B-149684, NOV. 16, 1962

B-149684: Nov 16, 1962

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TO SPRAGUE ENGINEERING CORPORATION: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD MADE TO PALMER ELECTRIC MANUFACTURING COMPANY UNDER INVITATION FOR BIDS NO. 04 606 -63-12. DESCRIBED THE TYPE OF ENGINE WHICH WAS REQUIRED TO BE FURNISHED AS A COMPONENT OF THE GENERATOR SETS AND PROVIDED AS FOLLOWS: "4. THE INVITATION ALSO CONTAINED CERTAIN SPECIAL INSTRUCTIONS TO BIDDERS AMONG WHICH WAS THE FOLLOWING: "BIDDER'S QUALIFICATION: CONSIDERATION FOR AWARD OF THIS CONTRACT WILL BE LIMITED TO BIDDERS WHO. ARE REGULARLY ENGAGED IN THE BUSINESS OF MANUFACTURE AND FINAL ASSEMBLY OF GENERATOR SETS. MUST HAVE MANUFACTURED UNITS WITHIN THE PAST 12 MONTHS COMPARABLE IN COMPLEXITY TO THE ITEMS INCLUDED IN THIS INVITATION.

B-149684, NOV. 16, 1962

TO SPRAGUE ENGINEERING CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD MADE TO PALMER ELECTRIC MANUFACTURING COMPANY UNDER INVITATION FOR BIDS NO. 04 606 -63-12, ISSUED BY MCCLELLAN AIR FORCE BASE, CALIFORNIA.

THE INVITATION REQUESTED BIDS FOR FURNISHING 10 GENERATOR SETS DESCRIBED THEREIN AS 20KW ELECTRIC POWER PLANT, TRAILER MOUNTED, IN ACCORDANCE WITH ATTACHED EXHIBIT SMNRS 62-11, TOGETHER WITH CERTAIN TECHNICAL, ENGINEERING AND OTHER DATA. THE EXHIBIT, WHICH CONSTITUTED THE SPECIFICATION FOR THE GENERATOR SETS, ON PAGE 6, SECTION II, PARAGRAPH 4, DESCRIBED THE TYPE OF ENGINE WHICH WAS REQUIRED TO BE FURNISHED AS A COMPONENT OF THE GENERATOR SETS AND PROVIDED AS FOLLOWS:

"4. ENGINE: THE ENGINE SHALL BE AN INDUSTRIAL, INTERNAL COMBUSTION, LIQUID COOLED, TWO-OR FOUR-CYCLE, THREE OR MORE CYLINDERS; COMPRESSION IGNITION TYPE DIESEL ENGINE, DESIGNED FOR USE WITH NR 2 DIESEL FUEL OIL CONFORMING TO FEDERAL SPECIFICATION VV-F-800, GRADE DF 2, AND WITH LUBRICATING OIL CONFORMING TO MILITARY SPECIFICATION MIL-L 2104. THE ENGINE MAY BE EITHER NATURALLY ASPIRATED, SCAVENGED OR SUPERCHARGED. THE ENGINE, ITS COMPONENTS, AND ACCESSORIES SHALL BE THE STANDARD PRODUCT OF THE MANUFACTURER AND SHALL BE OF A TYPE, DESIGN AND FORM THAT, PRIOR TO THE OPENING OF BIDS, HAS HAD A MINIMUM OF 8000 HOURS ACCUMULATED SERVICE WITHOUT A MALFUNCTION CONSIDERED MAJOR IN THE OPINION OF THE CONTRACTING OFFICER. CERTIFICATION SHOWING CONFORMANCE TO THE ABOVE SPECIFIED MINIMUM ACCUMULATED SERVICE SHALL BE SUBMITTED TO THE CONTRACTING OFFICER AS PART OF THE BID PACKAGE. THIS CERTIFICATION SHALL INCLUDE MODEL NUMBER OF ENGINE, STATEMENT THAT ENGINE CONFORMS TO ALL REQUIREMENTS OF THE SPECIFICATION, AND A LIST OF INSTALLATIONS AND USERS OF THE ENGINE.'

