B-209096, B-209096.2, JUN 9, 1983

B-209096,B-209096.2: Jun 9, 1983

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IT IS UNNECESSARY FOR GAO TO CONSIDER WHETHER PROTEST COMPLIED WITH THE BID PROTEST PROCEDURES. 2. THE RELATIONSHIP BETWEEN THE LITERATURE AND THE BID IS SUFFICIENT SO THAT THE LITERATURE OF THE LOW BIDDER. WHERE A BID IS SUBJECT TO TWO REASONABLE INTERPRETATIONS. UNDER ONE OF WHICH IT IS NONRESPONSIVE. THE BID IS NONRESPONSIVE. 5. CONTRACTING OFFICER'S DETERMINATION CONCERNING PRICE REASONABLENESS IS A MATTER OF ADMINISTRATIVE DISCRETION WHICH GAO WILL NOT QUESTION UNLESS THE DETERMINATION IS UNREASONABLE. THE FOLLOWING COMPANIES WERE THE THREE LOWEST BIDDERS UNDER THE IFB: 1. BY INFORMATION ON THE COMPANY'S LETTERHEAD WHICH WAS ATTACHED TO ITS BID. TIMELINESS ESSEX CONTENDS THAT INTROL'S ALLEGATIONS CONCERNING THE RESPONSIVENESS OF ESSEX'S BID ARE UNTIMELY FILED.

B-209096, B-209096.2, JUN 9, 1983

DIGEST: 1. WHERE AGENCY ACKNOWLEDGES ALL THE FACTS NECESSARY TO ESTABLISH THE VALIDITY OF A PROTEST AND PROPOSES TO TAKE CORRECTIVE ACTION, IT IS UNNECESSARY FOR GAO TO CONSIDER WHETHER PROTEST COMPLIED WITH THE BID PROTEST PROCEDURES. 2. WHERE DESCRIPTIVE LITERATURE FURNISHED FOR INFORMATIONAL PURPOSES ONLY DESCRIBES THE SAME MODEL OFFERED IN THE BID, THE RELATIONSHIP BETWEEN THE LITERATURE AND THE BID IS SUFFICIENT SO THAT THE LITERATURE OF THE LOW BIDDER, WHICH DESCRIBES NONCOMFORMING EQUIPMENT, MAY NOT BE DISREGARDED BY THE CONTRACTING AGENCY. 3. AGENCY'S DETERMINATION WHETHER THE PRODUCT OFFERED BY THE BIDDER MEETS THE SPECIFICATIONS MUST BE BASED ON THE DATA SUBMITTED WITH THE BID. 4. WHERE A BID IS SUBJECT TO TWO REASONABLE INTERPRETATIONS, UNDER ONE OF WHICH IT IS NONRESPONSIVE, THE BID IS NONRESPONSIVE. 5. CONTRACTING OFFICER'S DETERMINATION CONCERNING PRICE REASONABLENESS IS A MATTER OF ADMINISTRATIVE DISCRETION WHICH GAO WILL NOT QUESTION UNLESS THE DETERMINATION IS UNREASONABLE.

INTROL CORP.; FORSTER ENTERPRISES:

INTROL CORP. (INTROL) PROTESTS THE RESPONSIVENESS OF THE BIDS OF FORSTER ENTERPRISES (FORSTER) AND ESSEX ELECTRO ENGINEERS, INC. (ESSEX), UNDER INVITATION FOR BIDS (IFB) DTFA-02-82-B-00663 ISSUED BY THE FEDERAL AVIATION ADMINISTRATION (FAA) FOR ENGINE GENERATOR SETS.

SUBSEQUENT TO THE FILING OF INTROL'S PROTEST, FORSTER, THE LOW BIDDER, FILED A PROTEST AGAINST AN AWARD TO ANY BIDDER OTHER THAN FORSTER.

INTROL CONTENDS THAT BOTH FORSTER AND ESSEX QUALIFIED THEIR BIDS BY PROVIDING DESCRIPTIVE DATA WITH THEIR BIDS THAT SHOWED NONCOMPLIANCE WITH THE IFB'S TECHNICAL SPECIFICATIONS. INTROL ALSO CHARGES THAT ESSEX IMPROPERLY MODIFIED ITS BID AFTER BID OPENING AND SUBMITTED A LATE BID.

