B-147664, MAR. 1, 1962

B-147664, MAR. 1, 1962

TO THE FRANK G. HOUGH COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 24, 1961, PROTESTING AGAINST THE AWARD OF A CONTRACT TO UNITED TRACTOR, INC., UNDER INVITATION FOR BIDS NO. IFB-600-222-62.

BIDS, TO BE OPENED OCTOBER 11, 1961, WERE REQUESTED FROM 77 SUPPLIERS ON 12 AIRCRAFT TOWING TRACTORS, WITH 15,000-POUND DRAWBAR PULL. TWO BIDS WERE RECEIVED AND AWARD WAS MADE TO UNITED TRACTOR, INC., THE LOW BIDDER. YOUR PROTEST IS BASED PRIMARILY ON THE GROUND THE UNITED DOES NOT MEET THE EXPERIENCE REQUIREMENTS STATED IN PARAGRAPH 6.4 OF AMENDMENT NO. 1 TO MILITARY SPECIFICATION MIL-T-21 571 (AER) AS FOLLOWS:

"QUALIFICATION AND PROOF OF BIDDER: THE BIDDER SHALL FURNISH PROOF THAT HE HAS BEEN ENGAGED IN THE PRODUCTION OF THIS TYPE AND SIZE TRACTOR FOR AT LEAST 2 YEARS * * *.'

THE NAVY DEPARTMENT CONCLUDED THAT THE PROPOSED TRACTOR OF UNITED MET THE REQUIRED SPECIFICATIONS, THAT THE COMPANY WAS A RESPONSIBLE BIDDER, AND THAT AWARD SHOULD BE MADE TO IT, NOTWITHSTANDING IT APPARENTLY HAD BEEN PRODUCING THE 15,000-POUND TRACTOR FOR LESS THAN TWO YEARS.

IN OUR OPINION THE DEPARTMENT OF THE NAVY WOULD NOT HAVE BEEN JUSTIFIED IN REJECTING THE UNITED TRACTOR BID IN FAVOR OF A HIGHER ONE. IN OUR DECISION B-140481, SEPTEMBER 8, 1959 (39 COMP. GEN. 173), WE CONSIDERED A SITUATION IN WHICH THE LOW RESPONSIVE BIDDER WHO FAILED TO MEET THE STIPULATED EXPERIENCE REQUIREMENTS WAS FOUND BY THE CONTRACTING AGENCY TO HAVE THE NECESSARY CAPABILITY (INCLUDING PLANT AND FINANCIAL CAPACITY, KNOW-HOW, EQUIPMENT AND MANPOWER) TO SUCCESSFULLY CARRY OUT THE CONTRACT IN ACCORDANCE WITH ITS TERMS. IN THAT SITUATION WE STATED---

"WHEN, AS IN THE PRESENT CASE, THERE APPEARS TO BE REASONABLE GROUND FOR DOUBT AS TO A LOW BIDDER'S LACK OF RESPONSIBILITY, EVEN THOUGH THE BIDDER MAY FAIL TO MEET SOME OF THE QUALIFICATIONS PRESCRIBED BY THE INVITATION, WE BELIEVE THAT REJECTION OF THE LOW BID AND AWARD TO ANY OTHER BIDDER SHOULD BE SUPPORTED BY A SPECIFIC DETERMINATION, BASED UPON CONSIDERATION OF THE QUALIFICATIONS OF THE PARTICULAR BIDDER, THAT THE LOW BIDDER WAS NOT A "RESPONSIBLE" BIDDER WITHIN THE MEANING OF THE STATUTE. IF SUCH A DETERMINATION CANNOT BE MADE, THE QUALIFICATIONS PRESCRIBED BY THE INVITATION MUST BE REGARDED AS UNREASONABLY RESTRICTIVE. * * *"

IN VIEW OF THE FACT THAT THE CONTRACTING AGENCY, WHICH IS PRIMARILY RESPONSIBLE FOR SUCH DETERMINATION, HAS FOUND THE SUCCESSFUL BIDDER TO BE FULLY QUALIFIED TO PERFORM THE CONTRACT, IT WOULD HAVE BEEN IMPROPER ON THE BASIS OF THE PRECEDENT ESTABLISHED IN THE CITED DECISION TO REJECT THAT FIRM'S BID FOR NONCOMPLIANCE WITH THE LITERAL LANGUAGE OF THE EXPERIENCE REQUIREMENT. THIS PRECEDENT, IF CONSIDERED APPLICABLE TO THE PRESENT SITUATION, ORDINARILY WOULD REQUIRE THE REJECTION OF ALL BIDS ON THE GROUND THAT SOME PROSPECTIVE SUPPLIERS MAY HAVE BEEN DISCOURAGED FROM BIDDING BY THE LANGUAGE OF THE EXPERIENCE PROVISION. IN THE LATTER CONNECTION THE NAVY DEPARTMENT HAS REPORTED TO US AS FOLLOWS:

"1. AIRCRAFT TOWING TRACTORS OF 15,000 POUNDS CAPACITY, SEE ENCLOSURE (1), HAVE BEEN PURCHASED BY THE NAVY PURCHASING OFFICE FOR THE BUREAU OF NAVAL WEAPONS FOR SEVERAL YEARS. THE DETAILED REQUIREMENTS, PREPARED BY THE BUREAU OF NAVAL WEAPONS, HAVE BEEN IN THE FORM OF MILITARY SPECIFICATIONS (WEPS).

"2. FOR 15,000 POUND CAPACITY TRACTORS LIKE THOSE CONCERNED WITHIN THE CURRENT IFB600-222-62, ONE PROCUREMENT OF 32 EACH WAS MADE IN APRIL 1960 WITH THE FRANK G. HOUGH COMPANY, THE ONLY IDDER; ONE PROCUREMENT OF 35 EACH WAS MADE IN DECEMBER 1960 WITH THE FRANK G. HOUGH COMPANY, THE ONLY BIDDER; AND IN THE CURRENT PROCUREMENT FOR 12, UNITED TRACTOR INC., BID IN ADDITION TO THE FRANK G. HOUGH COMPANY.

"3. THE MAILING LIST TO WHICH SETS OF IFB600-222-62 WERE MAILED CONTAINED 77 NAMES. THESE NAMES CONSISTED OF VARIOUS MANUFACTURERS OF MATERIALS HANDLING EQUIPMENT, AND GROUND HANDLING EQUIPMENT WHO HAVE REQUESTED OF THIS OFFICE THAT THEY BE GIVEN AN OPPORTUNITY TO BID PLUS A LIST OF NAMES SUBMITTED BY THE BUREAU OF NAVAL WEAPONS CONSISTING OF COMPANIES WHICH HAVE INDICATED TO THE BUREAU AND THE SMALL BUSINESS REPRESENTATIVE THAT THEY WISH TO RECEIVE INVITATIONS TO BID ON THIS TYPE OF EQUIPMENT. SITUATION SUCH AS THIS, WITH MANY NAMES SUGGESTED AS SOURCES IN ACCORDANCE WITH NAVY PROCEDURES AND WITH FEW BIDS RECEIVED, IS THE RULE RATHER THAN THE EXCEPTION. SEE ENCLOSURE (2) IN WHICH BIDDERS REQUEST TO BE KEPT ON THE MAILING LIST.

"4. IT IS THE OPINION OF THIS OFFICE THAT THE HISTORY OF PROCUREMENTS OF THE 15,000 POUND CAPACITY TRACTOR IS SUCH THAT ONLY THE FRANK G. HOUGH COMPANY WAS EXPECTED TO BID ON THE ITEM IN THE QUANTITY CALLED FOR; THAT THE RESTRICTION IN THE SPECIFICATION DID NOT DEPRIVE THE GOVERNMENT OF THE BENEFIT OF COMPETITION; THAT IN FACT UNITED TRACTOR COMPANY COMPETITIVELY BID ON THE ITEM WITHOUT REGARD TO THE RESTRICTION IN THE SPECIFICATION.

"5. IN FUTURE PROCUREMENTS WHEN A REQUIREMENT SUCH AS THE ONE INVOLVED HERE APPEARS IN A SPECIFICATION OR PURCHASE DESCRIPTION, IT WILL BE DELETED FROM THE SPECIFICATION.'

IN VIEW OF THE FACT THAT AWARD HAS ALREADY BEEN MADE, AND SINCE, AS ABOVE INDICATED, THE EXPERIENCE REQUIREMENT IN QUESTION DID NOT AS A PRACTICAL MATTER RESTRICT COMPETITION, WE FIND NO LEGAL BASIS TO SUPPORT A DETERMINATION THAT THE CONTRACT SHOULD BE CANCELED.