B-143057, JUN. 30, 1960

B-143057: Jun 30, 1960

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NEGATIVES AND PHOTOGRAPHS FOR WHICH LOT PRICES WERE TO BE QUOTED UNDER ITEMS NOS. 2. THE BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE OPENED AS SCHEDULED ON MAY 25. THE TWO LOWEST BIDS WERE SUBMITTED BY THE MINNEAPOLIS-MOLINE COMPANY AND THE TOWMOTOR CORPORATION IN THE RESPECTIVE TOTAL AMOUNTS OF $575. THE TWO LOWEST BIDS WERE SUBMITTED BY THE MINNEAPOLIS-MOLINE COMPANY AND THE AUTOMATIC TRANSPORTATION COMPANY IN THE RESPECTIVE TOTAL AMOUNTS OF $1. IT IS YOUR CONTENTION THAT THE LOW BIDDER HAS NOT COMPLIED WITH THE PROVISION OF THE INVITATION REQUIRING THE SUBMISSION OF DESCRIPTIVE DATA AND. AFTER REFERRING TO THE FACT THAT THE MINNEAPOLIS-MOLINE COMPANY WAS AWARDED PREVIOUS CONTRACTS FOR SIMILAR VEHICLES.

B-143057, JUN. 30, 1960

TO THE AUTOMATIC TRANSPORTATION COMPANY:

YOUR LETTER OF MAY 30, 1960, PROTESTS AGAINST ANY POSSIBLE AWARD OF A CONTRACT TO THE LOW BIDDER ON ITEMS NOS. 4, 5 AND 6 OF NAVY PURCHASING OFFICE INVITATION FOR BIDS NO. 600-1844-60, ISSUED APRIL 27, 1960.

THE INVITATION, AS AMENDED ON MAY 4 AND 13, 1960, REQUESTED BIDS ON THE FURNISHING OF 162 FORK LIFT TRUCKS OF 4,000-POUND CAPACITY AND 361 FORK LIFT TRUCKS OF 6,000-POUND CAPACITY (ITEMS NOS. 1 AND 4), TOGETHER WITH TECHNICAL DATA, NEGATIVES AND PHOTOGRAPHS FOR WHICH LOT PRICES WERE TO BE QUOTED UNDER ITEMS NOS. 2, 3, 5 AND 6. THE BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE OPENED AS SCHEDULED ON MAY 25, 1960. ON THE FIRST GROUP OF ITEMS (NOS. 1, 2 AND 3), THE TWO LOWEST BIDS WERE SUBMITTED BY THE MINNEAPOLIS-MOLINE COMPANY AND THE TOWMOTOR CORPORATION IN THE RESPECTIVE TOTAL AMOUNTS OF $575,100 AND $584,490. ON THE SECOND GROUP OF ITEMS (NOS. 4, 5 AND 6), THE TWO LOWEST BIDS WERE SUBMITTED BY THE MINNEAPOLIS-MOLINE COMPANY AND THE AUTOMATIC TRANSPORTATION COMPANY IN THE RESPECTIVE TOTAL AMOUNTS OF $1,497,067 AND $1,602,840.

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

CONCERNING THE TYPE OF MATERIAL SUBMITTED WITH THE MINNEAPOLIS MOLINE COMPANY'S BID, YOU STATE THAT THE SKETCH ATTACHED TO ITS BID INDICATES NO DIMENSIONAL DATA AND IS COMPLETELY ON DESCRIPTIVE; THAT THE SPECIFICATIONS STATED IN ITS LETTER OF TRANSMITTAL ARE ELEMENTARY, MAKING IT IMPOSSIBLE FOR EVEN A TECHNICALLY QUALIFIED PERSON TO ADEQUATELY JUDGE THE MERITS AND OPERATIONAL QUALITIES OF THE VEHICLES THE BIDDER INTENDED TO FURNISH; AND THAT NORMAL INDUSTRY PRACTICE HAS BEEN TO SUBMIT BROCHURES WITH THE BIDS WHICH INCLUDE PHOTOS OF THE TYPE OF EQUIPMENT, DIMENSIONAL DRAWINGS AND ITEMIZED SPECIFICATIONS, WHICH QUALIFIED MANUFACTURERS RECOGNIZE AS NECESSARY IF THE PURCHASER IS TO BE ABLE PROPERLY TO JUDGE THE VEHICLE. IT IS SUGGESTED IN YOUR LETTER THAT THE LOW BIDDER IN THIS CASE SHOULD BE ABLE TO PRODUCE TECHNICAL SPECIFICATIONS AND TYPICAL EQUIPMENT PHOTOS, SINCE IT HAD RECEIVED PREVIOUS AWARDS FOR SIMILAR VEHICLES.

