B-169352, JUN. 30, 1970

B-169352: Jun 30, 1970

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READVERTISEMENT JUSTIFICATION UNDER INVITATION FOR BIDS FOR TRUCK MOUNTED MILITARY CRANES WHERE SPECIFICATION OF DESCRIPTIVE INFORMATION INCLUDING WARRANTY WAS REQUIRED FOR ACCEPTABLE COMMERCIAL MANUALS. WARRANTY CLAUSE INCLUDED IN BIDDER'S COMMERCIAL MANUAL SUBMITTED WAS QUALIFICATION OF BID JUSTIFYING ITS REJECTION SINCE THAT WARRANTY CLEARLY VARIED WITH WARRANTY SPECIFIED BY INVITATION FOR BIDS. SINCE THERE WAS TIME TO RESOLICIT. PROCURING ACTIVITY'S CANCELLATION AND READVERTISEMENT WAS CORRECT AS OPPOSED TO AWARD ON ADVERTISED BASIS AND NEGOTIATION FOR REQUIRED DATA. FRANK & KAMPELMAN: REFERENCE IS MADE TO YOUR LETTERS OF MARCH 19. WAS FOR BIDS FOR 92 TRUCK MOUNTED CRANES (ITEM NOS. 0001-0008) CONFORMING TO MILITARY SPECIFICATION MIL-C-22972A DATED NOVEMBER 16.

B-169352, JUN. 30, 1970

BIDS--DISCARDING ALL BIDS--READVERTISEMENT JUSTIFICATION UNDER INVITATION FOR BIDS FOR TRUCK MOUNTED MILITARY CRANES WHERE SPECIFICATION OF DESCRIPTIVE INFORMATION INCLUDING WARRANTY WAS REQUIRED FOR ACCEPTABLE COMMERCIAL MANUALS, WARRANTY CLAUSE INCLUDED IN BIDDER'S COMMERCIAL MANUAL SUBMITTED WAS QUALIFICATION OF BID JUSTIFYING ITS REJECTION SINCE THAT WARRANTY CLEARLY VARIED WITH WARRANTY SPECIFIED BY INVITATION FOR BIDS. SINCE THERE WAS TIME TO RESOLICIT, INCLUDING CORRECT ESSENTIAL DATA, PROCURING ACTIVITY'S CANCELLATION AND READVERTISEMENT WAS CORRECT AS OPPOSED TO AWARD ON ADVERTISED BASIS AND NEGOTIATION FOR REQUIRED DATA, NO BASIS APPEARING FOR DATA NEGOTIATION AS FORMAL ADVERTISING EXCEPTION UNDER 10 U.S.C. 2304(A). SEE COMP. GEN. DECS. CITED.

TO STRASSER, SPIEGELBERG, FRIED, FRANK & KAMPELMAN:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 19, APRIL 24 AND MAY 21, 1970, ON BEHALF OF LITTLE GIANT CRANE AND SHOVEL, INC; PROTESTING AGAINST THE CANCELLATION AND READVERTISEMENT OF IFB NO. DSA 700-70-B 0905, ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), DIRECTORATE OF PROCUREMENT AND PRODUCTION, COLUMBUS, OHIO.

THE REFERENCED SOLICITATION, ISSUED ON SEPTEMBER 15, 1969, WAS FOR BIDS FOR 92 TRUCK MOUNTED CRANES (ITEM NOS. 0001-0008) CONFORMING TO MILITARY SPECIFICATION MIL-C-22972A DATED NOVEMBER 16, 1965, AND AMENDMENT NO. 1, THERETO, DATED APRIL 26, 1966, AND AFLC/AFSC FORM 5, DATED MARCH 20, 1969. ITEM NOS. 0009-0018 OF THE SOLICITATION COVERED ORDERING DATA FOR THE CRANES, ITEM NO. 0009 CONSISTING OF THREE ALTERNATE PROPOSALS FOR TECHNICAL MANUALS IN ACCORDANCE WITH AIR FORCE PROCUREMENT INSTRUCTIONS (AFPI) 71-531-(19) ("TECHNICAL MANUAL REQUIREMENTS FOR STANDARD COMMERCIAL EQUIPMENT"). PROPOSAL NO. 1 WOULD COVER COMMERCIAL TECHNICAL MANUALS, TWO COPIES OF WHICH, IF OFFERED, WERE REQUIRED TO BE SUBMITTED WITH THE BID FOR EVALUATION BY THE CONTRACTING OFFICER, IN CONJUNCTION WITH THE ORGANIZATION RESPONSIBLE FOR DETERMINING THE TECHNICAL ADEQUACY AND ACCURACY OF THE DATA FOR AIR FORCE USE. PROPOSAL NO. 2 WOULD COVER REVISIONS TO PREVIOUSLY ACCEPTED MANUALS, AND PROPOSAL NO. 3 WAS FOR AN OFFER OF SPECIFICATION DATA FOR NEW TECHNICAL MANUALS.

