B-166778, JUL. 9, 1969

B-166778, JUL. 9, 1969

TO MR. SECRETARY:

REFERENCE IS MADE TO THE LETTER OF JUNE 9, 1969, WITH ENCLOSURES, FROM THE DIRECTOR OF MATERIEL ACQUISITION, OFFICE OF THE ASSISTANT SECRETARY, FURNISHING OUR OFFICE WITH A REPORT IN REGARD TO THE PROTEST BY PAUL H. WERRES COMPANY, INCORPORATED, AGAINST THE PROPOSED AWARD OF A CONTRACT TO BIG JOE MANUFACTURING COMPANY UNDER ADVERTISED SOLICITATION NO. DABG01-69- B-0021, ISSUED ON DECEMBER 23, 1968, BY THE PURCHASING AND CONTRACTING OFFICE, FORT MYER, VIRGINIA, FOR FOUR ITEMS OF FORK LIFT TRUCKS.

ITEMS NOS. 1 THROUGH 3 WERE FOR "TRUCK, LIFT, FORK, TELESCOPING MAST, ELECTRIC, SELF PROPELLED (WALKIE) TYPE EE SPARK" , IN ACCORDANCE WITH MILITARY SPECIFICATION NO. MIL-T-21867, DATED APRIL 7, 1965, AND AS FURTHER SPECIFIED ON PAGE 6 OF THE SOLICITATION. ITEMS NOS. 2 AND 3, WERE FOR THE SAME TYPE OF TRUCK AS DESCRIBED IN ITEM NO. 1 WITH CERTAIN MODIFICATIONS.

BIG JOE MANUFACTURING COMPANY, THE ONLY BIDDER TO THE ABOVE SOLICITATION SUBMITTED A BID FOR ITEMS NOS. 1, 2 AND 3.

AMENDMENT NO. 2, MADE CERTAIN CHANGES TO THE SPECIFICATIONS INCLUDING THE FOLLOWING PROVISION WHICH WAS SUBSTITUTED FOR PARAGRAPH 3.6.2.1 OF THE MILITARY SPECIFICATION IN THE INVITATION:

"THE TRUCK SHALL BE DESIGNED TO OPERATE ON A BATTERY LISTED IN THE FEDERAL SCHEDULE OF EITHER 12 VOLT, 432 AMPERE-HOUR CAPACITY (MAXIMUM DIMENSIONS 6-5/8 INCHES W X 44-1/4 INCHES L X 23-1/4 INCHES H) OR 24 VOLT, 220 AMPERE HOUR CAPACITY (MAXIMUM DIMENSIONS 6-5/8 INCHES W X 44 1/4 INCHES L X 23-1/4 INCHES H) AT THE BIDDER'S OPTION. BATTERY TO BE FURNISHED BY BIDDER. DATA ON THE CHOSEN BATTERY SHALL BE FURNISHED WITH THE BID.' THE ABOVE PROVISION DID NOT CHANGE THE MAXIMUM DIMENSIONS OF THE BATTERY WHICH WERE INITIALLY SPECIFIED.

AMENDMENT NO. 2 PROVIDED AS FOLLOWS WITH RESPECT TO ITEM NO. 3:

"3. SAME AS ITEM NO. 1 EXCEPT TRUCK WILL BE EQUIPPED WITH A REMOTE CONTROL PUSH BUTTON RAISING AND LOWERING DEVICE, 102 INCH LIFT, 72 INCH COLLAPSED MAST. TRUCK WILL BE CAPABLE OF RIGHT ANGLE STACKING A 32 X 40 INCH PALLET LOAD FROM A MAXIMUM 58 INCH WIDE AISLE IN A 45 INCH WIDE OPENING WITHOUT THE NECESSITY OF REVERSING THE TRUCK.'

