B-155284, MAY 4, 1965

B-155284, MAY 4, 1965

TO VARIETY METAL CRAFTS COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 29, 1964, AND TO SUBSEQUENT CORRESPONDENCE AND CONVERSATIONS RELATIVE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT BY THE U.S. NAVY PURCHASING OFFICE UNDER IFB 600-979-64 TO ANY OTHER BIDDER.

THE INVITATION, AS AMENDED ON JUNE 19, 1964, INVITED BIDS, TO BE OPENED JULY 16, 1964, FOR FURNISHING A TOTAL OF 21 UNITS OF "3" AND "5" PLATFORM TYPE AIRCRAFT WEIGHING SCALES, TO BE MANUFACTURED IN ACCORDANCE WITH BUREAU OF NAVAL WEAPONS SPECIFICATIONS AND DRAWINGS REFERRED TO THEREIN. THE INVITATION PROVIDED THAT THE DRAWINGS WERE TO TAKE PRECEDENCE OVER THE SPECIFICATIONS IN THE EVENT OF CONFLICT BETWEEN THE TWO, AND THAT THE EQUIPMENT TO BE FURNISHED SHOULD IN NO CASE "BE LESS THAN THAT SPECIFIED BY THE DRAWINGS.'

AMONG THE ITEMS SPECIFIED IN THE DRAWINGS TO BE INCORPORATED IN THE EQUIPMENT WAS AN ANTHONY INSTRUMENTS, INC., MODEL UNIOS LOAD CELL. THE INVITATION PROVIDED THAT ALL "VENDOR ITEMS," SUCH AS THE LOAD CELL, WHICH WERE IDENTIFIED ON THE DRAWINGS BY BRAND NAME WERE ON AN "OR EQUAL" BASIS. THE BIDDER WAS REQUESTED TO IDENTIFY, IN THE SPACE PROVIDED ON PAGE 7 OF THE SCHEDULE OF THE INVITATION, ANY SUBSTITUTIONS OF "EQUAL" ITEMS FOR THE BRAND NAMES CITED.

THE CLAUSE ENTITLED "BRAND NAME OR EQUAL" IN THE INVITATION PROVIDED THAT, IF ITEMS WERE IDENTIFIED IN THE SCHEDULE BY A " "BRAND NAME OR EQUAL" DESCRIPTION," SUCH IDENTIFICATION WAS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND WAS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WOULD BE SATISFACTORY; THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED FOR AWARD IF SUCH PRODUCTS WERE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION; AND THAT DETERMINATION AS TO THE EQUALITY OF AN ITEM WOULD BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID, AS WELL AS OTHER INFORMATION NOT IDENTIFIED IN THE BID BUT REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. HOWEVER, BIDDERS WERE CAUTIONED IN THE CLAUSE THAT THE PURCHASING ACTIVITY WAS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH WAS NOT IDENTIFIED BY THE BIDDER, AND THAT, TO INSURE SUFFICIENT INFORMATION WAS 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 * * *.' THE CLAUSE FURTHER PROVIDED THAT, IF THE BIDDER PROPOSED TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION, HE WAS REQUIRED TO "/I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS," AND THAT MODIFICATIONS PROPOSED AFTER BID OPENING TO MAKE A PRODUCT CONFORM TO BRAND NAME PRODUCT REFERENCED IN THE INVITATION WOULD NOT BE CONSIDERED.

IN SUBMITTING A BID DATED JUNE 19, 1964, UNDER THE INVITATION, YOU OFFERED TO FURNISH THE ITEMS INVOLVED, TOGETHER WITH ASSOCIATED TECHNICAL DATA AND DOCUMENTS, FOR THE TOTAL PRICE OF $625,118. INSOFAR AS IN MATERIAL HERE, YOUR BID OFFERED A LOAD CELL IDENTIFIED AS REVERE CORPORATION OF AMERICA 50K MULTI-COLUMN LOAD CELL "SIMILAR TO PART C-40695 -30" AS A SUBSTITUTE FOR THE ANTHONY INSTRUMENTS LOAD CELL REFERRED TO ABOVE. A REVERE CORPORATION CATALOG SHEET, WHEREIN A DESCRIPTION AND THE SPECIFICATIONS OF "C AND S COMPRESSION LOAD CELLS" OF VARIOUS TYPES AND CAPACITIES, INCLUDING THE PART NO. C-40695-30, ARE SET FORTH, WAS ATTACHED TO YOUR BID, AND IN YOUR LETTER OF JUNE 19, 1964, ACCOMPANYING THE BID, YOU STATED:

