B-169020, MAY 7, 1970, 49 COMP. GEN. 764

B-169020: May 7, 1970

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THE DETERMINATION THAT THE LOW BID WAS NONRESPONSIVE WAS PROPER. EVEN THOUGH THE LITERATURE INDICATED IT WAS SUBJECT TO CHANGE. FOR THE OFFICER TO INQUIRE AFTER BID OPENING WHETHER THERE WAS OTHER LITERATURE AVAILABLE TO SHOW THAT THE OFFERED MODEL WOULD COMPLY WITH THE SPECIFICATIONS WOULD HAVE PERMITTED THE BIDDER TO MODIFY ITS BID AFTER SUBMISSION CONTRARY TO COMPETITIVE BIDDING PROCEDURES. SHOW THAT AWARD WILL BE USED UPON THE BIDDER'S UNQUALIFIED OFFER TO COMPLY WITH SPECIFICATIONS. 1970: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4. THERE WAS NO REQUIREMENT FOR DESCRIPTIVE LITERATURE ON THE TRUCK CHASSIS. BIDS WERE OPENED ON NOVEMBER 14. THE BIDS RECEIVED WERE AS FOLLOWS: ITEM 1 ITEM 2 40 UNITS 5 UNITS DISCOUNT DELIVERY INTERNATIONAL$13.

B-169020, MAY 7, 1970, 49 COMP. GEN. 764

BIDS -- EVALUATION -- BASIS FOR EVALUATION -- DESCRIPTIVE LITERATURE ON FILE UNDER AN INVITATION REQUIRING BIDDERS TO CITE MAKE AND MODEL OF THE REFUSE COLLECTION TRUCKS OFFERED TO PERMIT THE EVALUATION OF BIDS ON THE BASIS OF THE DESCRIPTIVE LITERATURE ON FILE WITH THE PROCUREMENT OFFICER, THE DETERMINATION THAT THE LOW BID WAS NONRESPONSIVE WAS PROPER, EVEN THOUGH THE LITERATURE INDICATED IT WAS SUBJECT TO CHANGE. THE BIDDER HAD NOT SPECIFIED IN ITS BID THAT ANY MODIFICATION WOULD BE MADE IN THE EQUIPMENT TO MEET THE INVITATION REQUIREMENTS, AND FOR THE OFFICER TO INQUIRE AFTER BID OPENING WHETHER THERE WAS OTHER LITERATURE AVAILABLE TO SHOW THAT THE OFFERED MODEL WOULD COMPLY WITH THE SPECIFICATIONS WOULD HAVE PERMITTED THE BIDDER TO MODIFY ITS BID AFTER SUBMISSION CONTRARY TO COMPETITIVE BIDDING PROCEDURES. FUTURE INVITATIONS SHOULD, HOWEVER, SHOW THAT AWARD WILL BE USED UPON THE BIDDER'S UNQUALIFIED OFFER TO COMPLY WITH SPECIFICATIONS, THUS AVOIDING THE NEED FOR BIDDERS TO CITE TRUCK MAKE AND MODEL.

TO THE INTERNATIONAL HARVESTER COMPANY, MAY 7, 1970:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1970, PROTESTING THE REJECTION OF INTERNATIONAL HARVESTER'S LOW BID FOR 45 REFUSE COLLECTION TRUCKS UNDER INVITATION 23-148-0-0272-R ISSUED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA ON OCTOBER 16, 1969.

THE INVITATION SOLICITED BIDS FOR FURNISHING 40 REFUSE COLLECTION TRUCKS WITH 16-CUBIC-YARD COMPACTOR BODIES (ITEM 1) AND 5 WITH 20-CUBIC YARD COMPACTOR BODIES (ITEM 2). THE SPECIFICATIONS IN THE INVITATION PROVIDED IN PERTINENT PART:

THE FOLLOWING ITEMS SHALL BE IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF INTERIM FEDERAL SPECIFICATION KKK-T-701B AND THE FOLLOWING MINIMUM REQUIREMENTS: ITEM NO. 1--16 CU. YD. REFUSE COLLECTION

TRUCK CHASSIS

1. G.V.W.: 32,000 LB. MINIMUM

5. AXLES: FRONT, 12,000 LB. MIN. ON TIRES AT GROUND.

REAR, TO BE FULL FLOATING DOUBLE REDUCTION TYPE 22,000 LB.

