B-173555, MAR 7, 1972

B-173555: Mar 7, 1972

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AN EXCEPTION TO THE BUY AMERICAN ACT (41 U.S.C. 10A-D) CLAUSE OF THE SUBJECT IFB WAS PROPERLY MADE BY THE ADDITION OF A PRICE DIFFERENTIAL TO THE FLEXTRAC BID AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1 6.104- 4. IS SUFFICIENT TO SERVE NOTICE ON THOSE WHO MAY BE AFFECTED BY SUCH REGULATIONS. SPECIFIC NOTICE OF THEIR EXISTENCE IS NOT REQUIRED OF THE SOLICITATION. IT IS NOT REQUIRED THAT THE VEHICLES OFFERED BY A MODEL WHICH ALREADY CONFORMS TO THE SPECIFICATIONS AND THE FAA HAS NO FACTUAL INFORMATION TO INDICATE THAT THE FLEXTRAC ITEMS FAIL TO MEET THE PROVISIONS OF THAT CLAUSE. IT IS THE VIEW OF THE COMP. THAT FLEXTRAC'S NONCOMPLIANCE WITH THE SPECIFICATIONS CONCERNING PASSENGER CAPACITY OF THE VEHICLE CAB WAS A MATERIAL DEVIATION WHICH RENDERS THE BID NONRESPONSIVE AND.

B-173555, MAR 7, 1972

BID PROTEST - NONRESPONSIVENESS - BUY AMERICAN ACT - NEW MATERIALS CLAUSE - INTERESTS OF GOVERNMENT DECISION DENYING PROTEST OF SNOW VEHICLES, INC., AGAINST AWARD OF A CONTRACT TO FLEXTRAC NODWELL (FLEXTRAC), CALGARY, ALBERTA, CANADA, UNDER AN IFB ISSUED BY THE FEDERAL AVIATION ADMINISTRATION (FAA) PROCUREMENT SECTION, LOS ANGELES, CALIF., FOR A PROCUREMENT OF OVER SNOW VEHICLES. AN EXCEPTION TO THE BUY AMERICAN ACT (41 U.S.C. 10A-D) CLAUSE OF THE SUBJECT IFB WAS PROPERLY MADE BY THE ADDITION OF A PRICE DIFFERENTIAL TO THE FLEXTRAC BID AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1 6.104- 4, FPR, WHICH ALLOW SUCH EXCEPTION UPON AN ADMINISTRATIVE DETERMINATION THAT THE COST OF A DOMESTIC SOURCE END PRODUCT WOULD BE UNREASONABLE OR THAT ITS ACQUISITION WOULD BE INCONSISTENT WITH THE PUBLIC INTEREST. FURTHER, THE PUBLICATION OF THE FPR IN THE FEDERAL REGISTER, PURSUANT TO 44 U.S.C. 1507, IS SUFFICIENT TO SERVE NOTICE ON THOSE WHO MAY BE AFFECTED BY SUCH REGULATIONS, AND SPECIFIC NOTICE OF THEIR EXISTENCE IS NOT REQUIRED OF THE SOLICITATION. WITH REGARD TO THE NEW MATERIALS CLAUSE, IT IS NOT REQUIRED THAT THE VEHICLES OFFERED BY A MODEL WHICH ALREADY CONFORMS TO THE SPECIFICATIONS AND THE FAA HAS NO FACTUAL INFORMATION TO INDICATE THAT THE FLEXTRAC ITEMS FAIL TO MEET THE PROVISIONS OF THAT CLAUSE. WHILE NONE OF THE ISSUES RAISED BY PROTESTANT WOULD NECESSITATE REJECTION OF THE SUCCESSFUL BID AS NONRESPONSIVE, IT IS THE VIEW OF THE COMP. GEN. THAT FLEXTRAC'S NONCOMPLIANCE WITH THE SPECIFICATIONS CONCERNING PASSENGER CAPACITY OF THE VEHICLE CAB WAS A MATERIAL DEVIATION WHICH RENDERS THE BID NONRESPONSIVE AND, THEREFORE, INELIGIBLE FOR AWARD. HOWEVER, IN VIEW OF THE FACT THAT THE SNOW VEHICLES WERE URGENTLY NEEDED AND SINCE THEY ARE PRESENTLY BEING MODIFIED PURSUANT TO THE CONTRACTING OFFICER'S DIRECTIONS AND AT CONSIDERABLE EXPENSE TO THE CONTRACTOR, TERMINATION AT THIS TIME WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT. ACCORDINGLY, THE PROTEST IS DENIED. IT SHOULD BE NOTED THAT FAA ACKNOWLEDGES THAT THE PROCEDURES EMPLOYED IN THE PROCUREMENT WERE DEFECTIVE AND STATES THAT IT IS TAKING IMMEDIATE AND POSITIVE CORRECTIVE ACTION TO PREVENT RECURRENCE OF SUCH SITUATIONS.

