B-151398, SEP. 13, 1963

B-151398: Sep 13, 1963

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TO KAISER JEEP CORPORATION: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD MADE TO THE STUDEBAKER CORPORATION UNDER INVITATION FOR BIDS NO. DELIVERY OF FOUR UNITS PER WORKING DAY IS TO BE MADE WITHIN THIRTY DAYS AFTER ACCEPTANCE OF THE PILOT MODEL AND PRODUCTION IS TO BE INCREASED WITHIN THE FOLLOWING THIRTY DAYS TO NOT LESS THAN 20 UNITS PER WORKING DAY AND TO CONTINUE AT THAT RATE UNTIL COMPLETION. OR ASSEMBLIES WILL BE PERMITTED EXCEPT BY AMENDMENT TO THE CONTRACT. THAT HE IS BIDDING ON THE LATEST. THE BIDDER SHALL FURNISH PROOF THAT HE CAN AND WILL MEET THE DELIVERY DATES SET FORTH BY THIS BID.'. THE BIDS RECEIVED WERE OPENED ON MARCH 20. THE BID OF STUDEBAKER CORPORATION WAS DETERMINED TO BE LOW.

B-151398, SEP. 13, 1963

TO KAISER JEEP CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD MADE TO THE STUDEBAKER CORPORATION UNDER INVITATION FOR BIDS NO. FPNVM-G-48124 A-3-20- 63 ISSUED BY THE GENERAL SERVICES ADMINISTRATION.

THE INVITATION REQUESTED BIDS FOR FURNISHING 3391 1/2-TON, RIGHT HAND- DRIVE, SIT-STAND-DRIVE, MAIL DELIVERY TRUCKS FOR THE POST OFFICE DEPARTMENT IN ACCORDANCE WITH THE ATTACHED SPECIFICATION POD-T-169 (RE), SEPTEMBER 4, 1962 REVISION, AS MODIFIED. THE GOVERNMENT RESERVED THE RIGHT TO INCREASE THE NUMBER OF TRUCKS SPECIFIED BY NOT MORE THAN 25 PERCENT WITHIN THIRTY DAYS AFTER ACCEPTANCE OF THE PILOT MODEL.

THE SPECIFICATION REQUIRES A PILOT MODEL TO BE AVAILABLE FOR INSPECTION AND EXTENSIVE TESTS WITHIN SIXTY DAYS AFTER NOTICE OF AWARD. DELIVERY OF FOUR UNITS PER WORKING DAY IS TO BE MADE WITHIN THIRTY DAYS AFTER ACCEPTANCE OF THE PILOT MODEL AND PRODUCTION IS TO BE INCREASED WITHIN THE FOLLOWING THIRTY DAYS TO NOT LESS THAN 20 UNITS PER WORKING DAY AND TO CONTINUE AT THAT RATE UNTIL COMPLETION. THE SPECIFICATION FURTHER PROVIDES THAT, AFTER APPROVAL OF THE PILOT MODEL, NO SUBSTITUTIONS OF MATERIALS, COMPONENTS, OR ASSEMBLIES WILL BE PERMITTED EXCEPT BY AMENDMENT TO THE CONTRACT. PARAGRAPHS 3.4 AND 6.2 OF THE SPECIFICATION PROVIDE AS FOLLOWS:

"3.4 BODY - THE VEHICLE BODY SHALL BE INTEGRAL WITH THE CAB. IT MAY BE OF EITHER UNITIZED OR SEPARATE BODY AND CHASSIS FRAME CONSTRUCTION. * *

"6.2 QUALIFICATION AND PROOF BY BIDDER - THE BIDDER SHALL FURNISH PROOF THAT HE HAS BEEN ENGAGED IN THE PRODUCTION OF MOTOR VEHICLES FOR AT LEAST TWO YEARS, AND FURTHER, THAT HE IS BIDDING ON THE LATEST, CURRENT MODEL VEHICLE, EXCEPT AS MODIFIED BY THIS SPECIFICATION. THE BIDDER SHALL FURNISH PROOF THAT HE CAN AND WILL MEET THE DELIVERY DATES SET FORTH BY THIS BID.'