AFPI 71-531-(19) STATES THAT "BIDDERS WHO HAVE NO ASSURANCE THAT THEIR COMMERCIAL MANUALS ARE ACCEPTABLE SHALL BID ON BOTH COMMERCIAL TECHNICAL MANUALS IN ACCORDANCE WITH ATTACHED AFPI 71-531-(19A AND SPECIFICATIONS DATA IN ACCORDANCE WITH ATTACHED AFPI 71-531-(19C." LITTLE GIANT ACCORDINGLY OFFERED BOTH ITS COMMERCIAL MANUAL AND SPECIFICATION DATA.

IN COMPLIANCE WITH PROPOSAL 1, KOEHRING DIVISION OF KOEHRING COMPANY SUBMITTED THE MANUAL FOR ITS MODEL 220 CRANE AND LITTLE GIANT SUBMITTED THE MANUAL FOR ITS MODEL 48 CRANE. BOTH MANUALS INCLUDED THE BIDDERS' STANDARD COMMERCIAL WARRANTY PROVISIONS, WHICH WERE DIFFERENT FROM THE STANDARD DCSC ONE YEAR FROM DELIVERY WARRANTY PROVISION SPECIFIED IN THE SOLICITATION, IN CLAUSE NO. 6.115. THE SPECIFICATION DATA OFFERED AS AN ALTERNATIVE CONTAINED NO REFERENCE TO ANY WARRANTY.

BIDS WERE OPENED ON NOVEMBER 4, 1969, AND KOEHRING OFFERED THE LOWEST BID OF $41,757.00 PER CRANE, WITH LITTLE GIANT OFFERING THE SECOND LOWEST BID OF $43,490.00 PER CRANE. THE ISSUING ACTIVITY AT WARNER ROBINS AIR FORCE BASE ADVISED THE PROCURING ACTIVITY THAT THE CRANES OFFERED BY KOEHRING WERE NOT ACCEPTABLE IN THAT ITS MODEL 220 DID NOT MEET THE 24,000 POUND LIFTING CAPACITY WITHOUT OUTRIGGERS, AS REQUIRED BY THE SOLICITATION, BUT THE CRANES OFFERED BY LITTLE GIANT FULLY COMPLIED WITH THE SPECIFICATION REQUIREMENTS AND WERE ACCEPTABLE. THE ISSUING ACTIVITY ALSO ADVISED THAT THE MANUALS SUBMITTED BY BOTH KOEHRING AND LITTLE GIANT WERE INADEQUATE FOR AIR FORCE USE AND REQUESTED THAT THE DATA REQUIREMENTS BE CHANGED. WHEN ADVISED THAT THE DATA REQUIREMENTS COULD NOT BE CHANGED WITHOUT READVERTISING, THE ISSUING ACTIVITY REQUESTED THAT A CONTRACT BE AWARDED FOR THE CRANES WITHOUT THE DATA.

THE PROCURING ACTIVITY EVALUATED THE BIDS SUBMITTED BY KOEHRING AND LITTLE GIANT AND DETERMINED THAT BOTH BIDS WERE QUALIFIED BY THE RESPECTIVE WARRANTIES CONTAINED IN THE BIDDERS' MANUALS. BOTH BIDS WERE THEREFORE REJECTED AS BEING NONRESPONSIVE AND SINCE THE OTHER BID PRICES WERE DETERMINED TO BE UNREASONABLE, THE SOLICITATION WAS READVERTISED AS IFB NO. DSA 700-70-B-2068, WHICH WAS OPENED ON JUNE 5, 1970. THE CANCELLATION OF THE DATA REQUIREMENTS, SEPARATE FROM THE QUALIFIED BIDS, WAS NOT IN ITSELF REGARDED BY THE PROCURING ACTIVITY AS A VALID BASIS FOR CANCELLING THE INVITATION, SINCE PARAGRAPH 8.113 OF THE SOLICITATION PROVIDED THAT AWARD COULD BE MADE WITH OR WITHOUT THE DATA.

