B-135996, B-135997, JUL. 18, 1958

B-135996, B-135997, JUL. 18, 1958

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER OF MAY 29, 1958, SIGNED BY THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS) AND TO SUBSEQUENT CORRESPONDENCE FORWARDING PURSUANT TO OUR REQUEST REPORTS ON THE REJECTION OF THE APPARENT LOW BIDS SUBMITTED BY THE INTERNATIONAL HARVESTER COMPANY IN RESPONSE TO INVITATIONS NOS. ORD-20-113-58-373 ISSUED FEBRUARY 26, 1958, AND ORD-20-113-58-471 ISSUED MARCH 13, 1958.

BOTH INVITATIONS WERE OPENED ON MARCH 31, 1958, AND CALLED FOR 5-TON, 6 BY 4 GASOLINE ENGINE DRIVEN TRUCKS WITH CONVENTIONAL CHASSES AND CABS, IN COMPLIANCE WITH MILITARY SPECIFICATION T-19350, DATED JANUARY 31, 1956, AS AMENDED BY DETROIT ARSENAL PURCHASE DESCRIPTIONS. THE MILITARY SPECIFICATION CLASSIFIES TRUCKS INTO 14 DIFFERENT TYPES FURTHER SUBDIVIDED BY CAPACITY. OF THE 14 TYPES, 10 ARE DESIGNATED AS "CONVENTIONAL CHASSIS WITH CAB" OR BY SIMILAR LANGUAGE; THE REMAINDER ARE DESCRIBED SUBSTANTIALLY AS HAVING "CAB FORWARD OR GOE CHASSIS.' EACH OF THE ITEMS UNDER PROCUREMENT IS DESCRIBED IN THE INVITATIONS AS "CONVENTIONAL" AND, IN ADDITION, THE APPLICABLE PORTION OF THE SPECIFICATION DESCRIBES THE DESIRED PRODUCTS AS EQUIPPED WITH ,CONVENTIONAL" CABS. HOWEVER, NEITHER THE CONVENTIONAL CAB NOR ANY OTHER TYPE IS FURTHER DEFINED (OTHER THAN BY DESIGNATION) IN THE SPECIFICATION EITHER BY DESCRIPTION OR DIMENSION.

AFTER OPENING AND PRIOR TO AWARD, THREE OTHER BIDDERS PROTESTED THAT THE LOW BIDDER, THE INTERNATIONAL HARVESTER COMPANY, HAD NOT OFFERED TRUCKS WITH CONVENTIONAL CABS AND CHASSES AS REQUIRED BY THE SPECIFICATION AND THAT INTERNATIONAL'S MODEL ACF 180, WHICH WAS THE PRODUCT BID, WAS IN FACT A CAB FORWARD TYPE AND, THEREFORE, WAS PROPERLY FOR REJECTION AS NOT IN COMPLIANCE WITH THE SPECIFICATION. ENGINEERING ANALYSES WERE PERFORMED BY THE PROCURING AGENCY AND THE CONCLUSION WAS REACHED THAT THE INTERNATIONAL PRODUCT WAS IN FACT NOT IN CONFORMITY WITH THE SPECIFICATION. THEREFORE, THE INTERNATIONAL BIDS WERE REJECTED AND AWARD MADE TO THE NEXT LOW BIDDERS ON APRIL 25, 1958. INTERNATIONAL PROTESTED THE REJECTION OF ITS BIDS TO OUR OFFICE BY TELEGRAMS OF APRIL 30 AND THE BIDDERS TO WHOM CONTRACTS WERE AWARDED WERE ADVISED BY THE PROCURING OFFICE ON MAY 7, 1958, TO INCUR NO FURTHER EXPENSES ON THE CONTRACTS PENDING RESOLUTION OF THE PROTEST BY OUR OFFICE.

