B-151155, MAY 24, 1963

B-151155, MAY 24, 1963

TO HUBER-WARCO COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 26, 1963, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST REJECTION OF YOUR LOW BID BY THE DEPARTMENT OF THE ARMY UNDER INVITATION FOR BIDS NO. ENG-11-184-63-A 276.

INVITATION FOR BIDS NO. ENG-11-184-63-A-276 ASKED FOR BIDS ON 235 EACH, GRADER, ROAD, MOTORIZED, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-G- 804C, DATED JULY 26, 1962. WITH RESPECT TO BLADE CONTROL SPEED, PARAGRAPH 3.12.5 OF THE SPECIFICATIONS REQUIRED THAT:

"* * * THE MAXIMUM VERTICAL BLADE RAISING RATE SHALL VARY NOT MORE THAN 5 PERCENT FROM THE MAXIMUM BLADE LOWERING RATE WITH THE ENGINE OPERATING AT FULL-LOAD GOVERNED SPEED.'

PARAGRAPH 4.5.2.15.2 SET FORTH TEST REQUIREMENTS FOR BLADE CONTROL SPEED AND STATED IN PART:

"* * * A DIFFERENCE OF MORE THAN 5 PERCENT IN THE AVERAGE TIME REQUIRED FOR BLADE RAISING AND THE AVERAGE TIME REQUIRED FOR BLADE LOWERING SHALL CONSTITUTE FAILURE OF THIS TEST.'

WITH RESPECT TO BLADE ACTUATING MECHANISM INTERFERENCE, PARAGRAPH 3.12.6 OF THE SPECIFICATIONS REQUIRED THAT:

"* * * NO MOVEMENT OR COMBINATION OF MOVEMENTS OR ADJUSTMENTS OF THE MOLDBOARD ASSEMBLY SHALL CAUSE ANY PART OF THE ACTUATING MECHANISM TO CONTACT ANY STRUCTURAL PART OF THE GRADER IN SUCH A MANNER AS TO DAMAGE THE STRUCTURE OR MECHANISM. ELECTRIC LIMIT SWITCHES TO PROVIDE THIS PROTECTION SHALL NOT BE PERMITTED.'

PARAGRAPH 4.5.2.15.1 SET FORTH TEST REQUIREMENTS FOR THE ACTUATING MECHANISM AND STATED:

"* * * DAMAGE TO ANY ACTUATING MECHANISM OR STRUCTURAL MEMBER OF THE GRADER SHALL CONSTITUTE FAILURE OF THIS TEST.'

DAMAGE WAS DEFINED AS PHYSICAL CHANGE WHICH WOULD IMPAIR OR MAKE FURTHER OPERATION IMPOSSIBLE.

FOUR BIDS, RANGING FROM YOUR LOW BID OF $11,430.70 PER UNIT TO A HIGH BID OF $12,847 PER UNIT, WERE RECEIVED IN RESPONSE TO THE INVITATION. YOUR LOW BID WAS ACCOMPANIED BY A LETTER ADVISING AS FOLLOWS:

"IN CONNECTION WITH OUR ATTACHED BID FOR FURNISHING MOTOR GRADERS AS COVERED BY THE SUBJECT INVITATION, THERE ARE TWO EXCEPTIONS WE WISH TO TAKE TO MILITARY SPECIFICATION MIL-G-804C:

1. PARAGRAPHS 3.12.6 AND 4.5.2.15.1 ACTUATING MECHANISM INTERFERENCE.

OUR MOLDBOARD IS RAISED AND LOWERED BY HYDRAULIC CYLINDERS. WHEN THE MOLDBOARD IS PLACED IN ITS EXTREME 90 DEGREE RIGHT OR LEFT POSITIONS THE ACTUATING MECHANISM CAN CONTACT THE FRAME, IF NOT OPERATED IN ACCORDANCE WITH OUR STANDARD INSTRUCTIONS. NO MOTOR GRADER BEING MANUFACTURED TODAY CAN COMPLY WITH THE PRECISE WORDING OF THESE PARAGRAPHS ON THIS POINT.

