B-158424, APR. 28, 1966

B-158424: Apr 28, 1966

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DEFENSE SUPPLY AGENCY: REFERENCE IS MADE TO A LETTER DATED MARCH 3. THE INVITATION WAS MODIFIED BY THREE AMENDMENTS. TWO BIDS WERE RECEIVED AND PUBLICLY OPENED ON DECEMBER 17. ONE BID WAS SUBMITTED BY THE BARRETT-CRAVENS COMPANY. THE OTHER BID WAS SUBMITTED BY THE DREXEL DYNAMICS CORPORATION. ARE CONSIDERABLY HIGHER THAN THOSE QUOTED BY THE DREXEL DYNAMICS CORPORATION. 800 WAS BASED ON WAIVER BY THE GOVERNMENT OF THE PREPRODUCTION MODEL REQUIREMENT OF THE INVITATION FOR BIDS. THE LOW BID OF THE DREXEL DYNAMICS CORPORATION WAS DETERMINED TO BE NONRESPONSIVE BECAUSE IT WAS ACCOMPANIED BY A TECHNICAL PROPOSAL WHICH APPEARED TO DEVIATE FROM THE GOVERNMENT'S PURCHASE DESCRIPTION IN CERTAIN MATERIAL RESPECTS.

B-158424, APR. 28, 1966

TO DIRECTOR, DEFENSE SUPPLY AGENCY:

REFERENCE IS MADE TO A LETTER DATED MARCH 3, 1966, DSAH-G, FURNISHING THE REPORT OF YOUR AGENCY ON THE PROTEST OF THE DREXEL DYNAMICS CORPORATION, HORSHAM, PENNSYLVANIA, AGAINST THE REJECTION OF ITS BID UNDER INVITATION NO. DSA-4-66-2273, ISSUED ON NOVEMBER 15, 1965, BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, BASED ON A REQUISITION RECEIVED FROM THE DEPARTMENT OF THE NAVY FOR THE PROCUREMENT OF 38 MULTI-DIRECTIONAL, MISSILE-HANDLING TRUCKS MEETING THE REQUIREMENTS OF PURCHASE DESCRIPTION BUSANDA-H33-65-34 DATED SEPTEMBER 27, 1965, WHICH SUPERSEDED PURCHASE DESCRIPTION BUSANDA-H33 65-34, DATED JANUARY 15, 1965.

THE GOVERNMENT'S INVITATION FOR BIDS PROVIDED FOR THE FURNISHING OF RELATED TECHNICAL MANUALS, DRAWINGS, PROVISIONAL TECHNICAL DOCUMENTATION AND PREPRODUCTION TESTING, IN ADDITION TO THE BASIC EQUIPMENT. CONTAINED INFORMATION WITH RESPECT TO THE CIRCUMSTANCES UNDER WHICH THE GOVERNMENT MIGHT WAIVE THE REQUIREMENTS FOR PREPRODUCTION TESTING, PROVISIONING DATE AND/OR DRAFT MANUSCRIPTS. THE INVITATION WAS MODIFIED BY THREE AMENDMENTS. THE FIRST AMENDMENT MADE A CORRECTION IN THE DELIVERY SCHEDULE AND THE SECOND AMENDMENT CHANGED THE DATE SCHEDULED FOR PUBLIC OPENING OF BIDS FROM DECEMBER 10, 1965, TO DECEMBER 17, 1965. THE THIRD AMENDMENT CHANGED THE NUMBERING OF ONE PARAGRAPH OF THE PURCHASE DESCRIPTION. IT ALSO ADDED ALTERNATE DIMENSIONS TO THOSE SPECIFIED IN PARAGRAPH 3.2.2.1 OF THE PURCHASE DESCRIPTION IN REGARD TO THE REQUIREMENT THAT THE TYPE OF TRUCK OFFERED BY A BIDDER BE DESIGNED TO ACCOMMODATE ACID -TYPE, 36-VOLT BATTERIES OF CERTAIN CAPACITIES.

