B-159016, MAY 27, 1966

B-159016: May 27, 1966

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AWARD IS TO BE MADE ON LOT 1 AND EITHER LOT 2 OR 3. BIDS ON LOTS 2 AND 3 WERE SOLICITED TO SATISFY A REQUIREMENT OF THE NAVAL AIR SHORE ACTIVITIES AND WERE INVITED. WERE FOUND BY THE TECHNICAL EVALUATORS. ORIGIN ON LOTS 1 AND 2 WAS THE LOWEST SUBMITTED. BECAUSE OF CERTAIN GEAR RATIOS SCHEDULED ON THE PRODUCT QUESTIONNAIRE (NAVWEPS FORM 4200/12) WHICH WAS MADE A PART OF YOUR BID BY THE TERMS OF THE INVITATION. WITH THE POWER TRAIN GEAR RATIOS OF 5.1:1 AND 1.32:1 WHICH YOU SPECIFIED ON THE QUESTIONNAIRE YOUR VEHICLE WOULD NOT HAVE THE 30. IN PRACTICAL EFFECT THE TRUCK DESCRIBED BY YOUR QUESTIONNAIRE WOULD HAVE UNSATISFACTORY DRAWBAR PULL IN ALL FORWARD GEARS AND MIGHT DEMONSTRATE A TENDENCY.

B-159016, MAY 27, 1966

TO WARD LA FRANCE TRUCK CORPORATION:

BY LETTER OF APRIL 22, 1966, YOU PROTESTED THE PROPOSED REJECTION BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C., OF YOUR BID ON INVITATION FOR BIDS NO. 600-78-66 ISSUED ON SEPTEMBER 16, 1965, AND OPENED ON NOVEMBER 5, 1965. THE INVITATION COVERED THREE LOTS OF MB-1 CRASH AND FIRE-FIGHTING VEHICLES, TOTALLING 95 AIRCRAFT RESCUE TRUCKS, TOGETHER WITH PROVISIONING DATA, PUBLICATIONS, AND DATA SHEETS. LOT 1 SOLICITED BIDS TO SUPPLY 16 DIESEL ENGINE DRIVEN UNITS EQUIPPED WITH SIX-WHEEL DRIVE FOR SHIPMENT TO ELEMENTS OF THE AIR FLEET MARINE FORCES LOCATED AT VARIOUS DESTINATIONS. LOT 2 COMPRISED GASOLINE ENGINE DRIVEN, SIX-WHEEL DRIVE UNITS, FOR SHIPMENT TO NUMEROUS DESTINATIONS. LOT 3 ENCOMPASSED GASOLINE ENGINE DRIVEN, FOUR WHEEL DRIVE UNITS. AWARD IS TO BE MADE ON LOT 1 AND EITHER LOT 2 OR 3, ALTERNATIVELY (OR ON THE BASIS OF SOME MIXTURE OF UNITS FROM LOTS 2 AND 3), TAKING INTO ACCOUNT THE LOWEST OVERALL COST TO THE GOVERNMENT. BIDS ON LOTS 2 AND 3 WERE SOLICITED TO SATISFY A REQUIREMENT OF THE NAVAL AIR SHORE ACTIVITIES AND WERE INVITED, ALTERNATIVELY, ON BOTH ORIGIN AND DESTINATION BASES.

