B-167059, OCT. 22, 1969

B-167059, OCT. 22, 1969

BIDS--DISCARDING ALL BIDS--READVERTISEMENT JUSTIFICATION--NEWER MODEL AVAILABLE AFTER ASCERTAINING FROM BID LITERATURE THAT LATER AND MORE EFFICIENT MODEL VIBRATORY CLEANING MACHINES WERE AVAILABLE AND PROCURABLE WITHOUT SPECIFYING BRAND NAME OR EQUAL, EVEN THOUGH LOW BIDDER CLAIMED HIS PRODUCT MET EXISTING NEEDS AND NEW SPECIFICATIONS FOR BOWL-TYPE (ROUND) INSTEAD OF RECTANGULAR TYPE TUBS WERE RESTRICTIVE, BID CANCELLATION AND READVERTISEMENT WAS PROPER EXERCISE OF ADMINISTRATIVE DISCRETION, SINCE IN ADDITION TO FINDING THAT PROCUREMENT OF NEWER MODEL WAS IN PUBLIC INTEREST, FAILURE TO SPECIFY THAT ONLY BOWL-TYPE CLEANERS MEET MINIMUM REQUIREMENTS IN ORIGINAL INVITATION WAS DEFECT WHICH ALONE WOULD JUSTIFY CANCELLATION; AND RECEIPT OF THREE BIDS UNDER NEW INVITATION NEGATES CONTENTION THAT SPECIFICATIONS WERE UNDULY RESTRICTIVE.

TO KENCO, INC.:

WE REFER TO YOUR TELEGRAM OF MAY 26, AS SUPPLEMENTED BY YOUR LETTERS OF MAY 26, JULY 18, AND AUGUST 18, 1969, WITH ENCLOSURES, PROTESTING AGAINST CANCELLATION OF INVITATION FOR BIDS (IFB) NO. F34650-69-B-0135 FOR THE PROCUREMENT OF SIX VIBRATORY CLEANING MACHINES AND READVERTISEMENT OF THE REQUIREMENT UNDER IFB NO. F34650-69-B-0210, BY THE OKLAHOMA CITY AIR MATERIEL AREA (OCAMA), TINKER AIR FORCE BASE, OKLAHOMA. THE MACHINES ARE USED FOR CLEANING, DEBURRING, SURFACE IMPROVING AND BURNISHING MACHINE COMPONENTS, SUCH AS JET ENGINE PARTS.

IFB NO. F34650-69-B-0135, ISSUED ON MARCH 15, 1969, SET FORTH THE REQUIREMENT UNDER TWO ITEMS OF THREE UNITS EACH. ITEM 1 DESCRIBED THE MACHINES AS SOUTHWESTERN ENGINEERING COMPANY (SWECO) PART NUMBER FMD10HA WITH UNLOADER AND 440 VOLT MOTOR OR EQUAL. ITEM 2 DESCRIBED THE MACHINES AS SWECO PART NUMBER FMD3HA WITH UNLOADER AND 440 VOLT MOTOR OR EQUAL. THE BRAND NAME OR EQUAL CLAUSE INCLUDED IN THE IFB, INTER ALIA, PROVIDED:

"/C) (1) IF THE BIDDER PROPOSES TO FURNISH AN -EQUAL- PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. * * *"

ON APRIL 8, 1969, BIDS WERE OPENED AS SCHEDULED. YOUR BID, WITH A TOTAL PRICE OF $31,275, PROPOSING TO FURNISH MACHINES MANUFACTURED BY HUTSON CORPORATION AND IDENTIFIED AS MODEL NOS. H15 AND H-3-ED, WAS THE LOWEST OF THE FIVE BIDS RECEIVED. THE DESCRIPTIVE DATA FURNISHED WITH YOUR BID DISCLOSED THAT THE MACHINE TUBS WERE "U" SHAPED. DATA FURNISHED ON APRIL 14, WITH RESPECT TO OPERATION OF THE UNLOADERS, STATED THAT "THE PARTS REMAIN UPON SCREEN AND ARE REMOVED MANUALLY.'