TWO BIDS WERE RECEIVED AND PUBLICLY OPENED ON DECEMBER 17, 1965, AS SCHEDULED. ONE BID WAS SUBMITTED BY THE BARRETT-CRAVENS COMPANY, NORTH BROOK, ILLINOIS, AND THE OTHER BID WAS SUBMITTED BY THE DREXEL DYNAMICS CORPORATION. THE F.O.B. ORIGIN AND F.O.B. DESTINATION PRICES ON THE BASIC EQUIPMENT, AS SET FORTH IN THE BID OF THE BARRETT-CRAVENS COMPANY, ARE CONSIDERABLY HIGHER THAN THOSE QUOTED BY THE DREXEL DYNAMICS CORPORATION. THUS, FOR DELIVERIES F.O.B. ORIGIN, THE DREXEL DYNAMICS CORPORATION QUOTED A TOTAL PRICE OF $722,000 OR $19,000 PER TRUCK, AS COMPARED WITH THE UNIT PRICES OF $26,335 AND $25,800 QUOTED BY THE BARRETT-CRAVENS COMPANY. THE QUOTATION OF $25,800 WAS BASED ON WAIVER BY THE GOVERNMENT OF THE PREPRODUCTION MODEL REQUIREMENT OF THE INVITATION FOR BIDS.

THE LOW BID OF THE DREXEL DYNAMICS CORPORATION WAS DETERMINED TO BE NONRESPONSIVE BECAUSE IT WAS ACCOMPANIED BY A TECHNICAL PROPOSAL WHICH APPEARED TO DEVIATE FROM THE GOVERNMENT'S PURCHASE DESCRIPTION IN CERTAIN MATERIAL RESPECTS. IT IS REPORTED THAT THE BID OF THE BARRETT CRAVENS COMPANY WAS ALSO DETERMINED TO BE NONRESPONSIVE BECAUSE THAT COMPANY TOOK EXCEPTION TO THE DELIVERY SCHEDULE AND TO SPECIFIC PROVISIONS OF THE INVITATION FOR BIDS. ACCORDINGLY, BOTH BIDS HAVE BEEN REJECTED AND IT IS CONTEMPLATED THAT THE PROCUREMENT WILL BE MADE UNDER THE NEGOTIATION PROCEDURES OF SECTION III OF THE ARMED SERVICES PROCUREMENT REGULATION.

IN PROTESTING THE REJECTION OF THE BID OF THE DREXEL DYNAMICS CORPORATION, THE ATTORNEY FOR THE COMPANY CONTENDS THAT THE CONTRACTING OFFICER ERRONEOUSLY CONCLUDED THAT THE COMPANY'S TECHNICAL PROPOSAL CONSTITUTED A PART OF THE BID. REFERENCE WAS MADE TO THE FACT THAT THE COVER SHEET OF THE PROPOSAL CONTAINS A STATEMENT THAT "THIS DATA IS PRESENTED AS AN AID TO THE EVALUATION OF DREXEL DYNAMICS CORPORATION'S TECHNICAL COMPETENCE.' THE SUBMISSION OF A TECHNICAL PROPOSAL WAS NOT REQUIRED UNDER THE TERMS OF THE INVITATION FOR BIDS, AND IT IS ARGUED THAT THE SUBMISSION OF A TECHNICAL PROPOSAL IN THIS CASE SHOULD BE REGARDED AS COMING WITHIN THE CATEGORY OF UNSOLICITED LITERATURE WHICH MAY BE DISREGARDED UNDER THE PROVISIONS OF PARAGRAPH 2-202.5/F) OF THE ARMED SERVICES PROCUREMENT REGULATION. THAT PARAGRAPH PROVIDES THAT SUCH LITERATURE WILL NOT BE CONSIDERED AS QUALIFYING A BID AND WILL BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION SO TO QUALIFY THE BID.

IN THE PREPARATION OF ITS SIGNED BID THE DREXEL DYNAMICS CORPORATION APPARENTLY TOOK NO EXCEPTION TO ANY OF THE REQUIREMENTS OF THE INVITATION FOR BIDS, AND IT APPEARS THAT THE COMPANY FURNISHED ALL OF THE INFORMATION REQUIRED IN THE BIDDING SCHEDULE BEGINNING AT PAGE 3 OF THE INVITATION.