THE INVITATION ALSO CONTAINED CERTAIN SPECIAL INSTRUCTIONS TO BIDDERS AMONG WHICH WAS THE FOLLOWING:

"BIDDER'S QUALIFICATION:

CONSIDERATION FOR AWARD OF THIS CONTRACT WILL BE LIMITED TO BIDDERS WHO, ON THE DATE OF THE OPENING OF BIDS, ARE REGULARLY ENGAGED IN THE BUSINESS OF MANUFACTURE AND FINAL ASSEMBLY OF GENERATOR SETS, AND MUST HAVE MANUFACTURED UNITS WITHIN THE PAST 12 MONTHS COMPARABLE IN COMPLEXITY TO THE ITEMS INCLUDED IN THIS INVITATION. THIS CONTRACT WILL NOT BE AWARDED TO ANY CONTRACTOR WHO HAS ESTABLISHED ON FORMER CONTRACTS, EITHER GOVERNMENT OR "COMMERCIAL," IN THE PAST TWO YEARS, A RECORD OF UNSATISFACTORY PERFORMANCE OR WHO HAS FAILED TO COMPLETE CONTRACTS OF SIMILAR CHARACTER AND EXTENT AWARDED HIM WITHIN THE CONTRACT TIME. BIDDER'S ARE REQUIRED TO FURNISH WITH THEIR BIDS THE FOLLOWING INFORMATION:

"B. INFORMATION REQUIRED BY EXHIBIT SMNRS 62-11 DATED 14 JUNE 1962, PAGE 6, SECTION II, PART 4.

"BIDS RECEIVED WHICH DO NOT CONTAIN THE ABOVE INFORMATION MAY BE REJECTED. THE CONTRACTING OFFICER'S DETERMINATION AS THE ADEQUACY OF THE BIDDER'S QUALIFICATION AS SUPPORTED BY THE ABOVE FACTS, OR SUCH ADDITIONAL INQUIRY AS MAY BE MADE TO VERIFY BIDDER'S QUALIFICATIONS, SHALL BE FINAL. THE FACT THAT AN INVITATION FOR BID MAY HAVE BEEN FURNISHED THE BIDDER DOES NOT LIMIT THE CONTRACTING OFFICER'S AUTHORITY TO DETERMINE THE BIDDER'S QUALIFICATIONS AFTER RECEIPT AND OPENING OF BIDS.'

THE THREE BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE OPENED ON JULY 26, 1962. PALMER ELECTRIC MANUFACTURING COMPANY SUBMITTED THE LOW BID OF $15,990 PER GENERATOR SET. STEWART AND STEVENSON SERVICES, INCORPORATED, QUOTED A PRICE OF $18,750 PER GENERATOR SET. YOUR BID WAS IN THE AMOUNT OF $21,237 PER GENERATOR SET.

PALMER ELECTRIC MANUFACTURING COMPANY SUBMITTED WITH ITS BID A LETTER DATED JULY 25, 1962, SETTING FORTH BIDDER'S QUALIFICATION DATA AND CONCLUDED BY STATING "THE REQUIRED CERTIFICATION FOR THE ENGINE MANUFACTURER IS ATTACHED.' THIS REFERRED TO A LETTER DATED JULY 23, 1962, TO PALMER FROM THE CONTINENTAL MOTORS CORPORATION, THE MANUFACTURER OF THE ENGINE PROPOSED TO BE USED BY IT, WHEREIN THERE WAS GIVEN THE MODEL NUMBER, DESCRIPTION OF THE ENGINE, AND A STATEMENT THAT THE ENGINE HAS BEEN QUALIFIED BY THE ARMY CORPS OF ENGINEERS AND PLACED ON THE QUALIFIED PRODUCTS LIST UNDER MILITARY SPECIFICATION MIL E-11276. IN ADDITION, THE LETTER STATED:

"* * * TYPICAL INSTALLATIONS AND USERS ARE AS FOLLOWS:

AIR COMPRESSORS INGERSOLL-RAND COMPANY

WORTHINGTON CORPORATION

PUMP APPLICATIONS JOHNSTON PUMP COMPANY

GENERATOR APPLICATIONS PALMER ELECTRIC MFG. CO.