BY LETTER DATED APRIL 9, 1969, YOU ADVISED OCAMA THAT THE UNITS YOU OFFERED WERE EQUAL TO OR BETTER THAN THE UNITS REQUIRED BY THE IFB, AND YOU THEREFORE REGISTERED A PROTEST AGAINST ANY DECISION THAT MIGHT BE MADE THAT YOUR MACHINES WERE NOT "EQUAL.' THE PROTEST WAS ACKNOWLEDGED BY THE CONTRACTING OFFICER'S LETTER OF APRIL 21.

THE RECORD INDICATES THAT THE USING ACTIVITY AT OCAMA ASCERTAINED FROM THE DESCRIPTIVE LITERATURE SUBMITTED BY THE OTHER BIDDERS THAT A LATER MODEL VIBRATORY MACHINE WAS AVAILABLE WHICH WOULD IMPROVE THE USING ACTIVITY'S CLEANING FACILITIES. SPECIFICALLY, THE ACTIVITY DISCOVERED THAT THE NEWER MACHINE WAS EQUIPPED WITH AN AUTOMATIC WATER COMPOUND DISPENSING SYSTEM, A FEATURE WHICH ACCOMPLISHES AUTOMATIC DISCHARGING OF THE CLEANED PARTS AND ADDITION OF OTHER PARTS FOR CLEANING WITHOUT SHUTTING THE ENGINE DOWN. ADDITIONALLY, THE USING ACTIVITY DETERMINED THAT BASED ON THE DESCRIPTIVE LITERATURE SUBMITTED ITS ENGINEERING PERSONNEL COULD PREPARE SPECIFICATIONS AND THUS ELIMINATE THE NECESSITY FOR A BRAND NAME OR EQUAL PROCUREMENT. ACCORDINGLY, ON APRIL 24 THE USING ACTIVITY REQUESTED CANCELLATION OF THE IFB, AND ON APRIL 25, THE CONTRACTING OFFICER ISSUED A DETERMINATION, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.1 (B) (II), THAT SUCH ACTION WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT. NOTICE OF CANCELLATION WAS GIVEN TO ALL BIDDERS BY LETTER OF APRIL 29, 1969, WHICH INCLUDED ADVICE THAT NEW SPECIFICATIONS WOULD BE ISSUED AT A LATER DATE.

IFB NO. F34650-69-B-0210, WHICH WAS ISSUED MAY 15, 1969, TO YOU AND TO FIVE OTHER SOURCES, INCLUDED SPECIFICATIONS FOR BOTH MODELS OF MACHINES. THE SPECIFICATIONS APPLICABLE TO ITEM 1 READ, IN PERTINENT PART, AS FOLLOWS: "3.1 THE VIBRATOR SHALL BE OF TOP LOADING BOWL TYPE (PARTS, MEDIA, WATER, ETC.) WITH SEPARATION AND UNLOADING OF PARTS AND MEDIA BEING THROUGH THE USE OF A DAM AND SEPARATOR SCREENS, AUTOMATIC OR SEMI- AUTOMATIC.'3.2 THE DESIRED VIBRATORY ACTION SHALL BE ACHIEVED BY ADJUSTING ECCENTRIC WEIGHTS FITTED ONTO THE VERTICAL MOTOR SHAFT.'3.3 THE OVERALL DIMENSIONS OF THE VIBRATORY MACHINE SHALL BE 50 INCHES IN DIAMETER PLUS OR MINUS 10 INCHES AND 50 INCHES HIGH (UNLOADED), PLUS OR MINUS 6 INCHES.'3.4 EQUIPPED WITH AN AUTOMATIC WATER AND COMPOUND DISPENSING SYSTEM, WITH AN ADJUSTIBLE FLOW RATE. THE DISCHARGE OF RINSING WATER AND ABRASIVE SLUDGE SHALL BE THROUGH ONE (1) TWO TO THREE INCH DRAIN. THIS DRAIN MUST BE CAPABLE OF OPERATING WHILE THE MACHINE IS RUNNING AT THE OPTION OF THE OPERATOR.'

