B-123654, OCT. 21, 1955

B-123654: Oct 21, 1955

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TO THE WINTER-WEISS COMPANY: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE ACTION TAKEN BY THE GENERAL SERVICES ADMINISTRATION IN CONNECTION WITH THE PURCHASE OF DRILLING EQUIPMENT UNDER INVITATIONS FOR BIDS NOS. 4N-43478-N-2-11 55 AND 4N-43478-R-6-23-54. ONE OF THE REQUIREMENTS FOR THE TRUCKS WAS THAT THEY BE EQUIPPED WITH A CENTER DIFFERENTIAL. YOUR BID ON THOSE ITEMS WAS THE LOWEST AS TO PRICE. THE TRUCK THAT YOU PROPOSED TO FURNISH WAS NOT EQUIPPED WITH THE CENTER DIFFERENTIAL AS REQUIRED BY THE SPECIFICATIONS. AMONG THE OTHER BIDDERS OFFERING TO FURNISH THE EQUIPMENT COVERED BY ITEMS 1 AND 2 WAS THE GEORGE E. IT APPEARS THAT THE TRUCK OFFERED BY THE FAILING COMPANY WAS EQUIPPED WITH THE CENTER DIFFERENTIAL AND THAT THE COMPANY PROPOSED TO FURNISH ITS MODEL 1500 DRILL.

B-123654, OCT. 21, 1955

TO THE WINTER-WEISS COMPANY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE ACTION TAKEN BY THE GENERAL SERVICES ADMINISTRATION IN CONNECTION WITH THE PURCHASE OF DRILLING EQUIPMENT UNDER INVITATIONS FOR BIDS NOS. 4N-43478-N-2-11 55 AND 4N-43478-R-6-23-54.

THE RECORD FURNISHED BY THE GENERAL SERVICES ADMINISTRATION SHOWS THAT THE FOREIGN OPERATIONS ADMINISTRATION REQUESTED THE FEDERAL SUPPLY SERVICE TO PURCHASE CERTAIN EQUIPMENT FOR THE INDIA SUPPLY MISSION. THE FEDERAL SUPPLY SERVICE, REGION 3, BY INVITATION NO. 4N-43478-R-6-23 54, REQUESTED BIDS FOR FURNISHING, UNDER ITEMS 1 AND 2, TRUCK CABS AND CHASSIS, 4 BY 4 WITH ROTARY DRILLS, IN ACCORDANCE WITH FEDERAL SPECIFICATION KKK-T-706 AND CERTAIN PRESCRIBED REQUIREMENTS. ONE OF THE REQUIREMENTS FOR THE TRUCKS WAS THAT THEY BE EQUIPPED WITH A CENTER DIFFERENTIAL.

IN RESPONSE TO THIS INVITATION, YOU SUBMITTED A BID OFFERING TO FURNISH, AMONG OTHERS, THE EQUIPMENT COVERED BY ITEMS 1 AND 2. YOUR BID ON THOSE ITEMS WAS THE LOWEST AS TO PRICE. HOWEVER, THE TRUCK THAT YOU PROPOSED TO FURNISH WAS NOT EQUIPPED WITH THE CENTER DIFFERENTIAL AS REQUIRED BY THE SPECIFICATIONS.

AMONG THE OTHER BIDDERS OFFERING TO FURNISH THE EQUIPMENT COVERED BY ITEMS 1 AND 2 WAS THE GEORGE E. FAILING COMPANY. IT APPEARS THAT THE TRUCK OFFERED BY THE FAILING COMPANY WAS EQUIPPED WITH THE CENTER DIFFERENTIAL AND THAT THE COMPANY PROPOSED TO FURNISH ITS MODEL 1500 DRILL.

ALTHOUGH YOUR BID ON ITEMS 1 AND 2 FAILED TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS, THE BUYER IN THE FEDERAL SUPPLY SERVICE OVERLOOKED THAT FACT AND IT WAS NOT NOTICED WHEN THE BIDS WERE REFERRED TO THE FOREIGN OPERATIONS ADMINISTRATION AND THE INDIA SUPPLY MISSION FOR THEIR INFORMATION AND APPROVAL. DUE TO THE LACK OF SUFFICIENT FUNDS AND FOR OTHER REASONS, THE FEDERAL SUPPLY SERVICE WAS REQUESTED TO WITHHOLD ANY AWARDS UNTIL FURTHER NOTICE. DURING SUCH TIME, YOU EXTENDED THE PERIOD FOR THE ACCEPTANCE OF YOUR BID TO DECEMBER 31, 1954.