IN ACCORDANCE WITH THE ACKNOWLEDGMENT REQUIREMENTS OF THE FIRST TWO AMENDMENTS TO THE INVITATION FOR BIDS, THE COMPANY SIGNED AND RETURNED COPIES OF SUCH AMENDMENTS WITH ITS BID. THE COMPANY ALSO SUBSTANTIALLY COMPLIED WITH THE ACKNOWLEDGMENT REQUIREMENT OF THE THIRD AMENDMENT BY SUBMITTING TWO SIGNED AMENDMENT FORMS REFERRING TO A TELEGRAM WHICH DESCRIBED THE CHANGES MADE IN THE PURCHASE DESCRIPTION.

THE SIGNED BID WAS SUBMITTED IN DUPLICATE WITH ENCLOSURES CONSISTING OF A LETTER DATED DECEMBER 14, 1965, AND A COPY OF A DOCUMENT WITH COVER SHEET DATED DECEMBER 3, 1965, CAPTIONED AS TECHNICAL PROPOSAL NO. PE 3086, TRUCK, MULTI-DIRECTIONAL, WHICH INCLUDED A COPY OF DRAWING NO. 2510 AS A PART THEREOF.

THE LETTER DATED DECEMBER 14, 1965, REFERS TO THE FOLLOWING AS ITS SUBJECT MATTER: INVITATION FOR BIDS NO. DSA-4-66-2273, TRUCK, MULTI DIRECTIONAL, DREXEL NO. PE-3086. THE MAIN PART, OR BODY, OF THE LETTER BEGINS WITH THE STATEMENT: "IN ACCORDANCE WITH THE SUBJECT INVITATION FOR BID, WE ARE PLEASED TO ENCLOSE TWO COPIES OUR OUR PROPOSAL;, THE SECOND PARAGRAPH OF THE LETTER CONCERNS THE SUBMISSION OF ITS OWN ACKNOWLEDGMENT FORMS IN REGARD TO AMENDMENT NO. 3 TO THE INVITATION. THE TECHNICAL PROPOSAL IS NOT DISCUSSED IN THE LETTER AND NO INFORMATION WAS GIVEN TO INDICATE THAT BID QUALIFICATION OF ANY KIND WAS INTENDED.

THE COVER SHEET OF THE DOCUMENT DATED DECEMBER 3, 1965, STATES THAT IT WAS PREPARED FOR THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA; THAT THE DESIGN DATA PRESENTED THEREIN IS CONSIDERED PROPRIETARY BY THE DREXEL DYNAMICS CORPORATION; AND THAT IT WAS BEING PRESENTED "AS AN AID TO THE EVALUATION OF DREXEL DYNAMICS CORPORATION'S TECHNICAL COMPETENCE.'

THE INTRODUCTORY PARAGRAPH OF THE COMPANY'S TECHNICAL PROPOSAL STATES THAT IT IS A COMPLETE PROPOSAL FOR THE BEST EFFORT BY THE COMPANY TO DESIGN AND BUILD ONE ENGINEERING PROTOTYPE VEHICLE AND 37 PRODUCTION UNITS TO SPECIFICATION BUSANDA-H33-65-34, DATED JANUARY 15, 1965. PARAGRAPH 1-3 REFERS TO DRAWING NO. 2510 FOR THE GENERAL OUTLINE AND OPERATION OF THE VEHICLE. PARAGRAPH 1-3-1 STATES IN PART THAT LOADS WEIGHING UP TO 4,500 POUNDS, 42 INCHES WIDE, AND 42 INCHES HIGH AND OVER 25 FEET IN LENGTH, CAN BE ACCOMMODATED WITHIN THE SILHOUETTE OF THE VEHICLE. ALSO, PARAGRAPH 1-3 -1-2 CONTAINS STATEMENTS INDICATING THAT THE DESIGN OF THE TRUCK WOULD PERMIT THE LIFTING OF LOADS TO A MAXIMUM HEIGHT OF 67 INCHES.