THE BIDS RECEIVED WERE OPENED ON MARCH 20, 1963, AND THE BID OF STUDEBAKER CORPORATION WAS DETERMINED TO BE LOW. KAISER JEEP CORPORATION WAS THE SECOND LOW BIDDER AND A THIRD BID (HIGHER) WAS RECEIVED FROM INTERNATIONAL HARVESTER CORPORATION.

ON PAGE 6 OF ITS BID AND ON FORM FSS-130, REQUIRED TO BE SUBMITTED WITH THE BID, STUDEBAKER STATED THAT THE "CHASSIS" WOULD BE MANUFACTURED AT ITS SOUTH BEND, INDIANA PLANT AND THAT THE ,BODY" WOULD BE MANUFACTURED BY MET PRO, INC., LANSDALE, PENNSYLVANIA. IT WAS ALSO INDICATED THAT THE "BODY" WOULD BE OF UNITIZED CONSTRUCTION REQUIRING NO SEPARATE FRAME. IT WAS FURTHER STATED THAT THE VEHICLE OFFERED WAS ITS MODEL 8E5-FC AND ON PAGE 8 OF THE BID, PERTAINING TO PARTS CATALOGS, STUDEBAKER STATED THAT IT WOULD FURNISH "STUDEBAKER 7E THROUGH 8E TRUCK PARTS CATALOG," "STUDEBAKER PARTS AND ACCESSORIES PRICE LIST-BOOK F," AND "MET PRO, INC. BODY PARTS CATALOG.' IN A STATEMENT ATTACHED TO ITS BID STUDEBAKER STATED, IN PART AS FOLLOWS:

"THE FOLLOWING STATEMENTS ARE MADE IN ACCORDANCE WITH POD-T-169 (RE), REVISED, SEPTEMBER 4, 1962.

"PARAGRAPH 3.12.1 REPAIR PARTS AND SERVICES. A LIST OF OUR ZONE PARTS DEPOTS IS ATTACHED AS AN INDICATION OF OUR ABILITY TO RENDER PROMPT SERVICE FOR SUPPLYING REPAIR PARTS AS MAY BE REQUIRED. THE ULTIMATE DESTINATIONS OF THE VEHICLES ARE NOT KNOWN AS THIS INVITATION PROVIDES "BASING OINT" DESTINATIONS ONLY. HOWEVER, WE BELIEVE THAT WE HAVE SUFFICIENT DEALER REPRESENTATION IN THE TERRITORIES SURROUNDING THOSE BASING POINTS TO RENDER SUCH MAINTENANCE SERVICE AS MAY BE REQUIRED.

"PARAGRAPH 6.2 QUALIFICATION AND PROOF BY BIDDER. WE CERTIFY THAT, WE HAVE BEEN ENGAGED IN THE PRODUCTION OF MOTOR VEHICLES FOR 50 YEARS OR MORE, WE ARE BIDDING ON THE LATEST CURRENT MODEL VEHICLE, EXCEPT AS MODIFIED BY THIS SPECIFICATION, AND, WE ARE ABLE AND WILL MEET THE DELIVERY DATES SET FORTH IN OUR PROPOSAL.'

AFTER THE OPENING OF THE BIDS STUDEBAKER SENT TO THE GENERAL SERVICES ADMINISTRATION A LETTER DATED APRIL 18, 1963 AS FOLLOWS:

"THE ATTACHED INFORMATION, INCLUDING A PICTURE OF OUR 1960 PILOT MODEL STUDEBAKER 5E5-FC 1/2-TON VAN WITH A MONTPELIER UNITIZED BODY, IS FORWARDED FOR YOUR INFORMATION.'

