B-134598, JAN. 14, 1958

B-134598: Jan 14, 1958

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NATIONAL PARK SERVICE: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6. TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. ONE WAS FROM THE WHITE MOTOR COMPANY IN THE AMOUNT OF $42. 243 AND THE SECOND WAS FROM THE NASH-DAVIS MACHINERY COMPANY IN THE AMOUNT OF $39. THAT THE FUEL CONSUMPTION FIGURES FURNISHED IN THE NASH -DAVIS BID WERE NOT STATED ON THE PROPER BASIS. THAT NO PYROMETER WAS TO BE FURNISHED UNDER THAT BID. IT IS STATED THAT THE LOW BIDDER GAVE FUEL CONSUMPTION FIGURES FOR SEA LEVEL RATING INSTEAD OF FOR 8. IT IS STATED THAT THE PROTESTANT CONCURRED IN THESE COMPUTATIONS AND THAT FOLLOWING A MEETING BETWEEN OFFICIALS OF THE PARK SERVICE AND REPRESENTATIVES OF THE TWO BIDDERS IT WAS CONCEDED THAT THE CATERPILLAR ENGINE MET ALL THE REQUIRED SPECIFICATIONS.

B-134598, JAN. 14, 1958

TO MR. HOWARD W. BAKER, CONTRACTING OFFICER, NATIONAL PARK SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6, 1957, REQUESTING OUR ADVICE AS TO WHETHER AN AWARD OF A CONTRACT MAY BE MADE TO THE LOW BIDDER UNDER THE CIRCUMSTANCES DESCRIBED BELOW.

INVITATION FOR BIDS NO. 26, DATED OCTOBER 1, 1957, PART A, REQUESTED BIDS FOR ENGINEERING, DESIGNING, FURNISHING AND INSTALLING A DIESEL ENGINE DRIVEN ELECTRICAL GENERATOR. TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. ONE WAS FROM THE WHITE MOTOR COMPANY IN THE AMOUNT OF $42,243 AND THE SECOND WAS FROM THE NASH-DAVIS MACHINERY COMPANY IN THE AMOUNT OF $39,839, BASED ON FURNISHING A CATERPILLAR POWERED UNIT.

THE WHITE MOTOR COMPANY FILED A PROTEST ON THE GROUNDS THAT THE CATERPILLAR ENGINE DOES NOT MEET THE SPECIFICATION PRECISELY, AS DEFINED IN THE INVITATION; THAT THE FUEL CONSUMPTION FIGURES FURNISHED IN THE NASH -DAVIS BID WERE NOT STATED ON THE PROPER BASIS; AND THAT NO PYROMETER WAS TO BE FURNISHED UNDER THAT BID.

IN A MEMORANDUM DATED NOVEMBER 19, 1957, FROM THE ACTING SUPERINTENDENT, YELLOWSTONE, TO THE REGIONAL DIRECTOR, IT IS STATED THAT THE LOW BIDDER GAVE FUEL CONSUMPTION FIGURES FOR SEA LEVEL RATING INSTEAD OF FOR 8,000 FEET ELEVATION, AS REQUIRED BY THE INVITATION, BUT THAT UPON DERATION OF THE CATERPILLAR ENGINE (ACCORDING TO D.E.M.A. STANDARD PRACTICES), IT HAS BEEN FOUND THAT THE CATERPILLAR UNIT STILL HAS THE LOWEST EVALUATED PURCHASE PRICE, INCLUDING FUEL COST, AS PROVIDED BY THE INVITATION. ALSO, IT IS STATED THAT THE PROTESTANT CONCURRED IN THESE COMPUTATIONS AND THAT FOLLOWING A MEETING BETWEEN OFFICIALS OF THE PARK SERVICE AND REPRESENTATIVES OF THE TWO BIDDERS IT WAS CONCEDED THAT THE CATERPILLAR ENGINE MET ALL THE REQUIRED SPECIFICATIONS. NO SPECIFIC REFERENCE IS MADE IN THE REPORT TO THE PROTESTANT'S COMPLAINT CONCERNING THE LACK OF PYROMETER EQUIPMENT IN THE NASH-DAVIS BID. HOWEVER, WE FIND NO POSITIVE REQUIREMENT IN THE INVITATION OR SPECIFICATIONS FOR SUCH EQUIPMENT, ALTHOUGH THE QUESTIONNAIRE FURNISHED BIDDERS FOR DESCRIPTION OF THEIR EQUIPMENT AND AUXILIARIES INCLUDES QUESTIONS AS TO PYROMETERS. SINCE THE NASH-DAVIS BID CLEARLY STATED "NONE" WITH REFERENCE THERETO, WE ASSUME THAT YOU HAVE DETERMINED THAT THE ABSENCE OF THIS ITEM DOES NOT PREVENT THE CATERPILLAR ENGINE FROM MEETING ALL REQUIREMENTS OF THE SPECIFICATIONS.

DETERMINING WHETHER OR NOT AN ARTICLE OFFERED TO THE GOVERNMENT BY A BIDDER UNDER AN ADVERTISED INVITATION MEETS THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS IS PRIMARILY AN ADMINISTRATIVE RESPONSIBILITY. ONLY WHEN IT IS REASONABLY CLEAR THAT SUCH ADMINISTRATIVE DETERMINATIONS WERE NOT MADE IN GOOD FAITH OR ON REASONABLE FACTUAL GROUNDS, OR IN ACCORDANCE WITH SOME EXPRESS PROVISION OF THE INVITATION OR CONTROLLING LEGAL PRINCIPLE, CAN WE HOLD THAT AN AWARD MADE ON THE BASIS OF SUCH DETERMINATION WAS ILLEGAL. ON THE RECORD BEFORE US WE FIND NO BASIS TO CONCLUDE THAT YOUR DETERMINATION AS TO THE ABILITY OF THE CATERPILLAR EQUIPMENT OFFERED TO MEET THE STATED REQUIREMENTS OF THE INVITATION IS NOT JUSTIFIED. AS TO THE ALLEGED MISSTATEMENT OF THE FUEL CONSUMPTION, IT IS OUR UNDERSTANDING THAT, WHILE THE FIGURE FURNISHED WAS NOT TECHNICALLY WHAT WAS CALLED FOR, IN THAT IT WAS NOT ON THE BASIS OF THE SPECIFIED ALTITUDE, THERE WAS NO MISREPRESENTATION OR MISUNDERSTANDING AS TO THE BASIS ON WHICH IT WAS STATED AND IT WAS SUSCEPTIBLE OF EXACT CONVERSION TO THE REQUIRED BASIS BY DEFINITE MATHEMATICAL COMPUTATION. IN THESE CIRCUMSTANCES WE DO NOT CONSIDER THE DEVIATION TO BE MATERIAL.

ACCORDINGLY, OUR OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE AWARD OF THE CONTRACT TO THE LOW RESPONSIVE BIDDER, AS DETERMINED BY YOU.