B-143369, OCT. 13, 1960

B-143369: Oct 13, 1960

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CERTAIN COMPONENTS CALLED FOR BY THIS INVITATION FOR BIDS ARE IDENTIFIED IN THE DRAWINGS BY A BRAND NAME "OR EQUAL" DESCRIPTION. THIS IDENTIFICATION IS DESCRIPTIVE RATHER THAN RESTRICTIVE EXCEPT FOR M-R'S AXLES. HOIST AND BOOM ASSEMBLY FOR WHICH "OR EQUAL" WILL NOT BE ACCEPTED. * * *" THE TWO LOWEST BIDS RECEIVED AND OPENED ON JUNE 14. WERE SUBMITTED BY YOUR COMPANY AND ANTHONY CRANE IN THE AMOUNT OF $1. YOUR COMPANY OFFERED AN AXLE OF YOUR OWN MANUFACTURE WHICH WAS NOT OF THE PLANETARY TYPE. SINCE THE M- R'S AXLE HAD BEEN DETERMINED BY THE PROCUREMENT ACTIVITY TO BE A PARTICULAR FEATURE ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS BECAUSE IT WAS A PLANETARY TYPE AXLE THAT HAD BEEN THOROUGHLY TESTED AND PROVED AND BECAUSE IT WAS INTERCHANGEABLE WITH THOSE USED ON 69 M-R'S 200 TRACTORS.

B-143369, OCT. 13, 1960

TO THE AMERICAN COLEMAN COMPANY:

BY LETTER DATED JUNE 27, 1960, WITH ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO THE ANTHONY CRANE COMPANY UNDER INVITATION FOR BIDS NO. 160-60, ISSUED BY THE U.S. MARINE CORPS ON MAY 11, 1960, FOR 64 EACH "CRANE, RUBBER TIRED, SECTIONALIZED, 3 TON CAPACITY, TO BE IN ACCORDANCE WITH MARINE CORPS PURCHASE DESCRIPTION DATED 20 APRIL 1960; * * *.'

PAGE 7 OF THE INVITATION PROVIDED IN PART:

"BRAND NAME OR EQUAL

"AS USED IN THIS CLAUSE, THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF COMPONENTS BY MAKE AND MODEL. CERTAIN COMPONENTS CALLED FOR BY THIS INVITATION FOR BIDS ARE IDENTIFIED IN THE DRAWINGS BY A BRAND NAME "OR EQUAL" DESCRIPTION. THIS IDENTIFICATION IS DESCRIPTIVE RATHER THAN RESTRICTIVE EXCEPT FOR M-R'S AXLES, GMC ENGINES, ALLISON TRANSMISSION, AND THE ANTHONY CRANE, HOIST AND BOOM ASSEMBLY FOR WHICH "OR EQUAL" WILL NOT BE ACCEPTED. * * *"

THE TWO LOWEST BIDS RECEIVED AND OPENED ON JUNE 14, 1960, WERE SUBMITTED BY YOUR COMPANY AND ANTHONY CRANE IN THE AMOUNT OF $1,296,160 AND $1,658,109.92, RESPECTIVELY. HOWEVER, IN LIEU OF THE PLANETARY TYPE AXLE REQUIRED BY PARAGRAPH 3.11.3 OF THE PURCHASE DESCRIPTION AND THE "BRAND NAME OR EQUAL" PROVISION OF THE INVITATION, YOUR COMPANY OFFERED AN AXLE OF YOUR OWN MANUFACTURE WHICH WAS NOT OF THE PLANETARY TYPE. SINCE THE M- R'S AXLE HAD BEEN DETERMINED BY THE PROCUREMENT ACTIVITY TO BE A PARTICULAR FEATURE ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS BECAUSE IT WAS A PLANETARY TYPE AXLE THAT HAD BEEN THOROUGHLY TESTED AND PROVED AND BECAUSE IT WAS INTERCHANGEABLE WITH THOSE USED ON 69 M-R'S 200 TRACTORS, YOUR BID WAS REJECTED AS NONRESPONSIVE TO THE INVITATION.

