B-149336, NOV. 13, 1962

B-149336: Nov 13, 1962

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TO THE AMERICAN HOIST AND DERRICK COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 12. 000 WAS LOW AND YOUR BID IN THE TOTAL AMOUNT OF $137. 920 WAS FOURTH LOW. IT IS ADMINISTRATIVELY REPORTED THAT DELIVERY UNDER THE RESULTING CONTRACT NO. IS BASED ON THE CONTENTION. THAT YOUR BID WAS THE LOWEST RESPONSIVE BID RECEIVED. THE SEVERAL GROUNDS UPON WHICH YOU QUESTION THE RESPONSIVENESS OF THE HARNISCHFEGER BID ARE HEREINAFTER CONSIDERED. THAT IT WAS IMPROPERLY ALLOWED TO FURNISH AN ADDITIONAL COUNTERWEIGHT IN ORDER TO MEET THESE REQUIREMENTS. GENERAL: THE EQUIPMENT DESIRED IS A HEAVY-DUTY FULL-REVOLVING. A JAPANESE FIRM) DESIGNATED "STANDARD COUNTERWEIGHT" FOR THE CRANE WAS 6.

B-149336, NOV. 13, 1962

TO THE AMERICAN HOIST AND DERRICK COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 12, 1962, WITH ENCLOSURES, PROTESTING THE AWARD MADE TO HARNISCHFEGER CORPORATION UNDER INVITATION FOR BIDS NO. 62-234, DATED MARCH 16, 1962, ISSUED BY THE BUREAU OF PUBLIC ROADS, DEPARTMENT OF COMMERCE.

THE INVITATION, BEARING BID OPENING DATE OF APRIL 12, 1962, REQUESTED BIDS FOR FURNISHING, C AND F GOVERNMENT PIER, MANILA, REPUBLIC OF THE PHILIPPINES, FIVE 3/4-CUBIC YARD CRAWLER CRANES, TOGETHER WITH PRESCRIBED SERVICES, IN ACCORDANCE WITH ATTACHED SPECIFICATIONS AND REQUIREMENTS, FOR USE BY THE REPUBLIC OF THE PHILIPPINES IN THE CONSTRUCTION OF ROADS AND BRIDGES IN THAT COUNTRY. OF THE 15 BIDS RECEIVED IN RESPONSE TO THE INVITATION, THE BID OF HARNISCHFEGER IN THE TOTAL AMOUNT OF $124,000 WAS LOW AND YOUR BID IN THE TOTAL AMOUNT OF $137,920 WAS FOURTH LOW. THE DESIGNATED REPRESENTATIVE OF THE PHILIPPINE GOVERNMENT APPROVED THE PROCURING AGENCY'S RECOMMENDATION THAT AWARD BE MADE TO HARNISCHFEGER AS THE LOWEST RESPONSIVE BIDDER. IT IS ADMINISTRATIVELY REPORTED THAT DELIVERY UNDER THE RESULTING CONTRACT NO. CPR-11-8523, DATED JUNE 1, 1962, HAS BEEN COMPLETED.

YOUR PROTEST TO THE AWARD, AS SET FORTH IN YOUR LETTER OF SEPTEMBER 12, 1962, AND AMPLIFIED IN YOUR PREVIOUS LETTERS OF MAY 7 AND JUNE 6, 1962, TO THE PROCURING AGENCY, IS BASED ON THE CONTENTION, IN SUBSTANCE, THAT YOUR BID WAS THE LOWEST RESPONSIVE BID RECEIVED. THE SEVERAL GROUNDS UPON WHICH YOU QUESTION THE RESPONSIVENESS OF THE HARNISCHFEGER BID ARE HEREINAFTER CONSIDERED.

YOU CONTEND THAT THE CRANE OFFERED BY HARNISCHFEGER, WHEN EQUIPPED WITH ITS "STANDARD" COUNTERWEIGHT, DID NOT MEET THE "CAPACITY" REQUIREMENTS SET FORTH IN THE SPECIFICATIONS AS TO THE MINIMUM WORKING WEIGHT AND LIFTING CAPACITY, AND THAT IT WAS IMPROPERLY ALLOWED TO FURNISH AN ADDITIONAL COUNTERWEIGHT IN ORDER TO MEET THESE REQUIREMENTS.

