B-163673, JUN. 4, 1968

B-163673: Jun 4, 1968

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THAT ORIGINALLY YOU WERE INFORMED THAT YOUR BID WAS NONRESPONSIVE DUE TO YOUR FAILURE TO ACKNOWLEDGE AN AMENDMENT TO THE SOLICITATION WHICH DELETED A REQUIREMENT FOR POWER BRAKES. THAT ULTIMATELY AWARD TO THE NEXT LOW BIDDER WAS JUSTIFIED ON THE BASIS THAT YOU WERE NONRESPONSIVE BECAUSE YOU OFFERED 275 CUBIC FOOT NITROGEN CYLINDERS IN LIEU OF THE 300 CUBIC FOOT ICC-3AA-2400 NITROGEN CYLINDERS REQUIRED BY THE SPECIFICATIONS. YOU CONTEND THAT YOU WERE RESPONSIVE AND THAT THE AWARD SHOULD BE SET ASIDE. YOU STATE THAT YOU WERE INFORMED BY THE PROCURING ACTIVITY THAT THE AMENDMENT TO THE SOLICITATION WAS ISSUED SO THAT THE SPECIFICATION WOULD NOT FAVOR ANY PARTICULAR TRUCK CHASSIS MANUFACTURER.

B-163673, JUN. 4, 1968

TO FIRE CONTROL ENGINEERING CO.:

WE REFER TO YOUR PROTEST BY LETTER DATED FEBRUARY 26, 1968, AGAINST AN AWARD TO ANOTHER BIDDER OF A CONTRACT FOR THE FURNISHING OF A FIRE RESCUE VEHICLE UNDER ADVERTISED SOLICITATION NO. DABD05-68-B-0036, ISSUED JANUARY 9, 1968, BY THE UNITED STATES ARMY ARTILLERY AND MISSILE CENTER, FORT SILL, OKLAHOMA.

YOU STATE THAT YOU SUBMITTED THE LOW BID UNDER THE SOLICITATION AND TOOK NO EXCEPTION TO THE SPECIFICATIONS; THAT ORIGINALLY YOU WERE INFORMED THAT YOUR BID WAS NONRESPONSIVE DUE TO YOUR FAILURE TO ACKNOWLEDGE AN AMENDMENT TO THE SOLICITATION WHICH DELETED A REQUIREMENT FOR POWER BRAKES; AND THAT ULTIMATELY AWARD TO THE NEXT LOW BIDDER WAS JUSTIFIED ON THE BASIS THAT YOU WERE NONRESPONSIVE BECAUSE YOU OFFERED 275 CUBIC FOOT NITROGEN CYLINDERS IN LIEU OF THE 300 CUBIC FOOT ICC-3AA-2400 NITROGEN CYLINDERS REQUIRED BY THE SPECIFICATIONS. FOR THE REASONS STATED BELOW, YOU CONTEND THAT YOU WERE RESPONSIVE AND THAT THE AWARD SHOULD BE SET ASIDE.

WITH REFERENCE TO THE POWER BRAKE REQUIREMENT, YOU STATE THAT YOU WERE INFORMED BY THE PROCURING ACTIVITY THAT THE AMENDMENT TO THE SOLICITATION WAS ISSUED SO THAT THE SPECIFICATION WOULD NOT FAVOR ANY PARTICULAR TRUCK CHASSIS MANUFACTURER. YOU CONTEND, HOWEVER, THAT SUCH VACUUM POWER BRAKES ARE AVAILABLE FROM MORE THAN ONE MANUFACTURER AND THEREFORE THE AMENDMENT WAS UNNECCESSARY. IN ADDITION, YOU COMMENT THAT YOUR COMPETITOR (THE SUCCESSFUL BIDDER) APPARENTLY HAD A CHASSIS WITH ONLY STANDARD BRAKES.

