B-160497, MAR. 21, 1967

B-160497, MAR. 21, 1967

TO ALVEY-FERGUSON OPERATIONS:

REFERENCE IS MADE TO YOUR TELEGRAM DATED NOVEMBER 29, 1966, STATING THAT MARINE CORPS REQUEST FOR UNPRICED TECHNICAL PROPOSAL M00027-67-B 0076, DATED NOVEMBER 4, 1966, FOR AUTOMATED MATERIALS HANDLING SYSTEM IS PROPRIETARY IN THE AREA OF THE ACCUMULATION CONVEYOR. YOU PROTEST THE USE OF SPECIFICATIONS THAT INCLUDE PROPRIETARY MATTER.

THE MARINE CORPS SOLICITED TECHNICAL PROPOSALS TO BE IN ACCORDANCE WITH EXHIBIT "A" (DESCRIPTIVE PACKAGE FOR AN AUTOMATED MATERIALS HANDLING SYSTEM), DATED OCTOBER 13, 1966. INCLUDED IN THIS PACKAGE WAS "STANDARD FOR CONVEYOR SYSTEM CONSTRUCTION AND INSTALLATION," STANDARD NUMBER 1090002, DATED MARCH 15, 1966, AND ADDENDUM ONE, DATED SEPTEMBER 13, 1966. INCLUDED ALSO IN THE DESCRIPTIVE PACKAGE WAS ADDENDUM TWO, PARAGRAPH 1A OF WHICH PROVIDED THAT ALL REFERENCES TO THE NAVY OR THE NAVY DEPARTMENT IN STANDARD NUMBER 1090002 WAS TO BE CONSTRUED TO MEAN THE U.S. MARINE CORPS. PARAGRAPH 8.2.5 OF THE STANDARD WHICH COVERS THE REQUIREMENTS FOR THE ACCUMULATION CONVEYORS, IS AS FOLLOWS:

"8.2.5 ACCUMULATION CONVEYORS.

"8.2.5.1 CONFIGURATION. ACCUMULATION CONVEYORS SHALL BE OF LIVE ROLLER TYPE WITH THE ACCUMULATION FEATURE DESIGNED TO HANDLE THE RANGE OF WEIGHTS AND SIZES AS SPECIFIED IN THE PURCHASING DESCRIPTION. THE GENERAL CONFIGURATION SHALL CONFORM TO THE REQUIREMENTS OF PARAGRAPH 8.2.4 EXCEPT THAT SAFETY ROLLERS ARE NOT MANDATORY. A "V" OR LUG TYPE BELT OF LESS THAN EIGHT INCHES IN WIDTH MAY BE UTILIZED, HOWEVER, THE CONTRACTOR MUST DEMONSTRATE TO THE SATISFACTION OF THE NAVY, AT THE TIME OF THE BENCH TESTS, THAT THE CONVEYOR IS CAPABLE OF TRANSPORTING MATERIAL AT THE REQUIRED SPEED UNDER FULLY LOADED CONDITIONS (AS REQUIRED BY THE PURCHASE DESCRIPTION). THIS REQUIREMENT IS IN ADDITION TO THE PRESCRIBED BENCH TESTS AND OTHER REQUIREMENTS OF THIS SPECIFICATION AND THE PURCHASE DESCRIPTION.'

