B-141334, JAN. 19, 1960

B-141334, JAN. 19, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF JANUARY 4, 1960, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING TO BE ADVISED WHETHER WE WOULD BE REQUIRED TO OBJECT TO AN AWARD OF A CONTRACT TO THE LOW BIDDER UNDER INVITATION FOR BIDS NO. QM 44-109-60-4 ISSUED BY THE QUARTERMASTER ACTIVITIES, PURCHASING DIVISION, CAMERON STATION, ALEXANDRIA, VIRGINIA.

THE SUBJECT INVITATION SOUGHT BIDS ON THE FURNISHING OF TWO FORK TRUCKS MORE PARTICULARLY DESCRIBED THEREIN AND EQUAL TO MODEL NO. E3RT 57 AS MANUFACTURED BY THE RAYMOND CORPORATION. BY AMENDMENT NO. 1 THE ABOVE- MENTIONED DESCRIPTION OF THE UNIT WAS DELETED AND IN LIEU THEREOF THE INVITATION SPECIFIED A TRUCK TO INCORPORATE CERTAIN DESIGNATED FEATURES, AND TO BE FABRICATED IN ACCORDANCE WITH SPECIFICATIONS MIL-T-21643, DATED OCTOBER 2, 1958. IN RESPONSE TO THE INVITATION TWO BIDS WERE SUBMITTED: ONE BY PAUL H. WERRES COMPANY, INC., FOR $13,991.40 NET, AND THE LOW BID OF THE MOTO-TRUC COMPANY FOR $10,884 LESS 1/2 OF ONE PERCENT DISCOUNT FOR PAYMENT WITHIN 20 DAYS.

AFTER OPENING OF THE BIDS, BUT PRIOR TO AWARD, PAUL H. WERRES COMPANY, INC., REPRESENTING THE RAYMOND CORPORATION, PROTESTED THE AWARD OF A CONTRACT TO THE LOW BIDDER ON THE GROUND, PRIMARILY, THAT THE MOTO-TRUC COMPANY, TO MEET THE 90-DAY DELIVERY REQUIREMENT, CANNOT COMPLY, AND HAS NO INTENTION OF COMPLYING, WITH THAT PORTION OF THE SPECIFICATION RELATING TO THE FURNISHING OF A CERTIFICATION OF COMPLIANCE WITH "BACK-UP" DATA AS STIPULATED IN PARAGRAPH 3.1.4 THEREOF. THAT PROVISION READS AS FOLLOWS:

"WHEN SPECIFIED HEREIN, OR UPON REQUEST OF THE TEST OFFICER, A CERTIFICATE OF COMPLIANCE WITH THE REQUIREMENTS OF THIS SPECIFICATION SHALL BE FURNISHED. SUCH CERTIFICATES SHALL INCLUDE BACK-UP DATA, ON WHICH A CERTIFICATE OF COMPLIANCE IS ISSUED IN ADDITION TO THE FOLLOWING: THIS CERTIFIES THAT -------- (COMPONENT, PART OF ASSEMBLY) COMPLIES WITH ALL PROVISIONS AND REQUIREMENTS OF SPECIFICATIONS ------ ----, PARAGRAPH - ---------. THE CERTIFICATES SHALL BE SIGNED BY A DULY AUTHORIZED AGENT OF THE CONTRACTOR.'

SPECIFICALLY, THE PROTESTANT CONTENDS THAT IN ORDER TO FURNISH THE REQUIRED CERTIFICATE OF COMPLIANCE, IN ACCORDANCE THEREWITH, THE LOW BIDDER WOULD NOT ONLY HAVE TO DESIGN AND BUILD THE TRUCK, BUT WOULD ALSO HAVE TO PERFORM ALL OF THE TESTS REQUIRED IN PARAGRAPH 4.1 THROUGH 4.5 OF THE SUBJECT SPECIFICATIONS. WE DO NOT AGREE WITH THAT CONTENTION BECAUSE OF THE FACT THAT THE AMENDMENT MODIFIED THE SUBJECT SPECIFICATION BY STIPULATING THAT "A PREPRODUCTION MODEL AND TESTS AS PROVIDED FOR IN THE SPECIFICATIONS WILL NOT BE REQUIRED. IN LIEU THEREOF THE CONTRACTOR WILL FURNISH CERTIFICATES OF COMPLIANCE AS PROVIDED FOR IN PAR. 3.1.4 AND 6.3.'

