B-159550, NOV. 25, 1966

B-159550, NOV. 25, 1966

TO PAUL H. WERRES COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 26, 1966, AND OCTOBER 13, 1966, WHICH PROTESTED THE SPECIFICATIONS USED FOR ITEM C IN INVITATION FOR BIDS (IFB) DSA-400-66-B-4413 ISSUED MARCH 9, 1966, BY THE DEFENSE SUPPLY AGENCY (DSA), DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

THREE AMENDMENTS WERE ISSUED TO THE INVITATION. AMENDMENT NO. 2, ISSUED JUNE 15, 1966, ESTABLISHED THE FINAL BID OPENING DATE AT JUNE 27, 1966, AND ADDED ITEMS C AND B TO THE INVITATION. ITEM C, THE PERTINENT ITEM OF YOUR PROTEST, REQUESTED BIDS FOR 3 ELECTRIC SELF PROPELLED (WALKIE) FORK LIFT TRUCKS (HEREINAFTER REFERRED TO AS TRUCKS) WITH TELESCOPING MASTS, 3000 POUND LIFTING CAPACITIES, 130 INCHES OF LIFT HEIGHT, 83 INCHES COLLAPSED MAST HEIGHT, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-T- 21867 DATED APRIL 7, 1965, WITH DEVIATIONS THERETO.

THE FIRST PAGE OF THE MILITARY SPECIFICATION STATED,"THIS SPECIFICATION IS MANDATORY FOR USE BY ALL DEPARTMENTS AND AGENCIES OF THE DEPARTMENT OF DEFENSE.' DEVIATIONS TO THE SPECIFICATIONS WERE LISTED ON PAGE 7 OF THE IFB. THEY INCLUDED, TO NAME A FEW, OUTRIGGERS FOR THE STRADDLING OF PALLETS, HIGH DRIVE CONTROL, CHANGES IN THE TURNING RADIUS, A CHARGER FOR THE BATTERY, AND A SAFETY HINGE RIDER PLATFORM.

THE OTHER TWO ITEMS OF THE INVITATION, ITEMS A AND B, REQUESTED BIDS FOR ELECTRIC FORK LIFT TRUCKS, WALKIE, STRADDLE TYPE, SELF-PROPELLED IN ACCORDANCE WITH PURCHASE DESCRIPTIONS SET FORTH ON PAGES 5 AND 6 OF THE INVITATION. ITEM B WAS FOR 1 UNIT WHILE ITEM A WAS FOR 5 UNITS.

ALL UNITS OF ITEM C WERE TO BE SHIPPED F.O.B. DESTINATION, CAMERON STATION, ALEXANDRIA, VIRGINIA, FOR THE USE OF THE ARMY IN ITS COMMISSARY OPERATIONS. AMENDMENT NO. 2 STATED ALL DELIVERIES WERE TO BE ON OR BEFORE AUGUST 31, 1966.

ON JUNE 17, 1966, BEFORE BID OPENING, A REPRESENTATIVE OF THE BIG JOE COMPANY SET A TELEGRAM TO DSA ADVISING, IN PART, THAT A 60-DAY DELIVERY WAS IMPOSSIBLE SINCE A MINIMUM OF 90 DAYS FOR ITEMS A AND B AND 120 DAYS FOR ITEM C WAS REQUIRED; THAT PARAGRAPH 3.9.9 (FREE LIFT HEIGHT) OF MIL-T- 21867 SHOULD BE DELETED OR THE FORK ELEVATION SHOULD BE CHANGED TO 124 INCHES; THAT PARAGRAPHS 3.4 (DESIGN), 3.9.6 (UPRIGHT TILT), 4.4.5 (QUALITY ASSURANCE PROVISION FOR UPRIGHT TILT), AND THE REQUIREMENT FOR RADIO SUPPRESSION, ALL FOR THE SAME MILITARY SPECIFICATION, SHOULD BE DELETED; AND THAT BY SPECIFYING A 3,000 POUND LIFT CAPACITY FOR ITEM C INSTEAD OF 2,500 POUND CAPACITY $500 WOULD BE ADDED TO THE COST.

