B-148692, JUL. 2, 1962

B-148692, JUL. 2, 1962

TO MR. HERBERT P. LINDBLAD:

REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1962, AND PREVIOUS CORRESPONDENCE, PROTESTING THE CONTRACTING OFFICER'S DETERMINATION THAT THE LOW BID SUBMITTED BY YOUR COMPANY IS NOT RESPONSIVE TO IFB 33 657-62- 216 THAT SOLICITED BIDS FOR CERTAIN AIRCRAFT CARGO PALLETS AND NETS.

THE BID SUBMITTED BY YOUR COMPANY WAS DETERMINED TO BE NONRESPONSIVE FOR TWO REASONS. FIRST, DRAWING 450-62-02 THAT ACCOMPANIED THE BID SHOWED THAT THE LIPS AROUND THE PERIPHERY OF THE PALLET WOULD HAVE A CLEAR AREA LESS THAN THE 1 1/4-INCH MINIMUM REQUIRED BY SPECIFICATION MIL-P-27648 INCORPORATED BY REFERENCE INTO THE INVITATION BECAUSE OF THE INTRUSION OF TIEDOWN RINGS INTO THE AREA. SECOND, YOUR COMPANY DRAWING 450-62-04 DID NOT SHOW FORK OPENING REINFORCEMENTS AS REQUIRED BY PARAGRAPH 3.4.7 OF THE SPECIFICATION.

YOU CONTEND THAT THE DATA IN YOUR DRAWINGS MEETS THE SPECIFICATION REQUIREMENTS. YOU POINT OUT THAT WHILE A DIAGRAM INCLUDED IN THE SPECIFICATION CALLS FOR A "CLEAR AREA 1 1/4 MIN 1 3/4 MAX" FROM THE OUTER EDGE OF THE LIP TO THE PALLET WALL, IT DOES NOT SHOW ANY EQUIPMENT ATTACHED TO THE PALLET WALL AND YOU APPEAR TO SUGGEST THAT THE TIEDOWN RING THAT YOUR DRAWING SHOWS ATTACHED TO THE PALLET WALL SHOULD NOT BE CONSIDERED AS AN INFRINGEMENT UPON THE AREA. AS TO THE REQUIREMENT FOR REINFORCEMENTS AROUND THE FORK LIFT ENTRIES, YOU STATE THAT YOUR COMPANY DEVOTED CONSIDERABLE TIME TO THIS FEATURE AND CONCLUDED THE USE OF A TUNNEL STRUCTURE TO REINFORCE THE EDGING MEMBERS WAS THE OPTIMUM SOLUTION. FURTHER, YOU STATE THAT YOUR COMPANY IS COMPETENT TO PERFORM THE CONTRACT AND YOU CONTEND THEREFORE THAT IT SHOULD HAVE BEEN GIVEN AN OPPORTUNITY AFTER THE EVALUATION OF DATA TO SHOW THAT IT COULD PRODUCE THE PALLET.

THE SPECIFICATION DIAGRAM SECTION AA OF THE LIP AREA SHOWS THAT THERE IS TO BE A CLEARANCE ALL THE WAY UP ABOVE THE SURFACE OF THE LIP AND THAT THE CLEARANCE SHALL EXTEND HORIZONTALLY NO LESS THAN A MINIMUM OF 1 1/4 INCHES AND NO MORE THAN A MAXIMUM OF 1 3/4 INCHES FROM THE OUTSIDE EDGE OF THE LIP TO THE WALL OF THE PALLET. WHILE THE DIAGRAM DOES NOT SHOW THE RELATIONSHIP OF THE TIEDOWN RING TO THE LIP AREA, THERE IS NOTHING IN THE SPECIFICATION THAT INDICATES THAT THE DIAGRAM WAS INTENDED TO BE REPRESENTATIVE OF ANYTHING MORE THAN THE LIP IN RELATION TO THE PARTS ACTUALLY SHOWN AROUND IT. THE FACT THAT A SPECIFIED AREA ABOVE THE LIP IS DESIGNATED AS A "CLEAR AREA" IMPORTS THAT IT IS TO BE FREE OF ENCROACHMENTS OF ANY KIND. AS THE DRAWING FURNISHED BY YOUR COMPANY SHOWS THAT THE TIEDOWN RINGS ON THE PALLET YOU PROPOSED TO OFFER REDUCE THE CLEAR AREA BELOW THE SPECIFIED MINIMUM, THE CONTRACTING OFFICER'S DETERMINATION ON THIS MATTER APPEARS TO HAVE BEEN CORRECT.

WITH REGARD TO THE FORK LIFT REINFORCEMENT DEFICIENCY, PARAGRAPH 3.4.7 OF THE SPECIFICATION MIL-P-27648 REQUIRES THAT "REINFORCEMENTS SHALL BE PROVIDED AROUND THE OPENINGS TO PREVENT DAMAGE TO THE PALLET WHEN THE FORK LIFT TINES ARE ENGAGING THE PALLET.' THE CONTRACTING OFFICER HAS POINTED OUT THAT YOUR COMPANY DRAWING INDICATED THAT THE FORK CHANNEL SHEETS WOULD BE ATTACHED TO THE VERTICAL WEB OF THE EDGE STRUCTURE BY RIVETS AND THAT THIS CANNOT BE VIEWED AS MEETING FORK OPENING REINFORCEMENTS. SINCE PROCUREMENT OFFICIALS ARE BETTER QUALIFIED THAN WE ARE TO REVIEW AND EVALUATE THE SUFFICIENCY OF OFFERED PRODUCTS TO DETERMINE WHETHER THEY MEET THE REQUIREMENTS THAT ARE NEEDED, WE DO NOT FEEL JUSTIFIED IN QUESTIONING THEIR DETERMINATIONS. AS INDICATED IN 17 COMP. GEN. 554, AT PAGE 557, THE RESPONSIBILITY FOR DETERMINING WHETHER TECHNICAL PROPOSALS MEET THE ADVERTISED SPECIFICATIONS IS VESTED IN THE PROCURING AGENCIES ALONE.

WITH RESPECT TO YOUR CONTENTION THAT YOU SHOULD HAVE BEEN PERMITTED TO MAKE ADDITIONAL EXPLANATIONS AFTER THE MATERIAL YOU SUBMITTED WAS EVALUATED, THE DESCRIPTIVE LITERATURE PROVISION IN THE INVITATION SPECIFICALLY STATES THAT "FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID.' THUS, IT IS APPARENT THAT THE FURNISHING OF THE DATA SHOWING THAT THE PALLET CONFORMS TO THE SPECIFICATION WAS MADE MANDATORY BY THE QUOTED PROVISION IN THE INVITATION AS WAS TO BE ENFORCED. SEE 36 COMP. GEN. 415.

ALSO, AS WAS STATED IN 17 COMP. GEN. 554, AT PAGE 558 AND 559:

"THESE ARE FUNDAMENTAL RULES GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. AS WAS SAID BY THE COURT IN CITY OF CHICAGO V. MOHR,216 ILL. 320; 74 N.E. 1056---

" "* * * WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF LAW--- AND CANNOT BE TOO STRONGLY CONDEMNED.'"

ACCORDINGLY, IN THE CIRCUMSTANCES, THERE IS NO LEGAL BASIS UPON WHICH WE COULD OBJECT TO THE CONTRACTING OFFICER'S DETERMINATION TO REJECT THE BID SUBMITTED BY YOUR COMPANY. CONSEQUENTLY, NO FURTHER ACTION WOULD BE WARRANTED BY US. ..END :