FOR THE REASONS SET FORTH BELOW, WE SUSTAIN INTROL'S PROTEST AND DENY FORSTER'S PROTEST.

THE FOLLOWING COMPANIES WERE THE THREE LOWEST BIDDERS UNDER THE IFB:

1. FORSTER $777,746 2. ESSEX 845,560 3. INTROL 969,325

THE IFB REQUESTED DESCRIPTIVE LITERATURE ON THE BIDDERS' ENGINES AND GENERATORS "FOR INFORMATION PURPOSES ONLY" AND ALL THREE BIDDERS SUBMITTED SOME TYPE OF TECHNICAL DESCRIPTION WITH THEIR BIDS. FORSTER FURNISHED COMMERCIALLY PREPARED BROCHURES ON KATO AC GENERATORS AND THE CUMMINS DIESEL ENGINE, MODEL NT-855-G. ESSEX FURNISHED THE SAME KATO GENERATOR LITERATURE, AS WELL AS COMMERCIAL LITERATURE ON THE ALLIS CHALMERS TURBO CHARGED DIESEL, MODEL 6138T. INTROL FURNISHED INFORMATION ON THE COMPANY'S LETTERHEAD WHICH INDICATED THAT INTROL WOULD BE PROVIDING A GM 8V-71 SERIES ENGINE, 1,200 RPM, TO DRIVE A 125 KW GENERATOR IN ACCORDANCE WITH THE REQUIREMENTS OF THE IFB'S SPECIFICATIONS.

THE IFB ALSO PROVIDED THAT THE BIDDERS HAD TO SPECIFY THE MANUFACTURER AND MODEL NUMBER OF THE ENGINES AND GENERATORS THEY WOULD BE SUPPLYING. FORSTER'S BID SPECIFIED A CUMMINS ENGINE, MODEL NT-855 G, AND A KATO GENERATOR, MODEL 6P2-1600. ESSEX'S BID SPECIFIED AN ALLIS-CHALMERS ENGINE, MODEL 6138T, OR A CUMMINS ENGINE, MODEL NT-855 G. FOR THE GENERATOR, ESSEX ALSO SPECIFIED KATO'S 6P2-1600 MODEL. AS TO INTROL'S BID, THE COMPANY LISTED A GM 8V-71N "1200 RPM PER SPEC" ENGINE AND A KATO 6P2 "SERIES 125 KW GENERATOR." HOWEVER, BY INFORMATION ON THE COMPANY'S LETTERHEAD WHICH WAS ATTACHED TO ITS BID, INTROL INDICATED THAT THE GM 8V- 71N ENGINE SHOULD BE CHANGED TO THE GM 8V-71 "SERIES, 1200 RPM, PRODUCING HORSEPOWER TO DRIVE THE 125 KW GENERATOR."

TIMELINESS

ESSEX CONTENDS THAT INTROL'S ALLEGATIONS CONCERNING THE RESPONSIVENESS OF ESSEX'S BID ARE UNTIMELY FILED. ESSEX ASSERTS THAT INTROL'S ALLEGATIONS WERE NOT SET FORTH BY INTROL UNTIL FEBRUARY 9, 1983, WHEN INTROL SUBMITTED A DETAILED WRITTEN EXPLANATION AS TO WHY IT CONSIDERED ESSEX'S BID NONRESPONSIVE. IN VIEW OF THE FACT THAT INTROL'S ALLEGATIONS OF NONRESPONSIVENESS ARE BASED ON INFORMATION THAT BECAME KNOWN AT THE TIME OF BID OPENING, SEPTEMBER 9, 1982, ESSEX TAKES THE POSITION THAT INTROL'S FEBRUARY 9, 1983, SUBMISSION WAS AN UNTIMELY FILING ON THE MATTER.