HARNISCHFEGER CORPORATION

KATOLIGHT CORPORATION

U.S. MOTORS CORPORATION

FARM TRACTORS INTERNATIONAL HARVESTER CORP.'

YOUR COMPLAINT IS THAT THE LETTER DOES NOT CONTAIN A SPECIFIC CERTIFICATION THAT THE ENGINE HAS A MINIMUM OF 8,000 HOURS OF ACCUMULATED SERVICE WITHOUT MAJOR MALFUNCTION, AND THAT THE CONTRACTING OFFICER WENT BEYOND THE MANUFACTURERS NAMED IN THE LETTER TO FIND FINAL PURCHASERS OF THE ENGINE WHO COULD VERIFY THE 8,000-HOUR OPERATION REQUIREMENT. THE CONTRACTING OFFICER DETERMINED THAT THE FAILURE OF PALMER TO SPECIFY IN ITS BID THE NAMES OF INDIVIDUAL USERS OF THE ENGINE, FROM WHOM IT COULD BE VERIFIED THAT THE ENGINE MET THE 8,000 HOURS OPERATION REQUIREMENT OF THE SPECIFICATIONS, WAS A MINOR INFORMALITY AND PROCEEDED TO OBTAIN VERIFICATION FROM ULTIMATE USERS TO WHOM IT WAS REFERRED BY ONE OR MORE OF THE USER-MANUFACTURERS NAMED IN THE CONTINENTAL MOTORS LETTER. AFTER VERIFICATION OF THE QUALIFICATIONS OF THE BIDDER AND ASCERTAINING FROM TWO ULTIMATE USERS OF THE GD 193 ENGINE, OTHER THAN MANUFACTURERS OF EQUIPMENTS, NAMELY, THE CALIFORNIA STATE DIVISION OF HIGHWAYS, INDEPENDENCE, CALIFORNIA, AND TIDELAND SPECIALTY COMPANY, HOUSTON, TEXAS, THAT THE ENGINE MET THE 8,000 HOURS OPERATIONAL REQUIREMENT OF THE SPECIFICATION, THE AWARD WAS MADE TO THE PALMER ELECTRIC MANUFACTURING COMPANY.

IN YOUR PROTEST AGAINST THE ACTION TAKEN BY THE CONTRACTING OFFICER, IN YOUR LETTER DATED AUGUST 23, 1962, YOU CHARGE THAT IT WAS IN VIOLATION OF ASPR 2-404.2 (D) (V), WHICH PROVIDES, IN PART, AS FOLLOWS:

"/D) ORDINARILY, A BID SHOULD BE REJECTED WHERE THE BIDDER ATTEMPTS TO IMPOSE CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT, SINCE TO ALLOW THE BIDDER TO IMPOSE SUCH CONDITIONS WOULD BE PREJUDICIAL TO OTHER BIDDERS. FOR EXAMPLE, BIDS SHALL BE REJECTED IN WHICH THE BIDDER---

"/V) REQUIRES THAT GOVERNMENT IS TO DETERMINE THAT BIDDER'S PRODUCT MEETS GOVERNMENT SPECIFICATION; OR * * *.'

ASPR 2-405 PROVIDES THAT THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID OR WAIVE ANY SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT. A MINOR INFORMALITY OR IRREGULARITY IS DEFINED THEREIN AS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION, NOT AFFECTING PRICE, QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. ALSO SEE 17 COMP. GEN. 554; 30 COMP. GEN. 179.

