B-134516, JUN. 18, 1958

B-134516: Jun 18, 1958

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

JOHN PAUL JONES: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 28. THE GOVERNMENT THEREFORE DESIRES TO PURCHASE ONE PIECE OF EQUIPMENT THAT WILL PERFORM SEVERAL TYPES OF OPERATIONS. THE EQUIPMENT SO PURCHASED WILL BE USED ON JOBS WHERE IT WILL BE REQUIRED TO PERFORM. LOADER WILL THEREFORE BE ACCEPTABLE. IT IS ALSO THE INTENT OF THE GOVERNMENT TO USE THIS TRACTOR TO PLOW SNOW. IT SHALL BE SO CONSTRUCTED THAT THE ADDITION OF A BLADE ATTACHMENT WILL ENABLE THE MACHINE TO PLOW SNOW IN AN EFFICIENT MANNER. THE BLADE ATTACHMENT IS NOT A PART OF THIS SPECIFICATION.'. WAS REJECTED BY THE NATIONAL PARK SERVICE BECAUSE THE TRANSMISSION IN THE TRACTOR OFFERED DID NOT MEET THE ABOVE SPECIFICATIONS.

B-134516, JUN. 18, 1958

TO MR. JOHN PAUL JONES:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 28, 1958, WRITTEN IN BEHALF OF BURAN EQUIPMENT COMPANY, PROTESTING AGAINST THE AWARD OF A CONTRACT IN THE AMOUNT OF $18,543.70 BY THE NATIONAL PARK SERVICE, YOSEMITE NATIONAL PARK, TO ALLIED EQUIPMENT COMPANY UNDER INVITATION FOR BIDS NO. 276.

THE REPORT SUBMITTED TO THIS OFFICE BY THE DEPARTMENT OF THE INTERIOR IN THIS MATTER INDICATES THAT INVITATION NO. 276 REQUESTED BIDS, TO BE OPENED ON OCTOBER 8, 1957, FOR FURNISHING ONE ,TRACTOR SHOVEL (LOADER); DIESEL, 90 HP MINIMUM: RUBBER TIRES; 4-WHEEL DRIVE," AND DESCRIBED THE NEED FOR SUCH EQUIPMENT AS FOLLOWS:

"THE MAJOR PORTION OF ALL MAINTENANCE WORK IN YOSEMITE NATIONAL PARK CONSISTS OF SMALL JOBS REQUIRING THE SERVICES OF 2 OR MORE PIECES OF EQUIPMENT FOR SHORT PERIODS OF TIME. THE GOVERNMENT THEREFORE DESIRES TO PURCHASE ONE PIECE OF EQUIPMENT THAT WILL PERFORM SEVERAL TYPES OF OPERATIONS, AND THE EQUIPMENT SO PURCHASED WILL BE USED ON JOBS WHERE IT WILL BE REQUIRED TO PERFORM, IN ADDITION TO ITS NORMAL USE AS AN EFFICIENT LOADING BUCKET, VARIOUS TYPES OF WORK SUCH AS WOULD ORDINARILY BE DONE BY A BULLDOZER, A SHOVEL, A CRANE, OR A SCRAPER. THE EQUIPMENT MAY BE REQUIRED TO PERFORM ALL OF THESE OPERATIONS IN A SINGLE DAY, AND THE TRANSITION FROM ONE TYPE OF WORK TO ANOTHER SHALL (BE) SIMPLE, EASY TO ACCOMPLISH, AND SUCH THAT IT CAN BE ACCOMPLISHED BY THE OPERATOR ALONE AND UNASSISTED (SEE "SERVICE REQUIREMENTS"). A "4 IN 1" TYPE BUCKET THAT CAN BE USED AS A SHOVEL, CLAMSHELL, SCRAPER, BULLDOZER, AND LOADER WILL THEREFORE BE ACCEPTABLE. IT IS ALSO THE INTENT OF THE GOVERNMENT TO USE THIS TRACTOR TO PLOW SNOW, AND IT SHALL BE SO CONSTRUCTED THAT THE ADDITION OF A BLADE ATTACHMENT WILL ENABLE THE MACHINE TO PLOW SNOW IN AN EFFICIENT MANNER, BUT THE BLADE ATTACHMENT IS NOT A PART OF THIS SPECIFICATION.'

