B-169278, B-170840, MAR 30, 1971, 50 COMP GEN 691

B-169278,B-170840: Mar 30, 1971

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CONTRACTS - SPECIFICATIONS - QUALIFIED PRODUCTS - REQUIREMENT - WAIVER THE AWARD OF A CONTRACT FOR A ROAD GRADER TO THE SECOND LOW BIDDER OFFERING A QUALIFIED PRODUCT GRADER WITH A SUPERIOR ENGINE WHICH WAS NOT LISTED ON THE APPLICABLE QUALIFIED PRODUCTS LIST AS REQUIRED BY THE APPROPRIATE FEDERAL SPECIFICATION. ON THE BASIS THE SUPERIOR ENGINE THAT EXCEEDED THE MINIMUM NEEDS OF THE GOVERNMENT WAS ESSENTIAL FOR THE AREA IN WHICH IT WAS TO BE USED. ALTHOUGH AN AWARD SHOULD NOT HAVE BEEN MADE TO THE NON RESPONSIVE BIDDER SINCE DELIVERY AND PAYMENT HAVE BEEN MADE. CORRECTIVE ACTION IS PRECLUDED. EXCEPTIONS ARE PERMITTED. SINCE THE QUALIFIED PRODUCTS LIST ITEM IS INADEQUATE FOR THE ROAD GRADER NEEDED.

B-169278, B-170840, MAR 30, 1971, 50 COMP GEN 691

CONTRACTS - SPECIFICATIONS - QUALIFIED PRODUCTS - REQUIREMENT - WAIVER THE AWARD OF A CONTRACT FOR A ROAD GRADER TO THE SECOND LOW BIDDER OFFERING A QUALIFIED PRODUCT GRADER WITH A SUPERIOR ENGINE WHICH WAS NOT LISTED ON THE APPLICABLE QUALIFIED PRODUCTS LIST AS REQUIRED BY THE APPROPRIATE FEDERAL SPECIFICATION, AND MODIFIED BY THE CONTRACTING AGENCY, ON THE BASIS THE SUPERIOR ENGINE THAT EXCEEDED THE MINIMUM NEEDS OF THE GOVERNMENT WAS ESSENTIAL FOR THE AREA IN WHICH IT WAS TO BE USED, VIOLATED SECTION 1-1.1101 OF THE FEDERAL PROCUREMENT REGULATIONS. ALTHOUGH AN AWARD SHOULD NOT HAVE BEEN MADE TO THE NON RESPONSIVE BIDDER SINCE DELIVERY AND PAYMENT HAVE BEEN MADE, CORRECTIVE ACTION IS PRECLUDED. NOTWITHSTANDING SECTION 1-1.305.1 REQUIRES THE USE OF FEDERAL SPECIFICATION, EXCEPTIONS ARE PERMITTED, AND SINCE THE QUALIFIED PRODUCTS LIST ITEM IS INADEQUATE FOR THE ROAD GRADER NEEDED, THE AGENCY MAY DEVIATE FROM THE FEDERAL SPECIFICATIONS BY COMPLYING WITH THE CONDITIONS IN SECTION 1-1.305-3.

TO THE SECRETARY OF THE INTERIOR, MARCH 30, 1971:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 30, 1970, FROM THE DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION, AND PRIOR CORRESPONDENCE FROM THE DIRECTOR OF SURVEY AND REVIEW, CONCERNING THE PROTESTS OF THE GALION IRON WORKS & MFG. CO. UNDER INVITATIONS FOR BIDS NOS. P-0-159 (B 169278) AND P- 1-91 (B-170840), ISSUED BY THE BUREAU OF LAND MANAGEMENT (BLM), PORTLAND, OREGON, FOR ROAD GRADERS.

INVITATION NO. P-0-159, ISSUED ON DECEMBER 4, 1969, SOLICITED BIDS FOR FURNISHING ONE ROAD GRADER, TYPE I, SIZE 5, IN ACCORDANCE WITH FEDERAL SPECIFICATION 00-G-630C AS MODIFIED BY BLM EQUIPMENT SPECIFICATION NO. 37. THE FEDERAL SPECIFICATION PROVIDED THAT THE GRADERS BE QUALIFIED PRODUCTS LIST (QPL) ITEMS. BIDDERS WERE REQUIRED TO SUBMIT WITH THEIR BIDS FULLY COMPLETED QUESTIONNAIRES ON THE TECHNICAL DETAILS OF THE GRADER PROPOSED TO BE FURNISHED. THREE BIDS WERE RECEIVED AND OPENED ON DECEMBER 30, 1969. GALION WAS THE APPARENT LOW BIDDER AT A PRICE OF $19,900 AND THE SECOND LOW BIDDER WAS THE TRAIL EQUIPMENT COMPANY (TRAIL) AT A BID PRICE OF $25,830. AFTER EVALUATION OF BIDS, THE CONTRACTING OFFICER CONCLUDED THAT THE T-500A GRADER OFFERED BY GALION DID NOT MEET THE TECHNICAL REQUIREMENTS AND ON JANUARY 23, 1970, AWARD OF CONTRACT NO. 53- 500-CTO-233 WAS MADE TO TRAIL. THE GRADER HAS BEEN DELIVERED AND ACCEPTED.

