B-145139, MAR. 30, 1961

B-145139, MAR. 30, 1961

TO THE SECRETARY OF THE NAVY:

BY LETTER DATED MARCH 2, 1961, REFERENCE R1.1, THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, FORWARDED THE REQUEST OF E. H. CLARK, CONTRACTING OFFICER, FOR AN ADVANCE DECISION AS TO WHETHER THE BID OF THE RECONY DIVISION, VINCO CORPORATION, SUBMITTED UNDER INVITATION FOR BIDS NO. 600-381-61 MAY BE CONSIDERED AS RESPONSIVE TO THE SPECIFICATIONS FOR THE PURPOSE OF MAKING AN AWARD TO THAT BIDDER.

THE INVITATION DATED NOVEMBER 10, 1960, REQUESTED BIDS FOR 46 "TRANSPORTER FOR PILOTS AND AIRCREW MEMBERS WEARING FULL PRESSURE SUITS," AND RELATED PUBLICATIONS, DATA SHEETS AND TECHNICAL DATA. IT WAS PROVIDED ON PAGE 6 THAT COMPLETED TRANSPORTER UNITS SHALL BE IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-T-22278/WEP) DATED DECEMBER 8, 1959, EXCEPT FOR INDICATED MODIFICATIONS LISTED IN THE INVITATION.

IN ACCORDANCE WITH PARAGRAPH 2-202.5, ASPR, THE FOLLOWING PERTINENT PROVISIONS RESPECTING DESCRIPTIVE LITERATURE WERE INCLUDED ON PAGE 9 OF THE INVITATION:

"REQUIREMENT FOR DESCRIPTIVE LITERATURE

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THIS DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCT THE BIDDER PROPOSES TO FURNISH AS SPECIFIED BELOW:

"D. NAME, MODEL NUMBER; MANUFACTURER'S RATING CURVES AND DATA, AND A CROSS SECTION OF OUTLINE DRAWING (WHERE INDICATED) FOR EACH OF THE FOLLOWING COMPONENTS:

"/1) CHASSIS

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. * * * "

BIDS WERE OPENED ON DECEMBER 15, 1960, AND IT APPEARS THAT THE BID OF RECONY WAS THE LOWEST OVER-ALL BID RECEIVED. HOWEVER, THE DESCRIPTIVE LITERATURE SUBMITTED BY RECONY ON THE CHASSIS OF THE TRANSPORTER INDICATED THAT THE COMPANY WAS OFFERING TUBE-TYPE TIRES RATHER THAN THE TUBELESS TYPE REQUIRED BY PARAGRAPH 3.5.10.1 OF MIL-T 22278/WEP). THAT PARAGRAPH READS AS FOLLOWS:

"TIRES: TIRES SHALL BE TUBELESS TYPE WITH HIGHWAY TREAD. TIRES SHALL BE OF RATED CAPACITY AT LEAST EQUAL TO THE LOAD IMPOSED ON EACH TIRE, MEASURED AT EACH WHEEL, AT THE GROUND, WITH VEHICLE LOADED TO ITS RATED GVW. TIRES SHALL BE OF NOT LESS THAN 100 LEVEL QUALITY. MANUFACTURER'S CURRENT SIZE OF TIRES CONFORMING TO SPECIFIED REQUIREMENTS MAY BE FURNISHED. TIRES SHALL BE SIZE 8 BY 22.5, 8 PLY OR LARGER.'

THE DESCRIPTIVE LITERATURE FURNISHED BY RECONY WAS EVALUATED BY THE BUREAU OF NAVAL WEAPONS AND IT WAS CONCLUDED THAT THE LITERATURE INDICATED COMPLIANCE WITH ALL THE REQUIREMENTS, EXCEPT:

"FULL COMPLIANCE OF THE CHASSIS TO THE REQUIREMENTS OF MIL-T-22278 CANNOT BE DETERMINED AS THE SUBJECT BIDDER SUBMITTED CONFLICTING INFORMATION ON THIS COMPONENT. THE MIMEOGRAPHED SUMMATION OF CHASSIS SPECIFICATIONS SUBMITTED INDICATED THAT 8.25 BY 17 TEN PLY TUBE TYPE TIRES WERE BEING OFFERED FOR THIS APPLICATION WHEREAS THE INTERNATIONAL HARVESTER COMPANY CATALOG SHEET LISTS 9 BY 19.5 TEN PLY TUBELESS TIRES AS BEING STANDARD ON THE AM152 CHASSIS WHEN RATED AT 14,000 LBS. G.V.W. THE TUBE TYPE TIRES LISTED ON THE SUMMATION SHEET DO NOT COMPLY WITH PARAGRAPH 3.5.10.1 OF MIL -T-22278 SINCE TUBELESS TYPE TIRES ARE REQUIRED. IT IS NOTED THAT THE RATINGS OF THE TIRES LISTED ON BOTH THE SUMMATION SHEET AND THE INTERNATIONAL CATALOG SHEET EXCEED THE RATING OF THE TIRES REQUIRED IN PARAGRAPH 3.5.10.1.'

