B-152934, FEBRUARY 10, 1964, 43 COMP. GEN. 544

B-152934, FEBRUARY 10, 1964, 43 COMP. GEN. 544

CONTRACTS - SPECIFICATIONS - DEVIATIONS - PERMITTED UNDER INVITATION AN INVITATION PROVIDING THAT BIDDERS EXPLAIN ANY NONCOMPLIANCE WITH THE ADVERTISED SPECIFICATIONS, WHERE BOTH THE LOW AND THE SECOND LOW BIDDER DEVIATED FROM THE SPECIFICATIONS, BUT AWARD WAS MADE TO THE SECOND LOW BIDDER ON THE BASIS THAT THE NONRESPONSIVENESS OF HIS BID WAS UNIMPORTANT, DID NOT PERMIT FULL AND FREE COMPETITION, AND THE AWARD VIOLATING 41 U.S.C. 253 SHOULD BE CANCELED AND THE PROCUREMENT READVERTISED ON THE BASIS OF THE GOVERNMENT'S MINIMUM NEEDS, THE INVITATION NOT BEING SUFFICIENTLY DEFINITE TO ALLOW THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS AS REQUIRED BY 41 U.S.C. 253, AND THE PROCEDURE IN EFFECT PERMITTING BIDDERS TO DRAFT SPECIFICATIONS FOR THE SELECTION OF THE CONTRACTING OFFICER WITHOUT KNOWLEDGE OF HOW POINTS OF NONCOMPLIANCE WOULD BE EVALUATED, OR WHETHER PARTICULAR DEVIATIONS WOULD RESULT IN BID REJECTION, NEITHER BIDDER WAS AWARE OF THE RELATIVE IMPORTANCE OF THE SPECIFICATIONS, AND READVERTISING THE PROCUREMENT WILL PERMIT COMPETITION ON AN EQUAL BASIS.

TO THE SECRETARY OF THE INTERIOR, FEBRUARY 10, 1964:

WE HAVE CONSIDERED THE PROTEST OF C AND M INDUSTRIAL ASSOCIATES, INC., AGAINST THE REJECTION OF THE LOW BID SUBMITTED BY THE PETTIBONE NEW YORK DIVISION, PETTIBONE MULLIKEN CORPORATION, IN RESPONSE TO INVITATION FOR BIDS NO. 887, ISSUED ON OCTOBER 15, 1963, BY THE NATIONAL PARK SERVICE, GRAND TETON NATIONAL PARK, FOR THE PROCUREMENT OF ONE MOTOR GRADER. UPON REVIEW OF THE ADMINISTRATIVE REPORT AND ACCOMPANYING PAPERS INFORMALLY FURNISHED TO OUR OFFICE, WE ARE OF THE OPINION THAT THE AWARD MADE TO THE MOSS EQUIPMENT AND SUPPLY CO. WAS IMPROPER UNDER THE CIRCUMSTANCES.

THE INVITATION REQUESTED BIDS ON ONE MOTOR GRADER "ALL-WHEEL DRIVE, ALL- WHEEL STEER, NON-LEANING FRONT WHEELS, DIESEL ENGINE DRIVEN, 125 BHP, 13 FT. MOLDBOARD; * * * STANDARD GEAR RATIO, IN ACCORDANCE WITH THE GENERAL PROVISIONS AND SPECIFICATIONS CONTAINED HEREIN, * * *.' TWO BIDS WERE RECEIVED AND OPENED ON NOVEMBER 1, 1963. MOSS EQUIPMENT AND SUPPLY CO. OFFERED AN AUSTIN-WESTERN PACER "300" FOR A NET PRICE OF $18,350, AND PETTIBONE OFFERED ITS PETTIBONE MULLIKEN 502-C FOR A NET PRICE OF $18,220. HOWEVER, THE BID OF PETTIBONE WAS ADMINISTRATIVELY DETERMINED TO BE NONRESPONSIVE TO THE SPECIFICATIONS FOR THE FOLLOWING REASONS:

1. THE DIESEL ENGINE OFFERED WAS TWO CYCLE RATHER THAN FOUR CYCLE AS SPECIFIED;

2. THE TRANSMISSION OFFERED WAS FIVE FORWARD SPEEDS RATHER THAN SIX FORWARD SPEEDS AS SPECIFIED; AND

3. THE OPERABLE RANGE OF THE MOLDBOARD WAS 180 DEGREES RATHER THAN 360 DEGREES AS SPECIFIED.

AWARD WAS MADE TO MOSS ON NOVEMBER 7, 1963. THE STATEMENT AND CERTIFICATE OF AWARD JUSTIFIED THE AWARD AS FOLLOWS:

AWARD MADE TO BIDDER MEETING REQUIREMENT OF SPECIFICATIONS. THE SPECIFICATIONS RELATIVE TO HORSEPOWER AND WEIGHT ARE AMBIGUOUS AND ARE NOT ENFORCEABLE. THE EXCEPTIONS BY MOSS EQUIPMENT AND SUPPLY CO. ON THE TRANSMISSION, POWER CONTROL, AND REAR DRAWBAR ARE CONSIDERED UNIMPORTANT. THE EXCEPTION RELATING THE CAB HEATER IS IN EXCESS OF SPECIFICATIONS.