THE APPLICABLE SPECIFICATIONS PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"3. GENERAL: THE EQUIPMENT DESIRED IS A HEAVY-DUTY FULL-REVOLVING, FULLY MOBILE, SELF-PROPELLED CRAWLER CRANE, SUITABLE FOR PILE DRIVING, STEEL ERECTION, CLAMSHELL, AND DRAGLINE WORK WITHOUT THE USE OF SPECIAL TOOLS OR NON-STANDARD EQUIPMENT. IT SHALL BE THE MANUFACTURER'S LATEST FIELD- PROVEN PRODUCTION MODEL, MANUFACTURED TO DEFINITE UNITS OF MEASURE IN ACCORDANCE WITH AMERICAN MANUFACTURING STANDARDS AND CURRENT DESIGN AND PRACTICE. THE UNIT PROPOSED SHALL BE IN FULL ACCORDANCE WITH THE UNITED STATES DEPARTMENT OF COMMERCE COMMERCIAL STANDARDS CS90-58.

"4. CAPACITY:

WORKING WEIGHT ------ 44,000 LBS. (MINIMUM) WHEN EQUIPPED FOR LIFTING WORK WITH 35-FOOT BOOM AND MANUFACTURER'S MAXIMUM STANDARD COUNTERWEIGHT FOR MODEL CRANE QUOTED.

LIFTING CAPACITY --- 26,000 LBS. (MINIMUM) AT 75 PERCENT OF TIPPING LOAD ON LEVEL GROUND WITH 35-FOOT BOOM AND AT 12-FOOT RADIUS WITH MANUFACTURER'S STANDARD COUNTERWEIGHTS FOR MODEL CRANE QUOTED.'

THE RECORD SHOWS THAT HARNISCHFEGER'S BID, CONSISTING OF THE COMPLETED BID FORM AND TWO LETTERS DATED APRIL 9, 1962, AND ACCOMPANIED BY REQUIRED DESCRIPTIVE LITERATURE, SETS FORTH IN DETAIL THE EQUIPMENT PROPOSED TO BE FURNISHED, INCLUDING "3,000 LBS. ADDITIONAL COUNTERWEIGHT.' THE DESCRIPTIVE LITERATURE SHOWS THAT THE MANUFACTURER'S (KOBE STEEL WORKS, LTD., A JAPANESE FIRM) DESIGNATED "STANDARD COUNTERWEIGHT" FOR THE CRANE WAS 6,200 POUNDS AND THAT, WHEN EQUIPPED WITH THE "ADDITIONAL COUNTERWEIGHT," THE CRANE OFFERED BY HARNISCHFEGER EXCEEDED THE CAPACITY REQUIREMENTS AS TO WORKING WEIGHT AND LIFTING CAPACITY. THE QUESTION TO BE RESOLVED IS WHETHER THE FURNISHING OF AN ADDITIONAL COUNTERWEIGHT OF 3,000 POUNDS WAS SUCH A DEVIATION FROM THE ADVERTISED REQUIREMENTS AS TO REQUIRE REJECTION OF THE BID. FOR REASONS HEREINAFTER SET FORTH, WE CONCLUDE THAT THIS QUESTION MUST BE ANSWERED IN THE NEGATIVE.