BIG JOE INSERTED THE FOLLOWING STATEMENT ON PAGE 2 OF AMENDMENT NO. 2.'IN COMPLIANCE WITH 3.6.2.1 ABOVE, WE ARE PLEASED TO ADVISE YOU THAT WE ARE FURNISHING AN EXCIDE 6 CELL, 432 AMP HOUR CAPACITY, 12 VOLT BATTERY WITH MAXIMUM DIMENSIONS OF 6-5/8 INCHES WIDE BY 44-1/4 INCHES LONG BY 23-1/2 INCHES HIGH.' THE EFFECT OF THIS INSERTION IS THAT BIG JOE'S BID DEVIATES FROM THE MAXIMUM SPECIFIED HEIGHT REQUIREMENT FOR THE BATTERY.

A COVER LETTER DATED MARCH 20, 1969, SUBMITTED WITH BIG JOE'S BID STATES AS FOLLOWS: "IN REGARD TO AMENDMENT TWO, PAGE 2, FIRST PARAGRAPH, WE BELIEVE THAT THERE IS A TYPOGRAPHICAL ERROR. THIS IS OF MINOR NATURE, HOWEVER, AND IS OBVIOUS. SINCE THIS IS A STRADDLE TYPE TRUCK WHICH HAS OUTRIGGER OR BASE TYPE LEGS, THE OPENING MUST BE WIDE ENOUGH TO PERMIT BOTH THE PALLET AND THE BASE LEGS TO PENETRATE SAME. SINCE EACH OF THE BASE LEGS MUST BE WIDE ENOUGH TO ACCOMMODATE LOAD WHEELS OF SUFFICIENT SIZE TO DO THE JOB PROPERLY, THE VERY MINIMUM WIDTH OF THE BASE LEGS WOULD HAVE TO BE 3 INCHES. SINCE A 3 INCH WIDE BASE LEG REQUIRES 4 INCHES OF SPACE TO PENETRATE, THE TWO 4 INCH WIDE SPACES PLUS THE 40 INCH PALLET WOULD RESULT IN A 48 INCH WIDE OPENING. IN CHECKING INTO THE ACTUAL APPLICATION AT THE COMMISSARY WHERE THE 32 INCH X 40 INCH PALLETS ARE BEING USED, THE ACTUAL WIDTH OF THE OPENING IS 50 INCHES. WE, THEREFORE, BELIEVE THAT THE -5- WAS ACTUALLY INTENDED TO BE -8-. OUR BID ON THAT ITEM IS BASED ACCORDINGLY, SINCE IT IS AN OBVIOUS IMPOSSIBILITY FOR IT TO BE OTHERWISE.' THE EFFECT OF BIG JOE'S COVER LETTER IS THAT IT DEVIATES FROM THE REQUIREMENT OF AMENDMENT NO. 2, THAT THE TRUCK BE CAPABLE OF OPERATING IN A 45 INCH OPENING.

BY LETTER DATED APRIL 24, 1969, PAUL H. WERRES COMPANY, INCORPORATED, PROTESTED AGAINST AWARD OF A CONTRACT TO BIG JOE ON THE BASIS THAT THIS BIDDER DID NOT COMPLY WITH THE 45 INCH OPENING REQUIREMENT UNDER PARAGRAPH III OF AMENDMENT NO. 2 AND ALSO DID NOT OFFER TO FURNISH A BATTERY WHICH COMPLIED WITH THE MAXIMUM HEIGHT REQUIREMENT OF 23-1/4 INCHES.

