Skip to Highlights
Highlights

INC.: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD BY THE UNITED STATES MARINE CORPS OF A CONTRACT TO A HIGHER BIDDER FOR HEAVY DUTY GAS RANGES. IS BASED UPON THE CONTENTION THAT INVITATION NO. 117 WHICH REPLACED INVITATION NO. 78 AFTER THE LATTER WAS CANCELLED FOLLOWING YOUR PROTEST OF OCTOBER 28. WAS WRITTEN AROUND EQUIPMENT OFFERED BY A SPECIFIC MANUFACTURER. YOU CLAIM THAT THIS IS BORNE OUT BY THE FACT THAT YOU WERE TOLD DURING A DISCUSSION PRIOR TO AWARD THAT ANY DEVIATION WOULD REQUIRE NEW SPECIFICATION SHEETS FOR THE MARINE CORPS MANUAL AT A COST OF $1. YOU STATE THAT IT IS YOUR CONVICTION THAT ANY SOLID SHELF IN A COMMERCIAL GAS RANGE OVEN HINDERS CIRCULATION AND DISTRIBUTION OF OVEN HEAT WHICH YOU CLAIM IS A PRIME FUNCTION OF THE OVEN AND THAT NO SUCH RANGE OVEN HAS EVER BEEN SPECIFICALLY APPROVED BY THE AMERICAN GAS ASSOCIATION.

View Decision

B-126456, FEB. 29, 1956

TO MAGIC CHEF, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD BY THE UNITED STATES MARINE CORPS OF A CONTRACT TO A HIGHER BIDDER FOR HEAVY DUTY GAS RANGES.

YOUR PROTEST AS STATED IN YOUR LETTER OF JANUARY 19, 1956, TO SENATOR STUART SYMINGTON, IS BASED UPON THE CONTENTION THAT INVITATION NO. 117 WHICH REPLACED INVITATION NO. 78 AFTER THE LATTER WAS CANCELLED FOLLOWING YOUR PROTEST OF OCTOBER 28, 1955, WAS WRITTEN AROUND EQUIPMENT OFFERED BY A SPECIFIC MANUFACTURER. YOU CLAIM THAT THIS IS BORNE OUT BY THE FACT THAT YOU WERE TOLD DURING A DISCUSSION PRIOR TO AWARD THAT ANY DEVIATION WOULD REQUIRE NEW SPECIFICATION SHEETS FOR THE MARINE CORPS MANUAL AT A COST OF $1,500. YOU STATE THAT IT IS YOUR CONVICTION THAT ANY SOLID SHELF IN A COMMERCIAL GAS RANGE OVEN HINDERS CIRCULATION AND DISTRIBUTION OF OVEN HEAT WHICH YOU CLAIM IS A PRIME FUNCTION OF THE OVEN AND THAT NO SUCH RANGE OVEN HAS EVER BEEN SPECIFICALLY APPROVED BY THE AMERICAN GAS ASSOCIATION. YOU POINT OUT THAT PRIOR TO THE AWARD YOU SUBMITTED TESTIMONY IN WRITING FROM THREE EMINENT AUTHORITIES FOR THE PURPOSE OF REFUTING THE CLAIMS OF THE MARINE CORPS REGARDING FLAVOR TRANSFERS AMONG VARIOUS FOODS IN THE SAME OVEN. AS TO THE CONTENTION OF THE MARINE CORPS THAT "HEAVY FERROUS ALLOY CASTING" TOP FRONT PLATE IS SUPERIOR TO COLD ROLLED STEEL, YOU CALL ATTENTION TO THE FOLLOWING:

1. ALL OF THE 68 FRY TOP RANGES, BOTH MAGIC CHEF AND THE COMPETITOR ARE EQUIPPED WITH "ONE PIECE CAST METAL ALLOY PLATE" INCLUDING THE FRONT TOP PLATE--- AS PER THE SPECIFICATION PAGES ATTACHED TO THE BID.

2. NO FRY WORK IS DONE ON THE UNIFORM HEAT TOP TYPE RANGES WHICH ARE EQUIPPED WITH FORMED STEEL FRONT TOP PLATE.

3. FORMED STEEL HAS REPLACED CASTINGS IN ALL MODERN RANGE CONSTRUCTION IN FRONT FRAMES, DOOR FRAMES, HINGES, QUADRANTS, SHELF BRACKETS, ETC. BECAUSE IT IS STRONGER, WILL NOT BREAK, AND WILL NEVER HAVE TO BE REPLACED. ANY CONTENTION THAT A CAST FRONT PLATE IS SUPERIOR TO HEAVY FORMED STEEL IS COMPLETELY UNFOUNDED. FINALLY, YOU URGE THAT THE EQUIPMENT OFFERED BY YOU IS SUPERIOR TO THAT SET FORTH IN THE ADVERTISED SPECIFICATIONS AND THAT THE REQUIREMENT THAT EQUIPMENT OFFERED MUST CONFORM TO THE SPECIFICATIONS IN EVERY DETAIL IS UNFAIR TO BIDDERS AND TO THE TAXPAYERS.

