B-152968, JUN. 18, 1964

B-152968: Jun 18, 1964

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THAT THE LOW BID WAS REJECTED AS NONRESPONSIVE. THE TECHNICAL PERSONNEL OF THE PROCURING ACTIVITY DETERMINED THAT YOUR CLIENT'S BID WAS NONRESPONSIVE BECAUSE IT OFFERED VEHICLES HAVING AN ENGINE-TRANSMISSION COMBINATION WHICH COULD NOT COMPLY WITH THAT PART OF PARAGRAPH 3.3.11. THE QUESTION AS TO WHETHER THE TECHNICAL PERFORMANCE REQUIREMENTS OF SPECIFICATIONS ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE PROCURING ACTIVITY. ARE NOT ORDINARILY CONSIDERED TO BE WITHIN THE JURISDICTION OF THIS OFFICE. WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION.

B-152968, JUN. 18, 1964

TO AMRAM, HAHN AND SUNDLUN:

IN YOUR TELEGRAMS OF NOVEMBER 26 AND DECEMBER 10, 1963, AND LETTERS OF MARCH 2 AND APRIL 21, 1964, IN BEHALF OF G-Z PRODUCTS, INC., YOU PROTEST THE REJECTION OF THAT COMPANY'S BID UNDER INVITATION FOR BIDS NO. FPNMV-G- 50142-A-8-26-63 (9-3-63) ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, FOR 5,131 3-WHEELED, 1/4-TON MAIL DELIVERY TRUCKS FOR THE POST OFFICE DEPARTMENT.

THE RECORD ESTABLISHES THAT YOUR CLIENT SUBMITTED THE SECOND LOW BID OF SEVEN BIDS RECEIVED, AND THAT THE LOW BID WAS REJECTED AS NONRESPONSIVE. FURTHER, AFTER EVALUATING THE DATA YOUR CLIENT HAD SUBMITTED, THE TECHNICAL PERSONNEL OF THE PROCURING ACTIVITY DETERMINED THAT YOUR CLIENT'S BID WAS NONRESPONSIVE BECAUSE IT OFFERED VEHICLES HAVING AN ENGINE-TRANSMISSION COMBINATION WHICH COULD NOT COMPLY WITH THAT PART OF PARAGRAPH 3.3.11, TRANSMISSION, OF THE ADVERTISED SPECIFICATIONS WHICH READS AS FOLLOWS:

"3.3.11 TRANSMISSION.--- THE GEAR RATIOS SHALL BE SUCH THAT, WHEN SHIFTING FROM A LOWER TO A HIGHER GEAR, THE MAXIMUM ENGINE SPEED SHALL NOT BE EXCEEDED IN THE LOWER GEAR, NOR SHALL THE ENGINE SPEED FALL BELOW THE PEAK TORQUE R.P.M. IN THE HIGHER GEAR.'

THE QUESTION AS TO WHETHER THE TECHNICAL PERFORMANCE REQUIREMENTS OF SPECIFICATIONS ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, AND THE QUESTION AS TO THE MATERIALITY OF THE DIFFERENCES BETWEEN YOUR CLIENT'S PRODUCT AND THE ONE CALLED FOR IN THE SPECIFICATIONS, ARE NOT ORDINARILY CONSIDERED TO BE WITHIN THE JURISDICTION OF THIS OFFICE. IN OUR DECISION, B-139830, DATED AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * *

IN THIS REGARD, WE HELD IN OUR DECISION, B-143389, DATED AUGUST 26, 1960, AS FOLLOWS:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

" "IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *"

IN THE INSTANT CASE WE HAVE RECEIVED REPORTS DATED JANUARY 13 AND MAY 8, 1964, FROM THE GENERAL SERVICES ADMINISTRATION WHICH REFUTE G Z'S CONTENTIONS AND APPEAR TO ESTABLISH AN ADEQUATE BASIS FOR THE ADMINISTRATIVE DETERMINATION. ON MAY 18, 1964, TO AFFORD YOU AN OPPORTUNITY TO PRESENT ANY EVIDENCE TO THE CONTRARY, WE FURNISHED YOU WITH COPIES OF THESE REPORTS. IT IS OUR PRESENT UNDERSTANDING THAT NO SUCH EVIDENCE WILL BE SUBMITTED.

UNDER THE CIRCUMSTANCES, AND IN VIEW OF THE FACTS REPORTED IN THIS CASE, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ADMINISTRATIVE ACTION.

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