B-170825(1), MAR 12, 1971

B-170825(1): Mar 12, 1971

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THE MAJOR THRUST OF A PREVIOUS DECISION UPHOLDING A PROTEST AGAINST AN AWARD TO GST BECAUSE GST DID NOT PROVIDE IDENTIFICATION OF THE STANDARD CHASSIS MODEL BEING OFFERED AS WELL AS EXISTENCE OF THAT STANDARD CHASSIS AT THE TIME OF THE EVALUATION IS NOT BLUNTED BY THE CONTENTION THAT REFERENCE TO THE SK-2640 TRUCK CHASSIS PREVIOUSLY HELD DEFICIENT IS MERELY A MODIFICATION OF THE A-6000 SERIES OF TRUCK CHASSIS WHICH WAS REFERENCED IN GST'S PROPOSAL. IS THE FACT THAT THERE IS NO WAY OF ASCERTAINING FROM THE PROPOSAL WHAT PARTICULAR MODEL OF THE A-6000 SERIES CHASSIS WAS BEING OFFERED AS THE STANDARD FOR THE PROCUREMENT. THIS IDENTIFICATION EVEN IF ACCEPTED AS BEING MADE IN THE ORIGINAL OFFER IS STILL DEFICIENT FOR WANT OF SPECIFICITY.

B-170825(1), MAR 12, 1971

BID PROTEST - BID RESPONSIVENESS - MATERIAL DEVIATIONS DENYING PROTEST OF GENERAL STEEL TANK CO. (GST), LOW BIDDER, AGAINST THE AWARD OF A CONTRACT ISSUED UNDER TWO-STEP FORMAL ADVERTISING PROCEDURES FOR TANK TRUCKS ISSUED BY THE WARNER ROBINS AIR MATERIAL AREA TO ANY OTHER BIDDER. THE MAJOR THRUST OF A PREVIOUS DECISION UPHOLDING A PROTEST AGAINST AN AWARD TO GST BECAUSE GST DID NOT PROVIDE IDENTIFICATION OF THE STANDARD CHASSIS MODEL BEING OFFERED AS WELL AS EXISTENCE OF THAT STANDARD CHASSIS AT THE TIME OF THE EVALUATION IS NOT BLUNTED BY THE CONTENTION THAT REFERENCE TO THE SK-2640 TRUCK CHASSIS PREVIOUSLY HELD DEFICIENT IS MERELY A MODIFICATION OF THE A-6000 SERIES OF TRUCK CHASSIS WHICH WAS REFERENCED IN GST'S PROPOSAL. AMONG OTHER FAILINGS OF THIS CONTENTION, IS THE FACT THAT THERE IS NO WAY OF ASCERTAINING FROM THE PROPOSAL WHAT PARTICULAR MODEL OF THE A-6000 SERIES CHASSIS WAS BEING OFFERED AS THE STANDARD FOR THE PROCUREMENT. THIS IDENTIFICATION EVEN IF ACCEPTED AS BEING MADE IN THE ORIGINAL OFFER IS STILL DEFICIENT FOR WANT OF SPECIFICITY.

TO MCCLURE & TROTTER:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 24, 1970, AND LETTER OF JANUARY 21, 1971, PROTESTING, ON BEHALF OF THE GENERAL STEEL TANK CO. (GST), AGAINST THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN GST UNDER INVITATION FOR BIDS (IFB) NO. F09603-70-B-1697, WHICH IS THE SECOND STEP OF A TWO-STEP PROCUREMENT. IN ADDITION, YOUR JANUARY 21 LETTER REQUESTS RECONSIDERATION OF DECISION B-170825 OF DECEMBER 24, 1970, 50 COMP. GEN. , REGARDING THE GST FIRST-STEP TECHNICAL PROPOSAL.

IN THAT DECISION, WE HELD THAT THE SPECIFICATIONS INVOLVED IMPLICITLY REQUIRED IDENTIFICATION OF THE STANDARD CHASSIS MODEL BEING OFFERED AS WELL AS THE EXISTENCE OF THAT STANDARD CHASSIS AT THE TIME OF EVALUATION, AND THAT GST'S ALTERNATE PROPOSAL OF A SICARD MODEL SK-2640 CHASSIS FAILED TO MEET THESE REQUIREMENTS. IT WAS OUR OPINION THAT GST'S PROPOSAL WAS DEFICIENT SINCE ITS OFFER OF A SICARD SK-2640 CHASSIS DID NOT IDENTIFY A STANDARD CHASSIS AND BECAUSE THE STANDARD CHASSIS WHICH WE BELIEVED WOULD BE MODIFIED FOR THE PROCUREMENT (AND AS MODIFIED BEARS THE DESIGNATION SK- 2640), THE KENWORTH MOTOR TRUCK COMPANY MODEL PD-223, WAS NEVER MENTIONED IN GST'S FIRST-STEP PROPOSAL AND WAS NOT IN EXISTENCE AT THE TIME OF EVALUATION. WE CONCLUDED THAT, NOTWITHSTANDING GST'S PROPOSAL OF THE SK- 2640 HAD BEEN TECHNICALLY EVALUATED AS ACCEPTABLE, IT FAILED TO CONFORM TO THE SPECIFICATIONS, AND THAT THE BID SUBMITTED BY GST IN THE SECOND STEP WHICH WAS BASED ON THAT PROPOSAL SHOULD BE REJECTED AS NONRESPONSIVE TO THE ADVERTISED REQUIREMENTS.