SIMILAR REQUIREMENTS APPLIED TO ITEM 2 EXCEPT THAT THE OVERALL DIMENSIONS WERE 2 FEET 6 INCHES IN DIAMETER AND 3 FEET 3 INCHES HIGH (UNLOADED), PLUS OR MINUS 6 INCHES.

IN YOUR PRE-BID OPENING TELEGRAM AND LETTER OF MAY 26 TO OUR OFFICE, YOU ASSERTED THAT CERTAIN ASPECTS OF THE PURCHASE DESCRIPTION IN THE SECOND IFB WERE PROPRIETARY AND RESTRICTED THE PROCUREMENT TO SWECO MACHINES. SPECIFICALLY, YOU CLAIMED THAT YOUR RECTANGULAR TUB IS EQUALLY AS EFFICIENT AS THE ROUND TUB REQUIRED BY THE SPECIFICATIONS, AND YOU STATED THAT YOU FOUND IT IMPOSSIBLE TO SUBMIT A BID WITHOUT TAKING EXCEPTION TO THE PROPRIETARY ASPECTS OF THE PURCHASE DESCRIPTIONS. YOU THEREFORE REQUESTED THAT THE SECOND IFB BE CANCELLED; THAT THE ORIGINAL IFB BE REINSTATED; AND THAT AWARD BE MADE TO YOU AS THE LOWEST BIDDER.

THE OCAMA PROCURING ACTIVITY GAVE CONSIDERATION TO YOUR PRE-BID OPENING PROTEST BUT DETERMINED THAT THE READVERTISEMENT WAS JUSTIFIED IN VIEW OF THE FINDING BY THE USING ACTIVITY THAT THE AUTOMATIC WATER COMPOUND DISPENSING SYSTEM AVAILABLE ON SOME MODELS OF VIBRATORY MACHINES WAS ADVANTAGEOUS TO THE GOVERNMENT FROM BOTH AN EFFICIENCY AND ECONOMY STANDPOINT AND THAT THE AVAILABLE DESCRIPTIVE LITERATURE ON SUCH MACHINES PROVIDED AN ADEQUATE BASIS FOR PREPARATION OF SPECIFICATIONS REFLECTING THE ACTIVITY'S MINIMUM NEEDS. ACCORDINGLY, BIDS RECEIVED UNDER THE SECOND IFB WERE OPENED ON JUNE 6, AS SCHEDULED, AND THE RESULTS WERE AS FOLLOWS:

UNIT PRICES

BIDDER ITEM 1 ITEM 2

ROTO-FINISH CO. $8,712.00 $3,955.00

HART, INDUSTRIAL SUPPLY 8,530.00 3,830.00

SWECO, INC. 8,516.00 3,800.00

WITH YOUR LETTER OF JULY 18, 1969, YOU ENCLOSED A COPY OF A CONTRACT AWARDED BY KELLY AIR FORCE BASE, TEXAS, ON JULY 15, 1969, TO ANOTHER COMPANY FOR THE FURNISHING OF THE SAME MODELS OF VIBRATORY MACHINES AS YOU HAD OFFERED IN YOUR BID, AND YOU STATED THAT MANY DIFFERENT JET ENGINE PARTS HAD BEEN CLEANED OVER A PERIOD OF SIX WEEKS IN SUCH MACHINES WITHOUT MALFUNCTIONS. IN ADDITION, YOU SUBMITTED A "TECH NOTE," DATED MARCH 1969, PUBLISHED BY THE MAINTENANCE TECHNOLOGY OFFICE, TINKER AIR FORCE BASE, OKLAHOMA, WHICH DESCRIBED BOTH TUB- AND BOWL-TYPE VIBRATORY MACHINES AND, WITHOUT STATING ANY PREFERENCE, SUGGESTED THEIR USE FOR CLEANING AIRCRAFT ENGINE PARTS.

