B-128617, SEP. 17, 1956

B-128617: Sep 17, 1956

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TO TORO TURF EQUIPMENT COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEFAX OF JULY 14. IN THE TELEFAX IT WAS STATED THAT SINCE THE PRICE BID ON ITEM 1 BY YOUR COMPANY WAS THE LOWEST SUBMITTED IT SHOULD HAVE BEEN ACCEPTED. IT WAS ALSO STATED THAT THE REASONS FOR REJECTING YOUR BID WERE ERRONEOUS AND UNREASONABLE. IT APPEARS THAT BIDS WERE REQUESTED FOR FURNISHING MOWING EQUIPMENT TO VARIOUS INSTALLATIONS WITHIN THE THIRD ARMY AREA. TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND AWARD WAS MADE TO THE EVANS IMPLEMENT COMPANY. YOUR BID WAS REJECTED BECAUSE THE EQUIPMENT OFFERED BY YOU DID NOT MEET THE SPECIFICATIONS. THE FOLLOWING TECHNICAL AND ECONOMICAL REASONS ARE CONSIDERED ADEQUATE AND SUFFICIENT TO SUBSTANTIATE REJECTION OF THE LOW BID SUBMITTED BY TORO TURF EQUIPMENT COMPANY IN THIS INSTANCE.

B-128617, SEP. 17, 1956

TO TORO TURF EQUIPMENT COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX OF JULY 14, 1956, PROTESTING THE AWARD OF A CONTRACT PURSUANT TO INVITATION NO. DA-09 177-56-55 ISSUED AT FORT MCPHERSON, GEORGIA.

IN THE TELEFAX IT WAS STATED THAT SINCE THE PRICE BID ON ITEM 1 BY YOUR COMPANY WAS THE LOWEST SUBMITTED IT SHOULD HAVE BEEN ACCEPTED. IT WAS ALSO STATED THAT THE REASONS FOR REJECTING YOUR BID WERE ERRONEOUS AND UNREASONABLE.

IN RESPONSE TO OUR REQUEST, THE DEPARTMENT OF THE ARMY HAS FURNISHED A COPY OF THE INVITATION AND A REPORT OF THE FACTS IN THE MATTER OF THE PROCUREMENT. IT APPEARS THAT BIDS WERE REQUESTED FOR FURNISHING MOWING EQUIPMENT TO VARIOUS INSTALLATIONS WITHIN THE THIRD ARMY AREA. TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND AWARD WAS MADE TO THE EVANS IMPLEMENT COMPANY. ALTHOUGH YOUR COMPANY SUBMITTED A LOWER BID ON ITEM 1, YOUR BID WAS REJECTED BECAUSE THE EQUIPMENT OFFERED BY YOU DID NOT MEET THE SPECIFICATIONS. THE DEPARTMENT EXPLAINS THE BASIS FOR ITS ACTION IN REJECTING YOUR BID AS FOLLOWS:

"3. THE FOLLOWING TECHNICAL AND ECONOMICAL REASONS ARE CONSIDERED ADEQUATE AND SUFFICIENT TO SUBSTANTIATE REJECTION OF THE LOW BID SUBMITTED BY TORO TURF EQUIPMENT COMPANY IN THIS INSTANCE.

"A. THE THREE-GANG TORO MOWER WILL CUT AT A HEIGHT OF 2 1/2 INCHES MAXIMUM. A MAXIMUM HEIGHT OF 3 1/2 INCHES IS REQUIRED FOR GOOD MANAGEMENT OF GRASSED AREAS.

"B. THE REELS ON THE TORO MOWERS ARE NOT HEAVY DUTY AND DO NOT MEET SPECIFICATIONS AS TO THICKNESS OF BLADES AND THE IRON SPIDERS AND STEEL DISC SUPPORTING REEL BLADES ARE NOT CONSTRUCTED TO WITHSTAND ROUGH USE AS WILL BE REQUIRED IN R AND U GROUNDS MAINTENANCE.

"C. SPARE PARTS SUPPORT FOR WORTHINGTON MOWERS FOR ALL STATION AREAS IS CONSISTENTLY BETTER THAN THAT PROVIDED FOR TORO EQUIPMENT. SPARE PARTS FOR THE WORTHINGTON MOWERS (ITEMS 1 AND 2) TO BE SUPPLIED BY EVANS IMPLEMENT COMPANY ARE INTERCHANGEABLE, THEREBY ELIMINATING THE NECESSITY OF STOCKAGE OF PARTS FOR TWO DIFFERENT MOWERS.

"D. COMPLETE DELIVERY CAN BE EFFECTED BY EVANS IMPLEMENT COMPANY ON OR BEFORE 1 AUGUST 1956. THE TORO EQUIPMENT COMPANY CANNOT COMPLETE DELIVERY ON ALL ITEMS PRIOR TO 1 SEPTEMBER 1956. THE MOWERS ARE URGENTLY REQUIRED AT THE VARIOUS INSTALLATIONS.

"4. INFORMATION IS ALSO FURNISHED THAT IN THE EVENT THAT THE EVANS IMPLEMENT COMPANY HAD SUBMITTED A BID FOR MOWERS EQUIPPED WITH STANDARD REELS (EQUIVALENT TO TORO) INSTEAD OF HEAVY DUTY REELS, THAT COMPANY WOULD HAVE UNDERBID THE TORO TURF EQUIPMENT COMPANY. THE BIDS SUBMITTED BY THE EVANS IMPLEMENT COMPANY WERE IN COMPLIANCE WITH THE SPECIFICATIONS IN THE INVITATION FOR BIDS CALLING FOR HEAVY DUTY REELS.'

THE FACTS CLEARLY SHOW THAT THE CONTRACT WAS AWARDED TO THE EVANS IMPLEMENT COMPANY ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT YOUR BID WAS NOT RESPONSIVE TO THE ADVERTISED SPECIFICATIONS IN ALL MATERIAL RESPECTS. THE CONTRACTING OFFICER NECESSARILY IS VESTED WITH A CERTAIN AMOUNT OF DISCRETION IN SUCH MATTERS AND, IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR COMPLETE DISREGARD OF THE FACTS, WE WOULD NOT BE WARRANTED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL.

IN THE CIRCUMSTANCES, IT IS OUR CONCLUSION THAT THE AWARD TO THE EVANS IMPLEMENT COMPANY RESULTED IN A BINDING LEGAL OBLIGATION.