EXCEPT AS TO THE CONVENTIONAL CONFIGURATION OF THE CAB, THE INTERNATIONAL BIDS APPEAR TO BE IN CONFORMITY WITH THE SPECIFICATION IN EVERY MATERIAL RESPECT. IT IS EVIDENT THAT AWARD OF A CONTRACT TO INTERNATIONAL FOR THE 532 VEHICLES UNDER PROCUREMENT WOULD RESULT IN A SAVING TO THE GOVERNMENT OF APPROXIMATELY $80,000. IT IS FURTHER CONCEDED THAT THE ACF 180 TRUCK IS DESCRIBED IN CERTAIN INTERNATIONAL HARVESTER ADVERTISING LITERATURE, NOT MADE A PART OF ITS BIDS OR REQUIRED TO BE SUBMITTED THEREWITH, AS A CAB FORWARD MODEL.

THE PROCURING AGENCY HAS DETERMINED THAT THE MODEL ACF 180 IS A CAB FORWARD TYPE CHASSIS AND CAB INSTEAD OF THE CONVENTIONAL TYPE CALLED FOR BY THE SPECIFICATION AND THAT THIS REPRESENTS A MAJOR DEVIATION WHICH REQUIRES REJECTION OF THE INTERNATIONAL HARVESTER BIDS. ENGINEERING ANALYSES DATED APRIL 14 AND APRIL 23, 1958, PERFORMED BY THE PROCURING AGENCY CONTAIN THE CONCLUSION THAT INTERNATIONAL'S MODEL ACF 180 IS A CAB FORWARD UNIT AND THEREFORE NOT IN CONFORMITY WITH THE SPECIFICATION. BOTH ANALYSES STATE:

"* * * CAB DESCRIPTIONS OR DEFINITIONS BY DIMENSIONAL DESCRIPTION DO NOT EXIST AS AN INDUSTRY STANDARD. TO DISTINGUISH BASIC DIFFERENCES BETWEEN THE VARIOUS CAB TYPES, HOWEVER, MANUFACTURERS' MODELS AND THEIR DEFINITIONS APPLIED TO THESE MODELS, ESTABLISH ACCEPTABLE AREAS OF DISTINCTION. INDUSTRIAL ENGINEERING UTILIZES MANUFACTURERS' PUBLICATIONS IN PERFORMING ANALYSES * * * TO INSURE SUFFICIENT ADEQUACY OF DESCRIPTIVE MATERIAL TO FULLY IDENTIFY MATERIAL OFFERED FOR PROCUREMENT.'

TO INDICATE FURTHER THAT THE DISTINCTION BETWEEN CAB FORWARD AND CONVENTIONAL IS RECOGNIZED AND ACCEPTED IN THE AUTOMOTIVE INDUSTRY, THE ADMINISTRATIVE REPORT SUBMITTED WITH THE LETTER OF MAY 29 STATES FURTHER:

"12. DYKE'S AUTOMOBILE AND GASOLINE ENCYCLOPEDIA, 1950 EDITION, PAGE 961 DESCRIBES TYPES OF TRUCK CHASSIS AND CABS AS FOLLOWS:

" "THE CAB DESIGNED FOR AND USUALLY INCLUDED WITH THE CHASSIS IS THE DRIVER'S COMPARTMENT, IN WHICH THE CONTROLS, INSTRUMENT PANEL AND DRIVER'S SEAT ARE LOCATED, USUALLY OF STEEL CONSTRUCTION, ARE OF THREE GENERAL TYPES: (1) CONVENTIONAL TYPE WHERE A HOOD IS OVER THE ENGINE AS SHOWN IN FIGS. 5 AND 7; (2) CAB OVER ENGINE TYPE. (C.O.E.) AS SHOWN IN FIG. 6; (3) CAB FORWARD TYPE, A COMPROMISE BETWEEN A FULL C.O.E. AND CONVENTIONAL TYPE (NOT SHOWN).' "COMPILED FROM LITERATURE OF INTERNATIONAL HARVESTER CO. BY PERMISSION (1942).'"