THE ESSENCE OF YOUR PROTEST IS THAT THE MANDATORY REQUIREMENT FOR THE M- R'S AXLE WITHOUT ANY ,OR EQUAL" QUALIFICATION WAS RESTRICTIVE OF COMPETITION, AND THAT THE AXLE OFFERED BY YOUR COMPANY IN LIEU OF THE M- R'S AXLE WAS A SUPERIOR PRODUCT WHICH WOULD BETTER SUIT THE NEEDS OF THE PROCUREMENT ACTIVITY AT A LESSER COST. IN VIEW OF SUCH REPRESENTATIONS AND FURTHER INFORMATION FURNISHED BY MR. NOBLE, A DETAILED REVIEW WAS MADE OF THIS PROCUREMENT TO DETERMINE WHETHER THE RESULTING CONTRACT WAS IN VIOLATION OF THE COMPETITIVE ADVERTISING STATUTE AND THE IMPLEMENTING REGULATIONS. BASED UPON OUR REVIEW WHICH WAS SUPPLEMENTED WITH TECHNICAL INFORMATION AND DATA FURNISHED BY THE U.S. MARINE CORPS, WE ARE OF THE OPINION THAT THERE ARE NO LEGAL BASES TO QUESTION THE AWARD MADE TO ANTHONY CRANE.

THE MANDATORY REQUIREMENT FOR THE M-R'S AXLE WAS STATED IN THE INVITATION IN COMPLIANCE WITH SECTION 1.305-6 (A), ASPR (NOW SECTION 1.1206 (A) (, WHICH READS IN PART, AS FOLLOWS:

"* * * PURCHASE DESCRIPTIONS WILL NOT BE WRITTEN SO AS TO SPECIFY A PRODUCT OR FEATURES OF A PRODUCT WHICH ARE PECULIAR TO ONE MANUFACTURER'S PRODUCT AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT MANUFACTURED BY ANOTHER COMPANY UNLESS IT HAS BEEN DETERMINED THAT THE PARTICULAR FEATURE IS ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THE PARTICULAR FEATURE WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM. * * *"

WE BELIEVE, ON THE RECORD BEFORE US, THAT THE PURCHASE DESCRIPTION WAS NOT LEGALLY DEFECTIVE SINCE THE U.S. MARINE CORPS HAD DETERMINED THAT THE M-R'S AXLE WAS ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT YOUR COMPANY'S AXLE, LACKING THE PARTICULAR FEATURES OF THE M R'S AXLE, WOULD NOT MEET ITS MINIMUM REQUIREMENTS FOR THE CRANE. CF. 39 COMP. GEN. 101. IN ORDER THAT YOU MIGHT BE APPRISED OF THE BASES OF SUCH ADMINISTRATIVE DETERMINATIONS, THERE ARE QUOTED BELOW PERTINENT EXCERPTS FROM THE OFFICIAL FILES OF THE U.S. MARINE CORPS ON THE INSTANT PROCUREMENT.

"THE MARINE CORPS NEEDS A RUBBER-TIRED MOBILE CRANE THAT WILL OPERATE OFF -THE-ROAD (CROSS-COUNTRY) OVER ROUGH TERRAIN UNDER COMBAT CONDITIONS. PAST EXPERIENCE DEMONSTRATES THAT THE AXLES ARE VITAL PARTS OF ANY EQUIPMENT DESIGNED FOR SUCH USE. FOR EXAMPLE, THE TIMKEN DETROIT NON- PLANETARY AXLE, MODEL F-7900, FORMERLY USED ON A LARGE RUBBER-TIRED TRACTOR FAILED, AS DID THE SIMILAR FWO AXLE FORMERLY USED ON A ROUGH TERRAIN FORKLIFT TRUCK. THE DESIGN, CONFIGURATION, AND PERFORMANCE OF THIS CRANE WAS PATTERNED AFTER CONSTRUCTION AND EARTH MOVING EQUIPMENT, RATHER THAN AUTOMOTIVE EQUIPMENT. THE USE OF AXLES WITH PLANETARY FINAL REDUCTION AT THE WHEELS FOR OFF-THE-ROAD EQUIPMENT IS ALMOST UNIVERSALLY ACCEPTED. SINCE THE MRS PLANETARY AXLE HAD BEEN THOROUGHLY TESTED AND WAS ALREADY IN THE MARINE CORPS SUPPLY SYSTEM FOR USE WITH MRS TRACTORS, ITS UTILIZATION ON THIS EQUIPMENT WAS A LOGICAL STEP.