ATTACHED TO SUCH LETTER WERE (1) A SHEET ENTITLED "1960 STUDEBAKER MODEL 5E5-FC AND MODEL 5E10-FC SPECIFICATIONS" (2) CERTAIN PHOTOGRAPHS AND (3) A MEMORANDUM AS FOLLOWS:

"THE FOLLOWING DATA IS SUBMITTED AS BACKGROUND MATERIAL ON STUDEBAKERS' CHOICE OF DESIGN FEATURES IN OFFERING THE POST OFFICE DEPARTMENT A UNITIZED-CONSTRUCTION VAN AS A VEHICLE CONFORMING TO SPECIFICATION POD-T- 169 (RE) AS MODIFIED.

"THERE WERE SEVERAL REASONS FOR THE ORIGINAL CHOICE OF UNITIZED CONSTRUCTION:

1. THE SUBASSEMBLY POWER PACKAGE (ENGINE, RADIATOR, AND TRANSMISSION) COULD BE REMOVED AND REPLACED READILY FOR MAJOR COMPONENT SERVICING. THIS ASSURES A MINIMUM OF VEHICLE DOWNTIME AT MAJOR-OVERHAUL PERIOD.

2. LOWER STEP AND CARGO-LOADING HEIGHTS COULD BE ACHIEVED BY THE ELIMINATION OF CERTAIN REPETITIVE STRUCTURAL COMPONENTS; THAT IS, THE CHASSIS FRAME, AS SUCH, COULD BE DELETED BY THE SUBSTITUTION IN THE BODY OF HEAVIER STRUCTURAL MEMBERS IN PLACE OF THE NORMAL LIGHT-GAUGE BODY SUBFRAME.

"STUDEBAKER'S UNITIZED-CONSTRUCTION, 1/2-TON, VAN CONCEPT WAS DESIGNED IN COOPERATION WITH THE MONTEPELIER MANUFACTURING COMPANY OF MONTPELIER, OHIO, AS A STUDEBAKER 5E5-FC--- OR 1960 MODEL, 1/2-TON, 6 170 ENGINE, FORWARD-CONTROL UNIT. A PILOT MODEL WAS BUILT AND THOROUGHLY TESTED IN THE FALL OF 1959 AS A 1960 MODEL. THIS VEHICLE WAS DISPLAYED AT SEVERAL AUTO-TRUCK SHOWS DURING THAT PERIOD OF TIME. SUBSEQUENTLY THIS BASIC DESIGN WAS PRODUCED BY THE MONTPELIER DIVISION OF WHITE MOTOR COMPANY AS THE "P.D.Q.' MULTISTOP DELIVERY VAN. COMPANIES THAT HAVE PURCHASED THIS VEHICLE CONSIDER IT TO BE THE BEST UNIT IN THEIR FLEETS.

"THE 1963 MODEL 8E5-FC OFFERED TO THE POST OFFICE AS THE 1/2-TON, RHC, SIT-STAND DRIVE VAN IS A CURRENT VERSION OF THE ORIGINAL UNIT, REVISED TO AGREE WITH THE REQUIREMENTS OF POD-T-169 (RE). THE POWER TRAIN, SUSPENSION COMPONENTS, STEERING, AND AXLES ARE EITHER DIRECTLY FROM THE BASIC 1963 MODEL 8E5, 1/2-TON, COMMERCIAL TRUCK OR DERIVATIVES THEREOF.

