B-157705, DEC. 16, 1965

B-157705, DEC. 16, 1965

TO GRELLER SORTING SYSTEMS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 22, 1965, AND YOUR LETTERS OF SEPTEMBER 23, OCTOBER 5, AND NOVEMBER 11 AND 29, 1965, PROTESTING, IN EFFECT, AGAINST AWARD OF CONTRACT TO ANY FIRM NOT UTILIZING THE GRELLER SORTING SYSTEM UNDER INVITATION FOR BIDS NO. DSA 003-66-4, ISSUED BY THE DEFENSE DEPOT OGDEN, OGDEN, UTAH.

THE RECORD SHOWS THAT AS PART OF A TWO-STEP PROCUREMENT, THE DEFENSE DEPOT OGDEN ISSUED A REQUEST FOR TECHNICAL PROPOSALS ON FEBRUARY 2, 1965, CALLING FOR THE PROCUREMENT AND INSTALLATION OF A MECHANIZED MATERIAL HANDLING SYSTEM. IT IS REPORTED THAT A SET OF SUCH PROPOSALS WAS MAILED TO NELSON P. GRELLER AND ASSOCIATES ON FEBRUARY 10, 1965. PURSUANT TO THE TERMS OF THE REQUEST, TECHNICAL PROPOSALS WERE RECEIVED FROM THREE FIRMS ON APRIL 19, 1965. THOSE COMPETING WERE C. F. BUTZ ENGINEERING, THE J. V. COMPANY, AND S. I. HANDLING SYSTEMS, INC. AFTER CAREFUL AND DETAILED CONSIDERATION IT WAS ADMINISTRATIVELY DETERMINED THAT, WITH ONLY MINOR CLARIFICATION, EACH PROPOSAL WAS ACCEPTABLE AND IN LINE FOR PARTICIPATION IN THE FINAL STEP OF THE PROCUREMENT. ACCORDINGLY, ON AUGUST 20, 1965, INVITATION FOR BIDS NO. DSA-003-66-4 WAS ISSUED TO EACH OF THE NAMED FIRMS SEEKING THEIR QUOTATION OF PRICES ON THE EQUIPMENT AND WORK CONTAINED IN THEIR INDIVIDUAL PROPOSALS. THE FOLLOWING THREE BIDS WERE RECEIVED AND OPENED ON SEPTEMBER 21, 1965:

CHART

S. I. HANDLING SYSTEMS, INC. ITEM NO. 1 $2,317,290

J. V. COMPANY ITEM NO. 1 2,577,198

C. F. BUTZ ENGINEERING ITEM NO. 1 3,735,641

AS TO ALL SUB-ITEMS AND ALTERNATES ALLOWED, THE BID OF S. I. HANDLING SYSTEMS, INC., WAS UNIFORMLY LOW. REGARDING ITS SORTING EQUIPMENT, THE OFFER OF S. I. HANDLING SYSTEMS QUOTED PRICES ON BOTH AEROJET-GENERAL AND SPEAKER SORTATION EQUIPMENT WITH THE SPEAKER EQUIPMENT BEING THE LEAST EXPENSIVE OF THE TWO.

IN YOUR LETTERS TO OUR OFFICE YOU HAVE PROTESTED AGAINST AWARD OF A CONTRACT UNDER THE SUBJECT INVITATION TO ANY FIRM NOT UTILIZING THE GRELLER SORTING SYSTEM TO MEET THE REQUIREMENTS OF THE INSTANT PROCUREMENT. IN PARTICULAR YOU HAVE ALLEGED THAT PARAGRAPH 1.1.26 OF THE INITIAL REQUEST FOR PROPOSALS REQUIRES THAT SORTING BE ACCOMPLISHED PURSUANT TO MILSTRIP PROCEDURES. SUCH PARAGRAPH READS AS FOLLOWS:

"THE SYSTEM WILL OPERATE IN SUCH A MANNER THAT PACKAGES WILL REMAIN PROPERLY ORIENTED DURING THEIR MOVEMENT ON CONVEYORS AND WHEN TRANSFERRED FROM CONVEYOR TO CONVEYOR OR FROM SORTING EQUIPMENT TO CONVEYORS.'

YOU CONTEND THAT NEITHER THE AEROJET-GENERAL NOR THE SPEAKER SORTER SYSTEMS CONTEMPLATED FOR USE BY THE SUCCESSFUL PRIME CONTRACTOR WOULD FULFILL THE REQUIREMENTS SOUGHT BY THE SPECIFICATIONS AS TO SORTING EQUIPMENT. IN THIS REGARD YOU HAVE STRESSED A PAST ADMINISTRATIVE REJECTION OF THE AEROJET SYSTEM IN A DIFFERENT PROCUREMENT AT OLMSTED AIR FORCE BASE, PENNSYLVANIA, AND THE SUBSEQUENT INSTALLATION OF YOUR GRELLER SORTING SYSTEM. THE CRUX OF YOUR PROTEST IS THAT YOUR SORTING SYSTEM AND ONLY YOUR SORTING SYSTEM CAN SORT PACKAGES IN ACCORDANCE WITH THE ORIENTATION REQUIREMENT OF PARAGRAPH 1.1.26 OF THE SPECIFICATIONS.