PAGE 9 OF THE INVITATION CONTAINED THE FOLLOWING:

EXCEPTIONS TO SPECIFICATIONS: IN THE EVENT THE EQUIPMENT OFFERED DOES NOT FULLY COMPLY WITH THE SPECIFICATION, THE BIDDER SHALL FURNISH, IN ADDITION TO QUESTIONNAIRE, A DEFINITE STATEMENT DESCRIBING EACH POINT OF NON- COMPLIANCE.

THERE FOLLOWED ON PAGE 10 OF THE INVITATION A QUESTIONNAIRE TO BE COMPLETED BY THE BIDDER AS TO THE MECHANICAL AND SERVICE DETAILS OF THE EQUIPMENT OFFERED.

MOSS IN ITS BID TOOK THE FOLLOWING EXCEPTIONS TO THE SPECIFICATIONS:

1. OFFERED A WEIGHT-HORSEPOWER RATIO OF 206:1 RATHER THAN 225:1 (PLUS OR MINUS 5 PERCENT) AS SPECIFIED;

2. OFFERED A 120 HORSEPOWER ENGINE RATHER THAN 125 AS SPECIFIED;

3. OFFERED A TRANSMISSION SPEED IN THE LOWEST GEAR RATIO OF 2.27 M.P.H. AND 19.69 M.P.H. IN HIGH GEAR RATHER THAN 1.25 M.P.H. AND 11 M.P.H. AS SPECIFIED, RESPECTIVELY;

4. OFFERED A "V" BELT TO POWER HYDRAULIC PUMP RATHER THAN A POWER TAKE- OFF FROM THE MAIN POWER UNIT AS SPECIFIED, AND;

5. OFFERED A REAR DRAWBAR OTHER THAN AS SPECIFIED.

HOWEVER, NOTWITHSTANDING THESE DEVIATIONS FROM THE ADVERTISED SPECIFICATIONS MOSS WAS CONSIDERED TO BE THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION.

IT IS WELL SETTLED THAT THE COMPETITIVE BIDDING STATUTE (41 U.S.C. 253) REQUIRES A BASIS FOR THE EXACT COMPARISON OF BIDS. TO PERMIT BIDDERS TO COMPETE ON EQUAL TERMS, THE INVITATION MUST BE SUFFICIENTLY DEFINITE TO ALLOW THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. OBVIOUSLY, BIDDERS CANNOT COMPETE ON AN EQUAL BASIS AS REQUIRED BY LAW UNLESS THEY KNOW IN ADVANCE THE BASIS UPON WHICH THEIR BIDS WILL BE EVALUATED. 36 COMP. GEN. 380; 37 ID. 479; 40 ID. 462; 10 MCQUILLIN ON MUNICIPAL CORPORATIONS, 3RD EDITION, SECTION 29.56; 38 OP.ATTY.GEN. 555. ALSO, WHERE AN INVITATION, IN EFFECT, PERMITS BIDDERS TO DRAFT THEIR OWN PLANS OR SPECIFICATIONS FROM WHICH CONTRACTING OFFICERS MAY SELECT THE ARTICLE CONSIDERED MOST PREFERABLE, WE HAVE HELD THAT SUCH PROCEDURE DOES NOT COMPLY WITH THE REQUIREMENTS OF COMPETITIVE BIDDING. 11 COMP. GEN. 220; 17 ID. 789; 37 ID. 479; WILMINGTON PARKING AUTHORITY V. RANKIN, 105 A.2D 614.

THE REQUIREMENT ON PAGE 9 OF THE INVITATION, QUOTED ABOVE, APPARENTLY WAS NEEDED BY THE PROCUREMENT OFFICE TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER EQUIPMENT OFFERED MET THE SPECIFICATIONS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH. HOWEVER, BIDDERS WERE NOT ADVISED OF THE "BASIS" UPON WHICH THEIR POINTS OF NONCOMPLIANCE WOULD BE EVALUATED OR WHETHER PARTICULAR DEVIATIONS FROM CERTAIN SPECIFICATION REQUIREMENTS WOULD RESULT IN THE REJECTION OF THEIR BIDS AS NONRESPONSIVE. IN 36 COMP. GEN. 380, 385, WE HELD:

THE "BASIS" OF EVALUATION WHICH MUST BE MADE KNOWN IN ADVANCE TO THE BIDDERS SHOULD BE AS CLEAR, PRECISE AND EXACT AS POSSIBLE. IDEALLY, IT SHOULD BE CAPABLE OF BEING STATED AS A MATHEMATICAL EQUATION. IN MANY CASES, HOWEVER, THAT IS NOT POSSIBLE. AT THE MINIMUM, THE "BASIS" MUST BE STATED WITH SUFFICIENT CLARITY AND EXACTNESS TO INFORM EACH BIDDER PRIOR TO BID OPENING, NO MATTER HOW VARIED THE ACCEPTABLE RESPONSES, OF OBJECTIVELY DETERMINABLE FACTORS FROM WHICH THE BIDDER MAY ESTIMATE WITHIN REASONABLE LIMITS THE EFFECT OF THE APPLICATION OF SUCH EVALUATION FACTOR ON HIS BID IN RELATION TO OTHER POSSIBLE BIDS. BY THE TERM "OBJECTIVELY DETERMINABLE FACTORS" WE MEAN FACTORS WHICH ARE MADE KNOWN TO OR WHICH CAN BE ASCERTAINED BY THE BIDDER AT THE TIME HIS BID IS BEING PREPARED. FACTORS WHICH ARE BASED ENTIRELY OR LARGELY ONA SUBJECTIVE DETERMINATION TO BE ANNOUNCED BY REPRESENTATIVES OF THE CONTRACTING AGENCY AT THE TIME OF OR SUBSEQUENT TO THE OPENING OF BIDS VIOLATE THE PRINCIPLE FOR THE REASON THAT THEY ARE NOT DETERMINABLE BY THE BIDDER AT THE TIME HIS BID IS BEING PREPARED.

ESSENTIALLY, UNDER THE SUBJECT INVITATION, EACH BIDDER WAS ALLOWED TO BID ON THE BASIS OF THE PARTICULAR FEATURES OF HIS OWN EQUIPMENT RATHER THAN IN STRICT COMPLIANCE WITH THE SPECIFICATIONS. THE EXCEPTIONS TAKEN BY MOSS TO THE ADVERTISED SPECIFICATIONS WERE DETERMINED TO BE IMPORTANT," AND THOSE TAKEN BY PETTIBONE WERE DETERMINED TO BE MATERIAL DEVIATIONS FROM THE SPECIFICATIONS, BUT NEITHER BIDDER WAS MADE AWARE OF THE RELATIVE IMPORTANCE OF THE VARIOUS SPECIFICATION REQUIREMENTS BY THE TERMS OF THE INVITATION. HENCE, IT WAS NOT POSSIBLE FOR BIDDERS TO INTELLIGENTLY RESPOND TO THE INVITATION BY SUBMITTING BIDS ENTIRELY RESPONSIVE TO THE ADVERTISED NEEDS OF THE GOVERNMENT.

THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THOSE NEEDS CAN BE MET BY A GIVEN PRODUCT ARE PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. 38 COMP. GEN. 190. HOWEVER, PURCHASES SUCH AS THIS, PURSUANT TO 41 U.S.C. 253, MUST BE ADVERTISED UNDER CONDITIONS WHICH PERMIT FULL AND FREE COMPETITION CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY. THE FULL AND FREE COMPETITION REQUIRED CANNOT BE OBTAINED UNLESS THE INVITATION AND THE SPECIFICATIONS ARE SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. 36 COMP. GEN. 380. IF BIDDERS ARE INVITED TO OFFER EQUIPMENT VARYING FROM THE SPECIFICATIONS TO SOME UNDEFINED EXTENT, THE BIDDERS MAY LOOSELY BE SAID TO BE IN A POSITION OF EQUALITY IN THAT EACH MAY OFFER WHAT HE CHOOSES, BUT THERE IS TOTALLY LACKING ANY BASIS FOR BIDDERS TO KNOW WHAT THEY ARE BIDDING FOR OR AGAINST.

WE HAVE BEEN INFORMALLY ADVISED BY MR. CHARLES H. YOUNG OF THE NATIONAL PARK SERVICE THAT A STOP ORDER HAS BEEN ISSUED TO MOSS AND THAT THE STOP ORDER HAS BEEN EXTENDED INDEFINITELY. IN VIEW THEREOF, AND SINCE WE CONCLUDE THAT THE AWARD MADE TO MOSS WAS IN VIOLATION OF 41 U.S.C. 253, SUCH AWARD SHOULD BE CANCELED AND THE PROCUREMENT READVERTISED UNDER DEFINITE SPECIFICATIONS WHICH WILL PARTICULARLY SET FORTH THE MINIMUM NEEDS OF THE GOVERNMENT AND WHICH WILL ALLOW ALL INTERESTED BIDDERS TO COMPETE EQUALLY.