2. PARAGRAPH 4.5.2.15.2 BLADE CONTROL SPEED

RESTRICTING THE RAISING SPEED OF THE BLADE TO A MAXIMUM OF 5 PERCENT FASTER THAN THE LOWERING SPEED IS IMPRACTICAL AND DETRIMENTAL TO GOOD GRADER OPERATING PROCEDURE. IT SEEMS TO BE AN ATTEMPT TO LIMIT BIDS TO MECHANICAL CONTROLS AT A TIME WHEN ALL TYPES OF HEAVY CONSTRUCTION MACHINERY ARE BEING CONVERTED FROM MECHANICAL CONTROLS TO THE MORE MODERN HYDRAULIC CONTROLS. THERE ARE MANY OTHER REASONS FOR DEMANDING HYDRAULIC CONTROLS SUCH AS EASIER FIELD MAINTENANCE AND REPAIR, LESS TIRING FOR OPERATOR, ETC.

THE HUBER MOTOR GRADER HAS A RAISING SPEED OF 25 PERCENT FASTER THAN ITS LOWERING SPEED. THIS WHEN COUPLED WITH HYDRAULIC CONTROLS PERMITS THE OPERATOR TO QUICKLY RAISE THE BLADE TO AVOID OBSTACLES AND SAVE TIME AT THE END OF A GRADING PASS. PREFERENCE SHOULD BE GIVEN TO THAT MACHINE HAVING THE GREATEST PERCENTAGE OF RAISING SPEED OVER LOWERING SPEED.

"IN SUMMARY, WE FEEL THAT THE SPECIFICATION UNDER OUR POINT NO. 1 SHOULD BE DISREGARDED AS NO ONE CAN, LITERALLY, COMPLY. AS TO THE SPECIFICATION UNDER OUR POINT NO. 2, WE FEEL WE SHOULD BE GIVEN PREFERENCE.'

IN VIEW OF SUCH EXCEPTIONS TO THE SPECIFICATIONS, YOUR LOW BID WAS REJECTED BY THE CONTRACTING AGENCY AS BEING NONRESPONSIVE TO THE INVITATION FOR BIDS.

WITH RESPECT TO JUSTIFICATION FOR THE BLADE CONTROL SPEED REQUIREMENT SET OUT ABOVE, THE DEPARTMENT OF THE ARMY ADVISES AS FOLLOWS:

"A MILITARY TYPE MOTORIZED GRADER MUST BE SUITABLE FOR USE BY SEMI SKILLED PERSONNEL. THE GRADER IS TO BE USED AS A FINISHING TOOL AND AS SUCH, IT IS ESSENTIAL THAT CONTROL FOR EACH SIDE PROVIDE POSITIVE EQUAL BLADE RESPONSE FOR LOWERING VS. RAISING. EQUAL SPEEDS (WITHIN 5 PERCENT) OF BLADE RAISING AND LOWERING WILL PERMIT SATISFACTORY OPERATION BY MILITARY PERSONNEL SINCE HOLDING A CONTROL FOR A GIVEN PERIOD OF TIME WILL RETURN THE BLADE TO ITS ORIGINAL POSITION. RATE VARIATION IN EXCESS OF 5 PERCENT REQUIRES BOTH VISUAL AND MECHANICAL COORDINATION OF THE OPERATOR RATHER THAN MECHANICAL CONTROL ALONE.'

SUCH JUSTIFICATION APPEARS TO BE BASED UPON ADVICE FROM THE ENGINEER RESEARCH AND DEVELOPMENT LABORATORIES (ERDL). THIS ACTIVITY FURTHER ADVISED THAT TESTS WHICH THEY CONDUCTED INDICATED THAT OTHER GRADERS USING HYDRAULIC CONTROL SYSTEMS DID HAVE BLADE RAISING AND LOWERING SYSTEMS WITHIN SPECIFICATION REQUIREMENTS, AND THAT YOUR OPINION WITH RESPECT TO THE DESIRABILITY OF FASTER BLADE RAISING SPEEDS IS NOT CONCURRED IN BY ERDL OR BY OTHER GRADER PRODUCERS USING HYDRAULIC CONTROLS. ADDITIONALLY, THE CONTRACTING AGENCY REPORTS THAT WHEN THE BLADE SPEED REQUIREMENT WAS DISCUSSED AT A PREBIDDING CONFERENCE FOR A PREVIOUS PROCUREMENT ON NOVEMBER 8, 1961, YOUR COMPANY WAS REPRESENTED AND VOICED NO OBJECTION TO INCLUSION OF THIS REQUIREMENT IN THE INVITATION.

