B-147529, FEB. 16, 1962

B-147529: Feb 16, 1962

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TO CHRYSLER MOTORS CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3. 2 AND 3 WERE REQUIRED TO HAVE A MINIMUM GVW OF 19. PARAGRAPH E-6A OF THIS SPECIFICATION REQUIRES THAT "WHEN TRUCKS ARE TO BE EQUIPPED WITH DUMP BODIES. PAGE 14 OF THE INVITATION ALSO STATED THAT ALL EQUIPMENT COVERED BY THE INVITATION WOULD BE USED UNDER SEVERE CONDITIONS AND THAT IT WAS INTENDED TO SECURE EQUIPMENT OF RUGGED CONSTRUCTION. PURSUANT TO PARAGRAPH (C) OF ADDITIONAL SPECIFICATION REQUIREMENTS (PAGE 14 OF THE INVITATION) BIDDERS WERE REQUIRED TO SUBMIT COMPLETED QUESTIONNAIRE FORM FS-130 WITH THEIR BIDS. IT WILL BE CONCLUDED BY THE GOVERNMENT THAT THE BIDDER INTENDS TO BIND HIMSELF IN ANY RESULTING CONTRACT.

B-147529, FEB. 16, 1962

TO CHRYSLER MOTORS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3, 1961, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. FN-3C-28738-A 10-3-61 FOR FURNISHING TRUCKS AND TRUCK TRACTORS.

THE INVITATION FOR BIDS COVERED THE FURNISHING OF NINE ITEMS OF TRUCKS AND TRUCK TRACTORS. THE VEHICLES SPECIFIED IN ITEMS NOS. 1, 2 AND 3 WERE REQUIRED TO HAVE A MINIMUM GVW OF 19,500 POUNDS, BE EQUIPPED WITH A 3 1/2 CUBIC YARD DUMP BODY, AND BE IN ACCORDANCE WITH FEDERAL SPECIFICATION KKK- T-701B. PARAGRAPH E-6A OF THIS SPECIFICATION REQUIRES THAT "WHEN TRUCKS ARE TO BE EQUIPPED WITH DUMP BODIES, THE FRAMES SHALL BE SPECIAL DUMP- TRUCK FRAMES OR THEY SHALL BE REINFORCED AT THE POINT OF MAXIMUM STRESS WITH FISH PLATES OR EQUAL.' PAGE 14 OF THE INVITATION ALSO STATED THAT ALL EQUIPMENT COVERED BY THE INVITATION WOULD BE USED UNDER SEVERE CONDITIONS AND THAT IT WAS INTENDED TO SECURE EQUIPMENT OF RUGGED CONSTRUCTION. PURSUANT TO PARAGRAPH (C) OF ADDITIONAL SPECIFICATION REQUIREMENTS (PAGE 14 OF THE INVITATION) BIDDERS WERE REQUIRED TO SUBMIT COMPLETED QUESTIONNAIRE FORM FS-130 WITH THEIR BIDS. ALSO, THIS PARAGRAPH (C) PROVIDED THAT "WHEN THE DATA INSERTED BY THE BIDDER IN THE QUESTIONNAIRE DIFFERS FROM THE SPECIFICATION CONTAINED IN THE INVITATION TO BID, IT WILL BE CONCLUDED BY THE GOVERNMENT THAT THE BIDDER INTENDS TO BIND HIMSELF IN ANY RESULTING CONTRACT, TO WHAT HE HAS STATED HE WILL OFFER IN THE QUESTIONNAIRE, RATHER THAN WHAT IS REQUIRED BY THE SPECIFICATION OF THE INVITATION.'

YOU BID "ALL OR NONE" ON ITEMS NOS. 1, 2, 3, 6 AND 7 AND YOU WERE THE LOW BIDDER ON THESE ITEMS. BASED ON THE INFORMATION FURNISHED BY YOU IN YOUR QUESTIONNAIRE THE CONTRACTING OFFICER DETERMINED THAT YOU OFFERED YOUR STANDARD FRAME AND NOT A SPECIAL DUMP-TRUCK FRAME OR A REINFORCED FRAME AS REQUIRED BY THE APPLICABLE FEDERAL SPECIFICATION KKK-T-701B. THEREFORE, SINCE YOU WERE NONRESPONSIVE ON ITEMS NOS. 1, 2 AND 3, AND HAVING BID ON AN "ALL OR NONE" BASIS, YOUR BID ON ALL ITEMS WAS REJECTED.

