B-146388, OCT. 11, 1961

B-146388: Oct 11, 1961

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TO WINPOWER MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10. ON THE GROUND THE INVITATION IS SO RESTRICTIVE THAT "IT PREVENTS COMPANIES IN THE GENERATOR SET BUSINESS FROM PLACING A BID. THE VIEW IS EXPRESSED IN YOUR LETTER THAT "THIS IS A VERY BAD POLICY. COMPANIES WHO SHOULD HAVE HAD THIS EXPERIENCE WILL BE UNABLE TO GET UNDERWAY PROMPTLY. OF COURSE WILL HAVE ENGINEERING AND PRODUCTION PROBLEMS.'. BIDS WERE RECEIVED FROM YOUR FIRM AND FROM HOMELITE. AS OUR UNIT WEIGHT WILL BE APPROXIMATELY 230 LBS. "OUR INTERPRETATION OF SPECIFICATION MIL-E-4970 IS THAT THESE TESTS ARE NOT APPLICABLE SO OUR PRICE DOES NOT INCLUDE ANY WINTERIZATION EQUIPMENT OR ENVIRONMENTAL TESTING.

B-146388, OCT. 11, 1961

TO WINPOWER MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1961, AND ITS ENCLOSURES, PROTESTING AN AWARD TO THE HOMELITE COMPANY, PORT CHESTER, NEW YORK, UNDER INVITATION FOR BIDS TC 23-204-61-48 ISSUED MARCH 16, 1961, BY THE U.S. ARMY TRANSPORTATION MATERIEL COMMAND, ST. LOUIS, MISSOURI, ON THE GROUND THE INVITATION IS SO RESTRICTIVE THAT "IT PREVENTS COMPANIES IN THE GENERATOR SET BUSINESS FROM PLACING A BID, AND IN TURN PREVENTING THEM FROM GETTING THE MUCH NEEDED EXPERIENCE IN BUILDING CRITICAL DEFENSE MATERIAL.'

THE VIEW IS EXPRESSED IN YOUR LETTER THAT "THIS IS A VERY BAD POLICY, BECAUSE IN THE EVENT OF WAR, COMPANIES WHO SHOULD HAVE HAD THIS EXPERIENCE WILL BE UNABLE TO GET UNDERWAY PROMPTLY, AND OF COURSE WILL HAVE ENGINEERING AND PRODUCTION PROBLEMS.' YOU REQUEST WE REVIEW THE CORRESPONDENCE SUBMITTED WITH YOUR LETTER, AS WELL AS ALL THE PROCUREMENT DOCUMENTS AND SPECIFICATIONS AS YOU FEEL THE CONTRACTING OFFICER IN THIS CASE HAS NOT PROPERLY FOLLOWED THE PROCUREMENT REGULATIONS BY RESTRICTING COMPETITION.

THE INVITATION FOR BIDS, AS AMENDED, REQUESTED BIDS TO BE OPENED APRIL 24, 1961, ON A QUANTITY OF ENERGIZERS, OR PORTABLE ENGINE STARTERS, FOR STARTING AIRCRAFT ENGINES TO COMPLY WITH PURCHASE DESCRIPTION TMC PD-70A DATED NOVEMBER 23, 1960, AS AMENDED, WITH PROVISIONS FOR SUPPLYING SPARE PARTS AND RELATED PROVISIONING TECHNICAL DOCUMENTATION. PURCHASE DESCRIPTION 70A PROVIDED IN PARAGRAPH 3.7 THAT "THE ENERGIZER, INCLUDING VEHICLE AND ALL ACCESSORIES, LESS BATTERY AND EXTERNAL POWER CABLES, SHALL NOT EXCEED 165 LBS.' PARAGRAPH 4.5.3 PROVIDED THAT "ENVIRONMENTAL TEST SHALL BE IN CONFORMANCE WITH SPECIFICATION MIL-S-8512, WHERE APPLICABLE" AND PARAGRAPH 3.12.2 REQUIRED "ONE COMPLETE SET OF REPRODUCIBLE AS CONSTRUCTED DRAWINGS.'

BIDS WERE RECEIVED FROM YOUR FIRM AND FROM HOMELITE, A DIVISION OF TEXTRON INC. YOU SUBMITTED AN INITIAL BID ON THE INVITATION AS MODIFIED BY AMENDMENT NO. 1, ACCOMPANIED BY A LETTER DATED APRIL 12, 1961, IN WHICH YOU STATED CERTAIN EXCEPTIONS, IN PERTINENT PART, AS FOLLOWS:

"WE FIND IT NECESSARY TO TAKE EXCEPTION TO THE MAXIMUM WEIGHT REQUIREMENT OF 165 LBS. AS OUR UNIT WEIGHT WILL BE APPROXIMATELY 230 LBS.

"OUR INTERPRETATION OF SPECIFICATION MIL-E-4970 IS THAT THESE TESTS ARE NOT APPLICABLE SO OUR PRICE DOES NOT INCLUDE ANY WINTERIZATION EQUIPMENT OR ENVIRONMENTAL TESTING. WE DO HOWEVER INTEND TO PERFORM THE 200 HOUR SERVICE TEST SPECIFIED.

"WE SHALL SUPPLY ALL DRAWINGS AS REQUIRED BUT SHALL NOT SUPPLY THE DRAWINGS ON THE WISCONSIN MAENLD ENGINE WHICH WE PLAN TO USE, AS THIS IS A MILITARY QUALIFIED ENGINE FOR WHICH YOU ALREADY HAVE THE DRAWINGS.'