"THE CURRENT DESIGN OF THE UNITIZED BODY STRUCTURE WAS PURSUED WITH A NEW COMPANY SINCE MONTPELIER WAS NO LONGER IN A POSITION TO WORK DIRECTLY WITH STUDEBAKER. MET-PRO, INC., OF LANSDALE, PENNSYLVANIA, WAS CHOSEN AS A SUBCONTRACTOR FOR THE BODY BECAUSE OF THEIR ENGINEERING AND PRODUCTION KNOWLEDGE GAINED IN SUCCESSFULLY DEVELOPING AND COMPLETING SEVERAL GOVERNMENT CONTRACTS FOR LARGE, UNITIZED, VAN BODIES. THESE SELF- SUPPORTING VANS HOUSE HEAVY COMPONENTS IN THE FORM OF WATER-PURIFICATION UNITS INTENDED FOR USE IN UNDEVELOPED AREAS AND HAVE PROVEN THEIR STRENGTH AND DURABILITY UNDER DIFFICULT SERVICE CONDITIONS OVER THE PAST SEVERAL YEARS.'

IT APPEARS OBVIOUS THAT THE PURPOSE OF THE DATA SUBMITTED WITH THE LETTER OF APRIL 18, PARTICULARLY SINCE IT WAS SPECIFICALLY STATED THAT THE DATA WAS SUBMITTED AS "BACKGROUND TERIAL," WAS TO ACQUAINT THE GENERAL SERVICES ADMINISTRATION WITH THE REASONS WHY IT CHOSE TO OFFER A UNITIZED CONSTRUCTION VEHICLE. FURTHERMORE, SINCE THE LETTER WAS SUBMITTED AFTER THE BID OPENING IT COULD NOT IN ANY WAY MODIFY STUDEBAKER'S BID AS SUBMITTED. STUDEBAKER'S BID OFFERED COMPONENTS FROM ITS 8E5 TRUCK WITH A BODY BY MET-PRO, INC. THE BID WAS NOT BASED UPON A BODY BY MONTPELIER MANUFACTURING COMPANY OR ANY OTHER RELATIONSHIP WITH THAT COMPANY.

THE CONTRACTING OFFICER DETERMINED THAT STUDEBAKER CORPORATION, THE LOW BIDDER, WAS CAPABLE OF PERFORMING THE CONTRACT AND THAT ITS BID WAS OTHERWISE RESPONSIVE TO THE INVITATION AND, THEREFORE, THE AWARD WAS MADE TO THE STUDEBAKER CORPORATION ON APRIL 25, 1963.

YOU PROTESTED THE AWARD MADE TO STUDEBAKER ON THE BASIS THAT THE VEHICLE STUDEBAKER BID ON IS NOT ITS "LATEST, CURRENT MODEL VEHICLE, EXCEPT AS MODIFIED BY THIS SPECIFICATION" AS REQUIRED BY PARAGRAPH 6.2 OF THE SPECIFICATION. IT IS CONCEDED THAT STUDEBAKER HAS BEEN ENGAGED IN THE PRODUCTION OF MOTOR VEHICLES FOR AT LEAST TWO YEARS AND IS OTHERWISE A QUALIFIED BIDDER. HOWEVER, IT IS CONTENDED THAT THE QUOTED PORTION OF PARAGRAPH 6.2 AND OTHER PROVISIONS OF THE SPECIFICATION REQUIRE A VEHICLE WHICH IS A REGULAR COMMERCIAL VEHICLE--- THAT IS A VEHICLE WHICH IS IN REGULAR PRODUCTION AND AVAILABLE FOR SALE THROUGH THE MANUFACTURER'S NORMAL DISTRIBUTION CHANNELS. IN THIS CONNECTION, YOU REFER TO PARAGRAPH 3.12.1 OF THE SPECIFICATION WHICH PROVIDES AS FOLLOWS:

"3.12.1 REPAIR PARTS AND SERVICES.--- AS THE CONTINUOUS OPERATION OF THE TRUCK CONTEMPLATED BY THIS SPECIFICATION IS OF THE UTMOST IMPORTANCE, IT IS NECESSARY THAT THE SUCCESSFUL BIDDER BE IN A POSITION TO RENDER PROMPT SERVICE AND TO FURNISH REPLACEMENT PARTS. ACCORDINGLY, BIDDERS SHALL INDICATE THE EXTENT OF THEIR ABILITY TO RENDER PROMPT SERVICE BY FURNISHING A LIST OF BRANCH OFFICES OR AGENCIES WHERE COMPLETE STOCKS OF REPAIR PARTS ARE MAINTAINED AND CAN BE SECURED WITHIN A REASONABLE TIME AFTER ORDERING BY PART NUMBER FROM PARTS BOOK, AND SUCH DISCOUNTS AS MAY BE QUOTED FROM YEAR TO YEAR BY THE MANUFACTURER OF THE TRUCK PURCHASED UNDER THIS SPECIFICATION.'