TO SNOW VEHICLES, INC.:

WE REFER TO YOUR LETTER OF JULY 8, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD BY THE FEDERAL AVIATION ADMINISTRATION (FAA), DEPARTMENT OF TRANSPORTATION, OF CONTRACT DOT FA71WE-1513 TO FLEXTRAC NODWELL (FLEXTRAC), CALGARY, ALBERTA, CANADA, FOR THE FURNISHING OF OVER- SNOW VEHICLES. THE PROCUREMENT SOLICITATION WAS INVITATION FOR BIDS (IFB) WE00-1-0531, DATED MAY 28, 1971, ISSUED BY THE FAA PROCUREMENT SECTION, LOS ANGELES, CALIFORNIA.

YOU MAINTAIN THAT SINCE THE IFB DID NOT ADVISE BIDDERS THAT CONSIDERATION WOULD BE GIVEN TO BIDS OFFERING VEHICLES OF FOREIGN MANUFACTURE BY APPLICATION OF A PRICE DIFFERENTIAL FOR COMPARISON WITH BIDS OFFERING VEHICLES OF DOMESTIC MANUFACTURE, THE FLEXTRAC BID ON VEHICLES MANUFACTURED IN CANADA WAS NOT ENTITLED TO CONSIDERATION FOR AWARD. YOU ALSO MAINTAIN THAT THE FLEXTRAC BID WAS NOT RESPONSIVE TO CERTAIN OF THE IFB REQUIREMENTS, THAT FLEXTRAC HAS NOT MADE DELIVERY AS SCHEDULED IN THE CONTRACT AND THAT THE VEHICLES DO NOT MEET THE GOVERNMENT SPECIFICATIONS. YOU THEREFORE ASSERT THAT THE VEHICLES SHOULD BE REJECTED BY FAA, THE CONTRACT TERMINATED AND AWARD MADE TO THE NEXT LOW BIDDER, THIOKOL CHEMICAL CORPORATION (THIOKOL), WHO OFFERS ITS OWN BRAND VEHICLES MANUFACTURED IN THE UNITED STATES, FOR WHICH YOU ARE A DISTRIBUTOR.

YOU SET FORTH SEVERAL ISSUES IN YOUR VARIOUS LETTERS. HOWEVER, ONLY THOSE ISSUES WHICH FAA HAS NOT RESOLVED TO YOUR SATISFACTION IN ITS REPORTS OF OCTOBER 13 AND NOVEMBER 24, 1971, COPIES OF WHICH WERE FURNISHED TO YOU BY FAA, ARE DISCUSSED HEREIN.

THE BUY AMERICAN ACT (41 U.S.C. 10A-D) CLAUSE WHICH WAS INCORPORATED IN THE IFB AND THE CONTRACT READS IN PERTINENT PART, AS FOLLOWS:

"(B) THE CONTRACTOR AGREES THAT THERE WILL BE DELIVERED UNDER THIS CONTRACT ONLY DOMESTIC SOURCE END PRODUCTS, EXCEPT END PRODUCTS:

(III) AS TO WHICH THE SECRETARY DETERMINES THE DOMESTIC PREFERENCE TO BE INCONSISTENT WITH THE PUBLIC INTEREST; OR

(IV) AS TO WHICH THE SECRETARY DETERMINES THE COST TO THE GOVERNMENT TO BE UNREASONABLE."

FAA RECEIVED THREE RESPONSIVE BIDS UNDER THE IFB. FOR THE VEHICLES IN QUESTION, ITEMS 1 THROUGH 13 IN THE IFB, FLEXTRAC'S PRICES, RANGING FROM $11,049 TO $11,274 PER UNIT, WERE LOWEST. THIOKOL'S PRICES ON THE SAME ITEMS, RANGING FROM $13,907 TO $14,207 PER UNIT, WERE SECOND LOW, AND YOUR PRICE OF $14,795 FOR EACH OF SEVEN ITEMS WAS THIRD.

SINCE FLEXTRAC STATED THAT ITS VEHICLES WOULD BE MANUFACTURED IN CANADA, THE PROCURING ACTIVITY ADDED TO FLEXTRAC'S PRICES A DIFFERENTIAL OF 12 PERCENT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1-6.104-4 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). AS THUS EVALUATED, FLEXTRAC'S BID WAS LOWER BY MORE THAN $1,500 ON EACH OF THE ITEMS ON WHICH THIOKOL BID AND BY MORE THAN $2,000 ON EACH OF THE ITEMS ON WHICH YOU BID. FLEXTRAC WAS THEREFORE DETERMINED TO HAVE SUBMITTED THE LOWEST EVALUATED BID. YOU CONTEND THAT THE FLEXTRAC BID WAS NOT ENTITLED TO CONSIDERATION SINCE THE IFB DID NOT INCLUDE A SPECIFIC PROVISION MAKING THE EXCEPTIONS SHOWN IN THE BUY AMERICAN ACT CLAUSE AND SHOWING THE METHOD FOR EVALUATING BIDS OFFERING FOREIGN END PRODUCTS.

