B-156743, JUL. 21, 1965

B-156743, JUL. 21, 1965

TO URBAN MUSIC STORE:

YOUR LETTERS OF MAY 7 AND JULY 9, 1965, PROTEST THE AWARD OF A CONTRACT BY THE CENTRAL PROCUREMENT DIVISION, FORT LEAVENWORTH, KANSAS, TO JENKINS MUSIC COMPANY, KANSAS CITY, MISSOURI, FOR THE PURCHASE OF A PIANO AT A PRICE HIGHER THAN YOUR LOW OFFER.

PURSUANT TO THE AUTHORITY CONTAINED IN 10 U.S.C. 2304 (A) (3) FOR THE NEGOTIATION OF PURCHASES AGGREGATING NOT MORE THAN $2,500, THE PROCURING ACTIVITY ISSUED A REQUEST FOR QUOTATIONS (RFQ) FOR A PROFESSIONAL UPRIGHT PIANO. SINCE THE WORDS "OR EQUAL" WERE INADVERTENTLY OMITTED FROM THE BRAND-NAME DESCRIPTION, THE RFQ WAS CANCELLED. THE SECOND SOLICITATION, UNDER RFQ NO. QM 5056-8400, DATED MARCH 19, 1965, DESCRIBED THE PROCUREMENT ITEM AS FOLLOWS:

"7710-255-0449 PIANO, UPRIGHT, TOP-QUALITY PROFESSIONAL UPRIGHT, 45 1/2 INCHES TO 46 INCHES IN HEIGHT, EBONY FINISH, DIRECT BLOW ACTION, SOHMER 45 -S, STEINWAY 45 OR AN EQUAL.'

FOUR OFFERS WERE RECEIVED READING AS FOLLOWS:

TABLE

OFFEROR BRAND NAME NET PRICE

JENKINS MUSIC STORE STEINWAY $1,395.00

SOHMER 866.25

D. H. BALDWIN CO. HAMILTON 828.00

TOOM SHOP, INC. WURLITZER 607.50

URBAN MUSIC STORE WINTER 575.00

THE CONTRACTING OFFICER PERSONALLY EVALUATED THE OFFERS AND DISCUSSED THEM WITH THE BANDMASTER AT FORT LEAVENWORTH, AS PROVIDED IN CON REG 220- 3, THE GUIDING REGULATIONS FOR THE PROCUREMENT, ETC., OF MUSICAL INSTRUMENTS, EQUIPMENT, AND SUPPLIES FOR ARMY BANDS. THE BANDMASTER RENDERED AN OPINION THAT NONE OF THE THREE LOWEST PRICED PIANOS WAS EQUAL TO EITHER THE STEINWAY OR THE SOHMER. ACCORDINGLY, AND ON THE BASIS THAT THE PRICE OF $866.25 FOR THE SOHMER WAS REASONABLE AS COMPARED TO THE PRICE OF $828.00 FOR THE HAMILTON AND THE PRICE OF $1,395.00 FOR THE STEINWAY, THE CONTRACT WAS AWARDED TO JENKINS FOR THE SOHMER.

IT IS YOUR POSITION THAT THE WINTER PIANO OFFERED BY YOU MEETS THE GOVERNMENT'S SPECIFICATIONS, AND, THEREFORE, AWARD FOR A HIGHER-PRICED PIANO WAS NOT JUSTIFIED. IN THIS CONNECTION, YOU MAKE THE FOLLOWING STATEMENTS:

"WE HAVE THE WHOLESALE PRICE LIST ON BOTH PIANO-S. THEY BOTH LIST AT CLOSE TO $500.00 WHOLESALE. WE HAD PLANNED ON A REASONABLE MARGIN OF PROFIT. PAYING MORE FOR AN ITEM DOES NOT ALWAYS MEAN IT IS THE BEST ON BIDS LIKE THIS, AS WE DO NOT PLAN AS MUCH MARGIN AS IN DEALING WITH THE GENERAL PUBLIC. ALL PIANO'S OF THE SAME STYLE AND SCALE ARE GENERALLY IN THE SAME PRICE RANGE AT THE FACTORY EVEN THOUGH THEY ARE DIFFERENT NAMES AND BRANDS.

"I HAVE BEEN TOLD THAT SOME COMPANY'S WILL PAY A NICE COMMISSION TO PEOPLE WHO WILL SWING DEALS FOR THEM LIKE THIS ONE. I FEEL THAT THINGS SUCH AS THIS SHOULD BE LOOKED INTO.

"OUR MERCHANDISE HAS BEEN DIS-QUALIFIED, MADE NON-PROFESSIONAL AND CHEAP. BY ONE MAN WHO WANTED TO SPEND $291.25 MORE FOR A PIANO, WHEN HE HAD NOT EVEN BOTHERED TO SEE OURS. WHEN THEY BOTH COST APPROXIMATELY THE SAME, SOMETHING IS WRONG.'

IT IS THE POSITION OF THE CONTRACTING OFFICER THAT THE BANDMASTER'S STATEMENT REGARDING THE QUALITY OF THE PIANOS OFFERED BY THE THREE LOW OFFERORS WAS MADE IN GOOD FAITH AND, THEREFORE, THE PURCHASE OF THE SOHMER PIANO WAS PROPER.