WE FIND INTROL'S PROTEST TO BE TIMELY FILED. WHILE INTROL DID NOT PROVIDE A WRITTEN EXPLANATION AS TO WHY ESSEX'S AND FORSTER'S BIDS VIOLATED THE IFB'S SPECIFICATIONS, INTROL DID ASSERT BY MAILGRAM DATED SEPTEMBER 17, 1983, WHICH WAS RECEIVED BY THIS OFFICE ON THE SAME DATE, THAT "FORSTER ENTERPRISES AND ESSEX ELECTRO ENGINEERING INC. QUALIFIED THEIR BIDS BY PROPOSING ENGINES AND DATA IN VIOLATION OF THE IFB SPECIFICATIONS AND BID DOCUMENT REQUIREMENTS." MOREOVER, THE FAA'S NOVEMBER 1982 REPORT ON INTROL'S PROTEST NOTED THAT BOTH FORSTER AND ESSEX FURNISHED DESCRIPTIVE LITERATURE WITH THEIR BIDS, BUT, BECAUSE THE LITERATURE WAS REQUESTED FOR INFORMATION PURPOSES ONLY, FORSTER AND ESSEX COULD NOT BE DETERMINED NONRESPONSIVE ON THE BASIS OF SUCH LITERATURE.

IN ANY EVENT, THE FAA HAS NOW DETERMINED AFTER FURTHER ANALYSIS THAT THE ENGINES IDENTIFIED IN FORSTER'S AND ESSEX'S BIDS DO NOT MEET THE IFB SPECIFICATION REQUIREMENTS AND THAT THEIR BIDS ARE, THEREFORE, NONRESPONSIVE. WE HAVE HELD THAT WHERE THE CONTRACTING AGENCY HAS ACKNOWLEDGED ALL THE FACTS NECESSARY TO ESTABLISH THE VALIDITY OF A PROTESTER'S OBJECTIONS, THERE IS NO BAR TO A CONTRACTING AGENCY PROPOSING CORRECTIVE ACTION WHERE IT DEEMS THE CIRCUMSTANCES TO BE APPROPRIATE. INTERNATIONAL BUSINESS MACHINES CORPORATION, B-197188, OCTOBER 21, 1980, 80-2 CPD 302. CONSEQUENTLY, IT IS UNNECESSARY AT THIS POINT TO FURTHER DISCUSS ESSEX'S PROCEDURAL OBJECTIONS TO INTROL'S PROTEST. INTERNATIONAL BUSINESS MACHINES CORPORATION, SUPRA.

FORSTER'S BID

INTROL CONTENDS THAT FORSTER'S BID CONTAINS AN ENGINE MODEL THAT HAS A MINIMUM OPERATING SPEED GREATER THAN THAT SPECIFIED BY THE IFB. INTROL POINTS OUT THAT THE IFB'S TECHNICAL SPECIFICATIONS REQUIRED THE ENGINE TO BE SUPPLIED TO BE A "MANUFACTURER'S STANDARD FULL DIESEL DESIGN" WITH A "MAXIMUM SYNCHRONOUS SPEED" OF 1,200 RPM. INTROL ALLEGES THAT THE PERFORMANCE DATA IN FORSTER'S COMMERCIAL LITERATURE FOR THE CUMMINS ENGINE, MODEL NT-855-G, SHOWS, HOWEVER, THAT THE LOWEST OPERATING SPEED FOR THAT ENGINE IS 1,500 RPM. INTROL ALSO REFERS TO A LETTER IT HAS OBTAINED FROM A DISTRIBUTOR OF CUMMINS ENGINES IN WHICH THE DISTRIBUTOR STATES THAT IF THE CUMMINS STANDARD 855 TURBO MODEL IS RUN AT 1,200 RPM, THE ENGINE WILL SUFFER FROM REDUCED AIR INTAKE WITH THE EFFECT OF HAMPERING PERFORMANCE.

THE FAA STATES THAT FORSTER'S BID CLEARLY IDENTIFIED THE CUMMINS NT 855-G AS THE ENGINE FORSTER INTENDS TO FURNISH. THE FAA GOES ON TO STATE THAT THE DESCRIPTIVE LITERATURE SUBMITTED BY FORSTER WITH ITS BID INDICATED THAT THE CUMMINS ENGINE WOULD RUN AT 1,500 TO 1,800 RPM. ACCORDING TO THE FAA, FORSTER'S DESCRIPTIVE LITERATURE CONFLICTS WITH THE IFB'S REQUIREMENT THAT THE ENGINE OPERATE AT A SPEED NO GREATER THAN 1,200 RPM AND, THUS, RENDERS FORSTER'S BID NONRESPONSIVE.

