B-170659, NOV. 9, 1970

B-170659, NOV. 9, 1970

BID PROTEST - DEVIATIONS - BUY AMERICAN ACT DENIAL OF PROTEST AGAINST REJECTION OF LOW BID BY DEFENSE SUPPLY AGENCY FOR DEVIATIONS FROM WARRANTY PROVISIONS IN THE INVITATION AND AGAINST AWARD TO AMETEK/LAUNDRY AND DRYCLEANING EQUIPMENT, FOR FURNISHING FOREIGN MADE EQUIPMENT. A LOW BID WHICH WAS ACCOMPANIED BY A CUSTOMERS MANUAL CONTAINING WARRANTY PROVISIONS WHICH DIFFERED MATERIALLY FROM THOSE SET OUT IN THE STANDARD WARRANTY CLAUSE IN THE INVITATION WAS PROPERLY REJECTED AS NONRESPONSIVE EVEN THOUGH THE SUBMISSION OF THE MATERIAL WAS INADVERTENT. A REVIEW OF THE COMPONENTS OF EQUIPMENT OFFERED AS A DOMESTIC SOURCE THAT SHOWS THAT THE DOMESTIC COMPONENTS ACCOUNTED FOR NO LESS THAN 51.1 % OF THE TOTAL COST OF ALL COMPONENTS, WAS PROPERLY EVALUATED AS A DOMESTIC BID.

TO R. L. SJOSTROM COMPANY:

REFERENCE IS MADE TO YOUR PROTEST, BY LETTER DATED AUGUST 19, 1970, AGAINST AWARD BY THE DEFENSE SUPPLY AGENCY, DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, OF CONTRACT DSA-400-71-C-0624 TO AMETEK/LAUNDRY & DRYCLEANING EQUIPMENT (AMETEK), FOR THE FURNISHING OF FIVE CROSS FOLDERS. THE SOLICITATION IS INVITATION FOR BIDS (IFB) DSA400-70-B-6239, DATED APRIL 15, 1970.

A BID SUBMITTED BY YOU IN THE NAME OF SHEETMASTER CORPORATION, WHICH HAD BEEN CHANGED ON AUGUST 6, 1969, PURSUANT TO THE LAWS OF THE STATE OF FLORIDA, TO R. L. SJOSTROM COMPANY, WAS LOWEST. BY LETTER DATED JULY 7, 1970, HOWEVER, THE CONTRACTING OFFICER REJECTED THE BID AS NONRESPONSIVE, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.2(D)(VI), BECAUSE OF A PROVISION IN A MANUAL SUBMITTED WITH THE BID WHICH SOUGHT TO LIMIT RIGHTS RESERVED TO THE GOVERNMENT UNDER THE IFB SUPPLY WARRANTY CLAUSE. ALTHOUGH YOU REFER TO THE BASIS OF THE REJECTION AS A TECHNICALITY, OUR REVIEW OF THE RECORD INDICATES THAT YOUR BID WAS ACCOMPANIED BY A CUSTOMERS MANUAL CONTAINING WARRANTY PROVISIONS WHICH DIFFERED MATERIALLY FROM THOSE SET OUT IN THE STANDARD SUPPLY WARRANTY CLAUSE INCLUDED IN THE IFB. SINCE THIS OFFICE HAS CONSISTENTLY HELD THAT THE SUBMISSION OF SUCH MATERIAL WITH A BID, EVEN THOUGH INADVERTENT AS YOU CONTEND, RENDERS THE BID NONRESPONSIVE AND REQUIRES ITS REJECTION, WE MUST THEREFORE AGREE WITH THE CONTRACTING OFFICER'S DECISION TO REJECT YOUR BID.

YOUR PROTEST AGAINST THE AWARD TO AMETEK, WHOSE BID WAS SECOND LOW IN PRICE, IS PREMISED ON A CHARGE WHICH YOU MADE IN A TELEPHONE CALL OF JULY 10 TO THE CONTRACTING OFFICER, CONFIRMED BY LETTER OF THE SAME DATE, THAT THE MACHINES OFFERED BY AMETEK ARE MADE IN DENMARK. IN THIS CONNECTION, YOU HAVE FURNISHED AN AFFIDAVIT BY A MEMBER OF YOUR FIRM TO THE EFFECT THAT BUT FOR A 3/4" SKINNER AIR VALVE, TWO POTTER BROMFIELD RELAYS, COTTON BELTING ON CONVEYORS AND POSSIBLY NUTS AND BOLTS, ALL OTHER COMPONENTS OF THE CROSS FOLDERS OFFERED BY AMETEK ARE MADE IN EUROPE.

THE IFB INCLUDED THE BUY AMERICAN CERTIFICATE PRESCRIBED BY ASPR 6 104.3, WHEREBY THE BIDDER CERTIFIES THAT EACH END PRODUCT, EXCEPT THE END PRODUCT EXCLUDED IN A SPACE PROVIDED BELOW THE CERTIFICATE, IS A DOMESTIC SOURCE END PRODUCT AS DEFINED IN THE BUY AMERICAN ACT (41 U.S.C. 10A-D) CLAUSE AND THAT COMPONENTS OF UNKNOWN ORIGIN HAVE BEEN CONSIDERED TO HAVE BEEN MINED, PRODUCED, OR MANUFACTURED OUTSIDE THE UNITED STATES.

