B-152422, DECEMBER 5, 1963, 43 COMP. GEN. 481

B-152422, DECEMBER 5, 1963, 43 COMP. GEN. 481

CONTRACTS - SPECIFICATIONS - FEDERAL SPECIFICATIONS - FAILURE TO USE WHEN AN AWARD UNDER DEPARTMENTAL SPECIFICATIONS FAVORS THE SECOND LOW BIDDER, AND THE USE OF THE AVAILABLE INTERIM FEDERAL SPECIFICATION, PROMULGATED UNDER 40 U.S.C. 487 TO ELIMINATE UNNECESSARY TECHNICAL REQUIREMENTS PECULIAR TO THE PRODUCT, ALTHOUGH OPTIONAL, WOULD HAVE MET THE GOVERNMENT'S NEEDS AND HAVE PRESERVED THE COMPETITIVE STATUS OF THE REJECTED LOW BID MEETING MOST OF THE DEPARTMENTAL SPECIFICATIONS, THE FULL AND FREE COMPETITION CONTEMPLATED UNDER 41 U.S.C. 253 (A) WAS NOT PERMITTED; HOWEVER, IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DISTURB THE AWARD, BUT FUTURE PROCUREMENTS OF THE ITEM SHOULD BE MADE PURSUANT TO THE INTERIM FEDERAL SPECIFICATION.

TO THE POSTMASTER GENERAL, DECEMBER 5, 1963:

BY LETTER DATED OCTOBER 22, 1963, WITH ENCLOSURES, THE ACTING ASSISTANT POSTMASTER GENERAL FURNISHED THE REPORT REQUESTED BY OUR OFFICE ON THE PROTEST OF THE WAYNE MANUFACTURING CO. AGAINST THE USE OF RESTRICTIVE SPECIFICATIONS IN INVITATION FOR BIDS NO. 2502.

THE INVITATION DATED MAY 13, 1963, REQUESTED BIDS, TO BE OPENED ON JUNE 11, 1963, FOR 27 ,SWEEPERS, INDUSTRIAL, RIDER-TYPE, CLASS 1, GASOLINE ENGINE POWERED, TO BE CONSTRUCTED IN ACCORDANCE WITH POST OFFICE DEPARTMENT SPECIFICATION POD-S-37D (RE), DATED JANUARY 17, 1963 * * " PAGES 5 AND 6 OF THE INVITATION PROVIDED, IN PART:

BID DATA: EACH BIDDER IS REQUIRED TO SUBMIT WITH HIS BID A POSITIVE STATEMENT AS TO WHETHER OR NOT THE ITEM OFFERED CONFORMS TO THE TERMS OF THIS SPECIFICATION. WHERE THE BIDDER'S PRODUCT DIFFERS FROM THE SPECIFIC REQUIREMENTS, EACH POINT OF DIFFERENCE SHOULD BE CLEARLY DESCRIBED. ADDITION, EACH BIDDER SHALL FURNISH COMPLETE DESCRIPTIVE LITERATURE, OUTLINE DRAWINGS OR PHOTOGRAPHS, AND TECHNICAL DATA COVERING THE EQUIPMENT HE PROPOSES TO FURNISH, IDENTIFYING THE EQUIPMENT BY NAME OF THE MANUFACTURER AND MODEL NUMBER. LACK OF SPECIFIC AND COMPLETE INFORMATION WILL BE SUFFICIENT CAUSE FOR REJECTION OF BIDS. THIS REQUIREMENT IS SET FORTH TO FACILITATE THE REVIEW OF BIDS AND IS NOT TO BE CONSTRUED BY THE BIDDER AS WAIVING ANY OF THE REQUIREMENTS OF THE SPECIFICATION.

REQUIREMENTS FOR DESCRIPTIVE LITERATURE--- DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCT THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, MATERIALS AND COMPONENTS.

FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID.

