B-147028, OCT. 31, 1961

B-147028: Oct 31, 1961

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER OF SEPTEMBER 29. THE ELGIN SWEEPER COMPANY BID WAS REJECTED BECAUSE (1) THE SWEEPER BROOM LOCATED BEHIND THE DRIVE WHEELS ON ITS MACHINE COULD NOT SWEEP NARROW CORNERS AS EFFECTIVELY AS THE SWEEPER BROOM LOCATED AHEAD OF THE DRIVE WHEELS ON THE SWEEPER OF THE SUCCESSFUL BIDDER. (2) THE WIDTH OF THE SWEEPER SWATH WAS ONLY 96 INCHES. IN DETERMINING WHETHER A BIDDER IS RESPONSIVE TO THE GOVERNMENT'S NEEDS. THE TEST IS NOT WHETHER ONE BIDDER'S EQUIPMENT IS SUPERIOR OR INFERIOR TO ANOTHER BIDDER'S EQUIPMENT. THERE WAS NO DETERMINATION THAT THE LOCATION OF THE BRUSHES DID NOT MEET THE GOVERNMENT'S NEEDS. ONLY THAT THE LOCATION WAS NOT AS SUITABLE AS ANOTHER BIDDER-S.

B-147028, OCT. 31, 1961

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 29, 1961, FROM THE CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REPORTING ON THE PROTEST OF ELGIN SWEEPER COMPANY AGAINST THE REJECTION OF ITS LOW BID SUBMITTED ON A SELF-PROPELLED ROTARY STREET SWEEPER UNDER INVITATION AVI 45-012-61-58.

ACCORDING TO THE RECORD, THE ELGIN SWEEPER COMPANY BID WAS REJECTED BECAUSE (1) THE SWEEPER BROOM LOCATED BEHIND THE DRIVE WHEELS ON ITS MACHINE COULD NOT SWEEP NARROW CORNERS AS EFFECTIVELY AS THE SWEEPER BROOM LOCATED AHEAD OF THE DRIVE WHEELS ON THE SWEEPER OF THE SUCCESSFUL BIDDER; (2) THE WIDTH OF THE SWEEPER SWATH WAS ONLY 96 INCHES; (3) THE BID DID NOT LIST FIVE PLACES IN THE PACIFIC NORTHWEST WHERE THE SWEEPER HAD BEEN IN SERVICE FOR AT LEAST A YEAR; AND (4) CONTRARY TO THE ADMONITION IN THE GENERAL PROVISIONS TO SPECIFICATIONS, AN ATTACHMENT TO THE BID INDICATED THAT WELDING HAD BEEN EMPLOYED WHICH RESTRICTED REMOVAL AND DISASSEMBLY OF SWEEPER COMPONENTS AND ASSEMBLIES.

WITH RESPECT TO THE REJECTION BASIS NUMBERED (1) ABOVE, SECTION 3B OF THE GENERAL PROVISIONS TO SPECIFICATIONS STATED THAT SPECIAL CONSIDERATION WOULD BE GIVEN TO "EASE OF HANDLING AND PERATION" OF THE SWEEPER, AND THE CONTRACTING OFFICER DETERMINED THAT, BECAUSE OF THE LOCATION OF THE SWEEPER BROOMS ON THE ELGIN SWEEPER, IT COULD NOT BE HANDLED AND OPERATED AS EFFECTIVELY AS THE COMPETITIVE SWEEPER OFFERED BY THE SUCCESSFUL BIDDER. HOWEVER, IN DETERMINING WHETHER A BIDDER IS RESPONSIVE TO THE GOVERNMENT'S NEEDS, THE TEST IS NOT WHETHER ONE BIDDER'S EQUIPMENT IS SUPERIOR OR INFERIOR TO ANOTHER BIDDER'S EQUIPMENT, BUT RATHER WHETHER THE EQUIPMENT MEETS THE GOVERNMENT'S NEEDS AS STATED IN THE SPECIFICATIONS. IN THIS CONNECTION, THERE WAS NO DETERMINATION THAT THE LOCATION OF THE BRUSHES DID NOT MEET THE GOVERNMENT'S NEEDS, BUT ONLY THAT THE LOCATION WAS NOT AS SUITABLE AS ANOTHER BIDDER-S. IF THERE WAS A SPECIFIC NEED FOR BRUSHES IN SPECIFIC LOCATION, THAT REQUIREMENT SHOULD HAVE BEEN STATED IN PRECISE TERMS RATHER THAN IN THE VAGUE TERMINOLOGY EMPLOYED. IN THAT CONNECTION, IN 36 COMP. GEN. 380, AT PAGE 385, IT WAS STATED:

"THE "BASIS" OF EVALUATION WHICH MUST BE MADE KNOWN IN ADVANCE TO THE BIDDERS SHOULD BE AS CLEAR, PRECISE AND EXACT AS POSSIBLE. IDEALLY, IT SHOULD BE CAPABLE OF BEING STATED AS A MATHEMATICAL EQUATION. IN MANY CASES, HOWEVER, THAT IS NOT POSSIBLE. AT THE MINIMUM, THE "BASIS" MUST BE STATED WITH SUFFICIENT CLARITY AND EXACTNESS TO INFORM EACH BIDDER PRIOR TO BID OPENING, NO MATTER HOW VARIED THE ACCEPTABLE RESPONSES, OF OBJECTIVELY DETERMINABLE FACTORS FROM WHICH THE BIDDER MAY ESTIMATE WITHIN REASONABLE LIMITS THE EFFECT OF THE APPLICATION OF SUCH EVALUATION FACTOR ON HIS BID IN RELATION TO OTHER POSSIBLE BIDS. BY THE TERM "OBJECTIVELY DETERMINABLE FACTORS" WE MEAN FACTORS WHICH ARE MADE KNOWN TO OR WHICH CAN BE ASCERTAINED BY THE BIDDER AT THE TIME HIS BID IS BEING PREPARED. FACTORS WHICH ARE BASED ENTIRELY OR LARGELY ON A SUBJECTIVE DETERMINATION TO BE ANNOUNCED BY REPRESENTATIVES OF THE CONTRACTING AGENCY AT THE TIME OF OR SUBSEQUENT TO THE OPENING OF BIDS VIOLATE THE PRINCIPLE FOR THE REASON THAT THEY ARE NOT DETERMINABLE BY THE BIDDER AT THE TIME HIS BID IS BEING PREPARED.'

THEREFORE, WE DO NOT BELIEVE THAT THE BASIS NUMBERED (1) FOR REJECTION WAS SUFFICIENTLY COMPELLING TO HAVE REQUIRED THE ELGIN BID TO HAVE BEEN DISREGARDED.

WITH RESPECT TO THE REJECTION BASIS NUMBERED (2) ABOVE, THE CONTRACTING OFFICER APPARENTLY OVERLOOKED THE FACT THAT THE ELGIN 8 FOOT SWEEPING SWATH WAS THE WIDTH WITH ONLY 1 GUTTER BROOM AND THAT WITH THE SECOND GUTTER BROOM THE SWATH WOULD REACH 10 FEET. THE SWEEPING SWATH WOULD THEREFORE MEET THE REQUIREMENT IN THE ORIGINAL INVITATION THAT THE MINIMUM SWEEPING SWATH WITH 2 GUTTER BROOMS BE 10 FEET OR THE REQUIREMENT IN MIL-S -15619D, MADE APPLICABLE BY AN AMENDMENT TO THE INVITATION, THAT THE SWEEPER SHALL HAVE A MINIMUM SWEEPING SWATH OF 7 FEET WITH 1 GUTTER BROOM.

THEREFORE, THE SECOND BASIS FOR REJECTION IS UNTENABLE.

