B-139365, DEC. 14, 1959

B-139365: Dec 14, 1959

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UNDER THE APPLICABLE SPECIFICATIONS THE TRUCKS WERE REQUIRED TO HAVE A MINIMUM G.V.W. MINIMUM AXLE CAPACITIES WERE 4. THE ENGINE WAS REQUIRED TO HAVE SIX CYLINDERS AND THE TIRES. WERE TO BE SIZE 9-19.5-10 PLY. YOU CONTEND THAT THE SPECIFICATIONS WERE SO TAILORED AS TO EXCLUDE THE REGULAR COMMERCIAL MODELS OF EVERY MAJOR TRUCK MANUFACTURER EXCEPT THAT OF THE SUCCESSFUL BIDDER. THAT THE BODY SPECIFICATIONS WERE SO DRAWN THAT THE REGULAR VEHICLE OF THE SUCCESSFUL BIDDER WAS JUST WITHIN THE MAXIMUM OR OVER THE MINIMUM WITH RESPECT TO EACH ITEM WHILE THE STANDARD BODIES PRODUCED BY FOUR OF THE LEADING BUILDERS IN THE INDUSTRY FAILED TO CONFORM IN ONE OR MORE FEATURES. IT IS NOTED THAT THE POST OFFICE DEPARTMENT IN A LETTER OF SEPTEMBER 1.

B-139365, DEC. 14, 1959

TO CHRYSLER MOTORS CORPORATION:

WE REFER AGAIN TO YOUR LETTER OF APRIL 17, 1959, AS SUPPLEMENTED BY YOUR LETTERS OF APRIL 29 AND JULY 15, 1959, PROTESTING THE REJECTION OF YOUR LOW BID SUBMITTED PURSUANT TO ITEM NO. 1 OF THE INVITATION FOR BIDS NO. FN -3C-16778-A-10-14-58, ORIGINALLY ISSUED AS NO. FN-3C-14260-A A-9-23-58 ON SEPTEMBER 2, 1958, BY THE NATIONAL BUYING DIVISION, GENERAL SERVICES ADMINISTRATION.

ITEM NO. 1 OF THE INVITATION CALLED FOR 63 PARCEL DELIVERY TRUCKS FOR USE BY THE POST OFFICE DEPARTMENT. UNDER THE APPLICABLE SPECIFICATIONS THE TRUCKS WERE REQUIRED TO HAVE A MINIMUM G.V.W. OF 16,000 POUNDS AND A MAXIMUM SHEEL BASE OF 155 INCHES. MINIMUM AXLE CAPACITIES WERE 4,700 POUNDS FOR THE FRONT AXLE AND 13,000 POUNDS FOR THE REAR AXLE. THE ENGINE WAS REQUIRED TO HAVE SIX CYLINDERS AND THE TIRES, TO BE FURNISHED WITH THE VEHICLE, WERE TO BE SIZE 9-19.5-10 PLY.