FORSTER CONTENDS THAT ITS BID SHOWS THAT AN ENGINE GENERATOR SET WITH A MAXIMUM SYNCHRONOUS SPEED OF 1,200 RPM WOULD BE DELIVERED TO THE FAA. FORSTER ARGUES THAT THE CUMMINS COMMERCIAL LITERATURE IT PROVIDED WITH ITS BID SHOWED A 1,500- TO 1,800-RPM RANGE BECAUSE ELECTRIC POWER DIESEL ENGINES ARE GENERALLY RUN AT THOSE SPEEDS. FORSTER FURTHER ARGUES THAT THE ACTUAL SPEED AT WHICH THE COMPANY PROPOSED THE GENERATOR BE DRIVEN WAS SET FORTH IN THE COMMERCIAL LITERATURE FOR THE KATO 6P2-1600 GENERATOR - 1,200 RPM. IN THIS REGARD, FORSTER ALLEGES THE KATO GENERATOR LITERATURE SPECIFIED THAT THE GENERATOR HAD TO BE MATED WITH "ENGINES OF APPROPRIATE SPEED" AND, ACCORDING TO FORSTER, AN ENGINE OF APPROPRIATE SPEED MUST RUN AT 1,200 RPM. THUS, FORSTER TAKES THE POSITION THAT IT WAS COMMITTED BY ITS BID TO FURNISH A 1,200-RPM GENERATOR AND 1,200-RPM ENGINE.

GAO ANALYSIS

WE HAVE HELD THAT THE TEST TO BE APPLIED IN DETERMINING THE RESPONSIVENESS OF A BID IS WHETHER THE BID AS SUBMITTED IS AN OFFER TO PERFORM, WITHOUT EXCEPTION, THE EXACT TERMS AND SPECIFICATION OF THE SOLICITATION. SEE ABBOTT POWER CORPORATION, B-192792, APRIL 30, 1979, 79-1 CPD 295; 49 COMP.GEN. 553, 556 (1970). ALSO, WHEN APPLYING THIS TEST, THE DETERMINING FACTOR IS NOT WHETHER THE BIDDER INTENDS TO BE BOUND, BUT WHETHER THIS INTENTION IS APPARENT FROM THE BID AS SUBMITTED. RENOVATORS WEST, DIVISION OF WESTERN EMPIRE CONSTRUCTORS, INC., B-190427, JANUARY 17, 1978, 78-1 CPD 39.

FURTHERMORE, WHILE IT IS CLEAR FROM THE IFB THAT THE DESCRIPTIVE LITERATURE REQUESTED ON THE ENGINE AND GENERATORS BEING OFFERED WAS INFORMATIONAL IN NATURE, THE DESCRIPTIVE LITERATURE CANNOT BE DISREGARDED BY THE CONTRACTING AGENCY IN DETERMINING RESPONSIVENESS WHERE IT CONTAINS THE SAME MODEL NUMBER OR NAME AS THE ENGINE AND GENERATOR OFFERED IN THE BID. SEE LOGE/SPATIAL DATA SYSTEMS, INC., B-205016, MAY 17, 1982, 82-1 CPD 465. IN GENERAL, MATERIAL DEVIATIONS FROM SOLICITATION REQUIREMENTS CONTAINED IN DESCRIPTIVE LITERATURE SUBMITTED WITH A BID WILL RENDER THE BID NONRESPONSIVE. SEE IFR, INC., B-203391.4, APRIL 1, 1982, 82-1 CPD 292.