IN THE ADMINISTRATIVE REVIEW OF THE TECHNICAL PROPOSAL IT WAS NOTED THAT THE INTRODUCTORY PARAGRAPH REFERENCED PURCHASE DESCRIPTION BUSANDA-H33-65- 34, DATED JANUARY 15, 1965, WHEREAS THE INVITATION FOR BIDS REFERENCED THE SUPERSEDING PURCHASE DESCRIPTION OF SEPTEMBER 27, 1965. IT WAS ALSO NOTED THAT A MAXIMUM FORK LIFT HEIGHT OF 67 INCHES IS SHOWN IN THE PROPOSAL, WHERE AS A MAXIMUM FORK LIFT HEIGHT OF NOT LESS THAN 70 INCHES WAS SPECIFIED IN THE APPLICABLE PURCHASE DESCRIPTION OF SEPTEMBER 27, 1965. IN ADDITION, IT WAS CONSIDERED THAT THE STATED LOADING CAPACITY OF THE PROPOSED TRUCK DESIGN DID NOT MEET THE REQUIREMENT OF THE PURCHASE DESCRIPTION DATED SEPTEMBER 27, 1965, THAT THE RATED CAPACITY OF THE VEHICLE BE 4,500 POUNDS AT A 30-INCH LOAD CENTER. THE REPORT OF REVIEW ALSO INDICATED THAT THE TECHNICAL PROPOSAL DID NOT COVER MANY SPECIFICATION REQUIREMENTS, SOME OF WHICH ARE LISTED IN THE REPORT.

IN COMMENTING ON THE LOAD CAPACITY MATTER, THE CONTRACTING OFFICER STATED THAT THE PURCHASE DESCRIPTION DATED SEPTEMBER 27, 1965, PROVIDES FOR VEHICLE CAPACITY OF 4,500 POUNDS AT A 30-INCH LOAD CENTER, I.E., A LOAD 60 INCHES BY 60 INCHES, WHEREAS THE ITEM DESCRIBED IN THE TECHNICAL PROPOSAL ALLEGEDLY PROVIDES FOR A4,500-POUND LOAD CAPACITY FOR A LOAD 42 INCHES WIDE AND 42 INCHES HIGH, WHICH MEANS 4,500 POUND CAPACITY AT A 21-INCH LOAD CENTER.

THE ATTORNEY FOR THE DREXEL DYNAMICS CORPORATION HAS ADVISED US THAT THE TECHNICAL PROPOSAL AND ITS ACCOMPANYING DRAWING WERE PREPARED ON THE BASIS OF THE COMPANY'S PROPOSED MODIFICATIONS TO THE PURCHASE DESCRIPTION DATED JANUARY 15, 1965, WHICH HAD BEEN DISCUSSED WITH MR. DENNIS J. DOYLE OF THE MATERIAL AND WEAPONS HANDLING SECTION, DUREAU OF SHIPS, AND MR. HARRY HEIM OF THE BUREAU OF SUPPLIES AND ACCOUNTS, ON AUGUST 3, 1965. A COPY OF THE SUGGESTED MODIFICATIONS AND ROUGH SKETCHES OF THE EQUIPMENT DESIGN WERE SENT TO MR. DOYLE ON AUGUST 10, 1965. ON AUGUST 13, 1965, THE COMPANY UNDERTOOK THE PREPARATION OF DRAWINGS AND ASSIGNED A PROJECT NUMBER, PE 3086, TO THE PROGRAM FOR THIS EQUIPMENT DESIGN. A PRINT OF THE COMPOSITE DRAWING WAS FURNISHED TO MR. DOYLE BY LETTER DATED AUGUST 27, 1965, INDICATING THAT SUCH DRAWING REFLECTED THE CHANGES DISCUSSED AT THE MEETING OF AUGUST 3, 1965.