"THE NEXT PROBLEM CONFRONTED WAS THE METHOD OF SUSPENDING THE OSCILLATING REAR AXLE. IT WAS NECESSARY TO MAKE A RADICAL DEPARTURE FROM THE CONVENTIONAL METHOD OF ATTACHING SUCH AXLE TO THE FRAME TO ACHIEVE THE DESIRED OSCILLATION. IT WAS DETERMINED THAT THE SIMPLEST METHOD OF OBTAINING THE DESIRED OSCILLATION WOULD BE TO SUSPEND THE REAR AXLE FROM THE TOP OF THE DIFFERENTIAL HOUSING. THIS MADE THE SELECTION OF AN EXTREMELY HEAVY DUTY AXLE HOUSING MANDATORY. THE REQUIRED HOUSING COULD ONLY BE FOUND IN AXLES WITH A RATED CAPACITY OF 30,000 POUNDS, WHICH CRITERION WAS MET BY THE MRS AXLE ALREADY IN THE MARINE CORPS SUPPLY SYSTEM.

"THE FINAL PROBLEM WAS IN AXLE LOADING. DYNAMIC AXLE LOADING IS OF SUPREME IMPORTANCE. NON-PLANETARY TYPE AXLES, USED IN TRUCKS WHICH OPERATE PRIMARILY OVER IMPROVED ROADS, BEAR APPROXIMATELY EQUAL WEIGHT OVER ALL AXLES IN THE VEHICLE. HOWEVER, WITH THE ROUGH TERRAIN CRANE, THE AXLES ARE SELDOM, IF EVER, LOADED EQUALLY; THAT IS, WITH MAXIMUM LOADS EITHER THE FRONT OR REAR AXLES MAY BE LOADED TO THE EXTENT THAT EITHER ONE MAY SUPPORT EIGHTY TO NINETY PERCENT OF THE GROSS VEHICLE WEIGHT. DURING TESTS, THIS CRANE WAS FREQUENTLY USED TO TRANSPORT 8,000 POUND LOADS AT SPEEDS OF FIVE MILES PER HOUR, AND STATIC LOADS OVER 26,000 POUNDS WERE PLACED ON EITHER THE FRONT OR REAR AXLES. WHEN THE LOAD WAS ON THE REAR AXLE, THE ENTIRE LOAD WAS TRANSMITTED TO A SINGLE POINT ON THE DIFFERENTIAL HOUSING. THIS UNEQUAL WEIGHT DISTRIBUTION EMPHASIZES THE REQUIREMENT FOR AN EXTREMELY HEAVY DUTY AXLE HOUSING. IN ADDITION, IMPACT OR SHOCK LOADING ON MILITARY ROUGH TERRAIN EQUIPMENT IS FAR IN EXCESS OF THAT REQUIRED OF COMMERCIAL EQUIPMENT.'

THE TECHNICAL SUPERIORITY OF THE PLANETARY-TYPE AXLE HAS BEEN DEMONSTRATED BY THE PROCUREMENT ACTIVITY BY EXHAUSTIVE FIELD TESTS, COMPARATIVE ANALYSIS, AND INDEPENDENT ENGINEERING ADVICE. FOR EXAMPLE, THE YALE AND TOWNE MANUFACTURING COMPANY--- A MAJOR MANUFACTURER OF HEAVY OFF-THE-ROAD MATERIAL HANDLING EQUIPMENT--- INFORMED THE PROCUREMENT ACTIVITY ON SEPTEMBER 22, 1960, AS OLLOWS:

"THE USE OF PLANETARY AXLES BY MAJOR MANUFACTURERS OF OFF-THE-ROAD HANDLING EQUIPMENT DATES BACK TO APPROXIMATELY 8 YEARS. PRIOR TO 1952 MOST TRACTOR SHOVELS AND ROUGH TERRAIN FORK LIFT TRUCKS WERE EQUIPPED WITH AUTOMOTIVE TYPE AXLES. AXLE FAILURES WERE COMMON. THE FAILURES OCCURRED UNDER NORMAL OPERATING CONDITIONS. THE MAJORITY OF THE FAILURES WERE CONFINED TO AXLE SHAFT BREAKAGE AND RING GEAR AND PINION BREAKAGE. SPECIAL MATERIALS WERE EMPLOYED IN AN EFFORT TO ELIMINATE AXLE SHAFT AND RING GEAR AND PINION FAILURE. THEY WERE UNSUCCESSFUL.

"TO ELIMINATE RING GEAR AND PINION FAILURE IT WAS NECESSARY TO REDUCE THE TORQUE APPLIED TO THESE COMPONENTS. THUS THE IDEA OF PLANETARY AXLES CAME INTO BEING WHICH PERMITTED THE DIRECT REDUCTION OF TORQUE IN ACCORDANCE WITH THE GEAR RATIO CONTAINED WITHIN THE WHEEL HOUSING OR PLANETARY GEARING. THE USE OF PLANETARY AXLES IS NOW COMMON AND AXLE FAILURES ARE ALMOST UNHEARD OF.