"8.2.5.2 OPERATION. THE ACCUMULATION CONVEYOR SHALL BE POWERED AND WITH CONTROLLED LINE PRESSURES. WHEN ACCUMULATING CONTAINERS, THE LINE PRESSURE WITH THE CONVEYOR RUNNING SHALL NOT BE AT A LEVEL TO CAUSE VERTICAL OR HORIZONTAL JACK-KNIFING OF ITEMS BEING ACCUMULATED. LINE PRESSURE SHALL NOT, IN ANY CASE, EXCEED FIVE PERCENT OF THE WEIGHT OF ITEMS BEING ACCUMULATED OR 25 LBS., WHICHEVER IS LESS. IMPACT SHALL BE CONTROLLED TO PREVENT VERTICAL AND/OR HORIZONTAL JACK KNIFING. MAXIMUM ALLOWABLE GAPPING BETWEEN ACCUMULATED ITEMS SHALL NOT EXCEED 15 PERCENT OF THE COMBINED LENGTH OF THE ITEMS. THE ACCUMULATION FEATURE SHALL NOT BE ACCOMPLISHED BY INCHING OF CONVEYORS NOR SHALL IT IN ANY WAY AFFECT THE TRANSPORTATION OF INDIVIDUAL CONTAINERS AT THE SPECIFIED OPERATIONAL SPEED. WHEN RELEASED, CONTAINERS BEING ACCUMULATED MUST AUTOMATICALLY RESTART.'

THE CLOSING DATE FOR SUBMISSION OF PROPOSALS WAS JANUARY 4, 1967. ONLY ONE ACCEPTABLE PROPOSAL WAS RECEIVED. IT IS STATED THAT IN ACCORDANCE WITH PARAGRAPH 3-210.2 (III) OF THE ARMED SERVICES PROCUREMENT REGULATION, NEGOTIATIONS ARE CURRENTLY BEING CONDUCTED WITH THE LONE ACCEPTABLE BIDDER.

THE MARINE CORPS REPORTS THAT IN A LETTER DATED NOVEMBER 23, 1966, IT REQUESTED ALVEY-FERGUSON TO PROVIDE SPECIFIC COMPLAINTS AS TO AREAS ALLEGED TO BE PROPRIETARY OR RESTRICTIVE; AND, IF IT WAS FELT THAT FURTHER DISCUSSIONS WERE NECESSARY, ARRANGEMENTS WOULD BE MADE TO SCHEDULE A MEETING WITH TECHNICAL AND PROCUREMENT PERSONNEL. THE REPORT CONTINUES THAT NO FURTHER RESPONSE WAS FORTHCOMING UNTIL NOVEMBER 29, 1966, WHEN THE MARINE CORPS RECEIVED A TELEGRAPHIC MESSAGE ADVISING THAT THE MATTER WAS BEING PROTESTED TO THE GENERAL ACCOUNTING OFFICE ON THE GROUNDS THAT THE PROPOSAL REQUEST WAS "PROPRIETARY IN THE AREA OF THE ACCUMULATION CONVEYOR.' BY LETTER OF DECEMBER 2, 1966, THE PROTEST MESSAGE WAS ACKNOWLEDGED AND ALVEY FERGUSON WAS AGAIN REQUESTED TO SUPPLY SPECIFIC INFORMATION AS TO THE NATURE OF THE COMPLAINT IN SUFFICIENT DETAIL TO PERMIT REVIEW BY GOVERNMENT PERSONNEL. BY LETTER DATED DECEMBER 15, 1966, ALVEY FERGUSON STILL REFUSED TO PROVIDE ANY FURTHER JUSTIFICATION FOR THE COMPLAINT, OTHER THAN TO STATE THAT THE "PRESSURE SPECIFICATION IS RESTRICTED AND NOT NECESSARY TO THE GOOD OPERATION OF (THE) SYSTEM.'

IN CONCLUSION, THE REPORT STATES THAT:

"THIS HEADQUARTERS IS CONVINCED THAT THE SPECIFICATIONS UTILIZED IN THIS PROCUREMENT ARE NOT PROPRIETARY OR RESTRICTIVE AND COULD EASILY BE MET BY AT LEAST THREE LEADING COMPANIES IN THE INDUSTRY. WE CAN ONLY SPECULATE AS TO WHY ONLY ONE CHOSE TO BID. POSSIBLY, THE PRINCIPAL REASON IS THE FACT THAT INSTALLATION IS REQUIRED IN THE THIRD FORCE REGIMENT, LOCATED IN OKINAWA, RYUKYU ISLANDS.'

