B-148955, AUG. 10, 1962

B-148955, AUG. 10, 1962

TO THE ARO CORPORATION:

WE REFER TO YOUR LETTER OF MAY 19, 1962, PROTESTING AGAINST THE AWARD MADE UNDER INVITATION FOR BIDS NO. TC-23-204-62-389, ISSUED ON MARCH 29, 1962, BY THE UNITED STATES ARMY TRANSPORTATION MATERIEL COMMAND, ST. LOUIS, MISSOURI.

THE INVITATION, AS AMENDED ON APRIL 16, 1962, CALLED FOR 62 EACH OF ITEM NO. 1, SET FORTH AS FOLLOWS:

"FSN 5130-580-2787 CMC 5186R

NUT RUNNER AND SCREWDRIVER, PNEUMATIC--- STRAIGHT DRIVE, CLUTCH DRIVE, ADJUSTABLE, DRIVE END, SOCKET TYPE CHUCK, 1/4 IN. SIZE, HEX, CAPACITY, 5/16 IN.

MAC WOOD SCREW DRIVE AND THE DATA, 500 PRM, NO LOAD SPEED, REVERSIBLE W/AIR VOL (TORQUE) REGULATOR

PISTOL GRIP HANDLE, WITH ACCESSORIES

"ARO EQUIP. CO. P/N 7855, OR EQUAL

OR

"INGERSOLL RAND CO. P/N OARINC 31, OR EQUAL"

BID OPENING WAS HELD ON APRIL 26, 1962, AND 5 BIDS WERE RECEIVED AND RECORDED AS FOLLOWS:

TABLE

UNIT PRICE BOSTON PNEUMATIC, INC.

$100.00 GARDNER-DENVER CO. 145.00 THOR POWER TOOL CO. 150.00 INGERSOLL- RAND CO.

174.00 ARO CORP. 187.50

A REPRESENTATIVE OF THE ARO CORPORATION, PRESENT AT THE BID OPENING, QUESTIONED WHETHER THE LOW BIDDER, BOSTON PNEUMATIC, HAD INCLUDED THE REQUIRED ACCESSORIES IN ITS BID PRICE. AN OFFICIAL OF THE CONTRACTING OFFICE TELEPHONED THE LOW BIDDER TO INQUIRE WHETHER THE BIDDER INTENDED TO INCLUDE ALL THE ACCESSORIES REQUIRED BY FSN 5130-580-2787. THE BIDDER REPLIED THAT THE BID PRICE WAS CORRECT, AND THAT IT DID OFFER ALL ACCESSORIES, WHICH WERE THE SAME ON ITS BID FOR THE PRIOR YEAR PROCUREMENT, AS LISTED IN THE FEDERAL SUPPLY CATALOG. BY LETTER OF APRIL 26, 1962, BOSTON PNEUMATIC SUBMITTED A LIST OF THE ACCESSORIES IT INTENDED TO FURNISH WITH ITS "OR EQUAL" HAND TOOL, IN ACCORDANCE WITH THE ACCESSORIES LISTED IN THE FEDERAL SUPPLY CATALOG UNDER FSN 5130-580-2787.

ON MAY 22, 1962, AWARD WAS MADE TO BOSTON PNEUMATICS FOR 62 UNITS AT $100 EACH.

YOU PROTEST AN AWARD UNDER THIS INVITATION FOR TWO REASONS. IN THE FIRST PLACE, YOU CONTEND THAT THE U.S. ARMY TRANSPORTATION MATERIEL COMMAND IS NOT AUTHORIZED TO PURCHASE THESE TOOLS UNDER SECTION 5-1202 OF THE ARMED SERVICES PROCUREMENT REGULATION, SINCE THE DEFENSE GENERAL SUPPLY CENTER, THE DOD SINGLE MANAGER FOR FSC CLASS 5130 MATERIAL, IS THE ONLY MILITARY PURCHASING AGENCY WITH AUTHORITY TO MAKE THIS PROCUREMENT.

YOUR OTHER CONTENTION IS THAT THE ITEM DESCRIPTION CONTAINED IN THE INVITATION DOES NOT PROVIDE SUFFICIENT INFORMATION TO ENABLE BIDDERS TO BID ON A COMMON BASIS. SPECIFICALLY, THE ITEM DESCRIPTION SET FORTH THE ESSENTIAL REQUIREMENTS FOR THE TOOLS THEMSELVES, AND ENDED WITH THE PHRASE "WITH ACCESSORIES.' THE ACCESSORIES REQUIRED WERE NOT SET FORTH IN THE INVITATION. YOU CITE OUR DECISIONS B-136941, NOVEMBER 4, 1958, AND B- 128405, SEPTEMBER 17, 1956, AS REQUIRING SPECIFICATIONS TO BE DRAWN SUFFICIENTLY CLEARLY TO PERMIT THE PREPARATION OF BIDS ON A COMMON BASIS.

