B-125573, OCT. 17, 1955

B-125573, OCT. 17, 1955

TO DAVID I. ABSE, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22, 1955, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE PULLMAN-STANDARD CAR MANUFACTURING COMPANY UNDER INVITATION FOR BIDS NO. 4N-50448-N-6-6-55 ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION.

PURSUANT TO A PURCHASE AUTHORITY ISSUED BY THE FOREIGN OPERATIONS ADMINISTRATION ON APRIL 1, 1955, INVITATIONS WERE ISSUED BY THE GENERAL SERVICES ADMINISTRATION FOR VARIOUS ITEMS OF RAILROAD TRANSPORTATION EQUIPMENT AND PARTS FOR EMERGENCY AID FOR RAILROADS IN IRAN. YOUR PROTEST CONCERNS ITEM NO. 1 WHICH IS IDENTIFIED IN THE INVITATION AS "BALLAST TAMPING MACHINE, IN ACCORDANCE WITH THE MINIMUM REQUIREMENTS OF SCHEDULE A ATTACHED, PREPARED FOR EXPORT.' PERTINENT PROVISIONS OF SCHEDULE A ARE AS FOLLOWS:

"GENERAL DESIGN

"THE MACHINE SHALL BE SO CONSTRUCTED THAT IT CAN BE OPERATED BY ONE MAN AND SHALL HAVE A SELF-CONTAINED, POWERED LATERAL SET-OFF MECHANISM.

"LATERAL SET-OFF EQUIPMENT

"THE MACHINE SHALL HAVE A POWERED, LATERAL SET-OFF MECHANISM SO THAT THE MACHINE CAN BE QUICKLY REMOVED FROM THE TRACK LATERALLY ON A PREVIOUSLY CONSTRUCTED SET-OFF CRIB.'

FOUR BIDS WERE RECEIVED, THE LOWEST OF WHICH WAS THAT OF ELECTRIC TAMPER EXPORT COMPANY, THE FIRM WHICH YOU REPRESENT, IN THE AMOUNT OF $27,175 EACH. HOWEVER, BASED UPON A RECOMMENDATION OF THE INTERNATIONAL COOPERATION ADMINISTRATION (FORMERLY THE FOREIGN OPERATIONS ADMINISTRATION), THE AWARD WAS MADE TO THE PULLMAN-STANDARD CAR MANUFACTURING COMPANY, THE SECOND LOWEST BIDDER, IN THE AMOUNT OF $39,400 EACH. THE REASON GIVEN FOR THE REJECTION OF THE ELECTRIC TAMPER BID WAS THAT IT WAS NOT RESPONSIVE TO THE INVITATION IN THAT THE LATERAL SET-OFF WHEELS ARE NOT SELF-PROPELLED AND THE MACHINE MUST BE PUSHED OFF THE TRACK BY HAND WHEREAS THE MACHINE MUST BE SO CONSTRUCTED THAT IT WOULD HAVE A POWERED LATERAL SET-OFF MECHANISM OPERATED BY ONE MAN.

IN PROTESTING THE AWARD OF THE CONTRACT IT IS CONTENDED THAT THE MACHINE OFFERED BY ELECTRIC TAMPER FULLY MEETS THE REQUIREMENTS OF THE SPECIFICATIONS; THAT THERE WAS NO REQUIREMENT THAT THE MACHINE BE EQUIPPED WITH WHEELS FOR LATERALLY POWERED SET-OFF MOVEMENT SO AS TO MEAN "LATERALLY POWERED" OR "VERTICALLY AND LATERALLY POWERED" AND THAT THE WHEELS TO REMOVE THE MACHINE FROM THE RAILROAD TRACK ARE NOT, TECHNICALLY, A PART OF THE POWERED SET-OFF MECHANISM.

CAREFUL CONSIDERATION HAS BEEN GIVEN THE STATEMENT OF FACTS, SUMMARY OF THE ARGUMENT AND THE BASIS ON WHICH THE RECOMMENDATION OF DENIAL OF THE APPEAL WAS MADE BY THE BOARD OF REVIEW TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION. THE DETERMINING FACTOR IN THE CASE APPEARS TO BE WHETHER OR NOT A MACHINE EQUIPPED WITH POWERED SET-OFF WHEELS WAS REQUIRED TO BE FURNISHED. THE RECORD SHOWS THAT AFTER THE BIDS WERE OPENED THE FOREIGN OPERATIONS ADMINISTRATION, THE REQUISITIONING AGENCY, WAS CONSULTED CONCERNING THE PROPER AWARD TO BE MADE AND ADVISED THE GENERAL SERVICES ADMINISTRATION THAT THE BID OF THE ELECTRIC TAMPER AND EXPORT COMPANY ON ITEM NO. 1 WAS NOT RESPONSIVE BECAUSE, UPON VERIFICATION, IT DID NOT OFFER A MACHINE EQUIPPED WITH POWERED LATERAL SET-OFF MECHANISM FOR REMOVAL OF THE EQUIPMENT FROM THE RAILROAD TRACK.