CONCERNING THE CYLINDERS, YOU STATE THAT A SALES DRAWING INCLUDED IN YOUR BID DID NOT GIVE ANY DETAILS OF YOUR CYLINDER OTHER THAN TO STATE THAT A 275 CUBIC FOOT CYLINDER WAS INCLUDED. IN THIS REGARD, YOU ASSERT THAT CYLINDERS OF THIS TYPE ARE ALL RATED BY OXYGEN CONTENT AND AN ICC 3AA2400 (SPECIFIED IN THE SOLICITATION) WITH 300 CUBIC FOOT OXYGEN RATING ACTUALLY HAS A STANDARD RATING OF 275 CUBIC FOOT WITH NITROGEN. FURTHER, YOU STATE THAT SUCH CYLINDERS HAVE AN OVERFILLED RATING BASED UPON A 10 PERCENT FACTOR WHICH IN TURN WOULD QUALIFY YOUR 275 STANDARD NITROGEN CYLINDER IN EXCESS OF 300 CUBIC FOOT NITROGEN.

AS YOU HAVE INDICATED, THE SPECIFICATIONS AS ORIGINALLY INCORPORATED IN THE SOLICITATION INCLUDED A REQUIREMENT FOR POWER BRAKES FOR THE VEHICLE AS WELL AS A REQUIREMENT THAT 300 CUBIC FOOT ICC-3AA-2400 NITROGEN CYLINDERS BE PROVIDED FOR THE ENERGY SYSTEM. HOWEVER, ON JANUARY 17, OR 13 DAYS BEFORE THE SCHEDULED BID OPENING, AN AMENDMENT TO THE SOLICITATION DELETING THE REQUIREMENT FOR POWER BRAKES WAS ISSUED AND MAILED TO THE 19 FIRMS TO WHICH THE ORIGINAL SOLICITATION HAD BEEN DISTRIBUTED. HALPRIN SUPPLY CO. OF LOS ANGELES WAS ONE OF THE ADDRESSEES.

ON JANUARY 30, THE PROCURING ACTIVITY OPENED THE THREE BIDS WHICH HAD BEEN RECEIVED IN RESPONSE TO THE SOLICITATION. YOUR BID OF $13,580 WAS LOWEST; THE ANSUL CO. (ANSUL) WITH A BID OF $13,637 WAS SECOND; AND THE BID OF MID-CONTINENT FIRE AND SAFETY, INC., IN THE AMOUNT OF $15,957.25, WAS HIGHEST. BOTH ANSUL AND THE THIRD BIDDER HAD ACKNOWLEDGED RECEIPT OF THE AMENDMENT TO THE SOLICITATION, BUT YOU DID NOT. IN ADDITION, ON PAGE 9 OF YOUR BID, WHICH BORE THE PURCHASE DESCRIPTION OF THE VEHICLE, YOU HAD INSERTED THE FOLLOWING NOTATION:

"NOTE: MAKE OF CHASSIS OFFERED TO BE DODGE W200 (4 X 4). SEE FIRE CONTROL ENGINEERING CO. DRAWING PD-011868, ATTACHED, FOR DESIGN OF UNIT OFFERED.' THE DRAWING WHICH YOU INCLUDED IN YOUR BID BORE SEVERAL NOTATIONS DESCRIBING THE VEHICLE AND ACCESSORIES, AMONG WHICH WAS A NOTATION READING "275 CU FT NITROGEN CYLINDERS (2).'

ON FEBRUARY 1, YOUR PRESIDENT TELEPHONED THE PROCURING ACTIVITY REGARDING THE PROCUREMENT AND WAS ADVISED THAT YOUR BID HAD BEEN DETERMINED TO BE NONRESPONSIVE ABSENT ACKNOWLEDGMENT OF THE SOLICITATION AMENDMENT. THAT TIME, YOUR PRESIDENT CLAIMED THAT YOU HAD NOT RECEIVED THE AMENDMENT AND REQUESTED THAT YOUR NAME BE PLACED ON THE BIDDERS' LIST AT FORT SILL FOR FUTURE REQUIREMENTS. ON FEBRUARY 2, AWARD WAS MADE TO ANSUL AS THE LOWEST RESPONSIVE BIDDER, AND LETTERS OF NOTIFICATION WERE SENT BY THE CONTRACTING OFFICER TO YOU AND TO THE THIRD BIDDER.