BY INVITATION NO. 117, ISSUED NOVEMBER 10, 1955, THE COMMANDANT OF THE MARINE CORPS, HEADQUARTERS, U.S. MARINE CORPS, REQUESTED SEALED BIDS IN DUPLICATE FOR FURNISHING SPECIFIED QUANTITIES OF TYPES I AND II RANGES, GALLEY, HEAVY DUTY, NATURAL GAS BURNING, TO BE IN ACCORDANCE WITH PURCHASE DESCRIPTION DATED NOVEMBER 10, 1955, ATTACHED TO THE INVITATION. BIDDERS WERE ADVISED THAT THE TYPE I RANGE, HAVING AN EVEN HEAT TOP, EXCEPT FLUE RISER NOT TO EXCEED 17 INCHES IN HEIGHT AND TO RUN FULL WIDTH OF THE RANGE BODY, SHOULD BE FURNISHED IN LIEU OF ELEVATED SHELF AS SPECIFIED IN PARAGRAPH 3.2.1 OF THE PURCHASE DESCRIPTION. BIDDERS WERE ADVISED ALSO THAT THE TYPE II RANGE HAVING A FRY TOP, EXCEPT FLUE RISER NOT TO EXCEED 17 INCHES IN HEIGHT AND TO RUN FULL WIDTH OF THE RANGE BODY SHOULD BE FURNISHED IN LIEU OF ELEVATED SHELF AS SPECIFIED IN PARAGRAPH 3.2.1, WITH A BASE CABINET ENCLOSED ON TWO SIDES AND BACK AND PROVIDED WITH ONE SHELF TO DIVIDE CABINET INTO TWO COMPARTMENTS TO BE FURNISHED IN LIEU OF OVEN AS SPECIFIED IN PARAGRAPH 3.3. OF THE PURCHASE DESCRIPTION.

THE ABSTRACT OF BIDS SHOWS THAT FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THAT YOUR BID WAS THE LOWEST RECEIVED ON ALL ITEMS. YOUR BID, HOWEVER, WAS REJECTED AND AWARD WAS MADE TO THE NEXT HIGHER BIDDER ON THE BASIS THAT YOUR BID WAS NOT RESPONSIVE TO THE ADVERTISED SPECIFICATIONS MADE A PART OF THE INVITATION FOR BIDS. THE BASIC REASONS FOR REJECTING YOUR BID WERE SET FORTH BY THE MARINE CORPS IN A LETTER TO SENATOR SYMINGTON WHICH APPARENTLY WAS FORWARDED TO YOU IN RESPONSE TO YOUR LETTER TO THE SENATOR.

