON THE LIFTING PALLET TRUCKS, THE BATTERY COMPARTMENT RESTS ON THE LIFTING FORKS OR SKID ADAPTER SO THAT POWER FROM THE BATTERY IS CONSUMED IN LIFTING THE BATTERY ITSELF IN ADDITION TO THE PAY LOAD. IT IS OUR OPINION THIS ARRANGEMENT IS UNDESIRABLE IN THIS TYPE OF EQUIPMENT IN THAT IT RESULTS IN AN UNNECESSARY ADDITIONAL USE OF POWER.

"WE MAINTAIN THAT THE METHOD OF SUPPORTING THE BATTERY HAS A VITAL EFFECT UPON EFFICIENCY OF THE EQUIPMENT FOR THE REASON GIVEN IN OUR FIRST COMMENT. CLARK EQUIPMENT COMPANY, BATTLE CREEK, MICHIGAN; YALE AND TOWNE MANUFACTURING COMPANY, PHILADELPHIA, PENNSYLVANIA; LEWIS SHEPARD PRODUCTS, INCORPORATED, WATERTOWN, MASSACHUSETTS AND THE RAYMOND CORPORATION, GREENE, NEW YORK, MANUFACTURE PALLET TRUCKS WITH THE BATTERY COMPARTMENT A FIXED INTEGRAL PART OF THE FRAME, RATHER THAN RIDING ON THE LOAD-LIFTING FORKS. ACCORDINGLY, WE BELIEVE MR. MINICH'S ALLEGATION THAT THE SPECIFICATION IS RESTRICTIVE IS UNFOUNDED.'

IN VIEW OF THE APPARENT LOGIC OF THE ADMINISTRATIVE FINDINGS AND CONCLUSION RELATIVE TO THE LOCATION OF THE BATTERY COMPARTMENT AND THE ASSERTION THAT SEVERAL OTHER FIRMS IN THE INDUSTRY INCORPORATE THE BATTERY COMPARTMENT AS PART OF THE FRAME, RATHER THAN AS PART OF THE LIFT MECHANISM, WE SEE NO REASON, ON THE BASIS OF THE PRESENT RECORD, TO QUESTION THE SAID REPORT.

IN YOUR LETTER OF JUNE 26, 1962, YOU STATE THAT--- "WE HAVE CONSISTENTLY ASKED THAT THESE SPECIFICATIONS BE REVIEWED AND OPENED UP FOR INDUSTRY TO BID; AND WE FEEL THAT THIS INVITATION IS CLEAR EVIDENCE THAT THE SPECIFICATION IS RESTRICTIVE.' FURTHER, IN LETTER OF SEPTEMBER 21, 1962, YOU CONTEND THAT--- "IT IS OUR BELIEF, HOWEVER, THAT IT IS NOT INCUMBENT UPON US TO MAKE FOR YOU A COMPLETE ENGINEERING STUDY OR ANALYSIS OF ALL COMPETITIVE EQUIPMENT TO SUBSTANTIATE OUR POSITION RELATIVE TO THIS SPECIFICATION.'

THE ONLY IMPLICATION THAT CAN BE DEDUCED FROM THE QUOTED LANGUAGE OF YOUR LETTERS IS THAT, IN YOUR OPINION, AN ENGINEERING STUDY SHOULD BE MADE BY THE DEPARTMENT WITH A VIEW TO AMENDING THE SPECIFICATIONS ON THE BASIS OF YOUR UNSUPPORTED ALLEGATIONS. WE AGREE WITH THE POSITION TAKEN BY THE ADMINISTRATIVE OFFICE THAT IN THE ABSENCE OF SPECIFIC CHARGES AS TO WHEREIN THEY ARE RESTRICTIVE A REVIEW OF THE SPECIFICATIONS IS UNWARRANTED.

ACCORDINGLY, ON THE PRESENT RECORD YOUR PROTEST, AND REQUEST THAT THE SUBJECT SPECIFICATIONS BE REVISED, MUST BE REJECTED.