B-159561, NOV. 4, 1966

B-159561: Nov 4, 1966

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TO BEAR MANUFACTURING COMPANY: REFERENCE IS MADE TO COPIES OF YOUR TELEGRAM AND LETTER DATED JUNE 17 AND JUNE 20. WE HAVE BEEN ADVISED THAT THE EXTENDED ACCEPTANCE DATE OF BIDS EXPIRED ON SEPTEMBER 23. AWARD OF THE CONTRACT TO WHEEL BALANCER MANUFACTURERS ASSOCIATED WAS MADE ON SEPTEMBER 23. AS FURTHER DELAY WAS CONSIDERED TO BE CONTRARY TO THE BEST INTERESTS OF THE GOVERNMENT. THE FACTS IN THIS CASE ARE AS FOLLOWS. IT WAS DETERMINED THAT OF THE TWO BIDDERS RESPONDING. WHEEL BALANCER MANUFACTURERS ASSOCIATED'S BID WAS THE APPARENT LOW BID. YOU CONTEND THAT YOU ARE THE LOWEST RESPONSIVE BIDDER FOR THE REASON THAT THE APPARENT LOW BIDDER DOES NOT COMPLY WITH SPECIFICATION MIL-B 26994A. YOU CONTEND THAT THE APPARENT LOW BIDDER'S FAILURE TO COMPLY WITH THE SPECIFICATION IS EVIDENCED BY THE OPERATIONAL MANUAL FURNISHED ON A PREVIOUS CONTRACT.

B-159561, NOV. 4, 1966

TO BEAR MANUFACTURING COMPANY:

REFERENCE IS MADE TO COPIES OF YOUR TELEGRAM AND LETTER DATED JUNE 17 AND JUNE 20, 1966, RESPECTIVELY, AND LETTER DATED JUNE 24, 1966, PROTESTING THE AWARD OF A CONTRACT BY THE DEPARTMENT OF THE ARMY UNDER INVITATION FOR BIDS (IFB) NO. DAAG-11-66-B-0454/W) TO ANY OTHER BIDDER. WE HAVE BEEN ADVISED THAT THE EXTENDED ACCEPTANCE DATE OF BIDS EXPIRED ON SEPTEMBER 23, 1966, AND NEITHER OF THE TWO BIDDERS WOULD GRANT FURTHER EXTENSIONS. ACCORDINGLY, AWARD OF THE CONTRACT TO WHEEL BALANCER MANUFACTURERS ASSOCIATED WAS MADE ON SEPTEMBER 23, 1966, AS FURTHER DELAY WAS CONSIDERED TO BE CONTRARY TO THE BEST INTERESTS OF THE GOVERNMENT.

THE FACTS IN THIS CASE ARE AS FOLLOWS. ON MAY 26, 1966, THE UNITED STATES ARMY CHICAGO PROCUREMENT DETACHMENT ISSUED THE SUBJECT IFB WHICH CALLED FOR THE FURNISHING OF AN INDEFINITE QUANTITY OF BALANCERS, VEHICLE WHEEL, ON-THE-VEHICLE TYPE, WITH ELECTROMAGNETIC COMPATIBILITY, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-B-26994A, THE MINIMUM QUANTITY BEING 20 EACH AND MAXIMUM QUANTITY OF 60 EACH. ON JUNE 10, 1966, BID OPENING DATE, IT WAS DETERMINED THAT OF THE TWO BIDDERS RESPONDING, WHEEL BALANCER MANUFACTURERS ASSOCIATED'S BID WAS THE APPARENT LOW BID.

YOU CONTEND THAT YOU ARE THE LOWEST RESPONSIVE BIDDER FOR THE REASON THAT THE APPARENT LOW BIDDER DOES NOT COMPLY WITH SPECIFICATION MIL-B 26994A, AS DESCRIBED ON PAGE 4, PARAGRAPH 3.5, PERFORMANCE AND PRODUCT CHARACTERISTICS; SUBPARAGRAPHS 3.5.1, PERFORMANCE; 3.5.2, CAPACITY; AND 3.5.3, ACCURACY. YOU CONTEND THAT THE APPARENT LOW BIDDER'S FAILURE TO COMPLY WITH THE SPECIFICATION IS EVIDENCED BY THE OPERATIONAL MANUAL FURNISHED ON A PREVIOUS CONTRACT, NO. DA-11-199-ORD 835, ISSUED BY ARMY WEAPONS COMMAND, ROCK ISLAND, ILLINOIS, AND UNDER WHICH SPECIFICATION MIL- B-26994A APPLIED. IN THIS CONNECTION, IT SHOULD BE NOTED THAT AS LONG AS WHEEL BALANCER IS FOUND TO BE CAPABLE OF COMPLYING WITH THE REQUIREMENTS OF THE SUBJECT IFB AND IS RESPONSIVE THERETO, THERE APPEARS TO BE NO PROPER BASIS FOR WITHHOLDING AWARD FROM THE LOW BIDDER.

TO VERIFY YOUR ALLEGATIONS, YOU RECOMMEND THAT THE ARTICLE OFFERED BY THE LOW BIDDER BE EVALUATED TO DETERMINE ITS CAPABILITY TO BALANCE BOTH MINIMUM AND MAXIMUM SIZE WHEEL ASSEMBLIES ACCORDING TO SPECIFICATIONS.

THE RECORD BEFORE US INDICATES THAT ON JUNE 17, 1966, A PREAWARD SURVEY WAS CONDUCTED BY THE DCASR OFFICE IN ST. LOUIS, MISSOURI. A RESURVEY WAS CONDUCTED ON JUNE 25, 1966, TO DETERMINE CAPABILITY OF CONTRACTOR'S TEST EQUIPMENT. FOLLOWUP WAS NECESSARY DUE TO INABILITY TO PRODUCE ON SHORT NOTICE A VEHICLE WITH A WHEEL AND TIRE TO SPECIFICATION REQUIREMENTS OF 11.00-20 INCHES. THE FOLLOWUP SURVEY WAS CONDUCTED ON JULY 6, 1966. THE OPERATIONAL TESTS CALLED FOR IN PARAGRAPHS 4.4.4.1 AND 4.4.4.3 OF MIL-B- 26994A WERE SATISFACTORILY CONDUCTED WITH THE EXCEPTION THAT A VEHICLE WITH A 15-INCH WHEEL AND TIRE WAS NOT READILY AVAILABLE BUT A WHEEL AND TIRE OF 8.50-14 INCHES WERE USED WITH BALANCER SERIAL NO. 7104. THE SURVEYS RESULTED IN AN UNQUALIFIED RECOMMENDATION FOR AWARD TO WHEEL BALANCER MANUFACTURERS ASSOCIATED. IN ADDITION TO SUCH PREAWARD SURVEY, THE ROCK ISLAND ARSENAL HAD A REPRESENTATIVE WITNESS THE TESTS PERFORMED AT WHEEL BALANCER MANUFACTURERS ASSOCIATED ON JULY 8, 1966. IT IS ALSO STATED THAT THE REPRESENTATIVE'S TRIP REPORT SUPPORTS THE CONCLUSION THAT THE WHEEL BALANCER MANUFACTURED BY THE LOW BIDDER MEETS THE SPECIFICATIONS OF THE SUBJECT IFB. THE SUBJECT IFB INVITED BIDS AGAINST A PERFORMANCE TYPE SPECIFICATION AND SINCE WHEEL BALANCER SUBMITTED AN UNQUALIFIED BID, IT WAS THEREFORE LITERALLY RESPONSIVE TO THE INVITATION.