"* * * THE LOAD CELL, DESCRIBED IN THE SPECIFICATION SHEET ATTACHED, WILL BE PHYSICALLY MODIFIED TO BE COMPATIBLE WITH THE PLATFORM CONFIGURATION.'

FOLLOWING THE OPENING OF BIDS, YOUR BID (WHICH WAS FOUND TO BE THE LOW BID), TOGETHER WITH FIVE OTHER BIDS RECEIVED IN RESPONSE TO THE INVITATION, WAS REFERRED TO THE BUREAU OF NAVAL WEAPONS FOR A TECHNICAL EVALUATION. BY MEMORANDUM OF JULY 27, 1964, THE CHIEF OF THE BUREAU OF NAVAL WEAPONS ADVISED THE OFFICER-IN-CHARGE, NAVY PURCHASING OFFICE, THAT HIS OFFICE HAD BEEN UNABLE TO ASCERTAIN THAT YOUR BID WAS RESPONSIVE FOR REASONS STATED, INSOFAR AS MATERIAL, TO BE AS FOLLOWS:

"2. * * * THE BIDDER INDICATES A LOAD CELL SIMILAR TO THE CELL SPECIFIED, HOWEVER, THE CATALOGUE SHEET SUBMITTED INDICATES THE FOLLOWING DIFFERENCES:

"A. THE LINEARITY IS NOT WITHIN THE TOLERANCE SPECIFIED.

"B. THE IMPEDENCE OUTPUT AND INPUT AS LISTED FOR THE REVERE LOAD CELL WOULD REQUIRE EXTENSIVE CHANGES TO THE READOUT INSTRUMENT.

"C. THE OPERATING TEMPERATURE SPECIFIED FOR THE REVERE CELL WILL NOT MEET THE ENVIRONMENTAL REQUIREMENTS AS SPECIFIED BY THE BUWEPS DRAWINGS AND SPECIFICATION FOR THE LOAD CELL AND THE COMPLETE SYSTEM.

"3. IN ADDITION, ELECTRICAL BALANCES, HYSTERESIS AND CREEP WERE NOT SPECIFIED. WHILE THE PROPOSAL STATES THAT THE PHYSICAL CHARACTERISTICS OF THE REVERE CELL WOULD BE MODIFIED TO BE COMPATIBLE WITH THE PLATFORMS, NO INDICATION IS GIVEN AS TO HOW THIS WOULD BE ACCOMPLISHED. NO INDICATION IS GIVEN AS TO HOW OR WHAT WOULD BE THE MODIFICATIONS TO THE READOUT INSTRUMENT TO MAKE THE INSTRUMENT COMPATIBLE WITH THOSE LOAD CELLS. COMPARISON WITH IMPEDENCE INPUT AND OUTPUT DIFFERENCES ABOVE INDICATES THIS CHANGE WOULD BE EXTENSIVE. * * *

"4. THE BID SET OF ENCLOSURE (1) STATES THAT THE "OR EQUAL" ITEMS WOULD BE "SIMILAR TO" AND BASED ON THE INFORMATION SUBMITTED DETERMINATION CANNOT BE MADE THAT THE PRODUCT OFFERED IS EQUAL" IN ALL FUNCTIONAL RESPECTS. * * *"