AS STATUTORY REGULATIONS, THE FPR, WHICH ARE PUBLISHED IN THE FEDERAL REGISTER PRIOR TO CODIFICATION AT TITLE 41 OF THE CODE OF FEDERAL REGULATIONS, HAVE THE EFFECT OF LAW. FURTHER, UNDER 44 U.S.C. 1507 THE PUBLICATION OF THE FPR IN THE FEDERAL REGISTER SERVES AS NOTICE OF THE CONTENTS OF THE REGULATIONS TO THOSE WHO ARE SUBJECT TO OR AFFECTED BY THE FPR. IN THE ABSENCE, THEREFORE, OF ANY REQUIREMENT IN THE FPR THAT THE PROVISIONS ISSUED THEREIN IN IMPLEMENTATION OF THE BUY AMERICAN ACT AND EXECUTIVE ORDER 10582, DECEMBER 17, 1954, AS AMENDED, BE SET FORTH IN PROCUREMENT SOLICITATIONS, SUCH PROVISIONS APPLY TO PROCUREMENTS BY GOVERNMENT CIVILIAN AGENCIES WHICH ARE WITHIN THE PURVIEW OF THE STATUTE EVEN THOUGH THE PROVISIONS ARE NOT SPECIFICALLY SET OUT IN THE SOLICITATIONS. IN THIS CONNECTION, FPR 1-6.103-3, RELATING TO UNREASONABLE COST OR INCONSISTENCY WITH THE PUBLIC INTEREST, PROVIDES AS FOLLOWS:

"THE RESTRICTIONS OF THE BUY AMERICAN ACT DO NOT APPLY WHEN IT IS DETERMINED BY THE HEAD OF AN AGENCY THAT THE COST OF A DOMESTIC SOURCE END PRODUCT WOULD BE UNREASONABLE OR THAT ITS ACQUISITION WOULD BE INCONSISTENT WITH THE PUBLIC INTEREST. SUCH DETERMINATION SHALL BE MADE IN ACCORDANCE WITH SEC 1-6.104-4."

PURSUANT TO SUCH PROVISIONS, FLEXTRAC'S BID COULD NOT BE EXCLUDED FROM CONSIDERATION FOR AWARD SOLELY ON THE BASIS THAT THE END PRODUCTS OFFERED WOULD BE MANUFACTURED OUTSIDE THE UNITED STATES. THE BID WAS THEREFORE PROPERLY FOR EVALUATION BY FAA UNDER FPR 1-6.104-4.

A NEW MATERIALS CLAUSE IN THE IFB AND THE CONTRACT STATES, "UNLESS OTHERWISE SPECIFIED, ALL MATERIALS, SUPPLIES AND EQUIPMENT TO BE FURNISHED MUST BE NEW, UNUSED, OF CURRENT PRODUCTION, AND OF THE MOST SUITABLE GRADE FOR THE PURPOSE INTENDED." YOU ASSERT THAT THIS CLAUSE REQUIRED FLEXTRAC TO DELIVER ITS CURRENTLY PRODUCED MODEL OF VEHICLE COMPLYING WITH THE IFB SPECIFICATIONS AND THAT FLEXTRAC DID NOT MEET THIS REQUIREMENT SINCE IT HAD NEVER PRODUCED A VEHICLE WHICH HAD ALL OF THE REQUIRED FEATURES. YOU ALSO IMPLY THAT SOME OF THE VEHICLES DELIVERED MAY HAVE BEEN MODIFIED PROTOTYPES OR FREE TRIAL DEMONSTRATORS.

FAA URGES THAT THE CLAUSE DOES NOT REQUIRE PRIOR PRODUCTION OF A VEHICLE MEETING THE SPECIFICATIONS. FAA REPORTS THAT FLEXTRAC OFFERED A BASIC MODEL (FN 15) WHICH IT WAS THEN PRODUCING AND HAS PRODUCED SINCE 1966, AND INTENDED TO INCORPORATE THOSE FEATURES NECESSARY TO MEET THE SPECIFICATIONS. IT IS ALSO REPORTED THAT THE FLEXTRAC VEHICLES DELIVERED UNDER THE CONTRACT WERE COMPLETED DURING THE PERIOD, AUGUST 31, 1971, THROUGH SEPTEMBER 10, 1971, FROM NEW AND UNUSED MATERIALS, AND THAT FAA HAS NO FACTUAL INFORMATION SHOWING THAT THE VEHICLES DELIVERED DO NOT MEET THE REQUIREMENTS OF THE NEW MATERIALS CLAUSE.

WE CONCUR WITH THE VIEW OF FAA THAT THE CLAUSE IN QUESTION DOES NOT STATE A REQUIREMENT THAT THE VEHICLES OFFERED BE A MODEL IN PRODUCTION WHICH ALREADY CONFORMS TO THE SPECIFICATIONS. ANY DOUBT IN THE MATTER, HOWEVER, IS RESOLVED BY THE LANGUAGE OF THE DESCRIPTIVE DATA CLAUSE, WHICH EXPRESSLY PROVIDES FOR CONSIDERATION OF OFFERS OF VEHICLES PROPOSED TO BE MODIFIED TO MEET THE SPECIFICATIONS. BOTH CLAUSES ARE FOR CONSIDERATION IN DETERMINING THE INTENT AND MEANING OF THE IFB. 39 COMP. GEN. 17, 19; ID. 247 (1959). IT IS OUR VIEW, THEREFORE, THAT FAA COULD PROPERLY CONSIDER FOR AWARD A BID OFFERING A CURRENTLY PRODUCED MODEL OF SNOW VEHICLE WHICH COULD BE MODIFIED TO MEET THE ADVERTISED SPECIFICATIONS, PROVIDED THE BID WAS OTHERWISE RESPONSIVE.