IN THE REQUEST FOR RECONSIDERATION, YOU SUGGEST THAT OUR CONCLUSION THAT THE PD-223 WAS THE STANDARD CHASSIS MODEL WHICH WAS TO BE MODIFIED FOR THE PROCUREMENT WAS ERRONEOUS BECAUSE IT WAS BASED ON INACCURATE INFORMATION FURNISHED BY THE SICARD VICE PRESIDENT, MARKETING, TO OUR OFFICE. YOU NOW ADVISE THAT UNTIL INFORMED BY OUR OFFICE OF THE PD 223, GST HAD NEVER HEARD OF THAT CHASSIS AND WAS OF THE OPINION THAT THE SICARD CHASSIS WHICH IT OFFERED WAS A VERSION OF SICARD'S STANDARD A-6000 SERIES CHASSIS. THIS CONNECTION, YOU STATE THAT THE PD SERIES OF TRUCK CHASSIS IS A MODIFICATION OF THE A-6000 SERIES OF CHASSIS AND THAT SICARD DREW UPON THE MODIFICATIONS ALREADY IN PROGRESS AND NEAR COMPLETION FOR THE PD SERIES TO DEVISE THE SPECIFICATIONS FOR THE SK-2640. HENCE, THE CLAIM IS MADE NOW THAT THE SK-2640 TRUCK CHASSIS IS MERELY A MODIFICATION OF THE A-6000 SERIES OF TRUCK CHASSIS WHICH WAS REFERENCED IN GST'S PROPOSAL.

WE ARE NOT PERSUADED THAT THE INFORMATION PROVIDED TO OUR OFFICE BY THE SICARD VICE PRESIDENT, MARKETING, WAS INACCURATE ESPECIALLY SINCE HIS ASSERTION THAT THE SK-2640 IS THE MODEL DESIGNATION FOR A MODIFIED VERSION OF THE PD-223 IS CONFIRMED BY THE SICARD DISTRIBUTOR SALES MANAGER IN HIS LETTER OF NOVEMBER 10, 1970 TO OUR OFFICE, WHEREIN HE ENCLOSED THE SPECIFICATION SHEETS ON THE PD-223. WE NOTE THAT NEITHER IN THE CONVERSATION WITH THE VICE PRESIDENT, MARKETING, NOR IN THE ABOVE LETTER WAS SICARD'S A-6000 SERIES OF TRUCK CHASSIS MENTIONED. FURTHER, WHILE IT MAY BE THAT GST WAS NOT AWARE OF THE PD-223 UNTIL IT WAS SO ADVISED BY OUR OFFICE, ONCE GST BECAME AWARE OF THAT CHASSIS, IT THEN ADVANCED THE POSITION THAT THE PD-223 WAS THE STANDARD CHASSIS FROM WHICH THE SK-2640 EVOLVED. YOUR LETTER TO OUR OFFICE DATED NOVEMBER 24, 1970, IS REPLETE WITH NUMEROUS STATEMENTS ADVANCING THAT POSITION. THE POSITION YOU ADVANCE NOW AS TO WHAT IS THE STANDARD CHASSIS OFFERED IS IN SHARP CONTRAST TO YOUR PRIOR STATEMENTS. MOREOVER, WE ARE UNABLE TO AGREE WITH YOUR CONTENTION THAT THE A-6000 SERIES CHASSIS IS THE STANDARD WHICH IS TO BE MODIFIED FOR THIS PROCUREMENT IN VIEW OF THE PREVIOUS INFORMATION FROM SICARD AND THE CONTRACTING OFFICER THAT THE PD-223 WAS THE STANDARD.