YOU CONTEND CANCELLATION OF THE FIRST INVITATION WAS IMPROPER, SINCE THERE WAS NO COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. YOU STATE LITTLE GIANT SUBMITTED THE LOW RESPONSIVE BID ON THE FIRST INVITATION, IN THAT KOEHRING'S LOW BID WAS NONRESPONSIVE. YOU CONTEND THAT KOEHRING SUBMITTED TECHNICAL MANUALS WHICH SHOW THE LIFTING CAPACITY OF THE KOEHRING MODEL 220 IS LESS THAN REQUIRED BY THE INVITATION AND THAT THE PURPOSE OF SUBMITTING THE MANUALS ACCORDING TO AFPI 71-531- (19) WAS TO DETERMINE THE TECHNICAL ADEQUACY OF SUCH DATA FOR AIR FORCE USE, WITH THE ACTUAL FUNCTION OF THE MANUALS BEING TO DESCRIBE THE END ITEM TO BE DELIVERED. YOU CLAIM THE MANUALS WERE NOT REQUIRED OR INTENDED FOR THE PURPOSE OF FIXING OTHER CONTRACTUAL LIABILITIES BETWEEN THE PARTIES, AND THEREFORE LITTLE GIANT'S BID IS RESPONSIVE, SINCE MATERIAL SUCH AS COMMERCIAL WARRANTY INFORMATION DOES NOT QUALIFY THE BID, AS WOULD TECHNICAL SPECIFICATIONS WHICH COVER THE EQUIPMENT BEING PROCURED.

IN ADVANCING THIS CONTENTION THAT LITTLE GIANT'S BID WAS RESPONSIVE, YOU HAVE ALSO CONTENDED THAT SINCE THE GOVERNMENT COULD SELECT THE SPECIFICATION DATA ALTERNATIVE (PROPOSAL 3) WHICH THE BIDDERS WERE ENCOURAGED BY THE SOLICITATION TO OFFER TO COVER THE POSSIBILITY THAT THEIR COMMERCIAL MANUALS MIGHT BE UNACCEPTABLE, LITTLE GIANT'S SPECIFICATION DATA ALTERNATE, WHICH CONTAINED NO WARRANTY STATEMENT, WAS RESPONSIVE.

YOU FURTHER CONTEND, ALTHOUGH YOU DISAGREE WITH THE ADMINISTRATIVE AGENCY'S POSITION THAT LITTLE GIANT'S SPECIFICATION DATA ALTERNATIVE WAS NONRESPONSIVE SINCE IT SPECIFICALLY EXCLUDED "DETAILED COVERAGE OF MAJOR VENDOR RECOVERABLE ITEMS (I.E; ENGINES, TRANSMISSIONS, AXLE ASSEMBLIES, ETC."), THAT AWARD SHOULD NEVERTHELESS BE MADE TO LITTLE GIANT ON THE BASIS OF THE ISSUING ACTIVITY'S REQUEST THAT THE CONTRACT BE AWARDED WITHOUT THE DATA REQUIREMENTS. YOU HAVE CITED 44 COMP. GEN. 386 (1965); 40 COMP. GEN. 321 (1960); B-148081, MARCH 5, 1962; AND B 143271, OCTOBER 7, 1960, TO ILLUSTRATE THAT THIS OFFICE ON NUMEROUS OCCASIONS HAS HELD THAT IN MAKING AN AWARD ON A SINGLE ITEM WITHIN A GROUP OF ITEMS, THE RESPONSIVENESS AS TO THE UNAWARDED ITEMS IS IRRELEVANT.

WE AGREE WITH THE PROCURING ACTIVITY'S AND YOUR CONCLUSION THAT KOEHRING QUALIFIED ITS BID BY OFFERING CRANES OF LESS THAN THE 24,000 POUND LIFTING CAPACITY WITHOUT OUTRIGGERS AS REQUIRED BY THE SOLICITATION. WE ALSO AGREE THAT A QUALIFICATION IN THE COMMERCIAL MANUAL OF THIS NATURE, WHICH PLACES THE PROCURING ACTIVITY ON NOTICE THAT THE CRANES OFFERED WILL NOT MEET THE END ITEM SPECIFICATION REQUIREMENTS RENDERS THE ENTIRE BID NONRESPONSIVE.

WITH RESPECT TO YOUR CONTENTION THAT THE WARRANTY CLAUSE INCLUDED IN YOUR COMMERCIAL MANUAL SHOULD NOT BE CONSIDERED AS A QUALIFICATION OF YOUR BID, WE NOTE THAT AFPI 71-531-(19A AND C BOTH REFERENCED MIL SPECIFICATION NO. M-7298 WHICH COVERS TECHNICAL MANUALS FOR COMMERCIAL EQUIPMENT. THE CURRENT VERSION OF THAT SPECIFICATION, MIL-M-7298B, MAY 1, 1969, SETS OUT IN PART 3 THE REQUIREMENTS FOR ACCEPTABLE COMMERCIAL MANUALS, INCLUDING AN INTRODUCTION "CONTAINING DESCRIPTIVE INFORMATION AND DETAILS, AS FOLLOWS *** . K. WARRANTY INFORMATION."