FOLLOWING THE ISSUANCE OF AMENDMENT NO. 2 TO THE INVITATION FOR BIDS YOU SUBMITTED AN AMENDED BID WITH YOUR LETTER DATED APRIL 21, 1961, WHICH INCLUDED THE FOLLOWING ADDITIONAL EXCEPTION:

"AT THIS TIME WE SHOULD MENTION THE ENERGIZER COVERED BY THIS INVITATION WILL BE DESIGNED TO WITHSTAND THE REQUIRED ENVIRONMENTAL TEST OF THE SPECIFICATION AS OUTLINED IN MIL-E-4970. HOWEVER, WE DO NOT INCLUDE IN OUR BID THE COST OF PERFORMING ANY ENVIRONMENTAL TEST. WE WILL OF COURSE PERFORM THE 200 HOUR SERVICE TEST SPECIFIED.'

SECTION II OF THE ARMED SERVICES PROCUREMENT REGULATIONS CONTAINS DETAILED PROVISIONS SETTING OUT THE BASIC REGULATORY REQUIREMENTS APPLICABLE TO PROCUREMENT OF ARMED SERVICES REQUIREMENTS FOR FORMAL ADVERTISING, WHICH ARE CODIFIED IN 32 CFR, CHAPTER I, SUBCHAPTER A. SECTION 2-301 TITLED ,RESPONSIVENESS OF BIDS" PROVIDES IN SUBPARAGRAPHS (A) AND (C) AS FOLLOWS:

"/A)TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.

"/C) BIDS SHOULD BE FILLED OUT, EXECUTED, AND SUBMITTED IN ACCORDANCE WITH THE INSTRUCTIONS WHICH ARE CONTAINED IN THE INVITATION FOR BIDS. A BIDDER USES HIS OWN BID FORM OR A LETTER TO SUBMIT A BID, THE BID MAY BE CONSIDERED ONLY IF (I) THE BIDDER ACCEPTS ALL THE TERMS AND CONDITIONS OF THE INVITATION, AND (II) AWARD ON THE BID WOULD RESULT IN A BINDING CONTRACT THE TERMS AND CONDITIONS OF WHICH DO NOT VARY FROM THE TERMS AND CONDITIONS OF THE INVITATION.'

SECTION 2-404.2 TITLED "REJECTION OF INDIVIDUAL BIDS" PROVIDES IN MATERIAL PART AS FOLLOWS:

"/A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS SHALL BE REJECTED.

"/B) ANY BID WHICH DOES NOT CONFORM TO THE SPECIFICATIONS CONTAINED OR REFERENCED IN THE INVITATION FOR BIDS SHALL BE REJECTED UNLESS THE INVITATION AUTHORIZED THE SUBMISSION OF ALTERNATE BIDS AND THE SUPPLIES OFFERED AS ALTERNATES MEET THE REQUIREMENTS SPECIFIED IN THE INVITATION.'

YOUR BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE (1) YOU TOOK EXCEPTION TO THE WEIGHT LIMITATION, (2) THE PRICE YOU QUOTED DID NOT INCLUDE ENVIRONMENTAL TESTING, AND (3) YOU STATED YOU WOULD NOT FURNISH ENGINE DRAWINGS. THE PURCHASE DESCRIPTION OF THE ENERGIZER WAS WRITTEN TO MEET REQUIREMENTS FOR FIELD SUPPORT OF ARMY AIRCRAFT DURING FIELD OPERATIONS. ITS CAPABILITY REQUIREMENTS EMBRACED THE STARTING OF AIRCRAFT ENGINES AND THE FURNISHING OF ELECTRICAL POWER DURING GROUND OPERATIONS OF AIRCRAFT SYSTEMS. THE LIGHTWEIGHT SPECIFICATION WAS TO FACILITATE FIELD HANDLING AND AIR TRANSPORT OF THE EQUIPMENT ESSENTIAL FOR THE PARTICULAR NEEDS. IT SEEMS ABUNDANTLY CLEAR THAT THE SPECIFICATION OF THIS REQUIREMENT WAS WITHIN THE PROVINCE OF THE PROCURING AGENCY. CF. 17 COMP. GEN. 554. FURTHERMORE, YOUR ALLEGATION TO THE EFFECT THAT THE PURCHASE DESCRIPTION RESTRICTED THE PROCUREMENT TO THE PRODUCT OF ONLY ONE MANUFACTURER IS NOT SUPPORTED SINCE IT APPEARS THAT THE ENERGIZER COULD BE ASSEMBLED USING EITHER AN ENGINE MANUFACTURED BY THE HOMELITE COMPANY OR THE KOHLER COMPANY. SINCE AN ENERGIZER WAS REQUIRED FOR WORLDWIDE SUPPORT OF ARMY AIRCRAFT WHICH WOULD BE CAPABLE OF PERFORMING SATISFACTORILY DURING ALL ENVIRONMENTAL CONDITIONS THE SPECIFICATIONS FOR REQUIRING ENVIRONMENTAL TESTING AND THE FURNISHING OF ENGINE DRAWINGS APPEAR REASONABLE.

FROM A CAREFUL REVIEW OF ALL AVAILABLE INFORMATION AND EVIDENCE, WE ARE OF THE OPINION THAT THE REJECTION OF YOUR BID BY THE CONTRACTING OFFICER WAS IN CONFORMANCE WITH THE APPLICABLE PROCUREMENT REGULATIONS AND WHILE WE CONCUR WITH YOUR VIEWS AS TO THE DESIRABILITY OF BROADENING THE PROCUREMENT BASE THIS IS, OF COURSE, A RESPONSIBILITY OF PRIMARY CONCERN OF THE ADMINISTRATIVE AGENCY. WE FIND NO BASIS, THEREFORE, ON WHICH YOUR PROTEST MIGHT REASONABLY BE SUSTAINED.