B-157973, FEB. 9, 1966

B-157973, FEB. 9, 1966

TO THE LETOURNEAU-WESTINGHOUSE COMPANY:

WE REFER AGAIN TO YOUR TELEGRAM AND LETTER DATED NOVEMBER 4 AND 8, 1965, RESPECTIVELY, PROTESTING AWARD ON THE FORMER DATE OF CONTRACT NO. CPR-11- 3361 BY THE DEPARTMENT OF COMMERCE, BUREAU OF PUBLIC ROADS, TO HUBER CORPORATION.

INVITATION FOR BIDS NO. 66-24 ISSUED SEPTEMBER 30, 1965, AND OPENED ON OCTOBER 26, COVERED THE EXPORT OF 52 DIESEL ROAD GRADERS TO VARIOUS PORTS OF ENTRY IN BRAZIL, PURSUANT TO THE FOREIGN AID PROGRAM, AND SERVICES TO BE RENDERED IN THE LATTER COUNTRY. THE VEHICLES WERE TO BE IN ACCORDANCE WITH FEDERAL SPECIFICATION 00-G-630B, REVISION OF SEPTEMBER 30, 1964, AND TWO PAGES ENTITLED ,EXHIBIT A" WHICH WERE INCLUDED IN THE INVITATION.

A REPORT DATED DECEMBER 10 FROM THE CONTRACTING OFFICER STATES THAT YOUR BID WAS DECLARED NONRESPONSIVE FOR FAILURE TO INCLUDE THE ENGINE MANUFACTURER'S CERTIFIED POWER CURVE. ALTHOUGH YOU IDENTIFIED THE OFFERED VEHICLE AS YOUR MODEL 330 H, TYPE I, SIZE G-3, MACHINE, EQUIPPED WITH A GENERAL MOTORS ENGINE, MODEL 3-71-C, YOUR BID FAILED TO REVEAL THE SIZE OF INJECTORS TO BE USED AND DID NOT DISCRIMINATE AMONG THE FOUR ENGINE OFFERINGS (NOS. 3045C, 3055C, 3057C, AND 3058C) ENCOMPASSED WITHIN THE MODEL 3-71 SERIES. THE AGENCY MAINTAINS THAT THE MINIMUM FLYWHEEL HORSEPOWER OF YOUR GRADER, A MATERIAL CHARACTERISTIC OF PERFORMANCE CAPABILITY, COULD NOT BE ASCERTAINED WITH CERTAINTY FROM THE INFORMATION SUPPLIED IN YOUR BID.

YOU ARGUE NONETHELESS THAT YOUR TOTAL PRICE OF $714,655 WAS $56,986 LESS THAN THE HUBER QUOTATION AND THAT YOU TOOK NO EXCEPTIONS TO THE SPECIFICATIONS AS IS SHOWN BY YOUR SCHEDULING THE WORD "NONE" UNDER THE PARAGRAPH ENTITLED "DEVIATIONS/EXCEPTIONS" WHICH APPEARED ON PAGE 12 OF THE BID SET. IT IS ADMITTED THAT THE ENGINE MANUFACTURER'S CERTIFIED POWER CURVE WAS OMITTED FROM THE BID BUT YOU URGE THAT, IN VIEW OF THE ATTRACTIVENESS OF YOUR PRICE, THE CONTRACTING OFFICER SHOULD HAVE ATTEMPTED AFTER BID OPENING TO CLARIFY THE INADEQUACIES IN THE DATA SUBMITTED.

PARAGRAPH 3 ON PAGE ONE OF EXHIBIT A RECITED AS FOLLOWS:

"3. EQUIPMENT REQUIRED:

1.2 CLASSIFICATION: TYPE I, 6-WHEEL, 4-WHEEL DRIVE, FRONT WHEEL STEER, SIZE G 3 EXCEPT BLADE HORSEPOWER SHALL BE 75.

3.6 ENGINE: THE GRADER SHALL BE POWERED BY A DIESEL ENGINE DEVELOPING NOT LESS THAN 100 FLYWHEEL HORSEPOWER AT MANUFACTURER'S RATED RPM FOR THIS APPLICATION AT SEA LEVEL AND 60 DEGREES F. IF DIESEL ENGINE IS NOT OF BIDDER'S MANUFACTURE, IT SHALL BE GENERAL MOTORS. ENGINE MANUFACTURER'S CERTIFIED POWER CURVE SHALL BE FURNISHED WITH BID. * * *

THE TERMS AND CONDITIONS OF THE INVITATION SET FORTH THE FOLLOWING SIGNIFICANT PROVISIONS:

"REQUIREMENT FOR DESCRIPTIVE LITERATURE:

A. DESCRIPTIVE LITERATURE MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS.

* * * THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO PERFORMANCE CHARACTERISTICS.

* * * FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID * * *.'

SECTION 303 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 41 U.S.C. 253, REQUIRES THAT AWARD BE MADE TO THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER ON AN INVITATION, NOT SIMPLY TO THE LOWEST BIDDER. THE FAILURE OF YOUR BID TO TAKE ANY EXCEPTIONS TO THE SPECIFICATIONS CANNOT BE CONSTRUED AS CURING AN OMISSION TO FURNISH WITH YOUR BID DESCRIPTIVE DATA REQUIRED FOR EVALUATION PURPOSES AND HAVING A MATERIAL BEARING UPON AN ESSENTIAL ASPECT OF THE ITEMS BEING PURCHASED. THE LANGUAGE QUOTED ABOVE MAKES THE SUBMISSION OF THE ENGINE MANUFACTURER'S CERTIFIED POWER CURVE ALONG WITH THE BID A CONDITION UPON A BIDDER'S RESPONSIVENESS. THE AUTHORITY OF THE CONTRACTING OFFICER TO IMPOSE SUCH A REQUIREMENT IN APPROPRIATE CIRCUMSTANCES HAS BEEN SUSTAINED BY OUR OFFICE. SEE 43 COMP. GEN. 23, 25; 40 ID. 32; 36 ID. 415. THE COMPLETE ACQUIESCENCE OF YOUR COMPANY TO THE TERMS OF THE SPECIFICATIONS AND YOUR CORPORATE ASSUMPTION OF FULL RESPONSIBILITY FOR THE CONSEQUENCES OF ANY DEVIATIONS THEREFROM IN THE FINISHED PRODUCT ARE IN THE NATURE OF A BLANKET OFFER TO SUPPLY THE GOVERNMENT'S NEEDS. WE HAVE MANY TIMES HELD A BLANKET OFFER TO COMPLY INSUFFICIENT TO OVERCOME OR RENDER NUGATORY A SPECIFIC INVITATION PROVISION CALLING FOR THE SUBMISSION OF DESCRIPTIVE DATA ON A MATERIAL POINT AND PRESCRIBING AS A PENALTY FOR NONCOMPLIANCE THE INELIGIBILITY OF THE BID FOR AWARD. 37 COMP. GEN. 763, 765; 36 ID. 415, 417. NOR DO WE THINK THE CONTRACTING OFFICER WOULD HAVE BEEN AUTHORIZED TO ACCEPT CLARIFICATION AFTER BID OPENING AS TO THE ENGINE YOU INTENDED TO FURNISH. IT IS WELL SETTLED THAT BIDS MAY NOT BE VARIED AFTER OPENING AND BEFORE AWARD. 40 COMP. GEN. 132, 135. TO PERMIT SUCH A PRACTICE WOULD WORK INJUSTICE UPON THE RIGHTS OF OTHER BIDDERS WHOSE BIDS WERE TIMELY SUBMITTED IN PROPER FORM.

YOU HAVE REFERRED OUR ATTENTION TO SEVERAL INVITATIONS FOR MOTOR GRADERS ISSUED BY OTHER AGENCIES OF THE GOVERNMENT UNDER WHICH YOUR MODEL 330 H MACHINE HAS BEEN PURCHASED AS BEING IN FULL COMPLIANCE WITH FEDERAL SPECIFICATION 00-G-630B. A FEDERAL SPECIFICATION IS DRAFTED TO AFFORD THE WIDEST POSSIBLE LATITUDE FOR COMPETITION WITHIN GENERALLY ACCEPTABLE LIMITS AND TO SERVE AS A VEHICLE FOR STATING THE VARYING REQUIREMENTS OF DIFFERENT AGENCIES ON DIFFERENT OCCASIONS. WE GATHER FROM THE INFORMATION SUBMITTED TO US THAT NONE OF THE SOLICITATIONS IN QUESTION SET FORTH THAT DESCRIPTIVE DATA BE FURNISHED WITH THE BID AS A REQUISITE CONDITION UPON ELIGIBILITY FOR AWARD. IN OUR DECISION NO. B-152033 DATED JANUARY 3, 1964, THE RESPONSIVENESS OF YOUR COMPANY'S BID TO SUPPLY MOTORIZED ROAD GRADERS TO THE UNITED STATES ARMY WAS CONSIDERED. AN AWARD TO ANOTHER BIDDER WAS CANCELLED IN YOUR FAVOR BECAUSE THE RECORD BEFORE US SHOWED THAT, NOTWITHSTANDING THE PRESENCE IN THE INVITATION OF A MANDATORY BUT NONSPECIFIC DESCRIPTIVE LITERATURE REQUIREMENT, THE BROCHURE TENDERED BY YOUR COMPANY WAS SATISFACTORY TO ESTABLISH THAT YOUR PRODUCT MET THE SPECIFICATIONS IN EVERY ESSENTIAL DETAIL EXCEPT WITH REGARD TO THE HYDRAULICALLY OPERATED MOLDBOARD WHICH, WE CONCLUDED, WAS NOT A MATERIAL REQUIREMENT OF THE INVITATION BUT WHICH YOU WERE NONETHELESS OBLIGED TO FURNISH UPON THE ACCEPTANCE OF YOUR OFFER. THE REQUIREMENT IN THIS CASE THAT THE ENGINE DEVELOP NOT LESS THAN 100 FLYWHEEL HORSEPOWER AS DEMONSTRATED BY THE MANUFACTURER'S CERTIFIED POWER CURVE WAS EXPLICITLY SPELLED OUT IN THE SCHEDULE OF THE INVITATION. THE REQUIREMENT FOR THE HYDRAULIC MOLDBOARD WAS CONTAINED IN THE MILITARY SPECIFICATION APPLICABLE TO THE PROCUREMENT. SUCH SPECIFIC MENTION OF THE HORSEPOWER REQUIREMENT IN THE SCHEDULE, COUPLED WITH THE EMPHASIS ON PERFORMANCE CHARACTERISTICS IN THE DESCRIPTIVE LITERATURE PROVISION, MUST BE INTERPRETED AS RENDERING YOUR OMISSION TO SUPPLY THE ENGINE MANUFACTURER'S CERTIFIED POWER CURVE A MATERIAL DEPARTURE FROM THE TERMS OF THE INVITATION REQUIRING REJECTION OF THE BID.