IN THE FOLLOWING AREAS, YOU STATE THAT FLEXTRAC WAS NOT RESPONSIVE TO THE IFB, WHEREAS FAA TAKES THE POSITION THAT FLEXTRAC WAS RESPONSIVE OR THERE WAS NO SUCH REQUIREMENT IN THE IFB:

1. WEIGHT LIMITATION - YOU AND THIOKOL CLAIM THAT FLEXTRAC'S VEHICLE EXCEEDS THE LOADED WEIGHT LIMITATION OF 5,500 POUNDS. YOU STATE THAT EVERYONE HAS AGREED THAT THE UNLOADED VEHICLE WEIGHT INCLUDES THE SNOWPLOW. FURTHER, YOU QUESTION WHY FAA DID NOT TERMINATE THE CONTRACT WHEN IT BECAME AWARE THAT THE WEIGHT LIMITATION WOULD BE EXCEEDED RATHER THAN PERMIT FLEXTRAC TO MODIFY THE VEHICLE TO MEET THE LIMITATION.

THE SPECIFICATIONS STATED, "VEHICLE WEIGHT WITH SNOWPLOW UNLOADED SHALL NOT EXCEED 5,500 POUNDS, OR BE LESS THAN 3,500 POUNDS." FAA STATES THAT CERTAIN OF ITS FACILITIES OPERATE THE EQUIPMENT WITHOUT THE BLADE, AND THE CONTRACT SPECIFICATIONS WERE INTENDED TO OBTAIN A VEHICLE, WITHOUT SNOWPLOW, OF 5,500 POUNDS OR LESS. THE FLEXTRAC VEHICLE, AS DELIVERED, WEIGHED 5,455 POUNDS WITHOUT THE BLADE AND 5,995 POUNDS WITH THE BLADE. WHILE FAA ACKNOWLEDGES THAT THE WORDING OF THE SPECIFICATION IS SOMEWHAT AMBIGUOUS AND SUBJECT TO VARYING INTERPRETATIONS, IT SHOULD BE NOTED THAT FLEXTRAC'S DESCRIPTIVE LITERATURE ON THE VEHICLE OFFERED TO FAA GAVE A BASIC WEIGHT OF 4,800 POUNDS AND A WEIGHT WITH BLADE OF 5,500 POUNDS. ACCORDINGLY, FLEXTRAC'S BID WAS RESPONSIVE TO THIS PROVISION OF THE IFB EVEN IF THE PROPER INTERPRETATION OF THE SPECIFICATION IS AS YOU CONTEND. WHETHER THE DELIVERED VEHICLES MEET THE SPECIFICATION REQUIREMENTS IS A MATTER OF CONTRACT ADMINISTRATION AND, IN ANY EVENT, IT DOES NOT AFFECT THE RESPONSIVENESS OF FLEXTRAC'S BID WHICH IS DETERMINED ON THE BASIS OF ITS CONTENTS AT THE TIME OF BID OPENING.

2. CLEATS - YOU STATE THAT THE FLEXTRAC VEHICLE HAS NO CLEAT CONTACT WITH ICE AND THAT THE RAISED CLEATS ON THE VEHICLE ARE WEAK AND TOO SMALL FOR NORTHWEST SNOW.

THE TERM "CLEAT" IS NOT USED IN THE SPECIFICATIONS. FURTHER, FAA STATES THAT THE VEHICLE DELIVERED BY FLEXTRAC IS EQUIPPED WITH ALL PURPOSE, ALL- TERRAIN TRACKS AND MEETS THE SPECIFICATION REQUIREMENTS.

3. TIRES - YOU STATE THAT THE 4-PLY TUBELESS TIRES FOR THE RUNNING WHEELS ON THE FLEXTRAC VEHICLES ARE CHEAP AND ARE NOT SAFE FOR USE WITH THE 6-PLY TIRE ON THE IDLER WHEEL.

FAA STATES THAT ITS ENGINEERS HAVE EVALUATED THE 6:50 X 13, 4-PLY NYLON TUBELESS LOAD BEARING TIRES ON THE FLEXTRAC VEHICLE AND HAVE FOUND THAT THEY MEET THE CONTRACT REQUIREMENTS. THE TIRES ARE REPORTED TO HAVE A MANUFACTURER'S LOAD RATING OF 1,150 POUNDS, AND THE IDLER TIRES, WHICH ARE 6-PLY, HAVE A LOAD RATING OF 1,215 POUNDS. FAA STATES THAT WITH THE VEHICLE FULLY LOADED WITH PASSENGERS AND EQUIPMENT, THE WEIGHT ON THE RUNNING WHEEL TIRES WILL BE LESS THAN 83 PERCENT OF THEIR LOAD RATING AND THAT THE IDLER TIRES CARRY LITTLE LOAD. FAA ENGINEERS ALSO NOTE THAT FLEXTRAC HAS SOLD APPROXIMATELY 150 VEHICLES OF SIMILAR SIZE WITH THE SAME TIRES AND THAT THE USERS HAVE NOT HAD A TIRE FAILURE PROBLEM.