UNDER DATE OF MAY 13, 1963, AND IN FURTHER REFUTATION OF THE ARMY'S POSITION, YOUR COMPANY SUBMITTED DATA SHOWING THAT THE DIFFERENCE BETWEEN THE DISTANCES A BLADE WILL TRAVEL IN ONE SECOND AT A 6-SECOND BLADE LOWER SPEED AND A 5-SECOND BLADE LIFT SPEED, AS SHOWN BY EDRL'S TESTS ON YOUR COMPANY'S GRADER, IS VERY SMALL. YOU THEREFORE CONTEND THAT THE BLADE SPEED DIFFERENCE ON YOUR MACHINE IS NOT CAPABLE OF BEING SENSED BY AN OPERATOR, IRRESPECTIVE OF THE AMOUNT OF HIS EXPERIENCE AS AN OPERATOR, AND THEREFORE WILL NOT BE DETRIMENTAL TO OPERATIONS PERFORMED BY SEMI-SKILLED PERSONNEL OPERATING YOUR COMPANY'S GRADER.

IN VIEW OF THE FACT THAT TESTS CONDUCTED BY ERDL SHOWED AT LEAST ONE HYDRAULIC BLADE CONTROL SYSTEM WHICH OPERATED WITHIN THE SPECIFICATION REQUIREMENTS, AND SUCH TEST RESULTS ARE NOT REFUTED BY YOUR COMPANY,YOUR CONTENTION THAT THE SPECIFICATIONS UNDULY RESTRICT COMPETITION TO GRADERS USING MECHANICAL CONTROLS WOULD APPEAR TO BE WITHOUT MERIT.

THE ONLY REMAINING QUESTION THEREFORE IS WHETHER A DIFFERENCE OF MORE THAN 5 PERCENT BETWEEN THE BLADE RAISING AND LOWERING SPEEDS WOULD BE A DESIRABLE, OR UNDESIRABLE, FEATURE ON MILITARY GRADERS. ON THIS QUESTION WE ARE CLEARLY FACED WITH A DIFFERENCE IN TECHNICAL OPINION, AND UNDER SUCH CIRCUMSTANCES WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY IS IN ERROR. WHILE THE ARGUMENTS PRESENTED BY YOUR COMPANY IN THIS CASE ARE NOT WITHOUT LOGIC, WE ARE UNABLE TO CONCLUDE THAT THE POSITION OF THE CONTRACTING AGENCY, AS REFLECTED BY THE BLADE SPEED CONTROL REQUIREMENTS OF MIL-G-804C, ARE NECESSARILY IN ERROR. INDICATED BY THE RECORDS OF THE CONTRACTING AGENCY AN OPPORTUNITY TO EXPRESS YOUR DISAGREEMENT WAS SPECIFICALLY PRESENTED TO YOUR COMPANY DURING THE PREBID CONFERENCE IN NOVEMBER 1961, AND A SIMILAR OPPORTUNITY, TOGETHER WITH AN OPPORTUNITY TO PROVE YOUR CONTENTIONS BYTEST OR DEMONSTRATION, WOULD APPEAR TO HAVE BEEN AVAILABLE AT ANY TIME BETWEEN THAT DATE AND THE DATE ON WHICH THE PRESENT INVITATION WAS ISSUED. IT IS OUR OPINION THAT DIFFERENCES OF OPINION OF THIS NATURE SHOULD BE SUBMITTED TO THE CONTRACTING AGENCY FOR CONSIDERATION PRIOR TO THE SUBMISSION OF A BID WHICH IS QUALIFIED BY A STATEMENT THAT THE BIDDER DISAGREES WITH THE SPECIFICATIONS AND DOES NOT INTEND TO FURNISH ITEMS WHICH COMPLY WITH THE SPECIFICATION REQUIREMENTS. UNDER THE CIRCUMSTANCES, WE SEE NO VALID BASIS UPON WHICH THIS OFFICE COULD ACCEPT YOUR JUDGMENT ON THE QUESTION OF BLADE CONTROL SPEED IN PREFERENCE TO THAT OF THE CONTRACTING AGENCY, OR UPON WHICH WE WOULD BE JUSTIFIED IN ASKING THAT PROCUREMENT OF THE ITEMS IN QUESTION BE DELAYED PENDING ADDITIONAL CONSIDERATION BY THE CONTRACTING AGENCY OF THE ARGUMENTS ADVANCED IN SUPPORT OF YOUR PROTEST ON THIS POINT.