YOU CONTEND THAT THE HUBER BID SHOULD ALSO HAVE BEEN DISQUALIFIED BECAUSE IT WAS PREDICATED UPON FURNISHING THEIR MODEL 9D GRADER WITH A GENERAL MOTORS 4-71 ENGINE AND HUBER'S COMMERCIAL BROCHURE SHOWS THAT THE GENERAL MOTORS 3-71 ENGINE IS STANDARD EQUIPMENT ON THAT MODEL. IT IS NOTED THAT PARAGRAPH 3.1 OF THE FEDERAL SPECIFICATION RECITES THAT:

"UNLESS OTHERWISE SPECIFIED, ALL GRADERS SHALL BE NEW, STANDARD PRODUCTION MODELS OF THE LATEST DESIGN AND EQUIPPED WITH SCARIFIERSIN ADDITION TO STANDARD ACCESSORIES AS HEREINAFTER DESCRIBED.'

THE SPECIFICATIONS ADVERTISED HERE APPEAR TO CALL OUT A MACHINE WHICH MAY BE CATEGORIZED AS FALLING BETWEEN A SIZE G-3 AND G-4 VEHICLE WITHIN THE MEANING OF 00-G-630B. IT APPEARS THAT HUBER CORPORATION QUITE PROPERLY REALIZED THE MODEL 3-71 WOULD BE INADEQUATE TO SERVE THE PURPOSES OF THE BRAZILIAN GOVERNMENT SINCE THE ENGINES ENCOMPASSED WITHIN THIS CATEGORY HAVE NOMINAL RATINGS RANGING FROM 80 TO 99 NET RATED FLYWHEEL HORSEPOWER ACHIEVING THE MAXIMUM ONLY AT 2100 RPM (WHICH EXCEEDS THE MANUFACTURER'S RECOMMENDED OPERATING SPEED FOR NORMAL USE). WE ARE TOLD THAT HUBER HAS SOLD SEVERAL OF ITS 9D GRADERS EQUIPPED WITH 4-71 ENGINES TO THE GENERAL PUBLIC. ALTHOUGH IT IS TO BE REGRETTED THAT THE INVITATION DID NOT EXPRESSLY SPECIFY THAT BIDS PREDICATED UPON DELIVERY OF NONSTANDARD EQUIPMENT WOULD BE ELIGIBLE FOR AWARD, WE DO NOT THINK THAT THE LEGALITY OF THE PRESENT HUBER CONTRACT CAN BE CALLED INTO QUESTION BECAUSE OF THIS MINOR DIVERGENCE FROM THE TERMS OF THE FEDERAL SPECIFICATION, ESPECIALLY SINCE THE PROCUREMENT IS IN IMPLEMENTATION OF THE FOREIGN AID PROGRAM. FEDERAL SPECIFICATIONS ARE CONCEIVED TO SUBSERVE DOMESTIC NEEDS AND NOT THE NEEDS OF FOREIGN GOVERNMENTS OPERATING IN TOTALLY DIFFERENT ENVIRONMENTS.