4.SPROCKETS - YOU STATE THAT THE URETHANE COVERED SPROCKETS ON THE FLEXTRAC VEHICLES ARE NOT SUITABLE FOR NORTHWEST SNOW. THE SPECIFICATIONS REQUIRED THAT THE SPROCKETS BE FULLY ENCLOSED BUT DID NOT SPECIFY THE COATING. FAA OPERATORS REPORT THAT NO PROBLEMS ARE BEING EXPERIENCED WITH THE URETHANE COATED SPROCKETS, AND ONE SECTOR REPORTS THAT A 1965 THIOKOL MODEL 1202 SNOW VEHICLE EQUIPPED WITH A URETHANE COATED SPROCKET HAS BEEN OPERATED FOR MORE THAN 400 HOURS WITH NO REPORT OF TROUBLE. FURTHER, FAA OBSERVES THAT DESCRIPTIVE LITERATURE ON THIOKOL'S SNOW VEHICLE STATES, "FINAL DRIVE ... RUBBER OR POLYURETHANE SPROCKETS."

5. SPARE PARTS AND SERVICE - YOU ASSERT THAT THE SEATTLE, WASHINGTON, DISTRIBUTOR LISTED IN FLEXTRAC'S BID AS A SOURCE OF SPARE PARTS AND SERVICE HAS NOT, AND DOES NOT NOW HAVE, THE PARTS AVAILABLE. FAA REPORTS THAT THE SEATTLE DISTRIBUTOR, WITH WHOM FLEXTRAC STATES IT HAS DEALT FOR CLOSE TO TEN YEARS, IS HANDLING ALL REQUESTS FOR PARTS AND SERVICE PENDING FINAL ARRANGEMENTS WITH A SALT LAKE CITY, UTAH, DISTRIBUTOR FOR FLEXTRAC. FAA FURTHER REPORTS THAT CONSIGNEES HAVE INDICATED THAT FLEXTRAC HAS DEMONSTRATED THE ABILITY TO SUPPLY PARTS AND SERVICES WITHIN THE REQUIRED 5 CALENDAR DAYS.

IN THE AREAS DISCUSSED BELOW FAA CONCEDES THAT THE FLEXTRAC VEHICLE DOES NOT COMPLY FULLY WITH THE SPECIFICATIONS, BUT IN THE DISCRETION OF THE CONTRACTING OFFICER THE DEVIATIONS HAVE BEEN WAIVED AND NEGOTIATIONS ARE BEING CONDUCTED WITH THE CONTRACTOR REGARDING SUCH ITEMS FOR THE PURPOSE OF ARRIVING AT AN EQUITABLE AND FAIR MODIFICATION OF THE CONTRACT PRICE EITHER BY MUTUAL AGREEMENT OR BY DECISION OF THE CONTRACTING OFFICER.

1. GROUND CLEARANCE - THE SPECIFICATIONS CALLED FOR A MINIMUM OF 12 INCHES GROUND CLEARANCE. FLEXTRAC'S DESCRIPTIVE LITERATURE SHOWED A 12 INCH GROUND CLEARANCE FOR A LOADED VEHICLE, AND ITS BID WAS THEREFORE RESPONSIVE TO THIS REQUIREMENT OF THE IFB. FAA STATES THAT THE GROUND CLEARANCE FOR THE FLEXTRAC VEHICLE IS 12 INCHES, WITH THE EXCEPTION OF THE DIFFERENTIAL, WHICH HAS A GROUND CLEARANCE OF 9 INCHES. THE VARIATION, FAA FURTHER STATES, IS CONSIDERED TO BE NEGLIGIBLE AND TO INVOLVE NO ADVERSE EFFECT ON THE MACHINE'S OVERALL PERFORMANCE OR UTILIZATION AND IS THEREFORE BEING WAIVED.

