B-150327, NOV. 30, 1962

B-150327: Nov 30, 1962

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S.A.: REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED NOVEMBER 20 AND 21. SEVERAL BIDS WERE RECEIVED FOR THE 40-TON CAPACITY TRUCK CRANE AND YOUR BID WAS IN THE AMOUNT OF $71. THE NEXT LOWEST BID WAS SUBMITTED BY LINK-BELT SPEEDER TOTALING $73. THE THIRD LOWEST BID WAS SUBMITTED BY THE THEW SHOVEL COMPANY IN THE TOTAL AMOUNT OF $73. YOUR BID WAS PROPOSED FOR REJECTION BECAUSE THE CRANE POWER UNIT OF YOUR OFFERED MODEL DID NOT APPEAR TO MEET THE REQUIREMENT OF THE ADVERTISED SPECIFICATIONS THAT THE POWER UNIT BE AN INDUSTRIAL-TYPE DIESEL ENGINE DEVELOPING NOT LESS THAN 100 NET BRAKE HORSEPOWER (N.B.H.P.). THE SECOND LOWEST BID WAS PROPOSED FOR REJECTION BECAUSE THE BID PRICE WAS CONTINGENT UPON DELIVERY OF ALL 11 UNITS OF ITEMS NOS. 1 AND 2.

B-150327, NOV. 30, 1962

TO KOEHRING OVERSEAS CORPORATION, S.A.:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED NOVEMBER 20 AND 21, 1962, RESPECTIVELY, PROTESTING A RECOMMENDED REJECTION OF YOUR BID ON ITEM NO. 2 OF INVITATION FOR BIDS NO. 63-7, ISSUED ON JULY 10, 1962, BY THE BUREAU OF PUBLIC ROADS, DEPARTMENT OF COMMERCE, ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES. THE INVITATION REQUESTED BIDS ON TEN 25-TON TRUCK- TYPE CRANES (ITEM NO. 1), AND ON ONE 40-TON TRUCK TYPE CRANE (ITEM NO. 2). SEVERAL BIDS WERE RECEIVED FOR THE 40-TON CAPACITY TRUCK CRANE AND YOUR BID WAS IN THE AMOUNT OF $71,455, INCLUDING SERVICES. THE NEXT LOWEST BID WAS SUBMITTED BY LINK-BELT SPEEDER TOTALING $73,473.16, AND THE THIRD LOWEST BID WAS SUBMITTED BY THE THEW SHOVEL COMPANY IN THE TOTAL AMOUNT OF $73,584.

YOUR BID WAS PROPOSED FOR REJECTION BECAUSE THE CRANE POWER UNIT OF YOUR OFFERED MODEL DID NOT APPEAR TO MEET THE REQUIREMENT OF THE ADVERTISED SPECIFICATIONS THAT THE POWER UNIT BE AN INDUSTRIAL-TYPE DIESEL ENGINE DEVELOPING NOT LESS THAN 100 NET BRAKE HORSEPOWER (N.B.H.P.) AT FLYWHEEL AT RATED REVOLUTIONS PER MINUTE (R.P.M.) AT SEA LEVEL AND 60 DEGREES F. THE SECOND LOWEST BID WAS PROPOSED FOR REJECTION BECAUSE THE BID PRICE WAS CONTINGENT UPON DELIVERY OF ALL 11 UNITS OF ITEMS NOS. 1 AND 2, AND THE BIDDING RESULTS DISCLOSED THAT IT WOULD NOT BE ADVANTAGEOUS TO THE REPUBLIC OF THE PHILIPPINES TO MAKE AN AWARD ON AN ALL-OR-NONE BASIS. THE BUREAU OF PUBLIC ROADS DETERMINED THAT THE THIRD LOWEST BID MET THE ADVERTISED SPECIFICATIONS AND THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS.

