B-156438, MAY 18, 1965, 44 COMP. GEN. 732

B-156438: May 18, 1965

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CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - CERTIFICATION OF COMPLIANCE A REQUIREMENT INCORPORATED IN AN INVITATION FOR A DIESEL TRACTOR THAT BIDDERS CERTIFY THAT THE TRACTOR WILL BE SUITABLE FOR THE WORK TO BE PERFORMED WHEN CONSIDERED WITH THE INSPECTION CLAUSE PROVIDING FOR INSPECTION AND TESTING PRIOR TO ACCEPTANCE IS A REQUIREMENT THAT AMOUNTS TO AN EXPRESS WARRANTY GIVING THE GOVERNMENT A RIGHT TO HOLD THE CONTRACTOR AFTER ACCEPTANCE SO THAT SUCH A CERTIFICATION REQUIREMENT MUST BE CONSIDERED A MATERIAL PROVISION THAT CANNOT BE WAIVED BY THE CONTRACTING OFFICER. THE BIDS OF THE TWO LOW BIDDERS WHO DID NOT FURNISH THE REQUIRED CERTIFICATION MUST BE CONSIDERED NONRESPONSIVE AND AWARD TO THE THIRD LOW BIDDER WHO FURNISHED THE NECESSARY CERTIFICATION IS PROPER.

B-156438, MAY 18, 1965, 44 COMP. GEN. 732

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - CERTIFICATION OF COMPLIANCE A REQUIREMENT INCORPORATED IN AN INVITATION FOR A DIESEL TRACTOR THAT BIDDERS CERTIFY THAT THE TRACTOR WILL BE SUITABLE FOR THE WORK TO BE PERFORMED WHEN CONSIDERED WITH THE INSPECTION CLAUSE PROVIDING FOR INSPECTION AND TESTING PRIOR TO ACCEPTANCE IS A REQUIREMENT THAT AMOUNTS TO AN EXPRESS WARRANTY GIVING THE GOVERNMENT A RIGHT TO HOLD THE CONTRACTOR AFTER ACCEPTANCE SO THAT SUCH A CERTIFICATION REQUIREMENT MUST BE CONSIDERED A MATERIAL PROVISION THAT CANNOT BE WAIVED BY THE CONTRACTING OFFICER, AND, THEREFORE, THE BIDS OF THE TWO LOW BIDDERS WHO DID NOT FURNISH THE REQUIRED CERTIFICATION MUST BE CONSIDERED NONRESPONSIVE AND AWARD TO THE THIRD LOW BIDDER WHO FURNISHED THE NECESSARY CERTIFICATION IS PROPER.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, MAY 18, 1965:

BY LETTER OF APRIL 30, 1965, IM-260, THE DIRECTOR OF THE INSTALLATION AND MATERIEL SERVICE, FURNISHED US A REPORT ON THE PROTEST OF HAWAIIAN EQUIPMENT COMPANY, LTD., AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION PC53-5-22, ISSUED BY THE FEDERAL AVIATION AGENCY PACIFIC REGIONAL OFFICE, IN ACCORDANCE WITH THE REQUEST CONTAINED IN OUR LETTER OF APRIL 5, 1965.

THE INVITATION SOLICITED BIDS TO BE OPENED FEBRUARY 17, 1965, FOR FURNISHING A DIESEL ENGINE-DRIVEN, LOW SPEED, FULL-TRACKED TRACTOR, WITH BULLDOZER AND DOZER CONTROL, IN ACCORDANCE WITH INTERIM FEDERAL SPECIFICATION KKK-T-00631A (GSA-FSS), AS AMENDED OCTOBER 10, 1962. THIS SPECIFICATION PROVIDES, INSOFAR AS IS HERE MATERIAL, THAT THE TRACTOR AND ALLIED EQUIPMENT SHALL BE CAPABLE OF FUNCTIONING RELIABLY AND EFFICIENTLY IN SUSTAINED OPERATION; THAT THE TRACTOR AND ALL PARTS THEREOF SHALL BE MADE OF MATERIALS WHICH HAVE BEEN TREATED TO RESIST RUST, CORROSION AND WATER, AND ARE SUITABLE FOR THE INTENDED SERVICE; THAT THE TRACTOR SHALL BE CAPABLE OF STARTING AND OPERATING EFFICIENTLY UNDER ANY OF THE CONDITIONS OR COMBINATION OF CONDITIONS OUTLINED IN PARAGRAPH 3.4.1, TEMPERATURE CONDITIONS, AND PARAGRAPH 3.4.2, USE CONDITIONS, OF THE SPECIFICATION; AND THAT COMPONENT PARTS AND UNITS OF THE TRACTOR SHALL BE MANUFACTURED TO DEFINITE STANDARD DIMENSIONS, WITH PROPER FITS AND CLEARANCES. ALSO, PARAGRAPH 4.2, INSPECTION, PROVIDES THAT THE TRACTOR SHALL BE GIVEN A "GENERAL INSPECTION FOR MATERIAL, WORKMANSHIP, AND GENERAL COMPLIANCE WITH THE REQUIREMENTS OF THIS SPECIFICATION.'