2. GROUND PRESSURE - THE SPECIFICATIONS REQUIRED THAT THE TOTAL TRACK BEARING AREA BE ADEQUATE TO LIMIT MAXIMUM PRESSURE ON THE GROUND AT 0 PENETRATION TO .70 POUNDS PER SQUARE INCH (PSI) WHEN THE VEHICLE IS EMPTY AND .99 POUNDS PSI WHEN LOADED AT MANUFACTURER'S SPECIFICATION CAPACITY. FLEXTRAC'S DESCRIPTIVE LITERATURE SHOWS COMPLIANCE WITH THIS REQUIREMENT. FAA REPORTS THAT BASED ON AN UNLOADED WEIGHT OF 5,460 POUNDS AND A LOADED WEIGHT OF 6,960 POUNDS FOR THE FLEXTRAC VEHICLE DELIVERED UNDER THE CONTRACT, THE GROUND PRESSURE IS .789 PSI UNLOADED AND 1.006 PSI LOADED, A VARIANCE OF 12 TO 16 PERCENT FROM THE SPECIFIED LIMITATIONS. FAA FURTHER REPORTS THAT ITS ENGINEERING PERSONNEL REGARD THE VARIANCE AS SLIGHT AND STATE THAT IT WILL NOT DEROGATE FROM THE OPERATION, SAFETY AND USE OF THE VEHICLE. IN ADDITION, FAA PERSONNEL WHO HAVE OPERATED THE VEHICLE HAVE CONFIRMED THE OPINION OF THE ENGINEERS PURSUANT TO WHICH THE VARIANCE IS BEING WAIVED BY THE CONTRACTING OFFICER. 3. SPEEDOMETER AND ODOMETER - FAA REPORTS THAT THE CALIBRATION ON THESE INSTRUMENTS IS INACCURATE BUT THE DEFICIENCY IS BEING WAIVED ON THE BASIS THAT THE REQUIREMENT IS NEGLIGIBLE SINCE THE OPERATOR'S USE OF, OR DEPENDENCE ON, THE INSTRUMENT READINGS IS NEGLIGIBLE.

4. TOW HOOKS - THE SPECIFICATIONS REQUIRED FRONT AND REAR TOW HOOKS. THE FLEXTRAC VEHICLE DOES NOT HAVE A FRONT TOW HOOK; HOWEVER, THE TWO STEEL EYES TO WHICH THE SNOW BLADE IS MOUNTED MAY BE USED FOR TOWING UPON REMOVAL OF THE BLADE. IN THIS REGARD, FAA OBSERVES THAT USE OF A FRONT HOOK IS IMPRACTICABLE SINCE TOWING CANNOT BE ACCOMPLISHED FROM THE FRONT WITH THE SNOW BLADE MOUNTED. IN THE CIRCUMSTANCES, THE REQUIREMENT FOR A FRONT TOW HOOK IS BEING WAIVED. IN CONNECTION WITH THE WAIVERS, WHICH HAVE BEEN ADMINISTRATIVELY DETERMINED TO BE ACCEPTABLE AND FOR WHICH PRICE ADJUSTMENTS WILL BE MADE, WE CANNOT CONCLUDE THAT THE FAA HAS ACTED IN OTHER THAN GOOD FAITH OR THAT SUCH WAIVERS ARE NOT COMPATIBLE WITH THE BEST INTEREST OF THE GOVERNMENT. WE ARE, HOWEVER, SUGGESTING TO FAA THAT SINCE STRICT COMPLIANCE WITH THE SPECIFICATIONS IS NOT CONSIDERED NECESSARY, IN ANY FUTURE PROCUREMENTS OF THE VEHICLES THE WEIGHTS, DIMENSIONS, ETC., BE STATED IN APPROXIMATE TERMS OR THE ACCEPTABLE LIMITS SHOWN WHERE POSSIBLE IN ORDER THAT THE SPECIFICATIONS WILL PROPERLY REFLECT THE GOVERNMENT'S ACTUAL MINIMUM NEEDS AND PERMIT THE MAXIMUM IN COMPETITION FOR SUPPLYING THOSE NEEDS.

WITH RESPECT TO YOUR STATEMENT THAT FLEXTRAC DID NOT MAKE DELIVERY OF THE VEHICLES WITHIN THE REQUIRED 60-DAY PERIOD, FAA CONFIRMS THAT THERE WERE DELAYS IN DELIVERY RANGING FROM 5 TO 17 DAYS.

IN RESPONSE TO YOUR REQUEST FOR THE SERIAL NUMBERS AND DESTINATIONS TO WHICH THE FLEXTRAC VEHICLES WERE DELIVERED, FAA HAS FURNISHED THE FOLLOWING LIST:

SERIAL NUMBERS DESTINATION

71-1-5-015-088 KLAMATH FALLS, OREGON

71-1-5-015-089 EUGENE, OREGON

71-1-5-015-090 EUGENE, OREGON

71-1-5-015-091 SALT LAKE CITY, UTAH

71-1-5-015-092 SALT LAKE CITY, UTAH

71-1-5-015-093 GRAND JUNCTION, COLORADO

71-1-5-015-094 YAKIMA, WASHINGTON

71-1-5-015-095 PORTLAND, OREGON

71-1-5-015-096 SEATTLE, WASHINGTON

71-1-5-015-097 DENVER, COLORADO

71-1-5-015-098 CEDAR CITY, UTAH

71-1-5-015-099 CEDAR CITY, UTAH

71-1-5-015-100 SPOKANE, WASHINGTON

INFORMATION PERTAINING TO THE DATE ON WHICH EACH VEHICLE PASSED THROUGH CUSTOMS, THE DUTY AND IMPORT SURCHARGE ON EACH VEHICLE AND THE APPLICABLE CUSTOMS TARIFF CODE FOR THE VEHICLES IS NOT OF RECORD WITH FAA AND SHOULD BE REQUESTED FROM THE BUREAU OF CUSTOMS, UNITED STATES DEPARTMENT OF THE TREASURY. A DISTRICT OFFICE IS MAINTAINED BY THE BUREAU IN THE FEDERAL BUILDING, SEATTLE, WASHINGTON, 98104.