IN VIEW OF THE REPORTED DISCREPANCIES BETWEEN MIL-T-22278/WEP) AND RECONY'S DATA ON THE CHASSIS THEY PROPOSE TO FURNISH, QUESTION HAS ARISEN WHETHER RECONY MAY BE PERMITTED TO OFFER TO CONFORM TO THE SPECIFICATIONS INSOFAR AS TUBELESS-TYPE TIRES ARE CONCERNED. DOUBT IN THE MATTER ARISES BECAUSE OF OUR DECISION REPORTED AT 30 COMP. GEN. 179 WHERE WE HELD THAT DEVIATIONS WHICH AFFECT PRICE, QUANTITY OR QUALITY MAY NOT BE WAIVED SO AS TO PERMIT BIDDERS TO CHANGE THEIR BIDS AFTER OPENING.

THE DESCRIPTIVE LITERATURE REQUIREMENTS CONCERNING THE TRUCK CHASSIS DID NOT SPECIFICALLY REQUIRE THAT BIDDERS SUBMIT DATA ON INDIVIDUAL COMPONENTS OR STANDARD ITEMS OF CHASSIS EQUIPMENT. THE BUREAU OF NAVAL WEAPONS REPORTED THAT THE INTENT FOR DATA WAS TO SHOW COMPLIANCE WITH PARAGRAPH 3.5 OF THE SPECIFICATION ENTITLED "CHASSIS COMPONENTS," INCLUDING GROSS VEHICLE WEIGHT RATING, ENGINE TYPE AND RATING, TRANSMISSION TYPE, SUSPENSION, AXLES, BRAKES, TIRES, ETC. THE BUREAU FURTHER ADVISED THAT BIDDERS GENERALLY SUBMIT IN RESPONSE TO THIS REQUIREMENT THE CHASSIS MANUFACTURER'S CATALOG SHEETS WHICH INCLUDE INFORMATION ON STANDARD COMPONENTS AND COMMON OPTIONAL COMPONENTS OR ACCESSORIES.

PARAGRAPH 3.1 OF THE SPECIFICATION PROVIDES:

"3.1 STANDARDS, DIMENSIONS AND WEIGHTS: VEHICLE, VEHICLE COMPONENTS, ASSEMBLIES AND ACCESSORIES ADVERTISED BY THE VEHICLE MANUFACTURER AS STANDARD OR STANDARD OPTION ITEMS FOR THE BASIC VEHICLE MODEL OFFERED, SHALL BE FURNISHED UNDER THIS SPECIFICATION. IN THE EVENT OF A CONFLICT BETWEEN THE MANUFACTURER'S STANDARD OR STANDARD OPTION ITEMS AND THIS SPECIFICATION, THE DETAIL REQUIREMENTS OF THIS SPECIFICATION SHALL GOVERN.'

ALSO, PARAGRAPH 6.2 OF THE SPECIFICATION PROVIDES:

"6.2INFORMATION TO ACCOMPANY BID: BIDDER SHOULD SUBMIT A POSITIVE STATEMENT WHETHER OR NOT ITEM BID UPON FULLY CONFORMS TO THE TERMS OF THIS SPECIFICATION. IN ADDITION, BIDDER SHOULD FURNISH COMPLETE DESCRIPTIVE LITERATURE, DRAWINGS OR PHOTOGRAPHS, AND COMPLETE TECHNICAL DATA COVERING THE EQUIPMENT HE PROPOSES TO FURNISH, IDENTIFYING THE EQUIPMENT BY THE NAME OF THE MANUFACTURER AND THE MODEL NUMBER. LACK OF SPECIFIC AND COMPLETE INFORMATION WILL BE SUFFICIENT CAUSE FOR REJECTION OF BID/S). WHERE THE BIDDER'S PRODUCT DIFFERS FROM THE SPECIFIC REQUIREMENTS, EACH POINT OF DIFFERENCE SHOULD BE CLEARLY DESCRIBED. THIS REQUIREMENT IS SET FORTH TO FACILITATE THE REVIEW OF BIDS AND IS NOT TO BE CONSTRUED BY THE BIDDER AS WAIVING ANY OF THE REQUIREMENTS OF THE SPECIFICATION.'