IT IS FURTHER REPORTED THAT BECAUSE THE ALLEGATIONS OF YOUR PROTEST WERE BASED ON CIRCUMSTANCES RELATING TO A PREVIOUS PROCUREMENT FOR WHEEL BALANCERS, AND UNDER WHICH SPECIFICATION MIL-B-26994A APPLIED, THE TECHNICAL EVALUATION AND TESTING CONDUCTED BY THE ST. LOUIS DCASR ON JULY 8, 1966, WERE ATTENDED BY A TECHNICAL REPRESENTATIVE OF THE ROCK ISLAND ARSENAL. IT IS STATED THAT THE BALANCERS SUBMITTED BY WHEEL BALANCER COMPLETELY MEET THE GOVERNMENT REQUIREMENTS AND THAT THE GOVERNMENT HAS FOLLOWED TO THE LETTER YOUR SUGGESTION THAT THE ARTICLE OFFERED BY THE LOW BIDDER BE EVALUATED TO DETERMINE ITS CAPABILITY TO BALANCE BOTH MINIMUM AND MAXIMUM SIZE WHEEL ASSEMBLIES ACCORDING TO SPECIFICATIONS. IT IS STATED THAT THESE ADDITIONAL TESTS MERELY VERIFY PREVIOUS DCASR PREAWARD SURVEYS AND ACCEPTANCE TESTS.

THE LOW BID SUBMITTED BY WHEEL BALANCER IS FREE OF ANY EXCEPTION TO THE SPECIFICATION REQUIREMENTS OF THE INVITATION FOR BIDS. THUS, FOR ALL INTENTS AND PURPOSES, THE LOW BIDDER HAS CONSENTED AND AGREED TO CONFORM TO THE ADVERTISED SPECIFICATION. MOREOVER, THE ADMINISTRATIVE OFFICE HAS DETERMINED THAT, ON THE BASIS OF TESTS CONDUCTED, THE WHEEL BALANCER TO BE FURNISHED BY THE LOW BIDDER MEETS THE SPECIFICATIONS.

WE HAVE CONSISTENTLY HELD THAT THE FUNCTION OF DETERMINING WHETHER EQUIPMENT OFFERED BY A BIDDER CONFORMS TO THE DETAILED TECHNICAL REQUIREMENTS OF THE SPECIFICATIONS IS ONE FOR EXERCISE BY THE CONTRACTING AND ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT AND, WHEN A DETERMINATION IS MADE IN THE EXERCISE OF SUCH FUNCTION, IT IS CONTROLLING IN THE ABSENCE OF CAPRICIOUS OR ARBITRARY ACTION. SEE 36 COMP. GEN. 251; 40 ID. 35; 41 ID. 124, 127, AND CASES CITED. IN VIEW OF THE ADMINISTRATIVE POSITION WITH RESPECT TO THE RESPONSIVENESS OF WHEEL BALANCER MANUFACTURERS ASSOCIATED'S BID, AND PARTICULARLY IN THE LIGHT OF THE TESTS CONDUCTED, WE ARE OF THE OPINION THAT THE AWARD MAY NOT BE QUESTIONED ON THE BASIS THAT THE BID WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE PROCUREMENT.

FOR YOUR INFORMATION, WE HAVE BEEN INFORMALLY ADVISED THAT WHEN THE FIRST WHEEL BALANCERS ARE DELIVERED TO THE ROCK ISLAND ARSENAL, ROCKISLAND, ILLINOIS, THEY WILL BE TESTED TO DETERMINE WHETHER THEY COMPLY WITH THE SPECIFICATIONS. WE HAVE ALSO BEEN ADVISED THAT THE WEAPONS COMMAND AT ROCK ISLAND ARSENAL WILL INVITE REPRESENTATIVES OF YOUR FIRM TO ATTEND THIS TESTING. AT THIS TIME YOU WILL BE GIVEN AN OPPORTUNITY TO DEMONSTRATE IN WHAT RESPECT, IF ANY, THE WHEEL BALANCERS FURNISHED BY THE LOW BIDDER FAIL TO MEET THE SPECIFICATIONS.

IN THE CIRCUMSTANCES, OUR OFFICE HAS NO ALTERNATIVE BUT TO DENY YOUR PROTEST.