GALION PROTESTED AGAINST THE AWARD MADE UNDER INVITATION NO. P-0-159 ON THE BASIS THAT THE UNIT OFFERED BY TRAIL DID NOT MEET THE ADVERTISED SPECIFICATIONS. SPECIFICALLY, IT CONTENDS THAT THE BLM SPECIFICATIONS MADE THE PROCUREMENT RESTRICTIVE AND PROPRIETARY TO SOME MANUFACTURERS.

WE NOTE THAT BLM SPECIFICATION NO. 37 PROVIDE THAT THE DESIRED ROAD GRADER WOULD BE USED IN EASTERN OREGON (ROUGH AND MOUNTAINOUS COUNTRY) AND IN ELEVATIONS BETWEEN 3,000 AND 6,000 FEET ABOVE SEA LEVEL AT TEMPERATURE RANGES BETWEEN MINUS 25 DEGS F. AND PLUS 125 DEGS F. FURTHER, WE OBSERVE THAT THE WEIGHT AND ENGINE VOLUME DISPLACEMENT SPECIFIED IN BLM SPECIFICATION NO. 37 WERE CONSISTENT WITH THE HARD USE EXPECTED FOR THE GRADER, AND THAT THE SPECIFICATION BY ITS TERMS WAS NOT RESTRICTED TO ONE MANUFACTURER. WE FOUND NOTHING OF RECORD TO INDICATE THAT THE TRAIL UNIT WAS NONCONFORMING ON THAT GALION'S BID WAS NOT FAIRLY EVALUATED IN THE LIGHT OF THE ADVERTISED REQUIREMENTS. ON THE RECORD, WE FIND NO REASON TO DISAGREE WITH THE DETERMINATION THAT GALION'S BID WAS NONRESPONSIVE.

GALION ALSO CONTENDS THAT THE TRAIL WABCO 440-H GRADER AS POWERED BY A CUMMINS H-743-C 160 ENGINE WAS NOT ON THE APPLICABLE QPL. THE INITIAL ADMINISTRATIVE REPORT OF APRIL 23, 1970, ADVISED THAT THE DATA SUBMITTED BY TRAIL WITH ITS BID CONTAINED A STATEMENT THAT THE CUMMINS H-743-C 160 ENGINE OFFERED WITH THE 440-H GRADER HAD PASSED QPL TEST KM3-1. HOWEVER, BY LETTER OF JUNE 23, 1970, GALION WAS ADVISED BY THE ACTING DIRECTOR OF SURVEY AND REVIEW THAT ITS STATEMENT THAT THE WABCO 440-H GRADER WITH THE CUMMINS H-743-C 160 ENGINE WAS NOT ON THE QPL WAS CORRECT, AND THAT THE STATEMENT IN THE APRIL 23 REPORT WAS IN ERROR. THE LETTER FURTHER ADVISED THAT THE BID SUBMITTED BY TRAIL STATED CORRECTLY THAT THE WABCO 440-H GRADER "WITH GM POWER HAS PASSED THE QPL TEST."

WHILE THE ACTING DIRECTOR WAS AWARE OF THE FACT THAT THE WABCO CUMMINS ENGINE COMBINATION WAS NOT ON THE QPL, HE BELIEVED IT COULD BE ACCEPTED -

*** SINCE THE BASIC WABCO 440H GRADER WAS A QUALIFIED PRODUCT, AND SINCE PARAGRAPH 6.3 OF THE FEDERAL SPECIFICATION INDICATES THAT QUALIFICATION TESTING APPLIES TO THE "BASIC GRADER AND ACCESSORIES," IT WAS FELT THAT USE OF THE OPTIONAL LARGER, BETTER CUMMINS ENGINE, IN PLACE OF THE STANDARD GM 4-71 ENGINE, WAS ACCEPTABLE SINCE IT EXCEEDED THE TECHNICAL REQUIREMENTS OF THE SOLICITATION AND THE FEDERAL SPECIFICATION. ***

