B-136244, NOVEMBER 20, 1958, 38 COMP. GEN. 380

B-136244, NOVEMBER 20, 1958, 38 COMP. GEN. 380

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE AN INVITATION WHICH SETS FORTH SPECIFIC REQUIREMENTS AND ALSO CONTAINS A "SIMILAR TO A BRAND NAME OR EQUAL" PROVISION BUT WHICH CAN ONLY BE MET BY A PRODUCT CONFORMING TO ALL THE SPECIFIC REQUIREMENTS IN THE SPECIFICATION WITHOUT REGARD TO THE "OR EQUAL" PROVISION CREATES AN AMBIGUITY WHICH MAY OPERATE TO PRECLUDE THE SUBMISSION OF LOWER BIDS MEETING THE EXPRESS MINIMUM REQUIREMENTS OF THE GOVERNMENT AND IS THEREFORE IMPROPER.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, NOVEMBER 20, 1958:

WE REFER TO A LETTER OF JULY 15, 1958, FROM THE COMMISSIONER, FEDERAL SUPPLY SERVICE, IN RESPONSE TO OUR LETTER OF JUNE 3, 1958, WITH REGARD TO A PROTEST BY THE WALTER MOTOR TRUCK COMPANY AGAINST REJECTION OF ITS BID SUBMITTED PURSUANT TO ITEM NO. 4 OF INVITATION FOR BIDS NO. FN-3C-6699-A-6 -6-57 ISSUED MAY 21, 1957, BY THE FEDERAL SUPPLY SERVICE.

ITEM NO. 4 OF THE INVITATION SOLICITED BIDS FOR ONE TRUCK DESCRIBED AS " TRUCK, AIRCRAFT RESCUE AND FIRE FIGHTING, IN ACCORDANCE WITH FEDERAL SPECIFICATION KKK-T-706A AND SCHEDULE "D" ATTACHED.' SCHEDULE D, WHICH IS ALSO DESCRIBED AS SPECIFICATION CAA-1075, FEBRUARY 1, 1957, PROVIDES AT PARAGRAPH 3.5 AS FOLLOWS:

TRUCK CHASSIS.--- THE FOAM EQUIPMENT, TANKS, PUMPS, AND AUXILIARY APPARATUS SHALL BE MOUNTED ON A 4 X 4 TYPE, HEAVY DUTY, GASOLINE ENGINE DRIVEN TRUCK WITH ONE REAR AXLE AND ONE FRONT AXLE, WITH POWER DRIVE TO BOTH AXLES, SIMILAR TO WALTERS MODEL " ASUL" OR APPROVED EQUAL. THE TRUCK SHALL HAVE A GROSS VEHICLE WEIGHT RATING OF NOT MORE THAN FORTY-TWO THOUSAND (42,000) POUNDS. ALL PARTS INCLUDING CLUTCH, DRIVE MECHANISM AND AXLES, SHALL BE SUITABLE FOR FAST ACCELERATION AND OPERATION UNDER ADVERSE ROAD CONDITIONS SUCH AS DEEP SAND. THE FRONT AXLE DRIVE SHALL BE DESIGNED FOR CONSTANT DUTY AT HIGH SPEEDS. ( ITALICS SUPPLIED.)

IN ADDITION TO THE FOREGOING REQUIREMENT, SCHEDULE D AND THE FEDERAL SPECIFICATION PROVIDED SPECIFIC REQUIREMENTS TO BE MET BY THE TRUCK.

THE TRUCK WAS PURCHASED BY THE FEDERAL SUPPLY SERVICE AS A RESULT OF A REQUISITION, DATED MARCH 15, 1957, SUBMITTED BY THE CIVIL AERONAUTICS ADMINISTRATION. THE REQUISITION WAS ACCOMPANIED BY CAA SPECIFICATION NO. CAA-1075 WHICH, AS INDICATED ABOVE, WAS MADE A PART OF THE INVITATION.

BIDS WERE OPENED IN ACCORDANCE WITH THE TERMS OF THE INVITATION ON JUNE 6, 1957. TWO BIDS WERE RECEIVED: THE LOW BID OF $47,104 FROM THE YANKEE MOTOR BODIES CORPORATION, AND THE BID OF THE WALTER MOTOR TRUCK COMPANY IN THE AMOUNT OF $48,600. THE LATTER FIRM PROPOSED TO FURNISH ITS MODEL ASUL. YANKEE OFFERED A TRUCK WHICH, IT WAS STATED IN ITS LETTER OF JUNE 4, 1957, WAS "IN STRICT ACCORDANCE" WITH THE SPECIFICATIONS.

