B-176394, FEB 9, 1973, 52 COMP GEN 500

B-176394: Feb 9, 1973

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OFFERED APPROXIMATED REQUIREMENTS SINCE THE WEIGHT OF THE RIPPER REQUIRED TO BE MOUNTED ON CRAWLER TRACTORS WAS SIGNIFICANT IN DETERMINING THE RUGGEDNESS. THE LOW BID THAT OFFERED A RIPPER WITH A WEIGHT DEFICIENCY OF 22 PERCENT FROM THE APPROXIMATE REQUIREMENTS STATED IN THE INVITATION FOR BIDS PROPERLY WAS REJECTED IN LIGHT OF THE CONTRACTING AGENCY'S RESPONSIBILITY TO DRAFT SPECIFICATIONS THAT MEET THE ACTUAL NEEDS OF THE GOVERNMENT AND TO DETERMINE THE RESPONSIVENESS OF BIDS. THE RECORD DOES NOT SHOW THE REJECTION WAS ARBITRARY. OR WAS NOT BASED ON SUBSTANTIAL EVIDENCE. THE BELIEF MINIMUM AND NOT APPROXIMATE REQUIREMENTS SHOULD HAVE BEEN USED TO INSURE EQUAL BIDDING. ARE MATTERS THAT MUST BE RAISED PRIOR TO BID OPENING AS PROVIDED IN 4 CFR 20.2(A).

B-176394, FEB 9, 1973, 52 COMP GEN 500

CONTRACTS - SPECIFICATIONS - CONFORMABILITY OF EQUIPMENT, ETC., OFFERED APPROXIMATED REQUIREMENTS SINCE THE WEIGHT OF THE RIPPER REQUIRED TO BE MOUNTED ON CRAWLER TRACTORS WAS SIGNIFICANT IN DETERMINING THE RUGGEDNESS, STRENGTH, AND DESIRABILITY OF THE RIPPER, THE LOW BID THAT OFFERED A RIPPER WITH A WEIGHT DEFICIENCY OF 22 PERCENT FROM THE APPROXIMATE REQUIREMENTS STATED IN THE INVITATION FOR BIDS PROPERLY WAS REJECTED IN LIGHT OF THE CONTRACTING AGENCY'S RESPONSIBILITY TO DRAFT SPECIFICATIONS THAT MEET THE ACTUAL NEEDS OF THE GOVERNMENT AND TO DETERMINE THE RESPONSIVENESS OF BIDS, AND THE RECORD DOES NOT SHOW THE REJECTION WAS ARBITRARY, CAPRICIOUS, OR WAS NOT BASED ON SUBSTANTIAL EVIDENCE. DOUBT AS TO THE WEIGHT DIFFERENCE AND ITS EFFECT ON COMPETITION, AND THE BELIEF MINIMUM AND NOT APPROXIMATE REQUIREMENTS SHOULD HAVE BEEN USED TO INSURE EQUAL BIDDING, ARE MATTERS THAT MUST BE RAISED PRIOR TO BID OPENING AS PROVIDED IN 4 CFR 20.2(A), THE INTERIM BID PROTEST PROCEDURES AND STANDARDS.

TO THE INTERNATIONAL HARVESTER COMPANY, FEBRUARY 9, 1973:

WE REFER TO YOUR TELEFAX OF JUNE 29, 1972, AND SUBSEQUENT CORRESPONDENCE, CONCERNING YOUR PROTEST UNDER INVITATION FOR BIDS NO. 200-B-4197, ISSUED BY THE BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR, ON MAY 1, 1972, FOR THREE CRAWLER TRACTORS. TWO OF THE TRACTORS WERE REQUIRED TO HAVE A REAR-MOUNTED, HYDRAULIC RIPPER WITH THE FOLLOWING APPROXIMATE DIMENSIONS AND CHARACTERISTICS:

HYDRAULIC RIPPER (TO BE FURNISHED FOR ITEMS NOS. 1 AND 2 OF THE SCHEDULE ONLY). - A MULTI-SHANK, PARALLELOGRAM TYPE HYDRAULIC RIPPER, REAR- MOUNTED, SHALL BE FURNISHED COMPLETE WITH THREE STRAIGHT SHANK TEETH, WITH REPLACEABLE TIPS, TOGETHER WITH MOUNTING BACKPLATE, LINKAGE ASSEMBLY, HYDRAULIC CYLINDER, CARRIAGE BAR, HYDRAULIC CONTROL, AND ANY OTHER PARTS REQUIRED FOR OPERATION. THE RIPPER SHALL HAVE THE FOLLOWING APPROXIMATE DIMENSIONS AND CHARACTERISTICS:

GROUND CLEARANCE, UNDER TEETH (FULLY RAISED)---------- 13 INCHES

MAXIMUM DEPTH OF PENETRATION-------------------------- 18 INCHES

NUMBER OF TEETH, STANDARD----------------------------- 3

TOOTH SPACING (CENTER TO CENTER)---------------------- 20 INCHES*

WEIGHT, EQUIPPED WITH THREE TEETH--------------------- 3,200 POUNDS

TOTAL WIDTH------------------------------------------ 7.9 FEET

*IF NONADJUSTABLE

THE RIPPER SHALL BE OF HEAVY-DUTY CONSTRUCTION THROUGHOUT TO WITHSTAND THE MOST SEVERE SERVICE. THE RIPPER SHANKS SHALL BE PIN ATTACHED TYPE. THE TOOTH SHANKS AND TEETH SHALL BE OF CAST STEEL ALLOY, HEAT TREATED, OR EQUAL, HAVING A MAXIMUM RESISTANCE TO ABRASION AND WEAR.

IN THIS CONNECTION, THE IFB ALSO REQUIRED BIDDERS TO SUBMIT DATA WHICH WOULD SHOW THE CONFORMITY OF THEIR PRODUCTS WITH THE SPECIFICATIONS.

THE RECORD SHOWS THAT BIDS WERE RECEIVED FROM YOUR CONCERN, CATERPILLAR TRACTOR COMPANY, R.H. GORMAN COMPANY, AND ALLIS-CHALMERS CORPORATION ON MAY 31, 1972.

THE CONTRACTING OFFICER STATES THAT THE DATA IN YOUR LOW BID WAS EVALUATED AND, SUBSEQUENTLY, THE DEPARTMENT DECIDED THAT YOUR BID DID NOT MEET THE APPROXIMATE SPECIFICATIONS OF THE IFB CONCERNING THE WEIGHT, WIDTH, AND TOOTH SPACING OF THE RIPPER. IN THIS REGARD, THE CONTRACTING OFFICER HAS SUBMITTED THE FOLLOWING ANALYSIS:

WEIGHT

PARAGRAPH B-12.B. ON PAGE 19 OF THE SOLICITATION STATES THAT THE RIPPER, EQUIPPED WITH THREE TEETH, SHALL WEIGH APPROXIMATELY 3,200 POUNDS. THE ATECO MODEL PS-TD15C HYDRAULIC RIPPER OFFERED BY INTERNATIONAL HARVESTER WEIGHS 2,500 POUNDS, WHICH INTERNATIONAL CONSIDERS AS MEETING THE APPROXIMATE REQUIREMENT. THE WEIGHT OF 2,500 POUNDS IS 21.875 PERCENT LESS THAN THE APPROXIMATE WEIGHT OF 3,200 POUNDS STATED IN THE SOLICITATION. A DIFFERENCE OF NEARLY 22 PERCENT CANNOT BE CONSIDERED AS BEING SUFFICIENTLY CLOSE TO BE CONSIDERED ACCEPTABLE, ESPECIALLY SINCE THE SPECIFICATIONS REQUIRE HEAVY-DUTY CONSTRUCTION TO WITHSTAND THE MOST SEVERE SERVICE AND THE RIPPER IS LIGHTER RATHER THAN HEAVIER THAN THE SPECIFIED WEIGHT. WEBSTER'S DICTIONARY DEFINES APPROXIMATE AS "NEAR TO CORRECTNESS, NEARLY EXACT, VERY NEAR OR CLOSE TOGETHER." ASIDE FROM THE DEFINITION OF THE WORD APPROXIMATE, THE WEIGHT HAS TO BE CONSIDERED AS A SIGNIFICANT FACTOR IN DESCRIBING THE RUGGEDNESS, STRENGTH, AND DURABILITY OF A HEAVY DUTY RIPPER. MOREOVER, THE ADDITIONAL WEIGHT OF THE RIPPER MINIMIZES THE UPWARD THRUST ON THE TRACTOR THEREBY PROVIDING MORE WEIGHT FOR TRACTION TO PULL THE RIPPER.