YOUR LETTER OF JANUARY 19, 1956, TO THE SENATOR, A COPY OF WHICH WAS FORWARDED TO OUR OFFICE, WAS FORWARDED TO THE SECRETARY OF THE NAVY WITH THE REQUEST THAT THE MATTER BE FURTHER INVESTIGATED AND THAT A FULL REPORT BE FURNISHED, TAKING INTO CONSIDERATION THE STATEMENTS MADE BY YOU. REPLY NOW HAS BEEN RECEIVED TOGETHER WITH A DETAILED STATEMENT BY THE CONTRACTING OFFICER. THIS STATEMENT IS TO THE EFFECT THAT THE SPECIFICATIONS ATTACHED TO INVITATION NO. 78 WERE WRITTEN IN 1951 AND WERE USED WITH INVITATIONS TO BIDS ON WHICH SEVERAL LEADING MANUFACTURERS INCLUDING YOUR CONCERN SUBMITTED BIDS; THAT AFTER THE SPECIFICATIONS WERE WRITTEN YOU CHANGED YOUR "CONSTRUCTION METHODS FROM WHAT MAY BE DESCRIBED AS FRAME AND PANEL TO A WRAP-AROUND TYPE OF CONSTRUCTION; " AND THAT YOU WERE THEN "NO LONGER ABLE TO MEET THE ORIGINAL SPECIFICATION.' IT IS STATED THAT "THESE FACTORS WERE POINTED OUT BY MR. FRANK FORE, A REPRESENTATIVE OF MAGIC CHEF, IN AN INFORMAL VISIT TO THE MARINE CORPS AND AS A RESULT OF THIS CONFERENCE CERTAIN CHANGES WERE MADE IN AN EFFORT TO PROVIDE MAGIC CHEF AN OPPORTUNITY TO BID ON THIS PROCUREMENT.' YOUR CONTENTION THAT THE PURCHASE DESCRIPTION IS RESTRICTIVE IN THAT IT WAS WRITTEN AROUND THE PRODUCT OF A CERTAIN MANUFACTURER IS DENIED BY THE CONTRACTING OFFICER ON THE BASIS THAT THE DESCRIPTION SETS FORTH THE MINIMUM NEEDS OF THE MARINE CORPS BASED UPON LONG EXPERIENCE. IT IS STATED FURTHER THAT THE FACT THAT A SOLID SLIDING OVEN RACK IS LISTED AS AN OPTIONAL ITEM BY ONE MANUFACTURER IS NOT INDICATIVE OF RESTRICTIVE CHARACTERISTICS DUE TO THE FACT THAT OTHER FEATURES SUCH AS PORCELAIN ENAMEL FINISH, STAINLESS STEEL FRONT AND SPREADER PLATES ARE ALSO LISTED AS OPTIONAL EQUIPMENT WITH MOST MANUFACTURERS. IT IS STATED ALSO THAT YOUR CONTENTION THAT THE SPECIFICATIONS WERE PATTERNED AFTER A SPECIFIC MANUFACTURER SINCE ANY DEVIATION "WOULD REQUIRE NEW SPECIFICATIONS SHEETS FOR THE MARINE CORPS MANUAL AT A COST OF $1,500" IS NOT UNDERSTOOD, BECAUSE ,NO CONSIDERATION WHATSOEVER WAS GIVEN TO CATALOGING COST IN THE USE OF THE CURRENT SPECIFICATION SINCE SUCH COSTS HAVE LITTLE BEARING IN THE ADOPTION OF AN ITEM WHERE KNOWN MARINE CORPS REQUIREMENTS EXIST.' THE MANUFACTURER'S SPECIFICATIONS FOR THE RANGE OFFERED BY THE SUCCESSFUL BIDDER PROVIDING FOR A SOLID SLIDING OVEN RACK HAVE BEEN APPROVED BY THE AMERICAN GAS ASSOCIATION TESTING LABORATORIES. THE STATEMENT OF THE CONTRACTING OFFICER CONTINUES AS FOLLOWS:

"FLAVOR TRANSFERS.

"MAGIC CHEF ALLEGES THAT A SOLID SLIDING OVEN RACK WILL NOT PREVENT FLAVOR TRANSFERS AND SUBMITS THREE LETTERS IN SUPPORT OF THIS CONTENTION. THE LETTER FROM AGA STATES THAT SUCH TRANSFER IS NOT TO BE EXPECTED AND AGREES WITH MAGIC CHEF'S REASONING BUT MAKES NO STATEMENT OF FACT. THE LETTER FROM POPE'S CAFETERIAS, INC. STATES THAT THE MATTER HAS NOT BEEN CONSIDERED BEFORE BUT THAT IT IS DOUBTFUL THAT A TRANSFER OF FOOD QUALITIES WOULD TAKE PLACE EXCEPT WHEN FOOD REMAINS IN THE OVEN AFTER THE OVEN IS TURNED OFF. THE LETTER FROM THE LACLEDE GAS COMPANY STATES THAT THERE WILL BE NO INTERMINGLING OF ODORS AND TASTES SINCE GAS OVENS ARE THOROUGHLY VENTILATED AND HAVE FREE CIRCULATING HEAT AND AIR. IT IS THE MARINE CORPS BELIEF THAT THE THEORY OF "FREE CIRCULATING HEAT AND AIR" COULD AS WELL BE USED TO PROVE THE TRANSFER OF ODORS AND TASTES.

"AS OPPOSED TO THE FOREGOING, THE EXPERIENCE OF MARINE CORPS CHEFS HAS BEEN THAT WITHOUT A SOLID SHELF DIVIDING THE OVEN THERE IS A DEFINITE TRANSFER OF FLAVOR AND TASTES BETWEEN FOODS COOKED IN THE SAME OVEN. THIS POSITION IS SUPPORTED BY A STATEMENT OF THE CHEF, MANAGER HAY-ADAMS HOTEL, WASHINGTON, D.C. AND BY THE CO-OWNER AND GENERAL MANAGER OF FAN AND BILLS, INC. WASHINGTON, D.C. PHOTOSTATIC COPIES OF THESE STATEMENTS ARE ATTACHED HERETO. THE MARINE CORPS HAS NEVER STATED THAT THE PRINCIPAL REASON FOR THE SOLID SLIDING RACK IS FOR USE AS WARMERS.