AFTER REPRESENTATIVES OF THE USING (ARMY) AND PURCHASING (DSA) ACTIVITIES HAD DISCUSSED THE RECOMMENDATIONS FOR ITEM C MADE BY THE BIG JOE MANUFACTURING COMPANY, IT WAS DECIDED TO MAKE CERTAIN CHANGES TO THE IFB. BY TELEGRAPHIC COMMENDMENT NO. 3 ISSUED ON JUNE 24, 1966, ITEM C WAS CHANGED TO PROVIDE FOR THE FOLLOWING:

A. THE MINIMUM LIFT CAPACITY WAS CHANGED TO 2,500 POUNDS FROM 3,000 POUNDS.

B. THE MINIMUM LIFT HEIGHT WAS CHANGED TO 138 INCHES FROM 130 INCHES.

C. THE MAXIMUM COLLAPSED MAST HEIGHT WAS CHANGED TO 96 INCHES FROM 83 INCHES.

D. THE REQUIREMENTS OF MIL-T-21867 WAS TILT AND RADIO INTERFERENCE SUPPRESSION WAS DELETED.

E. THE DELIVERY SCHEDULE WAS CHANGED TO OCTOBER 31, 1966, FROM AUGUST 31, 1966, BASED ON AWARD BY JULY 1, 1966.

F. TELEGRAPHIC BIDS WERE AUTHORIZED.

OUT OF 31 BIDDERS SOLICITED, THE BIG JOE COMPANY SUBMITTED THE ONLY BID. IT WAS OPENED ON SCHEDULE (JUNE 27, 1966) AND OFFERED A UNIT PRICE OF $4,440 FOR ITEM C. SUBSEQUENT THERETO AND AFTER YOUR PROTEST, BY LETTER OF AUGUST 22, 1966, BIG JOE REFUSED TO EXTEND THE TIME FOR ACCEPTANCE OF ITS BID BEYOND THE ORIGINAL 60 DAY PERIOD. SUCH ACTION WAS ATTRIBUTED TO DESIGN CHANGES IN ITEM C AND INCREASED COSTS. CONFRONTED WITH THOSE FACTS, THE CONTRACTING AGENCY AWARDED A CONTRACT TO BIG JOE ON AUGUST 26, 1966.

YOUR LETTERS, IN ADDITION TO ALLEGING THE SPECIFICATIONS FOR ITEM C WERE RESTRICTIVE TO BIG JOE'S PRODUCT, ALSO POINT OUT THAT THE PRODUCT BEING OFFERED CANNOT BE JUSTIFIED FROM A PERFORMANCE STANDPOINT AND THAT THE DEVIATIONS TO MILITARY SPECIFICATION MIL-T-21867 COMPLETELY CHANGED THE BASIC DESIGN INTENDED.

THE REPORT FROM DSA TO THIS OFFICE INDICATES THERE IS A DEFINITE NEED FOR THE TYPE OF FORK LIFT TRUCK DESCRIBED BY ITEM C. FURTHER, IT SHOWS THAT TECHNICAL PERSONNEL OF THE PROCURING AGENCY HAVE EVALUATED THE DEVIATIONS TO MIL-T-21867 AND HAVE CONCLUDED THAT IN NO WAY WILL THEY NEGATE THE PERFORMANCE REQUIREMENTS OF THE SPECIFICATIONS. WE ARE ADVISED THAT ABOUT 90 PERCENT OF THE TIME THE TRUCKS WILL BE USED IN DRAWING STOCKS FROM WAREHOUSE STORAGE SHELVES AND THAT AS A RESULT NEITHER A STOCK SELECTOR, SUCH AS IS DESCRIBED IN MILITARY SPECIFICATION, MIL-T-38719, NOR THE FORK LIFT TRUCK, DESCRIBED BY MILITARY SPECIFICATION MIL-T-21867, WAS CONSIDERED COMPLETELY ADEQUATE FOR THE PURPOSE INTENDED. IT WAS, THEREFORE, DECIDED TO MODIFY SPECIFICATIONS MIL-T-21867 BY APPROPRIATE DEVIATIONS. IN COMMENTING ON THE EFFECT OF THOSE DEVIATIONS WITH RESPECT TO THE PERFORMANCE REQUIREMENTS DSA HAS STATED:

"* * * THE SPECIFICATION PREPARING ACTIVITY (BUSANDA, NOW NAVY SUPPLY SYSTEMS COMMAND) HAS CONFIRMED THAT THE INTENT OF MIL-T-21867 WAS TO REQUIRE A COUNTERBALANCE TRUCK, I.E., ONE WITH THE LOAD WHEELS BEHIND THE FORKS, AND IT IS TRUE THAT THE ADDITION OF A REQUIREMENT FOR HIGH DRIVE CONTROL OUTRIGGERS, CAPABLE OF STRADDLING PALLETS AND THE DELETION OF THE REQUIREMENT FOR TILT OF THAT MAST (PAR. 3.9.6) NECESSITATE A CHANGE IN THE DESIGN OF THE TRUCK. HOWEVER, EXCEPT FOR THE REQUIREMENT THAT THE UNIT OPERATE ONLY IN LOW SPEED WHEN FORKS ARE ELEVATED ABOVE 36 INCHES, SUCH CHANGES IN NO WAY NEGATE OR CONFLICT WITH THE MINIMUM SPEED REQUIREMENTS OF PARAGRAPH 3.9.1. WHILE IT MAY BE THAT THE ADDITIONAL WEIGHT OF THE PLATFORM AND HIGH DRIVE CONTROL WOULD RENDER COMPLIANCE WITH THE MINIMUM LIFTING SPEED REQUIREMENTS OF PARAGRAPH 3.9.2 MORE DIFFICULT, THE SPECIFIED SPEEDS ARE WELL WITHIN THE INDUSTRY CAPABILITY. THE INCREASED WEIGHT OF THE PLATFORM AND HIGH DRIVE CONTROL SHOULD NOT AFFECT THE MINIMUM LOWERING SPEED SPECIFIED IN 3.9.3. THE MAXIMUM TURNING RADIUS SPECIFIED BY PARAGRAPH 3.9.4 WAS INCREASED TO 72 INCHES (SEE THE TOP OF PAGE 8 OF THE INVITATION) TO MAKE ALLOWANCE FOR THE RIDER PLATFORM. SINCE SLOPE ASCENSION IS DEPENDENT UPON THE POWER DELIVERED TO THE DRIVE WHEEL OR WHEELS AND THE TRACTION THEREOF, THE ADDITION OF OUTRIGGERS SHOULD NOT AFFECT THE CAPABILITY OF TRUCK TO ASCEND A 10 PERCENT GRADE AS REQUIRED BY PARAGRAPH 3.9.5. COLLAPSED MAST HEIGHT AND MINIMUM FORK LIFT HEIGHT WERE CHANGED BY AMENDMENT 3 TO THE INVITATION. THESE CHANGES SHOULD NOT AFFECT MINIMUM FREE LIFT HEIGHT OF 5 INCHES SPECIFIED BY 3.9.9. THE ADDITION OF OUTRIGGERS MAY AFFECT THE UNDERCLEARANCE REQUIREMENT OF PARAGRAPH 3.9.10. HOWEVER, SINCE SEVERAL COMMERCIAL TRUCKS EQUIPPED WITH OUTRIGGERS HAVE UNDERCLEARANCE SUFFICIENT FOR A 15 PERCENT GRADE, THIS IS CONSIDERED NOT TO PRESENT A SIGNIFICANT PROBLEM. OF THE BALANCE OF THE PERFORMANCE REQUIREMENTS SET FORTH IN PARAGRAPH 3.9 THE CHANGES AFFECT ONLY 3.9.14 RELATING TO LATERAL STABILITY. THE CHANGES WHICH AFFECT LATERAL STABILITY ARE THE INCREASE IN MINIMUM FORK LIFT AND THE ADDITION OF HIGH DRIVE CONTROL. THE ADDITION OF OUTRIGGERS SHOULD INCREASE THE STABILITY OF THE TRUCK. IN VIEW OF THE FOREGOING IT IS CONSIDERED THAT WERRES' ALLEGATION THE CHARGES TO THE SPECIFICATION ARE INCOMPATIBLE WITH THE PERFORMANCE REQUIREMENTS OF MIL-T-21867 IS WITHOUT MERIT.'