WIDTH

THE WIDTH OF THE RIPPER TO BE FURNISHED IS SPECIFIED IN PARAGRAPH B 12.B. AS APPROXIMATELY 7.9 FEET, WHEREAS THE RIPPER OFFERED BY INTERNATIONAL HAS A WIDTH OF 5 FEET 9.5 INCHES, 2 FEET 1.3 INCHES, OR MORE THAN 26 PERCENT SHORTER THAN SPECIFIED. THE WIDTH OF 7.9 FEET SPECIFIED IN THE RIPPER IS CONSISTENT WITH THE WIDTH OF THE TRACTOR FOR THE PURPOSE OF PROVIDING SPACE ON THE CARRIAGE BAR FOR MOUNTING RIPPER TEETH OVER A SPACE OF APPROXIMATELY 80 INCHES, EITHER BY MEANS OF FIXED BRACKETS SPACED APPROXIMATELY 20 INCHES APART OR BY AN ARRANGEMENT WHERE THE SPACING BETWEEN THE RIPPER TEETH IS ADJUSTABLE.

TOOTH SPACING

IN THIS REGARD THE SPACING OF THE TEETH ON INTERNATIONAL'S RIPPER IS NOT ADJUSTABLE IN THE SENSE INTENDED BY THE SPECIFICATIONS, THE ONLY ADJUSTMENT BEING ACCOMPLISHED BY SHIFTING THE OUTER TWO OF THE THREE TEETH FROM THE BRACKETS SPACED 16 INCHES FROM THE CENTER OF THE CARRIAGE BAR TO THE BRACKETS SPACED 32 INCHES FROM THE CENTER. FURTHERMORE, THEIR 16-INCH TOOTH SPACING IS A 25(20) PERCENT DEVIATION FROM THE SPECIFICATION REQUIREMENT THAT THE TEETH BE SPACED ON APPROXIMATELY 20-INCH CENTERS IF TOOTH SPACING IS NOT ADJUSTABLE. A RIPPER 7.9 FEET WIDE IS OF ADEQUATE WIDTH TO PROVIDE FIVE FIXED TOOTH POSITIONS SPACED 20 INCHES APART AND IT IS COMMON PRACTICE IN RIPPERS OF THIS SIZE AND SMALLER, TO PROVIDE FIVE FIXED POSITIONS OR HAVE THE TOOTH POSITIONS ADJUSTABLE OUTWARD FROM THE CENTER TO UTILIZE THE FULL LENGTH OF THE CARRIAGE BAR. IT IS ALSO THE PRACTICE OF MANUFACTURERS TO OFFER ONLY THREE TEETH WITH THEIR RIPPERS EVEN THOUGH THE RIPPER MAY HAVE FIVE TOOTH POSITIONS. BY HAVING FIVE TOOTH POSITIONS AND THREE TEETH, THE OPERATOR HAS THE OPTION OF PLACING THE TEETH IN THE THREE CENTER POSITIONS AND RIPPING A NARROW PATH OR PLACING TWO OF THE TEETH IN THE OUTER POSITIONS AND RIPPING A WIDER PATH. THE MANUFACTURERS ALSO OFFER EXTRA TEETH AS AN OPTION SO THAT TEETH MAY BE PLACED IN EACH OF THE FIVE POSITIONS IF DESIRED.

IN VIEW OF THIS DECISION, THE CONTRACTING OFFICER AWARDED THE CONTRACT TO CATERPILLAR TRACTOR COMPANY, THE SECOND-LOW BIDDER, ON JUNE 19, 1972. THE DEPARTMENT FURTHER ADVISES THAT THE TRACTORS IN QUESTION WERE DELIVERED TO THE DEPARTMENT IN OCTOBER AND NOVEMBER 1972.

YOU MAINTAIN THAT THE "TOTAL BALANCED WEIGHT" OF YOUR TRACTOR AND RIPPER PROVIDES SUFFICIENT STRENGTH AND DURABILITY FOR THE EFFECTIVE OPERATION OF YOUR RIPPER, NOTWITHSTANDING THE 22 PERCENT DIFFERENCE BETWEEN THE WEIGHT OF YOUR RIPPER AND THE APPROXIMATE WEIGHT FOR SUCH ATTACHMENT SET FORTH IN THE IFB; THAT THE WIDTH OF YOUR RIPPER IS CONSISTENT WITH SPACING THREE RIPPER TEETH APPROXIMATELY 20 INCHES APART EVEN THOUGH SUCH WIDTH IS 26 PERCENT SHORTER THAN THE APPROXIMATE "TOTAL WIDTH" OF THE RIPPER SET FOTH IN THE IFB; THAT THE TOOTH SPACING OF YOUR RIPPER IS ADJUSTABLE IN THE SAME MANNER THAT CATERPILLAR'S SPACING IS ADJUSTABLE; AND THAT ONLY CATERPILLAR'S BID COULD BE CONSIDERED RESPONSIVE UNDER THE DEPARTMENT'S INTERPRETATION OF THE APPROXIMATE SPECIFICATIONS. IN VIEW THEREOF, YOU REQUEST THAT CATERPILLAR'S CONTRACT BE CANCELED, AND THE REQUIREMENT AWARDED TO YOU.