WE CANNOT AGREE WITH YOUR STRICT INTERPRETATION OF THE REQUIREMENTS STATED IN THE INVITATION, OR OF THE ASPR PROVISION CITED. THE ORIGINAL LETTER OF THE CONTINENTAL MOTORS CORPORATION INCLUDES EXACTLY WHAT WAS CALLED FOR IN PARAGRAPH 4 OF THE SPECIFICATIONS, NAMELY,"MODEL NUMBER OF ENGINE, STATEMENT THAT ENGINE CONFORMS TO ALL REQUIREMENTS OF THE SPECIFICATION, AND A LIST OF INSTALLATIONS AND USERS OF THE ENGINE.' EVEN IF NO INSTALLATIONS OR USERS HAD BEEN REFERENCED EXCEPT INSTALLATIONS IN TRUCKS MANUFACTURED BY INTERNATIONAL HARVESTER CORPORATION WE WOULD CONSIDER THAT AS IN COMPLIANCE WITH THE REQUIREMENT STATED, AND SEE NO REASON WHY A STATEMENT FROM THAT CORPORATION THAT IT HAD RECORDS OR KNOWLEDGE OF SATISFACTORY OPERATION OF ONE OR MORE TRUCKS USING SUCH ENGINES FOR THE STIPULATED TIME COULD NOT BE ACCEPTED AS ADEQUATE EVIDENCE OF COMPLIANCE OF THE ENGINE WITH THE SPECIFICATION, IF SUCH A STATEMENT COULD HAVE BEEN FURNISHED. IN GOING FURTHER AND CHECKING WITH ULTIMATE USERS THE CONTRACTING OFFICER WAS EXERCISING COMMENDABLE DILIGENCE, BUT WE CANNOT AGREE THAT THE FAILURE OF THE BIDDER TO FURNISH THE NAME OF ULTIMATE USERS AS A PART OF HIS "BID PACKAGE" WAS SUCH A DEFECT AS CONTEMPLATED BY ASPR 2-404.2 (D) (V).

IN OUR VIEW THE SECTION REFERRED TO WAS DESIGNED TO APPLY TO THE SITUATION WHERE, IN THE FACE OF A COMPLETE AND DEFINITE SPECIFICATION, A BIDDER OFFERS A PARTICULAR ARTICLE, BY BRAND NAME OR MODEL NUMBER OR OTHER GENERAL DEFINITION, WITHOUT EITHER REPRESENTING THAT IT DOES MEET THE SPECIFICATION OR OTHERWISE OBLIGATING HIMSELF TO FURNISH AN ARTICLE WHICH WILL. IN THE SUBJECT INVITATION THE GOVERNMENT ITSELF RESERVED THE RIGHT TO DETERMINE BEFORE AWARD THAT THE ITEMS OFFERED WOULD MEET THE SPECIFICATIONS, AND PRESCRIBED EXACTLY WHAT INFORMATION THE BIDDERS WERE REQUIRED TO FURNISH IN ORDER TO ENABLE THE GOVERNMENT'S OFFICERS TO MAKE THAT DETERMINATION. THIS WAS CLEARLY IN CONFORMITY WITH ASPR 2-202.5, WHICH AUTHORIZES THE REQUIREMENT OF DESCRIPTIVE LITERATURE, AS THEREIN DEFINED, WHEN, AND ONLY WHEN, THE PURCHASING AGENCY DEEMS IT TO BE NEEDED ,TO ENABLE IT TO DETERMINE * * * WHETHER THE PRODUCTS OFFERED MEET THE SPECIFICATION REQUIREMENTS * * * AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH.'

WE AGREE WITH THE CONTRACTING OFFICER'S CONCLUSION THAT THE INFORMATION FURNISHED WITH THE PALMER BID WAS SUFFICIENT TO MEET THE PURPOSES FOR WHICH SUCH INFORMATION IS AUTHORIZED TO BE REQUIRED. WE HAVE HELD THAT A BID SHOULD NOT BE REJECTED ON A PURELY TECHNICAL OR OVER-LITERAL READING OF AN INVITATION REQUIREMENT, AND THAT, IF THE PURPOSE OF THE REQUIREMENT IS REASONABLY CLEAR AND IS SUBSTANTIALLY MET BY THE BIDDER, DEFICIENCIES MERELY OF FORM DO NOT JUSTIFY REJECTION. 39 COMP. GEN. 595.

FOR THE FOREGOING REASONS WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE TO PALMER ELECTRIC MANUFACTURING COMPANY.