B-167477, OCT. 28, 1969

B-167477: Oct 28, 1969

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SPECIFICATIONS UNDER REQUEST FOR PROPOSALS FOR URGENTLY NEEDED DRILLING MACHINES AMENDED TO DELETE STRINGENT REQUIREMENTS WHEN COMMERCIAL MODEL WAS CONSIDERED MORE ACCEPTABLE. ADMINISTRATIVE REPORT FAILED TO EVIDENCE ALLEGED TELEPHONIC ADVICE AND LOW OFFER WAS FOUND TECHNICALLY ACCEPTABLE. THERE IS NO IMPROPRIETY IN AWARD BECAUSE IN FACTUAL DISPUTES ADMINISTRATIVE REPORT WILL BE ACCEPTED GENERALLY AND DETERMINATION OF GOVT.'S NEEDS AND DRAFTING OF SPECIFICATIONS ARE FUNCTIONS OF CONTRACTING OFFICER WHICH IS NOT DISTURBED IN ABSENCE OF CLEAR AND CONVINCING EVIDENCE OF ERROR AND RECORD DOES NOT SUPPORT CONCLUSION THAT ADMINISTRATIVE REPORT OR DETERMINATION OF GOVT.'S NEEDS WAS ERRONEOUS. TO WESTINGHOUSE AIR BRAKE COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 11.

B-167477, OCT. 28, 1969

NEGOTIATION--CHANGES, ETC.--SPECIFICATIONS UNDER REQUEST FOR PROPOSALS FOR URGENTLY NEEDED DRILLING MACHINES AMENDED TO DELETE STRINGENT REQUIREMENTS WHEN COMMERCIAL MODEL WAS CONSIDERED MORE ACCEPTABLE, WHERE UNSUCCESSFUL OFFEROR SUBMITTED PROPOSAL BASED ON DELETED REQUIREMENTS WHICH ALLEGEDLY RESULTED FROM ADVICE OF CONTRACTING OFFICER AND CONTENDED THAT REVISED ITEM DESCRIPTION DID NOT MEET GOVERNMENT'S MINIMUM NEEDS, BUT ADMINISTRATIVE REPORT FAILED TO EVIDENCE ALLEGED TELEPHONIC ADVICE AND LOW OFFER WAS FOUND TECHNICALLY ACCEPTABLE, THERE IS NO IMPROPRIETY IN AWARD BECAUSE IN FACTUAL DISPUTES ADMINISTRATIVE REPORT WILL BE ACCEPTED GENERALLY AND DETERMINATION OF GOVT.'S NEEDS AND DRAFTING OF SPECIFICATIONS ARE FUNCTIONS OF CONTRACTING OFFICER WHICH IS NOT DISTURBED IN ABSENCE OF CLEAR AND CONVINCING EVIDENCE OF ERROR AND RECORD DOES NOT SUPPORT CONCLUSION THAT ADMINISTRATIVE REPORT OR DETERMINATION OF GOVT.'S NEEDS WAS ERRONEOUS.

TO WESTINGHOUSE AIR BRAKE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 11, 1969, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE WINTER-WEISS COMPANY UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAK01-69-R -8940, ISSUED BY THE ARMY MOBILITY EQUIPMENT COMMAND (MECOM).

THE RFP WAS ISSUED ON MAY 19, 1969, UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (2), TO SATISFY AN URGENT REQUIREMENT FOR 14 TRAILER MOUNTED WELL DRILLING MACHINES. THE CLOSING DATE FOR RECEIPT OF PROPOSALS WAS JUNE 9, 1969. THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY AND COPIES OF THE RFP WERE SENT TO 24 FIRMS, OF WHICH 6 SUBMITTED PROPOSALS.

ITEM 0001 OF THE RFP DESCRIBED THE WELL DRILLING MACHINES AS FOLLOWS:

"DRILLING MACHINE, WELL, COMBINATION, DRILLING CAPACITY 7-7/8 INCHES MIN DIA OF HOLE, 1500 FT. DRILLING DEPTH, DIESEL ENGINE, POWERED, DRILL FRAME FOLDING MAST, HYDRAULICALLY RAISED AND LOWERED, 2 HOIST DRUMS, 2) CATHEAD, ROTARY DRIVE-HEAD, RECIPROCATING TYPE PUMP, 150 CPM AT 310 PSI POWERED THROUGH POWER TAKE-OFF, SEMI-TRAILER MTD, W/ACCESSORIES FOR FLUID DRILLING AND PERCUSSION DRILLING IN ACCORDANCE WITH PURCHASE DESCRIPTION HQPD69-2, DATED 12 MARCH 1969 AND CHANGE, DATED 15 APRIL 69 WITH MODIFICATION AS SPECIFIED IN ARTICLE 2.' ONLY YOUR PROPOSAL MET THESE REQUIREMENTS. JUNE 4, 1969, MECOM WAS ADVISED THAT THE NEED FOR THE MACHINES, WHICH WERE TO BE USED IN VIETNAM, WAS CRITICAL AND THAT THE SITUATION WAS BECOMING MORE ACUTE. IT WAS THEN DETERMINED THAT A COMMERCIAL MODEL WELL DRILLING MACHINE, RATHER THAN THE ONE DESCRIBED IN HQPD69-2, WOULD MEET THE GOVERNMENT'S MINIMUM REQUIREMENTS AND AFFORD AN EARLIER DELIVERY SCHEDULE. ON JUNE 11, 1969, THE CONTRACTING OFFICER SENT A TELEGRAM TO ALL WHO HAD REQUESTED COPIES OF THE RFP, STATING IN PERTINENT PART:

"SUBJECT: AMENDMENT TO RFP DAAK01-69-R-8940 PROCUREMENT FOR WELL DRILLING MACHINES, TRAILER MOUNTED.'1. DESCRIPTION OF ITEM 0001 IS DELETED AND THE FOLLOWING IS SUBSTITUTED THEREFORE: -COMMERCIAL MODEL WELL-DRILLING MACHINE SEMI-TRAILER MTD, COMBINATION AIR AND MUD, DOWN THE-HOLE DRILLING CAPABILITY USING A SIX INCH BIT TO A 200 FT DEPTH AND RATED TO DRILL 1500 FEET USING MUD. ACCESSORIES, HAND TOOLS AND SUPPLIES SHALL BE EQUIVALENT IN NUMBER AND DRILLING LIFE EXPECTANCY TO THOSE LISTED IN HQPD-69-2 AND COMPATIBLE FOR USE WITH MACHINE BID. TOP DRIVE OR KELLY DRIVE MACHINES WILL BE CONSIDERED. -" OF THE SEVEN OFFERS RECEIVED IN RESPONSE TO THE JUNE 11 TELEGRAM WINTER-WEISS WAS THE LOW OFFEROR AND YOUR FIRM WAS FOURTH LOW. THE WINTER-WEISS PROPOSAL WAS FOUND TO BE TECHNICALLY ACCEPTABLE AND REASONABLY PRICED. ON JUNE 26, 1969, CONTRACT NO. DAAK01-69-C-A382 WAS AWARDED TO WINTER WEISS.

YOUR INITIAL CONTENTION IS THAT THE AWARD TO WINTER-WEISS WAS IMPROPER BECAUSE IT WAS "BASED ON A REVIEW OF THE BIDS RECEIVED WHICH DID NOT COMPARE LIKE OFFERS FROM THE VARIOUS BIDDERS.' YOU CLAIM TO HAVE SUBMITTED AN OFFER OF MORE SUBSTANTIAL EQUIPMENT THAN ANY OF THE OTHER SIX OFFERORS, WHICH YOU ASSERT RESULTED FROM A TELEPHONE CONVERSATION IN WHICH YOU WERE MISLED BY THE CONTRACTING OFFICER. YOU HAVE ALSO CONTENDED THAT SUBSEQUENT TO THE TELEGRAPHIC AMENDMENT, THE GOVERNMENT DECIDED TO OBTAIN LESSER EQUIPMENT, BUT FAILED TO INFORM YOU OF ITS REDUCED REQUIREMENTS. FINALLY, YOU MAINTAIN THAT THE UNITS BEING SUPPLIED BY WINTER-WEISS WILL NOT ADEQUATELY SERVE THE GOVERNMENT'S NEEDS.

THE ORIGINAL RFP REQUIRED THE MACHINES TO CONFORM TO PURCHASE DESCRIPTION HQPD 69-2, AS AMENDED, WHICH WAS A 30-PAGE DESIGN SPECIFICATION FOR WELL DRILLING MACHINES AND ACCOMPANYING HAND TOOLS, FLUID AND PERCUSSION DRILLING ACCESSORIES, AND SUPPLIES. PARAGRAPHS 3.6, 3.10 AND 3.16 OF HQPD 69-2 HAVE PARTICULAR RELEVANCE TO YOUR PROTEST. THESE PARAGRAPHS RESPECTIVELY REQUIRE THE MACHINES TO BE POWERED BY A GMC 8V7-71 DIESEL ENGINE OF 227 BHP AT 1,800 RPM; TO HAVE A 42-FOOT MAST AND TO HAVE AN AIR COMPRESSOR CAPABLE OF DELIVERING 470 CFM OF AIR AT 250 PSI. WHEN THE RFP WAS AMENDED BY THE TELEGRAM OF JUNE 11, ALL OFFERS IN RESPONSE TO THE AMENDMENT, EXCEPT YOURS, WERE SUBMITTED UPON SMALLER PIECES OF EQUIPMENT. FOR EXAMPLE, WINTER-WEISS OFFERED A 33-FOOT MAST INSTEAD OF A 42-FOOT MAST; A 125 PSI AIR COMPRESSOR INSTEAD OF A 250 PSI UNIT; AND A SMALLER GMC 6V7 ENGINE INSTEAD OF THE 8V7-71 ENGINE OFFERED BY YOU. YOU HAVE STATED THAT YOU WERE LED TO BELIEVE THAT THE MORE STRINGENT REQUIREMENTS OF HQPD 69-2 WERE APPLICABLE BY REASON OF A TELEPHONE CONVERSATION BETWEEN YOUR REPRESENTATIVES AND THE CONTRACTING OFFICER. AS RELATED IN YOUR LETTER OF SEPTEMBER 18, 1969:

"IN ORDER TO MEET THE ORIGINAL BID OPENING DATE, WHICH WAS JUNE 9, 1969, TWO REPRESENTATIVES OF WABCO PERSONALLY DELIVERED OUR BID AND IT WAS DEPOSITED AT APPROXIMATELY 11:00 A.M. ON JUNE 9, 1969. THE FOLLOWING DAY, JUNE 10, AT 1:00 P.M., OUR PEOPLE HAD A CONFERENCE WITH THE CONTRACTING OFFICER IN ST. LOUIS, AND HE SHOWED THEM A WIRE HE WAS SENDING OUT TO ALL PROSPECTIVE BIDDERS AMENDING RFP NO. DAAK-01-69-R 8940.

"IT IS NOTED IN THE ADMINISTRATIVE REPORT THAT -WABCO WAS CALLED AND ADVISED OF THE CHANGE AND WAS GIVEN AN OPPORTUNITY TO ASK QUESTIONS, WHICH THEY DID NOT DO.-THIS STATEMENT IS IN ERROR. IT IS TRUE THAT THE WABCO REPRESENTATIVES DID NOT HAVE ANY QUESTIONS DURING THIS PARTICULAR MEETING WITH THE CONTRACTING OFFICER, HOWEVER, BEFORE THEY LEFT ST. LOUIS, AND AFTER FURTHER STUDY AND THOUGHT ON THE TELEGRAM, THEY DID HAVE A QUESTION ON THE AIR COMPRESSOR WHICH THEY BELIEVED NEEDED FURTHER CLARIFICATION. APPROXIMATELY 2:30 P.M. THE SAME AFTERNOON, OUR PEOPLE MADE A CALL TO THE CONTRACTING OFFICER FROM ST. CHARLES, MISSOURI, WHICH IS A SUBURB OF ST. LOUIS, TO DISCUSS THE SIZE AIR COMPRESSOR THAT WOULD BE ACCEPTABLE. BECAUSE OF THE GENERAL WORDING OF THE TELEGRAM, HE ADVISED THE CONTRACTING OFFICER THAT DUE TO A GREAT DIFFERENCE IN PRICE THAT SOME OF THE BIDDERS WOULD OFFER A 125 PSI AIR COMPRESSOR, A SMALLER ENGINE AND A SMALLER TRAILER. THE WABCO REPRESENTATIVE WAS TOLD ON THE PHONE BY THE CONTRACTING OFFICER THAT IF HE WOULD HOLD ON THE LINE, HE WOULD CHECK WITH HIS LEGAL DEPARTMENT FOR ASSISTANCE IN REPLYING TO OUR QUESTION. AFTER THE CONTRACTING OFFICE CHECKED WITH HIS LEGAL DEPARTMENT, HE ADVISED OUR REPRESENTATIVE THAT ALL BIDDERS, IN ORDER TO BE CONSIDERED, MUST OFFER A 250 PSI COMPRESSOR IN ORDER TO OPERATE THE 5-1/4 INCH DOWN-THE-HOLE TOOL LISTED UNDER ACCESSORIES FOR PERCUSSION DRILLING OF PURCHASE DESCRIPTION HQPD 69-2. DUE TO THE FACT THAT THE HIGH PRESSURE TOOL IS MUCH MORE EFFICIENT AND THAT THE CONTRACTING OFFICER STATED THAT WE MUST OFFER THE 250 PSI COMPRESSOR, WE DID NOT OFFER A SMALLER UNIT EQUIPPED WITH THE 125 PSI COMPRESSOR.