WITH RESPECT TO THE TRACTOR'S TRANSMISSION, THE SPECIFICATIONS PROVIDED:

"TRANSMISSION SHALL BE FULL POWER SHIFT TYPE WITH NOT LESS THAN 3 SPEEDS FORWARD AND 3 SPEEDS REVERSE, AND SHALL BE CAPABLE OF BEING SHIFTED TO ANY GEAR, EITHER FORWARD OR REVERSE, UNDER FULL POWER. SPEED IN HIGH GEAR SHALL BE APPROXIMATELY 20 MILES PER HOUR IN EITHER FORWARD OR REVERSE GEAR.'

THE LOW BID, SUBMITTED BY BURAN EQUIPMENT COMPANY IN THE AMOUNT OF $18,000, WAS REJECTED BY THE NATIONAL PARK SERVICE BECAUSE THE TRANSMISSION IN THE TRACTOR OFFERED DID NOT MEET THE ABOVE SPECIFICATIONS, AND THE REPORT RECEIVED FROM THE DEPARTMENT OF THE INTERIOR INDICATES MORE SPECIFICALLY THAT SUCH DEFICIENCY AROSE BECAUSE OF FAILURE OF THE TRANSMISSION TO SHIFT FROM SECOND TO THIRD GEAR UNDER FULL POWER. YOUR PROTEST ALLEGES THAT THE TRANSMISSION IN THE EQUIPMENT OFFERED BY BURAN WAS A FULL POWER SHIFT TYPE WITH FOUR SPEEDS FORWARD AND FOUR SPEEDS REVERSE, CAPABLE OF BEING SHIFTED IN ANY GEAR EITHER FORWARD OR REVERSE UNDER FULL POWER; AND WITH A SPEED OF TWENTY-SIX MILES PER HOUR IN EITHER FORWARD OR REVERSE. HOWEVER, THIS STATEMENT APPEARS TO BE SOMEWHAT QUALIFIED BY YOUR EXPLANATION TO THE EFFECT THAT, WHILE THERE ARE FOUR GEAR RATIOS IN THE TRANSMISSION AND EACH GEAR DOES HAVE A POWER SHIFT, THE POWER SHIFT DOES NOT SHIFT IN SEQUENCE THROUGH THE ENTIRE RANGE OF GEARS.

IN THIS CONNECTION, THE REPORT FROM THE DEPARTMENT OF THE INTERIOR STATES THAT, AS A RESULT OF THE INITIAL PROTEST FILED BY BURAN EQUIPMENT COMPANY ON NOVEMBER 20, 1957, A CONFERENCE WAS HELD WITH REPRESENTATIVES OF THE PROTESTANT IN WASHINGTON ON JANUARY 21, 1958, AT WHICH TIME IT WAS CONCLUDED THAT THE BIDS OF BOTH THE PROTESTANT AND ALLIED EQUIPMENT COMPANY SHOULD BE REINSTATED AND THAT A REQUEST BY THE PROTESTANT FOR A SECOND DEMONSTRATION OF ITS EQUIPMENT SHOULD BE GRANTED. SUCH TEST WAS HELD ON MARCH 7, 1958, UNDER THE SUPERVISION OF TWO EQUIPMENT ENGINEERS BROUGHT IN FROM THE BUREAU OF RECLAMATION AND CHARGED WITH DETERMINING WHETHER THE EQUIPMENT OFFERED BY THE PROTESTANT MET THE TECHNICAL SPECIFICATIONS AS ADVERTISED IN THE INVITATION FOR BIDS. THE REPORT SUBMITTED BY THESE ENGINEERS READS, IN PERTINENT PART, AS FOLLOWS:

"THE DEMONSTRATION WAS HELD IN THE BURAN YARD. IT IS OUR OPINION THAT THE MACHINE, MICHIGAN MODEL 85A, PASSED ALL TESTS EXCEPT ONE. THE SPECIFICATIONS STATE, IN PART:

" " TRANSMISSION SHALL BE FULL POWER SHIFT TYPE WITH NOT LESS THAN 3 SPEEDS FORWARD AND 3 SPEEDS REVERSE, AND SHALL BE CAPABLE OF BEING SHIFTED TO ANY GEAR, EITHER FORWARD OR REVERSE, UNDER FULL POWER. SPEED IN HIGH GEAR SHALL BE APPROXIMATELY 20 MILES PER HOUR IN EITHER FORWARD OR REVERSE GEAR.'