"I DO NOT KNOW IF YOU ARE FAMILIAR WITH THE ORIGINAL ROUGH TERRAIN FORK TRUCKS PROCURED IN SMALL QUANTITIES BY THE MARINE CORPS AND IN SUBSTANTIAL QUANTITIES BY THE BUREAU OF ORDNANCE DURING THE PERIOD FROM 1950 TO 1954. THE ORIGINAL SPECIFICATIONS PREPARED BY THE BUREAU OF ORDNANCE PERMITTED THE USE OF AUTOMOTIVE TYPE AXLES. THE SPECIFICATIONS CONTAINED PRE- PRODUCTION TESTS WHICH WERE BELIEVED TO BE ADEQUATE TO PROPERLY TEST THE MACHINE AND INSURE THE BUREAU OF OBTAINING A PIECE OF EQUIPMENT THAT WOULD MEET THEIR OPERATIONAL NEEDS. THE PRE-PRODUCTION SAMPLE SUCCESSFULLY MET ALL TEST REQUIREMENTS AND 123 MACHINES WERE SUPPLIED TO THE BUREAU OF ORDNANCE WITH AUTOMOTIVE TYPE AXLES. MUCH OF THE EQUIPMENT WAS PLACED INTO IMMEDIATE USE, AND WITHIN A PERIOD OF 6 WEEKS AXLES BEGAN TO FAIL. THE EQUIPMENT SUPPLIED WAS IN STRICT ACCORDANCE WITH GOVERNMENT SPECIFICATIONS AND MET ALL GOVERNMENT TEST REQUIREMENTS, THUS THERE WAS LITTLE CLAIM AGAINST THE CONTRACTOR. THE 123 MACHINES WERE CORRECTED BY REPLACING AUTOMOTIVE TYPE AXLES WITH PLANETARY TYPE AXLES AT A COST TO THE GOVERNMENT OF $3,000.00 PER UNIT PER TRUCK, OR APPROXIMATELY 30 PERCENT OF THE ORIGINAL CONTRACT VALUE OF THE EQUIPMENT. AXLE FAILURES WERE ELIMINATED AND MANY OF THESE 8 YEAR OLD TRUCKS ARE STILL IN DAILY USE.

"WE STRONGLY RECOMMEND THE USE OF PLANETARY AXLES UNDER ALL OFF-THE ROAD HANDLING EQUIPMENT, AND BELIEVE THAT IF SPECIFICATIONS WERE RELAXED TO PERMIT USE OF AUTOMOTIVE TYPE AXLES THE MARINE CORPS WOULD RECEIVE EQUIPMENT WHICH WOULD PROVE UNSATISFACTORY FOR THE INTENDED USE.'

THE CLARK EQUIPMENT COMPANY, ALSO A MAJOR MANUFACTURER OF AXLE COMPONENTS FOR HEAVY-DUTY CONSTRUCTION EQUIPMENT, VOLUNTEERED THE FOLLOWING INFORMATION:

"* * * NEARLY ALL RUBBER-TIRED CONSTRUCTION EQUIPMENT, TRACTORS, BULL DOZERS, TRACTOR SHOVELS, SCRAPERS, ETC. PRESENTLY USE THE WHEEL END REDUCTION TYPE AXLE EQUIPMENT. BEING A MANUFACTURER OF THE END PRODUCT MACHINE, AS WELL AS MANUFACTURER OF THE AXLE COMPONENTS, WE SHARE WITH THE REST OF THE INDUSTRY THE OPINION THAT PLANETARY WHEEL AND REDUCTION AXLES ARE PREFERABLE.

"SOME OF THE REASONS BEHIND THIS THINKING ARE:

"1. THE USE OF THE WHEEL END REDUCTION REDUCES THE TORQUE REQUIRED AT THE DIFFERENTIAL SECTION OF THE AXLE AND THEREBY, ALLOWS SMALLER COMPONENTS TO BE USED IN THIS AREA WHICH RESULTS IN GREATER ROAD CLEARANCE AT THE CENTER OF THE VEHICLE.