IN A LETTER DATED FEBRUARY 2 TO THE CONTRACTING OFFICER, YOU POINTED OUT THAT YOUR BID WAS LOW BY $57 AND OFFERED THE GOVERNMENT MORE THAN THE GOVERNMENT HAD ADVERTISED FOR; HOWEVER, YOU VOLUNTEERED TO REMOVE THE POWER BRAKE SYSTEM FROM THE TRUCK CHASSIS AT THE OPTION OF THE GOVERNMENT.

THE CONTRACTING OFFICER, AFTER CONCLUDING THAT YOUR FAILURE TO ACKNOWLEDGE THE AMENDMENT WAS A MINOR DEVIATION IN YOUR BID WHICH MIGHT BE WAIVED, NOTIFIED YOU AND ANSUL ON FEBRUARY 8 THAT THE BIDS WERE BEING REEVALUATED TO DETERMINE WHETHER THE AWARD TO ANSUL WAS VALID AND REQUESTED ANSUL TO WITHHOLD ACTION UNDER THE CONTRACT PENDING FURTHER ADVICE.

IT IS REPORTED BY THE CONTRACTING OFFICER THAT PRIOR TO THE AWARD CONSIDERATION HAD BEEN GIVEN TO THE EFFECT OF REFERENCE ON YOUR DRAWING TO A 275 CUBIC FOOT NITROGEN CYLINDER, BUT THAT IN VIEW OF THE DETERMINATION OF NONRESPONSIVENESS OF YOUR BID FOR FAILURE TO ACKNOWLEDGE THE AMENDMENT PERTAINING TO THE POWER BRAKES THAT QUESTION WAS NOT RESOLVED. HOWEVER, UPON THE POST-AWARD REVIEW IT WAS CONCLUDED THAT YOUR DRAWING MUST BE CONSTRUED AS A QUALIFICATION OF YOUR BID, AND THAT SINCE IT INDICATED THAT THE CYLINDERS INTENDED TO BE FURNISHED BY YOU WERE NOT IN ACCORDANCE WITH THE SPECIFICATIONS YOUR BID WAS NOT RESPONSIVE. ADVICE TO THIS EFFECT WAS FURNISHED TO YOU BY LETTER DATED FEBRUARY 15, 1968, AND TO ANSUL IN A TELEGRAM OF THE SAME DATE WHICH ALSO ADVISED ANSUL TO PROCEED WITH MANUFACTURE OF THE VEHICLE.

ON FEBRUARY 16, THE CONTRACTING OFFICER RECEIVED A TELEPHONE CALL FROM YOU PROTESTING THAT THE CYLINDER YOU OFFERED WAS THE SAME SIZE AS WOULD BE FURNISHED BY OTHER MANUFACTURERS. ACCORDINGLY, THE CONTRACTING OFFICER DISCUSSED THE CYLINDER REQUIREMENT WITH THE CHIEF OF THE FORT SILL FIRE DEPARTMENT AND WAS ADVISED THAT ICC (INTERSTATE COMMERCE COMMISSION) REGULATIONS INDICATE THAT A 3AA-2400 CYLINDER WILL HOLD 276 CUBIC FEET OF NITROGEN; THAT A 275 CUBIC FOOT CYLINDER IS NONSTANDARD AND WILL ONLY HOLD ABOUT 230 CUBIC FEET OF NITROGEN; AND THAT THE DRAWING SUBMITTED WITH YOUR BID HAD STIPULATED A 275 CUBIC FOOT CYLINDER BUT NOT 275 CUBIC FOOT OF NITROGEN CONTENT. THEREFORE, IN A RETURN TELEPHONE CALL TO YOU, THE CONTRACTING OFFICER ADVISED YOU THAT BASED ON THE DRAWING SUBMITTED WITH YOU BID, YOUR EQUIPMENT DID NOT MEET THE REQUIREMENTS AND WAS NONRESPONSIVE AND THAT YOU COULD NOT BE GIVEN AN OPPORTUNITY AFTER BID OPENING TO STATE WHETHER YOUR EQUIPMENT WOULD MEET THE SPECIFICATIONS. FURTHER, THE CONTRACTING OFFICER STATES THAT YOU WERE INFORMED THAT IF THE VEHICLE WHICH YOU PROPOSED TO FURNISH MET THE SPECIFICATIONS, YOU HAD NO NEED TO SUBMIT THE DRAWING, AN ACTION WHICH YOU AGREED WAS A MISTAKE ON YOUR PART.

