B-143370, SEP. 12, 1960

B-143370: Sep 12, 1960

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TO THE AMERICAN COLEMAN COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 27. BIDS ALSO WERE REQUESTED FOR 1 ADDITIONAL PREPRODUCTION MODEL F.O.B. SIX BIDS WERE RECEIVED AND OPENED ON JUNE 10. THE BID OF YOUR COMPANY AND THAT OF THE CLARK EQUIPMENT COMPANY WERE NOT CONSIDERED FOR AWARD BECAUSE OF EXCEPTIONS TAKEN TO THE REQUIREMENTS OF THE SPECIFICATIONS WHICH MATERIALLY AFFECTED THE PRICE AND QUALITY OF THE TRACTOR TO BE PROCURED. YOUR COMPANY TOOK THE FOLLOWING EXCEPTIONS TO THE SPECIFICATIONS WHICH ARE REFERENCED TO THE PARTICULAR REQUIREMENTS OF MIL-T-52103 (CE). 1. OFFERED AN AXLE WHICH WAS NOT OF THE PLANETARY TYPE REQUIRED BY PARAGRAPH 3.17 OF THE SPECIFICATIONS. THE SPECIFICATION DEVIATIONS OFFERED BY CLARK ALSO WERE MATERIAL BUT THEY NEED NOT BE DISCUSSED HERE.

B-143370, SEP. 12, 1960

TO THE AMERICAN COLEMAN COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1960, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE M-R'S MANUFACTURING COMPANY UNDER INVITATION FOR BIDS NO. DA-ENG-11-184-60-A 688, ISSUED ON MAY 14, 1960.

THE INVITATION, AS AMENDED, REQUESTED BIDS, F.O.B. ORIGIN, FOR FURNISHING 44 "TRACTOR, WHEELED, INDUSTRIAL, DIESEL ENGINE DRIVEN, LIGHT DRAWBAR PULL, AIR TRANSPORTABLE, PHASE I, WITH BULLDOZER, HYDRAULIC, WITH BACKUP SCARIFIER, POWER UNIT HYDRAULIC, PNEUMATIC TIRED, 4 WHEEL, 4 WHEEL DRIVE TYPE, CONFORMING TO MILITARY SPECIFICATION MIL-T-52103 (CE) DATED 5 APRIL 1960 * * *.' BIDS ALSO WERE REQUESTED FOR 1 ADDITIONAL PREPRODUCTION MODEL F.O.B. DESTINATION.

SIX BIDS WERE RECEIVED AND OPENED ON JUNE 10, 1960, AND YOUR COMPANY SUBMITTED THE LOWEST BID IN THE AMOUNT OF $827,480. THE CLARK EQUIPMENT COMPANY, THE M-R'S MANUFACTURING COMPANY, AND THE WESTFALL EQUIPMENT COMPANY SUBMITTED THE NEXT LOWEST BIDS, RESPECTIVELY. HOWEVER, THE BID OF YOUR COMPANY AND THAT OF THE CLARK EQUIPMENT COMPANY WERE NOT CONSIDERED FOR AWARD BECAUSE OF EXCEPTIONS TAKEN TO THE REQUIREMENTS OF THE SPECIFICATIONS WHICH MATERIALLY AFFECTED THE PRICE AND QUALITY OF THE TRACTOR TO BE PROCURED. SPECIFICALLY, YOUR COMPANY TOOK THE FOLLOWING EXCEPTIONS TO THE SPECIFICATIONS WHICH ARE REFERENCED TO THE PARTICULAR REQUIREMENTS OF MIL-T-52103 (CE).

1. OFFERED A TRACTOR WITH A TURNING DIAMETER OF 37 FEET, WHEREAS PARAGRAPH 3.17.1 REQUIRED A TURNING DIAMETER OF NOT MORE THAN 35 FEET.

2. OFFERED A TRACTOR WITH A FOUR-WHEEL STEER CONTRARY TO PARAGRAPH 3.17.2 OF THE SPECIFICATIONS REQUIRING INDEPENDENTLY BRAKING WHEELS.

3. OFFERED AN AXLE WHICH WAS NOT OF THE PLANETARY TYPE REQUIRED BY PARAGRAPH 3.17 OF THE SPECIFICATIONS.

THE SPECIFICATION DEVIATIONS OFFERED BY CLARK ALSO WERE MATERIAL BUT THEY NEED NOT BE DISCUSSED HERE. SINCE M-R'S SUBMITTED THE LOWEST RESPONSIVE BID, THE CONTRACT WAS AWARDED TO THEM ON JUNE 21, 1960. WE FIND NO LEGAL BASIS TO OBJECT TO THE AWARD OR TO THE ADMINISTRATIVE REJECTION OF YOUR COMPANY'S BID.

IN YOUR COMPANY'S LETTER OF JUNE 20, 1960, TO THE PROCUREMENT AGENCY, YOU ADVISED THAT THE EXCEPTION TAKEN TO THE TURNING DIAMETER WOULD BE REMOVED AT NO INCREASE IN COST TO THE GOVERNMENT. BUT, YOUR COMPANY DID NOT WITHDRAW ITS REMAINING EXCEPTIONS.

IT IS NOT THE RESPONSIBILITY OF OUR OFFICE TO DETERMINE THE PROCUREMENT NEEDS OF THE GOVERNMENT. THE DRAFTING OF SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND THE BONA FIDE FACTUAL DETERMINATION WHETHER PRODUCTS OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS ARE BOTH MATTERS WITHIN THE PRIMARY RESPONSIBILITY OF THE PROCUREMENT AGENCY. 17 COMP. GEN. 554; 19 ID. 587. THERE IS NO LEGAL REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE OR THAT SUCH EQUIPMENT, IN THE OPINION OF THE BIDDER, BETTER MEETS THE NEEDS OF THE GOVERNMENT. 36 COMP. GEN. 251. THE FACT THAT YOUR COMPANY OFFERED TO COMPLY, IN PART, WITH THE SPECIFICATIONS SUBSEQUENT TO BID OPENING MAY NOT BE CONSIDERED AS CURING THE NONRESPONSIVENESS OF THE BID TO THE PREJUDICE OF OTHER BIDDERS FULLY RESPONSIVE TO THE ..END :