MIN. ON TIRES AT GROUND. THESE SAME REQUIREMENTS APPLIED TO THE TRUCK CHASSIS FOR ITEM 2.

THE SPECIFICATIONS REQUIRED BIDDERS TO SUBMIT WITH THEIR BIDS DESCRIPTIVE LITERATURE ON THE GARBAGE COMPACTORS. THERE WAS NO REQUIREMENT FOR DESCRIPTIVE LITERATURE ON THE TRUCK CHASSIS.

BIDS WERE OPENED ON NOVEMBER 14, 1969. THE BIDS RECEIVED WERE AS FOLLOWS:

ITEM 1 ITEM 2

40 UNITS 5 UNITS DISCOUNT DELIVERY INTERNATIONAL$13,680.12

$13,946.21 $25/UNIT 108 DAYS

HARVESTER CO. 20 DAYS FORD DIVISION, 14,254.84 14,452.78

$25/UNIT 240 DAYS

FORD MOTOR CO. 30 DAYS GMC TRUCK AND

COACH DIVISION 14,505.00 14,762.00 NET 210-24 DAYS

THE BID FORM PROVIDED IN PERTINENT PART: ITEM UNIT NO.

ARTICLE OR SERVICE QUANTITY UNIT PRICE AMOUNT

1. TRUCK, REFUSE

COLLECTION,

COMPACTOR 16 CU

YD BODY, AS SPECIFIED

HEREIN.

MAKE & MODEL: 40 EA.

2. TRUCK, REFUSE

COLLECTION,

COMPACTOR 20 CU

YD BODY, AS SPECIFIED

HEREIN.

MAKE & MODEL: 5 EA. IN THE SPACE PROVIDED FOR "MAKE & MODEL," INTERNATIONAL HARVESTER STATED "INTERNATIONAL VCO 190." FORD DESIGNATED ITS MODEL CH-C-907 IN ITS BID AND SUBMITTED A QUESTIONNAIRE FORM INDICATING WHAT IT INTENDED TO FURNISH. GMC DID NOT SPECIFY ANY MAKE AND MODEL.

THE BID FROM INTERNATIONAL HARVESTER WAS REJECTED ON THE GROUNDS THAT THE SPECIFICATIONS OF THE VCO-190 DO NOT CONFORM TO THE INVITATION SPECIFICATIONS AS TO GROSS VEHICLE WEIGHT (GVW) AND REAR AXLE CAPACITY. THE PROCUREMENT OFFICER BASED THIS DETERMINATION ON THE INTERNATIONAL VCO- 190 SPECIFICATION SHEET AD-4650-W5 11-15 WHICH HAD BEEN FILED WITH THE DISTRICT GOVERNMENT SOME TIME BEFORE BIDS WERE OPENED. IN THAT REGARD, WE HAVE BEEN ADVISED THAT IT IS THE COMMON PRACTICE OF THE INDIVIDUAL TRUCK MANUFACTURERS TO SUPPLY THE DISTRICT GOVERNMENT ON A REGULAR BASIS WITH PRINTED DATA ON THEIR EQUIPMENT. THE VCO-190 SPECIFICATION SHEET INDICATES THAT THE STANDARD GVW FOR MODEL VCO-190 IS 26,000 POUNDS WITH AN OPTIONAL GVW OF 30,500 POUNDS AVAILABLE, WHEREAS THE INVITATION SPECIFICATIONS REQUIRE A GVW OF 32,000 POUNDS. FURTHER, THE VCO-190 SPECIFICATION SHEET INDICATES A REAR AXLE CAPACITY OF 18,500 POUNDS, WHEREAS THE INVITATION SPECIFICATIONS REQUIRE A 22,000-POUND CAPACITY.

AN AWARD TO THE FORD MOTOR COMPANY WAS CONCURRED IN BY THE DISTRICT CONTRACT REVIEW COMMITTEE. THE AWARD WAS MADE ON JANUARY 14, 1970.