IN YOUR LETTER OF NOVEMBER 3, 1961, YOU CONTEND THAT THE VEHICLES YOU DESCRIBED IN YOUR BID FULLY COMPLIED WITH THE BID REQUIREMENTS. SUPPORT OF YOUR CONTENTION YOU STATE THAT THE FRAMES IN THE VEHICLES COVERED BY YOUR BID WERE DESIGNED TO ACCOMMODATE DUMP-TRUCK BODIES OF THE SIZE SPECIFIED WITHOUT EXTRA REINFORCEMENT AND, THEREFORE, QUALIFIED AS SPECIAL DUMP-TRUCK FRAMES. ALSO, YOU STATE THAT THE SECTION MODULUS OF 9.72 IS SPECIFIED IN YOUR CATALOG FOR A 133-INCH WHEELBASE VEHICLE HAVING A DUMP-TRUCK BODY. YOU POINT OUT THAT ON PAGE 6, ITEM 1, OF YOUR CATALOG THE FRAMES ARE DESCRIBED AS SUITABLE FOR " "MOUNTING SNOWPLOWS OR OTHER HEAVY EQUIPMENT WITHOUT SPECIAL REINFORCEMENT.'" IN FURTHER SUPPORT OF YOUR PROTEST YOU CITE THE GENERAL REQUIREMENTS SET OUT IN PARAGRAPH D-1 OF THE APPLICABLE FEDERAL SPECIFICATION AND STATE THAT YOU ARE WILLING TO CERTIFY TO THE ADEQUACY OF THE FRAME INCLUDED IN THESE TRUCKS. YOU REFER TO SEVERAL CONTRACTS AWARDED TO YOU WHERE FEDERAL SPECIFICATION KKK-T-701B WAS APPLICABLE AND IN WHICH YOUR QUESTIONNAIRES DISCLOSED THAT YOU WERE FURNISHING THE STANDARD FRAME WITH A SECTION MODULUS OF 9.72. YOU STATE THAT IN EACH CASE YOU WERE NEVER REQUIRED TO FURNISH ANY REINFORCEMENTS TO MEET THIS SPECIFICATION AND THAT THE GOVERNMENT ACCEPTED THESE VEHICLES AND PERFORMANCE HAS BEEN ENTIRELY SATISFACTORY. IN YOUR LATEST LETTER OF JANUARY 25, 1962, YOU REFER PARTICULARLY TO CONTRACTS NOS. GS-00S-30846, GS-00S-32384 AND GS-00S 35991, DATED JANUARY 1, AUGUST 8 AND NOVEMBER 16, 1961, RESPECTIVELY.

WE HAVE HELD THAT THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THESE NEEDS CAN BE MET BY A GIVEN PRODUCT OR BY A PRODUCT CONFORMING TO CERTAIN SPECIFICATIONS ARE PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. 38 COMP. GEN. 190. WHETHER ANY PARTICULAR EQUIPMENT WHICH A BIDDER PROPOSES TO FURNISH AND WHICH MAY VARY SOMEWHAT FROM THE DETAILED SPECIFICATIONS MEETS THE GENERAL REQUIREMENTS MUST BE DETERMINED BY QUALIFIED PERSONNEL OF THE PROCURING AGENCY.

YOUR QUESTIONNAIRE SHOWS THAT YOU WERE OFFERING A DODGE MODEL D500 TRUCK, WITH A WHEELBASE OF 133 INCHES, AND A FRAME SECTION MODULUS OF 9.72. SPECIFIC REFERENCE WAS MADE TO THE FRAME AS BEING A SPECIAL DUMP-TRUCK FRAME, OR A REINFORCED FRAME. YOUR PUBLISHED DATA ON FRAME SPECIFICATIONS, SEPTEMBER 1961, SHOWS THAT THE SECTION MODULUS OF THE STANDARD FRAME ON THE D500 MODEL TRUCK IS 9.72, WITHOUT REINFORCEMENT, AND 14.44 WITH REINFORCEMENT. THE INVOLVED ITEMS NOS 1, 2 AND 3 WERE AWARDED TO THE STUDEBAKER-PACKARD CORPORATION AND THE INTERNATIONAL HARVESTER EXPORT CORPORATION. COPIES OF THEIR QUESTIONNAIRE SHOW THAT THEY WERE OFFERING REINFORCED FRAMES AND THE PROCURING AGENCY REPORTS THAT "THEY DO HAVE STANDARD FRAMES WITHOUT REINFORCEMENT WHICH ARE EQUIVALENT IN STRENGTH TO THE STANDARD FRAME OFFERED BY CHRYSLER.'

AS TO YOUR CONTENTION THAT YOU FURNISHED TRUCKS WITH STANDARD FRAMES WITHOUT REINFORCEMENT UNDER SEVERAL CONTRACTS, THE ADMINISTRATIVE OFFICE REPORTS THAT IN THE CASE OF CONTRACT NO. GS-00S 30846 YOU HAD OFFERED AS TO ITEMS NOS. 27, 28, 30 AND 38 OF THE INVITATION THERE INVOLVED, TRUCKS WITH STANDARD FRAMES, NOT REINFORCED, BUT YOU WERE NOT AWARDED THESE ITEMS AS YOU WERE NOT THE LOW BIDDER. HOWEVER, AS TO THE REMAINING NINE ITEMS OF THE THIRTEEN DUMP TRUCKS TO BE PROCURED YOU STATED IN THE QUESTIONNAIRE UNDER BLOCK 22 "AS SPECIFIED" FROM WHICH IT WAS CONCLUDED THAT YOU INTENDED TO FURNISH TRUCKS WITH FRAME REINFORCEMENT. AS TO CONTRACTS NOS. GS-00S 32384 AND GS-00S-35991 THE ADMINISTRATIVE OFFICE ADMITS THAT YOUR DEVIATION FROM THE SPECIFICATIONS WAS NOT DETECTED. HOWEVER, THE FACT THAT TRUCKS WITHOUT REINFORCED FRAMES WERE ACCEPTED AND USED IN THE PAST DOES NOT REQUIRE ACCEPTANCE AGAIN WHEN THE SPECIFICATIONS CLEARLY CALL FOR SOMETHING DIFFERENT THAN THAT OFFERED. SEE 37 COMP. GEN. 310, 312.

YOUR LITERATURE CLEARLY SHOWS THAT THE MODELS YOU OFFERED WERE TO BE EQUIPPED WITH FRAMES NOT REINFORCED AND THERE IS NO CLEAR SHOWING THAT THE FRAMES WERE SPECIAL DUMP-TRUCK FRAMES AS REQUIRED BY THE SPECIFICATIONS. CONSEQUENTLY, WE FIND NO BASIS FOR DISAGREEING WITH THE ADMINISTRATIVE DETERMINATION THAT YOU WERE NOT RESPONSIVE AS TO ITEMS NOS. 1, 2 AND 3 OF THE INVITATION.