THE LETTER OF JULY 15 STATES THAT THE LOW BID WAS REVIEWED AND "FOUND TO MEET THE WRITTEN DETAILED SPECIFICATIONS.' THE LETTER FURTHER STATES THAT THE TWO BIDS WERE FORWARDED TO THE CAA FOR REVIEW WITH THE RECOMMENDATION THAT THE LOW BID BE ACCEPTED AND, UPON CONCURRENCE BY THE CAA, AWARD WAS MADE TO THE YANKEE MOTOR BODIES CORPORATION ON AUGUST 6, 1957.

ON NOVEMBER 27, 1957, THE PROCUREMENT DIVISION OF CAA BY LETTER ADVISED THE NATIONAL BUYING DIVISION THAT IT HAD BEEN DETERMINED BY CAA REPRESENTATIVES AS A RESULT OF A MEETING WITH REPRESENTATIVES OF THE YANKEE FIRM AND OF A MAJOR SUPPLIER, THAT THE EQUIPMENT TO BE FURNISHED BY YANKEE UNDER THE CONTRACT "* * * FALLS FAR SHORT OF OUR BARE MINIMUM REQUIREMENTS, AS SPELLED OUT IN YOUR INVITATION, SPECIFICALLY THE REQUIREMENT IN SECTION 3.5 OF CAA SPECIFICATION CAA-1075, THAT THE TRUCK CHASSIS BE SIMILAR TO WALTERS MODEL " ASUL" OR APPROVED EQUAL.' ATTACHED TO THE LETTER WAS A LIST OF 9 POINTS WHEREIN THE YANKEE PRODUCT WAS APPARENTLY DEEMED NOT TO BE SIMILAR TO WALTERS MODEL ASUL OR APPROVED EQUAL AS FOLLOWS:

1. TORQUE PROPORTIONING DIFFERENTIALS WHICH ARE CONSIDERED EXTREMELY IMPORTANT TO GIVE POSITIVE WHEEL DRIVE AND WHICH ARE FURNISHED IN THE WALTERS " ASUL" ARE NOT TO BE FURNISHED IN THE PROPOSED FWD UNIT.

2. AUTOMATICALLY SELF-LOCKING DIFFERENTIALS, CONSIDERED A MUST WHEN GOING INTO SOFT MUD, DEEP SAND, ETC., AND FURNISHED ON THE WALTERS " ASUL" ARE NOT TO BE FURNISHED BY FWD.

3. CONSTANT VELOCITY JOINTS IN THE FRONT WHEELS, CONSIDERED NECESSARY ON SUCH A UNIT AND FURNISHED IN THE " ASUL" ARE NOT TO BE FURNISHED BY FWD.

4. FINAL DRIVE GEAR REDUCTION AT THE WHEELS WHICH GIVES THE UTMOST IN POWER TRANSFER TO THE WHEELS AND IS STANDARD DRIVE FOR WALTERS, LA TOURNEAU AND OTHER MANUFACTURERS OF LARGE OFF-ROAD EQUIPMENT, NOT TO BE FURNISHED BY FWD.

5. AXLE LOAD CAPACITY--- WALTERS 25,000-POUND TYPE FOR FRONT AND REAR. FWD PROPOSES AN 18,000-POUND CAPACITY AXLE FOR THE FRONT WHICH IS CONSIDERED INADEQUATE FOR OFF-ROAD OPERATIONS AND A 25,000-POUND CAPACITY FOR THE REAR.

6. WHEN ASKED WHAT IS THE MAXIMUM WHEEL MOVEMENT UP AND DOWN, THAT IS, HOW FAR CAN ANY ONE WHEEL BE RAISED BEFORE IT AFFECTS ANOTHER WHEEL--- FWD ENGINEERS DID NOT KNOW, BUT SAID THEY WOULD TRY TO FIND OUT AND LET ME KNOW. THE " ASUL" PERMITS 16 INCHES FOR ANY WHEEL.

7. THE WALTERS HAS A GROUND CLEARANCE OF 18 INCHES UNDER THE AXLES, FWD-- - 16 1/2 INCHES; UNDER THE CENTER OF THE CHASSIS WALTERS HAS 22 INCHES, FWD HAS 20 3/8 INCHES.