IN VIEW OF THE FOREGOING, AND OF OUR UNDERSTANDING THAT AN OFFER BY YOUR COMPANY TO COMPLY WITH THE BLADE CONTROL SPEED REQUIREMENTS WOULD HAVE REQUIRED REDESIGN OF THE HYDRAULIC SYSTEM CONTEMPLATED BY YOUR BID, IT NECESSARILY FOLLOWS THAT YOUR BID WAS NONRESPONSIVE TO THE INVITATION AND COULD NOT BE ACCEPTED. IT THEREFORE BECOMES UNNECESSARY TO CONSIDER WHETHER THE QUALIFICATION IN YOUR BID WITH RESPECT TO THE BLADE ACTUATING MECHANISM INTERFERENCE REQUIREMENTS OF THE SPECIFICATIONS ALSO RENDERED YOUR BID NONRESPONSIVE, ALTHOUGH IT SHOULD BE NOTED THAT SIMILAR OPPORTUNITY WAS ALSO GIVEN YOUR COMPANY IN 1961 AND SUBSEQUENT THERETO TO OBJECT TO SUCH REQUIREMENTS.

HOWEVER, THIS PORTION OF YOUR PROTEST DOES RAISE THE ADDITIONAL QUESTION WHETHER ANY GRADER PRESENTLY BEING MANUFACTURED, INCLUDING THE MACHINE OFFERED BY CATERPILLAR AS SECOND LOW BIDDER, CAN COMPLY WITH THIS PORTION OF THE SPECIFICATIONS AND, IN THE EVENT IT DOES NOT, WHETHER THAT BID OR ANY OTHER BID RECEIVED UNDER THE INVITATION SHOULD BE ACCEPTED.

WHETHER THE HYDRAULICALLY CONTROLLED GRADER MANUFACTURED BY AUSTIN WESTERN CAN MEET THE ,ACTUATING MECHANISM INTERFERENCE"REQUIREMENTS OF THE SPECIFICATIONS, AS INDICATED IN THE REPORT SUBMITTED TO THIS OFFICE BY THE DEPARTMENT OF THE ARMY, WOULD ALSO APPEAR TO BE IMMATERIAL TO THE QUESTION YOU HAVE RAISED, SINCE AUSTIN-WESTERN DID NOT SUBMIT A BID ON THIS PROCUREMENT.

HOWEVER, UNDER THE PROVISIONS OF PARAGRAPH 18 OF SPECIAL TERMS AND CONDITIONS OF THE INVITATION FOR BIDS AND PARAGRAPH 3.2 OF MIL-G-804C, THE SUCCESSFUL BIDDER IS REQUIRED TO FURNISH AND TEST A PREPRODUCTION MODEL UNDER THE DIRECTION AND SUPERVISION OF THE GOVERNMENT'S INSPECTORS TO DETERMINE CONFORMANCE TO THE REQUIREMENTS OF THE SPECIFICATIONS. ALL BIDS SUBMITTED WITHOUT TAKING EXCEPTION TO ANY PORTION OF THE SPECIFICATIONS THEREFORE OFFER TO SUPPLY GRADERS IN ACCORDANCE WITH THE SPECIFICATION REQUIREMENTS. WHETHER THE COMMERCIAL GRADERS PRODUCED BY CATERPILLAR (OR BY ANY OTHER BIDDER WHO TOOK NO EXCEPTION TO THE SPECIFICATIONS), MEET THE REQUIREMENTS OF MIL-G-804CIS THEREFORE IMMATERIAL TO THE QUESTION WHETHER THEIR BIDS MAY BE ACCEPTED. THE SOLE QUESTION IS WHETHER, IN THE EVENT OF ACCEPTANCE OF SUCH A BID, THE PREPRODUCTION MODEL FURNISHED BY THE CONTRACTOR, AND ALL PRODUCTION MODELS FURNISHED THEREAFTER, WILL MEET THE SPECIFICATION REQUIREMENTS.

UNDER THE CIRCUMSTANCES, THERE DOES NOT APPEAR TO BE ANY VALID BASIS UPON WHICH THIS OFFICE COULD OBJECT TO ACCEPTANCE OF THE SECOND LOW BID IN THIS PROCUREMENT. HOWEVER, IN VIEW OF YOUR BELIEF THAT THE COMMERCIAL GRADERS PRODUCED BY CATERPILLAR CANNOT MEET THE REQUIREMENTS OF MIL-G-804C IF TESTED IN ACCORDANCE THEREWITH, WE ARE RECOMMENDING TO THE SECRETARY OF THE ARMY THAT THE REQUEST AS SET OUT IN YOUR LETTER DATED MAY 13, TO HAVE A REPRESENTATIVE PRESENT WHEN THE PREPRODUCTION MODEL IS TESTED, BE GRANTED.