B-143477, SEP. 1, 1960

B-143477: Sep 1, 1960

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TO SENECA INDUSTRIAL MACHINE CORPORATION: FURTHER REFERENCE IS MADE TO A TELEGRAM AND LETTER ADDRESSED BY YOU TO THE PUGET SOUND NAVAL SHIPYARD. PROSPECTIVE BIDDERS WERE ADVISED THAT A SCHEMATIC DIAGRAM OF HYDRAULIC CIRCUITS INCLUDING IDENTIFICATION OF COMPONENTS AND DIRECTION OF FLOW SHALL BE SUBMITTED. FOUR BIDS WERE RECEIVED AND OPENED. IN WHICH YOU STATED THAT THE CONTROL SYSTEM INDICATED ON THE SCHEMATIC DIAGRAM SUBMITTED BY YOU WAS DIFFERENT IN CERTAIN RESPECTS FROM THE CONTROL SYSTEM INDICATED ON BUREAU OF SHIPS DRAWING LPH-2-520 1120496. IT IS REPORTED THAT SINCE THE SCHEMATIC DIAGRAM SUBMITTED BY YOU WITH YOUR BID DID NOT ACCURATELY DEPICT THE EQUIPMENT AS WAS PROPOSED. THE DESIGN PERSONNEL REQUESTED THE CONTRACTING OFFICER TO DETERMINE EXACTLY WHAT TYPE OF CONTROL EQUIPMENT WAS PROPOSED BY YOU.

B-143477, SEP. 1, 1960

TO SENECA INDUSTRIAL MACHINE CORPORATION:

FURTHER REFERENCE IS MADE TO A TELEGRAM AND LETTER ADDRESSED BY YOU TO THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, AND THE SMALL BUSINESS ADMINISTRATION, NEW YORK, NEW YORK, RESPECTIVELY, IN WHICH YOU PROTEST THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. 251/235/60.

THE INVITATION REQUESTED BIDS FOR FURNISHING AIRCRAFT, VEHICLE AND BOAT CRANES IN ACCORDANCE WITH THE GOVERNMENT SPECIFICATIONS AND DRAWINGS. PAGE 16 OF THE INVITATION, PROSPECTIVE BIDDERS WERE ADVISED THAT A SCHEMATIC DIAGRAM OF HYDRAULIC CIRCUITS INCLUDING IDENTIFICATION OF COMPONENTS AND DIRECTION OF FLOW SHALL BE SUBMITTED.

FOUR BIDS WERE RECEIVED AND OPENED. YOU SUBMITTED THE LOWEST BID ON THE CRANES. WITH YOUR BID YOU SUBMITTED A LETTER DATED MARCH 17, 1960, IN WHICH YOU STATED THAT THE CONTROL SYSTEM INDICATED ON THE SCHEMATIC DIAGRAM SUBMITTED BY YOU WAS DIFFERENT IN CERTAIN RESPECTS FROM THE CONTROL SYSTEM INDICATED ON BUREAU OF SHIPS DRAWING LPH-2-520 1120496. YOU ALSO STATED THAT YOU WOULD FURNISH A CONTROL SYSTEM EXACTLY AS INDICATED ON THE BUREAU OF SHIPS DRAWING AT NO CHANGE IN THE CONTRACT PRICE.

IT IS REPORTED THAT SINCE THE SCHEMATIC DIAGRAM SUBMITTED BY YOU WITH YOUR BID DID NOT ACCURATELY DEPICT THE EQUIPMENT AS WAS PROPOSED, THE CONTRACTING OFFICER, ON FOUR DIFFERENT OCCASIONS, REQUESTED YOU TO SUBMIT A REVISED SCHEMATIC DIAGRAM AND THAT UPON RECEIPT OF THE FOURTH REVISED SCHEMATIC DIAGRAM, THE DESIGN PERSONNEL REQUESTED THE CONTRACTING OFFICER TO DETERMINE EXACTLY WHAT TYPE OF CONTROL EQUIPMENT WAS PROPOSED BY YOU. ON JUNE 2, 1960, YOU ADVISED BY TELEGRAM THAT YOU WOULD USE A HYDRAULIC DRIVE FOR WINCHES "EITHER DENNISON MODEL TME SERIES WITH VOLUME CONTROL OR VICKERS MODEL NV2000 SERIES WITH HAND WHEEL CONTROL.' ON PAGE 10 OF THE INVITATION, UNDER "ORDERING DATA," IT IS STATED:

"A. THE FOLLOWING SPECIFICATION FORMS A PART OF THE CONTRACT REQUIREMENTS: MIL-C-17933 (SHIPS) CRANE BASIC UNIT, ELECTRO-HYDRAULIC, SHIPBOARD DATED 14 APRIL 1954 AND AMENDMENT 2 DATED MAY 1957.'

