B-173856, MAR 7, 1972

B-173856: Mar 7, 1972

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IT MUST REASONABLY BE CONCLUDED THAT EITHER O'BRIEN'S BID WAS NONRESPONSIVE OR THAT THE SUBJECT IFB WAS OVERLY RESTRICTIVE. SINCE AWARD WAS MADE ON THE SAME DAY AS THE BID OPENING. IT DOES NOT APPEAR THAT THE PROCEDURES SET FORTH IN ASPR 2-407.8(B) WERE FOLLOWED BEFORE THE SUBJECT AWARD WAS MADE. REMEDIAL ACTION IS NO LONGER POSSIBLE. APPROPRIATE STEPS SHOULD BE TAKEN TO INSURE THAT SIMILAR IRREGULARITIES ARE AVOIDED IN THE FUTURE. 11 "MINIMUM ESSENTIAL REQUIREMENTS" ARE SET OUT. TWO BIDS WERE RECEIVED. A REPRESENTATIVE OF SOUTHWEST WAS IN ATTENDANCE AT THE BID OPENING ON APRIL 30. THE USING ACTIVITY WAS REQUESTED TO PROVIDE TECHNICAL EVALUATIONS TO DETERMINE IF O'BRIEN'S BID MET THE CONDITIONS OF THE SOLICITATION.

B-173856, MAR 7, 1972

BID PROTEST - IMPROPER SOLICITATION - PROCUREMENT IRREGULARITIES CONCERNING THE PROTEST OF SOUTHWEST FLEXIBLE COMPANY (SOUTHWEST) AGAINST AWARD OF A CONTRACT TO CONCO INC., O'BRIEN MANUFACTURING DIVISION (O'BRIEN) UNDER AN IFB ISSUED BY THE AIR FORCE PROCUREMENT AND PRODUCTION OFFICE, U.S. AIR FORCE ACADEMY, COLO., FOR A MOTORIZED SEWER AUGER. CONSIDERING THE REQUIREMENTS OF THE SOLICITATION FOR A SAFETY OVERLOAD CLUTCH AND A FRONT-END TOW, IT MUST REASONABLY BE CONCLUDED THAT EITHER O'BRIEN'S BID WAS NONRESPONSIVE OR THAT THE SUBJECT IFB WAS OVERLY RESTRICTIVE. FURTHER, SINCE AWARD WAS MADE ON THE SAME DAY AS THE BID OPENING, DESPITE THE ORAL PROTEST BY SOUTHWEST, IT DOES NOT APPEAR THAT THE PROCEDURES SET FORTH IN ASPR 2-407.8(B) WERE FOLLOWED BEFORE THE SUBJECT AWARD WAS MADE. IN VIEW OF THE FACT THAT DELIVERY HAS ALREADY BEEN COMPLETED, REMEDIAL ACTION IS NO LONGER POSSIBLE. HOWEVER, APPROPRIATE STEPS SHOULD BE TAKEN TO INSURE THAT SIMILAR IRREGULARITIES ARE AVOIDED IN THE FUTURE.

TO MR. SECRETARY:

WE REFER TO A LETTER DATED SEPTEMBER 29, 1971, FROM THE DEPUTY CHIEF, CONTRACT MANAGEMENT DIVISION, TRANSMITTING A REPORT IN CONNECTION WITH THE PROTEST OF SOUTHWEST FLEXIBLE COMPANY (SOUTHWEST) AGAINST THE AWARD OF A CONTRACT TO CONCO INCORPORATED, O'BRIEN MANUFACTURING DIVISION (O'BRIEN), UNDER INVITATION FOR BIDS (IFB) NO. F05611-71-B-0098, ISSUED BY THE AIR FORCE PROCUREMENT AND PRODUCTION OFFICE, UNITED STATES AIR FORCE ACADEMY, COLORADO.

THE SUBJECT IFB, ISSUED ON APRIL 15, 1971, SOLICITED BIDS FOR A MOTORIZED SEWER AUGER. THE ITEM DESCRIPTION CITED A FEDERAL STOCK NUMBER WHICH REFERS TO AN AUGER MANUFACTURED BY SOUTHWEST. IN ADDITION, 11 "MINIMUM ESSENTIAL REQUIREMENTS" ARE SET OUT.