IN THE LETTER OF FEBRUARY 4, 1970, PROTESTING THE REJECTION OF YOUR COMPANY'S BID, YOU STATED: 1. OUR PROPOSED MODE VCO-190 TRUCK MEETS THE SPECIFICATIONS IN BID

23-148-0-0272-R. THE GROSS VEHICLE WEIGHT OF MODEL VCO-190 CAN VARY

FROM 26,000 POUNDS TO 34,000 POUNDS. 2. MR. WESSELL BASED HIS OPINIONS ON LITERATURE THAT IS SUBJECT TO

CHANGE WITHOUT NOTICE. 3. WE HAVE PREVIOUSLY SUPPLIED OUR COMMERCIAL MODEL VCO-190 TRUCKS TO

FEDERAL GOVERNMENT AGENCIES WITH GROSS VEHICLE WEIGHT SPECIFICATIONS

AND AXLE SIZES THAT ARE EQUAL TO, OR EXCEED, THOSE SPECIFIED IN

IFB 23-148-0-0272-R.

* * * * * 4. *** A PROCUREMENT OFFICER BASED HIS OPINIONS ON ONE SHEET OF

"CHANGEABLE" SPECIFICATIONS. AS MANUFACTURERS OF THIS TRUCK WE HAVE

THOUSANDS OF COMBINATIONS OF AXLES, ENGINES, TRANSMISSIONS AND

TIRES THAT ARE COMMERCIALLY AVAILABLE ON THIS MODEL. ALL OF THIS DATA

IS SO VOLUMINOUS IT IS KEPT ON IBM TAPES. WE CONTEND THAT THE

PROCUREMENT OFFICER RELIED ON INFORMATION IN HIS POSSESSION THAT

WAS NOT COMPLETE, AND WAS SUBJECT TO CHANGE.

WITH YOUR LETTER YOU SUBMITTED A COPY OF AN IBM PRINTOUT SHEET TO SHOW THAT INTERNATIONAL HARVESTER HAS A DOUBLE REDUCTION REAR AXLE THAT WOULD COMPLY WITH THE SPECIFICATIONS. ACCORDINGLY, YOU BELIEVE THAT YOUR COMPANY WAS THE LOWEST RESPONSIVE BIDDER AND THAT IT SHOULD HAVE BEEN AWARDED THE CONTRACT UNDER THE INVITATION. AWARD OF THE CONTRACT TO INTERNATIONAL HARVESTER FOR THE 45 VEHICLES UNDER THE PROCUREMENT WOULD HAVE RESULTED IN A SAVING OF APPROXIMATELY $25,000.

BIDDERS WERE REQUESTED TO CITE THE MAKE AND MODEL IN THE BID IN ORDER THAT IT COULD BE ASCERTAINED BEFORE AWARD WHETHER THE BIDDER INTENDED TO FURNISH EQUIPMENT IN FULL COMPLIANCE WITH THE SPECIFICATIONS.