IT IS THE VIEW OF YOUR DEPARTMENT THAT THE BID OF BIG JOE IS NONRESPONSIVE BECAUSE OF THE EXCEPTION TO THE HEIGHT REQUIREMENT FOR THE BATTERY WHICH IS APPLICABLE TO ALL THREE ITEMS ON WHICH BIG JOE BID. ARMY'S RECOMMENDATION IS THAT THE INVITATION BE CANCELLED AND THE PROCUREMENT READVERTISED. WE ARE ADVISED THAT IN THE EVENT OUR OFFICE CONCURS WITH THIS RECOMMENDATION, THE PROCURING ACTIVITY WILL BE REQUESTED TO CONDUCT A DETAILED REVIEW OF THE SPECIFICATIONS, PRIOR TO READVERTISEMENT IN ORDER TO INSURE THAT THE SPECIFICATIONS ARE NOT RESTRICTIVE AND THAT THE INVITATION SETS FORTH THE GOVERNMENT'S REQUIREMENTS AND AFFORDS THE MAXIMUM AMOUNT OF COMPETITION. A FURTHER REASON FOR DETERMINING THE BID OF BIG JOE TO BE NONRESPONSIVE FOR ITEM NO. 3 IS THE EXCEPTION THAT BIG JOE TOOK TO THE REQUIREMENT THAT THE TRUCK OPERATE IN A 45 INCH OPENING. IT SEEMS THAT EVEN BIG JOE WOULD CONCEDE THAT ITS BID FOR ITEM NO. 3 IS NONRESPONSIVE BECAUSE OF THIS EXCEPTION SINCE THE INTENT WAS TO SPECIFY THE 45 INCH REQUIREMENT AND IT WAS NOT DETERMINED UNTIL AFTER BID OPENING THAT A TRUCK OPERATING IN A 48 INCH OPENING WOULD BE ACCEPTABLE.

BIG JOE HAS BEEN GIVEN THE OPPORTUNITY TO SUBMIT ITS COMMENTS. BY ITS LETTER DATED JUNE 17, 1969, BIG JOE URGES THAT THE 1/4 INCH DEVIATION FROM THE MAXIMUM HEIGHT SPECIFIED FOR THE BATTERY SHOULD BE WAIVED AS A MINOR DEVIATION. BIG JOE HAS SUBMITTED A TELEGRAM FROM A BATTERY MANUFACTURER ADVISING THAT 23-1/2 INCHES IS THE STANDARD HEIGHT FOR A 432 AMPERE HOUR CAPACITY BATTERY. THIS TELEGRAM ALSO STATES THAT IF A BATTERY WITH A HEIGHT OF 23-1/4 INCHES IS DESIRED IT COULD BE FURNISHED WITHOUT AFFECTING THE OPERATION OF THE TRUCK AND AT NO ADDITIONAL COST. BIG JOE CONTENDS THAT SINCE IT USED THE WORDS "IN COMPLIANCE WITH 3.6.2.1 ABOVE, * * *" , IN ITS INSERTION ON AMENDMENT NO. 2, BIG JOE IS OBLIGATED TO FURNISH A BATTERY IN CONFORMANCE WITH THE SPECIFICATIONS. IN A LETTER DATED JUNE 19, 1969, BIG JOE URGES THAT THE INSERTION OF 23-1/2 INCHES WAS A TYPOGRAPHICAL ERROR AND THAT BIG JOE SHOULD BE PERMITTED TO CORRECT THIS MISTAKE. IN THIS CONNECTION BIG JOE'S LETTER CITES ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-405.2. THE PROVISIONS TO WHICH BIG JOE APPARENTLY IS REFERRING PRESENTLY APPEAR IN ASPR 2-406.2 AND ASPR 2- 406.3. BIG JOE'S LETTER HAS CITED OUR DECISIONS, B-120281, JUNE 29, 1954 AND B-156934, JULY 28, 1965.

THE FIRST QUESTION FOR CONSIDERATION IS WHETHER THE DEVIATION IN BIG JOE'S BID WITH RESPECT TO THE MAXIMUM HEIGHT REQUIREMENT FOR THE BATTERY IS A MATERIAL ONE OR A MINOR INFORMALITY WHICH CAN BE WAIVED. YOUR DEPARTMENT APPARENTLY CONSIDERS THAT THE MAXIMUM HEIGHT REQUIREMENT IS A MATERIAL REQUIREMENT. IN THIS REGARD THE CONTINENTAL ARMY COMMAND, AND THE OFFICE OF THE ASSISTANT SECRETARY OF THE ARMY APPARENTLY HAVE OVERRULED THE CONTRACTING OFFICER. A DEVIATION FROM A DIMENSIONAL REQUIREMENT HAS BEEN CONSIDERED AS BEING A MATERIAL DEVIATION FROM SPECIFICATION REQUIREMENTS. SEE B-166284, APRIL 14, 1969 AND 40 COMP. GEN. 432. SINCE THE MAXIMUM DIMENSIONS WERE SPECIFIED WHICH APPARENTLY WERE INTENDED TO SET FORTH THE OUTER LIMITS OF THE ACCEPTABLE LENGTH, WIDTH, AND HEIGHT OF THE BATTERY, SINCE THE HEIGHT DIMENSION WAS EXCEEDED IN BIG JOE'S BID AND SINCE THIS DEVIATION IS CONSIDERED AS BEING MATERIAL, WE HAVE NO OBJECTION TO THE DETERMINATION BY YOUR DEPARTMENT THAT BIG JOE'S BID IS NONRESPONSIVE FOR ALL THREE ITEMS AND SHOULD BE REJECTED.