THE BUY AMERICAN ACT CLAUSE INCORPORATED IN THE IFB, AT PAGE 26, WHICH IS SET FORTH IN ASPR 6-104.5 AND 7-104.3, INCLUDES THE FOLLOWING PERTINENT LANGUAGE:

"A 'DOMESTIC SOURCE END PRODUCT' MEANS (A) AN UNMANUFACTURED END PRODUCT WHICH HAS BEEN MINED OR PRODUCED IN THE UNITED STATES AND (B) AN END PRODUCT MANUFACTURED IN THE UNITED STATES IF THE COST OF THE COMPONENTS THEREOF WHICH ARE MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES OR CANADA EXCEEDS 50 PERCENT OF THE COST OF ALL ITS COMPONENTS."

THE CLAUSE ALSO INCLUDES A PROVISION FOR ADDITION OF A 50-PERCENT PRICE DIFFERENTIAL, NORMALLY, TO BIDS OFFERING OTHER THAN DOMESTIC SOURCE END PRODUCTS FOR EVALUATION PURPOSES AS SPECIFIED IN ASPR 6 104.4.

EXAMINATION OF A COPY OF AMETEK'S BID SHOWS THAT AMETEK ENTERED THE WORD "NONE" IN THE SPACE PROVIDED FOR THE LISTING OF END PRODUCTS EXCLUDED FROM THE BUY AMERICAN CERTIFICATE, THEREBY INDICATING THAT AMETEK'S END PRODUCTS WOULD BE DOMESTIC SOURCE END PRODUCTS. AMETEK'S BID WAS THEREFORE REGARDED AS A DOMESTIC BID AND, SO EVALUATED, IT WAS THE LOWEST RESPONSIVE BID FOLLOWING THE REJECTION OF YOUR BID.

AFTER YOUR PROTEST ON JULY 10, THE CONTRACTING OFFICER REQUESTED THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE, ROCKFORD, ILLINOIS (DCASO -ROCKFORD), TO ASCERTAIN WHETHER THE EQUIPMENT OFFERED BY AMETEK QUALIFIED AS A DOMESTIC SOURCE END PRODUCT, AS DEFINED IN THE BUY AMERICAN ACT CLAUSE.

THE PREAWARD SURVEY REPORT FORWARDED TO THE CONTRACTING OFFICER ON JULY 29, WHICH INCLUDED THE RESULTS OF A SURVEY BY DCASO-MIAMI OF JENSEN MACHINERY, INC. (JENSEN), SUPPLIER TO AMETEK, RECOMMENDED COMPLETE AWARD TO AMETEK. WITH RESPECT TO THE COMPONENTS USED IN THE END ITEMS, DCASO- MIAMI STATED THAT JENSEN WILL INCUR FOREIGN COSTS AMOUNTING TO LESS THAN 30 PERCENT OF THE SELLING PRICE OF THE EQUIPMENT, WITH ALL PARTS AND SUPPLIES, INCLUDING ALL MOTORS AND ELECTRONIC EQUIPMENT, OTHER THAN SHEET METAL PARTS, BEING PROCURED FROM AMERICAN COMPANIES. A SUPPLEMENTAL REPORT, ENCOMPASSING ONLY A COMPARISON OF COMPONENT COSTS AS CONTEMPLATED BY THE BUY AMERICAN ACT CLAUSE, SHOWS THAT THE DOMESTIC COMPONENTS ACCOUNT FOR NO LESS THAN 51.1 PERCENT OF THE TOTAL COST OF ALL COMPONENTS. THESE REPORTS ARE SUBSTANTIATED BY INVOICES ISSUED TO JENSEN FOR THE VARIOUS COMPONENTS. IN ADDITION, THE RECORD SHOWS THAT THE CONTRACTING OFFICER HAS MADE ARRANGEMENTS WITH DCASO-MIAMI TO ENSURE THAT ONLY DOMESTIC SOURCE END ITEMS WILL BE ACCEPTED UNDER THE CONTRACT. IN VIEW THEREOF, WE BELIEVE THE INFORMATION OF RECORD ESTABLISHES THAT THE CROSS FOLDERS OFFERED BY AMETEK QUALIFY AS DOMESTIC SOURCE END PRODUCTS AS DEFINED IN THE BUY AMERICAN ACT CLAUSE. IN OUR VIEW, THEREFORE, AMETEK'S BID WAS PROPERLY EVALUATED AS A DOMESTIC BID.

IN LIGHT OF THE FOREGOING, WE SEE NO LEGAL BASIS TO QUESTION THE AWARD TO AMETEK AS THE LOWEST RESPONSIVE BIDDER, AND YOUR PROTEST IS THEREFORE DENIED.