WHEN THE COMPANY RECEIVED A COPY OF THE INVITATION FOR BIDS ISSUED ON NOVEMBER 15, 1965, IT NOTICED THAT THE SPECIFICATIONS OF SEPTEMBER 27, 1965, ADOPTED SOME OF ITS PROPOSED MODIFICATIONS TO THE EARLIER SPECIFICATIONS. IT ADVISED THE DEFENSE GENERAL SUPPLY CENTER OF THE APPARENT ERROR MADE IN THE DELIVERY SCHEDULE, WHICH ERROR WAS CORRECTED BY AMENDMENT NO. 1 TO THE INVITATION, AND ASCERTAINED INFORMALLY THE CHANGES EFFECTED BY AMENDMENT NO. 3, COPIES OF WHICH APPARENTLY HAD NOT BEEN RECEIVED BY THE COMPANY. TECHNICAL PROPOSAL NO. PE3086 IS THE SAME TECHNICAL PROPOSAL WHICH HAD BEEN DISCUSSED WITH THE NAVY REPRESENTATIVES AND, BECAUSE THE COMPANY HAD NEVER FURNISHED MATERIAL HANDLING EQUIPMENT TO THE DEFENSE SUPPLY AGENCY, IT BELIEVED THAT IT SHOULD DEMONSTRATE THAT IT WAS NOT A STRANGER TO THE MATERIAL HANDLING FIELD BY SUBMISSION OF THE TECHNICAL PROPOSAL WITH ITS BID AFTER HAVING PREPARED A NEW COVER PAGE WITH A LEGEND AS TO THE PURPOSE FOR WHICH IT WAS SUPPLIED.

WITH RESPECT TO THE USE OF 67 INCHES AS THE LIFTING CAPABILITY OF THE DESIGNED TRUCK, IT IS EXPLAINED THAT IT WAS CONSIDERED THAT THE SPECIFICATION OF 80 INCHES IN THE PURCHASE DESCRIPTION OF JANUARY 15, 1965, WAS GREATER THAN NECESSARY TO HANDLE MISSILE PACKAGES 42 INCHES HIGH, NOT STACKED MORE THAN TWO PACKAGES DEEP FOR REASONS OF SAFETY; THAT A LIFT CAPABILITY OF APPROXIMATELY 50 INCHES WOULD BE SUFFICIENT; BUT THAT THE DESIGN OF THE TRUCK INCREASED THE DESIGN LIFT CAPABILITY TO 67 INCHES TO PROVIDE FOR THE STACKING OF POSSIBLY LARGER PACKAGES UP TO 60 INCHES IN HEIGHT. ULTIMATELY, THE NAVY FIXED THE LIFTING CAPABILITY AT 70 INCHES, A HEIGHT WHICH INVOLVED NO NEW TECHNOLOGY OR DESIGN PROBLEMS SO FAR AS THE DREXEL DYNAMICS CORPORATION IS CONCERNED.

IT IS CONTENDED THAT THE DREXEL DYNAMICS CORPORATION'S TECHNICAL PROPOSAL DOES NOT LIMIT THE CAPACITY OF THE DESIGNED VEHICLE TO THE HANDLING OF PACKAGES 42 INCHES IN WIDTH AND HEIGHT, AND THAT THE DESIGNED TRUCK DOES NOT BY AN MEANS PRECLUDE A 4,500-POUND LOAD AT A 30-INCH LOAD CENTER, OR A 60-INCH WIDE LOAD, AS APPARENTLY CONTEMPLATED BY THE SEPTEMBER 27, 1965, SPECIFICATIONS. IT IS ALSO STATED THAT THE TECHNICAL PROPOSAL DOES NOT PURPORT TO REPEAT THE SPECIFICATIONS IN THEIR ENTIRETY.

REGARDLESS OF THE USE OF THE WORDS "COMPLETE PROPOSAL" IN THE TECHNICAL PROPOSAL, WHICH SUGGESTED THE COMPANY'S MODIFICATIONS TO THE SPECIFICATIONS OF JANUARY 15, 1965, IT IS APPARENT THAT NEITHER THE TECHNICAL PROPOSAL NOR THE COMPANY'S SIGNED BID DISCLOSES AN INTENTION TO DISREGARD THE PORTIONS OF THE GOVERNMENT'S SPECIFICATIONS WHICH ARE NOT MENTIONED IN THE TECHNICAL PROPOSAL. ALSO, IT IS OUR OPINION THAT THE TECHNICAL PROPOSAL COULD NOT POSSIBLY BE REGARDED AS A BID QUALIFICATION UNLESS IT CONTAINED SPECIFIC DATA WHICH CONFLICTED WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS AND IT WAS REASONABLE TO ASSUME THAT THE COMPANY INTENDED THE PROPOSAL TO BE A PART OF ITS SIGNED BID. THUS, IT APPEARS THAT A CONCLUSION THAT THE COMPANY INTENDED TO QUALIFY ITS BID COULD RELATE ONLY TO THE SPECIFIED MINIMUM FORK LIFT HEIGHT (70 INCHES) AND RATED CAPACITY (4,500 POUNDS AT A 30 INCH LOAD CENTER).

