B-128475, AUGUST 9, 1956, 36 COMP. GEN. 102

B-128475: Aug 9, 1956

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AT AN INCREASE IN PRICE SHOULD NOT HAVE HAD HIS BID REJECTED AS A QUALIFIED BID WHEN THE EQUIPMENT OFFERED MET THE ADVERTISED SPECIFICATIONS. 1956: REFERENCE IS MADE TO LETTER DATED JULY 24. THE RECORD SHOWS THAT 9 BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THAT THEY WERE PUBLICLY OPENED ON MAY 31. IT WAS DETERMINED THAT THE BID SUBMITTED BY THE CONSOLIDATED DIESEL ELECTRIC CORPORATION WAS THE LOWEST RECEIVED AND THAT THE BID SUBMITTED BY STEWART AND STEVENSON SERVICES WAS THE SECOND-LOWEST BID RECEIVED. WAS ENCLOSED WITH A COVERING LETTER WITH CONTAINED THE STATEMENT THAT: (2) WE PROPOSE FURNISHING THE BUDA MODEL 516 DIESEL ENGINE. THE OUTPUT OF THIS ENGINE WILL ADEQUATELY POWER THE 45 KW GENERATING UNITS UNDER ALL OPERATING CONDITIONS SPECIFIED IN THE INVITATION.

B-128475, AUGUST 9, 1956, 36 COMP. GEN. 102

BIDS - QUALIFIED - ALTERNATIVE PROPOSED IN BID TRANSMITTAL LETTER A LOW BIDDER WHO ACCOMPANIED HIS BID WITH A LETTER WHICH SPECIFIED A PARTICULAR MAKE AND MODEL ENGINE MEETING THE CONDITIONS IN THE INVITATION BUT WHICH OFFERED A LARGER ENGINE, IF REQUIRED, AT AN INCREASE IN PRICE SHOULD NOT HAVE HAD HIS BID REJECTED AS A QUALIFIED BID WHEN THE EQUIPMENT OFFERED MET THE ADVERTISED SPECIFICATIONS. BUT SEE 36 COMP. GEN. 193.

TO THE SECRETARY OF THE ARMY, AUGUST 9, 1956:

REFERENCE IS MADE TO LETTER DATED JULY 24, 1956, FROM MR. F. H. HIGGINS, ASSISTANT SECRETARY OF THE ARMY ( LOGISTICS), FURNISHING THE REPORT REQUESTED BY OUR LETTER OF JULY 11, 1956, CONCERNING THE PROTEST OF THE CONSOLIDATED DIESEL ELECTRIC CORPORATION AGAINST THE ACTION OF YOUR DEPARTMENT IN REFUSING TO AWARD A CONTRACT TO THAT CORPORATION PURSUANT TO INVITATION NO. DA-ENG-11-184-56-F-609 ISSUED BY THE CHICAGO PROCUREMENT OFFICE, CORPS OF ENGINEERS, U.S. ARMY.

THE INVITATION REQUESTED BIDS TO BE OPENED ON MAY 31, 1956, FOR FURNISHING 334 GENERATOR SETS, ELECTRIC, PORTABLE, DIESEL ENGINE DRIVEN, SKID MOUNTED, ALTERNATING CURRENT, 45 KW, 400 CYCLE, WINTERIZED, CONFORMING TO PURCHASE DESCRIPTION DATED FEBRUARY 29, 1956, AND AMENDMENT NO. 1, DATED MARCH 13, 1956, AND THE " EXCEPTIONS AND ADDITIONS" THERETO AS SET FORTH IN THE INVITATION.

THE SPECIFICATIONS PROVIDED THAT THE SET ROTATIONAL SPEED SHOULD BE 1714 TO 2000 RPM FOR 400 CYCLE GENERATOR. PARAGRAPH 3.7 OF THE PURCHASE DESCRIPTION PROVIDED THAT THE ENGINE SHOULD BE CAPABLE OF DELIVERING NOT LESS THAN 100 NET CONTINUOUS BRAKE HORSEPOWER AT THE RATED SYNCHRONOUS SPEED OF THE GENERATOR UNDER THE ENVIRONMENTAL CONDITIONS SPECIFIED IN PARAGRAPH 3.6 AND WHEN OPERATING ON DIESEL FUEL CONFORMING TO SPECIFICATIONS VV-F-900 CONTAINING FROM 10.95 TO 1.05 PERCENT SULPHER AND USING A REFEREE GRADE LUBRICATING OIL AS SPECIFIED IN SPECIFICATION MIL-M- 11278.