OF THE FIVE BIDS TENDERED IN RESPONSE TO THE INVITATION ONLY THE BIDS OF YANKEE WALTER CORPORATION AND OSHKOSH MOTOR TRUCK, INCORPORATED, WERE FOUND BY THE TECHNICAL EVALUATORS, THE BUREAU OF NAVAL WEAPONS AND THE BUREAU OF YARDS AND DOCKS, TO BE FULLY RESPONSIVE TO THE REQUIREMENTS OF THE ADVERTISEMENT. ALTHOUGH YOUR TOTAL EVALUATED PRICE OF $3,929,370 F.O.B. ORIGIN ON LOTS 1 AND 2 WAS THE LOWEST SUBMITTED, NPO HAS DETERMINED TO DISREGARD YOUR BID AS NONRESPONSIVE BECAUSE OF THE FIGURES FOR NET MAXIMUM TORQUE GENERATED BY THE ENGINE TO BE SUPPLIED WITH LOT 1 UNITS, THE MAXIMUM INPUT TORQUE CAPACITIES OF THE TRANSMISSION, TRANSFER CASE, FRONT AXLE AND BOGIE, AND BECAUSE OF CERTAIN GEAR RATIOS SCHEDULED ON THE PRODUCT QUESTIONNAIRE (NAVWEPS FORM 4200/12) WHICH WAS MADE A PART OF YOUR BID BY THE TERMS OF THE INVITATION. NAVY ENGINEERS MAINTAIN, BASED ON CALCULATIONS FROM THESE FIGURES, THAT A VEHICLE BUILT IN ACCORDANCE WITH THIS DATA WOULD CONTRAVENE THE APPLICABLE MILITARY SPECIFICATION, MIL-T- 21737A (WP) DATED FEBRUARY 4, 1965, AS MODIFIED IN THE INVITATION, IN THE FOLLOWING RESPECTS: THE MAXIMUM AVAILABLE TORQUE THAT MAY OPERATIONALLY BE TRANSMITTED TO THE AXLES AND TRANSFER CASE EXCEEDS THE INPUT TORQUE CAPACITIES OF THE AXLES AND TRANSFER CASE; WITH THE POWER TRAIN GEAR RATIOS OF 5.1:1 AND 1.32:1 WHICH YOU SPECIFIED ON THE QUESTIONNAIRE YOUR VEHICLE WOULD NOT HAVE THE 30,400 DRAWBAR POUND PULL NECESSARY TO SATISFY PARAGRAPH 3.6 (M). THE MILITARY SPECIFICATION, AS AMENDED, READS IN PERTINENT PART AS FOLLOWS:

"THE AXLE MANUFACTURER'S TORQUE CAPACITY RATING SHALL BE NUMERICALLY GREATER THAN THE TORQUE IMPOSED BY THE ENGINE THROUGH THE GEAR TRAIN, OR THE TORQUE REACTION IMPOSED BY THE GVW (GROSS VEHICLE WEIGHT) OF THE VEHICLE WITH A DESIGNATED COEFFICIENT OF FRICTION OF .85 BETWEEN THE TIRE AND THE GROUND, THE LESSER VALUE BEING ACCEPTABLE. * * *" (THE QUOTED PROVISION APPEARS IN PARAGRAPH 3.3.7.5 WITH RESPECT TO LOTS 1 AND 2. PARENTHETICAL MATERIAL SUPPLIED.)

"THE VEHICLE SHALL DEVELOP A DRAWBAR PULL OF AT LEAST EQUAL TO A CO EFFICIENT OF FRICTION OF 0.80.' (PARAGRAPH 3.6 (M) ). IN PRACTICAL EFFECT THE TRUCK DESCRIBED BY YOUR QUESTIONNAIRE WOULD HAVE UNSATISFACTORY DRAWBAR PULL IN ALL FORWARD GEARS AND MIGHT DEMONSTRATE A TENDENCY, WHEN OPERATED UNDER THE MOST ADVERSE CONDITIONS, TO STRIP ITS GEARS IN REVERSE.