AS TO THE TESTS WHICH FAA CONDUCTED ON ONE OF THE FLEXTRAC VEHICLES, FAA STATES:

"ON 15 OCTOBER 1971 AT LAKEVIEW, OREGON, A PERFORMANCE TEST OF ONE OF THE FLEXTRAC NODWELL VEHICLES WAS CONDUCTED. THE PURPOSE OF THE TEST WAS TO DETERMINE WHETHER THE VEHICLES MET THE PERFORMANCE REQUIREMENTS OF THE CONTRACT. PARTICIPANTS WERE:

ORVEL J. MCCAFFERTY, PROCUREMENT AGENT, CONTRACTING OFFICE REPRESENTATIVE

E. L. PARKER, ENGINEERING TECHNICIAN

ARLEN CLEMENS, SECTION MANAGER, KLAMATH FALLS FAA AIRWAYS FACILITY SECTOR

RICHARD MUNDLIN, GENERAL FACILITIES AND EQUIPMENT TECHNICIAN, KLAMATH FALLS AIRWAYS FACILITY SECTOR

EARL SPAFFORD, SUPERVISORY ELECTRONIC TECHNICIAN, SEATTLE - TACOMA AIRWAYS FACILITIES SECTOR

"MR. PARKER REPRESENTED THE FAA ENGINEERING OFFICE RESPONSIBLE FOR EVALUATING THE OVERSNOW VEHICLES. MR. PARKER HAS HAD EXPERIENCE WITH OPERATION AND MAINTENANCE OF OVERSNOW VEHICLES SIMILAR TO THE VEHICLE TESTED SINCE 1960 AND HE ESTIMATES HE HAS MORE THAN 200 HOURS OF OPERATION OF SIMILAR SNOW VEHICLES. MR. CLEMENS HAS HAD EXPERIENCE WITH SIMILAR VEHICLES. HIS OFFICE IS THE RECIPIENT OF ONE OF THE OVERSNOW VEHICLES. MR. MUNDLIN AND MR. SPAFFORD ARE BOTH FAA EMPLOYEES WHO OPERATE OVERSNOW VEHICLES TO AND FROM THE AIR NAVIGATION FACILITIES.

"THE LAKEVIEW SITE WAS SELECTED BECAUSE 1 1/2 TO 2 FEET OF SNOW EXISTED A FEW DAYS BEFORE THE TEST. ALSO, MORE SNOW WAS FORECAST BEFORE THE TEST. THE FORECASTED SNOW DID NOT MATERIALIZE AND EXISTING SNOW MELTED LEAVING APPROXIMATELY 6 INCHES OF SNOW WITH SPOTTED AREAS OF BARE GROUND. THE TEST SITE HAS AN ELEVATION OF 7,500 FEET. TEMPERATURE AT THE TIME OF THE TEST WAS 34 TO 36 DEGREES.

"TO EVALUATE THE TRAVEL AND CLIMBING ABILITIES, THE VEHICLE WAS OPERATED ON THE EXISTING 32 PERCENT SLOPE. IN THE OPINION OF THE FAA PERSONNEL PRESENT, THE VEHICLE EXCEEDED THE CONTRACT REQUIREMENTS FOR POWER.

"IT WAS ALSO OPERATED THROUGH DITCHES AND OVER OBSTACLES. THE MACHINE CLIMBED OVER A VERTICAL BARRIER IN EXCESS OF 14 INCHES AND OVER 36-INCH OBSTACLES WITH SUFFICIENT EASE TO CONVINCE THE FAA ENGINEERING AND OPERATING PERSONNEL THAT IT HAD SUFFICIENT POWER TO MEET THE CLIMBING REQUIREMENTS OF THE CONTRACT. ALTHOUGH SUFFICIENT SNOW WAS NOT AVAILABLE TO TEST THE VEHICLE IN DEEP SNOW CONDITIONS, IT WAS THE OPINION OF FAA ENGINEERING AND OPERATING PERSONNEL, WHO HAVE OPERATED SIMILAR VEHICLES IN DEEP SNOW CONDITIONS, THAT THE MACHINE WOULD MEET THE CONTRACT SPECIFICATIONS.

"WE HAVE SINCE INQUIRED OF FAA PERSONNEL WHO HAVE OPERATED THIS MACHINE AT MINES PEAK, 68 MILES FROM DENVER, COLORADO, AT AN ELEVATION OF 11,000 TO 12,400 FEET AND HAVE BEEN ADVISED THAT THE VEHICLE PERFORMED SATISFACTORILY IN SNOW 5 TO 6 FEET IN DEPTH. WE HAVE HAD SIMILAR REPORTS FROM PROVO, UTAH, WITH AN ELEVATION OF 7,600 FEET, SNOW BASE 18 INCHES AND DRIFTS TO 10 FEET; AND FROM UPTON, UTAH, WITH AN ELEVATION OF 7,400 FEET, SNOW BASE OF 28 INCHES AND 6 TO 12 FOOT DRIFTS. WE HAVE ALSO BEEN INFORMED BY OUR OPERATORS THAT THE HEIGHT OF THE DIFFERENTIAL FROM THE GROUND HAS NOT CAUSED EXCESSIVE SNOW TO PACK IN FRONT OF THE DIFFERENTIAL."

