B-154573, JUL. 16, 1964

B-154573, JUL. 16, 1964

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO A LETTER DATED JUNE 26, 1964, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DECISION IN REGARD TO A PROTEST BY THE PENNSYLVANIA SCALE COMPANY AGAINST THE POSSIBLE REJECTION OF ITS BID UNDER INVITATION FOR BIDS NO. ASCS-28-64DC.

ON APRIL 23, 1964, THE AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE (ASCS) ISSUED AN INVITATION FOR BIDS--- TO BE OPENED MAY 18, 1964- -- FOR FURNISHING TWO ITEMS OF EQUIPMENT. THE ITEM INVOLVED HERE (NO. 2) CALLED FOR FURNISHING 197 BALANCES FOR WEIGHING COTTON TEST SPECIMENS, IN ACCORDANCE WITH CERTAIN SPECIFICATIONS. THE GENERAL DESCRIPTION OF SAID BALANCES WAS AS FOLLOWS:

"BALANCE FOR WEIGHING 50 GRAIN COTTON TEST SPECIMENS WITHIN A TOLERANCE OF PLUS OR MINUS 0.1 GRAIN WHERE CURRENTS AND COTTON LINT ARE PREVALENT IN THE SURROUNDING AIR. INSTRUMENT FURNISHED TO BE EQUAL TO THE "FIBERWEIGH," MCI 401-1 SCALE MANUFACTURED BY MOTION CONTROL INC., DALLAS, TEXAS.'

WITH REGARD TO A BIDDER FURNISHING AN "OR EQUAL" PRODUCT WHERE A BRAND NAME WAS MENTIONED IN THE INVITATION, PAGE 6 OF SUPPLEMENTAL PROVISIONS (SUPPLY CONTRACT) ENTITLED "GOVERNMENT SPECIFIED BRAND NAMES" PROVIDES AS FOLLOWS:

"GOVERNMENT SPECIFIED BRAND NAMES

"/AS USED IN THIS CLAUSE, THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF PRODUCTS BY MAKE AND MODEL.)

"/A) IF ITEMS CALLED FOR BY THE INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A ,BRAND NAME OR EQUAL" DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS.

"/B)UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN "EQUAL" PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS.

"/C) (1) IF THE BIDDER PROPOSES TO FURNISH AN "EQUAL" PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO BIDDERS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE INFORMATION FURNISHED MAY INCLUDE SPECIFIC REFERENCES TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY.

"/2) IF THE BIDDER PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS, HE SHALL (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.

"/3) MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS WILL NOT BE CONSIDERED.'

ADDENDUM NO. 1 TO THE INVITATION RESERVED THE RIGHT TO THE GOVERNMENT TO REQUIRE THE OTHERWISE SUCCESSFUL BIDDER TO FURNISH EQUIPMENT FOR TESTING PRIOR TO AWARD. SUCH EQUIPMENT WAS TO BE MADE AVAILABLE AT NO ADDITIONAL CHARGE TO THE GOVERNMENT AT THE OFFICE OF THE COTTON DIVISION, AGRICULTURAL MARKETING SERVICE (AMS), WITHIN 10 DAYS AFTER REQUEST.

FOUR BIDS WERE RECEIVED. THE BID OF THE PENNSYLVANIA SCALE COMPANY WAS THE LOWEST RECEIVED AND IT WAS REQUESTED TO AND DID FURNISH A SCALE FOR TESTING BY THE AMS COTTON DIVISION LABORATORY IN MEMPHIS, TENNESSEE.

IT IS STATED IN THE REQUEST FOR DECISION THAT COMPARATIVE TESTS WERE MADE UNDER REGULAR LABORATORY CONDITIONS BETWEEN MAY 27 AND JUNE 2,1964, BY LABORATORY PERSONNEL USING THE SCALE SUPPLIED BY THE BIDDER AND A FIBERWEIGH MODEL MCI 401-1 OWNED BY THE GOVERNMENT. ALSO, IT IS STATED THAT THREE EMPLOYEES WHO WERE FULLY TRAINED AND FAMILIAR WITH BOTH SCALES MADE COMPARATIVE TESTS ON TEST SPECIMENS EXTRACTED FROM OVER 4,300 SAMPLES ON A PRODUCTION LINE SETUP OVER A PERIOD OF APPROXIMATELY ONE WEEK. CONDUCTING THIS TEST, A NORMAL WORK PATTERN COMPARABLE TO THAT ENCOUNTERED DURING THE "CLASSING OFFICE PEAK PRODUCTION PERIOD" WAS MAINTAINED. THE THREE OPERATORS WERE ROTATED ON SAMPLE HANDLING, SCALES AND MIKE INSTRUMENT.

IT IS REPORTED THAT THE TESTS REVEALED SEVERAL DISADVANTAGES IN THE USE OF THE PENNSYLVANIA SCALE BUT THE MAIN DISADVANTAGE WAS THE FACT THAT IT HAD SUBSTANTIALLY LESS SENSITIVITY AND A LOWER DEGREE OF ACCURACY THAN DID THE FIBERWEIGH SCALE. THESE FACTORS ARE CONSIDERED VITAL IN THE CAPABILITY OF A BALANCE TO PERFORM THE REQUIRED WEIGHING IN ORDER TO OBTAIN A TRUE MICRONAIRE VALUE, WHICH IN TURN AFFECTS THE LOAN PRICE OF COTTON.