IN ADDITION TO THE FOREGOING, THE PURCHASE DESCRIPTION PROVIDED IN PARAGRAPH 3.2 THAT AS SOON AS PRACTICABLE AFTER AWARD OF CONTRACT OR ORDER BUT NOT LATER THAN THE TIME SPECIFIED BY THE CONTRACTING OFFICER AND PRIOR TO SUBMISSION OF ANY COMPLETE PRODUCTION UNIT FOR FINAL ACCEPTANCE, THE CONTRACTOR SHOULD FURNISH, FOR PREPRODUCTION TESTS TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS, ONE ENGINE-GENERATOR SET OF THE TYPE COVERED BY THE CONTRACT.

THE RECORD SHOWS THAT 9 BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THAT THEY WERE PUBLICLY OPENED ON MAY 31, 1956, AS SCHEDULED. EVALUATING THE BIDS RECEIVED AS REQUIRED BY PARAGRAPH 7 OF THE ADVERTISED CONDITIONS, IT WAS DETERMINED THAT THE BID SUBMITTED BY THE CONSOLIDATED DIESEL ELECTRIC CORPORATION WAS THE LOWEST RECEIVED AND THAT THE BID SUBMITTED BY STEWART AND STEVENSON SERVICES WAS THE SECOND-LOWEST BID RECEIVED. THE LOWEST BID, HOWEVER, WAS ENCLOSED WITH A COVERING LETTER WITH CONTAINED THE STATEMENT THAT:

(2) WE PROPOSE FURNISHING THE BUDA MODEL 516 DIESEL ENGINE. THIS ENGINE HAS A DISPLACEMENT OF 516 CUBIC INCHES AND A CONTINUOUS RATING AT SEA LEVEL OF 128 BRAKE HORSEPOWER. WITH DEDUCTIONS FOR ALTITUDE OF 15 PERCENT, TEMPERATURE 2 PERCENT, THE ENGINE PRODUCES 106 BHP FOR CONTINUOUS OPERATION AT 5,000 FT. AND 107 DEGREE F. THE PROCUREMENT DESCRIPTION REQUESTS 100 BRAKE HORSEPOWER CONTINUOUS FOR THE ABOVE ENVIRONMENTAL CONDITIONS. THE OUTPUT OF THIS ENGINE WILL ADEQUATELY POWER THE 45 KW GENERATING UNITS UNDER ALL OPERATING CONDITIONS SPECIFIED IN THE INVITATION. IT WILL ALSO BE ADEQUATE FOR POWERING A 60 KW GENERATOR UNDER ALL ENVIRONMENTAL CONDITIONS COVERED BY THE SUBJECT INVITATION.

IF IT IS REQUIRED THAT A LARGER ENGINE BE FURNISHED, THE SUPERCHARGED VERSION OF THE 516 BUDA ENGINE, RATED AT 140 HORSEPOWER, IS OFFERED WITH A NET INCREASE IN PRICE PER UNIT OF $331.50, OR A TOTAL INCREASE IN CONTRACT PRICE FOR 334 UNITS OF $110,721.00.

THE CONTRACTING OFFICER REPORTS THAT IN VIEW OF THE STATEMENTS IN THE ABOVE-QUOTED LETTER WHEREIN THE BIDDER OFFERED TO FURNISH THE GENERATOR SETS AT A UNIT PRICE OF $7,950, IF EQUIPPED WITH A BUDA MODEL 516 DIESEL ENGINE, AND A UNIT PRICE OF $8,281.50, IF EQUIPPED WITH A BUDA MODEL 516 DIESEL ENGINE SUPER CHARGED "IF IT IS REQUIRED THAT A LARGER ENGINE BE FURNISHED," AND THE FACT THAT PUBLISHED LITERATURE INDICATED THAT THE BUDA MODEL 516 DIESEL ENGINE NATURALLY ASPIRATED DID NOT MEET THE STIPULATED HORSEPOWER REQUIREMENT, SOME QUESTION WAS RAISED IN THE MINDS OF THE EVALUATORS AS TO WHETHER THIS ENGINE WOULD COMPLY FULLY WITH THE SPECIFIC ENGINE REQUIREMENTS OF THE PURCHASE DESCRIPTION. FOR THAT REASON THE BIDDER WAS REQUESTED TO FURNISH A CERTIFICATION THAT THE BUDA MODEL NO. 516 ENGINE WITHOUT SUPERCHARGER WOULD DEVELOP 100 HORSEPOWER NET CONTINUOUS 1714 TO 2000 RPM INCLUDING ALL ACCESSORIES AT AN ALTITUDE OF 5000 FEET (24.9 INCH MERCURY) AT AN AMBIENT TEMPERATURE OF 107 DEGREES F. WHEN TESTED IN ACCORDANCE WITH MIL-E-11278A TEST METHOD 107.3 SUPPORTED BY A CERTIFICATION SPECIFICALLY TO THESE FACTS FROM THE ENGINE MANUFACTURER. IN RESPONSE TO THAT TELEGRAM CONSOLIDATED DIESEL ELECTRIC CORPORATION SENT THE FOLLOWING TELEGRAPHIC REPLY:

