B-159692, NOV. 7, 1966

B-159692: Nov 7, 1966

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TO INTERNATIONAL HARVESTER COMPANY: REFERENCE IS MADE TO YOUR TELETEX OF JULY 15. BECAUSE IT CONTENDED THAT SUCH ENGINE DISPLACEMENT WAS NOT A RELIABLE CRITERION OF POWER. THE CONTRACTING OFFICER REFERRED THE MATTER TO HIS TECHNICAL PERSONNEL WHO ADVISED THAT THE CUBIC INCH DISPLACEMENT WAS A NECESSARY REQUIREMENT. NO REVISION WAS MADE IN THE SPECIFICATIONS IN THAT REGARD AND A REPRESENTATIVE OF YOUR COMPANY WAS ADVISED THAT A BID TENDERED ON LESS THAN A 500 CUBIC INCH DISPLACEMENT ENGINE WOULD BE CONSIDERED NONRESPONSIVE. AWARD WAS MADE TO THE NEXT LOW BIDDER WHO OFFERED ALLIS CHALMERS EQUIPMENT. IT IS THE OPINION OF THE DIRECTORATE THAT ENGINE DISPLACEMENT IS NOT A CRITERION FOR SPECIFIED HORSEPOWER AND THAT THE ENGINE DISPLACEMENT REQUIREMENT IN THE INVITATION CONSTITUTED AN UNDULY RESTRICTIVE SPECIFICATION.

B-159692, NOV. 7, 1966

TO INTERNATIONAL HARVESTER COMPANY:

REFERENCE IS MADE TO YOUR TELETEX OF JULY 15, 1966, AND LETTER OF JULY 20, 1966, PROTESTING THE REJECTION OF YOUR LOW BID UNDER ARMY INVITATION DAFA03 66 B 0080 ISSUED OUT OF FORT RICHARDSON, ALASKA.

THE INVITATION SOLICITED BIDS FOR TWO CRAWLER TRACTORS WITH ANGLE DOZERS AND SINGLE DRUM WINCHES, ALLIS CHALMERS AC HD11E, CATERPILLAR 1H OR EQUAL. THE INVITATION SPECIFICATIONS FOR THE TRACTORS INCLUDED A REQUIREMENT THAT THE ENGINE BE NOT LESS THAN 500 CUBIC INCHES. PRIOR TO THE BID OPENING DATE, YOUR COMPANY ATTEMPTED TO GET THE CONTRACTING OFFICER TO EITHER REVISE DOWNWARD OR DELETE THE CUBIC INCH REQUIREMENT, BECAUSE IT CONTENDED THAT SUCH ENGINE DISPLACEMENT WAS NOT A RELIABLE CRITERION OF POWER. THE CONTRACTING OFFICER REFERRED THE MATTER TO HIS TECHNICAL PERSONNEL WHO ADVISED THAT THE CUBIC INCH DISPLACEMENT WAS A NECESSARY REQUIREMENT. THUS, NO REVISION WAS MADE IN THE SPECIFICATIONS IN THAT REGARD AND A REPRESENTATIVE OF YOUR COMPANY WAS ADVISED THAT A BID TENDERED ON LESS THAN A 500 CUBIC INCH DISPLACEMENT ENGINE WOULD BE CONSIDERED NONRESPONSIVE.

YOUR COMPANY NEVERTHELESS OFFERED IN ITS BID UNDER THE INVITATION TO FURNISH ITS CRAWLER TRACTOR POWERED WITH A 361 CUBIC INCH DISPLACEMENT ENGINE. IN LINE WITH THE PREVIOUS ADVICE, THE CONTRACTING OFFICER REJECTED THE LOW BID OF YOUR COMPANY AS NONRESPONSIVE. AWARD WAS MADE TO THE NEXT LOW BIDDER WHO OFFERED ALLIS CHALMERS EQUIPMENT.

FOLLOWING RECEIPT OF THE NOTICE OF AWARD, YOU PROTESTED TO OUR OFFICE THE REJECTION OF YOUR COMPANY'S BID. IN ACCORDANCE WITH REGULAR PROCEDURE, OUR OFFICE BROUGHT THE MATTER TO THE ATTENTION OF THE DEPARTMENT OF THE ARMY, WHICH RECENTLY ADVISED THAT THE DIRECTORATE OF RESEARCH, DEVELOPMENT AND ENGINEERING, UNITED STATES ARMY MOBILITY EQUIPMENT COMMAND, FORT BELVOIR, VIRGINIA, HAS REVIEWED YOUR CONTENTION WITH REGARD TO THE ENGINE DISPLACEMENT AND HAS SUSTAINED YOUR POSITION. IT IS THE OPINION OF THE DIRECTORATE THAT ENGINE DISPLACEMENT IS NOT A CRITERION FOR SPECIFIED HORSEPOWER AND THAT THE ENGINE DISPLACEMENT REQUIREMENT IN THE INVITATION CONSTITUTED AN UNDULY RESTRICTIVE SPECIFICATION. HOWEVER, IN THIS CASE, SINCE THE CONTRACTING OFFICER ACTED IN GOOD FAITH IN RELYING UPON THE ADVICE OF HIS TECHNICAL ADVISERS AND FURTHER SINCE THE BIDDER WHO RECEIVED THE CONTRACT FOR THE TRACTORS HAS ALREADY PERFORMED AND THE ARMY HAS ACCEPTED DELIVERY OF THE EQUIPMENT, THE CONTRACTING AGENCY HAS RECOMMENDED THAT THE AWARD NOT BE DISTURBED. THE AGENCY HAS ALSO INFORMED US THAT IT IS IN THE PROCESS OF PUBLISHING APPROPRIATE GUIDANCE DIRECTED TO ALL PROCURING ACTIVITIES TO PREVENT RECURRENCE OF THIS SITUATION IN THE FUTURE.

CONSIDERING THE PRESENT POSTURE OF THIS CASE, WE DO NOT BELIEVE THE BEST INTERESTS OF THE GOVERNMENT WOULD BE SERVED BY CANCELING THE CONTRACT AT THIS TIME. CF. 43 COMP. GEN. 761 AND 40 ID. 160. MOREOVER, IT APPEARS THAT APPROPRIATE STEPS ARE BEING TAKEN BY THE DEPARTMENT OF THE ARMY TO ATTEMPT TO PRECLUDE A REPETITION OF THE CIRCUMSTANCES.

ACCORDINGLY, NO FURTHER ACTION IS REQUIRED OR CONTEMPLATED BY OUR OFFICE IN THIS CASE.