"ALL DRILLING UNITS OFFERED BY WINTER-WEISS AND THE OTHER BIDDERS WERE ALSO AVAILABLE EQUIPPED WITH EITHER THE SMALLER OR LARGER AIR COMPRESSORS, HOWEVER, DUE TO THE GREAT PRICE DIFFERENCE BETWEEN THE COMPRESSORS, THEY OFFERED THE SMALL COMPRESSOR. WE, TOO, WOULD HAVE OFFERED THE SMALL COMPRESSOR HAD WE NOT BEEN ADVISED BY THE CONTRACTING OFFICER THAT OUR OFFER WOULD NOT BE CONSIDERED IF WE OFFERED ANYTHING LESS THAN THE 250 PSI COMPRESSOR.'

HOWEVER, THE ADMINISTRATIVE RECORD CONTAINS THE FOLLOWING STATEMENT BY THE CONTRACTING OFFICER:

"THE UNDERSIGNED HEREBY STATES THAT HE DID NOT RECEIVE A TELEPHONE CALL FROM THE WESTINGHOUSE AIR BRAKE CO. QUESTIONING THE SIZE OF THE AIR COMPRESSOR TO BE CONSIDERED ON THE PROCUREMENT OF THE WELL DRILLING MACHINES.' THIS CREATES A DISPUTED QUESTION OF FACT. WHEN THERE IS A CONFLICT BETWEEN THE STATEMENT OF A CLAIMANT AND THE ADMINISTRATIVE REPORT, IT IS A LONG ESTABLISHED RULE OF THIS OFFICE TO ACCEPT THE LATTER, UNLESS THERE IS SUFFICIENT EVIDENCE TO ESTABLISH BEYOND ANY REASONABLE DOUBT THAT THE REPORTED FACTS ARE INCORRECT, 37 COMP. GEN. 568; B-162344, NOVEMBER 8, 1967; B-160110, DECEMBER 1, 1966. WE DO NOT FIND SUCH EVIDENCE IN THE PRESENT RECORD.

YOUR SECOND ARGUMENT IS THAT ALTHOUGH THE CONTRACTING OFFICER TOLD YOU A 250 PSI COMPRESSOR MUST BE FURNISHED, HE SUBSEQUENTLY RELAXED THE REQUIREMENTS WITHOUT NOTIFYING YOU. SINCE THIS REQUIREMENT APPEARED ONLY IN PURCHASE DESCRIPTION HQPD 69-2, WHICH WAS DELETED BY THE JUNE 11 AMENDMENT, THIS ARGUMENT IS NECESSARILY DEPENDENT UPON ESTABLISHMENT OF THE CONTRACTING OFFICER'S SUBSEQUENT ADVICE TO YOU THAT THE 250 PSI REQUIREMENT FOR THE AIR COMPRESSOR REMAINED IN EFFECT. IN VIEW OF OUR CONCLUSION EXPRESSED ABOVE, WE FIND NO MERIT IN YOUR SECOND CONTENTION.

FINALLY, IN SUPPORT OF YOUR CONTENTION THAT AWARD TO WINTER-WEISS WAS IMPROPER, YOU REFER TO YOUR EXPERIENCE IN SUPPLYING WELL DRILLING MACHINES TO THE GOVERNMENT, ESPECIALLY YOUR ROLE AS A CONSULTANT TO THE ARMY IN THE DRAFTING OF PURCHASE DESCRIPTION HQPD 69-2. BASED UPON YOUR KNOWLEDGE OF THE NEEDS OF THE MILITARY, YOU ASSERT THAT THE WINTER WEISS EQUIPMENT WILL PROVE UNSATISFACTORY AND IS INADEQUATE FOR THE DEMANDS WHICH WILL BE PLACED UPON IT. YOU PLACE PARTICULAR EMPHASIS UPON THE ACCEPTANCE OF A SMALLER COMPRESSOR, WHICH IS LESS EFFICIENT THAN THE ONE YOU OFFERED. THE AGENCY DOES NOT AGREE WITH YOUR CONTENTIONS, AND POINTS OUT THAT ALL OFFERS RESPONDING TO THE AMENDMENT WERE TECHNICALLY ACCEPTABLE AND MET MECOM'S NEEDS, INCLUDING THE REQUIREMENT FOR RAPID DELIVERY. WE HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF THE GOVERNMENT'S NEEDS, THE DRAFTING OF SPECIFICATIONS TO MEET THOSE NEEDS, AND THE DETERMINATION WHETHER OFFERORS WILL FURNISH PRODUCTS MEETING SPECIFICATION REQUIREMENTS, ARE PRIMARILY FUNCTIONS OF THE CONTRACTING AGENCY, WHICH SHALL NOT BE DISTURBED BY OUR OFFICE IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE OF ERROR. B 151076, AUGUST 12, 1963; B-150532, MARCH 1, 1963; B-149917, OCTOBER 19, 1962. WE FIND NO SUCH ERROR ON THE PRESENT RECORD.

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THERE WAS NO IMPROPRIETY IN THE AWARD TO WINTER WEISS, AND YOUR PROTEST MUST BE DENIED.