IN THE POWER SHOVEL QUESTIONNAIRE FORM SUBMITTED WITH YOUR BID YOU STATED THAT YOUR R.P.M. (GOVERNED SPEED) FOR THE MODEL OFFERED WAS 1500 R.P.M. AND THAT ITS B.HP. (GOVERNED SPEED) WAS 98 HP. THE MANUFACTURER'S DESCRIPTIVE BROCHURE SUBMITTED WITH THE BID INDICATED THREE CURVES FOR RATED B.HP. THE CHART FURTHER STATES THAT PERFORMANCE GUARANTEED WITHIN 5 PERCENT. ONE OF THE THREE CURVES IN THE CHART SHOWS THAT WITH THE USE OF HV6 INJECTORS THE ENGINE WOULD DEVELOP 93 B.HP. AT THE RATED 1500 R.P.M. SPECIFIED IN THE QUESTIONNAIRE. ADDING 5 PERCENT TO THAT FIGURE THE N.B.HP. DEVELOPED AT 1500 R.P.M. WOULD BE 98 B.HP., WHICH AGREES WITH THE EXCEPTION TO SPECIFICATIONS AS STATED AFTER THE DESCRIPTION OF THE POWER UNIT OF YOUR MODEL 445 TRUCK CRANE, SUBMITTED WITH AND MADE A PART OF YOUR BID.

WE ARE ADVISED BY THE BUREAU OF PUBLIC ROADS THAT YOUR FIRST PROTEST WAS BASED UPON AN ALLEGEDLY INTENDED USE OF HV7 INJECTORS WHICH WOULD ENABLE THE POWER UNIT TO DEVELOP ABOUT 108 N.B.HP. AT FLYWHEEL WHEN OPERATING AT A GOVERNED SPEED OF 1500 R.P.M. WHEN THIS PROTEST WAS REJECTED THE BASIS FOR PROTEST WAS CHANGED TO A MISINTERPRETATION OF SPECIFICATIONS OR AN ERROR ON YOUR PART IN STATING THAT THE POWER UNIT OF THE CRANE DEVELOPS "98 NBHP AT FLYWHEEL AT RATED RPM AND AT SEA LEVEL AND 60 DEGREES F.'

IN YOUR LETTER OF NOVEMBER 21, 1962, IT IS ARGUED THAT OTHER DATA SHOWN IN THE EXECUTED QUESTIONNAIRE FORM DISCLOSES AN INTENTION ON YOUR PART TO FURNISH A CRANE ENGINE WITH HV7 INJECTORS; AND THAT, IN ANY EVENT, THE SPECIFICATION COULD BE MET WITH THE USE OF EITHER HV6 OR HV7 INJECTORS SINCE THE MAXIMUM RATED SPEED OF THE ENGINE IS 2100 R.P.M. AND AT SUCH SPEED THE N.B.HP. DEVELOPED WOULD BE IN THE CASE OF THE USE OF THE HV6 INJECTORS 118 N.B.HP. AND IN THE CASE OF THE USE OF HV7 INJECTORS IT WOULD BE INCREASED TO 138 N.B.HP.

ON THE FIRST POINT, YOU REFER TO THE INSERTION IN THE QUESTIONNAIRE FORM OF THE MAXIMUM TORQUE FIGURE OF 343 AT 1450 R.P.M., AND TO THE MANUFACTURER'S ENGINE PERFORMANCE CURVES INDICATING THAT A TORQUE OF LESS THAN 343 "LBS.FT., WOULD BE OBTAINED WHEN THE ENGINE WAS OPERATING WITH HV6 INJECTORS AT 1450 R.P.M.