THE INVITATION FOR BIDS CONTAINED THE FOLLOWING PROVISION WITH RESPECT TO DESCRIPTIVE DATA:

"DATA TO BE SUBMITTED WITH BID:

"EACH BIDDER SHALL FURNISH DATA WITH HIS BID WHICH FULLY DESCRIBES THE EQUIPMENT OFFERED. THIS DATA SHALL IDENTIFY THE MANUFACTURER AND MODEL AND SHALL CONSIST OF SUCH LITERATURE DRAWINGS, PHOTOGRAPHS AND OTHER TECHNICAL DATA AS IS NECESSARY TO FULLY DESCRIBE THE EQUIPMENT.

"EVERY EXCEPTION TO THE REQUIREMENTS OF THE APPLICABLE SPECIFICATIONS SHALL BE EXPLAINED IN DETAIL.

"THIS DATA IS REQUESTED TO FACILITATE EVALUATION OF THE BID OR OFFER.'

THIS PROVISION WAS FOLLOWED IN THE INVITATION BY THE FOLLOWING ADVICE:

"NO ALTERNATE BIDS:

"BIDS OFFERING ARTICLES WHICH VARY IN ANY MATERIAL RESPECT FROM THE SPECIFICATIONS WILL NOT BE CONSIDERED.'

WE HAVE NOT MADE AN ATTEMPT TO VERIFY YOUR STATEMENT THAT YOUR COMPANY HAS IN THE PAST BEEN DECLARED NONRESPONSIVE BECAUSE THE INFORMATION ENCLOSED WITH YOUR BID DID NOT MEET THE REQUIREMENTS OF THE PROVISION IN THE INVITATION REQUIRING THE SUBMISSION OF DESCRIPTIVE DATA. HOWEVER, THE CONTRACTING OFFICER HAS STATED THAT DESCRIPTIVE DATA REQUIRED TO BE SUBMITTED WITH BIDS IS FOR USE BY TECHNICAL PERSONNEL IN EVALUATING BIDS REQUIRED TO SUBMIT ADDITIONAL DATA. IT WAS EXPLAINED THAT, WHEN THE APPLICABLE SPECIFICATION COVERS BASICALLY COMMERCIAL EQUIPMENT WITH A MINIMUM OF REQUIREMENTS PECULIAR TO MILITARY OPERATIONS, THIS DESCRIPTIVE DATA MAY CONSIST OF COMMERCIAL BROCHURES OR BULLETINS SHOWING THE OPERATING CHARACTERISTICS, DIMENSIONS AND WEIGHT OF THE EQUIPMENT OFFERED; BUT THAT THE DATA SUBMITTED MUST CLEARLY ILLUSTRATE THAT COMMERCIAL EQUIPMENT WILL BE MODIFIED TO COMPLY WITH ALL THE APPLICABLE SPECIFICATION REQUIREMENTS.

IN THE CONTRACTING OFFICER'S REVIEW OF THE SUBJECT INVITATION FOR BIDS, IT WAS NOTED THAT THE MINNEAPOLIS-MOLINE COMPANY HAD FURNISHED A POSITIVE STATEMENT THAT THE EQUIPMENT IT OFFERED IS IN STRICT ACCORDANCE WITH GOVERNING SPECIFICATIONS AS REQUIRED ON PAGE 14 OF THE INVITATION AND ALSO FURNISHED DATA TO INDICATE THE PRODUCT WHICH IT PROPOSED TO FURNISH. ADDITIONAL DATA WAS REQUESTED BY TECHNICAL PERSONNEL AND THIS APPEARS TO HAVE BEEN DUE TO THE REPORTED FACT THAT, EXCEPT FOR THE APPLICATION OF STANDARD COMMERCIAL ENGINES INSTEAD OF MILITARY ENGINES, THE REQUIREMENTS OF THE INSTANT INVITATION ARE IDENTICAL TO THOSE CONTAINED IN INVITATIONS NOS. 600-63-60 AND 600-67 60, ON WHICH CONTRACTS WERE AWARDED TO THE MINNEAPOLIS-MOLINE COMPANY.

IN A PRE-AWARD SURVEY, THE INSPECTOR OF NAVAL MATERIAL DETERMINED THAT THE BIDDER WAS UTILIZING ONLY 35 PERCENT OF ITS PLANT CAPACITY, THAT 95 PERCENT OF THE ENGINEERING WAS COMPLETED ON THE PREVIOUS TRUCKS AND 100 PERCENT ON TOW TRUCKS. IT WAS REPORTED THAT THE CONTRACTOR ANTICIPATED COMPLETING THE PREVIOUS CONTRACTS AHEAD OF SCHEDULE AND THAT IT COULD COMPLETE THE ITEMS REQUESTED IN THIS INVITATION FROM 30 TO 60 DAYS AHEAD OF SCHEDULE. THESE AND OTHER FACTORS WERE CONSIDERED IN ARRIVING AT THE CONCLUSION THAT THE MINNEAPOLIS-MOLINE COMPANY HAS THE ABILITY, TECHNICAL PERSONNEL AND MANUFACTURING CAPACITY TO MEET ALL REQUIREMENTS AS OUTLINED IN INVITATION NO. 600-1844-60.