YOU CONTEND THAT THE SPECIFICATIONS WERE SO TAILORED AS TO EXCLUDE THE REGULAR COMMERCIAL MODELS OF EVERY MAJOR TRUCK MANUFACTURER EXCEPT THAT OF THE SUCCESSFUL BIDDER. YOU STATE, FOR EXAMPLE, AND GIVE STATISTICS IN SUPPORT THEREOF, THAT THE BODY SPECIFICATIONS WERE SO DRAWN THAT THE REGULAR VEHICLE OF THE SUCCESSFUL BIDDER WAS JUST WITHIN THE MAXIMUM OR OVER THE MINIMUM WITH RESPECT TO EACH ITEM WHILE THE STANDARD BODIES PRODUCED BY FOUR OF THE LEADING BUILDERS IN THE INDUSTRY FAILED TO CONFORM IN ONE OR MORE FEATURES. (WITH RESPECT TO THIS ITEM, IT IS NOTED THAT THE POST OFFICE DEPARTMENT IN A LETTER OF SEPTEMBER 1, 1959, SUGGESTS THE POSSIBILITY THAT THE SPECIFICATIONS COULD HAVE BEEN MET BY THE STANDARD BODIES OF TWO MANUFACTURERS NOT INCLUDED IN YOUR COMPILATION.) YOU FURTHER STATE THAT THE CHASSIS SPECIFICATIONS WERE SO DRAWN AS TO CLOSELY COINCIDE WITH THE CHARACTERISTICS OF THE VEHICLE PURCHASED UNDER THE CONTRACT, WHEREAS THE STANDARD VEHICLE OF OTHER LEADING CHASSIS MANUFACTURERS FAILED TO CONFORM EITHER WITH RESPECT TO THE G.V.W., THE RATED AXLE CAPACITIES, OR THE NUMBER OF CYLINDERS IN THE ENGINE. ADDITION, IT IS NOTED THAT ONLY THE SUCCESSFUL MANUFACTURER PROVIDES (AS OPTIONAL EQUIPMENT) THE SIZE TIRES SPECIFIED. SINCE THE SPECIFIED TIRES REQUIRE THE USE OF WHEELS WHICH ARE NOT NORMALLY PROVIDED BY ANY OF THE OTHER MANUFACTURERS, IT MAY WELL BE THAT THE LATTER CAN COMPETE UNDER THE SPECIFICATIONS ONLY BY OFFERING SPECIAL EQUIPMENT AT A PRICE PENALTY.

THE ESTABLISHMENT OF THE GOVERNMENT'S ACTUAL REQUIREMENTS AND THE DETERMINATION AS TO WHETHER ARTICLES OFFERED CONFORM THERETO ARE PRIMARILY WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCY. 17 COMP. GEN 554. THE OTHER HAND, SPECIFICATIONS, WHICH WHEN COMPARED WITH THE CHARACTERISTICS OF A PARTICULAR MANUFACTURER'S PRODUCT IMPEL THE CONCLUSION THAT THEY WERE DRAWN FROM THE KNOWN CHARACTERISTICS OF THAT PRODUCT SO AS TO PRECLUDE OTHER COMPANIES FROM SUBMITTING RESPONSIVE BIDS, MUST BE REGARDED AS IN CONTRAVENTION OF THE REQUIREMENT THAT THE NEEDS OF THE GOVERNMENT BE PROCURED ON THE BROADEST COMPETITIVE BASE CONSISTENT WITH ITS ACTUAL NEEDS. 32 COMP. GEN. 384; SEE ALSO, 33 COMP. GEN. 524. WHILE THE ACCURACY OF THE DATA PROVIDED IN YOUR LETTERS OF PROTEST HAS NOT BEEN VERIFIED BY OUR OFFICE, IT APPEARS THAT YOU HAVE MADE OUT A PRIMA FACIE CASE TO SUPPORT YOUR CONTENTION THAT THE SPECIFICATIONS WERE SO DRAWN AS TO PREVENT THE BROADEST POSSIBLE COMPETITION CONSISTENT WITH THE NEEDS OF THE GOVERNMENT.

THE TRUCKS CALLED FOR UNDER THE CITED INVITATION HAVE BEEN DELIVERED TO THE POST OFFICE DEPARTMENT AND PUT INTO SERVICE. WE HAVE BEEN ADVISED ALSO BY LETTER OF OCTOBER 23, 1959, FROM THE GENERAL SERVICES ADMINISTRATION THAT THE SPECIFICATIONS APPLICABLE TO A LATER PROCUREMENT OF THE TYPE OF VEHICLE IN QUESTION HAVE BEEN BROADENED TO PERMIT CONSIDERATION OF THE STANDARD COMMERCIAL MODELS PRODUCED BY THE MAJOR TRUCK MANUFACTURERS. IT THUS APPEARS THAT THE POST OFFICE DEPARTMENT HAS REFINED ITS REQUIREMENTS SO AS TO ACHIEVE A BROADER COMPETITIVE BASE IN ACCORDANCE WITH THE SPIRIT OF THE ADVERTISING STATUTES. IN VIEW OF THE FOREGOING, WE DO NOT CONTEMPLATE TAKING FURTHER ACTION IN THE INSTANT MATTER. HOWEVER, COPIES OF THIS LETTER ARE BEING SENT TO THE POSTMASTER GENERAL AND TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION.