B-159107, JUL. 19, 1966

B-159107: Jul 19, 1966

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR TELEFAX DATED MAY 4. SHIPPING POINT WAS THE LOWEST RECEIVED OF THE THREE BIDS TENDERED ON THE FIRST INVITATION AND YOUR BID OF $35. DESTINATION WAS THE LOWER OF TWO BIDS RECEIVED ON THE SECOND SOLICITATION. ALL BIDS WERE REJECTED AND BOTH INVITATIONS WERE CANCELLED BECAUSE ALL THE BIDS SUBMITTED WERE DEEMED BY THE PROCURING AGENCY TO BE NONRESPONSIVE FOR VARIOUS REASONS. ALTHOUGH YOUR PROTEST IS DIRECTED AT THE REJECTION OF YOUR BID ON THE FIRST INVITATION THE QUESTION BEFORE US IS THE PROPRIETY OF THE ADMINISTRATIVE DETERMINATIONS TO CANCEL BOTH INVITATIONS. THERE ARE ONLY SLIGHT DIFFERENCES IN THE WORDING OF THE TWO SOLICITATIONS AND HENCE FOR ALL PRACTICAL PURPOSES THEY MAY BE TREATED AS IDENTICAL.

B-159107, JUL. 19, 1966

TO LITTLE GIANT CRANE AND SHOVEL, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX DATED MAY 4, 1966, PROTESTING AGAINST THE REJECTION OF YOUR BID TO SUPPLY ONE NEW 6 BY 4TRUCK-MOUNTED CRANE. THE REQUIREMENT HAS BEEN TWICE SUBMITTED TO COMPETITIVE BIDDING BY THE VICKSBURG DISTRICT, UNITED STATES ARMY CORPS OF ENGINEERS, FIRST PURSUANT TO INVITATION FOR BIDS NO. CIVENG-22-052 66-119 ISSUED ON MARCH 19, 1966, AND THEN UNDER INVITATION FOR BIDS NO. CIVENG-22-052-66-149, ISSUED ON APRIL 26, 1966. YOUR BID OF $35,648.20 F.O.B. DESTINATION AND $34,833.20 F.O.B. SHIPPING POINT WAS THE LOWEST RECEIVED OF THE THREE BIDS TENDERED ON THE FIRST INVITATION AND YOUR BID OF $35,707 F.O.B. DESTINATION WAS THE LOWER OF TWO BIDS RECEIVED ON THE SECOND SOLICITATION. ALL BIDS WERE REJECTED AND BOTH INVITATIONS WERE CANCELLED BECAUSE ALL THE BIDS SUBMITTED WERE DEEMED BY THE PROCURING AGENCY TO BE NONRESPONSIVE FOR VARIOUS REASONS.

ALTHOUGH YOUR PROTEST IS DIRECTED AT THE REJECTION OF YOUR BID ON THE FIRST INVITATION THE QUESTION BEFORE US IS THE PROPRIETY OF THE ADMINISTRATIVE DETERMINATIONS TO CANCEL BOTH INVITATIONS. THERE ARE ONLY SLIGHT DIFFERENCES IN THE WORDING OF THE TWO SOLICITATIONS AND HENCE FOR ALL PRACTICAL PURPOSES THEY MAY BE TREATED AS IDENTICAL. EACH SET FORTH A SET OF SPECIFICATIONS IN TWO PARTS AS PART OF THE SCHEDULE. THE FIRST PART WAS OF A GENERAL NATURE AND THE SECOND, CONSISTING OF ABOUT THREE PAGES, STATED THE TECHNICAL REQUIREMENTS WITH RESPECT TO THE CRANE, ITS COMPONENTS AND EQUIPMENT. BOTH INVITATIONS RECITED AS FOLLOWS:

"2. INFORMATION TO BE FURNISHED BY BIDDERS. IN CONNECTION WITH THE EQUIPMENT PROPOSED TO BE FURNISHED IN RESPONSE TO THIS INVITATION FOR BIDS, THE BIDDER SHALL FURNISH WITH HIS BID MANUFACTURER'S CATALOG DATA, WITH DETAILED SPECIFICATIONS, ALL IN DUPLICATE, SETTING FORTH COMPLETE TECHNICAL DATA RELATING TO EACH REQUIREMENT IN SECTION II OF THESE SPECIFICATIONS. BIDS NOT ACCOMPANIED BY THE REQUIRED DATA WILL BE REJECTED. ALL TECHNICAL DATA OR SPECIFICATIONS ON WHICH THE AWARD WAS BASED WILL BECOME A PART OF THE RESULTING CONTRACT.'

YOUR BID ON THE FIRST INVITATION WAS REJECTED BECAUSE THE DESCRIPTIVE LITERATURE FURNISHED WITH IT SHOWED THAT THE UNIT WHICH YOU WERE PROPOSING DEVIATED FROM THE REQUIREMENTS OF THE GOVERNMENT'S SPECIFICATIONS IN CERTAIN MATERIAL RESPECTS AND BECAUSE CERTAIN OTHER INFORMATION WITHOUT WHICH YOUR BID COULD NOT PROPERLY BE EVALUATED WAS NOT SUBMITTED. WITH RESPECT TO THE FORMER THE RECORD SHOWS THE FOLLOWING NONCONFORMITIES: THE TECHNICAL SPECIFICATIONS REQUIRED A BOOM 40 FEET IN LENGTH AND A BOOM INSERT TO INCREASE THE LENGTH TO 50 FEET WHEREAS THE LETTER DATED APRIL 12, 1966, WHICH ACCOMPANIED YOUR BID, QUOTED ON A 30-FOOT CRANE BOOM EQUIPPED WITH TWO-FOOT CRANE BOOM EXTENSIONS; THE ROTATING UNIT WAS TO BE POWERED BY A DIESEL ENGINE TORQUE CONVERTER OF NOT LESS THAN 82 HORSE POWER RATED WITH ACCESSORIES AT FULL LOAD GOVERNED SPEED OF 1690 R.P.M., WHEREAS THE PERFORMANCE CURVE INCLUDED IN YOUR BID TO DESCRIBE THE PERKINS ENGINE PROPOSED TO BE USED TO POWER THE ROTATING UNIT INDICATES A "CONTINUOUS" BRAKE HORSEPOWER OF ABOUT 72 AT THE SPECIFIED 1690 R.P.M. AND APPARENTLY WITHOUT THE TORQUE CONVERTER ATTACHED; THE SPECIFICATIONS REQUIRED A WHEELBASE OF NO LESS THAN 180 INCHES WHEREAS YOUR UNIT WAS SCHEDULED IN THE BID AS HAVING A WHEELBASE OF 175 INCHES, AND YOU RESERVED THE RIGHT TO CHANGE THE ADVERTISED SPECIFICATIONS WITHOUT LIABILITY IN YOUR COMMERCIAL BROCHURE. WE UNDERSTAND THAT YOU FAILED TO FURNISH ANY DESCRIPTION OF THE TORQUE CONVERTER UPON WHICH YOUR FIRST BID WAS PREDICATED AND, CONTRARY TO THE SPECIFIED REQUIREMENT THAT THE MINIMUM WEIGHT OF THE UNIT BE 51,300 POUNDS, YOUR BID SHOWED A "BASIC" WEIGHT OF THE CARRIER AS 19,100 POUNDS AND BASIC WEIGHT OF 19,216 POUNDS FOR THE UPPER OR CRANE PORTION. THE TOTAL WEIGHT OF 38,316 POUNDS IS 12,984 POUNDS LESS THAN THE REQUIRED MINIMUM WEIGHT AND YOUR BID DID NOT INDICATE WHETHER THE "BASIC" WEIGHT INCLUDED BOOM AND INSERTS, OUTRIGGERS, COUNTERWEIGHTS, OR TORQUE CONVERTER. WE ARE GIVEN TO UNDERSTAND THAT THE MINIMUM WEIGHT IS AN ESSENTIAL FACTOR IN THE ESTABLISHMENT OF THE CLASS AND CAPACITY OF THE MACHINE.