THE BOARD OF REVIEW CONCLUDED THAT, WHILE THE LANGUAGE OF THE SPECIFICATIONS IN THIS REGARD APPEARS AMBIGUOUS, IT WAS THE INTENT OF THE FOREIGN OPERATIONS ADMINISTRATION IN DRAFTING THE SPECIFICATIONS FOR THE TAMPING MACHINE TO PROCURE A MACHINE WHICH WAS POWERED BOTH VERTICALLY AND LATERALLY, AND THAT THE SPECIFICATIONS SHOULD THEREFORE BE SO INTERPRETED.

ORDINARILY IT IS OUR RULE THAT AMBIGUOUS SPECIFICATIONS SHOULD NOT BE MADE THE BASIS OF ANY AWARD, BUT THAT ALL BIDS THEREON SHOULD BE REJECTED AND THE PROCUREMENT READVERTISED. IT SEEMS CLEAR, HOWEVER, THAT IN THIS INSTANCE SUCH PROCEDURE WOULD HAVE BEEN OF NO BENEFIT EITHER TO THE GOVERNMENT OR TO BIDDERS WHOSE PRODUCTS DO NOT MEET THE SPECIFICATIONS AS INTERPRETED BY THE CONTRACTING OFFICER AND THE REQUISITIONING AGENCY, SINCE IT APPEARS THAT FULL COMPETITION WAS ACHIEVED, AND REVISED SPECIFICATIONS WOULD MERELY HAVE ELIMINATED THOSE BIDDERS WHO DID NOT INTERPRET THE ORIGINAL SPECIFICATIONS AS THEY ARE SAID TO HAVE BEEN INTENDED.

REGARDING THE CONTENTION THAT THE INTERPRETATION PLACED UPON THE SPECIFICATIONS BY THE FEDERAL SUPPLY SERVICE RESTRICTED THE BIDDING TO A SINGLE PRODUCER, THE RECORD NOW SHOWS THAT, IN ADDITION TO THE SUCCESSFUL BIDDER, PULLMAN-STANDARD COMPANY, THE RAILWAY MAINTENANCE CORPORATION CONSIDERED A POWERED LATERAL SET-OFF MECHANISM TO BE OPTIONAL EQUIPMENT WITH ITS STANDARD MANUFACTURE AND APPARENTLY PROPOSED TO FURNISH SUCH EQUIPMENT UNDER ITS BID. IN THE CIRCUMSTANCES, IT APPEARS THE THE FINDING OF THE BOARD OF REVIEW THAT THE SPECIFICATIONS WERE NOT RESTRICTIVE WAS CORRECT AND PROPER.

A QUESTION WAS RAISED AT THE HEARING AS TO WHETHER THE EQUIPMENT OFFERED BY THE PULLMAN-STANDARD MANUFACTURING COMPANY FAILED TO MEET THE SPECIFICATIONS REQUIRING THAT THE TAMPING MACHINE SHOULD BE EQUALLY SUITABLE FOR OPERATION WITH CONCRETE OR HOLLOW AND POT TYPE METAL TIES. SINCE THE SUCCESSFUL BIDDER, UPON INQUIRY, HAS STATED UNEQUIVOCALLY THAT ITS EQUIPMENT WOULD MEET THIS REQUIREMENT OF THE SPECIFICATIONS, THE BOARD OF REVIEW PROPERLY HELD THAT THE AWARD COULD NOT BE SET ASIDE UNLESS AND UNTIL IT IS CONCLUSIVELY PROVED BY INSPECTION AND TEST OF THE MACHINE, WHEN PRODUCED, THAT IT FAILS TO MEET THE SPECIFICATIONS.

IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT THE PROTEST OF THE ELECTRIC TAMPER AND EXPORT COMPANY FURNISHES NO BASIS ON WHICH WE WOULD BE JUSTIFIED IN REQUIRING CANCELLATION OF THE AWARD TO THE PULLMAN-STANDARD MANUFACTURING COMPANY.