B-169421, MAY 14, 1970

B-169421: May 14, 1970

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AWARD MAY NOT BE QUESTIONED ON BASIS BID WAS NONRESPONSIVE TO TECHNICAL PROCUREMENT REQUIREMENTS SINCE BASED ON TECHNICAL EVALUATION IT CANNOT BE SAID BOTTOM RADIATOR GUARD IS NOT SPECIFIED RADIATOR GUARD. FUNCTION OF DETERMINING WHETHER EQUIPMENT OFFERED CONFORMS TO DETAILED TECHNICAL SPECIFICATION REQUIREMENT IS FOR EXERCISE BY GOVERNMENT CONTRACTING AND ADMINISTRATIVE OFFICIALS AND. WHEN DETERMINATION IS MADE. IT IS CONTROLLING. TO INTERNATIONAL HARVESTER COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 25 AND LETTERS OF MARCH 26 AND APRIL 22. EACH BIDDER WAS REQUIRED TO SUBMIT A QUESTIONNAIRE FOR EACH PIECE OF EQUIPMENT OFFERED. THE QUESTIONNAIRES WERE TO BE USED FOR TECHNICAL EVALUATION BY FOREST SERVICE EQUIPMENT ENGINEERS AS TO WHETHER THE OFFERED EQUIPMENT MET THE REQUIREMENTS OF INTERIM FEDERAL SPECIFICATION NO.

B-169421, MAY 14, 1970

CONTRACTS--SPECIFICATIONS--CONFORMABILITY OF EQUIPMENT, ETC; OFFERED- TECHNICAL DEFICIENCIES--SPECIFICATION REVIEW UNDER INVITATION FOR BIDS WITH TECHNICAL EVALUATION SPECIFICATION QUESTIONNAIRES FOR CRAWLER TRACTOR EQUIPMENT, AWARD MAY NOT BE QUESTIONED ON BASIS BID WAS NONRESPONSIVE TO TECHNICAL PROCUREMENT REQUIREMENTS SINCE BASED ON TECHNICAL EVALUATION IT CANNOT BE SAID BOTTOM RADIATOR GUARD IS NOT SPECIFIED RADIATOR GUARD, FUNCTION OF DETERMINING WHETHER EQUIPMENT OFFERED CONFORMS TO DETAILED TECHNICAL SPECIFICATION REQUIREMENT IS FOR EXERCISE BY GOVERNMENT CONTRACTING AND ADMINISTRATIVE OFFICIALS AND, WHEN DETERMINATION IS MADE, IT IS CONTROLLING, ABSENT CAPRICIOUS OR ARBITRARY ACTION. SEE COMP. GEN. DECS. CITED.

TO INTERNATIONAL HARVESTER COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 25 AND LETTERS OF MARCH 26 AND APRIL 22, 1970, PROTESTING AGAINST THE AWARD OF ITEM 27 TO THE CATERPILLAR TRACTOR CO. (CATERPILLAR) UNDER INVITATION FOR BIDS (IFB) NO. FS-5-70, ISSUED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, ARLINGTON, VIRGINIA.

THE SUBJECT INVITATION, ISSUED ON JANUARY 7, 1970, SOLICITED BIDS FOR FURNISHING CRAWLER TRACTORS AND CRAWLER LOADERS UNDER 30 LISTED ITEM HEADINGS. EACH BIDDER WAS REQUIRED TO SUBMIT A QUESTIONNAIRE FOR EACH PIECE OF EQUIPMENT OFFERED. THE QUESTIONNAIRES WERE TO BE USED FOR TECHNICAL EVALUATION BY FOREST SERVICE EQUIPMENT ENGINEERS AS TO WHETHER THE OFFERED EQUIPMENT MET THE REQUIREMENTS OF INTERIM FEDERAL SPECIFICATION NO. KKK-T-00631C, DATED OCTOBER 31, 1968, THE FOREST SERVICE SUPPLEMENTAL SPECIFICATIONS AND THE REQUIREMENTS OF THE INDIVIDUAL BID ITEMS. AWARD WAS BASED ON EITHER A LUMP-SUM OFFER FOR A SERIES OF THE BID ITEMS OR ON AN INDIVIDUAL BID ITEM BASIS, WHICHEVER RESULTED IN THE LOWEST AGGREGATE COST TO THE GOVERNMENT. BID OPENING WAS ON FEBRUARY 20, 1970, AND CATERPILLAR OFFERED TWO LUMP-SUM BIDS. CATERPILLAR'S LUMP-SUM BID NO. 1 WAS $212,960 FOR ITEMS 18 THROUGH 20, 25, 26, 27, 29 AND 30 AND WAS THE LOWEST AGGREGATE RESPONSIVE BID. CONTRACT NO. 13-443 WAS AWARDED TO CATERPILLAR ON MARCH 20, 1969, FOR THE ITEMS IN LUMP-SUM BID NO. 1, PLUS INDIVIDUAL ITEMS NOS. 21, 22, 23 AND 24 ON WHICH CATERPILLAR WAS THE LOW RESPONSIVE BIDDER. THE CONTRACT PRICE WAS $329,542.

