B-182833, MAR 18, 1975

B-182833: Mar 18, 1975

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WHICH WAS THE SUBJECT OF THE AWARDED CONTRACT. SCOPE: THIS SPECIFICATION IS INTENDED TO DESCRIBE A HYDRAULIC FORKLIFT TRACTOR. THE MODEL AND MANUFACTURER CITED IS MERELY FOR INFORMATION ONLY AND IS NOT INTENDED TO BE RESTRICTIVE. THE DIMENSIONS CITED IN THIS SPECIFICATION ARE THE MINIMUM REQUIREMENTS UNLESS OTHERWISE SPECIFIED. "1-1. AWARD UNDER THE SOLICITATION WAS MADE TO KOEHRING ON MARCH 15. DELIVERY WAS TO BE MADE WITHIN 90 DAYS AFTER RECEIPT BY THE CONTRACTOR OF A WRITTEN AWARD. ON JUNE 18 KOEHRING ADVISED THAT DELIVERY WOULD BE DELAYED BECAUSE OF SHORTAGES OF GASOLINE ENGINES CAUSED BY A STRIKE AT THE FACTORY WHERE THEY WERE MANUFACTURED. IT WAS ADVISED. SHIPMENT WAS FINALLY MADE ON AUGUST 21.

B-182833, MAR 18, 1975

WHERE INVITATION CLEARLY CALLED FOR FORKS TO BE SUPPLIED WITH FORKLIFT AND WHERE NOTHING ON FACE OF SOLE BID EITHER ACTUALLY OR CONSTRUCTIVELY PLACED CONTRACTING OFFICER ON NOTICE AS TO POSSIBLE ERROR IN BID, CLAIM FOR PAYMENT ABOVE CONTRACT PRICE FOR FORKS MUST BE DENIED.

KOEHRING, PCM DIVISION:

KOEHRING, PCM DIVISION, REQUESTS AN UPWARD PRICE ADJUSTMENT OF $720 IN ITS CONTRACT AWARDED UNDER SOLICITATION NO. 610-24-74 BY THE VETERANS ADMINISTRATION HOSPITAL IN MARION, INDIANA. THIS INCREASE IN PRICE WOULD CONSTITUTE THE COST OF THE FORKS DESIRED BY THE HOSPITAL FOR THE FORKLIFT, WHICH WAS THE SUBJECT OF THE AWARDED CONTRACT.

THE SOLICITATION REQUESTED BIDS ON A "HYDRAULIC FORKLIFT TRACTOR, AS PER ATTACHED SCHEDULE." THE SPECIFICATION STATED, IN PART, AS FOLLOWS:

"1. SCOPE:

THIS SPECIFICATION IS INTENDED TO DESCRIBE A HYDRAULIC FORKLIFT TRACTOR, GASOLINE DRIVEN ENGINE. THE MODEL AND MANUFACTURER CITED IS MERELY FOR INFORMATION ONLY AND IS NOT INTENDED TO BE RESTRICTIVE. THE DIMENSIONS CITED IN THIS SPECIFICATION ARE THE MINIMUM REQUIREMENTS UNLESS OTHERWISE SPECIFIED.

"1-1. GENERAL:

FORKLIFT TRACTOR, HYDRAULIC, GASOLINE ENGINE, 4 CYLINDER, NET FLYWHEEL HP (IEMC RATING), 71 HP GASOLINE UNITS. SHALL BE SKYTRACK HYDRAULIC FORKLIFT MODEL 4030, AS MANUFACTURED BY KOEHRING PCM DIVISION, PORT WASHINGTON, WI 53074 OR EQUAL:

LIFTING HEIGHT - 30'6"

OVERALL LENGTH - 16'5"

HEIGHT, BOOM LOWERED - 9'4"

WIDTH - 95-3/8"

WEIGHT (APPROX) - 16,000 LB.

WHEEL BASE - 96"

OUTSIDE TURNING RADIUS- 15'

STANDARD FORK LENGTH - 48"

BLOCKING FORK LENGTH - 48"

"3. OPTIONAL EQUIPMENT:

THE UNIT SHALL BE FURNISHED COMPLETE WITH THE FOLLOWING OPTIONAL EQUIPMENT.

"3-1 RUBBISH BASKET:

2 EACH, 1 CU. GALLON CAPACITY, WITH ADAPTERS FOR 48" FORKS."

AWARD UNDER THE SOLICITATION WAS MADE TO KOEHRING ON MARCH 15, 1974, AS THE SOLE BIDDER. DELIVERY WAS TO BE MADE WITHIN 90 DAYS AFTER RECEIPT BY THE CONTRACTOR OF A WRITTEN AWARD. ON JUNE 18 KOEHRING ADVISED THAT DELIVERY WOULD BE DELAYED BECAUSE OF SHORTAGES OF GASOLINE ENGINES CAUSED BY A STRIKE AT THE FACTORY WHERE THEY WERE MANUFACTURED. SHIPMENT, IT WAS ADVISED, WOULD BE MADE IN APPROXIMATELY 30 DAYS. ON JULY 18 KOEHRING ADVISED THAT SHIPMENT WOULD BE ON OR ABOUT JULY 26. SHIPMENT WAS FINALLY MADE ON AUGUST 21, 1974.