WITH REGARD TO WHAT FORSTER'S DESCRIPTIVE LITERATURE SHOWED, WE DISAGREE WITH FORSTER'S ASSERTION THAT THE CUMMINS NT-855-G MUST RUN AT 1,200 RPM BECAUSE THE KATO GENERATOR FORSTER PROPOSED CAN ONLY BE MATED WITH ENGINES OF APPROPRIATE SPEED. WHILE IT MAY BE TRUE, AS ALLEGED BY FORSTER, THAT THE KATO GENERATOR MUST BE MATCHED WITH AN ENGINE OF APPROPRIATE SPEED IN ORDER TO PROPERLY DRIVE THE GENERATOR, THERE IS NO INDICATION IN FORSTER'S COMMERCIAL LITERATURE FOR THE CUMMINS ENGINE THAT IT HAS A SPEED COMPATIBLE WITH THE KATO GENERATOR. FORSTER'S LITERATURE REVEALS THAT THE CUMMINS NT-855-G ENGINE HAS AN OPERATING RANGE BETWEEN 1,500 RPM AND 1,800 RPM ONLY. IN FACT, THE "PERFORMANCE CURVE" GRAPH IN THE LITERATURE FOR AC GENERATOR APPLICATION SHOWS AN ENGINE SPEED STARTING AT 1,500 RPM AND EXTENDING SLIGHTLY BEYOND 1,800 RPM. CONSEQUENTLY, WE FIND THAT THE CUMMINS ENGINE DESCRIBED IN FORSTER'S BID LITERATURE DOES NOT MEET THE IFB REQUIREMENT FOR AN ENGINE WITH A SYNCHRONOUS SPEED NOT GREATER THAN 1,200 RPM.

ESSEX'S BID

ESSEX ALSO LISTED THE CUMMINS NT-855-G IN ITS BID AS THE ENGINE IT WAS PROPOSING TO FURNISH THE GOVERNMENT. HOWEVER, ESSEX ARGUES THAT OUR OFFICE HAS REPEATEDLY HELD THAT A BID MAY BE RESPONSIVE DESPITE OFFERING AN ALTERNATIVE NOT PERMITTED OR REQUIRED BY THE SOLICITATION PROVIDED THE BIDDER SUBMITS A BID OFFERING AT LEAST ONE PRODUCT WHICH DOES MEET THE SOLICITATION'S SPECIFICATIONS. IN THIS REGARD, ESSEX POINTS OUT THAT IT ALSO OFFERED AN ALLIS-CHALMERS ENGINE, MODEL 6138T, WHICH ESSEX ALLEGES HAS BEEN OPERATED SATISFACTORILY FOR GENERATOR DRIVE PURPOSES AT A MAXIMUM SYNCHRONOUS SPEED OF 1,200 RPM. ESSEX FURTHER ALLEGES THAT ALLIS-CHALMERS HAS COMMERCIAL INFORMATION ON THE 1,200-RPM CONFIGURATION OF THE 6138T WHICH WAS AVAILABLE TO THE FAA BOTH PRIOR TO AND AFTER THE IFB'S BID OPENING DATE.

THE FAA STATES THAT ESSEX OFFERED IN ITS BID TO PROVIDE EITHER THE CUMMINS NT-855-G ENGINE OR THE ALLIS-CHALMERS 6138T ENGINE. IN THE FAA'S OPINION, ESSEX GAVE ITSELF THE OPTION OF PROVIDING EITHER ENGINE BY BIDDING IN THE ALTERNATIVE. THEREFORE, THE FAA TAKES THE POSITION THAT, SINCE THE CUMMINS ENGINE DOES NOT MEET THE IFB'S SPECIFICATIONS, ESSEX'S BID IS NONRESPONSIVE BECAUSE THE COMPANY HAS NOT OFFERED UNEQUIVOCALLY TO FURNISH AN ENGINE WHICH MEETS THE IFB'S REQUIREMENTS.

IN ADDITION, THE FAA STATES THAT THE DESCRIPTIVE LITERATURE WHICH ESSEX SUBMITTED ON THE ALLIS-CHALMERS 6138T ENGINE DID NOT SHOW THE SPEED AT WHICH THE ENGINE OPERATES. HOWEVER, THE AGENCY STATES THAT THE COMPLETE COMMERCIAL BROCHURE FOR THE 6138T ENGINE INDICATES THAT IT OPERATES AT 1,800 RPM. SINCE THIS SPEED EXCEEDS THE 1,200-RPM MAXIMUM PERMITTED BY THE IFB, THE FAA ASSERTS ESSEX'S BID MUST BE REJECTED AS NONRESPONSIVE ON THIS GROUND ALSO.