PARAGRAPH 3.6.4.1.2 OF SPECIFICATION MIL-C-17933 SPECIFIED THAT "HYDRAULIC MOTORS SHALL BE CLASS I, AXIAL MULTIPLE PISTON, FIXED DELIVERY.'

IT IS REPORTED THAT THE DENNISON HYDRAULIC MOTOR IS A VANE TYPE MOTOR WITH VOLUME CONTROL AND THAT THE VICKERS MOTOR IS A HANDWHEEL CONTROL WITH AXIAL PISTON, VARIABLE DISPLACEMENT. IT IS ALSO REPORTED THAT THE DENNISON HYDRAULIC MOTOR IS NOT LISTED ON THE QUALIFIED PRODUCTS LIST AS REQUIRED BY THE INVITATION AND THAT THE VICKERS VARIABLE DISPLACEMENT MOTORS ARE NOT ACCEPTABLE DUE TO THE POSSIBILITY OF AN INADVERTENT ADJUSTMENT TO THE MINIMUM STROKE (MINIMUM TORQUE) THEREBY DROPPING A LARGE SUSPENDED LOAD. THE CONTRACTING OFFICER DETERMINED THAT BECAUSE OF THE ABOVE DEVIATIONS FROM THE SPECIFICATIONS, YOUR BID WAS NOT RESPONSIVE TO THE INVITATION AND, THEREFORE, SHOULD BE REJECTED.

IN YOUR LETTER OF JULY 6, 1960, TO THE SMALL BUSINESS ADMINISTRATION, YOU CONTEND THAT THE CONTRACT SHOULD HAVE BEEN AWARDED TO YOU BECAUSE IN YOUR LETTER, WHICH ACCOMPANIED YOUR BID, YOU MADE THE STATEMENT THAT YOU WOULD FURNISH A CONTROL SYSTEM EXACTLY AS INDICATED ON THE BUREAU OF SHIPS DRAWING AT NO CHANGE IN THE CONTRACT PRICE.

ON THE BASIS OF THE RECORD BEFORE US, WE BELIEVE THAT YOUR BID WAS PROPERLY REJECTED AS NOT CONFORMING TO THE INVITATION REQUIREMENTS. THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY FOR ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554. THERE IS NO REQUIREMENT THAT THE UNITED STATES 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 CONTRACTING AGENCY, REASONABLY MEET ITS NEED.

PARAGRAPH 8 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDED, IN PART, AS FOLLOWS:

"/A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.'

THE COURTS AND OUR OFFICE HAVE CONSISTENTLY ADHERED TO THE PROPOSITION THAT THE PROCUREMENT AGENCIES OF THE GOVERNMENT ARE PRIMARILY RESPONSIBLE FOR DETERMINING WHETHER EQUIPMENT TO BE FURNISHED BY A CONTRACTOR MEETS THE NEEDS OF THE GOVERNMENT AND COMPLIES WITH THE ADVERTISED REQUIREMENTS OF THE SPECIFICATIONS. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761; ROYAL SUNDRIES CORPORATION V. UNITED STATES, 111 F.SUPP. 136; PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113; FRIEND V. LEE, 221 F.2D 96; 17 COMP. GEN. 554; 36 ID. 251.

IN THE CIRCUMSTANCES, THERE IS NO APPARENT REASON WHY THE PUGET SOUND NAVAL SHIPYARD SHOULD HAVE BEEN REQUIRED TO ACCEPT YOUR BID ON THE BASIS OF YOUR STATEMENT THAT YOU WOULD FURNISH EQUIPMENT EXACTLY AS SPECIFIED WITHOUT THE SUBMISSION OF ADEQUATE TECHNICAL INFORMATION AS TO THE MANNER YOU PROPOSED TO DO SO, AS REQUIRED BY THE INVITATION. AS POINTED OUT IN OUR DECISION 36 COMP. GEN. 415, WHERE, AS HERE, THE FURNISHING OF DRAWINGS, DATA, ETC., ARE ESSENTIAL TO AN AGENCY'S DETERMINATION AS TO WHETHER THE EQUIPMENT TO BE PURCHASED MEETS THE REQUIREMENTS OF THE GOVERNMENT, THE FAILURE OF A BIDDER TO FURNISH INFORMATION WHICH IS ADEQUATE FOR THAT PURPOSE IS NOT OVERCOME BY THE BIDDER'S GENERAL OFFER TO COMPLY WITH THE SPECIFICATIONS. THEREFORE, WE FIND NO LEGAL BASIS TO QUESTION THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE IN REJECTING YOUR BID.