IN A LETTER DATED FEBRUARY 16 TO THE CONTRACTING OFFICER, YOU FILED A FORMAL PROTEST AGAINST THE AWARD TO ANSUL. YOU STATED THAT YOU HAD NOTHING BUT STANDARD 300 CUBIC FOOT CYLINDERS IN YOUR INVENTORY AND THAT WITH THE 10 PERCENT OVERFILL ALLOWED BY ICC THE CYLINDER WITH A 275 CUBIC FOOT RATING FOR NITROGEN CAN BE CONSIDERED AS RATED IN EXCESS OF 300 CUBIC FEET FOR NITROGEN. YOU ALSO PROTESTED THAT THE SPECIFICATIONS WERE BASED ENTIRELY ON DATA ISSUED BY ANSUL. YOUR PROTEST TO OUR OFFICE FOLLOWED BY LETTER DATED FEBRUARY 26.

THE ADMINISTRATIVE ACTION ON YOUR PROTEST TO THE CONTRACTING OFFICER WAS A DENIAL BY LETTER DATED FEBRUARY 29, 1968, WHICH INCLUDED THE FOLLOWING STATEMENTS:

"THE DRAWING SUBMITTED BY YOUR FIRM SET FORTH -275 CU. FT. NITROGEN CYLINDERS (2/- AS BEING PART OF THE EQUIPMENT OFFERED. THE INVITATION SPECIFICALLY SET FORTH THE REQUIREMENTS FOR -300 CU. FT. ICC-3AA-2400 NITROGEN CYLINDERS.- THE COMPETITIVE BID SYSTEM DOES NOT PERMIT VENDORS THE OPPORTUNITY TO CLARIFY THE EQUIPMENT SPECIFICATIONS OFFERED FOR A PARTICULAR BID AFTER BID OPENING. IN THE EVENT EQUIPMENT OFFERED FOR A PARTICULAR BID, IS FOUND NOT TO MEET REQUIRED SPECIFICATIONS, THEN SUBJECT BID MUST BE DECLARED NONRESPONSIVE AND MAY NOT BE FURTHER CONSIDERED FOR AWARD. THE GENERAL ACCOUNTING OFFICE REPEATEDLY HAS DECLARED THAT THE INTEGRITY OF THE COMPETITIVE BID SYSTEM MUST BE UPHELD.

"THE SPECIFICATIONS, AS WRITTEN, COVER THE MINIMUM REQUIREMENTS FOR THIS TYPE OF EQUIPMENT AT FORT SILL. THE FACT THAT YOU HAVE EQUIPMENT AVAILABLE FOR DELIVERY WHICH YOU CONTEND MEETS THESE SPECIFICATIONS INDICATES THAT THE SPECIFICATIONS ARE NOT RESTRICTIVE.