IN THE EARLY PART OF DECEMBER, THE FEDERAL SUPPLY SERVICE RECEIVED FINAL INSTRUCTIONS AS TO THE ACTION THAT WAS TO BE TAKEN AND THE BUYER'S RECOMMENDATION THAT YOU BE GRANTED THE AWARD WAS SUBMITTED FOR APPROVAL TO THE SUPERVISORY OFFICIALS OF THE FEDERAL SUPPLY SERVICE. DURING A REVIEW OF THE RECOMMENDATION, IT WAS NOTED THAT YOUR BID DID NOT COMPLY WITH THE ADVERTISED SPECIFICATIONS IN THAT THE TRUCKS DID NOT INCLUDE A CENTER DIFFERENTIAL DEVICE AS REQUIRED BY THE SPECIFICATIONS AND THAT THE MATTER WAS THEN DISCUSSED WITH THE REPRESENTATIVES OF THE FOREIGN OPERATIONS ADMINISTRATION WHO CONCLUDED THAT THE SPECIFICATIONS SHOULD BE CHANGED TO ELIMINATE THE CENTER DIFFERENTIAL DEVICE AND TO ADD CERTAIN ACCESSORIAL EQUIPMENT. IT WAS THEREFORE DECIDED TO REJECT ALL BIDS AND READVERTISE.

ON JANUARY 21, 1955, THE FEDERAL SUPPLY SERVICE ISSUED INVITATION FOR BIDS NO. 4N-43478-N-2-11-55 FOR THE EQUIPMENT, ELIMINATING THE CENTER DIFFERENTIAL DEVICE AND ADDING CERTAIN OTHER ACCESSORIAL EQUIPMENT. RESPONSE TO THIS SECOND INVITATION, YOU APPARENTLY SUBMITTED A BID ON THE SAME BASIS AS YOUR ORIGINAL BID EXCEPT FOR THE ADDITIONAL EQUIPMENT. THE GEORGE E. FAILING COMPANY WAS AGAIN ONE OF THE BIDDERS ON THE SECOND INVITATION AND THE COMPANY, THIS TIME, OFFERED TO FURNISH ITS MODEL CFD-1 DRILL RATHER THAN ITS MODEL 1500 AS WAS OFFERED UNDER THE FIRST INVITATION.

THE FEDERAL SUPPLY SERVICE DETERMINED THAT THE BID OF GEORGE E. FAILING COMPANY WAS THE LOWEST BID RECEIVED MEETING THE REQUIREMENTS OF THE SPECIFICATIONS AND TRANSMITTED ITS RECOMMENDATION THAT AWARD BE MADE TO THAT COMPANY TO THE FOREIGN OPERATIONS ADMINISTRATION AND THE INDIA SUPPLY AGENCY FOR CONCURRENCE. BOTH OF THESE AGENCIES CONCURRED IN THE RECOMMENDATION AND THE AWARD WAS MADE TO THE GEORGE E. FAILING COMPANY ON MARCH 14, 1955.

YOUR PROTEST AGAINST THE AWARD MADE TO GEORGE E. FAILING COMPANY IS PRIMARILY ON THE BASIS (1) THAT YOUR BID BEING THE LOWEST RECEIVED UNDER THE FIRST INVITATION SHOULD HAVE BEEN ACCEPTED AND (2) THAT THE DRILL OFFERED BY GEORGE E. FAILING COMPANY UNDER THE SECOND INVITATION DID NOT MEET THE SPECIFICATIONS NOR WAS IT ADEQUATE FOR THE PURPOSE FOR WHICH INTENDED.

WITH RESPECT TO THE FIRST ISSUE, ALTHOUGH IT IS ADMITTED BY YOU THAT THE EQUIPMENT OFFERED UNDER THE FIRST INVITATION DID NOT MEET THE ADVERTISED REQUIREMENTS, IT IS CONTENDED THAT THE EQUIPMENT OFFERED WAS WHAT THE GOVERNMENT ACTUALLY WANTED AS BORNE OUT BY THE CHANGE IN THE SPECIFICATIONS OF THE INVITATION; AND THAT, SINCE THE FOREIGN OPERATIONS ADMINISTRATION AND THE INDIA SUPPLY MISSION HAD APPROVED THE RECOMMENDATION OF THE BUYER IN THE FEDERAL SUPPLY SERVICE THAT YOU BE GIVEN THE AWARD, THE AWARD SHOULD HAVE BEEN MADE TO YOU UNDER THE FIRST INVITATION.

