B-156662, DEC. 2, 1965

B-156662: Dec 2, 1965

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YOU WERE UNJUSTIFIABLY DENIED THE AWARD. THE CONTRACTING OFFICER REJECTED YOUR BID AS NONRESPONSIVE BECAUSE YOU PROPOSED TO DELIVER A GENERATOR OF YOUR OWN DESIGN AND BECAUSE THE SET OF BLUE-LINE DRAWINGS WHICH ACCOMPANIED IT WERE CONCLUDED BY GOVERNMENT ENGINEERS TO BE INCOMPLETE AND DESCRIPTIVE OF AN ITEM NOT MEETING THE GOVERNMENT'S REQUIREMENTS. THE A210 GENERATOR SET BEING PROCURED WAS DESIGNED FOR INSTALLATION IN. GENERATOR SETS WERE TO BE MANUFACTURED IN CONFORMITY WITH A REPRESENTATIVE SAMPLE AVAILABLE TO BIDDERS WHICH WOULD BE BAILED TO THE CONTRACTOR AFTER AWARD. GENERATORS WERE TO BE STRICTLY IN ACCORDANCE WITH AIR FORCE DRAWING NO. 63D42031. MAY HAVE PERMITTED BIDDERS TO PREDICATE THEIR OFFERS ON GENERATORS EQUAL TO THE UNIT DESCRIBED IN THE DRAWING.

B-156662, DEC. 2, 1965

TO DERA, INCORPORATED:

BY LETTER DATED APRIL 27, 1965, YOU PROTESTED AN AWARD BY THE SACRAMENTO AIR MATERIEL AREA, MCCLELLAN AIR FORCE BASE, CALIFORNIA, OF A CONTRACT FOR ENGINE DRIVEN GENERATOR SETS (EACH CONSISTING OF A GASOLINE ENGINE AND A D.C. GENERATOR) TO FAIRBANKS MORSE, INCORPORATED, UNDER INVITATION FOR BIDS NO. 04-606-65-109. YOU CONTEND THAT, AS THE LOWEST BIDDER, YOU WERE UNJUSTIFIABLY DENIED THE AWARD.

THE CONTRACTING OFFICER REJECTED YOUR BID AS NONRESPONSIVE BECAUSE YOU PROPOSED TO DELIVER A GENERATOR OF YOUR OWN DESIGN AND BECAUSE THE SET OF BLUE-LINE DRAWINGS WHICH ACCOMPANIED IT WERE CONCLUDED BY GOVERNMENT ENGINEERS TO BE INCOMPLETE AND DESCRIPTIVE OF AN ITEM NOT MEETING THE GOVERNMENT'S REQUIREMENTS. THE A210 GENERATOR SET BEING PROCURED WAS DESIGNED FOR INSTALLATION IN, AND TO BE FULLY COMPATIBLE WITH, THE 010, 011A AND 011B CRASH, FIRE AND RESCUE TRUCKS. GENERATOR SETS WERE TO BE MANUFACTURED IN CONFORMITY WITH A REPRESENTATIVE SAMPLE AVAILABLE TO BIDDERS WHICH WOULD BE BAILED TO THE CONTRACTOR AFTER AWARD, AND GENERATORS WERE TO BE STRICTLY IN ACCORDANCE WITH AIR FORCE DRAWING NO. 63D42031. ALTHOUGH THE INVITATION, AS ORIGINALLY WORDED, MAY HAVE PERMITTED BIDDERS TO PREDICATE THEIR OFFERS ON GENERATORS EQUAL TO THE UNIT DESCRIBED IN THE DRAWING, THIS PRIVILEGE WAS RESCINDED BY AMENDMENT NO. 1 WHICH MADE IT CLEAR THAT ONLY THE BRIGGS AND STRATTON ENGINE AND CERTAIN MINOR COMPONENTS COULD BE SUPPLIED ON AN "OR EQUAL" BASIS. WE ARE GIVEN TO UNDERSTAND THAT THE DRAWINGS FURNISHED BIDDERS ALONG WITH THE INVITATION WERE COMPLETELY ADEQUATE TO ENABLE MANUFACTURE OF THE UNIT REQUIRED BY THE GOVERNMENT.