IN RESPONSE, ESSEX ASSERTS THAT IT OFFERED AN ENGINE IN ITS BID WHICH WAS TO BE MODIFIED IN SOME OF ITS DETAILS IN ORDER TO FULLY MEET THE "UNIQUE REQUIREMENTS" OF THE IFB. IN SUPPORT OF THIS ASSERTION, ESSEX HAS INTRODUCED A LETTER FROM ALLIS-CHALMERS WHICH STATES THAT WHEN THE 6138T ENGINE IS OPERATED AT 1,200 RPM FOR GENERATOR DRIVE, IT IS FITTED WITH A DIFFERENT TURBO CHARGER TO ACCOMMODATE THE REDUCED EXHAUST GAS FLOW AND IT IS FITTED WITH A DIFFERENT GEAR SET TO DRIVE A HYDRAULIC GOVERNOR AT THE SAME SPEED THE GOVERNOR WOULD BE DRIVEN AT 1,800 RPM. ACCORDING TO ESSEX, THESE MODIFICATIONS ARE "STANDARD" MODIFICATIONS TO A "STANDARD" ENGINE IN ALLIS-CHALMERS' REGULAR PRODUCT LINE.

GAO ANALYSIS

WE AGREE WITH THE FAA THAT THE ALLIS-CHALMERS 6138T ENGINE OFFERED BY ESSEX FAILS TO MEET THE IFB REQUIREMENT FOR AN ENGINE WITH A MAXIMUM SYNCHRONOUS SPEED OF 1,200 RPM. IT IS CLEAR FROM THE RECORD THAT THE 6138T ENGINE NORMALLY OPERATES AT A SPEED OF 1,800 RPM AND THAT IT CANNOT OPERATE AT 1,200 RPM WITHOUT SOME MODIFICATIONS. HOWEVER, WE CANNOT CONSIDER ESSEX'S EVIDENCE REGARDING THE ENGINE MODIFICATIONS BECAUSE A CONTRACTING AGENCY'S DETERMINATION WHETHER A PRODUCT OFFERED BY A BIDDER MEETS THE SOLICITATION SPECIFICATIONS MUST BE BASED ON THE DATA SUBMITTED WITH THE BID. LEKTRO INCORPORATED, B-202212, JUNE 15, 1981, 81-1 CPD 484. ON THE BASIS OF WHAT ESSEX SUBMITTED WITH ITS BID, WE MUST CONCLUDE THAT ESSEX'S BID WAS, AT BEST, AMBIGUOUS AS TO WHETHER THE ALLIS-CHALMERS 6138T ENGINE WOULD OPERATE AT A SPEED OF ONLY 1,200 RPM. WHERE, AS HERE, A BID IS SUBJECT TO TWO REASONABLE INTERPRETATIONS, UNDER ONE OF WHICH IT IS NONRESPONSIVE, THE BID IS CONSIDERED NONRESPONSIVE AND MUST BE REJECTED. DATA-CHRON, INC., B-196801, JULY 29, 1980, 80-2 CPD 78.

IN VIEW OF OUR FINDING THAT ESSEX'S ALTERNATIVE OFFER OF AN ALLIS CHALMERS 6138T ENGINE IS ALSO NONRESPONSIVE, WE NEED NOT ADDRESS ESSEX'S CONTENTION THAT A BID MAY BE RESPONSIVE IF A BIDDER OFFERS AT LEAST ONE ALTERNATE PRODUCT WHICH MEETS THE SOLICITATION'S SPECIFICATIONS. ADDITION, WE FIND IT UNNECESSARY TO DISCUSS INTROL'S CHARGES THAT ESSEX IMPROPERLY MODIFIED ITS BID AFTER BID OPENING AND SUBMITTED A LATE BID. INTROL'S BID

FORSTER ASSERTS THAT THE COMMERCIAL LITERATURE APPLICABLE TO INTROL'S PROPOSED ENGINE SHOWS THE ENGINE HAS THE SAME DEFECT THAT THE FAA FINDS IN THE BIDS OF FORSTER AND ESSEX. SPECIFICALLY, FORSTER ALLEGES THAT THE COMMERCIAL LITERATURE FOR INTROL'S GM-8V-71 SERIES ENGINE REVEALS PERFORMANCE INFORMATION FOR 1,500 RPM AND 1,800 RPM WITH NO PERFORMANCE INFORMATION AT 1,200 RPM. AS TO INTROL'S LISTING IN ITS BID OF "1200 RPM PER SPEC," FORSTER ARGUES THAT INTROL CANNOT CURE ITS NONCOMPLIANT BID BY MERELY PARROTING BACK THE WORDS OF THE IFB'S ENGINE SPECIFICATION.