IN RESPONSE TO THE ALLEGATIONS RAISED IN YOUR PROTEST, IT IS ADMINISTRATIVELY REPORTED THAT THERE IS NO CONNECTION BETWEEN THE REQUIREMENTS OF MILSTRIP AND THE MECHANIZED SORTING SYSTEM INVOLVED IN THE SUBJECT PROCUREMENT. THE SORTING SYSTEM NEEDED AND SPECIFIED AS TO ACCOMPLISHMENTS ARISES WHOLLY OUT OF THE TYPE OF MATERIAL TO BE HANDLED AT DEFENSE DEPOT OGDEN AS TO SIZE, SHAPE, WEIGHT, NATURE AND VOLUME. IT IS EXPLAINED THAT A SORTER IN GENERAL IS A SELF-CONTAINED MOVING DEVICE FROM WHICH PACKAGES CAN BE AUTOMATICALLY SHUNTED FROM THE SORTER INTO PRE- DETERMINED CHUTES, CONVEYORS OR LOCATIONS. THE GRELLER SYSTEM UTILIZES A "SLIDING DOG" OR ,SLIDING TRAY" DEVICE IN WHICH THE PROTUBERANCE OR TRAY, TRAVELING AT AN ANGLE ACROSS A CONVEYOR AGAINST A PACKAGE WILL PUSH THE PACKAGE INTO ITS PROPER PLACE. THE AEROJET-GENERAL SYSTEM UTILIZES A SORTER MADE UP OF INDIVIDUALLY MOVABLE SLATS WHICH RAISE OR LOWER IN A SYNCHRONIZED FASHION TO GUIDE PACKAGES. THE SPEAKER EQUIPMENT UTILIZES INDIVIDUAL TRAYS WHICH TIP UP TO ALLOW PACKAGES TO SLIDE FROM THE TRAY AND INTO A DESIGNATED PLACE.

SINCE YOU HAD STRESSED THE REJECTION OF THE AEROJET-GENERAL SYSTEM AT OLMSTED AIR FORCE BASE IN ANOTHER PROCUREMENT, THE DEFENSE SUPPLY AGENCY SOUGHT A DETAILED EXPLANATION FROM THAT INSTALLATION IN THIS MATTER. COMPARISON OF THE AIR FORCE SORTING NEEDS AT OLMSTED AND DEFENSE DEPOT OGDEN SORTING NEEDS ELICITED THE FOLLOWING ADMINISTRATIVE COMMENTS:

"IN THIS REGARD THE SORTERS AT OLMSTED HAD TO HAVE CERTAIN PERFORMANCE CHARACTERISTICS THAT GO FAR BEYOND THE NEEDS OF THE SORTERS AT DEFENSE DEPOT OGDEN. AT OLMSTED AIR FORCE BASE MANY PACKAGES TO BE HANDLED WERE EXTREMELY SENSITIVE AND FRAGILE. PACKAGES, THEREFORE, COULD NOT BE PERMITTED TO TUMBLE WHEN MOVING FROM SORTERS TO CONVEYORS. IN ADDITION, THEIR METHOD OF SHIPMENT DICTATED THAT PACKAGES REMAIN AS ORIGINALLY PLACED ON THE CONVEYOR SO THAT SHIPMENT LOT INFORMATION PLACED ON THE SIDES OF THE PACKAGES WOULD ALWAYS BE FACING THE RIGHT DIRECTION AT SPECIFIED POINTS SO THAT PHYSICAL MOVEMENT BY HAND WOULD NOT BE NEEDED FOR SYSTEM OPERATORS TO READ DESTINATION REQUIREMENTS. FINALLY, THE PACKAGES HAD TO BE ORIENTED UPON THE CONVEYORS SO THAT THE LONG AXIS OF RECTANGULAR PACKAGES WOULD PARALLEL THE CONVEYOR AXIS. THIS WOULD PREVENT PACKAGES LONGER THAN CONVEYOR OR CHUTE WIDTH FROM TURNING CROSS-WISE ON THE CONVEYORS AND CAUSING A JAM.

