B-117773, MAY 27, 1954, 33 COMP. GEN. 567

B-117773: May 27, 1954

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WHICH WERE QUALIFIED BY A STATEMENT IN THE INVITATION THAT BIDS ON EQUIPMENT DIFFERING FROM THAT SPECIFIED WOULD BE CONSIDERED WITHOUT STATING WHETHER THE STATED MINIMUM REQUIREMENT WOULD BE AFFECTED BY SUCH PROVISION. DO NOT CLEARLY SHOW MINIMUM NEEDS OF THE GOVERNMENT AND ARE LEGALLY DEFECTIVE. 1954: REFERENCE IS MADE TO LETTERS DATED DECEMBER 8. IT APPEARS THAT BIDS WERE REQUESTED FOR FURNISHING CERTAIN TRACTORS AND FARMING IMPLEMENTS AS LISTED ON THE BIDDING SCHEDULE ATTACHED TO THE INVITATION. PART II REQUESTED BIDS ON FURNISHING COMBINATIONS OF THE EQUIPMENT IN ACCORDANCE WITH THOSE PORTIONS OF SPECIFICATION B WHICH WERE APPLICABLE. UNDER PART IV BIDS WERE REQUESTED ON FURNISHING ONE TRACTOR- MOWER.

B-117773, MAY 27, 1954, 33 COMP. GEN. 567

CONTRACTS - SPECIFICATIONS - MINIMUM NEEDS REQUIREMENT SPECIFICATIONS ACCOMPANYING INVITATION FOR BIDS TO SUPPLY TRACTORS AND FARM EQUIPMENT WHICH STATED CERTAIN ABSOLUTE MINIMUM REQUIREMENTS, BUT WHICH WERE QUALIFIED BY A STATEMENT IN THE INVITATION THAT BIDS ON EQUIPMENT DIFFERING FROM THAT SPECIFIED WOULD BE CONSIDERED WITHOUT STATING WHETHER THE STATED MINIMUM REQUIREMENT WOULD BE AFFECTED BY SUCH PROVISION, DO NOT CLEARLY SHOW MINIMUM NEEDS OF THE GOVERNMENT AND ARE LEGALLY DEFECTIVE; ALSO, AN ILLEGAL AWARD TO A BIDDER WHOSE BID DOES NOT MEET THE MINIMUM REQUIREMENTS ADVERTISED CANNOT BE VALIDATED BY PERMITTING DELIVERY OF EQUIPMENT MEETING OR EXCEEDING THE SPECIFICATIONS.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE INTERIOR, MAY 27, 1954:

REFERENCE IS MADE TO LETTERS DATED DECEMBER 8, 1953, AND JANUARY 8, 1954, FROM HENRY BAETKEY, CHIEF, BRANCH OF FINANCE AND PROCUREMENT, FISH AND WILDLIFE SERVICE, RELATIVE TO THE PROTEST OF THE INTERNATIONAL HARVESTER COMPANY AGAINST THE ACTION OF THAT SERVICE IN MAKING AWARD OF A CONTRACT TO THE MASSEY-HARRIS COMPANY FOR FURNISHING TRACTORS AND MOWERS UNDER PARTS II AND IV OF INVITATION NO. FW 6-679, DATED SEPTEMBER 23, 1953. ALSO, THERE HAS BEEN RECEIVED A LETTER DATED MARCH 17, 1954, WITH ENCLOSURES, FROM THE DIRECTOR, FISH AND WILDLIFE SERVICE, IN RESPONSE TO OFFICE LETTER DATED FEBRUARY 15, 1954, B 117773, TO YOU.

IT APPEARS THAT BIDS WERE REQUESTED FOR FURNISHING CERTAIN TRACTORS AND FARMING IMPLEMENTS AS LISTED ON THE BIDDING SCHEDULE ATTACHED TO THE INVITATION. PART II REQUESTED BIDS ON FURNISHING COMBINATIONS OF THE EQUIPMENT IN ACCORDANCE WITH THOSE PORTIONS OF SPECIFICATION B WHICH WERE APPLICABLE. UNDER PART IV BIDS WERE REQUESTED ON FURNISHING ONE TRACTOR- MOWER, DIESEL POWERED FARM TYPE, IN ACCORDANCE WITH SPECIFICATION D, DELIVERED F.O.B. PARIS, TENNESSEE. BIDDERS WERE REQUESTED TO FURNISH WITH THEIR PROPOSALS LITERATURE DESCRIBING THE EQUIPMENT OFFERED AND IN ADDITION CERTAIN INFORMATION AS DETAILED ON A QUESTIONNAIRE FORM ATTACHED TO THE INVITATION. SPECIFICATION B APPLICABLE TO PART II INFORMED BIDDERS THAT THE FARM TRACTOR MUST MEET CERTAIN MINIMUM REQUIREMENTS AS FOLLOWS:

CHART WEIGHT --------------------------------------------------- LBS. --- 5,800 DRAWBAR HORSEPOWER ------------------------------------ H.P. ---- 34 BELT HORSEPOWER -------------------------------------- - DO ------ 39 TRANSMISSION SPEEDS FORWARD ------------------------ ------------ 5 TRANSMISSION SPEED FOR TRAVEL ON HIGHWAY ---------- -- MPH ---- 15