TWO BIDS WERE RECEIVED AND OPENED ON JUNE 11, 1963. THE G. H. TENNANT COMPANY BID $45,172.47 FOR 17 SWEEPERS F.O.B. DESTINATION AND $25,440 FOR 10 SWEEPERS F.O.B. ORIGIN, OR A TOTAL BID OF $70,612.47. THE WAYNE MANUFACTURING CO. BID $42,126 FOR 17 SWEEPERS F.O.B. DESTINATION AND $23,540 FOR 10 SWEEPERS F.O.B. ORIGIN, OR A TOTAL BID OF $65,666. HOWEVER, THE LOW BID OF WAYNE WAS REJECTED AND AWARD WAS MADE TO TENNANT ON AUGUST 30, 1963. THE REJECTION OF THE WAYNE BID WAS BASED ON AN EVALUATION OF ITS DESCRIPTIVE LITERATURE WHICH INDICATED THAT THE WAYNE SWEEPER PROPOSED TO BE FURNISHED DID NOT COMPLY WITH THE DEPARTMENTAL SPECIFICATION. WAYNE OFFERED ITS MODEL 1244 POWER SWEEPER WHICH, AS STATED IN A LETTER ACCOMPANYING ITS BID AND AS SHOWN BY ITS BID DATA, MET MOST OF THE REQUIREMENTS OF SPECIFICATION POD-S 37D/RE). PREVIOUS TO THE SUBMISSION OF ITS BID, WAYNE PROTESTED AGAINST THE RESTRICTIVE CHARACTER OF THIS SPECIFICATION AND ADVISED THAT ONLY ONE MANUFACTURER, TENNANT, COULD MEET ALL THE REQUIREMENTS OF THE SPECIFICATION. SPECIFICALLY, WAYNE ADVISED IN A LETTER DATED MAY 24, 1963, THAT THE SPECIFICATION WAS RESTRICTION IN THE FOLLOWING RESPECTS:

CHART

SPECIFICATION WAYNE MODEL 1244 CAM

AND LEVER STEERING AUTOMOTIVE-TYPE PINION AND

SECTOR GEAR STEERING V-BELTS OR "FLIMSY" STEEL V-BELT TRACTION DRIVE CHAINS UNACCEPTABLE FOR PROPULSION STEEL FRAME OF NOT LESS THAN FRAME OF 7 - AND 10-GAGE STEEL 3/16-INCH THICKNESS ENGINE--- TWO CYLINDER, 18 ENGINE- -- TWO CYLINDER, 16.5 HORSEPOWER HORSEPOWER MAIN BRUSH--- 42-INCH, 14-INCH MAIN BRUSH--- 44-INCH 24-INCH DIAMETER DIAMETER

TENNANT OFFERED ITS MODEL 85 SWEEPER WHICH HAS THE FOLLOWING CHARACTERISTICS:

CHART

STEEL FRAME--- 3/16-INCH THICKNESS

ENGINE --- 18 HORSEPOWER, TWO CYLINDER

DRIVEX --- HYDRAULIC TRACTION DRIVE

STEERING --- CAM AND LEVER

MAIN BRUSH --- 42-INCH, 14-INCH DIAMETER

THE LETTER OF OCTOBER 22, TRANSMITTING THE ADMINISTRATIVE REPORT, STATES THAT THE DEPARTMENTAL SPECIFICATION REFLECTED THE ACTUAL REQUIREMENTS OF THE POST OFFICE TO MEET THE CONDITIONS UNDER WHICH THEY WILL BE USED, AND THAT WAYNE'S CONTENTION THAT THE SPECIFICATION WAS CHANGED TO MEET THE CURRENT MODELS OF ONE MANUFACTURER IS IN ERROR. IT IS FURTHER ADVISED THAT INDUSTRY WIDE COMMENTS ON THE SPECIFICATION WERE SOLICITED AND CONSIDERED FOR THE PURPOSE OF PROVIDING A SPECIFICATION WHICH WOULD NOT BE RESTRICTIVE BUT WHICH WOULD MEET THE OVER-ALL MINIMUM REQUIREMENTS OF POSTAL FACILITIES.