WE AGREE WITH THE POSITION OF THE FIRM'S ATTORNEY THAT THE PARTICULAR TRUCK DESIGN DOES NOT PRECLUDE THE HANDLING OF PACKAGES MORE THAN 42 INCHES WIDE AND UP TO 60 INCHES WIDE. THE TECHNICAL PROPOSAL STATES ONLY THAT PACKAGES OF CERTAIN DIMENSIONS CAN BE ACCOMMODATED WITHIN THE SILHOUETTE OF THE VEHICLE. IT DOES NOT LIMIT THE POSSIBILITY THAT THE TRUCK COULD BE USED TO HANDLE PACKAGES WEIGHING 4,500 POUNDS AT A 30-INCH LOAD CENTER. THE TERM "LOAD CENTER" HAS REFERENCE TO THE LOAD ITSELF AND NOT NECESSARILY TO THE DISTANCE BETWEEN THE CENTER LINE AND THE SIDES OF THE LOADING PLATFORM OF THE TRUCK DESIGN. SINCE A WIDTH OF 42 INCHES FOR THE LOADING PLATFORM IS SUBSTANTIAL AND APPEARS TO BE SUFFICIENT, DEPENDING UPON OTHER CONSTRUCTION FEATURES OF THE DESIGNED TRUCK, TO MAINTAIN THE WEIGHT OF A 4,500-POUND MISSILE PACKAGE IN BALANCE, WE SEE NO BASIS FOR CONCLUDING THAT THE CAPACITY OF THE DESIGNED TRUCK IS DEFICIENT BECAUSE THE CENTER LINE OF THE LOADING PLATFORM WOULD BE ONLY 21 INCHES FROM ONE SIDE OF THE PLATFORM. THE TECHNICAL PROPOSAL OBVIOUSLY DOES NOT MEET EXACTLY THE REQUIREMENT OF THE PURCHASE DESCRIPTION DATED SEPTEMBER 27, 1965, THAT THE TRUCK DESIGN HAVE A MINIMUM FORK LIFT HEIGHT OF 70 INCHES. HOWEVER, THE ALLEGED CIRCUMSTANCES WHICH LED TO THE PREPARATION OF THE TECHNICAL PROPOSAL SUGGEST THE PROBABILITY THAT THE CONTRACTING OFFICER WOULD NOT HAVE DETERMINED THE BID OF THE DREXEL DYNAMICS CORPORATION TO BE NONRESPONSIVE IF HE HAD REQUESTED THE COMMENTS OF THE USING AGENCY ON THE TECHNICAL PROPOSAL SUBMITTED WITH THE COMPANY'S SIGNED BID, AND THE BID ITSELF. WE BELIEVE THAT THIS SHOULD HAVE BEEN DONE PARTICULARLY SINCE THE TECHNICAL PROPOSAL REFERRED ONLY TO THE JANUARY 15, 1965, SPECIFICATIONS AND IT WAS UNLIKELY THAT THE TECHNICAL PROPOSAL HAD BEEN PREPARED WITHIN THE RELATIVELY SHORT INTERVAL BETWEEN THE DATE OF THE INVITATION FOR BIDS AND THE DATE OF SUBMISSION OF THE BID.

IF, IN FACT, THE TECHNICAL PROPOSAL WAS SUBMITTED TO NAVY PERSONAL EARLIER, WE BELIEVE IT SHOULD NOT BE CONSIDERED AS QUALIFYING THE PRESENT BID, AND SHOULD BE DISREGARDED IN ACCORDANCE WITH THE PROVISIONS OF ASPR 2 -202.5/F).