IN SUBMITTING THE EXECUTED COPIES OF AMENDMENT NO. 1 TO THE INVITATION, THE LOW BIDDER'S AGENT STATED THAT "THE EQUIPMENT WE PROPOSED TO FURNISH IF AWARDED A CONTRACT WILL BE IN EXACT ACCORDANCE WITH SPECIFICATION MIL-T -21643 AND ALSO IN ACCORDANCE WITH ITEM NO. 1 OF YOUR AMENDED INVITATION.' THIS CONSTITUTES COMPLIANCE WITH PARAGRAPH 6.3 OF THE SPECIFICATIONS. IN CORRESPONDENCE WITH THE PROCUREMENT OFFICE THE MOTO- TRUC COMPANY STATED THAT IT HAS BEEN BUILDING SIMILAR TRUCKS SINCE 1937, WHICH HAVE COMPLIED WITH ALL OF THE REQUIREMENTS OF MANY LARGE AND REPUTABLE INDUSTRIAL USERS OF THE EQUIPMENT.

SO FAR AS CONCERNS THE FURNISHING OF A CERTIFICATE OF COMPLIANCE, WITH "BACK-UP" DATA, AS REQUIRED BY PARAGRAPH 3.1.4 OF THE SPECIFICATIONS, WE ARE AWARE OF THE FACT THAT THE SPECIFICATIONS DO NOT DEFINE THE NATURE AND EXTENT OF THE BACK-UP DATA TO BE FURNISHED WITH SUCH CERTIFICATE. ORDINARILY, AS THE PROTESTING BIDDER CONTENDS, THIS DATA WOULD CONSIST OF EVIDENCE OF THE TESTS WHICH WERE SPECIFICALLY DELETED IN THE PRESENT CASE. IN VIEW OF THIS DELETION, A REASONABLE INTERPRETATION OF THE BACK- UP DATA REQUIREMENT MIGHT WELL BE, AS STATED BY THE ADMINISTRATIVE OFFICE, THAT IT CONSIST OF SUCH INFORMATION AS PLANT INSPECTION DATA, THE CONTRACTOR'S QUALITY ASSURANCE PROGRAM, PERFORMANCE EXPERIENCE OF LARGE USERS OF COMPARABLE EQUIPMENT, ETC.

WE REALIZE THAT THE REQUIREMENT, BECAUSE OF THE DELETION OF THE TESTS, IS RATHER INDEFINITE IN NATURE, AND WE BELIEVE THAT SUCH AN INDEFINITE STANDARD SHOULD ORDINARILY BE AVOIDED. HOWEVER, IN VIEW OF THE FACT THAT THE INSTANT PROCUREMENT IS FOR ONLY TWO TRUCKS, AND CONSIDERING THE TIME WHICH WOULD BE CONSUMED IN FURNISHING AND TESTING A PREPRODUCTION MODEL AS CALLED FOR BY THE SPECIFICATIONS PRIOR TO THEIR AMENDMENT, WE ARE NOT DISPOSED TO CONSIDER THE MATTER A FATAL DEFECT IN THIS PARTICULAR CASE. IT IS ASSUMED THAT THE BACK-UP DATA TO BE FURNISHED BY THE CONTRACTOR WILL BE EVALUATED BY THE CONTRACTING OFFICER ON THE PREMISE THAT IT MUST CONSTITUTE A REASONABLE BASIS, IN THE CIRCUMSTANCES, FOR A DETERMINATION THAT THE TRUCKS MEET THE SPECIFICATION REQUIREMENTS.

WITH RESPECT TO THE QUESTION RAISED IN THE REPORT OF THE DEPUTY QUARTERMASTER GENERAL REGARDING EXTENSION OF TIME FOR ACCEPTANCE, THE RECORD SHOWS THAT BECAUSE OF THE PROTEST OF THE HIGHER BIDDER NO AWARD COULD BE MADE WITHIN THE ACCEPTANCE PERIOD STIPULATED BY THE LOW BIDDER AND, THEREFORE, A 30-DAY EXTENSION WAS REQUESTED. THE MOTO TRUC COMPANY OFFERED TO EXTEND THE ACCEPTANCE UNTIL JUNE 4, 1960, AND TO COMPLETE THE CONTRACT WITHIN 90 DAYS AFTER ACCEPTANCE.

IN VIEW OF THE FACT THAT THE EXTENSION OF THE ACCEPTANCE PERIOD WAS FOR THE BENEFIT OF THE GOVERNMENT, WE WOULD NOT BE REQUIRED TO OBJECT TO AN AWARD OF THE CONTRACT TO THE MOTO-TRUC COMPANY.