ESSEX ASSERTS THAT INTROL'S BID DID NOT UNEQUIVOCALLY OFFER TO PROVIDE AN ENGINE WHICH MET THE IFB'S REQUIREMENTS. ACCORDING TO ESSEX, INTROL MADE AN AMBIGUOUS BID BY CALLING OUT ONLY A SERIES OF ENGINES AND GENERATORS, SOME OF WHICH ESSEX ALLEGES DID NOT CONFORM TO THE IFB'S SPECIFICATIONS. ESSEX EMPHASIZES THAT THE IFB REQUIRED THE BIDDER TO LIST THE MODEL NUMBER OF THE ENGINE AND GENERATOR THAT THE BIDDER PROPOSED TO FURNISH. ESSEX'S OPINION, INTROL DID NOT IDENTIFY THE SPECIFIC MODEL NUMBER FOR THE ENGINE AND GENERATOR THAT INTROL PROPOSED TO FURNISH. CONSEQUENTLY, ESSEX TAKES THE POSITION THAT INTROL'S BID IS NONRESPONSIVE TO THE IFB.

THE FAA ASSERTS THAT, WHILE INTROL ONLY INDICATED A SERIES NUMBER, INTROL'S BID UNEQUIVOCALLY OFFERED TO PROVIDE AN ENGINE AND A GENERATOR WHICH MET THE IFB'S REQUIREMENTS. THE FAA STATES MOST MANUFACTURERS OFFER A SERIES OF ENGINES OR GENERATORS WITH THE SAME GENERAL DESIGN AND NUMEROUS OPTIONS BECAUSE THE GENERAL DESIGN CAN BE MODIFIED IN ITS DETAILS TO MEET ANY UNIQUE REQUIREMENTS WHICH MIGHT BE IMPOSED BY A PURCHASER. THE FAA GOES ON TO ARGUE THAT THE FACT THAT THE ENGINE SERIES OFFERED BY INTROL CONTAINS ENGINES WHICH ARE MANUFACTURED TO RUN AT SPEEDS HIGHER THAN 1,200 RPM IS IRRELEVANT BECAUSE INTROL SPECIFICALLY OFFERED AN ENGINE WHICH RAN AT 1,200 RPM. THUS, THE FAA CONCLUDES THAT INTROL'S BID WAS RESPONSIVE TO THE RFP.

GAO ANALYSIS

WITH REGARD TO FORSTER'S ASSERTION THAT THE COMMERCIAL LITERATURE FOR INTROL'S GM 8V-71 SERIES ENGINE CONTAINS NO PERFORMANCE INFORMATION FOR ENGINE SPEEDS AT 1,200 RPM, WE FIND THAT THE COMMERCIAL LITERATURE WHICH FORSTER PROVIDES US TO SUPPORT THIS CONTENTION DOES NOT CONCLUSIVELY ESTABLISH THAT THIS ENGINE SERIES OPERATES ONLY AT 1,500 AND 1,800 RPM. THE LITERATURE STATES THAT GM ENGINES ARE USED IN OVER 10,000 APPLICATIONS AND ARE AVAILABLE IN FOUR ENGINE SERIES - 53, 71, 92 AND 149. THE 1,500 AND 1,800 RPM REFERENCED BY FORSTER PERTAINS TO DATA IN THE LITERATURE FOR "STANDBY ELECTRIC SET MODELS." OTHER PERFORMANCE DATA IN THE LITERATURE INDICATES THAT THE 8V-71 SERIES ENGINE OPERATES AT 1,200 RPM. FURTHER, WE NOTE THAT INTROL STATES THAT GM 8V-71T BROCHURE 3SA133 SHOWS ENGINE OPERATION AT 1,200 RPM. CONSEQUENTLY, FORSTER HAS NOT MET ITS BURDEN OF PROOF AS TO THE SPEED AT WHICH IT CLAIMS THE GM 8V-71 SERIES ENGINES OPERATE.