WE UNDERSTAND THAT YOU HAVE CONCEDED THAT A VEHICLE BUILT IN ACCORDANCE WITH THE DATA ORIGINALLY SUPPLIED WITH YOUR BID WOULD BE SUBJECT TO THESE CRITICISMS AND THEREFORE WOULD NOT BE FEASIBLE BUT YOU CONTEND THAT THE GEAR RATIOS AND TORQUE INPUT CAPACITIES OF THE POWER TRAIN COMPONENTS WERE LISTED INCORRECTLY ON YOUR FORM 4200/12. YOU STATE THAT THE ENGINE TO BE SUPPLIED WITH LOT 1, TRANSMISSION, TRANSFER CASE, AND AXLES, AS LISTED ON YOUR QUESTIONNAIRE BY MAKE AND MODEL NUMBER DO INDEED MEET ALL THE REQUIREMENTS OF THE SPECIFICATIONS BUT THAT YOU MISTAKENLY MISREPRESENTED SUCH CHARACTERISTICS OF THESE POWER TRAIN COMPONENTS AS THE NET MAXIMUM ENGINE TORQUE, MAXIMUM INPUT TORQUE CAPACITIES OF THE TRANSFER BOX AND AXLES, AND GEAR RATIOS. YOU HAVE REQUESTED PERMISSION TO REVISE YOUR NAVWEPS FORM 4200/12 AFTER BID OPENING SO AS TO INSERT THEREIN THE CORRECT FIGURES FOR ENGINE PERFORMANCE, TORQUE CAPACITIES, AND REDUCTION RATIOS AND YOU HAVE ADDUCED EVIDENCE FROM YOUR SUPPLIER OF TRANSFER BOXES AND AXLES, THE FWD CORPORATION, TO SHOW THAT THE COMPONENT RATINGS FOR ALL THREE LOTS EXCEED THE STATED TORQUE AND THAT THE VEHICLES AS EQUIPPED WITH THESE COMPONENTS WILL MEET ALL THE PERFORMANCE TESTS REQUIRED BY THE SPECIFICATIONS WITH RESPECT TO GRADE-ABILITY, WHEEL SLIP, DRAWBAR PULL, MAXIMUM TORQUE, AND SO FORTH. YOU HAVE STATED THAT THE CHANGE IN DATA IN NO WAY REFLECTS ANY CHANGES IN THE COMPONENTS ORIGINALLY OFFERED AND THAT THEREFORE THE MODIFICATIONS AFTER BID OPENING OUGHT TO BE ALLOWABLE UNDER THE AUTHORITY OF ARMED SERVICES PROCUREMENT REGULATION 2-405 AS CORRECTIONS OF MINOR INFORMALITIES AND IRREGULARITIES IN YOUR BID.

ALTHOUGH IN GENERAL BIDS ARE TO BE INTERPRETED IN THE FORM IN WHICH THEY APPEAR AT THE OPENING AND NOT ON THE BASIS OF EXPLANATIONS OFFERED THEREAFTER (SEE 43 COMP. GEN. 23, 25), WE HAVE HELD THAT MINOR VARIANCES NOT AFFECTING PRICE, QUALITY, QUANTITY, OR DELIVERY MIGHT BE WAIVED BY CONTRACTING AGENCIES OR CORRECTED AFTER OPENING IN ORDER TO PERMIT AWARD ON THE BASIS OF THE BID IN QUESTION. 40 COMP. GEN. 548; 30 COMP. GEN. 179. WE HAVE FURTHER HELD THAT THE INFORMALITIES WHICH MAY BE WAIVED ARE THOSE OF FORM AND NOT OF SUBSTANCE, OR OF SOME IMMATERIAL AND INCONSEQUENTIAL DEFECT IN OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION. 37 COMP. GEN. 763, 767. YOUR ARGUMENT IS THAT YOUR ORIGINAL QUESTIONNAIRE ACCURATELY AND ADEQUATELY IDENTIFIED THE POWER TRAIN COMPONENTS YOU PROPOSED TO EMBODY IN THE VEHICLES IN THE EVENT YOU RECEIVED THE AWARD BUT DID NOT ACCURATELY REFLECT THE PERFORMANCE CHARACTERISTICS OF THESE COMPONENTS BECAUSE AN ENGINE SUPPLIER SENT YOU AN INCORRECT POWER CURVE AND BECAUSE OF YOUR INABILITY TO ACQUIRE CERTAIN INFORMATION NEEDED TO FILL OUT THE QUESTIONNAIRE IN TIME FOR THE CLOSING DATE FOR RECEIPT OF BIDS AND YOUR MISINTERPRETATION OF OTHER INFORMATION. YOU POINT OUT THAT THE SPECIFICATION WORDING MERELY REQUIRES THE AXLE MANUFACTURER'S TORQUE CAPACITY RATING, NOT THE RATING LISTED ON THE QUESTIONNAIRE, TO EXCEED THE MAXIMUM POSSIBLE TORQUE TO BE IMPOSED UPON THE POWER TRAIN COMPONENTS. WE DO NOT AGREE THAT THE MISINFORMATION SCHEDULED ON YOUR DATA SHEET NEED NOT HAVE ANY EFFECT UPON THE QUALITY OF THE PRODUCT OFFERED IN YOUR BID.