WITH REGARD TO WHETHER THE ISSUING OFFICE HERE (TMC) HAD AUTHORITY TO PURCHASE THESE ITEMS, THE ADMINISTRATIVE OFFICE REPORTS THAT TMC DOES HAVE SUCH AUTHORITY. IT CITES SECTION 5-1201 (VI) OF ASPR, AS IMPLEMENTED BY SUBPARAGRAPH 2C OF AR 701-5130, DATED 14 JUNE 1961, RESPECTING THE ITEMS LISTED IN DA SM 10-1-C6-6-SL (FEDERAL SUPPLY CATALOG CF-6-SL) BEING ASSIGNED TO THE TECHNICAL SERVICE CORRESPONDING TO THE MANAGEMENT ACTIVITY CODE INDICATED THEREIN, AND BY FEDERAL SUPPLY CATALOG C6-6-SL, DATED 31 MAY 1961, WHICH DESIGNATES THE TRANSPORTATION MATERIEL COMMAND (CT MEANS TRANSPORTATION MATERIEL COMMAND PER PARAGRAPH 11B OF PREFACE TO THE CATALOG) AS THE MANAGEMENT ACTIVITY FOR THE SUBJECT ITEM.

SECTION 5-1201 (VI) ENUMERATES AS A GENERAL EXCLUSION TO THE COMMODITY ASSIGNMENTS PROGRAM, ITEMS EXCLUDED FROM COORDINATED PROCUREMENT IN ACCORDANCE WITH CLASSIFICATION ACTION UNDER THE DOD ITEM MANAGEMENT CODING CRITERIA. COMMODITY ASSIGNMENTS HAVE BEEN MADE BY THE ASSISTANT SECRETARY OF DEFENSE (INSTALLATIONS AND LOGISTICS) TO THE MILITARY DEPARTMENTS BASED UPON STUDIES MADE BY THE ARMED FORCES SUPPLY SUPPORT CENTER. ACCORDINGLY, THE APPROPRIATENESS OF ITEM ASSIGNMENTS AND EXCLUSIONS RESTS WITH THE DEPARTMENT OF DEFENSE RATHER THAN THIS OFFICE. UNDER THE CIRCUMSTANCES, A COPY OF YOUR LETTER OF PROTEST IS BEING FORWARDED TO THE DEPARTMENT OF DEFENSE.

WITH REGARD TO THE INVITATION REQUIREMENT FOR ACCESSORIES, THE ADMINISTRATIVE OFFICE STATES THAT THE INVITATION DESCRIPTION REFERRED TO THE FEDERAL SUPPLY CATALOG, NUMBER FSN 5130-580-2787, WHICH REFERENCE NUMBER LISTS THE ACCESSORIES REQUIRED FOR THE NUT RUNNER AND SCREWDRIVER, PNEUMATIC. THE DEPARTMENT STATES THAT THIS PUBLICATION WITH ITS INFORMATION IS AVAILABLE TO ALL BIDDERS.

THE PUBLICATION IN QUESTION, FEDERAL SUPPLY CATALOG C6-6-SL, CONTAINING FEDERAL STOCK NUMBER 5130-580-2787, SETS FORTH THE ITEM DESCRIPTION AND THE REQUIRED ACCESSORIES. IN OUR DECISIONS B-136941, NOVEMBER 4, 1958, AND B-128405, SEPTEMBER 17, 1956, WHICH YOU CITE, WE STATE THAT THE FULL COMPETITION CONTEMPLATED BY THE PUBLIC ADVERTISING STATUTES CANNOT BE ACHIEVED UNLESS INVITATIONS ARE COUCHED IN LANGUAGE SUFFICIENTLY CLEAR TO ENABLE THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. WE THINK THAT THE ITEM DESCRIPTION FOUND IN THIS INVITATION IS SUFFICIENTLY CLEAR. THE ITEM IS REFERENCED BY THE FEDERAL STOCK NUMBER, AND THE ACCESSORIES ARE SET FORTH IN THE FEDERAL SUPPLY CATALOG CONTAINING THE RELEVANT FEDERAL STOCK NUMBER. THERE IS NO INDICATION THAT ANY OF THE BIDDERS EXPERIENCED DIFFICULTY IN DETERMINING WHAT ACCESSORIES WERE REQUIRED. CONCLUDE THAT THE ITEM DESCRIPTION IS SUFFICIENTLY CLEAR TO ENABLE PROPER PRESENTATION OF BIDS. ACCORDINGLY, YOUR PROTEST IS DENIED.