IT APPEARS FROM THE REPORT FURNISHED US IN THIS MATTER BY THE DEPARTMENT OF THE NAVY THAT YOU WERE SUBSEQUENTLY NOTIFIED BY THE NAVY PURCHASING OFFICE THAT YOUR BID HAD BEEN DETERMINED TO BE NONRESPONSIVE BECAUSE THE EQUALITY OF THE REVERE CORPORATION LOAD CELL WITH THE ANTHONY INSTRUMENTS LOAD CELL COULD NOT BE ESTABLISHED ON THE BASIS OF THE INFORMATION PROVIDED IN THE BID OR REASONABLY AVAILABLE TO THE GOVERNMENT. TELEGRAM OF AUGUST 20, 1964, AND LETTER OF AUGUST 25, 1964, YOU PROTESTED TO THE DEPARTMENT OF THE NAVY AGAINST THE REJECTION OF YOUR BID ON SUCH BASIS, SETTING FORTH IN YOUR LETTER THE REASONS WHY YOU CONSIDERED THE REVERE CORPORATION LOAD CELL TO BE EQUAL OR SUPERIOR TO THE ANTHONY INSTRUMENTS LOAD CELL. THE MATTER WAS REFERRED TO THE BUREAU OF NAVAL WEAPONS FOR A REVIEW OF THE ENGINEERING BASIS FOR REJECTION OF YOUR BID IN THE LIGHT OF YOUR CONTENTIONS, AND BY MEMORANDUM OF SEPTEMBER 3, 1964, THE CHIEF OF THE BUREAU OF NAVAL WEAPONS FURNISHED THE OFFICER-IN-CHARGE, NAVY PURCHASING OFFICE, WITH A DETAILED COMPARISON OF THE TWO LOAD CELLS INVOLVED, THE MEMORANDUM CONCLUDING:

"2. BASED ON THE ABOVE, IT IS THE OPINION OF THIS BUREAU THAT REVERE P/N C-40695-30 IS NOT EQUAL TO THE ANTHONY CELLS IN SENSITIVITY, LINEARITY, TEMPERATURE ENVIRONMENT BOTH OPERATING AND STORAGE, REPEATABILITY AND ELECTRICAL BALANCE.'

IN A LETTER DATED SEPTEMBER 23, 1964, THE CONTRACTING OFFICER ADVISED YOU THAT HIS OFFICE HAD COMPLETED A REVIEW OF YOUR BID IN THE LIGHT OF YOUR LETTER OF AUGUST 25, 1964, AND HAD CONCLUDED THAT THE CIRCUMSTANCES WARRANTED A DETERMINATION TO REJECT THE BID AS NONRESPONSIVE. IN HIS LETTER, THE CONTRACTING OFFICER SET FORTH THE PRECISE DATA CONTAINED IN THE MEMORANDUM OF SEPTEMBER 3, 1964, FROM THE CHIEF OF THE BUREAU OF NAVAL WEAPONS, AS EVIDENCE OF THE DIFFERENCES EXISTING BETWEEN THE TWO LOAD CELLS. THE LETTER CONCLUDED:

"BASED ON THE ABOVE, IT IS APPARENT THAT THE REVERE PART C-40695-30 IS NOT EQUAL TO THE ANTHONY MODEL UNIOS AND YOUR PROTEST OF THE REJECTION OF YOUR BID MUST BE DENIED.'

ON OCTOBER 1, 1964, THE NAVY PURCHASING OFFICE WAS INFORMED THAT YOU HAD FILED A PROTEST WITH OUR OFFICE AND THAT WE WOULD REQUIRE A REPORT IN THE MATTER. ON OCTOBER 8, 1964, HOWEVER, WE RECEIVED ADVICE FROM THE DEPARTMENT OF THE NAVY THAT, BECAUSE OF THE URGENCY OF THE PROCUREMENT, IT WOULD BE NECESSARY TO PROCEED WITH THE AWARD WITHOUT WAITING FOR THE DISPOSITION OF YOUR PROTEST BY OUR OFFICE. BY LETTER OF OCTOBER 26, 1964, THE CONTRACTING OFFICER NOTIFIED YOU TO THE SAME EFFECT. THE CONTRACT WAS SUBSEQUENTLY AWARDED TO GILMORE INDUSTRIES, INC., CLEVELAND, OHIO, AFTER THE REQUIRED ADMINISTRATIVE DETERMINATIONS HAD BEEN MADE, IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION, AS TO THE NECESSITY FOR MAKING THE AWARD PRIOR TO FINAL ACTION BY OUR OFFICE ON YOUR PROTEST.