8. CENTER OF GRAVITY (HEIGHT OF FRAME) WALTERS 44 INCHES, FWD 48 INCHES.

9. TURNING RADIUS, WALTERS 32 FEET, FWD 45 FEET 6 INCHES.

IN REPLY, CAA WAS ADVISED BY LETTER OF JANUARY 31, 1958, FROM THE NATIONAL BUYING DIVISION, THAT SINCE THE REQUIREMENT, AS STATED, WAS FOR A VEHICLE SIMILAR TO WALTERS MODEL ASUL, OR APPROVED EQUAL, AND SINCE THE FEDERAL AND CAA SPECIFICATIONS WERE MADE A PART OF THE INVITATION, ANY ,VEHICLE HAVING THE GENERAL CHARACTERISTICS AND MEETING THE ADVERTISED SPECIFICATIONS WOULD BE DEEMED TO BE ACCEPTABLE.' THE LETTER ALSO RESPONDED TO THE 9 POINTS RAISED BY THE CAA AS FOLLOWS:

1. TORQUE PROPORTION. THE F.W.D. TRUCK HAS A TORQUE PROPORTIONER. ALTHOUGH THE LOCKING DEVICE IS NOT AUTOMATIC IT MAY BE MANUALLY LOCKED IN.

2.AUTOMATICALLY SELF-LOCKING DIFFERENTIALS. AS YOU HAVE STATED THE F.W.D. TRUCK DOES NOT HAVE AUTOMATIC LOCKING DEVICES IN ITS AXLE DIFFERENTIALS. SUCH DEVICE WAS NOT SPECIFICALLY REQUIRED BY THE SPECIFICATIONS. EXPERIENCE HAS SHOWN THAT THE F.W.D. TRUCK WILL OPERATE SATISFACTORILY IN DEEP MUD AND SAND, AND HAS BEEN ACCEPTED COMMERCIALLY FOR USE UNDER SUCH CONDITIONS. FEDERAL SPECIFICATIONS PROVIDE THAT THE DIFFERENTIALS MAY BE EITHER THE CONVENTIONAL OR SEMI LOCKING TYPE.

3. CONSTANT VELOCITY JOINTS. FEDERAL SPECIFICATION KKK-T-706A PROVIDES THAT THE FRONT DRIVING AXLE SHALL BE EQUIPPED WITH STEERING ENDS OF THE CONSTANT VELOCITY TYPE OR EQUAL. ANY STEERING END OR UNIVERSAL JOINT THAT DOES NOT SHOW OBJECTIONABLE PERIODIC REACTION WHILE IN A CRAMPING POSITION IS CONSIDERED AN EQUAL TO THE CONSTANT VELOCITY JOINT.

4. FINAL GEAR DRIVE. UTMOST GEAR DRIVE WAS NOT SPECIFIED. THE GEARING OF THE F.W.D. WILL COMPLY IN PERFORMANCE AS REQUIRED BY THE SPECIFICATIONS.

5. FRONT AXLE CAPACITY. THE SPECIFICATIONS DID NOT SPECIFY SPECIFIC FRONT AXLE CAPACITY. FEDERAL SPECIFICATION KKK-T-706A PROVIDES THAT THE AXLES SHALL BE CAPABLE OF SUSTAINING THE TOTAL GROSS LOAD AT THE GROUND WITHOUT EVIDENCE OF OVERLOAD. THE CAPACITY OF EACH AXLE DEPENDS ON THE WEIGHT DISTRIBUTION OF EACH PARTICULAR VEHICLE. FOR THIS REASON F.W.D. OFFERS A 29,000 POUND REAR AXLE.

6. WHEEL MOVEMENT UP AND DOWN. AT NO PLACE IN THE SPECIFICATIONS DOES THIS FEATURE APPEAR AND IT IS CONSIDERED UNIMPORTANT.

7. GROUND CLEARANCE. THE SPECIFICATION DOES NOT MENTION GROUND CLEARANCE. WHEN SPECIFIC GROUND CLEARANCE IS REQUIRED, SUCH CLEARANCE SHOULD BE DEFINED SPECIFICALLY IN THE SPECIFICATIONS. FEDERAL SPECIFICATIONS PROVIDE THAT ANY UNUSUAL OPERATING CONDITIONS WHICH JUSTIFY DEVIATIONS FROM STANDARD CONSTRUCTION SHOULD BE SPECIFICALLY DESCRIBED.