BASED ON THE INFORMATION OF RECORD, IT WOULD APPEAR THAT NONE OF THE ISSUES WHICH YOU RAISED NECESSITATED REJECTION OF THE FLEXTRAC BID AS NONRESPONSIVE. FURTHER, IT WOULD APPEAR THAT FAA WAS ACTING WITHIN ITS AUTHORITY IN WAIVING THOSE DEVIATIONS FROM THE SPECIFICATIONS IN THE DELIVERED ITEMS WHICH FAA CONSIDERED NOT TO BE ESSENTIAL TO ITS NEEDS. ADDITION, FAA WAS ALSO VESTED WITH DISCRETION TO DEMAND CORRECTION BY FLEXTRAC OF ANY DEVIATIONS FROM THE SPECIFICATIONS WITH WHICH FLEXTRAC WAS OBLIGATED TO COMPLY AND TO ACCEPT DELAYED DELIVERIES RATHER THAN TERMINATE THE CONTRACT FOR DEFAULT.

THERE IS, HOWEVER, ONE SPECIFICATION REQUIREMENT, NOT CITED IN YOUR PROTEST, TO WHICH THE FLEXTRAC BID WAS NOT RESPONSIVE, WHICH WE BELIEVE BEARS COMMENT. THE DESCRIPTIVE MATERIAL SUBMITTED WITH FLEXTRAC'S BID INDICATED THAT THE VEHICLE HAD A TWO-PASSENGER CAB, WHEREAS THE SPECIFICATIONS REQUIRED A CAB WITH A MINIMUM CAPACITY OF FIVE PASSENGERS. THERE WAS NOTHING IN THE BID WHICH EVIDENCED INTENT BY FLEXTRAC TO MODIFY THE CAB TO HOLD FIVE OR MORE PASSENGERS. FAA STATED, IN ITS REPORT OF OCTOBER 13, 1971, THAT IT WAS NOT UNTIL AFTER YOU PROTESTED THE AWARD TO FLEXTRAC THAT THE CONTRACTING OFFICER BECAME AWARE OF THIS DEFICIENCY IN THE BID; HOWEVER, IT WAS DETERMINED AT THAT TIME THAT THE BEST INTERESTS OF THE GOVERNMENT WOULD BE SERVED BY PERMITTING FLEXTRAC TO DELIVER THE VEHICLES WITH THE MODIFICATIONS DEEMED BY FAA TO BE NECESSARY TO MEET ITS MINIMUM NEEDS.

FAA FURTHER STATED THAT THE DECISION NOT TO SET ASIDE THE AWARD WAS BASED ON THE FACT THAT THE SNOW VEHICLES WERE URGENTLY NEEDED BY FAA FOR THE IMPENDING SNOW SEASON TO ENABLE FAA TO MAINTAIN REMOTE AIR NAVIGATION FACILITIES AND THE FACT THAT THE CONTRACTOR HAD ALREADY EXPENDED CONSIDERABLE MONEY TO PRODUCE THE FIVE-MAN CAB VEHICLES (BEFORE THE CONTRACTING OFFICER BECAME AWARE OF THE CAB DEVIATION). IN ADDITION, FAA REPORTS THAT ALL OF THE FLEXTRAC VEHICLES ARE BEING MODIFIED PURSUANT TO THE CONTRACTING OFFICER'S DIRECTIONS IN THOSE AREAS CONSIDERED ESSENTIAL TO FAA'S NEEDS AND ARE NOW BEING USED FOR ACCESS TO, AND MAINTENANCE OF, CRITICAL AIR NAVIGATION FACILITIES. ACCESS TO SUCH FACILITIES, FAA EXPLAINS, CANNOT BE ACCOMPLISHED BY OTHER MEANS.

FAA ACKNOWLEDGES THAT THE PROCEDURES EMPLOYED IN THE PROCUREMENT WERE DEFECTIVE AND STATES THAT IT IS TAKING IMMEDIATE AND POSITIVE CORRECTIVE ACTION TO PREVENT RECURRENCE OF THE SITUATIONS. FAA ADHERES, HOWEVER, TO ITS POSITION THAT THE OVERALL INTERESTS OF THE GOVERNMENT WILL BEST BE SERVED BY CONTINUING THE CONTRACT TO ITS CONCLUSION.

ON THE RECORD BEFORE US, IT IS OUR VIEW THAT THE NONRESPONSIVENESS OF THE FLEXTRAC BID TO THE MINIMUM CAB PASSENGER CAPACITY REQUIREMENT IN THE SPECIFICATIONS RENDERED THE BID INELIGIBLE FOR CONSIDERATION FOR AWARD. IT IS OUR FURTHER VIEW, HOWEVER, THAT FOR THE REASONS STATED BY FAA IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO REJECT THE FLEXTRAC VEHICLES, TERMINATE THE CONTRACT, AND PROCURE THIOKOL EQUIPMENT, AS YOU URGE. YOUR PROTEST IS THEREFORE DENIED.