DSA'S POSITION, THEREFORE, SUPPORTS YOUR ASSERTION THAT THE DEVIATIONS CHANGED THE BASIC DESIGN OF THE TRUCK FROM A COUNTERBALANCED TYPE TO A STRADDLE TYPE. HOWEVER, IT DOES NOT AGREE THAT AS A RESULT THE PERFORMANCE REQUIREMENTS WERE INCAPABLE OF BEING MET. THE ONLY PERFORMANCE REQUIREMENT YOU HAVE POINTED TO AS NOT BEING CAPABLE OF FULFILLMENT IS THE ONE DESCRIBED BY PARAGRAPH 3.9.4 ENTITLED "TURNING RADIUS" WHICH, AS CHANGED, READS: "TRUCK SHALL BE CAPABLE OF RIGHT ANGLE STACKING 32 INCHES LONG BY 40 INCHES WIDE PALLETS IN NOT LESS THAN 72 INCHES WIDE AISLE.' YOU MAINTAIN IT IS INCONSISTENT WITH THE UNCHANGED QUALITY ASSURANCE PROVISION ALSO CONCERNING TURNING RADIUS, I.E., PARAGRAPH 4.4.3.1. SAID PARAGRAPH READS: "THE TRUCK WITH RATED LOAD EQUALLY DISTRIBUTED ON THE FORKS OR PALLET, SHALL BE PLACED ON DRY LEVEL CONCRETE SURFACE. THE TRUCK SHALL BE OPERATED TO TRAVEL IN A CIRCULAR PATH AND OBSERVED TO DETERMINE COMPLIANCE WITH 3.9.4.' YOUR OBJECTION, AS WE UNDERSTAND IT, IS THAT PARAGRAPH 4.4.3.1 REQUIRES THE TRUCK TO TRAVEL IN A CIRCULAR PATH WHILE PARAGRAPH 3.9.4 REQUIRES THE TRUCK TO BE CAPABLE OF STACKING AT RIGHT ANGLES.

WE CONSISTENTLY HAVE TAKEN THE POSITION THAT IT IS THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT SPECIFICATIONS WHICH WILL PERMIT FAIR COMPETITIVE BIDDING TO SUPPLY THE GOVERNMENT'S NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OR SERVICES MEET THOSE SPECIFICATIONS. FURTHERMORE, WHETHER SPECIFICATIONS ARE ADEQUATE TO MEET THE NEEDS OF AN AGENCY IS A QUESTION WHICH IS PRIMARILY WITHIN THE JURISDICTION OF SUCH AGENCY; AND IN ANY GIVEN PROCUREMENT THIS QUESTION MAY WELL BE SUBJECT TO A DIFFERENCE OF OPINION. WHERE SUCH DIFFERENCE OF OPINION EXISTS, HOWEVER, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY OPINION IS IN ERROR AND THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATION WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE A VIOLATION OF LAW. 40 COMP. GEN. 294; B-156373, AUGUST 25, 1965.

WE FAIL TO FIND ANY CLEAR AND CONVINCING EVIDENCE FROM THE RECORD BEFORE US THAT THE SPECIFICATIONS USED WERE UNDULY RESTRICTIVE OF COMPETITION OR IN EXCESS OF THE ACTUAL NEEDS OF CAMERON STATION, DESPITE THE FACT ONLY ONE BID WAS RECEIVED. THE RECEIPT OF ONE BID IS, OF COURSE, EVIDENCE OF LACK OF COMPETITION, BUT IN THE ABSENCE OF ADDITIONAL EVIDENCE IT IS NOT CONCLUSIVE ON THE QUESTION OF WHETHER THE SPECIFICATIONS WERE UNDULY RESTRICTIVE. AS PREVIOUSLY STATED, THE ONLY SPECIFIC AREA IN WHICH YOU HAVE ALLEGED AN INCONSISTENCY EXISTS IS IN THE PROVISIONS OF PARAGRAPHS 4.4.3.1 AND 3.9.4. WHILE THE DEVIATION FROM PARAGRAPH 3.9.4, WHICH WAS SET OUT AT PAGE 8 OF THE IFB, DELETED THE REQUIREMENT FOR A 360 DEGREE TURN, IT SHOULD BE NOTED THAT PARAGRAPH 3.8.4, AS SET OUT ON PAGE 7 OF THE IFB, CONSTITUTES A FURTHER DEVIATION FROM MIL-T-21867 AND PROVIDES THAT STEERING FROM THE HIGH DRIVE CONTROL OF THE DRIVE WHEELS IS TO BE THROUGHOUT A 180 TURNING ARC. IT IS THEREFORE APPARENT THAT THE DEVIATIONS REQUIRE NOT ONLY THAT THE TRUCK BE CAPABLE OF STACKING AT RIGHT ANGLES BUT THAT IT TRAVEL IN A CIRCULAR PATH. HENCE, WE MUST CONCLUDE PARAGRAPH 4.4.3.1 WHEN READ WITH PARAGRAPH 3.8.4, IS NOT INCONSISTENT WITH PARAGRAPH 3.9.4.

YOUR OBJECTIONS HAVE ALSO POINTED OUT THAT SEVERAL OF THE DEVIATIONS, SUCH AS THE REQUIREMENT FOR A 2,500 POUND LIFT CAPACITY, ARE RESTRICTIVE TO BIG JOE'S PRODUCT AND ARE NOT IN ACCORDANCE WITH THE NEEDS OF THE USING ACTIVITY. HOWEVER, THE USING ACTIVITY HAS DISAGREED WITH YOUR ALLEGATIONS, AND YOU HAVE FAILED TO SUPPORT YOUR OBJECTIONS WITH ANY CONVINCING EVIDENCE TO THE CONTRARY. WE MUST THEREFORE ACCEPT THE JUDGMENT OF THE CONTRACTING AGENCY ON THIS POINT.

IN YOUR OCTOBER 13TH LETTER IT WAS ARGUED THAT THE DEVIATIONS SO CHANGED THE BASIC DESIGN OF THE TRUCK CALLED FOR BY MIL-T-21867 THAT, IF ALLOWED TO STAND, IT WOULD BECOME A PRECEDENT FOR FUTURE PROCUREMENTS. AS AN ALTERNATE YOU HAVE SUGGESTED THAT EITHER A SPECIFICATION BE COORDINATED WITH INDUSTRY OR A PURCHASE DESCRIPTION, SUCH AS WAS APPLICABLE TO ITEMS A AND B, SHOULD BE USED.

THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AT SECTION 1-1202 (A) PROVIDES, IN PART, THAT COORDINATED MILITARY SPECIFICATIONS APPROVED BY THE DEPARTMENT OF DEFENSE, AS HERE, ARE MANDATORY FOR USE BY THE DEPARTMENT OF DEFENSE IN THE PROCUREMENT OF SUPPLIES OR SERVICES COVERED BY SUCH SPECIFICATIONS. ASPR 1-1202 (B) (VI) LISTS SEVEN EXCEPTIONS TO THAT REQUIREMENT, ONE OF WHICH IS THE PURCHASE OF ONE TIME PROCUREMENT ITEMS.