8. CENTER OF GRAVITY. THE SPECIFICATIONS PROVIDE THAT THE TRUCK SHALL HAVE A LOW CENTER OF GRAVITY TO REDUCE THE POSSIBILITY OF CAPSIZING ON TURNS OR ON UNEVEN GROUND WHEN TRAVELING AT HIGH SPEED. THIS PROVISION DOES NOT PROVIDED THAT AWARD WOULD BE MADE TO THE BIDDER OFFERING THE LOWEST CENTER OF GRAVITY. SINCE THE SPECIFICATIONS WERE NOT SPECIFIC, ANY VEHICLE OFFERED HAVING A REASONABLY LOW CENTER OF GRAVITY WOULD BE ACCEPTABLE, AND IT IS CONSIDERED THE F.W.D. HAS A REASONABLY LOW CENTER OF GRAVITY.

9. TURNING RADIUS. THERE IS NOTHING IN THE SPECIFICATIONS REQUIRING A MINIMUM TURNING RADIUS. ACCORDINGLY, STANDARD PRODUCTION IS CONSIDERED ACCEPTABLE. AGAIN THE REQUIREMENT FOR UNUSUAL OPERATING CONDITIONS JUSTIFYING DEVIATIONS FROM STANDARD CONSTRUCTION SHOULD BE SPECIFICALLY DESCRIBED. ( ITALICS SUPPLIED.)

FINALLY, THE LETTER STATED THAT THE REQUIREMENTS INDICATED IN THE 9 POINTS SHOULD HAVE BEEN SPECIFICALLY STATED IN THE REQUISITION, TOGETHER WITH JUSTIFICATIONS SUPPORTING THEIR INCLUSION. IT WAS CONCLUDED IN ACCORDANCE WITH THE FOREGOING THAT THE CONTRACT HAD BEEN PROPERLY AWARDED AND THAT THE VEHICLE TO BE FURNISHED BY YANKEE WOULD MEET CONTRACT REQUIREMENTS.

ULTIMATELY, THE YANKEE FIRM DELIVERED THE VEHICLE UNDER THE TERMS OF THE CONTRACT WITHIN THE TIME FOR PERFORMANCE AS EXTENDED. THE LETTER OF JULY 15 STATES THAT THE COMPLETED VEHICLE WAS INSPECTED AND TESTED DURING THE WEEK OF JUNE 2, 1958, AND WAS FOUND TO MEET THE ADVERTISED SPECIFICATIONS. WE HAVE BEEN ADVISED THAT THE INSPECTION INDICATED THE NEED FOR CERTAIN ADJUSTMENTS TO BE MADE ON THE VEHICLE, THAT THESE ADJUSTMENTS HAVE BEEN MADE, AND THE VEHICLE ACCEPTED.

THE AWARD OF THE CONTRACT TO YANKEE WAS PROTESTED BY A LETTER OF MAY 20, 1958, FROM THE WALTER MOTOR TRUCK COMPANY WHICH WAS SUBMITTED BY LETTER OF MAY 21, 1958, FROM KLAGSBRUNN, HANES AND IRWIN, ATTORNEYS FOR WALTER. THE PROTEST ALLEGED THAT THE VEHICLE OFFERED BY YANKEE WAS NOT SIMILAR TO WALTERS MODEL ASUL OR APPROVED EQUAL, SPECIFICALLY THAT THE FORMER LACKED 12 SIGNIFICANT FEATURES INCLUDED IN THE LATTER AND THAT IF THESE FEATURES WERE TO BE OMITTED FROM THE WALTERS MODEL THAT FIRM'S BID WOULD HAVE BEEN ONLY $44,000. THE LETTER CONCLUDED, THEREFORE, THAT EITHER ALL BIDS SHOULD BE REJECTED AND A NEW INVITATION OFFERED WITH REVISED SPECIFICATIONS OR THE CONTRACT SHOULD BE AWARDED TO THE LOWEST BIDDER OFFERING TO MEET THE SPECIFICATIONS, THE WALTER MOTOR TRUCK COMPANY.