IN A LETTER OF JUNE 12, 1958, SUPPLEMENTING ITS PROTEST, INTERNATIONAL HARVESTER CONTENDS THAT THE VALIDITY OF THE QUOTED DEFINITION IS QUESTIONABLE BECAUSE OF THE TIME INTERVENING SINCE IT WAS WRITTEN. IT IS ALSO CONTENDED THAT THE TERMS "CONVENTIONAL CAB" AND "CAB FORWARD" DO NOT HAVE ACCEPTED MEANINGS WITHIN THE INDUSTRY. FOR EXAMPLE, IT IS SHOWN IN ADVERTISING LITERATURE DISTRIBUTED BY VARIOUS MANUFACTURERS THAT TRUCK MODELS IN WHICH THE FRONT OF THE DRIVERS' COMPARTMENTS ARE ONLY A FEW INCHES BEHIND THE BACK OF THE FRONT BUMPER AND IN WHICH ACCESS TO THE ENGINE IS NORMALLY OBTAINED BY TILTING THE ENTIRE CAB FORWARD ARE VARIOUSLY DESCRIBED BY THEIR MAKERS AS CAB OVER ENGINE, TILT CAB, AND FORWARD CONTROL. FURTHER, A MODEL MANUFACTURED BY MACK OF THE SAME GENERAL CONFORMATION DESCRIBED ABOVE IS DESIGNATED IN TRADE LITERATURE AS A CAB FORWARD MODEL. MORE SIGNIFICANTLY, A TRUCK TRACTOR MANUFACTURED BY MACK MEASURING 89 INCHES FROM BUMPER TO BACK OF CAB AND A GMC MODEL MEASURING 90 INCHES IN THE SAME DIMENSION (COMPARED TO 96 1/2 INCHES FOR THE ACF 180) ARE DESIGNATED AS CONVENTIONAL.

THE ADMINISTRATIVE REPORT ENCLOSED WITH THE LETTER OF JUNE 27 POINTS OUT THAT THE MODELS NOTED IN THE INTERNATIONAL PROTEST SUPPLEMENT ARE TRUCK TRACTOR MODELS RATHER THAN "STRAIGHT" TRUCKS PROCURED UNDER THE INVITATIONS IN QUESTION AND, THEREFORE, THAT "THE EXHIBITS AND COMMENTS PERTAINING THERETO ARE NOT CONSIDERED A TRUE BASIS OF COMPARISON.' WHILE "STRAIGHT" TRUCKS UNDOUBTEDLY DIFFER FROM TRACTOR TRUCKS, CAB CONFORMATIONS OF BOTH TYPES APPEAR TO FOLLOW THE SAME GENERAL PATTERNS AND NO REASON IS SEEN WHY A CAB-FORWARD MODEL OF ONE TYPE SHOULD NOT BE SUBSTANTIALLY SIMILAR TO THE SAME DESIGNATION OF THE OTHER TYPE, IF, IN FACT, THE DESIGNATION HAS AN ACCEPTED MEANING THROUGHOUT THE INDUSTRY.

THE ENCYCLOPEDIA BRITANNICA (1952 EDITION) AT VOLUME 15, PAGE 924, QUOTES THE SOCIETY OF AUTOMOTIVE ENGINEERS DEFINITION OF A CONVENTIONAL TRUCK AS "ONE WITH THE DRIVER'S COMPARTMENT AND CONTROLS LOCATED AT THE REAR OF A HOOD-ENCLOSED POWER PLANT.' THE ENCYCLOPEDIA STATES FURTHER---

"CAB FORWARD MOTOR TRUCK OR TRUCK TRACTOR (ALSO CALLED "FORWARD CONTROL" OR "CAB OVER ENGINE") WAS DEFINED AS THAT WITH THE DRIVER'S COMPARTMENT AND CONTROLS LOCATED FORWARD OF THEIR POSITION ON THE CONVENTIONAL FRONT END TYPE OF MOTOR TRUCK OR TRUCK TRACTOR.'"

