B-139830, AUG. 19, 1959

B-139830, AUG. 19, 1959

TO MR. E. B. ENGLISH, MANAGER

BY TELEGRAM AND LETTER, BOTH DATED JUNE 5, 1959, YOU PROTESTED THE AWARD OF A CONTRACT TO OTHER THAN THE LOW BIDDER ON INVITATION TO BIDS NO. FN-3H -18051/1-A-2-24-59 ISSUED BY THE GENERAL SERVICES ADMINISTRATION.

BY THAT INVITATION, DATED JANUARY 27, 1959, GSA REQUESTED THREE ITEMS OF DIESEL ELECTRIC POWER PLANTS FOR DELIVERY TO INDONESIA ON BEHALF OF THE INTERNATIONAL COOPERATION ADMINISTRATION. THE LATTER ORGANIZATION EMPLOYED A FIRM OF CONSULTING ENGINEERS, TUDOR ENGINEERING COMPANY, WHO HELPED PREPARE THE SPECIFICATIONS WITH A VIEW TOWARDS SATISFACTORY OPERATION OF THE EQUIPMENT UNDER THE PECULIAR CIRCUMSTANCES LIKELY TO BE ENCOUNTERED IN INDONESIA. ONE OF THE CLAUSES IN THE INVITATION FOR BIDS CONCERNED DEVIATIONS FROM REQUIREMENTS AND PROVIDES AS FOLLOWS:

"ANY DEVIATION FROM THE GENERAL REQUIREMENTS AND CONSTRUCTION REQUIREMENTS WHICH PROVIDES QUALITY EQUAL OR SUPERIOR TO THE REQUIREMENTS OF THE SPECIFICATION, AND WHICH IS NOTED AS AN EXCEPTION BY THE BIDDER IN HIS BID, WILL BE GIVEN CONSIDERATION. THE BURDEN OF PROOF OF SUCH EQUAL OR SUPERIOR QUALITY SHALL REST WITH THE BIDDER.'

EIGHT BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THEY WERE OPENED ON MARCH 4, 1959. EVEN THOUGH CATERPILLAR TRACTOR CO. SUBMITTED THE LOWEST BID ON ITEMS NO. 2 AND 3, AS WELL AS A LUMP SUM BID ON ALL THREE ITEMS WHICH WAS LOWER THAN THE AGGREGATE LOW BIDS ON THOSE ITEMS, AWARDS WERE MADE ON MAY 15, 1959, TO WAUKESHA MOTORS FOR ITEM NO. 2 AND WHITE DIESEL FOR ITEM NO. 3. AT A CONFERENCE ON MAY 20, 1959, REPRESENTATIVES OF YOUR COMPANY WERE INFORMED BY OFFICIALS OF GSA THAT THE CATERPILLAR TRACTOR CO. BID WAS REJECTED AS NONRESPONSIVE BECAUSE OF FOUR STATEMENTS, REFERRED TO AS "COMMENTS" BY YOU AND MAJOR "DEVIATIONS" BY GSA. IN A LETTER DATED MAY 22, 1959, TO GSA, THE POSITION OF CATERPILLAR TRACTOR CO. REGARDING THESE FOUR ITEMS WAS SET FORTH.

THE FOUR ITEMS ARE LISTED AS FOLLOWS:

1. CATERPILLAR DID NOT OFFER TURBOCHARGER PARTS.

2. CATERPILLAR STATED THAT ITS EQUIPMENT WILL MAINTAIN AN OUTLET OIL TEMPERATURE OF 170 DEGREES F RATHER THAN 160 DEGREES F.

3. CATERPILLAR ASSUMED THAT IT WAS THE INTENT OF THE SPECIFICATIONS TO SPECIFY ONE INCH OF MERCURY RATHER THAN ONE INCH OF WATER.

4. CATERPILLAR OFFERED TO SUBMIT ITS DRAWING IN 60 DAYS RATHER THAN 30 DAYS AS SPECIFIED.

ESSENTIALLY, YOUR POSITION IS THAT NONE OF THE ITEMS IS A MAJOR EXCEPTION TO THE SPECIFICATIONS, HENCE THE CONTRACT SHOULD BE AWARDED TO YOU.

AS TO THE ITEMS, GSA STATES THAT CATERPILLAR FAILED TO OFFER ANY REPLACEMENT PARTS FOR THE TURBOCHARGER (ITEM 1), THE OIL OUTLET TEMPERATURE MUST BE BELOW 160 DEGREE F FOR SAFE OPERATION IN INDONESIA (ITEM 2), THE OIL BATH AIR FILTER MAXIMUM PRESSURE DROP MUST NOT EXCEED 1.0 INCH OF WATER (ITEM 3), AND THE 30-DAY PERIOD (ITEM 4) IS NOT RESTRICTIVE OR UNREASONABLE SINCE PROSPECTIVE BIDDERS DID NOT OBJECT TO THIS REQUIREMENT WHEN ASKED TO COMMENT ON THE SPECIFICATIONS PRIOR TO THE ISSUANCE OF THE INVITATION FOR BIDS.

THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. PARTICULARLY IS THAT TRUE WHEN, AS HERE, THE INVITATION FOR BIDS PROVIDES THAT A BIDDER WHO DEVIATES FROM THE SPECIFICATIONS MUST BEAR THE BURDEN OF PROOF THAT HIS PRODUCT IS EQUAL OR SUPERIOR IN QUALITY. CATERPILLAR TRACTOR CO. HAS FAILED TO DISCHARGE THAT BURDEN. IN THE CIRCUMSTANCES WE FIND NO LEGAL OBJECTION TO A REJECTION OF THE CATERPILLAR BID.

IN YOUR LETTER OF JUNE 5, 1959, YOU ALSO INQUIRE WHETHER THE WAUKESHA BID ON ITEM NO. 2 WAS RESPONSIVE IN VIEW OF ITS OFFERING THEIR MODEL WAKD, A NATURALLY ASPIRATED ENGINE. THE ANSWER, ALSO FORECAST BY YOU, IS THAT BY AN ACCOMPANYING LETTER WAUKESHA OFFERED A WAKDBS ENGINE, WHICH IS A TURBO SUPERCHARGED ENGINE.

YOUR FINAL QUESTION RELATES TO THE FAILURE OF GSA TO RESPOND TO YOUR LETTER OF MAY 21, 1959. WE HAVE BEEN INFORMED THAT A DETAILED REPLY TO THAT LETTER WAS BEING PREPARED, BUT WAS STOPPED WHEN PROTEST ACTION WAS STARTED HERE.

WE TRUST THAT ALL OF YOUR QUESTIONS HAVE NOW BEEN ANSWERED SATISFACTORILY.