PRIOR TO THE ACTUAL ISSUANCE OF THE IFB BY DSA, AND AS REQUIRED BY ASPR 5 -1106.5, THE ARMY PROVIDED DSA WITH A COPY OF THE APPLICABLE SPECIFICATIONS. FROM OUR INVESTIGATION OF THE FACTS, IT APPEARS THE DEVIATIONS FROM THE MILITARY SPECIFICATION WERE OBTAINED WITHIN THE DEPARTMENT OF THE ARMY IN ACCORDANCE WITH PARAGRAPH 2-304, DEFENSE STANDARDIZATION MANUAL M-200B ISSUED APRIL 1, 1966. THAT PARAGRAPH PERMITS REVISIONS TO COORDINATED SPECIFICATIONS WHEN NEEDED AND WHEN TIME DOES NOT PERMIT PREPARATION OF A COORDINATED REVISION BY A DEPARTMENTAL CUSTODIAN OR SUCH OTHER AUTHORITY AS IS DESIGNATED BY THE DEPARTMENT. SUCH REVISIONS ARE IN THE FORM OF A ,USED-IN-LIEU-OF" LIMITED COORDINATED MILITARY SPECIFICATIONS. "USED-IN-LIEU-OF" SPECIFICATIONS ARE TO BE AUTHORIZED BY THE PREPARING ACTIVITY (IN THIS CASE THE ARMY) FOR DSA CENTERS. WE ARE FURTHER ADVISED THAT RESPONSIBILITY FOR BOTH THE TECHNICAL ADEQUACY OF EQUIPMENT AUTHORIZED FOR USE IN ARMY COMMISSARIES, AND FOR THE APPROVAL OF ITEMS OF NON EXPENDABLE EQUIPMENT NOT PREVIOUSLY AUTHORIZED FOR USE THEREIN, IS VESTED IN THE U.S. ARMY SUBSISTENCE CENTER, CHICAGO, ILLINOIS. (SEE PARAGRAPH 274 OF ARMY REGULATIONS 31-200.) ITEM C OF THE INVITATION WAS SUBMITTED TO AND APPROVED BY THE SUBSISTENCE CENTER AS A NONSTANDARD ITEM TO BE USED TO MEET A PECULIAR OPERATIONAL REQUIREMENT FOR WHICH NO SPECIFICATIONS WERE AVAILABLE. THE INFORMATION AVAILABLE TO THIS OFFICE INDICATES THAT NO COMPLETELY ADEQUATE MILITARY SPECIFICATION EXISTED FOR THE ITEM DESIRED AND NEEDED BY CAMERON STATION. IT ALSO SHOWS THE PURCHASE IS NOT ONE LIKELY TO BE REPEATED IN THE FORESEEABLE FUTURE. IN VIEW THEREOF, WE ARE UNABLE TO SAY THE DEVIATIONS TO THE SPECIFICATIONS WERE CONTRARY TO ASPR 1202 (A); RATHER, THE PROVISIONS OF ASPR 1-1202 (B) (VI) REGARDING THE PURCHASE OF ONE TIME PROCUREMENT ITEMS APPEARS TO BE FOR APPLICATION UNDER THE CIRCUMSTANCES PRESENTED HERE.

WHILE IT MAY BE ARGUED THAT THE USE OF A SERIES OF DEVIATIONS TO A MANDATORY MILITARY SPECIFICATION WHICH RESULTS IN A CHANGE IN THE BASIC DESIGN OF THE ITEM TO BE PROCURED IS UNDESIRABLE, WE KNOW OF NO APPLICABLE LAW OR REGULATION WHICH WAS VIOLATED BY SUCH ACTION IN THE INSTANT CASE. ACCORDINGLY, WE SEE NO PROPER BASIS ON WHICH TO QUESTION THE VALIDITY OF THE CONTRACT AWARDED TO THE BIG JOE MANUFACTURING COMPANY, AND YOUR PROTEST MUST THEREFORE BE DENIED.