IN YOUR LETTER OF AUGUST 18 YOU STATE THAT THE AUTOMATIC WATER COMPOUND DISPENSING SYSTEM IS NOT A NEW INNOVATION; THAT HAD THE ORIGINAL IFB INCLUDED THIS ACCESSORY, YOU COULD HAVE BID ON IT; AND THAT IF THE AGENCY WANTED THE WATER COMPOUND DISPENSING SYSTEM, IT SHOULD HAVE ISSUED AN AMENDMENT TO THE ORIGINAL IFB INSTEAD OF REWRITING THE SPECIFICATIONS IN A RESTRICTIVE MANNER WHICH PRECLUDED THE SUBMISSION OF A TUB TYPE MODEL. FURTHER, YOU STATE THAT IT IS ONLY THE REQUIREMENT THAT THE POSITION OF THE MOTOR IN THE VIBRATORY MACHINES BE MOUNTED VERTICALLY WHICH PRECLUDES YOU AND OTHER MANUFACTURERS FROM BEING RESPONSIVE TO THE SECOND IFB. ACCORDINGLY, YOU ADHERE TO YOUR POSITION THAT AWARD SHOULD BE MADE TO YOU UNDER THE ORIGINAL IFB, AND YOU URGE THAT A NEW IFB SHOULD BE ISSUED FOR PROCUREMENT OF THE AUTOMATIC WATER COMPOUND DISPENSING SYSTEM, WHICH YOU CLAIM IS VIRTUALLY INTERCHANGEABLE BETWEEN ALL MANUFACTURERS.

OCAMA REPORTS THAT YOUR BID UNDER THE ORIGINAL IFB OFFERED A NEOPRENE LINER IN LIEU OF A POLYURETHANE LINER AND A SCREEN SEPARATOR IN LIEU OF AN UNLOADER; HOWEVER, SUCH VARIANCES FROM THE SWECO MACHINES WERE NOT CITED TO YOU IN VIEW OF THE DECISION TO READVERTISE THE PROCUREMENT. ADDITION, OCAMA RECORDS SHOW THAT YOU WERE ONE OF FOUR CONCERNS WHICH LOANED A VIBRATORY CLEANING MACHINE TO OCAMA FOR THE CONDUCT OF PROCESS TESTING. DURING THE PERIOD ENDING JULY 24, 1969, IN WHICH YOUR MACHINE, A HUTSON MODEL, WAS TESTED, THE FOLLOWING GENERAL OBSERVATIONS WITH RESPECT TO THE MACHINE WERE MADE BY OCAMA TECHNICAL PERSONNEL:

"/1) THE PARTS/MEDIA SEPARATOR SUPPLIED WITH THE MACHINE WAS NOT ADEQUATE AS DESIGNED FOR SEPARATING SMALL PARTS FROM THE MEDIA. TWO TEMPORARY MODIFICATIONS WERE MADE TO THE SEPARATOR WHICH IMPROVED ITS OPERATION. WITH THESE TWO MODIFICATIONS, COMPLETE REMOVAL OF ALL PARTS FROM THE MEDIA COULD NOT BE ASSURED. TWO MEN WERE REQUIRED TO REMOVE THE SEPARATOR.

"/2) REMOVAL OF A LOAD OF NOZZLE NUTS (APPROXIMATELY 1,000) TOOK TWO MEN APPROXIMATELY 20 MINUTES. THIS REQUIREMENT MADE IT OBVIOUS THAT FOR PROCESSING LARGE BATCHES OF SMALL PARTS A VIBRATORY MACHINE WITH AN AUTOMATIC UNLOADER IS HIGHLY DESIRABLE.

"/3) USAGE OF MEDIA (WEAR AWAY RATE) WAS OBSERVED TO BE APPROXIMATELY SIX POUNDS PER HOUR OF MACHINE OPERATION. THE AMPLITUDE OF THE MACHINE WAS VARIED DURING THIS OBSERVATION.