THE INVITATION FOR BIDS SET FORTH THE FOLLOWING DESCRIPTIVE LITERATURE REQUIREMENT AT PAGE 34 IN THIS CASE:

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS * * *. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, COMPONENTS, DIMENSIONS AND PERFORMANCE CHARACTERISTICS.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID * * *.

"DESCRIPTION OF LITERATURE

WITH REFERENCE TO THE CLAUSE ENTITLED REQUIREMENT FOR DESCRIPTIVE LITERATURE, THE FOLLOWING DESCRIPTIVE LITERATURE IS REQUIRED:

THE AREAS DESIGNATED IN PARAGRAPH 6.1 OF SPECIFICATION MIL-T 21737A.'

PARAGRAPH 6.1 OF THE MILITARY SPECIFICATION READS IN PERTINENT PART:

"/A) COMPLETION OF THREE (3) COPIES OF EACH NAVWEPS FORM 4200/12 FORWARDED WITH THE INVITATION FOR BIDS.'

THE "PRODUCT QUESTIONNAIRE" REFERRED TO CANNOT BE CHALLENGED FOR LACK OF EXPLICITNESS NOR MAY THE INVITATION FAIRLY BE CRITICIZED FOR FAILURE TO DETAIL WITH SUFFICIENT PARTICULARITY THE PURPOSES FOR WHICH THE VARIOUS TECHNICAL DATA WERE REQUIRED. CF. 42 COMP. GEN. 737; ID. 598. THE INVITATION CLEARLY STATED OR IMPLIED THAT THE DATA WAS TO CONSTITUTE A PART OF THE BID AND THEREFORE OF ANY SUBSEQUENT AWARD, THAT IT WAS REQUIRED FOR THE EVALUATION OF THE BIDS, AND THAT BIDS WOULD BE CONSTRUED AS OFFERING TO FURNISH EQUIPMENT EXACTLY IN ACCORDANCE THEREWITH SO THAT IN CASE OF A VARIANCE BETWEEN THE DESCRIPTIVE LITERATURE AND THE ADVERTISED SPECIFICATIONS THE LITERATURE WELL MIGHT BE CONSIDERED AS DESCRIBING THE PRODUCT OFFERED.

A LONG LINE OF DECISIONS RECOGNIZES THE AUTHORITY OF ADMINISTRATIVE AGENCIES TO CONDITION THE CONSIDERATION AND EVALUATION OF BIDS IN THE PROCUREMENT OF SPECIALIZED EQUIPMENT UPON THE SUBMISSION BY BIDDERS OF SPECIFIC DESCRIPTIVE DATA ON SPECIFIC COMPONENTS TO ENABLE THEM TO CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY THE MAKING OF AN AWARD. 42 COMP. GEN. 737; 41 ID. 192; 40 ID. 132 AND 458; 37 ID. 763; 36 ID. 415.

WE HAVE REVIEWED THE MATERIALS SUBMITTED BY YOU FROM YOUR PROPOSED SUPPLIER, THE FWD CORPORATION, AND WE MUST CONCLUDE WITH THE BUREAU OF YARDS AND DOCKS AND THE BUREAU OF NAVAL WEAPONS THAT THE DETAILS OF DESIGN AND PERFORMANCE CHARACTERISTICS OF YOUR PROPOSED RESCUE TRUCKS WERE NOT COMPLETELY FIXED AT THE TIME OF BID OPENING BY THE IDENTIFICATION OF MAKE AND MODEL NUMBERS IN YOUR QUESTIONNAIRE.