INTERIM FEDERAL SPECIFICATION 00-S-00870A/GSA-FSS), AS REVISED JULY 1, 1957, WHICH IS FOR OPTIONAL USE BY ALL AGENCIES (SEE FPR 1-1.305 4), COVERS SELF-PROPELLED, ROTARY SWEEPERS HAVING POWER-DRIVEN BRUSHES FOR CLEANING WAREHOUSE AISLES, SHOP FLOORS, SIDEWALKS, AND SIMILAR SURFACES. THIS INTERIM SPECIFICATION CLASSIFIES ROTARY SWEEPERS INTO TYPES AND SIZES. TYPE I COVERS GASOLINE-ENGINE DRIVEN SWEEPERS OF THE RIDER TYPE, AND SIZE 42 OF THAT TYPE COVERS A SWEEPER HAVING A MAIN BRUSH SWEEPING SWATH OF 42 INCHES MINIMUM. THE DETAILS OF THIS INTERIM SPECIFICATION, WHICH ARE PERTINENT HERE, ARE AS FOLLOWS:

CHART

STEERING --- STEERING MECHANISM SHALL BE STURDY AND OF A

DESIGN TO ABSORB ROAD AND BRAKE SHOCK (SEC.

3.1.16).

TRACTION DRIVE--- CHAIN AND SPROCKET OR OTHER TYPE OF DRIVE

APPROVED BY THE PROCURING AGENCY (SEC. 3.1.10).

FRAME --- ONE-PIECE METAL CASTING OR AN ALL-WELDED FRAME

OF STRUCTURAL SHAPE. FRAME SHALL BE OF

ADEQUATE STRENGTH AND RIGIDITY TO SUPPORT ALL

SWEEPER COMPONENTS (SEC. 3.1.7).

ENGINE --- SIZE 42 SWEEPER SHALL BE POWERED BY ENGINE OF

NOT LESS THAN 8 HORSEPOWER (LARGER SIZE 48

SWEEPER REQUIRES ENGINE OF NOT LESS THAN 14

HORSEPOWER) SECS. 3.2.4 AND 3.2.5.

MAIN BRUSH --- 42-INCH MINIMUM SWEEPING SWATH AND OF NOT LESS

THAN 14 INCHES IN DIAMETER (SECS. 3.1.12 AND

3.2.4).

WHILE THE USE OF THIS INTERIM SPECIFICATION BY THE POST OFFICE IS OPTIONAL, ITS USE IN THE INSTANT PROCUREMENT WOULD HAVE PRESERVED THE COMPETITIVE STATUS OF THE WAYNE BID SINCE ITS SWEEPER WOULD HAVE MEET ALL THE ESSENTIAL REQUIREMENTS OF THE INTERIM SPECIFICATION. IT IS LIKEWISE APPARENT THAT THE MODEL OFFERED BY TENNANT WOULD HAVE SUBSTANTIALLY MET THE REQUIREMENTS OF THE INTERIM SPECIFICATION. HOWEVER, THE DEPARTMENTAL SPECIFICATION, IN THE PERTINENT DETAILS LISTED ABOVE, DEFINITELY FAVORED THE TENNANT MODEL ESPECIALLY AS TO ENGINE HORSEPOWER, THE FRAME THICKNESS, STEERING, AND TRACTION DRIVE. THE CLOSE SIMILARITY OF THE PERTINENT DETAILS OF THE DEPARTMENTAL SPECIFICATION TO THE BID DATA FURNISHED BY TENNANT WOULD INDICATE THAT THE DEPARTMENTAL SPECIFICATION FAVORED THE STANDARD COMMERCIAL TENNANT MODEL OVER THAT OF WAYNE. WHILE IT IS REPORTED THAT POWER SWEEPERS COMPLYING WITH THE DEPARTMENTAL SPECIFICATION MEET THE PARTICULAR NEEDS OF THE POST OFFICE, WE BELIEVE THAT THE GOVERNMENT'S NEEDS GENERALLY WOULD BE MET IF THE INTERIM SPECIFICATION WERE UTILIZED IN THE PROCUREMENT OF THIS TYPE OF POWER SWEEPER.

