B-161532, AUG. 17, 1967

B-161532: Aug 17, 1967

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BIDDER WHO IN COVER LETTER ACCOMPANYING BID TOOK EXCEPTION TO SPECIFICATIONS ON BASIS THAT THEY WERE MISLEADING HAS SUBMITTED A BID WHICH GIVES THE BIDDER AN OPTION TO FURNISH AN ITEM WHICH EITHER COMPLIES OR DOES NOT COMPLY WITH THE SPECIFICATIONS AND THE BIDDER WAS PROPERLY DENIED AN OPPORTUNITY TO EXPLAIN AND THEREFOR REJECTION WAS PROPER. BOVA: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 16. THE PROCUREMENT WAS FOR ONE TRACTOR. THE FOLLOWING BIDS WERE RECEIVED: HAWAIIAN EQUIPMENT COMPANY $ 44. WHICH WAS ATTACHED TO YOUR BID. THE MANUFACTURERS CURRENT STANDARD PRODUCTION STEERING DEVICES WILL BE ACCEPTABLE.-" THE ADMINISTRATIVE OFFICE HAS ADVISED THAT IN VIEW OF THE EXCEPTION TO THE SPECIFICATIONS IN THE LETTER OF MARCH 6.

B-161532, AUG. 17, 1967

BIDS - DEVIATIONS - IN OTHER THAN BID DECISION TO HAWAIIAN EQUIPMENT COMPANY RE PROTEST AGAINST REJECTION OF BID FOR TRACTOR, BULLDOZER FOR ARMY SIGNAL CORPS. BIDDER WHO IN COVER LETTER ACCOMPANYING BID TOOK EXCEPTION TO SPECIFICATIONS ON BASIS THAT THEY WERE MISLEADING HAS SUBMITTED A BID WHICH GIVES THE BIDDER AN OPTION TO FURNISH AN ITEM WHICH EITHER COMPLIES OR DOES NOT COMPLY WITH THE SPECIFICATIONS AND THE BIDDER WAS PROPERLY DENIED AN OPPORTUNITY TO EXPLAIN AND THEREFOR REJECTION WAS PROPER.

TO MR. J. P. BOVA:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 16, 1967, AND LETTER OF MAY 17, 1967, WITH ENCLOSURE, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. DAGA01-67-B-0126, ISSUED BY THE CONTRACTING DIVISION, SIGNAL CORPS AREA, UNITED STATES ARMY, FORT SHAFTER, HAWAII. THE PROCUREMENT WAS FOR ONE TRACTOR, INDUSTRIAL TYPE, DIESEL- ENGINE-DRIVEN, CRAWLER TYPE WITH HYDRAULICALLY OPERATED BULLDOZER IN ACCORDANCE WITH ATTACHED TECHNICAL SPECIFICATIONS.

PURSUANT TO THE SOLICITATION, THE FOLLOWING BIDS WERE RECEIVED:

HAWAIIAN EQUIPMENT COMPANY $ 44,377

AMFAC, INCORPORATED 46,934

THEO. H. DAVIES AND CO., LTD. 52,428

PARAGRAPH 7 OF THE TECHNICAL SPECIFICATIONS OF THE INSTANT PROCUREMENT PROVIDED:

"7. POWER TRAIN. THE POWER TRAIN SHALL INCLUDE THE TRANSMISSION, TWO INDIVIDUALLY CONTROLLED STEERING DEVICES, AND GEAR-TYPE FINAL DRIVE UNITS. THE STEERING DEVICES SHALL BE SO DESIGNED THAT THE FULL POWER OF THE ENGINE CAN BE TRANSMITTED TO EITHER TRACK, ALLOWING POWER FREE ROTATION OF EITHER TRACK. A MEANS SHALL BE PROVIDED FOR INDIVIDUALLY LOCKING EITHER TRACK TO PERMIT PIVOT TURNING. THE FINAL DRIVE UNITS SHALL BE FULLY ENCLOSED IN DUST PROOF HOUSINGS.'