TWO BIDS WERE RECEIVED, ONE FROM SOUTHWEST IN THE AMOUNT OF $5,476 AND ONE FROM O'BRIEN, IN THE AMOUNT OF $3,394. A REPRESENTATIVE OF SOUTHWEST WAS IN ATTENDANCE AT THE BID OPENING ON APRIL 30, 1971. HE NOTED THAT O'BRIEN HAD BID ITS POWER RODDER 1439 MODEL, A HYDRAULICALLY OPERATED UNIT WHICH POSSIBLY DID NOT MEET SOLICITATION SPECIFICATIONS. THE USING ACTIVITY WAS REQUESTED TO PROVIDE TECHNICAL EVALUATIONS TO DETERMINE IF O'BRIEN'S BID MET THE CONDITIONS OF THE SOLICITATION. AFTER REVIEW BY ENGINEERING PERSONNEL IT WAS DETERMINED THAT THE MODEL OFFERED BY O'BRIEN MET, OR EXCEEDED, THE REQUIREMENTS OF THE SOLICITATION. THEREAFTER, THE SAME DAY (APRIL 30, 1971), THE CONTRACT WAS AWARDED TO O'BRIEN AND DELIVERY WAS MADE ON JUNE 29, 1971.

BY LETTER DATED MAY 1, 1971, TO THE CONTRACTING OFFICER, SOUTHWEST FORMALLY PROTESTED THE AWARD TO O'BRIEN ON THE BASIS THAT THE O'BRIEN MODEL 1439 WHICH WAS TO BE PROVIDED IS EQUIPPED WITH A HYDRAULICALLY OPERATED TRANSMISSION WHICH DOES NOT UTILIZE THREE SPEEDS. AS A RESULT THE O'BRIEN MODEL WAS AGAIN TECHNICALLY EVALUATED AND THE PRIOR DETERMINATION THAT THE MODEL OFFERED MET THE CRITERIA FOR A THREE-SPEED TRANSMISSION AS SPECIFIED BY PARAGRAPH D OF THE SPECIFICATION "MINIMUM ESSENTIAL REQUIREMENTS" WAS CONFIRMED. ACCORDING TO THE CONTRACTING OFFICER THIS FINDING WAS VERIFIED AFTER DELIVERY OF THE MACHINE WHEN A CUT -AWAY OF THE TRANSMISSION WAS REQUESTED FROM AND FURNISHED BY O'BRIEN.

BY LETTER DATED AUGUST 10, 1971, SOUTHWEST PROTESTED TO THIS OFFICE AGAINST THE AWARD TO O'BRIEN AND THE SUBSEQUENT FINDINGS OF THE RESPONSIBLE TECHNICAL PERSONNEL. THE PROTEST IS BASED ON THE GROUNDS THAT THE TRANSMISSION ON THE O'BRIEN MODEL DOES NOT MEET THE SPECIFICATIONS AND FURTHER THAT IT DID NOT INCLUDE A SAFETY OVERLOAD CLUTCH OR A BALL AND SOCKET HITCH POSITIONED FOR FRONT-END TOW ALSO AS REQUIRED BY THE SPECIFICATIONS.

THE CONTRACTING OFFICER HAS ADVISED US THAT A GEAR-DRIVEN TRANSMISSION WAS DESIRED BY THE USING ACTIVITY BUT THAT SUCH A REQUIREMENT WAS NOT INCORPORATED INTO THE SPECIFICATIONS. THEREFORE, THE ACTIVITY ACCEPTED THE HYDRAULICALLY OPERATED MODEL OFFERED BY O'BRIEN IN LIEU OF THE MECHANICALLY OPERATED SOUTHWEST MODEL BECAUSE OF THE LOWER PRICE OFFERED BY O'BRIEN.

IN OUR REVIEW OF THE SPECIFICATIONS THERE APPEARS TO BE A RELATIONSHIP BETWEEN TRANSMISSION TYPE AND THE REQUIREMENT FOR AN OVERLOAD CLUTCH CONTAINED IN THE SPECIFICATIONS. IT IS EVIDENT FROM THE RECORD THAT THE O'BRIEN UNIT DOES NOT CONTAIN A SAFETY-OVERLOAD CLUTCH AS REQUIRED BY PARAGRAPH B OF THE SPECIFICATIONS. IN LIEU OF THIS MECHANISM THE O'BRIEN UNIT UTILIZES A SPRING LOADED OVERLOAD VALVE WHICH, ACCORDING TO THE CONTRACTING OFFICER, PERFORMS THE SAME FUNCTION. WE UNDERSTAND THAT THIS FUNCTION, WHICH IS TO PREVENT TRANSMISSION DAMAGE, IS USUALLY PERFORMED BY MEANS OF A CLUTCH MECHANISM IN A MECHANICAL TRANSMISSION AND BY MEANS OF AN OVERLOAD VALVE IN A HYDRAULIC UNIT. IN THESE CIRCUMSTANCES, THE REQUIREMENT FOR A SAFETY OVERLOAD CLUTCH CONTAINED IN THE SPECIFICATIONS, AT THE VERY LEAST, CONVEYS THE IMPRESSION THAT A UNIT WITH A MECHANICAL TRANSMISSION WAS DESIRED BY THE ACTIVITY. WE THEREFORE QUESTION THE PROPRIETY OF ACCEPTING A HYDRAULIC UNIT UNDER THE SPECIFICATIONS.

IF THE HYDRAULIC MODEL ALSO FULFILLS THE GOVERNMENT'S NEEDS, THE SPECIFICATION REQUIRING A MECHANICAL UNIT WOULD APPEAR TO BE UNDULY RESTRICTIVE AND NOT CONSISTENT WITH THE REQUIREMENT OF 10 U.S.C. 2305(B) THAT PURCHASE DESCRIPTIONS PERMIT THE BROADEST COMPETITIVE BASE CONSISTENT WITH THE GOVERNMENT'S NEEDS.

THE SPECIFICATIONS REQUIRE THAT THE AUGER BE EQUIPPED WITH A FRONT END TOW. WE HAVE BEEN INFORMED BY AGENCY PERSONNEL THAT THIS REQUIREMENT WAS INCLUDED SO THAT THE MACHINE MAY BE TAKEN TO A GIVEN AREA AND USED WITHOUT REMOVING IT FROM THE TOWING VEHICLE AND THAT THE UNIT ACCEPTED PERFORMS IN THE REQUIRED MANNER. LITERATURE DESCRIBING THE ACCEPTED O'BRIEN UNIT STATES THAT THE MACHINE IS EQUIPPED WITH A REAR-END TOW. IF, IN FACT, THE MODEL ACCEPTED IS OF THE TYPE CONSIDERED "REAR-END TOW" WE QUESTION WHETHER THE ITEM CONFORMED TO THE MINIMUM ESSENTIAL REQUIREMENT. IF "REAR -END TOW" IS FULLY ACCEPTABLE, THE SPECIFICATIONS SHOULD HAVE BEEN BROADENED.

FINALLY, WE NOTE THAT AWARD WAS MADE ON APRIL 30 DESPITE THE FACT THAT A REPRESENTATIVE OF SOUTHWEST ORALLY PROTESTED THE PROCUREMENT EARLIER THAT SAME DAY. WE ARE COGNIZANT OF THE FACT THAT THE CONTRACTING OFFICER CONSULTED TECHNICAL PERSONNEL BEFORE HE MADE AWARD. HOWEVER, IT DOES NOT APPEAR FROM THE RECORD BEFORE US THAT THE PROCEDURES SET FORTH IN ASPR 2- 407.8(B) WERE FOLLOWED BEFORE THE SUBJECT AWARD WAS MADE.

IN VIEW OF THE FACT THAT DELIVERY OF THE EQUIPMENT HAS ALREADY BEEN MADE, NO REMEDIAL ACTION IS NOW POSSIBLE. WE HAVE POINTED OUT THE DISCREPANCIES SO THAT APPROPRIATE STEPS CAN BE TAKEN TO AVOID SIMILAR IRREGULARITIES IN THE FUTURE.