YOUR PROTEST TO OUR OFFICE IS BASED ON YOUR CONTENTION THAT THE UNIT OFFERED UNDER ITEM 27 BY CATERPILLAR DID NOT MEET THE REQUIREMENTS OF INVITATION SPECIFICATIONS. THE RECORD SUBMITTED HERE SHOWS THAT ITEM 27 CALLED FOR A CRAWLER TRACTOR, SIZE T-9, IN ACCORDANCE WITH INTERIM FEDERAL SPECIFICATION KKK-T-00631C, FOREST SERVICE SUPPLEMENTAL SPECIFICATIONS INCLUDED IN THE INVITATION, PLUS ATTACHMENTS REQUIRED BY THE BID ITEM.

IT IS REPORTED THAT THE TRACTOR UNIT OFFERED UNDER ITEM 27 MUST HAVE A TEST WEIGHT OF AT LEAST 36,666 POUNDS TO COMPLY WITH A MINIMUM 33,000 POUND DRAWBAR REQUIREMENT OF THE SPECIFICATIONS. CATERPILLAR'S BID FOR THIS ITEM WAS ITS MODEL D-7F WHICH HAD A VERIFIED TEST WEIGHT OF 36,689 POUNDS INCLUDING A "BOTTOM RADIATOR GUARD" WHICH WEIGHS 1,400 POUNDS.

THE BASIC SPECIFICATION CONTAINED IN PARAGRAPH 3.14.2 DEFINES THE TRACTOR TEST WEIGHT AS:

"THE TRACTOR TEST WEIGHT SHALL REPRESENT TRACTOR WITH FUEL, WATER, OPERATOR, AND MANUFACTURER'S STANDARD ADVERTISED TRACK SHOES. IT SHALL INCLUDE NOT MORE THAN THE FOLLOWING MANUFACTURER'S STANDARD ACCESSORY ATTACHMENTS: RADIATOR GUARD, TRACK AND SPROCKET GUARDS, CRANKCASE GUARD, FRONT PULL HOOK, AND STARTING AND LIGHTING SYSTEM." IN YOUR PROTEST YOU CONTEND THAT THE WEIGHT REQUIRED TO QUALIFY UNDER THE T-9 SIZE WAS NOT ACHIEVED IN THAT THE 1,400-POUND "BOTTOM RADIATOR GUARD" UTILIZED ON THE CATERPILLAR MODEL D-7F SHOULD NOT HAVE BEEN CONSIDERED AS A PORTION OF THE TEST WEIGHT. SECONDLY, IN YOUR LETTER OF APRIL 22, 1970, YOU POINT OUT THAT UNDER A GENERAL SERVICES ADMINISTRATION PROCUREMENT CATERPILLAR SUBMITTED A QUESTIONNAIRE WITH ITS BID INDICATING THE WEIGHT OF ITS MODEL D-7F TO BE 33,720 POUNDS. BASED ON THE FOREGOING, YOU CONTEND THAT CATERPILLAR DID NOT MEET SPECIFICATION REQUIREMENTS FOR ITEM 27 IN THE INSTANT PROCUREMENT.

IN RESPONSE TO YOUR CONTENTION REGARDING THE TECHNICAL REQUIREMENTS OF THE SPECIFICATION FOR ITEM 27, THE FOREST SERVICE REPORTS AS FOLLOWS:

"IN MAKING OUR TECHNICAL REVIEW OF THE D-7F TRACTOR OFFERED BY CATERPILLAR, WE CONCLUDED THAT THE WEIGHT OF THE 'BOTTOM RADIATOR GUARD' WAS JUSTIFIABLY INCLUDED IN THE TEST WEIGHT IN THAT:

"1. THE BASIC SPECIFICATION DOES NOT SPECIFICALLY DEFINE THE RADIATOR GUARD IN THE PARAGRAPH OUTLINING THE TEST WEIGHT OF THE TRACTOR. THE ONLY OTHER REFERENCE TO A RADIATOR GUARD IS FOUND IN KKK T-00631C, PARAGRAPH 3.19.1, OPTIONAL ACCESSORIES, ACCESSORY (K), RADIATOR GUARDS, WHICH READS:

"'THE RADIATOR GUARDS SHALL PROVIDE PROTECTION TO THE RADIATOR AND THE FRONT POWER TAKEOFF WHEN THE TRACTOR IS SO EQUIPPED AND NOT INTERFERE WITH THE OPERATION OF THE FRONT POWER TAKEOFF.'

"RADIATOR GUARDS WERE A REQUIRED ACCESSORY OF THIS SOLICITATION AND ARE ALSO ALLOWABLE UNDER TRACTOR TEST WEIGHT (3.14.2).

"2. THERE IS NO INDUSTRY-WIDE STANDARD PERTAINING TO RADIATOR GUARDS.

