B-142189, MAY 16, 1960

B-142189, MAY 16, 1960

TO TARRANT MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 3, 1960, AND SUBSEQUENT CORRESPONDENCE, RELATIVE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. DA-ENG-11 184-60-B-395, ISSUED BY THE ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO, ILLINOIS, FOR THE PROCUREMENT OF 126 TRUCK-MOUNTED SPREADERS. ALSO, YOU OBJECT TO ANY PROPOSED CANCELLATION OF THE INVITATION, AND CONTEND THAT ON THE BASIS OF THE PRESENT RECORD AWARD OF THE CONTRACT SHOULD BE MADE TO YOU.

THE FILE SHOWS THAT IN RESPONSE TO THE SUBJECT INVITATION YOU OFFERED TO FURNISH THE EQUIPMENT DESCRIBED THEREIN, WITH THE EXCEPTION THAT THE ELECTRIC SYSTEM THROUGHOUT WOULD BE 12 VOLTS INSTEAD OF 6 VOLTS AS REQUIRED BY THE SPECIFICATIONS. YOU QUOTED A UNIT PRICE OF $493.40 THEREFOR, AND AS AN ALTERNATE BID YOU OFFERED TO FURNISH YOUR STANDARD ADVERTISED MODEL FOR $918. FOUR OTHER BIDS WERE RECEIVED WHICH WERE FULLY RESPONSIVE TO THE INVITATION CONTAINING NO QUALIFICATIONS, EXCEPTIONS, OR DEVIATIONS FROM THE EXPRESS TERMS AND SPECIFICATIONS OF THE INVITATION. THE LOWEST OF THE RESPONSIVE QUOTATIONS WAS $625, OR $131.60 IN EXCESS OF YOUR OFFER.

WITH RESPECT TO THE DEVIATION IN YOUR BID, THE REQUISITIONING AGENCY, DEPARTMENT OF THE AIR FORCE, HAS STATED THAT THERE IS NO PARTICULAR REQUIREMENT FOR THE 6 VOLT SYSTEM SET FORTH IN THE SPECIFICATIONS, AND THAT A 12 VOLT SYSTEM, WHICH IS NOW THE ACCEPTED STANDARD FOR THE GASOLINE ENGINE INDUSTRY, WOULD ADEQUATELY MEET THEIR NEEDS. THOSE ASPECTS SUPPORT YOUR CONTENTION THAT A 12 VOLT SYSTEM IS SUPERIOR TO THE 6 VOLT SYSTEM; HOWEVER, SUCH FACT CANNOT BE ACCEPTED AS JUSTIFYING AWARD OF A CONTRACT UNDER THE EXPRESS TERMS OF THE INVITATION UNLESS THE 6-VOLT SPECIFICATION CAN BE WAIVED AS IMMATERIAL.

IN REPLY TO THE ALLEGATIONS SET FORTH IN YOUR LETTER OF APRIL 27, 1960, THAT THE 6 VOLT SYSTEM CALLED FOR UNDER THE SPECIFICATIONS IS LESS COSTLY THAN THE 12 VOLT COMPONENTS YOU OFFER AS A SUBSTITUTE, WE ARE INFORMED BY THE COMMANDING OFFICER, CHICAGO PROCUREMENT OFFICE, CORPS OF ENGINEERS, AND THE ASSISTANT CHIEF OF ENGINEERS, THAT FOR USE ON AN ENGINE OF THE SIZE HERE INVOLVED, A 6 VOLT SYSTEM WOULD REQUIRE A SEPARATE STARTER AND SEPARATE GENERATOR, AS COMPARED TO COMBINATION STARTER-GENERATOR USEABLE IN A 12 VOLT SYSTEM. THE OVERALL COST OF THE COMPLETED 6-VOLT UNIT WOULD BE INCREASED FURTHER SO FAR AS MOST BIDDERS ARE CONCERNED BECAUSE OF THE NECESSITY TO USE A DIFFERENT TYPE OF FLYWHEEL AND GEARING. IN THE LIGHT OF THESE FACTS, AS TO WHICH WE MUST ACCEPT THE ADMINISTRATIVE FINDING, YOUR DEVIATION BECOMES MATERIAL, EVEN THOUGH IT COULD RESULT IN A SUPERIOR PRODUCT, SINCE THE WAIVING OF THE SPECIFICATION REQUIREMENT WOULD BE PREJUDICIAL TO THE OTHER BIDDERS, WHOSE BID PRICES MIGHT HAVE BEEN LESS IF THEY HAD BID ON 12-VOLT EQUIPMENT.

IT HAS FOR MANY YEARS BEEN THE SETTLED RULE OF OUR OFFICE THAT WHEN DEVIATIONS GO TO THE SUBSTANCE OF THE BID, AFFECTING PRICE, QUANTITY, OR QUALITY OF THE ARTICLE, SUCH DEVIATIONS MAY NOT BE WAIVED AS INFORMALITIES (30 COMP. GEN. 179), EVEN THOUGH THE END PRODUCT MAY BE SUPERIOR IN CERTAIN RESPECTS. 36 COMP. GEN. 705. FOR THOSE REASONS, ONLY THE LOWEST RESPONSIVE BID WOULD BE PROPER FOR CONSIDERATION UNDER THE INVITATION AS ISSUED. HOWEVER, WE ARE ADVISED THAT IN VIEW OF THE FACT THAT THE PRICE QUOTED IN SUCH OFFER IS MATERIALLY IN EXCESS OF YOURS, SERIOUS CONSIDERATION IS BEING GIVEN TO THE REJECTION OF ALL BIDS AND THE ISSUANCE OF A READVERTISEMENT UNDER AMENDED SPECIFICATIONS COMMENSURATE WITH THE BASIC NEEDS OF THE USING AGENCY. 36 COMP. GEN. 364. WHILE WE RECOGNIZE, AND HAVE FREQUENTLY STRESSED, THE UNDESIRABILITY OF REJECTING BIDS AND AFFORDING COMPETING BIDDERS THE OPPORTUNITY TO REVISE THEIR PRICES AFTER THE AMOUNTS QUOTED BY ALL OTHERS HAVE BEEN DISCLOSED, WE CANNOT QUESTION THE RIGHT OF THE ADMINISTRATIVE AGENCIES, IN THE EXERCISE OF REASONABLE DISCRETION, TO TAKE SUCH ACTION WHEN IT IS DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT. THIS RIGHT IS EXPRESSLY PROVIDED BY THE ARMED SERVICES PROCUREMENT ACT OF 1947. SEE SECTION 2305 (C), TITLE 10, U.S.C.

IN VIEW OF THE ATTENDANT CIRCUMSTANCES AND APPLICABLE LAW, THERE IS NO LEGAL BASIS UPON WHICH THIS OFFICE MAY QUESTION THE ACTION CONTEMPLATED BY THE AGENCIES INVOLVED IN THE MATTER.