"THE MICHIGAN WILL NOT SHIFT FROM 2ND TO 3RD GEAR UNDER FULL POWER WHICH IS AT VARIANCE WITH THE SPECIFICATIONS.'

THE LAW REQUIRING ADVERTISING FOR BIDS AND AWARD TO THE LOWEST RESPONSIBLE BIDDER CONTEMPLATES THAT ALL BIDS BE BASED UPON FULL COMPLIANCE WITH THE ADVERTISED SPECIFICATIONS. WHETHER MATERIALS OFFERED BY A BIDDER COMPLY WITH THE SPECIFICATIONS IS PRIMARILY A QUESTION OF FACT TO BE DETERMINED BY THE ADMINISTRATIVE OFFICE IN CHARGE OF THE PROCUREMENT AND, IN THE ABSENCE OF EVIDENCE OF FAVORITISM, OR ARBITRARY OR CAPRICIOUS ACTION, SUCH DETERMINATIONS ARE CONCLUSIVE ON THIS OFFICE. 36 COMP. GEN. 809; 3 ID. 51. THE ADVERTISED SPECIFICATIONS IN THE INSTANT CASE CLEARLY STATE THAT THE TRANSMISSION SHOULD BE CAPABLE OF BEING SHIFTED TO ANY GEAR UNDER FULL POWER, AND THE RECORD INDICATES THAT RESPONSIBLE OFFICIALS OF THE DEPARTMENT OF THE INTERIOR MADE A REASONED DETERMINATION, AFTER FULL DEMONSTRATION OF THE EQUIPMENT OFFERED BY THE BURAN EQUIPMENT COMPANY, THAT SUCH EQUIPMENT DID NOT COMPLY WITH THE SPECIFICATIONS. IN VIEW OF THE FACT THAT A PORTION OF YOUR LETTER TO THIS OFFICE STATES THAT "THE POWER SHIFT DOES NOT SHIFT IN SEQUENCE THROUGH THE ENTIRE RANGE OF GEARS," THERE DOES NOT APPEAR TO BE ANY BASIS UPON WHICH THE CORRECTNESS OF THE ADMINISTRATIVE FINDING WOULD BE SUBJECT TO QUESTION.

ADDITIONALLY, AND WITH SPECIFIC REFERENCE TO THAT PORTION OF YOUR LETTER WHICH ALLEGES THAT THE SPECIFICATIONS WERE INFLEXIBLE AND GEARED TO A PARTICULAR PRODUCT, THE DEPARTMENT OF THE INTERIOR HAS ADVISED THAT A FULL POWER SHIFT FROM SECOND TO THIRD GEARS IS CONSIDERED ESSENTIAL TO EFFICIENT OPERATION BECAUSE OF PERFORMANCE REQUIREMENTS IN PLOWING SNOW, GRAVEL, AND OTHER MATERIALS. IN VIEW OF THE FACT THAT THE RECORD IS DEVOID OF ANY EVIDENCE THAT ALLIED EQUIPMENT COMPANY, THE SUCCESSFUL BIDDER, WAS THE ONLY SUPPLIER ABLE TO MEET THIS REQUIREMENT OF THE SPECIFICATIONS, THE PURPOSE OF SUCH ALLEGATION IS NOT APPARENT. IT MAY BE STATED, HOWEVER, THAT WHILE SPECIFICATIONS DRAWN IN SUCH MANNER AS TO PRECLUDE COMPLIANCE BY MORE THAN ONE SUPPLIER, AND THUS PREVENT COMPETITION, ARE GENERALLY CONSIDERED IMPROPER, THIS RULE HAS NO APPLICATION WHERE THE NEEDS OF THE GOVERNMENT ARE SUCH AS TO REQUIRE INFLEXIBILITY IN THE SPECIFICATIONS. AS STATED AT 36 COMP. GEN. 252,"THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.'

UNDER THE CIRCUMSTANCES IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ADMINISTRATIVE ACTION TAKEN WAS ILLEGAL OR IMPROPER.