RETEL 12 JUNE INVITATION DS-ENG-11-184-56-F609 WE HEREBY CERTIFY THAT WE WILL FURNISH AT A PRICE OF $7950. EACH GENERATING SETS EQUIPPED WITH ENGINES RATED AT 100 HP NET CONTINUOUS AT 1714 TO 2000 RPM INCLUDING ALL ACCESSORIES AT AN ALTITUDE OF 107 DEGREES F WHEN TESTED IN ACCORDANCE WITH MIL-E-11278A TEST METHOD 107.3. WE QUOTE AS FOLLOWS FROM TELEGRAM DATED JUNE 13 FROM BUDA DIVISION ALLIS CHALMERS " REPHONE TODAY 516 DIESEL WITHOUT SUPER-CHARGER WILL DEVELOP 100 HORSEPOWER NET CONTINUOUS AT 1846 RPM INCLUDING ALL ACCESSORIES AT ALTITUDE OF 5000 FT (24.9 INCHES MERCURY) AT AN AMBIENT OF 107 DEGREES FAHRENHEIT WHEN TESTED IN ACCORDANCE WITH MIL -E-11278A TEST METHOD 107.3" M. CONFIRMING LETTER WILL FOLLOW.

THE CONTRACTING OFFICER REPORTS THAT NO CONFIRMING LETTER WAS RECEIVED BUT THAT ON JUNE 15, 1956, AT A CONFERENCE BETWEEN REPRESENTATIVES OF HIS OFFICE AND REPRESENTATIVES OF BUDA DIVISION OF ALLIS-CHALMERS MANUFACTURING COMPANY, IT WAS INDICATED THAT THE BUDA MODEL 516 DIESEL ENGINE NATURALLY ASPIRATED WHEN TESTED IN ACCORDANCE WITH THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS "WOULD IN ALL PROBABILITY MEET THE AFOREMENTIONED SPECIFIC ENGINE REQUIREMENTS.' ON THE OTHER HAND, THE PROTESTING BIDDER HAS FURNISHED A COPY OF A CONFIRMING LETTER OF JUNE 14, 1956, TO THE CHICAGO PROCUREMENT OFFICE, CONFIRMING THE QUOTED TELEGRAM AND ENCLOSING COPIES OF THE TELEGRAM FROM THE BUDA COMPANY CONFIRMING THE FACT THAT THE 516 ENGINE WILL MEET THE REQUIREMENTS AS STIPULATED IN YOUR TELEGRAM TO US.' FINALLY THE CONTRACTING OFFICER REPORTS THAT IN THE FINAL EVALUATION OF THE BID IT WAS DETERMINED BY HIM THAT THE LOW BID OF $7,950 WAS QUALIFIED AND THAT THE LOW BIDDER LIMITED ITS LIABILITY WHEN IT SPECIFIED A PARTICULAR MAKE AND MODEL ENGINE AND ADDED THAT A LARGER ENGINE, IF REQUIRED, WOULD BE FURNISHED AT AN INCREASE IN PRICE.

THE QUESTION HERE FOR DETERMINATION IS WHETHER THE LOW BIDDER OFFERED A DIESEL ENGINE IN STRICT ACCORDANCE WITH THE SPECIFICATIONS. THE BIDDER, OF COURSE, INSISTS THAT ITS BID WAS IN EVERY WAY RESPONSIVE WHETHER THE COVERING LETTER BE REGARDED AS INFORMATIONAL AND NOT A MATERIAL PART OF THE BID, OR WHETHER IT CONSTITUTED A MATERIAL PART OF THE BID, IT BEING POINTED OUT THAT THE LETTER WAS SIGNED BY AN EMPLOYEE OF THE BIDDER'S SALES DEPARTMENT WHO WAS NOT AUTHORIZED TO SIGN BIDS ON BEHALF OF THE CORPORATION. THE BID ITSELF WAS SIGNED ON BEHALF OF THE CORPORATION BY A VICE-PRESIDENT. WHILE WE DO NOT AGREE THAT THE LETTER IS NOT A MATERIAL PART OF THE BID AND WE FEEL THAT UNDER THE CIRCUMSTANCES THE BIDDER CANNOT PROPERLY REPUDIATE THE REPRESENTATIONS IN THE LETTER, IT WOULD APPEAR THAT TAKING INTO CONSIDERATION THE BID ITSELF WHICH WAS NOT CONDITIONED IN ANY MANNER AND THE STATEMENT IN THE COVERING LETTER THAT " THE OUTPUT OF THIS ENGINE WILL ADEQUATELY POWER THE 45 KW GENERATING UNITS UNDER ALL OPERATING CONDITIONS SPECIFIED IN THE INVITATION" THE BIDDER OFFERED TO COMPLY WITH THE SPECIFICATION REQUIREMENTS. THE LEGAL EFFECT OF SUCH STATEMENT WHEN CONSIDERED WITH THE CERTIFICATIONS SUBSEQUENTLY FURNISHED BY THE BIDDER WAS TO OFFER TO FURNISH THE EQUIPMENT IN STRICT ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS. A SOMEWHAT SIMILAR SITUATION WAS CONSIDERED IN 10 COMP. GEN. 160, AND IT WAS THERE STATED AT PAGE 164 THAT:

WHEN A CONTRACTOR HAS AGREED TO MEET GOVERNMENT SPECIFICATIONS AND HAS FURNISHED A PERFORMANCE BOND FOR THAT PURPOSE, SUCH CONTRACTOR MUST MEET THE SPECIFICATIONS IN THE PRODUCTS MANUFACTURED AND DELIVERED OR ELSE THE GOVERNMENT MAY CANCEL THE CONTRACT, PURCHASING MATERIAL MEETING THE SPECIFICATIONS IN THE OPEN MARKET AND COLLECT FROM THE DEFAULTING CONTRACTOR OR HIS SURETY ANY EXCESS COST OCCASIONED THE GOVERNMENT. THIS IS SETTLED LAW AND APPEARS TO BE UNDERSTOOD BY ALL CONCERNED. THE FACT THAT A BIDDER'S COMMERCIAL PRODUCT DOES NOT MEET THE GOVERNMENT SPECIFICATIONS IS NO REASON FOR REJECTING ITS LOW BID WHEN SUCH BIDDER PROPOSES TO MEET THE GOVERNMENT SPECIFICATIONS--- THROUGH SUCH CHANGES OR ADAPTATIONS IN ITS COMMERCIAL PRODUCT OR AS THE BIDDER MAY BE ABLE OTHERWISE TO DO. IF ITS BID IS ACCEPTED, ITS OBLIGATION IS TO MEET THE SPECIFICATIONS IN THE DELIVERIES MADE AND IT IS OF NO CONTROLLING CONCERN TO THE UNITED STATES THAT THE BIDDER MAY OR MAY NOT BE REQUIRED TO MAKE CHANGES OR ADAPTATIONS IN ITS COMMERCIAL PRODUCT. THERE IS NEITHER LEGAL NOR EQUITABLE BASIS FOR REJECTING A LOW BID PROPOSING TO MEET THE SPECIFICATIONS SIMPLY BECAUSE THE BIDDER'S COMMERCIAL PRODUCT DOES NOT MEET THE SPECIFICATIONS--- IN THIS CASE, APPARENTLY DOES NOT HAVE COLLARS AND SKIDS. THIS WOULD SEEM TO BE SELF-EVIDENT FOR SUCH BIDDER WAS NOT OFFERING ITS COMMERCIAL PRODUCT BUT A PRODUCT MEETING THE SPECIFICATIONS.

WHILE THE LITERATURE ( THE DIESEL ENGINE CATALOG, VOLUME 20, PAGE 241) SUBMITTED WITH THE CONTRACTING OFFICER'S REPORT WHICH COVERS A BUDA ENGINE NO. 516 SUPERCHARGED AND NOT A BUDA ENGINE 516 NATURALLY ASPIRATED, INDICATES THAT THE ENGINE WOULD PRODUCE LITTLE MORE THAN 100 BRAKE HORSEPOWER AT 1800 RPM, IT IS CLEAR FROM THE ABOVE-QUOTED STATEMENTS THAT THE CORPORATION INTENDED TO FURNISH EQUIPMENT MEETING ALL THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS, IF AWARDED THE CONTRACT. NO QUESTION IS RAISED AS TO THE RESPONSIBILITY OF THE LOW BIDDER.

IN VIEW OF THE FACTS NOW BEFORE US AND HAVING REGARD FOR THE EXPRESS PROVISIONS OF SECTION 3 (B) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 21, 41 U.S.C. 151, 23, 41 U.S.C. 153, THAT , AWARD SHALL BE MADE WITH REASONABLE PROMPTNESS BY WRITTEN NOTICE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED," THERE APPEARS TO HAVE BEEN NO LEGAL BASIS FOR THE REJECTION OF THE LOW BID OF THE CONSOLIDATED DIESEL ELECTRIC CORPORATION. HENCE, THE CONTRACT AWARDED TO THE SECOND-LOW BIDDER SHOULD BE CANCELED.

Nov 14, 2018

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  • CDO Technologies, Inc.
    We dismiss the protest because it is untimely where it was filed more than 10 days after CDO knew or reasonably should have known the bases for its protest.
    B-416989
  • Protection Strategies, Inc.
    We deny the protest.
    B-416635

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