"/4) SHOP AIR PRESSURE WAS NEEDED TO ENSURE LUBRICATION OF THE DRIVE SHAFT BEARINGS. EXCESS LUBRICANT OVERFLOWS FROM THE BLEED VALVE AND DRIPS ON THE FLOOR. THE DRIVE SHAFT SLINGS THE LUBRICANT THAT BLEEDS FROM THE BEARINGS ONTO THE MACHINE AND FLOOR. THIS MAY PRESENT A SAFETY HAZARD.

"/5) THE NOISE GENERATED BY THE HUTSON MACHINE WAS IRRITATING (WORKMEN IN THE GENERAL AREA COMPLAINED). A SOUND SURVEY CONDUCTED BY A BIOENVIRONMENTAL ENGINEER RECOMMENDED EAR DEFENDERS WHENEVER THE HUTSON MACHINE WAS IN USE (ATCH 4). HIS REPORT ALSO STATED EAR PROTECTION WAS NOT NECESSARY FOR OPERATORS OF THE OTHER THREE MACHINES SURVEYED WHICH ARE FROM ANOTHER COMPANY.

"/6) THE RUBBER LINER IN THE HUTSON MACHINE INDICATED GOUGES AFTER PROCESSING TURBINE BLADES. IT PROBABLY WOULD NOT WITHSTAND ABUSIVE ACTION OF THIS NATURE FOR LONG PERIODS OF TIME.'

AS TO THE SPECIFICATIONS SET FORTH IN THE SECOND IFB, OCAMA STATES THAT THE BOWL TYPE OF MACHINES WAS DESIGNATED BECAUSE OF SPACE LIMITATIONS AT THE USING ACTIVITY AND THAT SUCH MODEL EQUIPPED WITH AUTOMATIC WATER COMPOUND DISPENSING SYSTEM, SEMI-AUTOMATIC SEPARATING AND UNLOADING CAPABILITY WAS SELECTED BECAUSE IT IS BEST SUITED TO OCAMA'S MISSION.

ARMED SERVICES PROCUREMENT REGULATION 2-208 PERMITS AMENDMENT OF AN IFB TO EFFECT A CHANGE IN SPECIFICATIONS OR TO CORRECT A DEFICIENCY OR AMBIGUITY IN THE IFB, AMONG OTHER REASONS, PROVIDED THERE IS SUFFICIENT TIME BEFORE BID OPENING TO ENABLE ALL PROSPECTIVE BIDDERS TO CONSIDER THE CHANGES IN SUBMITTING OR MODIFYING THEIR BIDS. WHERE, AS HERE, A DEFECT OR AMBIGUITY IN THE IFB OR A NEED FOR REVISION OF THE SPECIFICATIONS COMES TO LIGHT AFTER BID OPENING, THE MATTER IS GOVERNED BY THE PROVISIONS OF ASPR 2-404.1, RELATING TO CANCELLATION OF AN INVITATION AFTER OPENING, WHICH IMPLEMENTS THE AUTHORITY IN 10 U.S.C. 2305 (C) FOR THE REJECTION OF ALL BIDS IN A FORMALLY ADVERTISED PROCUREMENT WHERE SUCH ACTION IS DETERMINED TO BE IN THE PUBLIC INTEREST.

