B-156825, JUL. 26, 1965

B-156825, JUL. 26, 1965

TO PETTIBONE MULLIKEN CORPORATION, C/O C AND M INDUSTRIAL ASSOCIATES, INC.:

IN YOUR TELEGRAM OF MAY 21, 1965, AND IN SUBSEQUENT CORRESPONDENCE, YOU PROTEST THE REJECTION OF YOUR BID AS NONRESPONSIVE TO INVITATION FOR BIDS (IFB) NO. SE B-24030, ISSUED BY FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, SEATTLE, WASHINGTON, FOR TWO FORKLIFTS.

THE SPECIFICATIONS RELEVANT TO THE PROCURING ACTIVITY'S POSITION ARE AS FOLLOWS:

"SPECIFICATIONS

"THE TWO (2) MACHINES TO BE ORDERED FOR THE U.S.M.S. NORTH STAR III MUST HAVE SPECIFICATIONS THAT WILL ALLOW THEIR OPERATION WITHIN THE CONFINES OF THE VESSELS HOLDS, FOR THIS REASON, IT IS ABSOLUTELY NECESSARY THAT THE FOLLOWING MATERIAL SPECIFICATIONS BE AS FOLLOWS:

"2. WEIGHT OF BASIC MACHINES CANNOT EXCEED 3 1/2 DEAD WEIGHT TONS AS SHIP'S GEAR COULD NOT HANDLE.

"LIST OF GENERAL SPECIFICATIONS FOR FORK LIFT TRUCKS (2 EACH) FOR USE ON BOARD U.S.M.S. NORTH STAR III

"WEIGHT OF MACHINES

WEIGHT OF BASIC MACHINES CANNOT EXCEED 7,000 POUNDS.

"TIRES

TIRES MUST BE OF THE PNEUMATIC TYPE.

A. DRIVE WHEELS - 7.50 BY 15 - 10 PLY

"TURN RADIUS

OUTSIDE TURN RADIUS REQUIRED TO BE 81 INCHES.'

IN YOUR BID, YOU INCLUDED THE FOLLOWING "NOTE:"

"NOTE: THE TERM "WEIGHT OF BASIC MACHINES' HAS NOT BEEN CLARIFIED IN THE SPECS OF THIS IFB. THEREFORE, THE MODEL GS-50 WHICH WE PROPOSE TO FURNISH HAS A MAXIMUM WEIGHT OF 7,400 LBS., EQUIPPED AS SPECIFIED BY THIS IFB, AND READY TO BE PUT IN SERVICE. THE MODEL GS-50, PER SPEC. NO. P-668 ATTACHED, MEETS THE REQUIREMENTS OF THE SPECIFICATIONS OF THIS IFB.'

ACCORDINGLY, YOU TYPED A NOTATION BESIDE THE TWO PARAGRAPHS OF THE SPECIFICATION QUOTED ABOVE WHICH REQUIRED THAT THE WEIGHT OF THE BASIC MACHINE NOT EXCEED 7,000 POUNDS, TO THE EFFECT THAT THE MACHINE YOU OFFERED WEIGHED 7,400 POUNDS "EQUIPPED AS SPECIFIED.' YOU ALSO TYPED BESIDE THE SPECIFICATION WHICH REQUIRED TEN PLY TIRES, SIZE 7.50 BY 15, THE FOLLOWING QUALIFICATION: "7.00 BY 12 - 12 PLY.' YOU TOOK NO EXCEPTION TO THE SPECIFICATION REQUIRING A TURN RADIUS OF 81 INCHES.

THE PROCURING ACTIVITY REJECTED YOUR BID AS NOT RESPONSIVE TO THOSE PARTS OF THE SPECIFICATIONS WHICH STATED THE REQUIREMENTS REGARDING THE WEIGHT OF THE BASIC MACHINE, AND THE SIZE AND PLY OF THE TIRES. THE ACTIVITY ALSO DETERMINED THAT YOUR LARGER MODEL GS-50 COULD NOT TURN IN A RADIUS OF 81 INCHES, NOTWITHSTANDING CHANGES IN YOUR STANDARD LITERATURE ON THE GS- 50 MACHINES TO INDICATE THAT THE FORKLIFT YOU OFFERED IN THIS PROCUREMENT WOULD TURN WITHIN THE SPECIFIED RADIUS.