THE ARTICLE CONTAINS TWO PICTURES OF TRUCKS WHICH ARE DESIGNATED AS OF A CAB FORWARD TYPE. IN BOTH CASES, THE GRILL IS ALMOST FLUSH WITH THE WINDSHIELD AND ONE CAB IS TILTED TO EXPOSE THE ENGINE. THUS, IT APPEARS FROM THE ARTICLE THAT THE ENCYCLOPEDIA BRITANNICA REGARDS THE TERM "CAB FORWARD" WHETHER APPLIED TO TRUCK TRACTORS OR "STRAIGHT TRUCKS" AS SYNONYMOUS WITH "CAB OVER ENGINE.' THE FOREGOING WOULD APPEAR SUBSTANTIALLY TO REFUTE THE CONTENTION THAT THE DESIGNATIONS "CONVENTIONAL CAB" OR "CAB FORWARD," HAVE DEFINITE MEANINGS RECOGNIZED AND ACCEPTED THROUGHOUT THE INDUSTRY.

NOT ONLY DOES THE RECORD FAIL TO ESTABLISH ANY CLEAR DEFINITION OF THE TERM "CONVENTIONAL CAB," BUT IT FAILS TO SHOW THE ACTUAL NEED INVOLVED IN THE REQUIREMENT IN THESE PROCUREMENTS FOR ,CONVENTIONAL" CABS, OR THE RESPECTS IN WHICH THE INTERNATIONAL ACF 180 FAILS TO MEET THOSE NEEDS, OR IN WHAT PARTICULARS THAT MODEL IN FACT DIFFERS FROM THE MODELS OFFERED BY COMPETING BIDDERS, EITHER IN PHYSICAL DIMENSIONS OR IN ANY OTHER PERTINENT RESPECT. NEITHER THE SEVERAL PROTESTS NOR THE ENGINEERING ANALYSES REFER TO ANY DISTINGUISHED FEATURES OR CHARACTERISTICS EXCEPT THE FACT THAT THE INTERNATIONAL COMPANY HAS IN ITS ADVERTISING APPLIED THE TERM "CAB FORWARD" TO ITS ACF MODEL TRUCKS. WE DO NOT THINK THAT CONFORMITY OF ARTICLES TO GOVERNMENT SPECIFICATIONS IS A MATTER TO BE DETERMINED ON THE BASIS OF NOMENCLATURE.

IT ALSO APPEARS THAT IN TWO PRIOR PROCUREMENTS FOR TRUCKS WITH CONVENTIONAL CABS AND CHASSES, THE INTERNATIONAL MODEL ACF 180 WAS OFFERED AND WAS ACCEPTED AS IN COMPLIANCE WITH THE SPECIFICATIONS. THESE PROCUREMENTS WERE CONTAINED IN CONTRACT NO. DA-20-113-ORD-22580 DATED MAY 24, 1957, FOR SEVEN TRUCKS AND CONTRACT DA-20-113-ORD-22291, DATED JANUARY 21, 1957, FOR ONE TRUCK. IT IS EXPLAINED IN THE ADMINISTRATIVE REPORT FORWARDED WITH THE LETTER OF MAY 29 THAT THE BIDS OF INTERNATIONAL HARVESTER COMPANY WERE ACCEPTED BECAUSE THE ENGINEER WHO EVALUATED THE PREVIOUS AWARDS WAS NOT AWARE AND COULD NOT DETERMINE FROM THE INFORMATION FURNISHED BY THE BIDDER THAT THE MODEL ACF 180 WAS A CAB FORWARD TYPE CHASSIS AND CAB. IN JUSTIFICATION FOR THE ACCEPTANCE OF THE VEHICLES AS IN SUBSTANTIAL COMPLIANCE WITH THE SPECIFICATIONS, IT IS STATED:

"UPON COMPLETION, THE VEHICLES WERE ACCEPTED BY INSPECTION PERSONNEL SINCE THEIR CHARACTERISTICS WERE NOT INCONSISTENT WITH CONTRACT PROVISIONS.'