THE EVIDENCE OF RECORD ESTABLISHES THAT SPACE LIMITATIONS AT THE USING ACTIVITY PRECLUDE USE OF OTHER THAN BOWL-TYPE MACHINES. ACCORDINGLY, WHILE SUCH RESTRICTION NECESSARILY ELIMINATES FROM CONSIDERATION THOSE BIDS OFFERING MACHINES WHICH CANNOT BE USED IN THE AVAILABLE SPACE, WE ARE UNABLE TO CONCLUDE THAT IT DOES NOT REPRESENT A BONA FIDE MINIMUM REQUIREMENT OF THE PROCURING AGENCY. TO THE EXTENT, THEREFORE, THAT THE ORIGINAL IFB FAILED TO ADVISE BIDDERS THAT ONLY A BOWL-TYPE MACHINE WOULD MEET THE GOVERNMENT'S MINIMUM REQUIREMENTS, IT WAS DEFECTIVE, AND THE DEFECT NOT HAVING BEEN CORRECTED BY AN IFB AMENDMENT BEFORE THE BIDS WERE OPENED, SUCH FACTOR ALONE, ALTHOUGH NOT MENTIONED IN THE DETERMINATION ISSUED BY THE CONTRACTING OFFICER IN SUPPORT OF THE IFB CANCELLATION, WAS SUFFICIENT TO JUSTIFY SUCH ACTION. 38 COMP. GEN. 345, 348.

AS TO THE PROPRIETY OF THE INCLUSION IN THE SECOND IFB OF THE REQUIREMENT FOR THE BOWL-TYPE MACHINE AND THE OTHER FEATURES DISCUSSED ABOVE, OUR OFFICE HAS LONG HELD THAT THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT IS PRIMARILY WITHIN THE PROVINCE OF THE PROCURING AGENCY. 17 COMP. GEN. 554. FURTHER, WE HAVE STATED THAT THE MERE FACT THAT ONE BIDDER IS UNABLE TO MEET THE GOVERNMENT'S SPECIFICATIONS IS NOT DETERMINATIVE OF THE QUESTION WHETHER A PARTICULAR SPECIFICATION IS RESTRICTIVE. SEE 30 COMP. GEN. 368; 33 ID. 586. NOR DOES THE FACT THAT SUCH A BIDDER OFFERS LOWER PRICED EQUIPMENT REQUIRE THE GOVERNMENT TO PURCHASE SUCH ITEMS, FOR THE GOVERNMENT IS NOT TO BE PLACED IN A POSITION WHEREBY BIDDERS MAY DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEEDS. 36 COMP. GEN. 251, 252. SINCE THE AIR FORCE REPORTS THAT AT LEAST THREE BIDDERS ARE IN A POSITION TO SUPPLY MACHINES WHICH MEET THE SPECIFICATIONS IN THE SECOND IFB, WE ARE OF THE VIEW THAT SUCH SPECIFICATIONS ARE NOT UNDULY RESTRICTIVE. SEE B 161654, AUGUST 7, 1967; B-164222, SEPTEMBER 23, 1968.

WE RECOGNIZE THAT THE ADMINISTRATIVE DECISION TO PROCURE THE AUTOMATIC WATER COMPOUND DISPENSING SYSTEM FEATURE ON THE VIBRATORY MACHINES WAS MADE LATE IN THE PROCUREMENT CYCLE AND OPERATED TO YOUR DISADVANTAGE. HOWEVER, CONTRACTING OFFICERS ARE CLOTHED WITH BROAD POWERS OF DISCRETION IN DECIDING WHETHER AN INVITATION FOR BIDS SHOULD BE CANCELLED, AND IN THE ABSENCE OF CLEAR EVIDENCE OF ABUSE OF SUCH DISCRETIONARY POWERS, WE WILL NOT OBJECT TO SUCH ACTION. 40 COMP. GEN. 352, 41 ID. 709. FURTHER, IN THIS CASE, THE CANCELLATION RESULTED IN THE ELIMINATION OF A BRAND NAME OR EQUAL PURCHASE DESCRIPTION, WHICH SHOULD ONLY BE USED WHEN A DETAILED DESCRIPTION CANNOT BE MADE AVAILABLE. ASPR 1-1206.1 (A). IN SUCH CIRCUMSTANCES, WE SEE NO LEGAL BASIS FOR A FINDING THAT THE CANCELLATION OF IFB NO. F34650-69-B-0135 AND THE READVERTISEMENT OF THE PROCUREMENT REQUIREMENT WAS OTHER THAN A REASONABLE AND PROPER EXERCISE OF ADMINISTRATIVE DISCRETION. SEE B 162382, MAY 17, 1968.