AS INDICATED ABOVE, YOU HAVE CONTENDED THAT THE PROCUREMENT OFFICER'S DETERMINATION OF THE NONRESPONSIVENESS OF YOUR COMPANY'S BID WAS BASED UPON PUBLISHED LITERATURE IN HIS POSSESSION THAT WAS NOT COMPLETE AND WHICH WAS SUBJECT TO CHANGE. YOU STATE THAT INFORMATION SHOWING THAT THE VCO-190 COULD BE EQUIPPED TO CONFORM TO THE SPECIFICATIONS WAS AVAILABLE AND COULD HAVE BEEN PROVIDED UPON REQUEST. WITH REGARD TO THIS CONTENTION THE RECORD SHOWS THAT AT THE TIME THE BIDS WERE EVALUATED THE PUBLISHED LITERATURE AVAILABLE TO THE PROCUREMENT OFFICER, AND UPON WHICH HE BASED HIS DECISION, CLEARLY SHOWED THE VCO 190 DID NOT COMPLY WITH THE SPECIFICATIONS AND THERE WAS NOTHING ON THE FACE OF THE PUBLISHED LITERATURE TO INDICATE TO HIM THAT THE VCO-190 COULD MEET THE REQUIREMENTS OF THE SPECIFICATIONS. THE PROCUREMENT OFFICER HAS ADVISED OUR OFFICE THAT LITERATURE WAS NOT REQUESTED TO BE FURNISHED WITH THE BIDS BECAUSE LITERATURE WAS ON FILE WITH THE PROCUREMENT AGENCY AND THAT IT WAS THE PRACTICE OF THE TRUCK MANUFACTURERS TO KEEP IT UP TO DATE. ALTHOUGH THE LITERATURE INDICATED THAT IT WAS SUBJECT TO CHANGE, THE PROCUREMENT OFFICER COULD NOT BE CERTAIN THAT THE EQUIPMENT WOULD MEET THE INVITATION SPECIFICATIONS SINCE INTERNATIONAL HARVESTER DID NOT SPECIFY IN ITS BID THAT ANY MODIFICATIONS WOULD BE MADE TO THE VCO-190 MODEL TO BRING IT UP TO THE INVITATION REQUIREMENTS. FURTHER, IT WOULD NOT HAVE BEEN APPROPRIATE FOR THE PROCUREMENT OFFICER TO INQUIRE OF YOUR COMPANY AFTER THE OPENING OF BIDS WHETHER THERE WAS OTHER LITERATURE AVAILABLE WHICH WOULD SHOW THAT THE VCO-190 WOULD COMPLY WITH SPECIFICATIONS OR TO ATTEMPT TO ASCERTAIN WHETHER IT INTENDED TO FURNISH A VCO-190 WHICH WOULD COMPLY WITH THE SPECIFICATIONS. TO OBTAIN INFORMATION FROM A BIDDER AFTER THE OPENING OF BIDS AS TO THE COMPLIANCE OF THE MAKE AND MODEL OFFERED WOULD PERMIT THE BIDDER TO MODIFY THE BID AFTER ITS SUBMISSION. THIS WOULD BE CONTRARY TO THE COMPETIVE BIDDING PROCEDURES REQUIRED BY THE ADVERTISING STATUTES. 17 COMP. GEN. 554, 558 (1938); 40 ID. 132, 134-135 (1960); B- 167057, JULY 23, 1969.

WHILE, IN SPECIFYING THE VCO-190 IN THE BID, THERE MAY HAVE BEEN AN INTENTION TO OFFER THAT MODEL IN ACCORDANCE WITH THE SPECIFICATIONS, THERE WAS NO STATEMENT IN THE BID THAT IT WOULD BE MODIFIED TO COMPLY WITH THE INVITATION SPECIFICATIONS. THUS, IF THE PROCUREMENT OFFICER HAD ACCEPTED THE BID, YOUR COMPANY WOULD HAVE BEEN IN THE POSITION TO ARGUE THAT THE DISTRICT WOULD HAVE BEEN ENTITLED TO RECEIVE ONLY THE STANDARD VCO-190, WHETHER OR NOT IT CONFORMED FULLY TO THE SPECIFICATIONS.

ACCORDINGLY, WE FIND NO LEGAL BASIS TO OBJECT TO THE REJECTION OF THE INTERNATIONAL HARVESTER BID. WE BELIEVE THE SITUATION COULD HAVE BEEN AVOIDED IF THE INVITATION HAD INDICATED THE PURPOSE FOR CITING MAKE AND MODEL NUMBER IN THE BID, HOW SUCH INFORMATION WAS TO BE UTILIZED IN THE EVALUATION OF BIDS AND HOW BIDDERS WERE TO INDICATE IN THEIR BIDS AN INTENTION TO COMPLY. IN FACT, WE BELIEVE THAT IN FUTURE PROCUREMENTS OF THIS KIND, IT WOULD BE PREFERABLE FOR INVITATIONS FOR BIDS TO BE DRAFTED TO SHOW THAT THE AWARD WILL BE BASED UPON THE GOVERNMENT'S SPECIFICATIONS AND THE BIDDER'S UNQUALIFIED OFFER TO COMPLY WITH THEM WITHOUT ANY REQUIREMENT FOR BIDDERS FURNISHING A CITATION TO MAKE AND MODEL NUMBER. WE ARE SO RECOMMENDING TO THE COMMISSIONER OF THE DISTRICT OF COLUMBIA.