IN SUBSTANCE IT APPEARS TO BE YOUR CONTENTION THAT IF STUDEBAKER HAD OFFERED TO MODIFY ITS MODEL E5, WHICH IS A CHASSIS AND BODY TYPE VEHICLE, TO MEET THE REQUIREMENTS OF THE SPECIFICATION THIS WOULD HAVE COMPLIED WITH THE REQUIREMENT AS TO "CURRENT MODEL VEHICLE," BUT THAT BY MODIFYING THE MODEL E5 TO UNITIZED CONSTRUCTION, IN WHICH THE FRAME IS A PART OF THE BODY, IT IS OFFERING A NEW VEHICLE.

IN CONNECTION WITH YOUR PROTEST, THE GENERAL SERVICES ADMINISTRATION REPORTS THAT:

"IT WAS THE POSITION OF THIS OFFICE AT THE TIME OF THE AWARD TO STUDEBAKER AND IT IS STILL OUR POSITION, THAT THE INTENT OF THAT PORTION OF CLAUSE 6.2 WHICH READS "THE BIDDER SHALL FURNISH PROOF THAT HE HAS ENGAGED IN THE PRODUCTION OF MOTOR VEHICLES FOR AT LEAST TWO YEARS' RELATES ONLY TO THE DETERMINATION OF BIDDER "RESPONSIBILITY," AND ON THIS POINT, THERE CAN BE NO QUESTION THAT STUDEBAKER WAS A RESPONSIBLE BIDDER. IT IS NOTED THAT KAISER JEEP CORPORATION DOES NOT QUESTION THIS POSITION.

"FURTHER, IT IS OUR POSITION THAT THE PORTION OF 6.2 WHICH READS "- - THAT HE IS BIDDING ON THE LATEST, CURRENT MODEL VEHICLE, EXCEPT AS MODIFIED BY THIS SPECIFICATION," MEANS PRECISELY THAT, AND STUDEBAKER CERTIFIED THAT IT WAS BIDDING ON THE LATEST CURRENT VEHICLE MODEL (8E5 FC) AS OF DATE OF BID, WHICH WAS IN REGULAR PRODUCTION AND AVAILABLE FOR SALE THROUGH THE MANUFACTURER'S NORMAL DISTRIBUTION CHANNELS, EXCEPT AS MODIFIED TO ACCEPT THE SPECIAL BODY REQUIRED BY THE SPECIFICATION. THIS IS CONFIRMED BY STUDEBAKER'S LETTER OF JULY 29, 1963, COPY ATTACHED.'

A SUBSTANTIAL NUMBER OF VEHICLES ARE INVOLVED, RANGING FROM 3,391 TO 4,238 DEPENDING UPON THE EXTENT TO WHICH THE OPTION IS EXERCISED. THUS IT WOULD APPEAR THAT A MANUFACTURER COULD AFFORD TO MODIFY AN EXISTING MODEL TO A SUBSTANTIAL EXTENT. IN FACT, IT IS REPORTED THAT ANY MANUFACTURER, OTHER THAN THE CURRENT PRODUCER, WOULD BE REQUIRED TO MODIFY EXTENSIVELY ANY COMMERCIAL MODEL TO MEET THE REQUIREMENTS OF SPECIFICATION POD-T-169 (RE). PARAGRAPH 6.2 OF THE SPECIFICATION DOES NOT RESTRICT THE EXTENT TO WHICH A CURRENT MODEL VEHICLE MAY BE MODIFIED, AND PARAGRAPH 3.4 PERMITS EITHER UNITIZED OR SEPARATE BODY AND CHASSIS FRAME CONSTRUCTION.