"THE SPECIFICATIONS USED BY OLMSTED AIR FORCE BASE (EXHIBIT NO. 7) PROVIDED IN PAR. 3. 6. 11.1 AT THE BOTTOM OF PAGE 21 AS FOLLOWS: "DIVERTING MECHANISM AND ACTION SHALL RESULT IN A TURNING MOTION OF THE CARGO AS IT LEAVES THE SORTING CONVEYOR TO THE 52 OUTLETS, THUS PERMITTING PROPER DIVERSION FOR ITEMS AS LONG AS 4 FEET. THE DIVERSION MOVEMENT FROM THE TRANSFER DEVICE TO THE DIVERSION SECTIONS, SUCH AS CHUTES, SPUR AND CURVE UNITS, ETC., SHALL BE SUCH THAT THE LENGTH AXIS OF THE CARGO IS TURNED TO BE PARALLEL WITH THE DESTINATION LINES. ALL CARGO MUST REMAIN IN THE ORIGINAL UPRIGHT POSITION DURING ITS TRAVEL FROM THE SORTING CONVEYOR TO THE DESTINATION LINES.'

"IT CAN BE SEEN FROM THIS THAT PACKAGES COULD NOT BE PERMITTED TO TUMBLE BUT THEY HAD TO REMAIN IN THEIR ORIGINAL POSITION WITH SIDES FACING OUT AND THEY HAD TO BE ORIENTED ON THE CONVEYOR AS TO THE LONG AXIS. CONTRAST TO THIS, HOWEVER, THE SPECIFICATION PREPARED AT THIS COMMAND CALLED ONLY FOR ORIENTATION OF THE PACKAGES FROM SORTER TO CONVEYOR SO THAT THE LONG AXIS OF EACH PACKAGE WOULD PARALLEL THE CONVEYOR AXIS, LIKEWISE TO AVOID JAMMING CAUSED BY THE TURNING OF LONG PACKAGES THAT WOULD EXTEND BEYOND CONVEYOR WIDTH (NOTE EXHIBIT NO. 6). NONE OF THE MATERIAL TO BE MOVED ON THE DEPOT SYSTEM IS SO SENSITIVE OR FRAGILE THAT TUMBLING MUST BE PREVENTED AND THERE IS NO REQUIREMENT THAT ANY GIVEN SIDE OR END BE RETAINED IN ANY CERTAIN POSTURE. HAD THESE REQUIREMENTS EXISTED THEY WOULD HAVE BEEN SO STATED AS WAS DONE AT OLMSTED AIR FORCE BASE.

"AT SAID BASE IT WAS FOUND, THROUGH TESTING BY THE PRIME CONTRACTOR THAT AEROJET-GENERAL TILTING SLAT SORTERS WOULD NOT SUFFICE INASMUCH AS THEY TENDED, AT TIMES, TO MAKE SMALL, SQUARE PACKAGES TUMBLE WHEN MOVING FROM THE SORTER TO CONVEYORS. THE CONTRACTOR THEREFORE CONSTRUCTED AND FURNISHED A SYSTEM THAT UTILIZED THE SAME GENERAL PRINCIPLE AS THAT INHERENT IN GRELLER COMPANY EQUIPMENT, I.E. SLIDING DOGS OR TRAYS.

"IT IS CLEAR THAT THE AEROJET-GENERAL TILTING SLAT SORTER SIMPLY WOULD NOT COMPLY WITH THE SPECIFICATION PRECLUDING TUMBLING AND REQUIRING PACKAGE SIDE UNIFORMITY BUT IT IS EQUALLY APPARENT THAT BOTH AEROJET- GENERAL AND SPEAKER SORTERS WILL FULLY ORIENT PACKAGES AS TO THEIR LONG AXIS WHEN MOVING FROM SORTERS TO CONVEYORS OR CHUTES. THE LATTER IS ALL THAT THE DEFENSE DEPOT OGDEN SPECIFICATION REQUIRES AND IT IS ALL THAT IS DESIRED IN VIEW OF THE PACKAGES INVOLVED. BY WAY OF EXAMPLE, SPEAKER SORTATION EQUIPMENT IS CURRENTLY INSTALLED AND USED IN THE RAILWAY EXPRESS AGENCY, NORTHWESTERN TERMINAL, CHICAGO, ILLINOIS. AEROJET-GENERAL EQUIPMENT IS LIKEWISE FOUND IN THE RAILWAY EXPRESS AGENCY, C B AND Q TERMINAL ALSO IN CHICAGO. BOTH PLANTS WERE VISITED BY MESSERS. CHISTOFFERSON AND NORTON OF THIS COMMAND PREPARATORY TO THE PRELIMINARY DESIGN OF THE DEPOT'S SYSTEM. THE OPERATION OF THE SORTERS AT BOTH PLACES WAS FOUND TO BE SATISFACTORY IN ALL RESPECTS AND SUCH THAT IT WAS CLEARLY DEMONSTRABLE THAT EITHER SYSTEM WOULD MEET ALL OF THE ORIENTATION NEEDS AND REQUIREMENTS OF THIS INSTALLATION.'