IT IS ADMINISTRATIVELY REPORTED AND CONFIRMED BY THE EVIDENCE OF RECORD THAT, IN ADDITION TO A BASIC COUNTERWEIGHT, THE USE OF ADDITIONAL COUNTERWEIGHT OR COUNTERWEIGHTS TO OBTAIN MAXIMUM LIFT CRANE CAPACITIES IS A COMMON AND ACCEPTED PRACTICE IN THE POWER CRANE AND SHOVEL INDUSTRY, AND THAT EACH OF THE FIRMS RESPONDING TO THE INVITATION, REGARDLESS OF THE TERMINOLOGY USED IN THEIR LITERATURE TO DESCRIBE THE COUNTERWEIGHTS OFFERED IN THEIR BIDS, PROPOSED TO FURNISH A MACHINE EQUIPPED WITH A COMBINATION OF TWO OR MORE COUNTERWEIGHTS. IN THAT CONNECTION, WE NOTE THAT THE DESCRIPTIVE LITERATURE ON YOUR MACHINE STATES "COUNTERWEIGHT: STANDARD EQUIPMENT INCLUDES TWO-PIECE CAST COUNTERWEIGHT.' IT IS FURTHER REPORTED AND CONFIRMED BY THE BIDDERS' DESCRIPTIVE LITERATURE THAT A COMBINATION OF COUNTERWEIGHTS IS GENERALLY REGARDED AS ESSENTIAL FOR EFFICIENT PERFORMANCE OF THE MACHINE, DEPENDING ON THE TYPE OF WORK INVOLVED. THUS, WHILE THE TOTAL COUNTERWEIGHTS ARE NECESSARY TO PROVIDE MAXIMUM LIFT CRANE SERVICE, THE COUNTERWEIGHT OR COUNTERWEIGHTS, OVER AND ABOVE THE BASIC COUNTERWEIGHT, ORDINARILY SHOULD BE REMOVED WHEN THE MACHINE IS USED FOR OTHER REQUIRED PURPOSES SUCH AS DRAGLINE OR CLAMSHELL WORK. WHILE HARNISCHFEGER'S DESCRIPTIVE LITERATURE USED THE TERM "STANDARD" TO DESCRIBE ITS BASIC COUNTERWEIGHT, WE PERCEIVE NO PROPER BASIS ON THAT ACCOUNT TO REGARD ITS BID AS NONRESPONSIVE WHERE, AS HERE, ITS MACHINE, WHEN EQUIPPED WITH THE CUSTOMARY ADDITIONAL COUNTERWEIGHT, EXCEEDED THE ADVERTISED REQUIREMENTS. SEE 39 COMP. GEN. 595, 597, WHEREIN IT IS STATED, IN PART, THAT---

"* * * AN AUTOMATIC REJECTION OF A BID BECAUSE OF A FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVERLITERAL READING OF THE STATED REQUIREMENTS MAY BE AS ARBITRARY AS A WAIVER OF NONRESPONSIVENESS TO A MATERIAL AND SUBSTANTIAL REQUIREMENT.'

YOUR CONTENTION THAT THE MACHINE OFFERED BY HARNISCHFEGER IS NOT A "HEAVY -DUTY MACHINE," AS REQUIRED BY THE SPECIFICATIONS, IS BASED ON THE GROUNDS THAT "A "HEAVY-DUTY" MACHINE SHOULD NOT NEED THE "ADDITIONAL" COUNTERWEIGHT OF 3,000 LBS.' AND THAT "TRACKS BEING FURNISHED ARE 20 IN. WIDE WHICH ARE CONSIDERED TOO NARROW FOR "HEAVY DUTY" MACHINES.'