THE DRAWINGS AND DATA SUBMITTED WITH YOUR BID WERE FOUND NOT TO MEET THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR THE FOLLOWING REASONS, AMONG OTHERS:

(1) THERE WAS NO INFORMATION INCLUDED REGARDING THE METHOD OF ATTACHING THE UNIT TO THE FIRE TRUCK SO AS TO ASSURE COMPATIBILITY TO THE PECULIAR DIMENSIONS OF THE GENERATOR SET COMPARTMENT (TAKING PROTRUDING OBJECTS INTO CONSIDERATION), THE CONTROL PANEL, EXHAUST PIPES, FUEL LINES, AND GENERATOR TO TRUCK WIRING;

(2) YOUR DRAWINGS WERE ONLY OUTLINE SKETCHES WHICH FAILED TO ESTABLISH EXACTLY WHAT YOU PROPOSED TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN WARD;

(3) THE BROCHURE AND DRAWINGS SUBMITTED WITH THE BID WERE FOR A.C. GENERATOR SETS WHEREAS THE REQUIREMENT WAS FOR D.C. GENERATOR SETS, AND ALTHOUGH YOU LATER EXPLAINED THAT D.C. CATALOG SHEETS WERE NOT IN STOCKAT THE TIME OF BID SUBMISSION, THE TERMS OF AN OFFER TO SELL TO THE GOVERNMENT MUST BE COMPLETELY REVEALED ON THE FACE OF THE BID, IF THE PROPOSAL IS TO RECEIVE FAVORABLE CONSIDERATION (SEE 41 COMP. GEN. 366);

(4) YOUR BROCHURE DID NOT SHOW COMPLIANCE WITH THE SPECIFICATION REQUIREMENT FOR ELECTRIC CRANKING OF THE ENGINE.

YOU CONTEND THAT THE ADVERTISED SPECIFICATIONS WERE RESTRICTIVE TO THE PRODUCT OF FAIRBANKS MORSE, INCORPORATED. THE STATUTES GOVERNING FEDERAL PROCUREMENT HAVE BEEN CONSTRUED TO REQUIRE THAT ADVERTISED SPECIFICATIONS BE SO DRAWN AS TO PERMIT THE MAXIMUM DEGREE OF COMPETITION POSSIBLE CONSISTENT WITH THE NEEDS OF THE AGENCY. 38 COMP. GEN. 610, 611. COMPETITION IS UNDULY RESTRICTED ONLY WHEN THERE IS NO NECESSITY FOR SINGLING OUT A PRODUCT POSSESSING THE STATED PHYSICAL AND FUNCTIONAL CHARACTERISTICS. 39 COMP. GEN. 101; 37 ID. 323.

ALTHOUGH THE GENERATOR DRAWING UTILIZED IN THIS PROCUREMENT WAS APPARENTLY BASED ON DATA ACQUIRED FROM FAIRBANKS MORSE, INCORPORATED, ON A PREVIOUS PURCHASE OF A210 GENERATOR SETS, THE DRAFTING OF THESE SPECIFICATIONS SEEMS TO HAVE BEEN A QUESTION OF ADAPTING THE GENERATORS TO THE FIRE ENGINES RATHER THAN FITTING THE SPECIFICATIONS TO THE PRODUCT OF ONE MANUFACTURER. FURTHERMORE, HOLDING YOUR BID RESPONSIVE WOULD HAVE FORCED THE GOVERNMENT TO ASSUME THE RISK OF ACQUIRING GENERATOR SETS WITHOUT ASSURANCE OF THEIR SUITABILITY FOR INSTALLATION IN THE 010, 011A AND 011B VEHICLES.

YOU HAVE ALSO OBJECTED TO THE FACT THAT THE AWARD WAS MADE TO A LARGE BUSINESS ORGANIZATION. HOWEVER, AS YOU HAVE BEEN ADVISED, THE INVITATION IN QUESTION WAS NOT A SMALL BUSINESS SET-ASIDE AND THEREFORE DID NOT PRECLUDE AN AWARD TO A LARGE BUSINESS FIRM.

FOR THE REASONS OUTLINED ABOVE, WE CAN SEE NO JUSTIFICATION FOR QUESTIONING THE AWARD TO FAIRBANKS MORSE, INCORPORATED.