IT IS POINTED OUT IN THE OCTOBER 22 REPORT THAT WAYNE HAS AVAILABLE A STANDARD PRODUCT--- MODEL 1254--- WHICH APPEARS SUBSTANTIALLY IN ACCORDANCE WITH THE DEPARTMENTAL SPECIFICATION AS FAR AS ENGINE AND "CLASS" REQUIREMENTS ARE CONCERNED. HOWEVER, WAYNE'S MODEL 1254 COULD NOT HAVE COMPLIED WITH THIS SPECIFICATION SINCE THIS MODEL USES THE SAME STEERING SYSTEM, TRACTION DRIVE, AND FRAME CONSTRUCTION AS THE MODEL 1244 OFFERED BY WAYNE UNDER THE INVITATION.

WE NOTE THAT OTHER AGENCIES USE VARIOUS MODELS OF POWER SWEEPERS PRODUCED BY WAYNE AND TENNANT. FROM A REVIEW OF THE RECORD BEFORE US, WE ARE NOT CONVINCED THAT THE TENNANT POWER SWEEPER, OR ONE OF IDENTICAL CHARACTERISTICS, IS THE ONLY PRODUCT WHICH WILL MEET THE NEEDS OF THE POST OFFICE.

ACCORDINGLY, IT IS OUR VIEW THAT THE DEPARTMENTAL SPECIFICATION DID NOT "PERMIT SUCH FULL AND FREE COMPETITION AS IS * * * NECESSARY TO MEET THE REQUIREMENTS * * *" OF THE POST OFFICE WITHIN THE PURVIEW OF 41 U.S.C. 253 (A). CONSISTENT WITH SUCH PROVISION OF LAW AND 40 U.S.C. 487, THE GENERAL SERVICES ADMINISTRATION HAS FROM TIME TO TIME PROMULGATED FORMAL SPECIFICATIONS OF BOTH A FINAL AND TEMPORARY NATURE WITH A VIEW TOWARD ELIMINATING ANY UNNECESSARY TECHNICAL REQUIREMENT FOR EQUIPMENT OF A TYPE MANUFACTURED BY VARIOUS CONCERNS BUT WHICH MAY DIFFER IN CERTAIN MATERIAL RESPECTS. ALSO SECTION 1-1.307-1 (B), FPR, PROVIDES:

(B) PURCHASE DESCRIPTIONS USED IN COMPETITIVE PROCUREMENTS SHALL NOT SPECIFY A PRODUCT HAVING FEATURES WHICH ARE PECULIAR TO THE PRODUCT OF ONE MANUFACTURER, PRODUCER, OR DISTRIBUTOR, AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT OF ANOTHER COMPANY, UNLESS IT HAS BEEN DETERMINED THAT THOSE PARTICULAR FEATURES ARE ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THOSE FEATURES WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM.

HOWEVER, SINCE WE NOTE FROM THE RECORD THAT TENNANT HAS PERFORMED OR SHORTLY WILL PERFORM ITS CONTRACT, IT WOULD NOT BE IN THE INTERESTS OF THE GOVERNMENT TO DISTURB THE AWARD. WE RECOMMENDED THAT FUTURE PROCUREMENTS OF ROTARY SWEEPERS BE MADE PURSUANT TO INTERIM FEDERAL SPECIFICATION 00-S- 00870A/GSA-FSS). SEE B-122751 DATED APRIL 26, 1955, TO YOUR PREDECESSOR, AND 32 COMP. GEN. 384, BOTH OF WHICH INVOLVE PROCUREMENTS BY YOUR DEPARTMENT FOR POWER SWEEPERS.