THE REPORT WHICH WE RECEIVED FROM THE DEPARTMENT OF THE NAVY SETS FORTH, AS THE BASIS FOR THE REJECTION OF YOUR BID BY THE PROCUREMENT ACTIVITY, THE IDENTICAL FACTS AND REASONS WHICH HAD BEEN FURNISHED TO YOU IN THE CONTRACTING OFFICER'S LETTER OF SEPTEMBER 23, 1964, REFERRED TO ABOVE. YOUR MR. DISCUSS WAS ADVISED BY MR. HUMPHREY OF THIS OFFICE CONCERNING THE NATURE OF THE REPORT IN A TELEPHONE CONVERSATION ON JANUARY 4, 1965, AND IT WAS THEN UNDERSTOOD THAT YOU WOULD FURNISH US ANY ADDITIONAL FACTS WHICH YOU DESIRED TO SUBMIT IN SUPPORT OF THE PROTEST WITHIN A REASONABLE LENGTH OF TIME. NO FURTHER COMMUNICATION HAS BEEN RECEIVED FROM YOU IN REGARD TO THE MATTER, AND THE PROTEST WILL THEREFORE BE DECIDED ON THE BASIS OF THE PRESENT RECORD.

IT APPEARS THAT THE QUESTION WHETHER THE REVERE LOAD CELL COULD BE REGARDED AS EQUAL IN ALL MATERIAL RESPECTS TO THE ANTHONY LOAD CELL WAS THOROUGHLY CONSIDERED BY THE TECHNICAL STAFF CHARGED WITH THE RESPONSIBILITY FOR DETERMINING SUCH MATTERS WITHIN THE DEPARTMENT OF THE NAVY. WE SEE NO SUBSTANTIAL BASIS FOR REJECTION OF THE CONCLUSION EXPRESSED IN THE ABOVE-QUOTED MEMORANDUM OF JULY 27, 1964, THAT THE BUREAU OF NAVAL WEAPONS COULD NOT ASCERTAIN FROM THE INFORMATION FURNISHED IN YOUR BID THAT THE LOAD CELL WHICH YOU WERE OFFERING TO SUPPLY WAS THE EQUAL OF THE ANTHONY LOAD CELL. WHILE IT WOULD APPEAR THAT THIS ALONE CONSTITUTED A SUFFICIENT BASIS FOR DISQUALIFYING YOUR BID UNDER THE TERMS OF THE INVITATION, IN REEVALUATING THE ENGINEERING BASIS FOR REJECTING THE BID, FOLLOWING YOUR PROTEST TO THE PROCURING ACTIVITY, THE BUREAU OF NAVAL WEAPONS WENT EVEN FURTHER IN SETTING FORTH THE PRECISE TECHNICAL REASONS WHY IT CONSIDERED THE REVERE LOAD CELL COULD NOT BE CONSIDERED THE EQUAL OF THE ANTHONY LOAD CELL. IT IS OUR OPINION THAT THESE REASONS, WHICH WERE SET OUT IN THE CONTRACTING OFFICER'S LETTER OF SEPTEMBER 23, 1964, TO YOU, FURTHER SUPPORT SUCH DETERMINATION.

WITH RESPECT TO THE MATERIALITY OF THE DIFFERENCES BETWEEN THE LOAD CELL OFFERED TO BE SUPPLIED BY YOU AND THE BRAND NAME PRODUCT SPECIFIED, THE POSITION OF THIS OFFICE IN DISPUTES OF THIS NATURE IS EXPLAINED AS FOLLOWS IN OUR DECISION B-139830, DATED AUGUST 19, 1959:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * *

IN THIS REGARD, WE HELD IN OUR DECISION B-143389, DATED AUGUST 26, 1960, AS FOLLOWS:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

" "IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * * " "

IN VIEW OF THE FACTS REPORTED IN THIS CASE, AND FOR THE REASONS SET OUT IN THE ABOVE-CITED DECISIONS, WE SEE NO BASIS UPON WHICH WE WOULD BE JUSTIFIED IN OBJECTING TO THE ADMINISTRATIVE ACTION IN REJECTING YOUR BID, AND YOUR PROTEST MUST THEREFORE BE DENIED.