THE GOVERNMENT ADVERTISING STATUTES CONSISTENTLY HAVE BEEN HELD TO REQUIRE THAT EVERY EFFORT BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE ADVERTISED SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE GOVERNMENT'S MINIMUM REQUIREMENTS. 32 COMP. GEN. 384, 387. FURTHERMORE, WE CONSISTENTLY HAVE HELD THAT WHEN THE ADVERTISED SPECIFICATIONS REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT FOR A PARTICULAR PURPOSE, THEY ARE NOT UNDULY RESTRICTIVE OF COMPETITION MERELY BECAUSE THE PRODUCT IS AVAILABLE ONLY FROM A LIMITED SOURCE. 34 COMP. GEN. 336. HERE THE SPECIFICATIONS ACCOMPANYING THE REQUEST FOR PROPOSALS WERE THE SAME ONES USED BY THE DEPARTMENT OF THE NAVY IN ITS PROCUREMENT UNDER INVITATION FOR BIDS NO. N00600-67-B-0078, NAVY PURCHASING OFFICE, WASHINGTON, D.C., DATED JULY 26, 1966. IN THAT PROCUREMENT THREE BIDS OF THREE COMPANIES WERE FOUND RESPONSIVE AND THEIR DESCRIPTIVE LITERATURE, ACCOMPANYING THE BIDS, SHOWED THAT THEIR SYSTEM MET THE GOVERNMENT SPECIFICATIONS. HENCE, THE PRESENT PROCUREMENT COULD REASONABLY HAVE EXPECTED PROPOSALS FROM AT LEAST THREE COMPANIES WHICH COULD HAVE SATISFIED THE MINIMUM REQUIREMENTS OF THE GOVERNMENT.

THE FACT THAT THREE COMPANIES OFFERED ACCEPTABLE SYSTEMS UNDER A PRIOR PROCUREMENT USING THE SAME SPECIFICATIONS INDICATES THAT THEY FOUND NO DIFFICULTY IN FULFILLING THE GOVERNMENT'S NEED UNDER THE SPECIFICATIONS. FURTHERMORE, YOU HAVE ALLEGED, ONLY IN BROAD GENERALIZATIONS, THAT THE SPECIFICATIONS WERE RESTRICTIVE AND PROPRIETARY, AND HAVE IDENTIFIED THE RESTRICTIVENESS AND PROPRIETARY MATTER ONLY AS BEING IN THE "AREA OF THE ACCUMULATIVE CONVEYOR.' WE NOTE YOUR STATEMENT IN LETTER OF DECEMBER 15, 1966, TO THE MARINE CORPS THAT:

"* * * IT IS NOT INCUMBENT UPON US TO REVIEW AND CORRECT SPECIFICATIONS PUT OUT BY YOUR GROUP. IF YOU DESIRE THIS SERVICE, WE WILL BE MOST HAPPY TO SUPPLY IT AT A PRICE OF $250 PER DAY PER ENGINEER.'

WE MUST STATE THAT WE DO NOT UNDERSTAND OR AGREE WITH THE POSITION REFLECTED BY THE LANGUAGE QUOTED ABOVE. IF YOU ALLEGE THAT SPECIFICATIONS ARE RESTRICTIVE, BUT ARE NOT WILLING TO POINT OUT THE DETAILS WHICH, IN YOUR OPINION, RESULT IN SUCH RESTRICTIVENESS, WE HAVE NO ALTERNATIVE BUT TO DENY YOUR PROTEST ON THE BASIS THAT IT HAS NOT BEEN SUPPORTED.

UNDER THESE CIRCUMSTANCES WE CONCLUDE THAT THE MARINE CORPS HAS COMPLIED WITH THE REQUIREMENTS FOR COMPETITIVE BIDDING AND THAT THE PROTEST IS WITHOUT SUFFICIENT LEGAL MERIT TO JUSTIFY CANCELLATION OF THE REQUEST FOR PROPOSALS.