STUDEBAKER STATED IN THE ATTACHMENTS TO THE LETTER OF APRIL 18, 1963, AND ITS BID INDICATES, THAT THE POWER TRAIN, SUSPENSION COMPONENTS, STEERING, AND AXLES ARE EITHER DIRECTLY FROM ITS BASIC 1963 MODEL 8E5, 1/2-TON, COMMERCIAL TRUCK OR DERIVATIVES THEREOF. THUS IT WOULD APPEAR THAT THE BASIC COMPONENTS, OTHER THAN THE BODY, FOR WHICH SPARE PARTS MUST BE AVAILABLE (PARAGRAPH 3.12.1) ARE COMPONENTS OF A "CURRENT MODEL VEHICLE.' IN THIS CONNECTION, STUDEBAKER STATED IN ITS BID THAT IT WOULD FURNISH "STUDEBAKER 7E THROUGH 8E TRUCK PARTS CATALOG.'

THE RULE IS SETTLED THAT SPECIFICATIONS IN AN ADVERTISED PROCUREMENT MUST BE DRAWN SO AS TO REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT AND, WHERE ARTICLES ARE OFFERED WHICH CONFORM TO SUCH SPECIFICATIONS, AN AWARD MAY BE MADE ONLY TO THE LOWEST RESPONSIBLE BIDDER. WHERE THE CONFORMITY OF AN ARTICLE OFFERED BY A BIDDER TO THE SPECIFICATION REQUIREMENTS INVOLVES A DIFFERENCE OF EXPERT TECHNICAL OPINION, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY'S OPINION IS IN ERROR AND THAT A CONTRACT AWARDED ON THE BASIS OF THE QUESTIONED BID WOULD NOT OBTAIN FOR THE GOVERNMENT THE ARTICLES CALLED FOR BY THE INVITATION AND BID ON BY OTHER BIDDERS.

THE CONTRACTING AGENCY DETERMINED THAT THE STUDEBAKER CORPORATION HAS DEMONSTRATED AN ABILITY TO PRODUCE LIGHT TRUCKS AND OTHER AUTOMOTIVE VEHICLES OVER A PERIOD OF MANY YEARS; THAT STUDEBAKER CORPORATION HAS AGREED TO FURNISH A VEHICLE "AS MODIFIED BY THIS SPECIFICATION" AND THAT THE MODIFICATION OF ITS MODEL 8E5 VEHICLE FROM CHASSIS AND BODY CONSTRUCTION TO UNITIZED CONSTRUCTION AS PERMITTED BY PARAGRAPH 3.4 OF THE SPECIFICATION REPRESENTS A REASONABLE MODIFICATION OF A CURRENT MODEL. WHILE THE LANGUAGE OF PARAGRAPH 6.2 OF THE SPECIFICATION MAY NOT HAVE BEEN AS CLEAR AND DEFINITE AS IS DESIRABLE, WE DO NOT FEEL THAT THE ADMINISTRATIVE INTERPRETATION OF ITS INTENT IS UNREASONABLE. ON THE OTHER HAND, THE STRICT INTERPRETATION CONTENDED FOR BY YOU WOULD RAISE A SERIOUS QUESTION AS TO WHETHER IT WAS NOT UNDULY RESTRICTIVE OF COMPETITION. VIEW OF THE DETERMINATION MADE BY THE CONTRACTING AGENCY AND THE FACT THAT THE SPECIFICATION DOES NOT LIMIT THE EXTENT TO WHICH A CURRENT MODEL VEHICLE MAY BE MODIFIED, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE TO THE STUDEBAKER CORPORATION. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.