IT IS AN ESTABLISHED PRINCIPLE UNDER THE COMPETITIVE BID SYSTEM THAT THE INVITATION MUST BE SO DRAWN AS TO ALLOW BIDDERS TO SUBMIT BIDS ON THE SAME REQUIREMENTS AND THAT ONLY THOSE BIDS WHICH CONFORM SUBSTANTIALLY TO THE ADVERTISED SPECIFICATIONS MAY BE CONSIDERED FOR AWARD. SEE 30 COMP. GEN. 179. SINCE YOUR BID UNDER THE FIRST INVITATION DID NOT CONFORM TO THE ADVERTISED SPECIFICATIONS, IT COULD NOT HAVE BEEN ACCEPTED.

IT IS ALLEGED THAT THE GEORGE E. FAILING COMPANY IN CHANGING THE DRILL OFFERED UNDER THE FIRST AND SECOND INVITATION FROM MODEL 1500 TO MODEL CFD -1 WAS FOR THE PURPOSE OF TAKING ADVANTAGE OF THE PURCHASING OFFICER'S LACK OF KNOWLEDGE OF DRILLING EQUIPMENT AND KNOWINGLY OFFERED A DRILL THE COMPANY WOULD NOT HAVE OFFERED TO THE WATER WELL INDUSTRY AS A COMPLETE AND PRACTICAL WATER-WELL DRILL.

THE FEDERAL SUPPLY SERVICE DETERMINED THAT THE MODEL CED-1 DRILL OFFERED BY GEORGE E. FAILING COMPANY MET THE REQUIREMENTS OF THE SPECIFICATIONS AND THE RECOMMENDATION THAT AWARD BE MADE TO THAT COMPANY WAS APPROVED BY THE FOREIGN OPERATIONS ADMINISTRATION AND THE INDIA SUPPLY MISSION. FURTHERMORE, THE RECORD SHOWS THAT DURING THE HEARING IN THIS MATTER BEFORE THE BOARD OF REVIEW, GENERAL SERVICES ADMINISTRATION, THE BOARD CONSULTED WITH OFFICIALS OF THE WATER RESOURCES DIVISION, GEOLOGICAL SURVEY, DEPARTMENT OF THE INTERIOR, AND WAS ADVISED THAT MODEL CFD-1, AS MODIFIED IN THE BID OF THE FAILING COMPANY, WAS AN ADEQUATE DRILL FOR WATER WELL WORK AND WAS QUALIFIED FOR USE ON THE INDIA TUBEWELL PROGRAM. THE BOARD OF REVIEW WAS FURTHER ADVISED THAT UNDOUBTEDLY SUPERIOR EQUIPMENT COULD HAVE BEEN OBTAINED AT A HIGHER PRICE BUT IF THE OBJECTIVE WAS TO ACCOMPLISH THE WORK AT A MINIMUM COST, THE EQUIPMENT OFFERED BY THE FAILING COMPANY SATISFIED THAT OBJECTIVE. WE HAVE NO TECHNICAL KNOWLEDGE OF FIRST-HAND INFORMATION REGARDING THE ADEQUACY OF THE VARIOUS TYPES OF DRILLS AND IN VIEW OF THE ADMINISTRATIVE DETERMINATION WHICH WAS CONCURRED IN BY OFFICIALS OF THE WATER RESOURCES, GEOLOGICAL SURVEY, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT THE DRILL OFFERED BY THE FAILING COMPANY UNDER THE SECOND INVITATION MET THE REQUIREMENTS OF THE SPECIFICATIONS.

WE HAVE EXAMINED THE RECORDS FURNISHED BY THE GENERAL SERVICES ADMINISTRATION AND HAVE LIKEWISE CAREFULLY CONSIDERED THE ALLEGATIONS BY YOU. FOR THE REASONS STATED, HOWEVER, WE FIND NO BASIS FOR OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN IN THIS MATTER.