YOU CONTEND THAT THE SICARD A-6000 SERIES TRUCK BROCHURE, INCLUDED IN GST'S FIRST-STEP PROPOSAL, IDENTIFIES SICARD'S STANDARD COMMERCIAL CHASSIS FOR THIS PROCUREMENT. UNDOUBTEDLY, SICARD'S A-6000 SERIES CHASSIS IS A STANDARD CHASSIS LINE OF THAT COMPANY. HOWEVER, THE FURNISHING OF THE A- 6000 BROCHURE WAS NO INDICATION THAT SUCH STANDARD CHASSIS LINE WAS TO BE MODIFIED FOR THIS PROCUREMENT. IN THE FIRST PLACE THE SICARD BROCHURE DID NOT INDICATE THE PARTICULAR STANDARD CHASSIS MODEL OF THE A-6000 SERIES WHICH WAS TO BE MODIFIED. IN ITS LETTER OF SEPTEMBER 15, 1970, TO GST, THE THEN SICARD VICE PRESIDENT, MARKETING, WITH RESPECT TO THE A-6000 BROCHURE, SAID:

" *** WE ARE ATTACHING HEREWITH A BROCHURE ON OUR A SERIES STANDARD TRUCK PRODUCTION TO GIVE YOU AN IDEA OF SOME OF OUR PRODUCTS." IT WOULD APPEAR THAT THE PURPOSE FOR PROVIDING GST WITH THE BROCHURE WAS TO GIVE IT AN INDICATION OF SICARD'S CAPABILITIES USING ITS A-6000 SERIES TRUCKS AS AN EXAMPLE. IF ANYTHING MORE WAS INTENDED, IT IS NOT EVIDENT. IN THE SECOND PLACE, EVEN ASSUMING THAT THE BROCHURE DID INDICATE THAT THE A-6000 SERIES CHASSIS WAS THE STANDARD FOR THE INSTANT PROCUREMENT, THE REQUIREMENTS OF THE SPECIFICATIONS WERE NOT MET. ALTHOUGH THERE ARE SPECIFICATION SHEETS ON THE VARIOUS MODELS WHICH COMPRISE THE A-6000 SERIES CHASSIS LINE, INSOFAR AS WE CAN TELL, NONE WERE INCLUDED IN THE GST PROPOSAL. WITHOUT THE SUBMISSION OF A SPECIFICATION SHEET, THERE IS NO WAY OF ASCERTAINING FROM THE PROPOSAL WHAT PARTICULAR MODEL OF THE A-6000 SERIES CHASSIS IS BEING OFFERED AS THE STANDARD FOR THE PROCUREMENT.

IN OUR PRIOR DECISION, WE HELD THAT PARAGRAPH 3.7.1 OF MIL-T-38245B, QUOTED THEREIN, REQUIRES THE IDENTIFICATION OF THE MANUFACTURER'S STANDARD CHASSIS BEING FURNISHED. PARAGRAPH 3.7.1.1 OF MIL-T-38245B SPEAKS OF "THE CHASSIS MODEL FURNISHED" AND HAS OBVIOUS REFERENCE TO THE CHASSIS MENTIONED IN 3.7.1 AS "THE MANUFACTURER'S STANDARD." THEREFORE, SATISFACTION OF THE IDENTIFICATION REQUIREMENT OF THE SPECIFICATION NECESSITATES THE DESIGNATION OF A PARTICULAR CHASSIS MODEL AND NOT MERELY THE DESIGNATION OF A GENERAL CHASSIS LINE WITH NOTHING MORE. OTHERWISE, IN VIEW OF THE MANY DIFFERENT ENGINE-CHASSIS MODEL MATINGS POSSIBLE WITHIN THE A-6000 CHASSIS SERIES, THERE WOULD BE NO WAY OF ASCERTAINING COMPLIANCE WITH THE REQUIREMENT OF PARAGRAPH 3.7.1.1 THAT THE ENGINE FURNISHED BE "AT LEAST THE MANUFACTURER'S ADVERTISED STANDARD FOR THE CHASSIS MODEL FURNISHED." SINCE THE A-6000 BROCHURE SUBMITTED WITH THE GST TECHNICAL PROPOSAL IDENTIFIED NO PARTICULAR A-6000 CHASSIS MODEL - MERELY THE GENERAL CHASSIS LINE - THE IDENTIFICATION REQUIREMENT OF THE SPECIFICATION REMAINS UNSATISFIED AND THE GST PROPOSAL REMAINS DEFICIENT. WE NOTE PARENTHETICALLY THAT IN GST'S ALTERNATE PROPOSAL OF AN INTERNATIONAL HARVESTER COMPANY (IHC) CHASSIS, NOT ONLY IS THE CHASSIS MODEL SPECIFICALLY IDENTIFIED BUT THE PROPOSAL ALSO CONTAINS AN IHC SPECIFICATION SHEET WHICH STATES THE STANDARD ENGINE FOR THAT CHASSIS.