PAGE 11 OF THE INVITATION REQUIRING THAT BIDDERS ANSWER THE QUESTION WHETHER THE EQUIPMENT OFFERED IS IN STRICT ACCORDANCE WITH THE GOVERNING SPECIFICATIONS WAS ANSWERED BY RECONY IN THE AFFIRMATIVE. IN THE DESCRIPTIVE LITERATURE ACCOMPANYING ITS BID, RECONY MADE THE FOLLOWING STATEMENT:

"RECONY HAS EXAMINED THE APPLICABLE DOCUMENTS INCLUDING SPECIFICATION MIL -T-22278/WEP), DATED 8 DECEMBER 1959. THE ARTICLES TO BE SUPPLIED UNDER CONTRACT WILL CONFORM TO THESE REQUIREMENTS.'

RECONY FURTHER INFORMED THE CONTRACTING AGENCY ON DECEMBER 23, 1960, OR AFTER BID OPENING, HAT:

"WE HAVE RE-EXAMINED THE SPECIFICATION MIL-T-22278/WEP) AND APPLICABLE DOCUMENTS ON THE SUBJECT MATERIAL AND WE CONFIRM OUR UNIT PRICE OF $10,568 EACH. THE ARTICLES TO BE SUPPLIED UNDER THIS CONTRACT WILL CONFORM IN ALL RESPECTS TO THESE SPECIFICATIONS AND REQUIREMENTS. * * *"

WE RECOGNIZE THAT A TRUCK CHASSIS INCLUDES ITS RUNNING GEAR AND PRESUMABLY THE TIRES, AND THAT TUBELESS TIRES OF THE SIZE 8 BY 22.5, 8 PLY OR LARGER WERE REQUIRED BY THE SPECIFICATION, BUT WE DO NOT FEEL THAT THE INFORMATION FURNISHED BY RECONY AS TO THE TIRE-TYPE REQUIRES THE SUMMARY REJECTION OF ITS BID WHICH OTHERWISE CONFORMS TO THE SPECIFICATION, ESPECIALLY WHERE THE DESCRIPTIVE LITERATURE REQUIREMENT OF THE INVITATION DID NOT IN SPECIFIC TERMS MAKE THE FURNISHING OF TIRE-TYPE DATA A MATERIAL REQUIREMENT. FURTHERMORE, IT IS NOTED THAT A DISCREPANCY EXISTS BETWEEN THE INTERNATIONAL HARVESTER CATALOG SHEET AND THE SUMMATION SHEETS SUBMITTED BY RECONY SHOWING DETAILS OF THE TYPE PROPOSED TO BE FURNISHED.

CONSIDERING THAT THE BID OF RECONY MAY BE REGARDED AS SOMEWHAT AMBIGUOUS SO FAR AS TIRE-TYPE IS CONCERNED, A READING OF RECONY'S ENTIRE BID, TOGETHER WITH THE DESCRIPTIVE LITERATURE AND ITS OVER-ALL OFFER TO COMPLY WITH THE SPECIFICATION IN ALL RESPECTS, LEADS US TO THE CONCLUSION THAT ANY SUCH AMBIGUITY MUST BE RESOLVED ON THE BASIS THAT RECOMY OFFERED, AND WOULD BE CONTRACTUALLY REQUIRED TO FURNISH, TUBELESS TIRES. UNDER THE PRINCIPLE THAT AN AMBIGUOUS BID IS TO BE CONSTRUED AGAINST THE BIDDER, WE FEEL THAT THIS INTERPRETATION IS PROPER.

ACCORDINGLY, AND SINCE A CONFIRMATION REQUESTED FROM RECONY AS TO ITS OBLIGATION TO FURNISH TUBELESS TIRES WOULD NOT BE INCONSISTENT WITH A REASONABLE INTERPRETATION OF THE BID AS SUBMITTED, YOU ARE ADVISED THAT THE BID OF RECONY MAY BE CONSIDERED FOR AWARD ON THAT BASIS, IF OTHERWISE CORRECT.

THE ENCLOSURES TRANSMITTED WITH THE LETTER OF MARCH 2, 1961, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT OF FACTS AND A COPY OF THE INVITATION, ARE RETURNED.