THE DEPARTMENT OF THE ARMY REPORTS THAT AN INVESTIGATION OF THE CONDUCT OF THE PROCUREMENT OF THIS PIANO REVEALS THAT THE AWARD WAS MADE IN ACCORDANCE WITH ALL APPLICABLE REGULATIONS AND THAT NO EFFORT WAS MADE TO DISCREDIT EITHER YOU OR THE PRODUCTS YOU SELL. MOREOVER, NO EVIDENCE WAS FOUND THAT THE BANDMASTER, DESPITE A REPORTED DIFFERENCE OF OPINION WITH YOU, HAD INTENDED TO ,BLACKBALL" YOU. RATHER, IT WAS DISCLOSED THAT YOU NOT ONLY CONTINUE TO WORK AT FORT LEAVENWORTH BUT YOU ARE STILL ON THE ACTIVE BIDDER'S LIST. IN ADDITION, IT IS REPORTED THAT YOU ADVISED THE ARMY INVESTIGATORS THAT YOUR STATEMENT CONCERNING "PAYMENT OF COMMISSIONS" WAS BASED ONLY ON THE PRICE DIFFERENCE BETWEEN THE WINTER PIANO OFFERED BY YOU AND THE SOHMER PIANO PROCURED FROM JENKINS AND THAT SUCH STATEMENT WAS NOT INTENDED TO IMPLY THAT SOMEONE IN THE MILITARY DEPARTMENT WAS RECEIVING COMMISSIONS.

ARMED SERVICES PROCUREMENT REGULATION 3-101 PROVIDES, WITH RESPECT TO NEGOTIATED PROCUREMENTS, THAT AWARD SHALL BE MADE TO THE BEST ADVANTAGE OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. CON REG 220-3 READS, IN PERTINENT PART, AS FOLLOWS:

"3. GENERAL.

"A. THE STRINGENT USE GIVEN MUSICAL INSTRUMENTS, EQUIPMENT, AND SUPPLIES BY USAR, ARNGUS, AND ACTIVE ARMY BANDS REQUIRES THAT BANDS BE EQUIPPED WITH TOP-QUALITY PROFESSIONAL MUSICAL PRODUCTS.

"B. SECOND RATE OR STUDENT QUALITY MUSICAL INSTRUMENTS, EQUIPMENT, AND SUPPLIES WILL NOT BE REQUISITIONED BECAUSE THEY:

"/1) DO NOT ALLOW THE PRODUCTION OF CHARACTERISTIC TONES AND REQUIRED VOLUME.

"/2) LACK QUALITY REQUIRED TO MEET THE TECHNICAL FACILITY DEMANDED OF ARMY BANDSMEN.

"/3) LACK SUFFICIENT DURABILITY TO GUARANTEE LONG PERIODS OF SERVICEABILITY.

"4. QUALITY CONTROLS.

"A. BANDMASTERS WILL PROVIDE, WITH INITIAL REQUISITIONS, APPROPRIATE QUALITY GUIDANCE, TO INCLUDE RECOGNIZED FIRST-LINE (TOP QUALITY) BRAND NAMES, MODEL NUMBERS, AND CATALOG DESCRIPTIONS.

"B. SUPPLY ACTIVITIES WILL FORWARD QUALITY GUIDANCE TO PROCUREMENT AGENCIES WITH REQUISITIONS.

"C. WHEN POSSIBLE, BAND TECHNICIANS OF BANDS BEING SERVICED WILL ASSIST IN THE EVALUATION OF BID SUBSTITUTIONS AND IN THE INSPECTION OF BAND EQUIPMENT PRIOR TO ACCEPTANCE.'

UNDER SUCH REGULATIONS, QUALITY IS A PRIME FACTOR FOR CONSIDERATION IN PROCURING MUSICAL EQUIPMENT FOR ARMY BANDS, AND BANDMASTERS ARE REQUIRED TO PROVIDE APPROPRIATE GUIDANCE IN CONNECTION WITH SUCH PROCUREMENTS. THEREFORE, THE CONTRACTING OFFICER PROPERLY SOLICITED THE OPINION OF THE FORT LEAVENWORTH BANDMASTER BEFORE PURCHASING THE PIANO. YOU CONTEND THAT THE WHOLESALE PRICE OF THE WINTER AND THE SOHMER PIANOS ARE ABOUT EQUAL, AND THAT THIS IS A BETTER INDICATOR THAN THE BID PRICES THAT THE QUALITY OF THE INSTRUMENTS IS EQUAL. HOWEVER, THIS OFFICE HAS NO EXPERTISE IN THAT AREA, AND IT IS OUR WELL ESTABLISHED RULE THAT THE MATTER OF PRESCRIBING THE NEEDS OF THE GOVERNMENT AND THE FACTUAL DETERMINATION WHETHER ITEMS OFFERED MEET SUCH NEEDS ARE PRIMARILY WITHIN THE PROVINCE OF EACH PROCURING AGENCY. 17 COMP. GEN. 554, 557. IN THE ABSENCE OF ANY EVIDENCE THAT THE BANDMASTER ACTED IN OTHER THAN GOOD FAITH, THE ACCEPTANCE BY THE CONTRACTING OFFICER OF THE BANDMASTER'S EVALUATION OF THE PIANOS OFFERED BY THE VARIOUS OFFERORS THEREFORE WILL NOT BE QUESTIONED BY OUR OFFICE.

WHILE IT IS REGRETTABLE THAT YOU MIGHT HAVE HAD UNPLEASANT VERBAL EXCHANGES WITH THE BANDMASTER, WE ARE UNABLE TO FIND ANY LEGAL BASIS FOR QUESTIONING THE PROPRIETY OF THE CONDUCT OF PROCUREMENTS FOR THE ARMY BAND AT FORT LEAVENWORTH GENERALLY.

IN THE CIRCUMSTANCES WE FIND NO VALID BASIS ON WHICH TO QUESTION THE AWARD TO JENKINS. ACCORDINGLY, YOUR PROTEST IS DENIED.