SPECIFICATION D APPLICABLE TO PART IV ADVISED BIDDERS THAT THE FARM TRACTOR REQUIRED SHOULD MEET THE FOLLOWING MINIMUM REQUIREMENTS:

CHART WEIGHT --------------------------------------------------- LBS. --- 5,800 DRAWBAR H.P. ------------------------------------------ H.P. --- 41 BELT H.P. --------------------------------------------- DO ----- 46 TRANSMISSION SPEEDS FORWARD ------------------------- ------------ 5 TRANSMISSION SPEED FOR TRAVEL ON HIGHWAY ----------- ---- MPH --- 14

BIDDERS WERE ADVISED UNDER GENERAL CLAUSES AND CONDITIONS THAT THEY MUST EXECUTE THE SHEET ATTACHED TO THE INVITATION ENTITLED " EXCEPTIONS TO SPECIFICATIONS" AND THAT BIDS ON EQUIPMENT DIFFERING FROM THAT SPECIFIED BUT EQUAL IN ALL ESSENTIAL RESPECTS AS TO DURABILITY, WORKMANSHIP, AND PERFORMANCE WOULD BE CONSIDERED. BIDDERS WERE ALSO REQUIRED TO STATE ON THE SHEET EXACTLY HOW THE EQUIPMENT OFFERED DIFFERED FROM THAT SPECIFIED.

THE INTERNATIONAL HARVESTER COMPANY STATED ON THE REFERRED-TO SHEET THAT THE EQUIPMENT OFFERED IN ITS BID COMPLIED IN EVERY PARTICULAR WITH THE ADVERTISED SPECIFICATIONS EXCEPT THAT IT CONTAINED " NO RADIATOR GUARDS OR BUMPERS.' THE MASSEY-HARRIS COMPANY STATED EXCEPTIONS AS FOLLOWS:

PART I: THERE IS NO BUMPER ON THE TRACTOR.

PART II: ITEMS 3, 4, HAVE 6 FT. LENGTH INSTEAD OF 5 FT. AS ASKED FOR. THE MOWER HAS AN OIL BATH CHAIN DRIVE INSTEAD OF V BELT DRIVE.

PART III: WHEELS ARE ADJUSTABLE 52 TO 80 INCHES INSTEAD OF 44 TO 64 INCHES ASKED FOR.

PART IV: DRAWBAR H.P. IS 38 INSTEAD OF 41 ASKED FOR.

IN ADDITION TO THE FOREGOING IT WAS STATED IN THE BID OF THE MASSEY HARRIS COMPANY THAT THE TRACTOR OFFERED BY THAT COMPANY UNDER PART II WOULD MEET TRANSMISSION SPEED FOR TRAVEL ON HIGHWAY OF 14 MILES PER HOUR OR ONE MILE LESS THAN THE MINIMUM SPECIFIED. ALSO, THE BID SPECIFIED A WEIGHT OF 6,912 POUNDS "AS TESTED" FOR THE TRACTOR OFFERED UNDER PART II AND A WEIGHT OF 7,314 POUNDS FOR THE TRACTOR OFFERED UNDER PART IV.

A CONTRACT FOR ITEMS 1, 2, 3, 4, 6, AND 9 OF PART I, ITEMS 1 AND 3 OF PART II AND PARTS III AND IV WAS AWARDED TO THE MASSEY-HARRIS COMPANY AS THE LOWEST RESPONSIVE BIDDER AND A CONTRACT FOR ITEM 5 OF PART I AND ITEM 2 OF PART II WAS AWARDED TO THE INTERNATIONAL HARVESTER COMPANY AS THE LOWEST BIDDER ON THOSE ITEMS.

IN LETTER DATED NOVEMBER 18, 1953, TO THE FISH AND WILDLIFE SERVICE, A COPY OF WHICH WAS FORWARDED TO THIS OFFICE, THE INTERNATIONAL HARVESTER COMPANY PROTESTED THE AWARD OF THE CONTRACT TO THE MASSEY HARRIS COMPANY ON THE GROUND THAT THE TRACTOR OFFERED BY THAT COMPANY WOULD NOT MEET THE MINIMUM REQUIREMENTS OF TRACTOR WEIGHT, DRAWBAR HORSEPOWER, BELT HORSEPOWER AND TRANSMISSION SPEED FOR TRAVEL ON HIGHWAY. IT WAS STATED FURTHER THAT THE WEIGHTS SPECIFIED FOR THE TRACTORS OFFERED BY THE MASSEY- HARRIS COMPANY WERE NOT CORRECT BECAUSE THEY REPRESENTED NEBRASKA TEST WEIGHTS WHICH INCLUDED LIQUID BALLAST, CAST IRON WEIGHTS AND OPERATOR. WAS STATED, ALSO, THAT THE MASSEY HARRIS MODEL NO. 6 MOWER OFFERED BY THE BIDDER WAS A TRAILING TYPE AND NOT A DRAWBAR CONSTRUCTION TYPE MOWER AND THAT IT WAS EQUIPPED WITH A CHAIN DRIVE RATHER THAN A V BELT DRIVE AS REQUIRED BY THE SPECIFICATIONS.