IN THE LIGHT OF THIS REQUIREMENT WE CANNOT IGNORE THE WARRANTY CLAUSE CONTAINED IN THE MANUAL SUBMITTED BY YOU, AND SINCE THAT WARRANTY WAS CLEARLY AT VARIANCE WITH THE WARRANTY SPECIFIED BY THE SOLICITATION IT MUST BE CONSIDERED AS A QUALIFICATION OF YOUR BID ON THE EQUIPMENT TO WHICH YOUR MANUAL RELATED.

IN THE VIEW WE TAKE OF THE CASE IT IS NOT NECESSARY TO DECIDE WHETHER THE QUALIFICATION WOULD BE ELIMINATED BY AWARD OF THE EQUIPMENT ITEMS WITHOUT ANY OF THE DATA ITEMS, OR WITH THE ALTERNATE 3 SPECIFICATION DATA. AS TO THE LATTER ITEM, THE PROCURING AGENCY HAS DETERMINED THAT IT WAS NOT ACCEPTABLE BECAUSE OF LITTLE GIANT'S EXCEPTIONS TO THE FURNISHING OF DATA INFORMATION AS TO MAJOR VENDOR RECOVERABLE ITEMS (I.E; ENGINES, TRANSMISSIONS, AXLE ASSEMBLIES, ETC.), CONCERNING WHICH IT STATED: "VENDOR ITEMS REQUIRING DATA WILL BE NEGOTIATED AT A LATER TIME." THE BID THEREFORE EXCLUDED THE GOVERNMENT FROM RECEIVING ALL THE DATA REQUIRED ON THE END ITEM, WHICH INCLUDES VENDOR ITEMS INCORPORATED THEREIN, AT LITTLE GIANT'S STATED CONTRACT PRICE OF $20,658.00 FOR THE SPECIFICATION DATA ALTERNATIVE.

THE REFERENCE TO DD FORM 1423 IN THE IFB WAS ONLY TO INDICATE THAT THE SPECIFICATION DATA WAS TO BE IN ACCORDANCE WITH AFPI 71-531-(19C. THE INSTRUCTIONS ON THE REVERSE SIDE OF DD FORM 1423 SPECIFICALLY STATE THAT PRICE ESTIMATES ARE NOT CALLED FOR IN ADVERTISED PROCUREMENTS, AND THE BIDDING SCHEDULE OF THE IFB CLEARLY CALLED FOR QUOTATION OF FIXED PRICES FOR THE DATA ITEMS OFFERED.

YOUR FINAL ARGUMENT IS THAT AWARD TO LITTLE GIANT FOR THE CRANES ALONE WOULD BE PROPER SINCE THE ISSUING ACTIVITY REQUESTED THAT A CONTRACT BE AWARDED FOR THE CRANES WITHOUT THE DATA. THIS MIGHT BE A PERMISSIBLE CONCLUSION, EXCEPT FOR THE FACT THAT THE ADMINISTRATIVE FILE INDICATES THAT THE ISSUING ACTIVITY WAS NOT REQUESTING A WAIVER OF DATA REQUIREMENTS, BUT MADE THIS REQUEST IN ORDER TO HAVE A CONTRACT AWARDED AS QUICKLY AS POSSIBLE, WITH THE EXPECTATION THAT THE DATA REQUIREMENTS COULD BE ADDED BY NEGOTIATION DURING PROVISIONING CONFERENCES. THE ISSUING ACTIVITY INDICATES IN THE ADMINISTRATIVE REPORT THAT IT ALWAYS HAS HAD AND PRESENTLY DOES HAVE A FIRM REQUIREMENT FOR DATA AND THAT THE ORIGINAL SOLICITATION SHOULD HAVE REFERRED TO AFPI 13 INSTEAD OF AFPI 19, AS DOES THE NEW SOLICITATION.

SINCE THERE WAS TIME TO RESOLICIT, TO INCLUDE THE CORRECT ESSENTIAL DATA, WE FIND NO OBJECTION TO THE PROCURING ACTIVITY'S DECISION TO CANCEL THE SOLICITATION AND READVERTISE. THIS IS CERTAINLY THE CORRECT METHOD, AS OPPOSED TO AWARDING ON AN ADVERTISED BASIS AND THEN SEEKING TO NEGOTIATE FOR THE DATA REQUIRED BY THE ISSUING ACTIVITY, SINCE THERE APPEARS NO BASIS FOR NEGOTIATING FOR THE DATA AS AN EXCEPTION TO FORMAL ADVERTISING UNDER THE REQUIREMENTS OF 10 U.S.C. 2304(A).

FOR THE ABOVE REASONS, YOUR PROTEST MUST BE DENIED.