IN REPLY, THE CONTRACTING OFFICER INSISTS THAT THE WEIGHT OF THE RIPPER IS A SIGNIFICANT FACTOR IN DETERMINING THE RUGGEDNESS, STRENGTH, AND DURABILITY OF THE RIPPER, CONTRARY TO YOUR ALLEGATION THAT THE "TOTAL BALANCED WEIGHT" OF THE TRACTOR AND RIPPER IS MORE IMPORTANT. HE ALSO PERSISTS IN HIS VIEW THAT YOUR RIPPER, WEIGHING 22 PERCENT LESS THAN THE APPROXIMATE WEIGHT FOR THE RIPPER SET FORTH IN THE SPECIFICATIONS, CANNOT BE CONSIDERED TO APPROXIMATE THE SPECIFIED WEIGHT, AND THAT YOUR BID WAS THEREFORE PROPERLY REJECTED AS NONRESPONSIVE. THE CONTRACTING OFFICER RESPONDS TO YOUR COMMENTS OF OCTOBER 31 ON THE WEIGHT FACTOR, AS FOLLOWS:

INTERNATIONAL INDICATES THAT IT DOES RECOGNIZE THE FACTORS IN WHICH THE CO BASED THE REJECTION OF ITS OFFER. PARAGRAPH 2 OF THE SUPPLEMENTAL STATEMENT DISCUSSES THIS BY SHOWING HOW WEIGHT IS A SIGNIFICANT FACTOR IN EVALUATING THE RUGGEDNESS, STRENGTH, AND DURABILITY OF THIS TYPE OF RIPPER. INTERNATIONAL STATES, IN THE FIRST SENTENCE OF THE LAST PARAGRAPH ON PAGE 1 OF ITS LETTER OF AUGUST 24, "WITHIN A SPECIFIED TOLERANCE RANGE, WEIGHT IS A SIGNIFICANT FACTOR IN DESCRIBING RUGGEDNESS, STRENGTH, AND DURABILITY OF A HEAVY DUTY RIPPER." THAT WEIGHT IS A SIGNIFICANT FACTOR IS AN IMPORTANT PART OF THE CENTRAL ISSUE WHICH IHC AND THE CO SEEM TO BE ALMOST IN AGREEMENT. ON THIS BASIS, THE CO DETERMINED THAT IHC'S RIPPER WEIGHING 21.8 PERCENT LESS THAN THE APPROXIMATE WEIGHT REQUIRED IN THE SPECIFICATIONS REPRESENTED A SUBSTANTIAL DEFICIENCY IN RUGGEDNESS, STRENGTH, AND DURABILITY AND, THEREFORE, THE OFFER WAS DEFICIENT IN QUALITY OR QUANTITY. ON THIS BASIS THE BID WAS NOT RESPONSIVE AND COULD NOT BE ACCEPTED. THE CO ALSO STATED THAT HE USED WEBSTER'S DICTIONARY TO DEFINE "APPROXIMATE" AS "NEAR TO CORRECTNESS, NEARLY EXACT, VERY NEAR CLOSE OR CLOSE TOGETHER." IHC HAS NOT PROPOSED ANY OTHER DEFINITION TO PROVE THAT THE VARIATION IS WITHIN THIS DEFINITION.

AS POINTED OUT BY THE CONTRACTING OFFICER, YOU HAVE CITED NO AUTHORITY TO REFUTE THE ADMINISTRATIVE POSITION THAT THE WEIGHT OF YOUR PROPOSED RIPPER DOES NOT APPROXIMATE THE WEIGHT SHOWN IN THE IFB. ALSO, WE DO NOT FIND THAT YOU HAVE DEMONSTRATED THAT THE EXTRA WEIGHT DOES NOT HAVE A SIGNIFICANT RELATIONSHIP TO THE RUGGEDNESS, STRENGTH AND DURABILITY OF THE ITEM SOUGHT BY THE GOVERNMENT.

IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT AND DETERMINATIONS AS TO WHETHER THE BIDS RECEIVED ARE FACTUALLY RESPONSIVE TO SUCH SPECIFICATIONS ARE PRIMARILY THE RESPONSIBILITY OF THE PARTICULAR AGENCY INVOLVED. IN THE INSTANT CASE, IT APPEARS THAT THE DEPARTMENT OF THE INTERIOR HAS EXERCISED THAT RESPONSIBILITY BY THE PREPARATION OF SPECIFICATIONS WHICH INCLUDED AN APPROXIMATE OVERALL WEIGHT DESIGNED TO SECURE AN ITEM OF HEAVY-DUTY CONSTRUCTION THROUGHOUT TO WITHSTAND THE MOST SEVERE SERVICE. THE AGENCY HAS DETERMINED THAT THE ITEM WHICH YOU OFFERED DID NOT ADEQUATELY CONFORM TO THIS WEIGHT REQUIREMENT WHICH WAS CONSIDERED TO BE A MATERIAL FACTOR. SINCE THESE DECISIONS NECESSARILY REQUIRED THE EXERCISE OF INDIVIDUAL JUDGMENT BY THE CONTRACTING PERSONNEL, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY UNLESS IT IS CLEARLY SHOWN TO BE ARBITRARY, CAPRICIOUS OR NOT BASED ON SUBSTANTIAL EVIDENCE. WE DO NOT BELIEVE THAT THE RECORD WOULD SUPPORT A FINDING THAT ANY OF THESE CONDITIONS WERE INVOLVED IN THE ADMINISTRATIVE DETERMINATIONS CONCERNED. IN THIS CONNECTION, THE COURTS HAVE HELD THAT WHEN IT IS ALLEGED THAT AGENCY ACTIONS WERE ARBITRARY OR CAPRICIOUS, THE PROTESTER MUST MEET A HIGH STANDARD OF PROOF BY SHOWING THAT SUCH ARBITRARY OR CAPRICIOUS ACTION AS ALLEGED DID IN FACT EXIST. KEKO INDUSTRIES, INC. V. UNITED STATES, 192 CT. CL. 773, 784(1970).

IN VIEW OF THE FOREGOING WE MUST AGREE WITH THE AGENCY'S ACTION IN REJECTING YOUR BID FOR THE WEIGHT DEFICIENCY OF THE ITEM OFFERED. FOLLOWS THAT YOUR CONTENTIONS AS TO THE RESPONSIVENESS OF YOUR BID IN OTHER AREAS MUST BE CONSIDERED ACADEMIC.

WITH RESPECT TO YOUR SUGGESTION THAT ONLY CATERPILLAR'S BID COULD BE CONSIDERED RESPONSIVE UNDER THE DEPARTMENT'S INTERPRETATION OF THE RIPPER SPECIFICATIONS, AS INDICATED ABOVE, THE RECORD DOES NOT PROVIDE A CLEAR BASIS ON WHICH THIS OFFICE MAY OBJECT TO THE AGENCY'S INTERPRETATION AND APPLICATION OF THE SPECIFICATION'S APPROXIMATE DIMENSIONS TO THE BIDS RECEIVED. IN LIGHT OF THE SUBSTANTIAL DIFFERENCES BETWEEN THE SPECIFICATIONS FOR YOUR ITEM AND THE SPECIFICATIONS IN THE IFB, IT IS OUR VIEW THAT THE DIFFERENCES WERE SUCH AS TO CREATE SUFFICIENT DOUBT OF THE ACCEPTABILITY OF THE PROPOSED ITEM FOR A PRUDENT BIDDER TO HAVE CONTACTED THE PROCURING ACTIVITY AND OBTAINED A RESOLUTION REGARDING THE ITEM'S ACCEPTABILITY, AND WHETHER THE IFB SPECIFICATIONS WERE UNDULY RESTRICTIVE OF COMPETITION, PRIOR TO THE SUBMISSION OF HIS BID. IN THIS CONNECTION, SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, AS SET FORTH IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, REQUIRES THAT PROTESTS AGAINST ALLEGED IMPROPRIETIES IN AN INVITATION FOR BIDS WHICH ARE APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO BID OPENING FOR CONSIDERATION BY THIS OFFICE.

REGARDING YOUR CONTENTION THAT THE IFB SHOULD HAVE CONTAINED MINIMUM REQUIREMENTS, INSTEAD OF APPROXIMATE REQUIREMENTS, IN ORDER TO INSURE EQUAL BIDDING, SINCE THIS PROVISION WAS APPARENT AT THE TIME OF THE ISSUANCE OF THE IFB AND YOU DID NOT COMPLAIN ABOUT THE MATTER UNTIL AFTER THE CONTRACT WAS AWARDED, THIS ASPECT OF YOUR PROTEST MUST ALSO BE CONSIDERED UNTIMELY UNDER THE ABOVE REGULATION. HOWEVER, WE HAVE BEEN ADVISED THAT THE BUREAU OF RECLAMATION HAS TAKEN APPROPRIATE STEPS WITH RESPECT TO THE USE OF "APPROXIMATE" TO ELIMINATE ITS USE WHENEVER PRACTICABLE IN FUTURE PROCUREMENTS.

FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST MUST BE DENIED.