A COVER LETTER DATED MARCH 6, 1967, WHICH WAS ATTACHED TO YOUR BID, STATED IN PART AS FOLLOWS:

"WE HEREIN STATE THAT THE CRAWLER TRACTOR BID MEETS ALL TECHNICAL SPECIFICATIONS REQUIRED WITH EXCEPTION IN ITEM 7, I.E., -THE STEERING DEVICES SHALL BE SO DESIGNED THAT THE FULL POWER OF THE ENGINE CAN BE TRANSMITTED TO EITHER TRACK, ALLOWING POWER FREE ROTATION OF EITHER TRACK.

"PLEASE REFER TO KKK-T-00631B/GSA-FSS) INTERIM FEDERAL SPECIFICATIONS FOR CRAWLER TRACTOR. -PARAGRAPH 3.11 STEERING DEVICES. THE MANUFACTURERS CURRENT STANDARD PRODUCTION STEERING DEVICES WILL BE ACCEPTABLE.-"

THE ADMINISTRATIVE OFFICE HAS ADVISED THAT IN VIEW OF THE EXCEPTION TO THE SPECIFICATIONS IN THE LETTER OF MARCH 6, 1967, YOUR BID WAS CONSIDERED AS AN ALTERNATE BID WHICH DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS. ACCORDINGLY, YOUR BID WAS REJECTED PURSUANT TO SECTION 2- 404.2 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH PROVIDES:

"ANY BID WHICH DOES NOT CONFORM TO THE SPECIFICATIONS CONTAINED OR REFERENCED IN THE INVITATION FOR BIDS SHALL BE REJECTED UNLESS THE INVITATION AUTHORIZED THE SUBMISSION OF ALTERNATE BIDS AND THE SUPPLIES OFFERED AS ALTERNATES MEET THE REQUIREMENTS SPECIFIED IN THE INVITATION.' AWARD WAS MADE TO AMFAC, INCORPORATED, ON MAY 4, 1967.

YOUR LETTER OF MAY 17, 1967, CONTENDS THAT IT WAS NOT PROPER FOR THE ADMINISTRATIVE OFFICE TO REJECT YOUR BID ON THE BASIS OF THE EXCEPTION IN THE COVER LETTER ACCOMPANYING YOUR BID, THAT THE ADMINISTRATION OFFICE SHOULD HAVE CONSIDERED THE REASON WHY YOU TOOK THE EXCEPTIVE AND THAT THE ADMINISTRATIVE OFFICE SHOULD HAVE EVALUATED THE SPECIFICATIONS AND OPERATIONAL CAPABILITIES OF THE TRACTOR YOU PROPOSED FURNISHING. YOU STATE YOU TOOK THE EXCEPTION IN THE COVER LETTER BECAUSE THE SPECIFICATION AS WRITTEN WAS MISLEADING AND COULD WELL BE CONSIDERED AS DISCRIMINATORY. ALSO, YOU CONTEND THAT THE ADMINISTRATIVE OFFICE SHOULD HAVE GIVEN YOU AN OPPORTUNITY TO DISCUSS YOUR BID BEFORE REJECTING IT.

WITH RESPECT TO ALTERNATE BIDS THE POSITION OF OUR OFFICE HAS CONSISTENTLY BEEN AS FOLLOWS:

"CONTRARY TO THE CONCLUSION REACHED BY THE CONTRACTING OFFICER, SUBMISSION OF AN ALTERNATE BID DOES NOT REQUIRE REJECTION IF THE BID BE OTHERWISE RESPONSIVE TO THE INVITATION. B-150459, MARCH 6, 1963. THE PROHIBITION AGAINST -ALTERNATE- BIDS ONLY FORBIDS CONSIDERATION OF THOSE BIDS WHICH OFFER SOMETHING OTHER THAN THAT WHICH IS CALLED FOR BY THE SPECIFICATIONS. THUS IF ONE OFFERS TO FURNISH ANY ONE OF SEVERAL ITEMS IN THE ALTERNATIVE AT DIFFERENT PRICES, THOSE PROPOSALS WHICH OFFERED MATERIAL MEETING SPECIFICATIONS WOULD BE RESPONSIVE, THE LOWEST OF WHICH COULD PROPERLY BE ACCEPTED. CONVERSELY, IF ONE OF THE PROPOSALS DID NOT MEET SPECIFICATIONS, THAT PROPOSAL WOULD BE AN ALTERNATE- PROPOSAL AND NOT PROPER FOR CONSIDERATION. SEE 33 COMP. GEN. 499. IT SHOULD BE NOTED HOWEVER THAT MAKING AN -ALTERNATE- BID DOES NOT IPSO FACTO PRECLUDE CONSIDERATION OF THOSE OTHER PROPOSALS SUBMITTED IN THE SAME BID WHICH CONFORM TO THE SPECIFICATIONS.'