"3. THE SOCIETY OF AUTOMOTIVE ENGINEERS' (SAE) STANDARD SAE J727A, 'NOMENCLATURE-TRACTOR (TRACK TYPE)' REFERS TO GUARDS IN THAT 'GUARDS ARE TO BE NAMED FOR PART OR COMPONENT WHICH IS PROTECTED.'

"4. THE 1,400-POUND 'BOTTOM RADIATOR GUARD' TO BE SUPPLIED BY CATERPILLAR TRACTOR COMPANY DOES IN FACT PROTECT THE RADIATOR. IT IS ALSO OFFERED AS A STANDARD ACCESSORY TO ANY BUYER. "THE 'BOTTOM RADIATOR GUARD' WAS DESIGNED BY CATERPILLAR TO PROTECT THE BOTTOM OF THE RADIATOR WHEN THE TRACTOR IS TO BE USED IN AREAS WHERE IT IS SUSCEPTIBLE TO GETTING HUNG UP ON ROCKS, STUMPS, ETC. PARAGRAPH 3.4.2 USE CONDITIONS OF KKK-T-00631C STATES IN PART THAT:

"'DESIGN AND CONSTRUCTION SHALL BE SUCH THAT THE TRACTORS WILL WITHSTAND THE EXTREMELY HARD USAGE ENCOUNTERED IN SERVICE, SUCH AS OPERATION OVER ROUGH TERRAIN, . . . .'"THE CATERPILLAR PRICE LIST DOES NOTE THAT THE 'RADIATOR BOTTOM GUARD' IS NOT REQUIRED WITH FRONT MOUNTED EQUIPMENT. HOWEVER, THIS DOES NOT MEAN THAT IT CANNOT OR SHOULD NOT BE USED WITH FRONT MOUNTED EQUIPMENT. ALTHOUGH A FRONT MOUNTED DOZER IS REQUIRED BY THE SOLICITATION FOR THIS ITEM, THE RADIATOR BOTTOM WOULD NOT BE PROTECTED BY THE DOZER ALONE WHEN THE DOZER IS HELD IN A HIGH POSITION SUCH AS IN BRUSH PILING OPERATIONS. "IT IS OUR CONCLUSION, FROM THE TECHNICAL EVALUATION MADE BY OUR EQUIPMENT ENGINEERS IN THE WASHINGTON OFFICE, DIVISION OF ENGINEERING, THAT THE UNIT OFFERED BY CATERPILLAR TRACTOR COMPANY FOR ITEM 27 OF FS 5-70 DOES MEET THE REQUIREMENTS OF THE SOLICITATION AND THAT THE AWARD TO CATERPILLAR WAS PROPER."

BASED ON THE FOREGOING TECHNICAL EVALUATION, WE CANNOT SAY THAT A BOTTOM RADIATOR GUARD IS NOT A RADIATOR GUARD. BROADLY SPEAKING, THE WORD "GUARD," AS A NOUN, IS DEFINED AS "ANY ONE OF VARIOUS PROTECTING OR DEFENSIVE DEVICES FOR WEARING OR FOR ATTACHING TO AN OBJECT AS A MACHINE OR IMPLEMENT." 18A WORDS AND PHRASES 698; JANNEY V. FULLROE, INC; 144 P. 2D 145, 148 (1943). SINCE NO PRECISE DEFINITION HAS BEEN SHOWN TO APPLY FOR A "RADIATOR GUARD," WE FIND NO BASIS TO DISAGREE WITH THE USING AGENCY'S CONCLUSION. WITH RESPECT TO THE LIGHTER TEST WEIGHT OF A D-7F IN A GENERAL SERVICES ADMINISTRATION PROCUREMENT CITED IN YOUR LETTER OF APRIL 22, WE CAN ONLY OBSERVE THAT SUCH PROCUREMENT REFLECTED DIFFERENT NEEDS AND THE QUESTIONNAIRE THERE CALLED FOR THE WEIGHT OF A STANDARD UNIT LESS ALLIED EQUIPMENT.

WE HAVE CONSISTENTLY HELD THAT THE FUNCTION OF DETERMINING WHETHER EQUIPMENT OFFERED BY A BIDDER CONFORMS TO THE DETAILED TECHNICAL REQUIREMENTS OF THE SPECIFICATIONS IS ONE FOR EXERCISE BY THE CONTRACTING AND ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT AND, WHEN A DETERMINATION IS MADE IN THE EXERCISE OF SUCH FUNCTION, IT IS CONTROLLING IN THE ABSENCE OF CAPRICIOUS OR ARBITRARY ACTION. SEE 36 COMP. GEN. 251 (1956); 40 ID. 35 (1960); 41 ID. 124, 127 (1961), AND CASES CITED. IN VIEW OF THE ADMINISTRATIVE POSITION WITH RESPECT TO THE RESPONSIVENESS OF CATERPILLAR'S BID UNDER ITEM 27, WE ARE OF THE OPINION THAT THE AWARD MAY NOT BE QUESTIONED ON THE BASIS THAT THE BID WAS NONRESPONSIVE TO THE TECHNICAL REQUIREMENTS OF THE PROCUREMENT.