"THE AMENDMENT TO THE INVITATION DELETING THE POWER BRAKE SYSTEM WAS ISSUED SOLELY TO REMOVE RESTRICTIVE REQUIREMENTS AND PERMIT GREATER COMPETITION.'

IN ADDITION TO THE INFORMATION SET FORTH ABOVE, THE RECORD INCLUDES A MEMORANDUM DATED MARCH 19, 1968, FROM THE DIRECTOR OF INSTALLATIONS AND POST ENGINEER, FORT SILL, WHICH INCLUDES THE FOLLOWING STATEMENTS:

"FIRE CONTROL ENGINEERING CO.'S BID CONTAINED SPECIFICATION DRAWING PD- 011868 DATED 17 JAN 67 AND CALLED FOR A 275 CUBIC FOOT NITROGEN CYLINDER AND DID NOT SPECIFY THAT IT WOULD BE OF THE SPECIFICALLY CONSTRUCTED TYPE EQUIPPED WITH A SPECIAL SAFETY BURSTING DISC AND TESTED AT 4000 PSI WITH A NITROGEN CAPACITY OF 300 CUBIC FOOT. BASED ON THE 275 CUBIC FOOT CAPACITY, THE FIRE CONTROL ENGINEERING CO. BID DID NOT MEET THE SPECIFICATIONS BECAUSE OF THE DEVIATION IN THE NITROGEN CONTENT OF THE CYLINDER.

"IN A LETTER TO MRS. LYDIA L. TROOP, DATED 16 FEB 68, W. P. BARWINKEL, PRESIDENT OF FIRE CONTROL ENGINEERING CO. STATED THE 275 CUBIC FOOT CYLINDER THAT HIS DESIGN SPECIFICATION REFERRED TO IS MANUFACTURED BY THE HARRISBURG STEEL CO. HE (MR. BARWINKEL) INSISTED THAT ALL CYLINDERS OF THIS TYPE ARE NORMALLY RATED BY THE CYLINDER INDUSTRY ON OXYGEN CONTENT AND ICC-3AA-2400 CYLINDER IS RATED FOR 300 CUBIC FOOT OF OXYGEN AS A STANDARD RATING OF A 275 CUBIC FOOT FOR NITROGEN. HE ADDS THAT SINCE THE ICC ALLOWS A 10 PERCENT OVERFILL THIS WOULD QUALIFY AS A 300 CUBIC FOOT NITROGEN CAPACITY. MR. BARWINKEL FAILED TO MENTION THAT ALL ICC-3AA-2400 CYLINDERS CANNOT BE FILLED TO 10 PERCENT OVERFILL. IN ORDER THAT THE CYLINDERS BE FILLED AT 10 PERCENT OVERFILL, THE MANUFACTURER MUST SAFETY TEST THE CYLINDER AT 4000 PSI AND IT MUST BE EQUIPPED WITH A SPECIAL SAFETY BURSTING DISC IN THE VALVE ASSEMBLY.

"CHIEF LEONARD A. OWENS, THE TECHNICAL REPRESENTATIVE OF THE FORT SILL FIRE DEPARTMENT STATES THAT ALTHOUGH BASICALLY THE TWO CYLINDERS ARE THE SAME THERE ARE SPECIAL CONDITIONS NECESSARY TO ALLOW THIS CYLINDER TO BE SPECIFICALLY DESIGNATED AS A 300 CUBIC FOOT NITROGEN CYLINDER. SINCE THE CYLINDERS ARE ALL STANDARD (MR. BARWINKEL'S LETTER) FOR ALL MANUFACTURING CONCERNS WE REFER TO UNION CARBIDE CORPORATION, LINDY DIVISION, CYLINDER AND VALVE DATA PAMPHLET NWSA 120, DIVISION P, SECTION 8, ITEM 1, PAGE 1. UNDER NITROGEN CYLINDERS THEY LIST A CYLINDER WITH A 300 CUBIC FOOT NITROGEN CONTENT, SEE INCLOSURE 1.