GALION WAS FURTHER ADVISED THAT SINCE THE CUMMINS ENGINE WAS A SUPERIOR OPTION TO THE BASIC GRADER, IT WAS THE ACTING DIRECTOR'S OPINION THAT THE REQUALIFICATION OF THE WABCO 440-H GRADER WITH THE CUMMINS ENGINE WAS NOT REQUIRED. WE DO NOT AGREE. IT IS EVIDENT FROM AN EXAMINATION OF FEDERAL SPECIFICATION 00-G-630C, AS MODIFIED BY BLM EQUIPMENT SPECIFICATION NO. 37, AND FROM THE CONTENT OF THE TECHNICAL QUESTIONNAIRE THAT THE ROAD GRADER PROPOSED TO BE FURNISHED, TOGETHER WITH ITS ENGINE, MUST BE LISTED ON THE APPLICABLE QPL. INSOFAR AS IS APPLICABLE HERE, QPL 00-G-630 SHOWS A TYPE I, SIZE 5 GRADER, MANUFACTURED BY THE WESTINGHOUSE AIR BRAKE COMPANY, AND DESIGNATED AS A MODEL 440-H WITH GMC ENGINE 4-71. WHILE TRAIL OFFERED THE QPL MODEL 440-H GRADER, IT DID NOT OFFER AN ENGINE APPEARING ON THIS QPL. IN FACT, WE HAVE NOTED THAT TRAIL, IN SUBMITTING ITS BID, ANSWERED "NO" IN RESPONDING TO THE INVITATION QUESTION "DOES YOUR BID, INCLUDING THE EQUIPMENT, MATERIALS, OR SUPPLIES OFFERED, COMPLY WITH THE 'SPECIFICATIONS AND PROVISIONS' IN THIS ADVERTISEMENT IN EVERY PARTICULAR?"

SECTION 1-1.1101 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), WHICH IS GOVERNING IN THIS CIRCUMSTANCE, PROVIDES:

(A) WHENEVER QUALIFIED PRODUCTS ARE TO BE PROCURED ONLY BIDS OR PROPOSALS OFFERING PRODUCTS WHICH HAVE BEEN QUALIFIED PRIOR TO THE OPENING OF ADVERTISED BIDS OR THE AWARD OF NEGOTIATED CONTRACTS SHALL BE CONSIDERED IN MAKING AN AWARD. *** THE AWARD OF A CONTRACT ON THE BASIS OF A BID OFFERING A PRODUCT NOT LISTED ON THE APPLICABLE QPL, WHERE THE BIDDER, AS HERE, AFFIRMATIVELY STATED THAT ITS OFFERED PRODUCT WAS ON THE LIST WHEN, IN FACT, IT WAS NOT, VIOLATED THE ABOVE QUOTED PROVISION. SINCE TRAIL'S BID AS SUBMITTED WAS NONRESPONSIVE TO THE ADVERTISED REQUIREMENTS, IT SHOULD NOT HAVE BEEN CONSIDERED FOR AWARD. CF. 43 COMP. GEN. 839 (1964). WHILE THE CUMMINS ENGINE OFFERED WITH THE 440-H GRADER MAY HAVE EXCEEDED THE MINIMUM NEEDS AS STATED IN THE INVITATION, THE FACT REMAINS THAT TRAIL OFFERED A BID FOR A ROAD GRADER ON THE QPL WITH AN ENGINE WHICH WAS NOT QUALIFIED FOR USE WITH THAT GRADER. SINCE DELIVERY AND PAYMENT HAVE BEEN MADE, OUR OFFICE IS PRECLUDED FROM TAKING ANY CORRECTIVE ACTION ON THE PROCUREMENT UNDER INVITATION NO. P-0-159.

IT HAS BEEN REPORTED THAT THE CONTRACTING OFFICER CANCELED INVITATION NO. P-1-91, BUT PROPOSES TO READVERTISE ON OTHER THAN QPL SPECIFICATIONS BECAUSE THERE IS NO GRADER ON THE QPL THAT WOULD MEET THE SPECIAL SERVICE REQUIREMENTS IN RUGGED, HIGH ALTITUDE, WIDE TEMPERATURE VARIATION, AND MOUNTAINOUS COUNTRY.

FPR SEC. 1-1.305-1 PROVIDES THAT "FEDERAL SPECIFICATIONS SHALL BE USED BY ALL EXECUTIVE AGENCIES, *** IN THE PROCUREMENT OF SUPPLIES AND SERVICES COVERED BY SUCH SPECIFICATIONS, EXCEPT AS PROVIDED IN SECS 1-1.305-2 AND 1 -1.305-3." SECTION 1-1.305-3 STATES:

WHEN THE ESSENTIAL NEEDS OF AN AGENCY ARE NOT ADEQUATELY COVERED BY AN EXISTING FEDERAL SPECIFICATION, AND THE PROPOSED PURCHASE DOES NOT COME WITHIN THE EXCEPTIONS DESCRIBED IN SEC 1-1.305-2, THE AGENCY MAY AUTHORIZE DEVIATIONS FROM THE FEDERAL SPECIFICATION; ***

IF THE QPL SPECIFICATIONS ARE NOT ADEQUATE FOR BLM NEEDS, AS REPRESENTED, THERE IS AUTHORITY UNDER THE FOREGOING REGULATIONS FOR THE AGENCY TO DEVIATE FROM A FEDERAL SPECIFICATION, PROVIDED THERE IS COMPLIANCE WITH THE CONDITIONS SET FORTH IN THE SUBSECTIONS OF 1-1.305 3.