DURING THE JULY 18 CONVERSATION BETWEEN THE CONTRACTING ACTIVITY AND KOEHRING, THE LATTER ADVISED THAT THE SPECIFICATION INCLUDED IN THE SOLICITATION WAS IN ERROR INASMUCH AS THE STANDARD FORKS AND THE BLOCK FORKS WERE NOT SUPPLIED AS STANDARD EQUIPMENT BUT WERE INSTEAD TREATED AS OPTIONAL ACCESSORIES BY KOEHRING. IT IS THE POSITION OF KOEHRING IN SUPPORT OF ITS CLAIM THAT ITS MODEL 4030 SKYTRAK HYDRAULIC FORKLIFT TRACTOR, AS MANUFACTURED AND SOLD BY KOEHRING, DOES NOT INCLUDE FORKS. THIS FACT IS EMPHASIZED BY THE SUBMISSION OF ITS STANDARD PRICE LIST WHICH INDICATES THAT THE MODEL 4030 IS "FURNISHED LESS FORKS" AND THAT THE FORKS ARE INSTEAD TREATED AS OPTIONAL EQUIPMENT.

THE DESCRIPTIVE LITERATURE PUBLISHED BY KOEHRING, WHICH SETS FORTH THE SPECIFICATIONS FOR ITS MODELS 4030 AND 4030-4, STATES, IN PERTINENT PART, THE FOLLOWING:

"LIFTING HEIGHT: 30'-6"

LENGTH, OVERALL: 16'-5"

HEIGHT, BOOM LOWERED: 9'-4"

WIDTH: 95 3/8"

APPROX. WEIGHT: 16,000 LB. (4030)

17,200 LB. (4030-4)

WHEEL BASE: 96"

OUTSIDE TURNING RADIUS: 15 FT. (4030); 17 FT. (4030-4)

STD. FORK LENGTHS: 24", 36", 42", 48"

"BLOCKING FORK LENGTHS: 23", 48"

EMERGENCY BRAKE: NON-LOCKING HAND LEVER, AUTOMATICALLY DISENGAGES WHEN RELEASED.

STANDARD ACCESSORIES: HORN, SEAT BELTS, OPERATOR'S GUARD AND BRAKE LIGHTS.

OPTIONAL ACCESSORIES: REAR FENDERS, FRONT FENDERS, REVERSE ALARM, HEADLIGHTS, TAILLIGHTS AND TURN SIGNALS."

IT WAS FROM THIS INFORMATION THAT THE CONTRACTING ACTIVITY COMPOSED ITS SPECIFICATION FOR THE INSTANT PERFORMANCE.

IT WILL BE NOTED THAT THE LITERATURE PUBLISHED BY KOEHRING MAKES NO MENTION OF THE FORKS NOT BEING SUPPLIED WITH THE FORKLIFT. INDEED THE MODEL SPECIFICATION IN THE LITERATURE SETS FORTH CERTAIN (QUOTED ABOVE) OPTIONAL ACCESSORIES, WHICH A PURCHASER PRESUMABLY WOULD HAVE TO SPECIFICALLY REQUEST SHOULD ONE OR MORE BE DESIRED, BUT DOES NOT INCLUDE THE FORKS IN THIS CATEGORY. WHILE IT IS THE POSITION OF KOEHRING THAT "*** THE FORKS WHICH COME IN DIFFERENT SIZES AND THE CONCRETE HOPPER, RUBBISH BUCKET, AND CRANE HOOK MUST BE CONSIDERED OPTIONAL EQUIPMENT BECAUSE THEY ARE REMOVABLE AND INTERCHANGEABLE, ***," WE DO NOT FIND THAT POSITION TENABLE. THE KOEHRING LITERATURE CLEARLY STATES BOTH BY PICTURE AND RELEVANT TECHNICAL INFORMATION THE "ACCESSORIES FOR INCREASED VERSATILITY" FOR ITS TWO MODELS, NAMELY: THE CONCRETE HOPPER, THE RUBBISH BUCKET, AND THE CRANE HOOK. THE FORKS ARE NOT INCLUDED AS ACCESSORIES BUT ARE SET FORTH INSTEAD IN THE SPECIFICATION FOR THE MODEL 4030, AS QUOTED ABOVE. THESE THREE ACCESSORY ITEMS ARE NOT SET FORTH IN THAT SPECIFICATION. THUS, CONTRARY TO THE BELIEF OF KOEHRING, THE LITERATURE READ IN ITS ENTIRETY CAN BOTH EASILY AND REASONABLY BE SAID TO INDICATE THAT THE FORKS ARE FURNISHED AS STANDARD EQUIPMENT WITH THE FORKLIFT TRACTOR.

IN ANY EVENT, IF THE KOEHRING LITERATURE CAN BE CONSTRUED AS IT SUGGESTS, THE INVITATION DID NOT SIMPLY DUPLICATE THE KOEHRING SPECIFICATION AS REGARDS THE FORKS. WHEREAS THE KOEHRING SPECIFICATION SHOWS FOUR STANDARD FORK LENGTHS AND TWO BLOCKING FORK LENGTHS, THE INVITATION QUITE SPECIFICALLY INDICATED FOR BOTH FORKS THAT THE LENGTH DESIRED WAS THE 48- INCH LENGTH. WE SEE NO REASON FOR SPECIFICALLY INSERTING THIS INFORMATION IN THE SOLICITATION EXCEPT TO INDICATE TO THE BIDDER THAT BOTH FORKS WERE TO BE PROVIDED BY THE BIDDER.

BECAUSE OF THE FOREGOING AND BECAUSE THERE WAS ABSOLUTELY NOTHING ON THE FACE OF THE BID TO INDICATE A POSSIBLE ERROR, THE CONTRACTING OFFICER WAS NOT ON ACTUAL OR CONSTRUCTIVE NOTICE OF POSSIBLE ERROR, AND, CONSEQUENTLY, WE DO NOT BELIEVE THAT PAYMENT OF THE $720 CLAIM WOULD BE PROPER.