ON THE BASIS OF THE TEST RESULTS, THE AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE AND THE AGRICULTURAL MARKETING SERVICE MADE A JOINT DETERMINATION THAT THE SCALE OFFERED BY PENNSYLVANIA SCALE COMPANY WAS NOT EQUAL TO THE FIBERWEIGH MODEL MCI 401-1 REFERENCED IN THE INVITATION AND THAT IT WAS CONSEQUENTLY UNACCEPTABLE. REPRESENTATIVES OF THE LOW BIDDER (PENNSYLVANIA) WERE ADVISED ON JUNE 10, 1964, AS TO WHY ITS SCALE WAS NOT EQUAL TO THE FIBERWEIGH SCALE AND WHAT ITEMS WERE USED TO DETERMINE ACCURACY.

IN THE LETTER OF JUNE 26, 1964, A SUMMARY HAS BEEN MADE OF THE CONTENTIONS RAISED BY PENNSYLVANIA IN ITS LETTER OF PROTEST DATED JUNE 12, 1964, AND OF THE GOVERNMENT'S COMMENT ON EACH POINT. THE SUMMARY IS AS FOLLOWS:

CHART

"SUMMARY OF BIDDER'S LETTER GOVERNMENT COMMENT "1. THE SAMPLE SCALE WHEN DELIVERED THE SCALE HAD A STANDARD

TO THE GOVERNMENT MET 0.5 GRAIN DEVIATION OF PLUS OR MINUS .77

PLUS OR MINUS TOLERANCE. GRAIN AS COMPARED TO PLUS OR

MINUS .46 GRAIN FOR FIBERWEIGH

ON 180 CHECK TEST SAMPLES TAKEN

FROM EACH SCALE. "2. MAGNETIC DAMPENING DEVICE

OPERATION OF MAGNETIC DAMPENER

STABILIZED WELL WITHIN 2 SECONDS IS SATISFACTORY.

SPECIFIED."3. OBJECTION MADE TO USE OF COTTON REGARDING USE OF PLUGS---

PLUGS FOR TESTING POINTING OUT SERVICE REQUIREMENTS UNDER

THAT NATIONAL BUREAU OF STANDARDS INVITATION TO BID AND ADDENDUM

VERIFIED THAT CHANGE IN MASS OF NUMBER 1 SPECIFY BALANCE FOR

PLUG CAN BE AFFECTED BY (A) WEIGHING COTTON TEST SPECIMENS.

RELATIVE HUMIDITY, (B) TEMPERATURE BOTH FIBERWEIGH SCALE AND

(C) EDDY OF AIR CURRENT, (D) PENNSYLVANIA SCALE WERE TESTED

ATMOSPHERIC PRESSURE AS IT AFFECTS IN SAME LABORATORY BY SAME

AIR BUOYANCY, AND (E) LOSS OF PERSONNEL UNDER SAME CONDITIONS

LINT THRU HANDLING. AND DURING SAME TEST PERIOD AND

PENNSYLVANIA SCALE WAS FOUND TO

BE LESS ACCURATE THAN THE

FIBERWEIGH. "4. ASKS FOR USE OF WEIGHTS OF AND INVITATION TO BID SPECIFIED

TESTING BY NATIONAL BUREAU OF THAT SCALES WOULD BE DELIVERED

STANDARDS. TO THE COTTON DIVISION FOR

TESTING. COTTON DIVISION'S TEST

WAS OBJECTIVE AND UNBIASED.

OTHER TEST IS REQUIRED. "5. CONSIDERS AGRICULTURE PERSONNEL COTTON DIVISION PERSONNEL ARE

BIASED IN FAVOR OF FIBERWEIGH. INTERESTED ONLY IN OBTAINING THE

BEST SCALE POSSIBLE FOR OUR

SPECIFIC JOB. "6. CONTENDS THAT AGRICULTURE THE PENNSYLVANIA SCALE WAS

REJECTED PENNSYLVANIA SCALE REJECTED PRIMARILY BECAUSE IT

BECAUSE IT HAS SIMILAR APPEARANCE IS NOT AS ACCURATE AS THE

TO SHADOGRAPH SCALE. FIBERWEIGH IN WEIGHING COTTON

SPECIMENS FOR AIR FLOW TESTS. "7. POINTS OUT THAT IF WEIGHTS OF IN TWO REPLICATIONS OUT OF

KNOWN VALUES ARE USED AND TWELVE THE LABORATORY FOUND THAT

CALIBRATION KNOB ACCIDENTALLY THE CALIBRATION KNOB ON THE

MOVED IT WOULD BE IMMEDIATELY PENNSYLVANIA SCALE HAD BEEN

APPARENT WHEREAS WITH COTTON ACCIDENTALLY MOVED. THE RESULTS

PLUGS SUCH A HAPPENING COULD NOT OF THESE TWO REPLICATIONS WERE

BE DISCERNIBLE AND MIGHT, AFTER NOT USED IN THE ANALYSIS OF THE

SEVERAL 100 WEIGHINGS BE COUNTED PENNSYLVANIA SCALE. IF THIS HAD

AS INACCURACY OF SCALE. HAPPENED IN THE SERVICE TESTING,

SAMPLES WOULD HAVE TO BE

LOCATED OR NEW SAMPLES DRAWN AND

NEW PLUGS WEIGHED AND RETESTED

TO PREVENT INACCURATE RESULTS

BEING REPORTED TO USERS OF THE

SERVICE.