YOU ASSERT THAT THE SPECIFICATION REGARDING THE WEIGHT OF THE FORKLIFT IS AMBIGUOUS IN THAT IT REFERS TO THE WEIGHT OF THE "BASIC" MACHINE BUT DOES NOT SPELL OUT WHICH ATTACHMENTS TO THE FORKLIFT ARE REGARDED AS "BASIC.' YOU ALLEGE THAT BECAUSE OF THIS AMBIGUITY, YOU QUOTED 7,400 AS THE WEIGHT OF THE MACHINE,"EQUIPPED AS SPECIFIED," BUT THAT ITS WEIGHT WOULD BE 7,000 POUNDS, AS REQUIRED IN THE IFB, WHEN THE FORKS AND OVERHEAD GUARDS ARE REMOVED. IN A TELEGRAM OF MAY 25, 1965, YOU CONTEND THAT THE DECISION AS TO THE RESPONSIVENESS OF YOUR BID WAS ERRONEOUS BECAUSE IT WAS BASED ONLY ON ALL OF THE FACTS AVAILABLE TO THE PROCURING ACTIVITY AT BID OPENING TIME, AND YOU ARGUE THAT IT WAS IMPROPER FOR THE ACTIVITY TO MAKE SUCH A DECISION WITHOUT FIRST ASKING YOU TO CLARIFY THE "NOTE" WHICH YOU HAD TYPED ON YOUR BID. YOU POINT OUT THAT YOU WROTE TO THE PROCURING ACTIVITY SHORTLY AFTER BID OPENING TO ADVISE THAT IT SHOULD NOT HESITATE TO CONTACT YOU IF IT REQUIRED ADDITIONAL INFORMATION REGARDING THE FORKLIFTS.

WITH RESPECT TO THE ASSERTION THAT YOU THOUGHT THE IFB ON WHICH YOU SUBMITTED A BID WAS AMBIGUOUS, YOUR ATTENTION IS DIRECTED TO THE FOLLOWING QUOTATION FROM OUR DECISION B-151355, DATED JUNE 25, 1963, TO YALE AND TOWN MANUFACTURING COMPANY, IN WHICH WE UPHELD AN AWARD TO YOUR FIRM UNDER IFB NO. DSA-4-63-1853, NOTWITHSTANDING A SIMILAR ASSERTION BY YALE:

"* * * WE THEREFORE SUGGEST THAT, IN FUTURE PROCUREMENT WHERE YOU BELIEVE ANY PROVISION OF THE INVITATION FOR BIDS, DRAWINGS, SPECIFICATIONS, OR OTHER DOCUMENTS WHICH MAY AFFECT CONTRACTUAL OBLIGATIONS UPON AWARD OF THE CONTRACT, IS ERRONEOUS, AMBIGUOUS, OR IMPOSSIBLE OF ATTAINMENT, IT SHOULD BE CALLED TO THE ATTENTION OF THE CONTRACTING OFFICER IN WRITING PRIOR TO BID SUBMISSION, TOGETHER WITH A REQUEST FOR AN AMENDMENT TO THE INVITATION WHICH WILL CORRECT, INTERPRET, OR OTHERWISE EXPLAIN TO ALL BIDDERS THE QUESTIONED PORTION OF THE INVITATION.'

SEE ALSO B-156025, DATED MAY 4, 1965.

THE RECORD DOES NOT INDICATE THAT YOU MADE ANY ATTEMPT BEFORE BID OPENING TO RESOLVE ANY DOUBT YOU MAY HAVE HAD CONCERNING THE IFB'S REQUIREMENT THAT THE "BASIC" MACHINE NOT WEIGH MORE THAN 7,000 POUNDS. RATHER, IT WOULD APPEAR THAT YOU WAITED UNTIL BIDS WERE BEING OPENED BEFORE CONVEYING SUCH DOUBTS TO THE PROCURING ACTIVITY BY MEANS OF THE "NOTE" INCLUDED IN YOUR BID. THE ,NOTE" CONTAINED NO BREAKDOWN OF THE WEIGHT OF CERTAIN REMOVABLE PARTS WHICH YOU NOW SAY CONTRIBUTED TO THE 7,400 POUNDS, AND CONSEQUENTLY, THE BUYING ACTIVITY HAD NO WAY OF DETERMINING FROM YOUR BID THE WEIGHT OF YOUR FORKLIFT WITHOUT THE REMOVABLE PARTS. IN THE ABSENCE OF THIS INFORMATION, YOUR BID ON ITS FACE WAS NOT RESPONSIVE TO THE IFB REQUIREMENT CONCERNING THE WEIGHT OF THE ITEM. TO PERMIT YOU TO MAKE YOUR BID RESPONSIVE BY CONSIDERING THE ADDITIONAL INFORMATION YOU SUPPLIED AFTER BID OPENING WOULD BE TANTAMOUNT TO PERMITTING YOU TO SUBMIT A NEW BID. SEE 38 COMP. GEN. 819, 821.

SINCE IT APPEARS FROM THE ABOVE THAT IT WAS NECESSARY TO REJECT YOUR BID AS NOT RESPONSIVE TO THE SPECIFICATION WHICH REQUIRED THAT THE WEIGHT OF THE FORKLIFT NOT EXCEED 7,000 POUNDS, WE BELIEVE REVIEW OF THE OTHER REASONS GIVEN BY THE PROCURING ACTIVITY FOR REJECTING YOUR BID, AND YOUR REPLIES TO SUCH REASONS, IS NOT REQUIRED.