THE REPORT ACCOMPANYING THE LETTER OF JUNE 27, 1958, STATES THAT "VISUAL INSPECTION" OF THE VEHICLES DELIVERED PURSUANT TO CONTRACT NO. DA-20-113- ORD-22580 WAS WAIVED BECAUSE OF INSPECTION DEPARTMENT WORKLOAD AND THAT THE VEHICLE DELIVERED UNDER CONTRACT NO. DA-20-113 ORD-22291 WAS INSPECTED BY "DISTRICT INSPECTION PERSONNEL.' THUS, THE EARLIER AND LATER REPORTS ARE SOMEWHAT INCONSISTENT WITH REGARD TO THE REASONS FOR FAILURE TO REJECT THE VEHICLES AS NOT IN CONFORMITY WITH THE CONTRACT.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS AND DETERMINING FACTUALLY WHETHER ARTICLES OFFERED MEET SPECIFICATIONS IS PRIMARILY FOR ADMINISTRATIVE AGENCIES. 36 COMP. GEN. 251 AND 17 COMP. GEN. 554. HOWEVER, WE REGARD IT AS A NECESSARY COROLLARY THAT SUCH FACTUAL DETERMINATION MUST BE BASED ON THE PRODUCT OFFERED AND NOT, AS APPEARS TO BE THE CASE HERE, ON SOME LITERATURE WHICH IS NOT A PART OF THE BID AND WAS INTENDED BY THE MANUFACTURER AS A MEANS OF INTERESTING THE PUBLIC IN THE PURCHASE OF THE ARTICLE. IT IS STATED AT 10 U.S.C. 2305 (A) THAT ,THE SPECIFICATIONS AND INVITATIONS FOR BIDS SHALL PERMIT SUCH FREE AND FULL COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY AND SERVICES NEEDED BY THE AGENCY CONCERNED.' FULL AND FREE COMPETITION CAN PERMIT PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. 36 COMP. GEN. 314. WE HAVE NEVER REGARDED IT AS OUR FUNCTION TO INTERFERE WITH PROPER PROCUREMENT BASED ON THE LEGITIMATE NEEDS OF THE PROCURING AGENCY. REALIZED ONLY BY LIMITING THE OVERALL LENGTH OF THE CAB TO A SPECIFIED MINIMUM, OR THE HEIGHT OF THE CAB FROM THE GROUND TO A SPECIFIED MINIMUM, OR TO DISTINCTIVE REQUIREMENTS WITH REGARD TO VARIOUS INTERNAL CAB DIMENSIONS OR CHARACTERISTICS WE WOULD NOT BE REQUIRED TO OBJECT. HOWEVER, THE UTILIZATION IN A SPECIFICATION OF A GENERAL TERM HAVING NO COMMONLY ACCEPTED MEANING DOES NOT PERMIT INTELLIGENT PREPARATION OF BIDS OR THEIR EVALUATION ON A COMMON BASIS, AND DOES NOT RESULT IN ACHIEVING FULL AND FREE COMPETITION AS IS REQUIRED BY THE STATUTES GOVERNING COMPETITIVE BID PROCEDURES.

IN THE CIRCUMSTANCES WE FIND NO VALID BASIS FOR REJECTION OF THE BIDS OF THE INTERNATIONAL HARVESTER COMPANY AND MUST THEREFORE REGARD THE PURPORTED AWARDS FOR THE 532 VEHICLES IN QUESTION TO THE FORD MOTOR COMPANY AND THE CHRYSLER MOTORS CORPORATION AS INVALID.