THE INVITATION INCORPORATED GENERAL PROVISIONS (SUPPLY CONTRACT), STANDARD FORM 32, SEPTEMBER 1961 EDITION, AND IT WAS PROVIDED AT PAGE 6 OF THE INVITATION AS FOLLOWS:

"CERTIFICATION OF COMPLIANCE WITH SPECIFICATION.

THE BIDDER SHALL CERTIFY THAT THE TRACTOR WITH ITS ALLIED AND/OR ACCESSORY EQUIPMENT, AND ITS COMPONENT UNITS, AND PARTS WILL BE SUITABLE FOR THE WORK TO BE PERFORMED; WILL BE CONSTRUCTED TO DEFINITE STANDARD DIMENSIONS, WITH PROPER CLEARANCE AND FITS; THAT PREVIOUSLY PUBLISHED OR SET RATINGS WILL NOT ARBITRARILY BE RAISED WITHOUT PRIOR APPROVAL OF THE MANUFACTURER OF THE ACTUAL UNIT; AND FURTHER, THAT THE TRACTOR OFFERED WILL COMPLY IN EVERY RESPECT WITH THE TERMS OF THIS SPECIFICATION. IN THE EVENT THAT THE TRACTOR OFFERED DOES NOT FULLY COMPLY WITH THIS SPECIFICATION, THE BIDDER SHALL STATE DEFINITELY, REFERRING TO THE PROPER PARAGRAPH OF THIS SPECIFICATION, WHEREIN THE TRACTOR HE PROPOSES TO FURNISH DOES NOT COMPLY. WHERE NO STATEMENT IS RECEIVED, THE SUCCESSFUL BIDDER SHALL BE REQUIRED TO MEET EVERY REQUIREMENT OF THIS SPECIFICATION. THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY AND ALL BIDS WHEREIN DEVIATIONS FROM THIS SPECIFICATION ARE MATTERS OF CONJECTURE AND CANNOT BE ASCERTAINED BY DEFINITE RECOGNIZED STANDARDS. IT ALSO RESERVES THE RIGHT TO ACCEPT BIDS DEVIATING SLIGHTLY, OR IN MINOR DETAILS FROM THIS SPECIFICATION WHERE SUCH DEVIATION DOES NOT AFFECT THE PERFORMANCE OF THE TRACTOR AND WHERE SUCH ACCEPTANCE IS TO ITS BEST INTEREST.

"CERTIFICATION AS SPECIFIED ABOVE MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING OF BIDS. FAILURE TO FURNISH THE CERTIFICATION BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID.'

THE BID OF HAWAIIAN EQUIPMENT COMPANY, IN THE UNIT PRICE AMOUNTS OF $38,878 (ITEM A) AND $40,003 (ITEM B), DEPENDING UPON PLACE OF DELIVERY, WAS THE THIRD LOWEST BID RECEIVED IN RESPONSE TO THE INVITATION. ATTACHED TO THE BID WAS A CERTIFICATE OF COMPLIANCE WITH THE SPECIFICATION WHICH CONFORMS IN ALL RESPECTS TO THE REQUIREMENTS OF THE ABOVE-QUOTED PROVISION OF THE INVITATION. NEITHER AMERICAN FACTORS, LTD., THE LOW BIDDER, NOR THE EIMCO CORPORATION, WHICH SUBMITTED THE SECOND LOWEST BID, FURNISHED A CERTIFICATE OF COMPLIANCE. HOWEVER, HAWAIIAN WAS INFORMED THAT YOUR AGENCY WAS GIVING CONSIDERATION TO AWARDING THE CONTRACT TO ONE OF THESE BIDDERS ON THE GROUND THAT THE FAILURE TO SUPPLY THE CERTIFICATION CONSTITUTES A MINOR IRREGULARITY IN THE BIDS WHICH MAY BE WAIVED. HAWAIIAN'S PROTEST IS, IN EFFECT,AGAINST SUCH A DETERMINATION.