"2. THE REDUCTION OF TORQUE REQUIRED IN THE AXLE SHAFTS TO PROVIDE COMPARABLE TRACTIVE EFFORT REDUCES AXLE SHAFT WIND-UP AND PROVIDES A SMOOTHER FLOW OF TORQUE TO THE WHEELS. AXLE WIND-UP IN CONVENTIONAL SINGLE OR DOUBLE REDUCTION AXLE CAN CAUSE A SHUTTERING OR CHUCKING EFFECT AT THE WHEELS UNDER A HEAVY TORQUE LOADING. THIS PHENOMENON HAS A TENDENCY TO ALLOW THE WHEELS TO DIG IN AND BECOME MIRED IN THE TYPE OF TERRAIN EXPERIENCED OFF-HIGHWAY.

"3. IT HAS ALSO BEEN FOUND THAT PLANETARY AXLES OVER THE 25,000 LB. WEIGHT CARRYING CAPACITY CAN BE DESIGNED LIGHTER IN WEIGHT THAN THE CONVENTIONAL TYPE AXLES WITHOUT JEOPARDIZING THEIR RUGGEDNESS.'

THE RECORD FURTHER SHOWS THAT THE AXLE YOUR COMPANY PROPOSED TO FURNISH HAD BEEN TESTED PREVIOUSLY BY THE DEPARTMENT OF THE ARMY. THE TEST RESULTS OF THE COLEMAN TRACTOR EQUIPPED WITH A NON-PLANETARY AXLE WERE:

"THE REMAINING MAJOR DEFICIENCY OF THE COLEMAN WAS THE WEAK FRONT WHEEL DRIVE SYSTEM. THE FIRST ITEM TO FAIL WAS THE AXLES AND AS THESE WERE STRENGTHENED, OTHER PARTS OF THE SYSTEM BEGAN TO FAIL; WHEN ONE PART WAS STRENGTHENED ANOTHER WOULD FAIL UNTIL FINALLY THE TROUBLE WAS BROUGHT BACK TO THE AXLES AGAIN. THE GREAT AMOUNT OF TRACTION GIVEN THE FRONT WHEELS WHENEVER THE BLADES TRY TO LIFT SOME OBJECT, DENT OR OTHERWISE CAUSE THE FRONT DRIVE SYSTEM TO FAIL.'

WE, OF COURSE, ARE NOT QUALIFIED TO JUDGE THE TECHNICAL ASPECTS OF A SPECIFICATION IN THE LIGHT OF THE END USE TO BE MADE OF THE EQUIPMENT TO BE PROCURED. THEREFORE, WE ARE REQUIRED TO GIVE GREAT WEIGHT TO THE TECHNICAL EXPERTISE OF THE PROCUREMENT ACTIVITY AND THE OPINIONS OF DISINTERESTED PARTIES. THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND TO DETERMINE FACTUALLY WHETHER EQUIPMENT OFFERED BY BIDDERS MEETS THOSE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE PROCUREMENT ACTIVITY. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE. COMP. GEN. 368; 33 ID. 586; 36 ID. 251. THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE PROCUREMENT ACTIVITY, REASONABLY MEET THE ACTIVITY'S NEED.

MOREOVER, THE ACCEPTANCE OF YOUR BID COULD ONLY HAVE BEEN ACCOMPLISHED BY A WAIVER OF REQUIREMENTS SET OUT IN THE INVITATION. SUCH ACTION WOULD HAVE BEEN MANIFESTLY UNFAIR, NOT ONLY TO THE OTHER BIDDERS WHO MAY HAVE BEEN ABLE TO SUBMIT A LOWER BID ON RELAXED REQUIREMENTS, BUT ALSO TO OTHER MANUFACTURERS WHO POSSIBLY WERE UNABLE TO MEET THE ORIGINAL REQUIREMENTS BUT WHOSE EQUIPMENT WOULD HAVE BEEN ACCEPTABLE IN THE EVENT OF SOME RELAXATION IN SUCH REQUIREMENTS. WHILE IT IS TRUE THAT MINOR DEVIATIONS FROM THE CONDITIONS SET FORTH IN THE INVITATION MAY BE WAIVED, A DEVIATION, AS HERE, WHICH AFFECTS THE QUALITY OR PRICE OF THE EQUIPMENT OFFERED, SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, MUST BE CONSIDERED A MAJOR DEVIATION AND MAY NOT BE WAIVED. 30 COMP. GEN. 179. ACCORDINGLY, AND IN VIEW OF THE MANDATORY REQUIREMENTS OF 10 U.S.C. 2305 (C) THAT AWARDS UNDER FORMAL ADVERTISED PROCEDURES SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID,"CONFORMING TO THE INVITATION FOR BIDS," WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, WE MUST CONCLUDE THAT NO LEGAL BASES EXIST FOR QUESTIONING THE AWARD AS MADE.