ON THE SECOND POINT, YOU HAVE FURNISHED NO INFORMATION AS TO WHETHER IT IS CUSTOMARY TO USE THE MANUFACTURER'S RATED MAXIMUM SPEED OF THE ENGINE, INSTEAD OF THE RATED GOVERNED SPEED OF SAME, WHEN DETERMINING COMPLIANCE WITH SPECIFICATIONS FOR AN ITEM OF EQUIPMENT WITH WHICH THE ENGINE IS TO BE USED. THE BUREAU OF PUBLIC ROADS HAS TAKEN THE POSITION THAT THE WORDS "RATED RPM" AS USED IN THE ADVERTISED SPECIFICATIONS CLEARLY WERE MEANT TO RELATE TO THE SPEED AT WHICH A MANUFACTURER RATES AN ENGINE FOR A SPECIFIC APPLICATION FOR MOST EFFECTIVE OPERATION. THIS VIEW OF THE MATTER REPORTEDLY HAS BEEN CORROBORATED BY REPRESENTATIVES OF TWO DIESEL ENGINE PRODUCERS AND IT IS APPARENT THAT THE BIDDERS IN THIS CASE WERE NOT MISLED BY ANY FAILURE OF THE ADVERTISED SPECIFICATIONS TO CLARIFY THE INTENT AND PURPOSES OF THE REQUIREMENT FOR DEVELOPMENT OF A MINIMUM OF 100 N.B.HP. AT THE FLYWHEEL OF THE CRANE ENGINE. WE NOTE THAT YOU DID NOT RAISE ANY QUESTION AS TO THE INTERPRETATION OF THE SPECIFICATIONS UNTIL AFTER YOUR PROTESTS ON OTHER GROUNDS, INCLUDING AN ALLEGED MISTAKE IN BID, HAD BEEN REJECTED BY THE BUREAU OF PUBLIC ROADS.

WE DOUBT THAT YOU CONTEMPLATED THE FURNISHING OF AN ENGINE EQUIPPED WITH HV7 INJECTORS MERELY BECAUSE OF THE TORQUE FIGURE INSERTED IN THE QUESTIONNAIRE FORM, PARTICULARLY SINCE THERE IS A DECIDEDLY CLOSE RELATIONSHIP BETWEEN THE N.B.HP. PERFORMANCE RATING OF THE ENGINE WHEN OPERATING AT 1500 R.P.M. AND THE 98 N.B.HP. FIGURE USED WHEN YOU STATED AN EXCEPTION TO THE ADVERTISED SPECIFICATIONS WHICH, INCIDENTALLY, DO NOT APPEAR TO REQUIRE A SPECIFIC TORQUE RATING FOR THE ENGINE. THE MAXIMUM TORQUE FIGURE OF 343 AT 1450 R.P.M. MAY BE EVIDENCE OF MISTAKE IN BID BUT WE DO NOT AGREE THAT SUCH A MISTAKE WOULD CONSTITUTE A BASIS FOR PERMITTING A CORRECTION IN THE BID.

IN OUR OPINION, IF YOU WERE PERMITTED TO CHANGE YOUR BID SO AS TO CLARIFY YOUR ALLEGED INTENTION TO FURNISH A CRANE EQUIPPED WITH A POWER UNIT USING HV7 INJECTORS, THIS WOULD BE CONTRARY TO THE ESTABLISHED RULE THAT A BID RECEIVED IN RESPONSE TO A FORMAL ADVERTISEMENT FOR BIDS CANNOT BE CHANGED AFTER BIDS ARE OPENED.

AS THE CONTRACTING OFFICER HAS DETERMINED IN THIS CASE, A CLARIFICATION OR CHANGE IN YOUR BID, IF PERMITTED, WOULD CREATE A SITUATION WHERE YOU WOULD BE GRANTED IN EFFECT A SECOND CHANCE TO BID AFTER BIDS ARE OPENED. WE HAVE CONSISTENTLY HELD THAT, IF A BID IS SO PREPARED AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS, ANY NEGOTIATIONS WITH THE BIDDER TO CLARIFY SUCH INTENTION WOULD BE OBJECTIONABLE AS IN VIOLATION OF THE STATUTES GOVERNING THE LETTING OF GOVERNMENT CONTRACTS AFTER FORMAL ADVERTISING. SEE 34 COMP. GEN. 82, 84; 35 ID. 33, 38; AND 36 ID. 705, 707.

IN THE CIRCUMSTANCES WE ARE REQUIRED TO CONCLUDE THAT THE PROPOSED REJECTION OF YOUR BID IS PROPER. ACCORDINGLY, YOUR PROTEST TO OUR OFFICE IN THE MATTER MUST BE DENIED.