WE HAVE HELD THAT ALTHOUGH THE PRACTICE SHOULD BE AVOIDED, IN THOSE SITUATIONS WHERE IT IS NOT POSSIBLE TO STATE DETAILED SPECIFICATIONS TO DESCRIBE THE PRODUCT WHICH WILL MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT AND WHERE THERE IS IN EXISTENCE A COMMERCIAL PRODUCT WHICH MEETS THE GOVERNMENT'S MINIMUM REQUIREMENTS, THE PROCUREMENT MAY BE ADVERTISED ON THE BASIS OF THE KNOWN PRODUCT QUALIFIED BY SUCH WORDS AS "OR EQUAL.' 5 COMP. GEN. 835, 837. UNDER ADVERTISEMENTS FOR BRAND NAME OR EQUAL, AN ACCEPTABLE PRODUCT NEED NOT BE IDENTICAL BUT MUST BE CAPABLE OF MEETING THE SAME STANDARDS OF PERFORMANCE. IN THIS INSTANCE, IT IS TO BE NOTED THAT THE INVITATION REQUIRED A PRODUCT "SIMILAR OR EQUAL" TO THE NAME BRAND. CUSTOMARILY, THE REQUIREMENT IS STATED AS "SIMILAR AND EQUAL.' HOWEVER, WE SEE NO REASON WHY THE DIFFERENCE IN LANGUAGE SHOULD INDICATE ANY SIGNIFICANT DIFFERENCE IN THE REQUIREMENT. SEE, IN THIS CONNECTION, B-96279, MARCH 26, 1951, IN WHICH A REQUIREMENT STATED AS SIMILAR AND/OR EQUAL WAS REGARDED TO BE THE EQUIVALENT OF BRAND NAME OR EQUAL.

THE POSITION OF THE GENERAL SERVICES ADMINISTRATION, AS INDICATED IN THE CORRESPONDENCE CITED ABOVE, APPEARS TO BE THAT ANY REQUIREMENTS FOR THE PROCUREMENT COULD, AND SHOULD, HAVE BEEN SPECIFICALLY STATED AND ONLY THOSE FEATURES SPECIFICALLY STATED, MAY BE REGARDED AS REQUIREMENTS. UNDER THIS INTERPRETATION, THE REQUIREMENT THAT THE VEHICLE OFFERED BE SIMILAR TO WALTERS ASUL OR APPROVED EQUAL IS OF NO EFFECT. IN THESE CIRCUMSTANCES, WE MUST REGARD THE INCLUSION OF THE QUALIFYING WORDS AS CREATING AN AMBIGUITY WHICH MAY WELL HAVE OPERATED TO PRECLUDE THE SUBMISSION OF LOWER BIDS MEETING THE EXPRESSED REQUIREMENT OF THE GOVERNMENT. SEE B-96279, SUPRA.

IN SUMMATION, IT MAY BE STATED THAT IF THE GOVERNMENT'S MINIMUM REQUIREMENT WAS PROPERLY MET BY A VEHICLE CONFORMING TO ALL THE SPECIFIC REQUIREMENTS OF THE SPECIFICATIONS AND WITHOUT REGARD TO THE "OR EQUAL" PROVISION, THE INVITATION WAS IMPROPER FOR THE REASON THE INCLUSION OF THE "OR QUAL" PROVISION RENDERED IT AMBIGUOUS; ON THE OTHER HAND, IF THE BRAND NAME "OR EQUAL" PROVISION IS GIVEN ITS USUAL MEANING, IT APPEARS THAT THE YANKEE PRODUCT WAS NOT AND COULD NOT BE REGARDED AS EQUAL WITH RESPECT TO AT LEAST SOME OF THE 9 SPECIFIC POINTS RAISED AND, THEREFORE, WAS NOT PROPERLY FOR ACCEPTANCE. HOWEVER, SINCE THE CONTRACT HAS BEEN COMPLETED AND THE VEHICLE ACCEPTED, NO FURTHER ACTION WILL BE REQUIRED BY OUR OFFICE IN THIS MATTER.

IN ANY CASE, THE HISTORY OF THE "OR EQUAL" PROVISION INDICATES THAT ADMINISTRATIVE AND LEGAL DIFFICULTIES MAY REGULARLY BE EXPECTED IN CONNECTION WITH ITS USE. (A-65465, NOVEMBER 9, 1935). FOR THAT REASON, IT SHOULD BE USED ONLY IN THOSE INSTANCES WHERE IT IS NOT OTHERWISE POSSIBLE ADEQUATELY TO EXPRESS THE MINIMUM REQUIREMENTS. IT HAS BEEN INDICATED THAT THE INSTANT PROCUREMENT DOES NOT FALL INTO SUCH CATEGORY. IN SUCH CIRCUMSTANCES THE USE OF THE "OR EQUAL" PROVISION IS NOT JUSTIFIED AND SHOULD BE AVOIDED.