B-157295, MAR. 23, 1966

B-157295, MAR. 23, 1966

TO CATERPILLAR TRACTOR CO.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19, 1965, REQUESTING THAT OUR OFFICE NOT ALLOW THE CANCELLATION OF THE CONTRACT AWARDED TO YOUR COMPANY ON JUNE 28, 1965, FOR TWO SCOOP LOADERS UNDER INVITATION FOR BIDS AIII 38- 042-65-67.

THE INVITATION FOR BIDS, AS AMENDED, SOLICITED PRICES FOR THE TWO ARTICLES DESCRIBED AS OLLOWS:

"LOADER, SCOOP TYPE: DIESEL ENGINE, 4 WHEELS, HYDRAULIC FRONT LOADING, VERTICAL LIFT, FRONT DUMP 2-1/2 CU.YD.MIN. MULTI SEGMENT BUCKET. USED AS BULLDOZER, BULLCLAM, SKID SHOVEL AND CLAMSHELL, MIN. WEIGHT OF MACHINE 30,000 LBS. TIRE SIZE 20.5 BY 25, 12 PLY, CLARK MODEL 125, SERIES 2: CATERPILLAR MODEL 966, SERIES B, OR EQUAL.'

YALE AND TOWNE, INC., WAS THE LOW BIDDER ON THE PROCUREMENT. IT OFFERED ITS TROJAN MODEL 254 AS AN EQUAL PRODUCT. HOWEVER, THE YALE AND TOWNE BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE CERTAIN PHYSICAL CHARACTERISTICS OF MODEL 254 WERE EVALUATED AS NOT EQUAL TO THOSE OF THE MODELS NAMED IN THE PURCHASE DESCRIPTION. THEREFORE, THE AWARD WAS MADE TO YOUR COMPANY AS THE NEXT LOWEST RESPONSIVE BIDDER. AFTER AWARD, YALE AND TOWNE PROTESTED THAT ITS EQUIPMENT WAS COMPARABLE AND ON JULY 8, 1965, A STOPWORK ORDER WAS ISSUED.

BY LETTER OF SEPTEMBER 30, 1965, THE DIRECTOR OF PROCUREMENT, OFFICE OF THE ASSISTANT SECRETARY OF THE ARMY, ADVISED OUR OFFICE THAT THE SCOOP LOADERS OFFERED BY YALE AND TOWNE WERE DETERMINED TO BE FULLY RESPONSIVE TO THE SPECIFICATIONS CITED IN THE INVITATION FOR BIDS AND RECOMMENDED THAT THE YALE AND TOWNE PROTEST BE UPHELD AND THAT THE AWARD TO YOUR COMPANY BE CANCELED.

OUR OFFICE INFORMALLY ADVISED YOUR LOCAL REPRESENTATIVE OF THE FOREGOING RECOMMENDATION. YOU PROMPTLY RESPONDED IN LETTER OF OCTOBER 19, 1965, THAT THE YALE AND TOWNE MODEL 304 WAS MORE NEARLY IN LINE WITH THE MODELS SPECIFIED IN THE INVITATION FOR BIDS AND YOU POINTED TO CHARACTERISTICS IN THE MODEL 254 WHICH YOU INDICATED YOU DID NOT BELIEVE WERE COMPARABLE TO CHARACTERISTICS IN THE MODELS NAMED IN THE INVITATION.

YOUR COMMENTS WERE FORWARDED TO THE DIRECTOR OF PROCUREMENT FOR APPROPRIATE CONSIDERATION. THE REPORT FURNISHED BY HIM RECENTLY CORROBORATES YOUR VIEW. HOWEVER, BECAUSE THE PURCHASE DESCRIPTION IN THE INVITATION FOR BIDS DID NOT LIST ALL THE SALIENT AND ESSENTIAL CHARACTERISTICS REQUIRED TO BE MET BY THE EQUIPMENT, INCLUDING THE STATIC LIFTING CAPACITY AND MAXIMUM ENGINE HORSEPOWER, IT IS PROPOSED THAT THE CONTRACT WITH YOUR COMPANY BE TERMINATED AND THAT A NEW INVITATION BE ISSUED LISTING ALL OF THE SALIENT FEATURES AND PERFORMANCE CHARACTERISTICS WHICH ARE IMPORTANT FOR EVALUATION.

SUCH ACTION WOULD BE CONSONANT WITH OUR DECISION B-157857 OF JANUARY 26, 1966. IN THAT CASE THERE WAS CONSIDERED A BRAND NAME OR EQUAL PURCHASE DESCRIPTION WHICH DID NOT INCLUDE ALL THE CHARACTERISTICS OF THE BRAND NAME ITEM WHICH WERE CONSIDERED ESSENTIAL TO THE GOVERNMENT'S NEEDS. THE DECISION HELD THAT THE INVITATION SHOULD HAVE LISTED ALL THE "ESSENTIAL REQUIREMENTS.' THE DECISION STATED:

"* * * BIDDERS OFFERING "EQUAL" PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEM. UNDER THE REGULATIONS THEY ARE ENTITLED TO BE ADVISED IN THE INVITATION OF THE PARTICULAR FEATURES OR CHARACTERISTICS OF THE REFERENCED ITEM WHICH THEY ARE REQUIRED TO MEET. AN INVITATION WHICH FAILS TO LIST ALL THE CHARACTERISTICS DEEMED ESSENTIAL, OR LISTS CHARACTERISTICS WHICH ARE NOT ESSENTIAL, IS DEFECTIVE. 41 COMP. GEN. 242, 250-51; B-154611, AUGUST 28, 1964. SEE, ALSO, 38 COMP. GEN. 345 AND B-157081, OCTOBER 18, 1965.'

THE DECISION CONCLUDED THAT SINCE A STOPWORK ORDER HAD BEEN ISSUED AND THE INVITATION WAS DEFECTIVE, THE AWARD MADE TO THE BRAND NAME COMPANY, RATHER THAN TO AN "OR EQUAL" BIDDER WHOSE EQUIPMENT DID NOT MEET ALL THE CHARACTERISTICS OF THE BRAND NAME ARTICLE, SHOULD BE CANCELED AND THE REQUIREMENT READVERTISED UNDER A SPECIFICATION WHICH FULLY ADVISES ALL BIDDERS OF ALL THE ESSENTIAL REQUIREMENTS OF THE ITEM.

IN VIEW THEREOF, OUR OFFICE CONCURS IN THE ADMINISTRATIVE RECOMMENDATION. ACCORDINGLY, THE REQUEST THAT THE CONTRACT AWARDED TO YOUR COMPANY NOT BE CANCELED IS DENIED.