WITH RESPECT TO WHETHER BIG JOE SHOULD BE PERMITTED TO CORRECT ITS BID AND THEREBY CHANGE THE INSERTION FROM 23-1/2 INCHES TO 23-1/4 INCHES, THE RULE IS THAT A CORRECTION OF AN ERROR IS PROPER ONLY IN CASES WHERE THE BID IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE, WHICH IS NOT THE CASE HERE. SEE 40 COMP. GEN. 432. SEE ALSO 46 COMP. GEN. 418, WHERE A BIDDER FAILED TO COMPLY WITH THE ACCEPTANCE PERIOD PRESCRIBED BY THE INVITATION AND PETITIONED TO HAVE SUCH DEVIATION CORRECTED AS A MISTAKE. WE STATED AS FOLLOWS AT PAGE 422: "FURTHER, THE FACT THAT SUCH FAILURE IS ALLEGED TO BE ATTRIBUTABLE TO OVERSIGHT OR ERROR DOES NOT JUSTIFY CORRECTION OF THE BID TO REMEDY THE DEFECT, SINCE THE RULES UNDER WHICH CORRECTION OF CERTAIN MISTAKES IN BID IS PERMITTED ARE APPLICABLE ONLY WHEN THE BID AS SUBMITTED IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE ACCEPTABLE. SUCH RULES MAY NOT BE INVOKED TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PROVISION AFTER THE BID OPENING, SINCE SUCH ACTION WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW BID.' FOR THIS REASON ASPR 2 406.2, ASPR 2-406.3 AND THE DECISIONS CITED BY BIG JOE, B-120281, JUNE 29, 1954 AND B-156934, JULY 28, 1965, WOULD NOT BE APPLICABLE TO THIS SITUATION.

WHETHER AN OVERALL OFFER TO COMPLY CURES A SPECIFIC DEVIATION FROM A SPECIFICATION REQUIREMENT HAS BEEN PREVIOUSLY CONSIDERED BY OUR OFFICE AND THE RULE IS THAT AN OVERALL OFFER TO CONFORM TO THE SPECIFICATIONS, IN WHATEVER FORM, CAN CURE A SPECIFIC DEVIATION ONLY IN SITUATIONS WHERE THAT PROMISE OR OFFER MAKES IT PATENTLY CLEAR THAT THE OFFEROR DID IN FACT INTEND TO SO CONFORM. THE CRUX OF THE MATTER IS THE INTENT OF THE OFFEROR AND ANYTHING SHORT OF A CLEAR INTENTION TO CONFORM ON THE FACE OF THE BID REQUIRES REJECTION. SEE B-166284, APRIL 14, 1969. SEE ALSO 40 COMP. GEN. 432. THE FACE OF BIG JOE'S BID DOES NOT EVIDENCE A CLEAR INTENTION TO CONFORM WITH THE REQUIREMENTS OF THE SPECIFICATIONS; THEREFORE, REJECTION IS REQUIRED DESPITE THE OVERALL OFFER TO CONFORM.

IN THE CIRCUMSTANCES OUR OFFICE CONCURS WITH THE RECOMMENDATION THAT THE INSTANT INVITATION BE CANCELLED AND THE PROCUREMENT READVERTISED.