IN THE CIRCUMSTANCES, AND AFTER GIVING FULL CONSIDERATION TO FREIGHT COSTS IN EVALUATING THE BIDS, THE CONTRACTING OFFICER PROPOSED TO MAKE THE AWARD TO THE MINNEAPOLIS-MOLINE COMPANY AND RECOMMENDED THAT YOUR PROTEST BE DENIED. APPARENTLY, SUCH PROPOSED AWARD WOULD INCLUDE ALL ITEMS OF THE INVITATION.

THE BID SUBMITTED BY THE MINNEAPOLIS-MOLINE COMPANY WAS ACCOMPANIED BY OUTLINE DRAWINGS SHOWING SIDE AND TOP VIEWS OF THE TRUCKS OFFERED AND BY SEPARATE SPECIFICATION SHEETS WHICH SET FORTH IN GENERAL TERMS THE CAPACITIES, TYPES OF ENGINES, DRIVE MECHANISMS, ETC., OF THE TRUCKS WHICH WERE PROPOSED TO BE MANUFACTURED AND DELIVERED. THE BID WAS ALSO ACCOMPANIED BY LETTER DATED MAY 13, 1960, IN WHICH THE BIDDER OFFERED TO FURNISH ADDITIONAL INFORMATION IF NECESSARY, BUT IT WAS ADMINISTRATIVELY DETERMINED THAT THE COMPLETE EVALUATION ON THE TWO PREVIOUS INVITATIONS SHOULD PREVAIL UNDER INVITATION NO. 600-1844-60.

IN CONNECTION WITH THE AWARDS OF THE PREVIOUS CONTRACTS TO THE MINNEAPOLIS-MOLINE COMPANY UNDER INVITATIONS NOS. 600-63-60 AND 600-67 60, WE CONSIDERED THE PROTEST OF ANOTHER BIDDER, THE TOWMOTOR CORPORATION, IN A DECISION OF APRIL 7, 1960, B-141562, TO THE SECRETARY OF THE NAVY, A COPY OF WHICH IS ENCLOSED FOR YOUR INFORMATION.

WITH RESPECT TO THE NATURE OF THE DESCRIPTIVE DATA SUBMITTED WITH THE BIDS OF THE MINNEAPOLIS-MOLINE COMPANY IN THAT CASE, WHICH APPEARS TO HAVE BEEN OF THE SAME TYPE AS HAD BEEN SUBMITTED IN THE PRESENT CASE, YOUR ATTENTION IS INVITED PARTICULARLY TO PAGES 7 AND 8 OF THE DECISION. WAS CONCLUDED IN THAT PART OF THE DECISION THAT A FAILURE IN THE INVITATIONS TO INCLUDE SPECIFIC NOTICE TO BIDDERS THAT SUBMISSION OF INADEQUATE DESCRIPTIVE DATA WOULD BE CAUSE FOR BID REJECTION, WHILE INCLUDING SUCH NOTICE IN THE ALTERNATE BID PROVISION, WOULD BE SUFFICIENT TO JUSTIFY A BIDDER'S BELIEF THAT THE SUBMISSION OF LESS THAN COMPLETE DESCRIPTIVE DATA, TOGETHER WITH A BLANKET OFFER TO COMPLY WITH ALL REQUIREMENTS OF THE SPECIFICATIONS AND TO SUBMIT ADDITIONAL DESCRIPTIVE DATA IF NECESSARY, WOULD COMPLY WITH THE REQUIREMENTS OF THE INVITATIONS. WHAT WAS SAID ON THAT POINT IS EQUALLY APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE INSTANT MATTER.

SINCE IT IS EVIDENT THAT THE MINNEAPOLIS-MOLINE COMPANY QUALIFIES AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER UNDER ALL ITEMS OF THE INVITATION HERE INVOLVED, IT IS OUR OPINION THAT THE DEPARTMENT OF THE NAVY PROPERLY MAY ACCEPT THE BID OF THAT COMPANY AND THAT IT COULD NOT LEGALLY MAKE THE AWARD ON ITEMS NOS. 4, 5 AND 6 TO YOUR COMPANY. SEE SUBSECTION (C) OF SECTION 2305, TITLE 10, U.S.C. 1958 EDITION. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.