ESSEX, ON THE OTHER HAND, INDICATES THAT ONLY SOME OF THE ENGINES IN THE 8V-71 SERIES DO NOT CONFORM TO THE IFB'S REQUIREMENTS. WHAT ESSEX APPARENTLY OBJECTS TO IN INTROL'S BID IS THAT INTROL DID NOT SPECIFY AN EXACT MODEL WITHIN THE SERIES. WE THINK THAT ESSEX IS BEING OVERLY NARROW IN ITS INSISTENCE THAT INTROL HAD TO REFER TO A PARTICULAR MODEL IN THE GM 8V-71 SERIES IN ORDER TO BE RESPONSIVE. IN OUR OPINION, THE INTROL LISTING OF ONE SERIES OF GM'S FOUR SERIES OF DIESEL ENGINES, COUPLED WITH THE WORDS "1200 RPM PER SPEC," SHOWS THAT INTROL WAS OFFERING 1,200-RPM ENGINES WITHIN THAT SERIES WHICH COMPLY WITH THE IFB'S REQUIREMENTS.

WITH RESPECT TO THE GENERATOR LISTED IN INTROL'S BID, WE SEE NO BASIS FOR ESSEX'S OBJECTION TO INTROL'S OFFER OF A 6P2 SERIES KATO GENERATOR SINCE BOTH ESSEX AND FORSTER LISTED KATO 6P2-1600 GENERATORS IN THEIR RESPECTIVE BIDS.

PRICE REASONABLENESS

FORSTER CONTENDS THAT, IF WE FIND THAT INTROL'S BID WAS THE ONLY RESPONSIVE BID UNDER THE IFB, THE FAA WILL PAY NEARLY $200,000 MORE FOR AN AWARD TO INTROL THAN IT WOULD PAY FOR AN AWARD TO FORSTER FOR ESSENTIALLY THE SAME PRODUCT. ALSO, FORSTER CONTENDS THAT, WITH ONLY ONE RESPONSIVE BID, THERE IS INADEQUATE COMPETITION TO ASSURE A REASONABLE BID PRICE. FORSTER CLAIMS, THEN, THAT UNDER SUCH CIRCUMSTANCES, CANCELLATION SHOULD BE MANDATED IN ACCORDANCE WITH THE FEDERAL PROCUREMENT REGULATIONS (FPR).

THE AUTHORITY VESTED IN THE CONTRACTING OFFICER TO DECIDE WHETHER OR NOT TO CANCEL AN INVITATION AND READVERTISE IS EXTREMELY BROAD. FOWLER'S REFRIGERATION AND APPLIANCE, INC. - RECONSIDERATION, B-201389.2, MAY 11, 1981, 81-1 CPD 368. FPR SEC. 1-2.404-1(B)(7) (1964 ED., AMEND. 121) AUTHORIZES CANCELLATION FOR COMPELLING REASONS WHERE ALL OTHERWISE ACCEPTABLE BIDS RECEIVED ARE AT UNREASONABLE PRICES. WE HAVE STATED THAT A DETERMINATION CONCERNING PRICE REASONABLENESS IS A MATTER OF ADMINISTRATIVE DISCRETION WHICH OUR OFFICE WILL NOT QUESTION UNLESS THE DETERMINATION IS UNREASONABLE OR THERE IS A SHOWING OF BAD FAITH OR FRAUD. CULLIGAN INCORPORATED, CINCINNATI, OHIO - RECONSIDERATION, B-189307, NOVEMBER 7, 1977, 77-2 CPD 345.

HERE, WE CANNOT CONCLUDE THAT THE THIRD LOW BIDDER'S BID IS UNREASONABLY PRICED MERELY BECAUSE THE BIDS OF THE TWO LOW BIDDERS WERE DISQUALIFIED. FURTHER, CONTRARY TO FORSTER'S ASSERTIONS, INTROL WAS NOT THE ONLY OTHER BIDDER BESIDES FORSTER AND ESSEX. THE RECORD SHOWS THAT THERE WERE FIVE OTHER BIDDERS UNDER THE IFB WITH BIDS HIGHER THAN INTROL'S BID. FOUR OF THE HIGHER BIDDERS HAD BIDS OF OVER $100,000 MORE THAN INTROL. THEREFORE, WE FIND NOTHING IN THE RECORD TO SUPPORT FORSTER'S CONTENTION THAT INTROL'S BID PRICE IS UNREASONABLE.