AS INDICATED ABOVE, EACH OF THE BIDDERS, INCLUDING YOUR FIRM, OFFERED A MACHINE EQUIPPED WITH A COMBINATION OF TWO OR MORE COUNTERWEIGHTS. ALSO, AS PREVIOUSLY STATED, REGARDLESS OF THE TERMINOLOGY USED IN DESCRIBING THE COUNTERWEIGHTS, WHETHER "ADDITIONAL," "STANDARD," OR OTHERWISE, THE RESULT APPEARS TO BE THE SAME. THE WEIGHT OF THE HARNISCHFEGER MACHINE, WITH THE BASIC COUNTERWEIGHT AND THE ADDITIONAL COUNTERWEIGHT, IS SHOWN AS 45,150 POUNDS AND THE WEIGHT OF YOUR MACHINE, WITH "TWO-PIECE CAST COUNTERWEIGHT," IS SHOWN AS 44,745 POUNDS. SO FAR AS CONCERNS THE TRACK WIDTH OF THE MACHINE OFFERED BY HARNISCHFEGER THE RECORD DOES NOT SHOW, AND YOU DO NOT ALLEGE, THAT THIS WIDTH FAILED TO COMPLY WITH THE ADVERTISED SPECIFICATIONS. MOREOVER, THE GENERAL ACCOUNTING OFFICE HAS CONSISTENTLY ADHERED TO THE PROPOSITION THAT WHETHER EQUIPMENT FURNISHED BY A CONTRACTOR COMPLIES WITH THE ADVERTISED SPECIFICATIONS IS A MATTER FOR ADMINISTRATIVE DETERMINATION. SEE 35 COMP. GEN. 174 AND THE COURT DECISIONS CITED THEREIN. IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY DETERMINATION IS IN ERROR, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY. NO SUCH EVIDENCE HAS BEEN PRESENTED TO JUSTIFY THIS OFFICE IN QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT THE CRANE OFFERED BY HARNISCHFEGER QUALIFIED AS A HEAVY -DUTY MACHINE.

FINALLY, BASED ON YOUR UNDERSTANDING THAT HARNISCHFEGER NOW MANUFACTURES IN THIS COUNTRY A NEWLY DESIGNED CRANE WHICH HAS REPLACED THAT COVERED BY ITS BID, IT IS CONTENDED THAT THE CRANE OFFERED BY HARNISCHFEGER DID NOT QUALIFY AS "THE MANUFACTURER'S LATEST FIELD PROVEN PRODUCTION MODEL.'

THE ADMINISTRATIVE REPORT TO THIS OFFICE NEITHER CONFIRMS NOR DENIES YOUR STATED UNDERSTANDING AND WE, THEREFORE, ASSUME IT IS CORRECT. THE RECORD SHOWS, HOWEVER, THAT HARNISCHFEGER'S BID WAS BASED ON FURNISHING CRANES MANUFACTURED BY KOBE STEEL WORKS, LTD., A JAPANESE FIRM, AS LICENSEE OF HARNISCHFEGER. WHILE WE HAVE NO INFORMATION AS TO WHETHER KOBE STEEL WORKS, LTD., MANUFACTURES A LATER FIELD PROVEN PRODUCTION MODEL THAN THAT COVERED BY HARNISCHFEGER'S BID, IT IS ADMINISTRATIVELY REPORTED THAT "THE PHILIPPINE GOVERNMENT HAS ACCEPTED THIS MODEL AS REPRESENTING THE LATEST FIELD-PROVEN PRODUCTION MODEL FOR ITS INTENDED USE IN THE PHILIPPINES.'

IN THE LIGHT OF THE FOREGOING, EVEN IF THE PROCUREMENT WERE SUBJECT TO THE USUAL STATUTORY REQUIREMENTS, WE PERCEIVE NO BASIS UPON WHICH WE MIGHT PROPERLY QUESTION THE AWARD AS MADE. HOWEVER, IT IS ADMINISTRATIVELY REPORTED THAT THIS PROCUREMENT, MADE BY THE BUREAU OF PUBLIC ROADS UNDER A COOPERATIVE AGREEMENT WITH THE REPUBLIC OF THE PHILIPPINES, WAS FINANCED WITH FUNDS ADVANCED TO THE PHILIPPINE GOVERNMENT BY THE DEVELOPMENT LOAN FUND AND THAT APPROPRIATED FUNDS WERE NOT INVOLVED. IN VIEW THEREOF, EVEN IF THE AWARD TO HARNISCHFEGER WERE QUESTIONABLE AND WITHOUT CONSIDERING, IN SUCH EVENT, THE RESPONSIVENESS OF THE TWO OTHER BIDS IN AMOUNTS LOWER THAN YOURS, IT DOES NOT APPEAR THAT OUR OFFICE PROPERLY COULD QUESTION THE LEGALITY OF THE AWARD MADE.