YOU MAINTAIN THAT SINCE THE AXLE MANUFACTURER'S ACTUAL TORQUE CAPACITY RATINGS EXCEED THE MAXIMUM POSSIBLE INPUT TORQUE TO THE TRANSFER BOX AND AXLES THE ARITHMETICAL ERRORS SUPPLIED ON YOUR QUESTIONNAIRE CANNOT BE DEEMED MATERIAL. THIS ARGUMENT OVERLOOKS THE EXPRESS WORDING OF THE INVITATION, AND IGNORES THE PREJUDICE TO OTHER BIDDERS WHO FULLY COMPLIED WITH THE REQUIREMENT FOR DESCRIPTIVE LITERATURE BY INCLUDING COMPLETE AND CORRECT DATA AS PART OF THEIR BIDS. THE PRECEPT OF THE STATUTES GOVERNING FORMAL ADVERTISING THAT IN THE COMPETITION FOR AWARD BIDDERS MUST BE PUT UPON AN EQUAL PLANE HAS GIVEN RISE TO THE RULE OF LONG STANDING THAT A NONRESPONSIVE BID MAY NOT BE CORRECTED AFTER BID OPENING IN ORDER TO MAKE IT RESPONSIVE. 38 COMP. GEN. 819, 35 ID. 98; 34 ID. 24.

YOU HAVE URGED THAT UPON AWARD THERE CAN BE NO AMBIGUITY AS TO A BIDDER'S REQUIRED PERFORMANCE AND THAT IRRESPECTIVE OF THE MISTAKES IN YOUR BID WARD LA FRANCE COULD BE COMPELLED TO MEET ALL THE TESTING REQUIREMENTS OF THE SPECIFICATIONS. IN ANSWER TO A SIMILAR CONTENTION IN 37 COMP. GEN. 763 AT PAGE 765 WE STATED OUR VIEW THAT:

"* * * WE REGARD IT AS EXTREMELY DOUBTFUL, TO SAY THE LEAST, WHETHER IT COULD BE SUCCESSFULLY MAINTAINED THAT AN AWARD * * * WOULD NOT CONSTITUTE A BINDING ACKNOWLEDGEMENT BY THE GOVERNMENT THAT ARTICLES CONFORMING TO THE SUCCESSFUL BIDDER'S DESCRIPTIVE MATERIAL WOULD BE ACCEPTABLE UNDER THE SPECIFICATIONS OF THE INVITATION.'

WE ARE ASKED TO CONCLUDE THAT THE PRODUCT QUESTIONNAIRE WAS MEANT TODEAL WITH THE RESPONSIBILITY OF BIDDERS AND NOT THE RESPONSIVENESS OF THEIR BIDS. WE HAVE CONSIDERED CASES WHERE THE INVITATION DID NOT EXPRESSLY MAKE THE DESCRIPTIVE DATA A PART OF THE BID OR PRESCRIBE AS PENALTY FOR NONCOMPLIANCE THE NECESSARY REJECTION OF THE BID, SEE 41 COMP. GEN. 755 AND 39 ID. 684; OR WHERE THE SENSE OF THE INVITATION, WHEN TAKEN AS A WHOLE, APPEARED TO RENDER THE DESCRIPTIVE LITERATURE REQUIREMENT PROBATIVE OF BIDDERS' RESPONSIBILITY RATHER THAN THEIR RESPONSIVENESS. SEE 42 COMP. GEN. 728. TO DETERMINE THAT THE REQUIREMENT AS STATED IN THE INVITATION IN POINT WENT TO RESPONSIBILITY AND NOT RESPONSIVENESS WOULD BE TO IGNORE THE PLAIN MEANING OF ITS PROVISIONS AND TO REPUDIATE THE POSITION TAKEN BY OUR OFFICE IN THE LINE OF ..END :