THE CERTIFICATION REQUIREMENT IS IDENTICAL WITH THAT WHICH THE INTERIM FEDERAL SPECIFICATION RECOMMENDS BEING INCLUDED IN INVITATIONS FOR BIDS FOR THE TRACTOR INVOLVED. IT CAN BE ARGUED THAT COMPLIANCE WITH THE CERTIFICATION REQUIREMENT ADDS NOTHING TO THE RESPONSIBILITY WHICH A BIDDER HAS ALREADY ASSUMED BY SUBMITTING A BID UNDER THE INVITATION. SUBMITTING A BID RESPONSIVE TO THE INVITATION A BIDDER NECESSARILY OBLIGATES HIMSELF TO COMPLY WITH THE SPECIFICATIONS, WHICH IN THIS INSTANCE SET FORTH GENERALLY THE CONDITIONS UNDER WHICH THE TRACTOR WILL BE USED. HOWEVER, IN SEEKING TO DETERMINE WHETHER THE CERTIFICATION AFFORDS THE GOVERNMENT ADDITIONAL PROTECTION WITH RESPECT TO THE SUBJECT MATTER OF THE PROCUREMENT, THE PROVISIONS THEREOF MUST BE CONSIDERED IN THE LIGHT OF THE PROVISIONS OF CLAUSE 5, INSPECTION, OF STANDARD FORM 32. THAT CLAUSE PROVIDES THAT THE SUPPLIES TO BE FURNISHED UNDER THE CONTRACT SHALL BE SUBJECT TO INSPECTION AND TEST BY THE GOVERNMENT "PRIOR TO ACCEPTANCE; " THAT ACCEPTANCE OR REJECTION THEREOF SHALL BE MADE AS PROMPTLY AS PRACTICABLE AFTER DELIVERY; THAT INSPECTION AND TEST BY THE GOVERNMENT OF THE SUPPLIES DOES NOT RELIEVE THE CONTRACTOR FROM ANY RESPONSIBILITY REGARDING DEFECTS OR OTHER FAILURES TO MEET CONTRACT REQUIREMENTS WHICH MAY BE DISCOVERED "PRIOR TO ACCEPTANCE; " AND THAT, EXCEPT AS OTHERWISE PROVIDED IN THE CONTRACT,"ACCEPTANCE SHALL BE CONCLUSIVE EXCEPT AS REGARDS LATENT DEFECTS, FRAUD, OR SUCH GROSS MISTAKES AS AMOUNT TO FRAUD.'

WE BELIEVE THAT, IN VIEW OF THE REFERRED-TO PROVISIONS OF CLAUSE 5, THE OBLIGATION WHICH THE CONTRACTOR WOULD ASSUME BY CERTIFYING THAT THE TRACTOR "WILL BE SUITABLE FOR THE WORK TO BE PERFORMED" WOULD AFFORD THE GOVERNMENT A GREATER DEGREE OF PROTECTION THAN WOULD BE THE CASE IF THE GOVERNMENT WERE REQUIRED TO RELY SOLELY ON THE PROVISIONS OF THE INTERIM FEDERAL SPECIFICATION, REFERRED TO ABOVE, IN SEEKING ANY REDRESS FROM THE CONTRACTOR. THE INCLUSION IN THE BODY OF THE CONTRACT OF WHAT AMOUNTS TO AN EXPRESS WARRANTY THAT THE TRACTOR WILL BE SUITABLE FOR THE WORK TO BE PERFORMED WOULD APPEAR TO MAKE IT CLEAR THE PARTIES DO NOT INTEND THAT ACCEPTANCE OF THE TRACTOR, IN THE SENSE CONTEMPLATED BY CLAUSE 5, SHOULD FORECLOSE THE GOVERNMENT'S RIGHT TO HOLD THE CONTRACTOR TO ITS OBLIGATION IN THIS RESPECT. IN EFFECT, THE WARRANTY WOULD SURVIVE ACCEPTANCE, AND THE CERTIFICATION REQUIREMENT MUST, THEREFORE, BE CONSIDERED A MATERIAL PROVISION OF THE INVITATION WHICH THE CONTRACTING OFFICER IS NOT AUTHORIZED TO WAIVE.

ACCORDINGLY, THE BIDS OF AMERICAN FACTORS AND THE EIMCO CORPORATION MUST BE CONSIDERED AS NONRESPONSIVE TO THE INVITATION, AND THE BID OF HAWAIIAN EQUIPMENT COMPANY SHOULD THEREFORE BE CONSIDERED THE LOW RESPONSIVE BID SUBMITTED THEREUNDER.

THE FOLDER ENTITLED "BID DOCUMENTS ON INVITATION PC53-5-22," FORWARDED WITH THE LETTER FROM THE DIRECTOR OF THE INSTALLATION AND MATERIEL SERVICE, IS RETURNED.