"BASED ON THE AFOREMENTIONED INFORMATION THE SPECIFICATION OF THE FIRE CONTROL ENGINEERING DESIGN SCHEMATIC WHICH REQUIRES THE 275 CUBIC FOOT NITROGEN CYLINDER DOES NOT MEET OUR SPECIFICATIONS.'

IF, AS YOU CONTENDED, YOU INTENDED TO FURNISH THE CYLINDERS DESIGNATED IN THE SPECIFICATIONS AND DID NOT INTEND TO TAKE ANY EXCEPTION TO ANY OF THE SPECIFICATIONS, YOUR ACTION IN SUBMITTING DESCRIPTIVE MATERIAL WAS WHOLLY UNNECESSARY, AND BY DOING SO YOU CREATED A SITUATION IN WHICH IT WAS IMPOSSIBLE FOR A TECHNICAL EXPERT TO DETERMINE WITH ANY DEGREE OF CERTAINTY WHETHER THE CYLINDERS OFFERED BY YOU AND THE 300 CUBIC FOOT CYLINDERS REQUIRED BY THE SOLICITATION WERE OF THE SAME NITROGEN CAPACITY, AND WE CANNOT CONSIDER THE INTERPRETATION OF YOUR DRAWING AS A QUALIFICATION TO HAVE BEEN UNREASONABLE.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-202.5 (A) DEFINES DESCRIPTIVE LITERATURE AS INCLUDING DRAWINGS, AMONG OTHER DATA, WHICH SHOW THE CHARACTERISTICS OR CONSTRUCTION OF A PRODUCT OR EXPLAIN ITS OPERATIONS, FURNISHED BY A BIDDER AS A PART OF HIS BID TO DESCRIBE THE PRODUCTS OFFERED IN HIS BID. ASPR 2-202.5 (F), RELATING TO UNSOLICITED DESCRIPTIVE LITERATURE, PROVIDES THAT IF THE FURNISHING OF DESCRIPTIVE LITERATURE IS NOT REQUIRED BY THE INVITATION FOR BIDS, BUT SUCH LITERATURE IS FURNISHED WITH A BID, IT WILL NOT BE CONSIDERED AS QUALIFYING THE BID, AND WILL BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION SO TO QUALIFY THE BID. ASPR 2- 404.2 (B) REQUIRES THE REJECTION OF ANY BID WHICH DOES NOT CONFORM TO THE SPECIFICATIONS CONTAINED OR REFERENCED IN THE INVITATION FOR BIDS UNLESS THE INVITATION AUTHORIZED THE SUBMISSION OF ALTERNATE BIDS AND THE SUPPLIES OFFERED AS ALTERNATES MEET THE REQUIREMENTS SPECIFIED IN THE INVITATION.