"8. OBJECTS TO STATEMENT IN THE OPERATORS USED BY COTTON

GOVERNMENT LETTER OF JUNE 10, DIVISION WERE FULLY TRAINED IN

1964, THAT GOVERNMENT EMPLOYEES MAKING THESE TESTS. OPERATORS

FULLY TRAINED SINCE THE WERE GIVEN TRAINING ON BOTH THE

PENNSYLVANIA SCALE WAS NEVER PENNSYLVANIA SCALE AND

BEFORE AVAILABLE. FIBERWEIGH PRIOR TO BEGINNING

THE TESTS, AND WERE ROTATED ON

BOTH SCALES. "9. OBJECTS TO "RATE OF PRODUCTION" ,RATE OF PRODUCTION" IS

AS NOT RELEVANT--- SCALE WAS RELEVANT BECAUSE INVITATION TO

FURNISHED TO SEE IF IT METBID SPECIFIED FIBERWEIGH OR

SPECIFICATIONS--- STATES IT DID EQUAL. PRODUCTION TESTS

MEET 2 SECOND, STABILIZING INDICATE THAT FIBERWEIGH IS

SPECIFICATIONS--- CONTENDS LOWER SUPERIOR BY ABOUT 7 PERCENT.

RATE OF PRODUCTION DUE TO THE REDUCED COST BECAUSE OF

OPERATORS LACK OF FAMILIARITY. GREATER PRODUCTION ON THE

FIBERWEIGH WOULD OFFSET THE

ADDITIONAL COST OF THE

FIBERWEIGH IN ABOUT 1 1/2 YEARS.

THE LIFE OF SCALES IS ESTIMATED

TO BE AT LEAST 5 YEARS. "10. OFFERS TO MAKE OTHER

PENNSYLVANIA SCALE COMPANY HAS MODIFICATIONS--- LARGE

PLATFORM--- SUBMITTED A SCALE WHICH HAS BEEN CENTERED--- CHANGE

SIZE OR SHAPE FOUND NOT EQUAL TO FIBERWEIGH. OF SHIELD.

WE CANNOT LET THEM CONTINUE TO

MODIFY THIS SCALE WITHOUT GIVING

ALL OTHER BIDDERS EQUAL

OPPORTUNITY. "11. REFERS TO RECORD OF 64 SCALES THE FACT THAT 64 PENNSYLVANIA

SOLD TO GRAIN--- NO KNOWN SERVICE SCALES PERFORMED WELL FOR GRAIN

REQUIRED. DIVISION HAS NO SIGNIFICANCE.

OUR REJECTION IS BASED ON THE

FACT THAT THE PENNSYLVANIA SCALE

IS NOT EQUAL TO THE

FIBERWEIGH.'

OUR OFFICE MUST NECESSARILY RELY ON THE DECISIONS OF TECHNICAL PERSONNEL EMPLOYED BY THE CONTRACTING OFFICES IN DISPUTES INVOLVING TECHNICAL KNOWLEDGE. THE INVITATION HERE INVOLVED DID NOT REQUIRE THE TESTS TO BE CONDUCTED BY THE NATIONAL BUREAU OF STANDARDS AND WE KNOW OF NO STATUTORY REQUIREMENT TO THIS EFFECT. IN FACT, ADDENDUM NO. 1 TO THE INVITATION RESERVED THE RIGHT TO THE GOVERNMENT TO REQUIRE THE SUCCESSFUL BIDDER TO DELIVER A SCALE TO THE COTTON DIVISION, AMS, FOR TESTING. AS TO POINT NO. 10 OF BIDDER'S PROTEST, NAMELY, THAT IT BE ALLOWED TO MODIFY ITS SCALE, THE CITED PROVISION WITH RESPECT TO BRAND NAME PRODUCTS SPECIFICALLY PROVIDES THAT MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS WILL NOT BE CONSIDERED. INSOFAR AS THE GOVERNMENT'S COMMENTS CONTRADICT THE CONTENTIONS OF THE LOW BIDDER, WE MUST ACCEPT THE STATEMENT OF GOVERNMENT REPRESENTATIVES IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT SUCH STATEMENTS ARE ERRONEOUS.

SINCE THE RESULT OF TESTS CONDUCTED BY GOVERNMENT PERSONNEL SHOWS THAT THE LOW BIDDER'S PRODUCT CANNOT BE CONSIDERED IN CERTAIN MATERIAL RESPECTS AS BEING EQUAL TO THE FIBERWEIGH MCI 401-1 BALANCE, ITS BID SHOULD BE REJECTED.