YOUR BID ON THE SECOND INVITATION WAS BASICALLY THE SAME AS THE PREVIOUS OFFER EXCEPT THAT YOU STRUCK OUT OR MODIFIED BY TYPEWRITER SEVERAL PROVISIONS OF THE STANDARD BROCHURE YOU TENDERED IN SATISFACTION OF THE DESCRIPTIVE LITERATURE REQUIREMENT. THE PROCURING INSTALLATION VOICED THE FOLLOWING CRITICISMS OF THIS SECOND BID: THE DELETIONS POSED THE QUESTION WHETHER YOUR BID WAS IN FACT ON STANDARD COMMERCIAL EQUIPMENT AS REQUIRED BY THE SPECIFICATIONS OR ON A SPECIALLY MODIFIED UNIT; THE SECOND BID DOES NOT RESOLVE THE QUESTIONS REGARDING THE UNIT'S WEIGHT; ALTHOUGH THE MANUFACTURER OF THE TORQUE CONVERTER IS IDENTIFIED THE BID DOES NOT STATE A MODEL NUMBER OR INCLUDE DATA ON THE PARTICULAR CONVERTER BID UPON; YOUR BID FAILED TO FURNISH DATA ON THE HYDRAULIC OPERATED OUTRIGGERS; YOU DID NOT STATE WHETHER YOUR PROPOSED UNIT WOULD MEET SPEED AND GRADE-ABILITY REQUIREMENTS.

PARAGRAPH 2-202.5 (D) (1) OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT WHEN BIDDERS ARE REQUIRED TO SUBMIT DESCRIPTIVE LITERATURE AS PART OF THEIR BIDS, THE INVITATION FOR BIDS SHALL CLEARLY STATE WHAT DESCRIPTIVE LITERATURE IS TO BE FURNISHED, THE PURPOSE FOR WHICH IT IS REQUIRED, THE EXTENT TO WHICH IT WILL BE CONSIDERED IN THE EVALUATION OF BIDS, AND THE RULES WHICH WILL APPLY IF THE LITERATURE FURNISHED DOES NOT COMPLY WITH THE INVITATION REQUIREMENTS. THE REGULATION IS UNDOUBTEDLY BASED ON OUR DECISION PUBLISHED AT 42 COMP. GEN. 598 WHEREIN WE HELD THAT DESCRIPTIVE LITERATURE REQUIREMENT MUST BE STATED IN THE INVITATION WITH SUCH PARTICULARITY AS IS NECESSARY TO APPRISE BIDDERS OF THE COMPONENTS OR CHARACTERISTICS OF THE END PRODUCT AS TO WHICH INFORMATION IS REQUIRED AND OF THE SPECIFIC DATA WITH REGARD TO THESE ITEMS WHICH MUST BE INCLUDED IN THE BID. UNLESS THE INVITATION SATISFIES THIS REQUIREMENT BIDDERS WILL BE WITHOUT A COMMON BASIS FOR COMPETITION AND THE GOVERNMENT MAY FIND ITSELF AFTER RECEIPT OF THE BIDS WITH INSUFFICIENT INFORMATION TO EVALUATE WHAT THE BIDDERS ARE OFFERING TO FURNISH.

WE THINK NEITHER OF THE INVITATIONS ISSUED IN THIS CASE ADEQUATELY COMMUNICATED THE MATERIAL ASPECTS OF THE GOVERNMENT'S MINIMUM REQUIREMENTS TO PROSPECTIVE BIDDERS. THE QUESTION OF THE RESPONSIVENESS OF EITHER OR BOTH OF YOUR BIDS NEED NOT BE REACHED HERE BECAUSE WE AGREE WITH THE CORPS OF ENGINEERS THAT THE BEST INTERESTS OF THE GOVERNMENT DICTATE READVERTISEMENT OF THE REQUIREMENT AT A LATER DATE UNDER AN INVITATION WHICH MEETS THE CRITICISM HEREINABOVE SET FORTH.