IT IS REPORTED THAT THE REQUIREMENT THAT EACH BIDDER LIST FIVE PLACES IN THE PACIFIC NORTHWEST WHERE THE SWEEPER HAD BEEN IN SERVICE FOR AT LEAST A YEAR WAS INCLUDED TO INSURE THAT THE EQUIPMENT WOULD OPERATE UNDER THE CLIMATIC CONDITIONS OF THE AREA IN WHICH THE SWEEPER WOULD BE USED. HOWEVER, IF THERE IS ANYTHING UNUSUAL ABOUT THE CLIMATIC CONDITIONS IN THE AREA WHERE THE EQUIPMENT WILL BE UTILIZED, WE BELIEVE THAT THE CONDITIONS SHOULD HAVE BEEN STATED PRECISELY ALONG WITH THE SPECIFIC PERFORMANCE TO BE REQUIRED OF THE EQUIPMENT UNDER THOSE CONDITIONS, SO THAT THE BIDDERS COULD KNOW THE KIND OF PERFORMANCE EXPECTED FROM THEIR MACHINES AND COULD SUBMIT SUITABLE EVIDENCE, IF IT WAS DESIRED, THAT THEIR SWEEPERS COULD PERFORM UNDER THE SPECIAL CONDITIONS. WHERE IT DOES NOT APPEAR IN THE INVITATION THAT THE REQUIREMENT FOR A LIST OF PLACES WHERE THE EQUIPMENT HAS BEEN USED IS BEING INCLUDED AS A REQUIREMENT OF THE EQUIPMENT, IT MUST BE TREATED AS A BIDDER-EXPERIENCE QUALIFICATION. WE HAVE HELD THAT THE BIDDER-EXPERIENCE QUALIFICATION REQUIREMENT IS IMPROPER AS AN UNAUTHORIZED RESTRICTION OF COMPETITION WHERE IT EXCLUDES A BIDDER THAT COULD NOT OTHERWISE HAVE BEEN FOUND LACKING IN RESPONSIBILITY. SEE 40 COMP. GEN. 106 AND 39 ID. 173.

ACCORDINGLY, WE MUST ALSO DISAGREE WITH THE THIRD BASIS FOR REJECTION.

WITH REGARD TO THE FOURTH BASIS FOR REJECTION, SECTION 3G OF THE GENERAL PROVISIONS TO SPECIFICATIONS SPECIFICALLY STATED THAT WELDING SHOULD NOT BE EMPLOYED TO THE ASSEMBLY OF THE EQUIPMENT IN ANY MANNER TO PREVENT ACCESS OR READY REMOVAL OF ANY COMPONENT PART FOR SERVICE OR REPAIR, BUT ON THE QUESTIONNAIRE CONCERNING THE BIDDER'S STANDARD COMMERCIAL MODEL THAT WAS TO BE ANSWERED AND FORWARDED WITH EACH BID, ELGIN ANSWERED "YES" TO THE QUESTION "HAS WELDING BEEN UTILIZED WITHIN THE CONSTRUCTION OF THIS EQUIPMENT WHICH RESTRICTS THE REMOVAL, DISASSEMBLY OF COMPONENTS OR ASSEMBLIES.' IN THE LETTER ACCOMPANYING ITS BID, ELGIN STATED "WHERE OUR STANDARD SPECIFICATIONS DO NOT CONFORM TO THE GOVERNMENT'S REQUIREMENTS, ALL NECESSARY MODIFICATIONS AND ADDITIONS WILL BE MADE SO THAT THE SWEEPER SUPPLIED WILL CONFORM IN ALL RESPECTS TO THE APPLICABLE SPECIFICATIONS.' THEREFORE, WHILE ELGIN MAY HAVE INDICATED IN THE QUESTIONNAIRE THAT ITS STANDARD MODEL WAS NOT IN STRICT CONFORMANCE WITH THE WELDING REQUIREMENT, ITS LETTER SHOULD HAVE BEEN TREATED AS OVERCOMING THAT UNSATISFACTORY FEATURE IN THE SWEEPER TO BE FURNISHED THE GOVERNMENT. THE STATEMENT IN THE LETTER LEADS US TO THE CONCLUSION THAT ELGIN WOULD HAVE BEEN CONTRACTUALLY BOUND TO FURNISH A SWEEPER MEETING THE GOVERNMENT'S WELDING CONDITION IF THE AWARD WERE MADE TO IT.

WE THEREFORE ARE OF THE OPINION THAT THE ACTION OF THE CONTRACTING OFFICER IN REJECTING THE ELGIN BID WAS IMPROPER. BUT, BE THAT AS IT MAY, THE BIDDER WHO WAS AWARDED THE CONTRACT HAS MADE DELIVERY AND HAS BEEN PAID, SO THAT THERE IS NO ACTION THAT COULD BE TAKEN AT THIS TIME TO CANCEL THE AWARD. HOWEVER, OUR VIEWS ARE BEING FURNISHED AS A GUIDE FOR FUTURE PROCUREMENTS.

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