"CONTRARY TO THE IMPLICATION OF THE GRELLER PROTEST, THE OPINION HEREIN STATED IS CATEGORICAL THAT BOTH AEROJET-GENERAL AND SPEAKER SORTERS WILL FULLY COMPLY WITH THE SPECIFICATIONS OF THE INSTANT PROCUREMENT. IT IS FREELY ADMITTED THAT GRELLER SORTERS WOULD ALSO FULLY COMPLY WITH OUR SPECIFICATIONS AND THERE IS NO REASON WHY SUCH SORTERS COULD NOT BE FURNISHED BY THE PRIME CONTRACTOR. THE FACT REMAINS, HOWEVER, THAT NONE OF THE ACCEPTABLE PROPOSALS OFFERED GRELLER EQUIPMENT AND THE CONTRACTOR COULD NOT BE REQUIRED TO FURNISH SUCH SORTERS WHEN OTHERS ARE EQUALLY RESPONSIVE TO SPECIFICATION REQUIREMENTS AND ARE APPARENTLY AVAILABLE AT LESSER COST.'

IN YOUR LETTERS OF NOVEMBER 11 AND 29, 1965, YOU TAKE ISSUE WITH THE CONTRACTING OFFICER'S REPORT ON THE OPERATION AND UTILIZATION OF THE SORTING SYSTEMS IN QUESTION AND YOU MAINTAIN THAT YOUR SYSTEM, THE GRELLER SORTING SYSTEM, IS THE ONLY ONE CAPABLE OF MEETING THE REQUIREMENTS OF THE SPECIFICATIONS. WHILE THE CONTRACTING OFFICER CATEGORICALLY STATES THAT BOTH THE AEROJET-GENERAL AND SPEAKER SORTERS WILL ORIENT PACKAGES UNDER THE SPECIFICATIONS ACCORDING TO THE NEEDS OF DEFENSE DEPOT OGDEN, YOU TAKE ISSUE DIRECTLY WITH HIS FINDINGS AND ASSERT THAT ONLY YOUR SYSTEM CAN DO THE REQUIRED JOB. TO THIS END, YOU REQUEST THE OPPORTUNITY TO CONFRONT THE CONTRACTING OFFICER IN OUR PRESENCE IN AN ADVERSARY PROCEEDING TO SHOW THAT HIS STATEMENTS ARE UNTRUE.

THE QUESTION OF WHETHER CERTAIN EQUIPMENT OFFERED BY A BIDDER MEETS THE TECHNICAL REQUIREMENTS OF A SPECIFICATION IS A MATTER PRIMARILY FOR DETERMINATION BY THE TECHNICAL PERSONNEL EMPLOYED BY THE ADMINISTRATIVE AGENCIES AS OUR OFFICE DOES NOT EMPLOY SUCH PERSONNEL. NEITHER IS IT OUR FUNCTION OR PRACTICE TO CONDUCT "ADVERSARY PROCEEDINGS" IN OUR OFFICE TO WEIGH AND JUDGE THE TECHNICAL MERITS OF A PROTESTANT'S CONTENTIONS AGAINST THAT OF THE PROCURING AGENCY'S FINDINGS. IT IS OUR FUNCTION TO SEE THAT CONTRACTS INVOLVING THE EXPENDITURE OF PUBLIC FUNDS TO BE LEGALLY MADE, INCLUDING OBSERVANCE OF THE LAW RESPECTING COMPETITIVE BIDDING.

WHILE A JOINT MEETING WAS HELD BETWEEN THE MATHEWS CONVEYOR COMPANY AND THE MARINE CORPS IN A SITUATION CITED BY YOU, SUCH MEETING WAS RESTRICTED TO THE PARTICULAR CIRCUMSTANCES OF THAT CASE, AND CULMINATED IN AN AFFIRMATION OF OUR LONG STANDING RULE OF ACCEPTING THE TECHNICAL EVALUATION OF THE PROCURING AGENCY IN DIFFERENCES OF TECHNICAL EVALUATION OF EQUIPMENT. IN THIS REGARD, IN OUR DECISION B 139830, DATED AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"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. * *

THE FOREGOING IS IN CONSONANCE WITH THE RULE SET FORTH IN A DECISION OF JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

"IT IS 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 FOREGOING, WE SEE NO LEGAL BASIS FOR OBJECTION TO THE ADMINISTRATIVE ACTION IN THIS MATTER, AND YOUR PROTEST IS DENIED.