GST REFERENCES PARAGRAPH 3.1 OF MIL-T-45341J, WHICH IS SET OUT IN ITS ENTIRETY IN OUR ORIGINAL DECISION AND WHICH, IN PERTINENT PART, REQUIRES THAT ALL CHASSIS ITEMS SHALL BE REPRESENTED IN THE CHASSIS MANUFACTURER'S TECHNICAL DATA, LIMITED TO SPECIFICATIONS AND TECHNICAL MATERIAL IDENTICAL TO THAT FURNISHED AUTHORIZED COMPANY REPRESENTATIVES FOR THE INFORMATION OF PROSPECTIVE PURCHASERS. GST THEN SUBMITS THAT THERE CAN BE NO TECHNICAL DATA, AS ABOVE DEFINED, ON A MODIFIED CHASSIS. WE ARE INCLINED TO AGREE, BUT IN DOING SO, WE BELIEVE THAT OUR POSITION, AS STATED IN THE DECEMBER 24 DECISION, WITH RESPECT TO THIS PROVISION REQUIRES SOME CLARIFICATION.

FIRST, MIL-T-45341J HAS RELEVANCE TO THIS PROCUREMENT ONLY TO THE EXTENT SPECIFIED IN MIL-T-38245BUSAF). SEE PARAGRAPH 2.1 OF THE LATTER MENTIONED SPECIFICATION. SINCE THAT SPECIFICATION IS MENTIONED ONLY UNDER THE CHASSIS SPECIFICATION 3.7.1 OF MIL-T-38245B, WE BELIEVE THAT ITS REQUIREMENTS ARE CONFINED TO THAT ITEM OF EQUIPMENT ONLY. SECOND, SINCE MIL-T-45341J STATES THAT VEHICLES PROCURED PURSUANT TO IT ARE COMMERCIAL VEHICLES, WE DO NOT BELIEVE THAT A PROTOTYPE WOULD BE OF THIS TYPE. SEE PARAGRAPH 3-807.1(B)(2)(II) OF THE ARMED SERVICES PROCUREMENT REGULATION FOR A DEFINITION OF COMMERCIAL ITEM. THIRD, THE TECHNICAL DATA REFERRED TO IN PARAGRAPH 3.1 IS THE TYPE SUBMITTED BY GST WITH RESPECT TO ITS ALTERNATE PROPOSAL OFFERING AN IHC CHASSIS, THAT IS, THE CHASSIS MANUFACTURER'S CATALOG AND SPECIFICATION SHEETS DESCRIBING THE CHASSIS MODEL OFFERED. FOR THE REASON EXPRESSED IN OUR ORIGINAL DECISION AS WELL AS FOR THE FACT THAT THE FIRST-STEP LETTER REQUEST IN PARAGRAPH 3(F)4 REQUIRES THE SUBMISSION OF THE CHASSIS MANUFACTURER'S CATALOG SHEETS, WE REMAIN OF THE VIEW THAT SUCH DATA HAD TO BE SUPPLIED PRIOR TO THE ISSUANCE OF THE SECOND-STEP IFB. HOWEVER, IF SPARE PARTS LISTS ARE NOT INCLUDED WITHIN THE TERM TECHNICAL DATA AS USED IN PARAGRAPH 3.1 OR OTHERWISE REQUIRED BY THE SPECIFICATIONS TO BE SUBMITTED WITH THE FIRST-STEP PROPOSAL, WE PERCEIVE NO REASON WHY THEY CANNOT BE SUBMITTED AT ANYTIME PRIOR TO DELIVERY OF THE CHASSIS AS YOU SUGGEST. FINALLY, SINCE GST AND OUR OFFICE ARE IN APPARENT AGREEMENT THAT THERE CAN BE NO PARAGRAPH 3.1 TYPE DATA, I.E., CATALOG SHEETS ON THE MODIFIED CHASSIS, WE APPEAR TO BE ALSO IN AGREEMENT THAT PARAGRAPH 3.1 HAS REFERENCE ONLY TO THE STANDARD CHASSIS BEING OFFERED. THIS TOO IS IHC'S APPARENT UNDERSTANDING SINCE IN ITS PROPOSAL TO GST, AND WITH RESPECT TO PARAGRAPH 3.1 OF MIL-T-45341J, IT STATES THAT THE STANDARD VEHICLE BEING OFFERED IS ITS MODEL DCOF-195 6X4 MODIFIED IN ACCORDANCE WITH MIL-T-38245B. AS PREVIOUSLY NOTED, IHC PROVIDED AND GST SUBMITTED TO THE AIR FORCE IHC'S CATALOG SHEETS ON THIS CHASSIS.

FOR THE REASONS ABOVE STATED, OUR PRIOR DECISION IN THIS MATTER IS SUSTAINED.

THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR DECISION OF TODAY TO THE SECRETARY OF THE AIR FORCE REGARDING THIS PROCUREMENT.