IN APPLYING THE PRINCIPLES SET FORTH IN THE CITED REGULATIONS, WE HAVE HELD THAT A BID WHICH INCLUDED UNSOLICITED DRAWINGS INDICATING THAT THE ITEM OFFERED WAS NONCONFORMING TO THE PURCHASE DESCRIPTION REQUIREMENTS IN SEVERAL MATERIAL AREAS WAS PROPERLY REJECTED AS NONRESPONSIVE. B-160830, MARCH 20, 1967. IN ANOTHER CASE, WHERE A BID MADE REFERENCE TO THE BIDDER'S PARTICULAR MODEL AND THE UNSOLICITED DESCRIPTIVE LITERATURE SUBMITTED WITH THE BID WAS NOT SUFFICIENT FOR THE GOVERNMENT TO DETERMINE THAT THE ITEM OFFERED WOULD MEET THE GOVERNMENT'S SPECIFICATIONS, WE HELD THAT THE DESCRIPTIVE LITERATURE WAS PROPERLY CONSIDERED UNDER ASPR 2-202.5 (F) AS BEING INTENDED TO QUALIFY THE BID; THEREFORE, REJECTION OF THE BID WAS PROPER. OUR DECISION IN THAT CASE, B-160474, FEBRUARY 27, 1967, READS, IN PERTINENT PART, AS FOLLOWS: "OUR OFFICE HAS HELD THAT A NONRESPONSIVE BID MAY NOT BE CONSIDERED FOR CORRECTION REGARDLESS OF THE CIRCUMSTANCES, SINCE TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY ALTERATION OF HIS BID AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER. 38 COMP. GEN. 19; 40 ID. 132, 134; 40 ID. 432, 435. IN THIS REGARD, IT SHOULD BE UNDERSTOOD THAT A BID SUBMITTED UNDER AN INVITATION ISSUED BY A GOVERNMENT AGENCY CONSTITUTES AN OFFER AND THE AWARD BY THE AGENCY IS AN ACCEPTANCE OF THE OFFER WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE BIDDER AND THE GOVERNMENT. WHERE A BIDDER DOES NOT PROPOSE TO COMPLY WITH THE PROVISIONS OF THE INVITATION FOR BIDS, THE GOVERNMENT CANNOT, WITHOUT THE BIDDER'S CONSENT, ACCEPT THE OFFER AND REQUIRE PERFORMANCE IN ACCORDANCE WITH THE INVITATION. TO GIVE THE BIDDER AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO ABIDE BY THE INVITATION OR TO PRECLUDE AWARD BY INSISTING ON ADHERENCE TO ITS OFFER, PROVIDES AN UNFAIR ADVANTAGE OVER THOSE OTHER BIDDERS WHOSE BIDS CONFORMED IN EVERY WAY TO THE INVITATION AND WERE LEFT WITHOUT OPTIONS. SUCH AN ADVANTAGE IS CONTRARY TO THE PURPOSE OF THE STATUTES GOVERNING PUBLIC PROCUREMENT. B-128645, SEPTEMBER 28, 1956; B-131796, JUNE 14, 1957; AND B-140412, SEPTEMBER 30, 1959.'

IN VIEW OF THE FINAL CONCLUSION THAT YOUR BID WAS NONRESPONSIVE BY REASON OF THE QUALIFICATION OR AMBIGUITY AS TO CYLINDER SIZE, THE EFFECT OF YOUR FAILURE TO ACKNOWLEDGE THE AMENDMENT DOES NOT REQUIRE FURTHER DISCUSSION. HOWEVER, SINCE YOU QUESTION THE PROPRIETY OF THE ISSUANCE OF THE AMENDMENT, IT MAY BE STATED THAT THE RECORD CONTAINS NOTHING WHICH COULD BE CONSTRUED AS DISCREDITING THE STATEMENT OF THE PROCURING ACTIVITY THAT SUCH ACTION WAS MOTIVATED BY AN INTENT TO REMOVE RESTRICTIVE REQUIREMENTS AND PERMIT GREATER COMPETITION. ACCORDINGLY, WE MUST VIEW THE ISSUANCE OF THE AMENDMENT AS A PROPER EXERCISE OF THE AUTHORITY OF THE PROCURING ACTIVITY TO DETERMINE THE MINIMUM NEEDS OF THE GOVERNMENT AND TO DRAFT SPECIFICATIONS TO REFLECT SUCH NEEDS.

AS TO YOUR CHARGE THAT THE SOLICITATION WAS BASED ON DATA PERTAINING TO THE VEHICLE MANUFACTURED BY THE SUCCESSFUL BIDDER, THE FACT THAT YOU AND ONE OTHER BIDDER ALSO RESPONDED TO THE SOLICITATION INDICATES THAT THE SPECIFICATIONS DID NOT PRECLUDE COMPETITION. IN ANY EVENT, THE QUESTION OF RESTRICTIVENESS IS ONE WHICH IS MORE PROPERLY FOR SUBMISSION PRIOR TO BID OPENING.