"REQUIREMENT FOR HEAVY FERROUS ALLOY CASTING TOP FRONT PLATE.

"MAGIC CHEF ALLEGES THAT THE FRY-TOP RANGES WHICH IT OFFERED ARE EQUIPPED WITH "ONE PIECE CAST ALLOY PLATE.' HOWEVER, ATTACHED TO ITS BID IS A LETTER DATED 9 DECEMBER 1955, SIGNED BY MR. T. B. MADOLE AND MR. JAMES A. MAROHN, VICE PRESIDENT IN WHICH EXCEPTION TO THE SPECIFICATION IS TAKEN AS FOLLOWS: "2) PARAGRAPH 3.2.1 SPECIFIES "HEAVY FERROUS ALLOY CASTING" TO PROTECT THE GAS COCKS FROM DUST, GREASE AND BREAKAGE. CAST IRON ITSELF IS BREAKABLE AND IN ORDER TO ELIMINATE THIS CONTINGENCY WE NOW USE A HEAVY POLISHED FORMED STEEL FRONT TOP PLATE WHICH IS NON-BREAKABLE. THERE IS NO DOUBT THAT THIS IS SUPERIOR TO A CASTING.'

"REGARDLESS OF THE ALLEGATIONS AS TO THE SUPERIORITY OF HEAVY FORMED STEEL THE EXPERIENCE OF THE MARINE CORPS HAS INDICATED A NEED FOR SOLID FERROUS ALLOY CASTING ON FRY-TOP RANGES AND EVEN-HEAT RANGES. CASTING IS NEEDED ON EVEN-HEAT TOP RANGES BECAUSE OF THE SEVERE PUNISHMENT EVEN UNDER NORMAL SERVICE IN THE PLACEMENT AND REMOVAL OF STOCK POTS, ETC. STEEL SHAPES CAN BE BENT, DENTED AND SCRATCHED AND THEY DETERIORATE MORE RAPIDLY WHEN SUBJECTED TO RUSTING INFLUENCES.'

WITH FURTHER REFERENCE TO YOUR CLAIM THAT THE ADVERTISED SPECIFICATIONS WERE WRITTEN AROUND THE PRODUCT OF A PARTICULAR MANUFACTURER, IT SEEMS SIGNIFICANT ALSO THAT FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. NO COMPLAINT APPEARS TO HAVE BEEN RECEIVED FROM THE OTHER BIDDERS SOME OF WHOM NO DOUBT WOULD NORMALLY HAVE BEEN EXPECTED TO PROTEST THE USE OF RESTRICTIVE SPECIFICATIONS DIRECTLY AFFECTING THEM. IN THE ABSENCE OF ANY PROTEST FROM THE OTHER BIDDERS OR FROM OTHER MANUFACTURERS OR OF MORE CONVINCING PROOF THAT THE SPECIFICATIONS WERE IN FACT UNNECESSARILY RESTRICTIVE TO THE POINT OF PRECLUDING COMPETITION, WE CAN FIND NO LEGAL BASIS FOR OBJECTING TO THE SPECIFICATIONS. THE CONTRACTING OFFICIALS OF THE GOVERNMENT ARE NECESSARILY VESTED WITH A CERTAIN AMOUNT OF DISCRETION IN SUCH MATTERS, AND IN THE ABSENCE OF A SHOWING OF FAVORITISM, BAD FAITH, OR A COMPLETE DISREGARD OF THE FACTS WE WOULD NOT BE JUSTIFIED IN HOLDING THAT THEIR DETERMINATION IS ILLEGAL. IT IS NOT WITHIN THE PROVINCE OF OUR OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF THE ADMINISTRATIVE AGENCIES OF THE GOVERNMENT. COMP. GEN. 554. IN VIEW OF THE CAREFUL STUDY WHICH APPEARS TO HAVE BEEN MADE BY THE MARINE CORPS OF THE NEEDS OF THE GOVERNMENT IN THIS MATTER AND SINCE YOUR BID WAS NOT RESPONSIVE TO THE INVITATION, WE FIND NO LEGAL BASIS FOR OBJECTION TO THE AWARD AS MADE.

GAO Contacts