THE LETTER OF MARCH 6, 1967, WHICH WAS ATTACHED TO YOUR BID AND WHICH CONTAINED A REFERENCE TO THE INSTANT INVITATION MUST BE CONSIDERED AS PART OF YOUR BID. SEE B-148200, SEPTEMBER 26, 1962. PARAGRAPH TWO OF YOUR LETTER OF MARCH 6 SPECIFICALLY STATES THAT YOU ARE TAKING AN EXCEPTION TO ITEM 7 OF THE SPECIFICATIONS. THE THIRD PARAGRAPH OF YOUR LETTER OF MARCH 6 REFERS TO THE INTERIM FEDERAL SPECIFICATION WHICH STATES THAT THE MANUFACTURER'S CURRENT STEERING DEVICES WILL BE ACCEPTABLE. YOU CONTEND THAT YOUR EXCEPTION TO THE SPECIFICATIONS WAS MADE IN GOOD FAITH. HOWEVER, A MANUFACTURER'S CURRENT STEERING DEVICE MIGHT OR MIGHT NOT COMPLY WITH THE REQUIREMENTS OF PARAGRAPH 7 OF THE TECHNICAL SPECIFICATIONS. THEREFORE, PARAGRAPHS 2 AND 3 OF THE LETTER OF MARCH 6, WHICH ACCOMPANIED YOUR BID, CAN BE CONSTRUED AS GIVING YOU THE OPTION OF FURNISHING A TRACTOR WITH A STEERING DEVICE WHICH MIGHT OR MIGHT NOT MEET THE REQUIREMENTS OF PARAGRAPH 7 OF THE TECHNICAL SPECIFICATIONS.

WE HAVE HELD THAT WHERE A BID IS SUSCEPTIBLE OF BEING CONSTRUED AS BEING EITHER RESPONSIVE OR NONRESPONSIVE TO THE SPECIFICATIONS, THE BIDDER SHOULD NOT BE ALLOWED TO EXPLAIN WHAT HE INTENDED. SEE B 155254, DECEMBER 8, 1964; AND B-152808, JANUARY 2, 1964. SINCE THE LETTER ACCOMPANYING YOUR BID CAN BE CONSTRUED AS GIVING YOU THE OPTION OF FURNISHING AN ITEM WHICH EITHER COMPLIES OR DOES NOT COMPLY WITH THE SPECIFICATIONS, THE PROCURING ACTIVITY CORRECTLY REFUSED TO PERMIT YOU TO EXPLAIN WHAT YOU INTENDED. IN THESE CIRCUMSTANCES WE HAVE NO BASIS FOR QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT YOUR BID WAS NONRESPONSIVE; CONSEQUENTLY, IT WAS PROPER TO REJECT YOUR BID. RATHER THAN TAKING AN EXCEPTION IN YOUR BID, IF YOU HAD QUESTIONS WITH RESPECT TO PARAGRAPH 7 OF THE TECHNICAL SPECIFICATIONS, THESE SHOULD HAVE BEEN BROUGHT TO THE ATTENTION OF THE PROCURING ACTIVITY PRIOR TO BID OPENING FOR CLARIFICATION.

THE RECORD DOES NOT ESTABLISH THAT THE SPECIFICATIONS DID NOT PERMIT THE FREE AND FULL COMPETITION REQUIRED IN ORDER TO EFFECT A VALID AWARD UNDER THE STATUTES GOVERNING PROCUREMENT BY FORMAL ADVERTISING; THEREFORE, WE WILL NOT QUESTION THE AWARD TO AMFAC ON THE BASIS THAT THE SPECIFICATIONS WERE MISLEADING OR DISCRIMINATORY.