IN RESPONSE TO THE PROTEST, THE CHIEF BRANCH OF FINANCE AND PROCUREMENT, FISH AND WILDLIFE SERVICE, ADVISED THE INTERNATIONAL HARVESTER COMPANY IN LETTER DATED DECEMBER 8, 1953, THAT THE DEFICIENCY IN HIGHWAY SPEED AND DRAWBAR HORSEPOWER WERE MINOR DEVIATIONS AND THAT, AS THE BIDDER TOOK NO EXCEPTION TO THE BELT HORSEPOWER REQUIREMENT, IT WAS ASSUMED THAT THE BIDDER WOULD COMPLY WITH THE ADVERTISED REQUIREMENT. THE PROTESTING BIDDER WAS ADVISED THAT THE MOWERS OFFERED BY THE MASSEY-HARRIS COMPANY CONFORMED IN ALL ESSENTIAL RESPECTS TO THE BID SPECIFICATIONS AND THAT THE ONLY DEVIATION FROM THE BID SPECIFICATIONS WAS THE TRANSMISSION OF POWER BY AN OIL BATH CHAIN DRIVE INSTEAD OF A V BELT. THE PROTESTING BIDDER WAS ADVISED ALSO THAT THE DEVIATION FROM THE REQUIREMENTS OF THE BID SPECIFICATIONS AS TO HIGHWAY SPEED, DRAWBAR HORSEPOWER FOR THE TRACTOR AND CHAIN DRIVE FOR THE MOWER WAS ACCEPTED UNDER THE GENERAL PROVISION PERMITTING CONSIDERATION OF BIDS ON EQUIPMENT DIFFERING FROM THAT SPECIFIED BUT EQUAL IN ALL ESSENTIAL RESPECTS AS TO DURABILITY, WORKMANSHIP AND PERFORMANCE.

IT NOW IS STATED IN THE REPORT OF MARCH 17, 1954, THAT AT THE TIME THE MASSEY-HARRIS COMPANY SUBMITTED ITS BID IT WAS IN POSSESSION OF INFORMATION WHICH INDICATED THAT ITS NEW MODEL 44 TRACTOR COULD EXCEED THE ADVERTISED MINIMUM REQUIREMENTS; THAT SINCE THAT TIME A TEST ON THAT MODEL WAS COMPLETED AT THE UNIVERSITY OF NEBRASKA WHICH REVEALED THAT THE MODEL EXCEEDS NOT ONLY THE CONTRACT REQUIREMENTS BUT THE TESTED PERFORMANCE OF THE INTERNATIONAL HARVESTER SUPER MODEL TRACTOR IN ALL RESPECTS EXCEPT DRAWBAR POWER IN LOW GEAR; AND THAT THE " CERTIFIED WEIGHT OF TRACTOR AS FURNISHED INCLUDING LIGHTS AND OTHER ATTACHMENTS SPECIFIED, IS 5,940 POUNDS (AS AGAINST ADVERTISED MINIMUM OF 5,800 POUNDS).'

THE RULE HAS LONG BEEN ESTABLISHED THAT IT IS THE DUTY OF ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT CHARGED WITH THE RESPONSIBILITY OF DRAFTING SPECIFICATIONS ISSUED PURSUANT TO PUBLIC ADVERTISING STATUTES TO SEE THAT THEY ARE SO DRAWN AS TO STATE THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT CLEARLY, FAIRLY AND ACCURATELY.

HERE THE SPECIFICATION STATED MINIMUM REQUIREMENTS BUT UNDER THE QUALIFYING LANGUAGE OF THE INVITATION BIDDERS WERE LEFT IN DOUBT AS TO WHETHER IT WOULD BE PERMISSIBLE NOT TO MEET THOSE MINIMUMS. FURTHERMORE, IT APPEARS TO HAVE BEEN KNOWN THAT SOMETHING LESS THAN THE MINIMUM REQUIREMENTS SPECIFIED WOULD SUFFICE AND IF THAT BE THE CASE THE SPECIFICATIONS WERE LEGALLY DEFECTIVE AS BEING UNDULY RESTRICTIVE OF COMPETITION. THE PROPER COURSE TO FOLLOW IN THIS TYPE OF CASE IS TO ADVERTISE ON THE BASIS OF SPECIFICATIONS WHICH WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE ACTUAL MINIMUMS REQUIRED. SEE 32 COMP. GEN. 384. AN ILLEGAL AWARD TO A BIDDER WHOSE BID DOES NOT MEET THE MINIMUM REQUIREMENTS ADVERTISED CANNOT BE VALIDATED BY PERMITTING DELIVERY OF EQUIPMENT MEETING OR EXCEEDING THE SPECIFICATIONS.

WHILE OTHERWISE PROPER PAYMENTS UNDER THE CONTACTS AWARDED IN THIS CASE WILL NOT NOW BE QUESTIONED, THE MATTER IS BROUGHT TO YOUR ATTENTION FOR APPROPRIATE CORRECTIVE ACTION.