B-136476, JUL. 2, 1958

B-136476, JUL. 2, 1958

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER DATED JUNE 19, 1958, FROM THE DIRECTOR, PURCHASE OPERATIONS DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO THE ACTION THAT SHOULD BE TAKEN IN CONNECTION WITH A PROTEST BY CLARK EQUIPMENT COMPANY THAT THE BID SUBMITTED BY BAKER INDUSTRIAL TRUCKS DIVISION OF THE OTIS ELEVATOR COMPANY IN RESPONSE TO INVITATION FOR BIDS NO. IFB 600-1405-58 WAS NOT RESPONSIVE TO THE INVITATION.

THE INVITATION ISSUED ON APRIL 4, 1958, BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C., REQUESTED BIDS FOR FURNISHING A NUMBER OF FORKLIFT TRUCKS IN ACCORDANCE WITH THE PURCHASE DESCRIPTION DATED DECEMBER 11, 1957, ATTACHED, EXCEPT AS MODIFIED BY THE INVITATION. ONE OF THE SEVEN PROVISIONS OF THE INVITATION AMENDED PARAGRAPH 3.4.2 OF THE PURCHASE DESCRIPTION BY PROVIDING THAT "DETAILS, DETAIL DRAWINGS, TOLERANCES AND STRESS CALCULATIONS ARE NOT REQUIRED.' THE INVITATION REQUIRED BIDDERS TO ANSWER THE FOLLOWING QUESTIONS:

"IS EQUIPMENT OFFERED IN STRICT ACCORDANCE WITH GOVERNING SPECIFICATIONS?

YES ----------------------------- NO ------------------------------

"IF NOT, HAVE YOU STATED IN DETAIL WHERE THE PRODUCT OFFERED DIFFERS FROM THE SPECIFIC REQUIREMENTS OF THE SPECIFICATIONS?

YES ----------------------------- NO ------------------------------

THE RECORD INDICATES THAT THE FORKLIFT TRUCKS INVOLVED ARE OF A TYPE SPECIALLY DEVELOPED IN 1956 BY THE CLARK EQUIPMENT COMPANY UNDER CONTRACT WITH THE GOVERNMENT AND APPARENTLY THE PURCHASE DESCRIPTION, SPECIFICATIONS, ETC., WERE DRAWN UP BY, OR ON THE BASIS OF INFORMATION FURNISHED BY, CLARK EQUIPMENT COMPANY PURSUANT TO THEIR CONTRACT.

IT IS REPORTED THAT THE PURCHASE DESCRIPTION WITH THE DRAWINGS AND SPECIFICATIONS LISTED THEREIN FULLY AND ACCURATELY DESCRIBE THE FABRICATION OF THE TRUCKS SO AS TO MEET THE SPECIFIED PERFORMANCE TESTS. VARIOUS PARAGRAPHS OF THE PURCHASE DESCRIPTION PROVIDE:

"3.3 MATERIALS.--- MATERIALS SHALL BE AS SPECIFIED HEREIN AND ON THE DRAWINGS LISTED IN SECTION 2. MATERIAL NOT DEFINITELY SPECIFIED MAY BE A MANUFACTURER'S NORMAL COMMERCIAL PRODUCT, BUT SHALL BE OF A COMPOSITION AND QUALITY TO INSURE THAT THE COMPLETED TRUCK SHALL ADEQUATELY MEET THE TEST REQUIREMENTS SPECIFIED IN SECTION 4. WHENEVER THE TERM "NORMAL COMMERCIAL PRODUCT" IS USED, IT SHALL BE INTERPRETED TO MEAN AN ITEM PRODUCED BY A MANUFACTURER NORMALLY ENGAGED IN COMMERCIAL PRODUCTION OF THE ITEM/S) COVERED BY THIS SPECIFICATION. THE GOVERNMENT RESERVES THE RIGHT TO REQUIRE ANY BIDDER WHO PROPOSES TO FURNISH OTHER THAN NORMAL COMMERCIAL COMPONENTS, WITH PREVIOUS MILITARY OR COMMERCIAL USAGE EXPERIENCE, TO DELIVER WITH THE END ITEM DETAILED AND SPECIFIC INFORMATION INCLUDING DETAILED ENGINEERING DRAWINGS AND COMPUTATIONS FOR THOSE PARTS.

"3.4 DESIGN AND CONSTRUCTION REQUIREMENTS.--- THE DESIGN AND CONSTRUCTION REQUIREMENT OF ALL COMPONENTS AND ASSEMBLIES OF THE PARTS COVERED BY THIS SPECIFICATION SHALL CONFORM TO THE REQUIREMENTS AS HEREINAFTER SPECIFIED AND TO THE DESIGN, DETAILS, DIMENSIONS, MATERIAL CLASSIFICATION THEREOF SPECIFIED ON THE DRAWINGS REFERENCED IN SECTION 2, (MINIATURE COPIES OF DRAWINGS 6-1-400, 6-1-401, 6-1-402 AND 6-1-550, IDENTIFIED AS FIGURES 1, 2, 3, AND 4 ARE ATTACHED FOR INFORMATION PURPOSES ONLY) AND AS SPECIFIED HEREIN. WHEREVER ALTERNATE COMPONENTS ARE ALLOWED OR A MANUFACTURER'S MODEL NUMBER OR EQUAL IS SPECIFIED ON DRAWINGS, IT IS MANDATORY THAT THESE ALTERNATE AND EQUAL COMPONENTS BE FUNCTIONALLY EQUAL AND DIMENSIONALLY INTERCHANGEABLE IN SO FAR AS MOUNTING DIMENSIONS ARE CONCERNED WITH THE SPECIFIC ITEMS REFERENCED IN THE SPECIFICATION OR ON THE DRAWINGS.

"6.3 CONTRACTING OFFICERS SHOULD REQUIRE EACH BIDDER TO SUBMIT A POSITIVE STATEMENT AS TO WHETHER OR NOT THE ITEM OFFERED FULLY CONFORMS TO THE TERMS OF THIS PURCHASE DESCRIPTION. IN ADDITION, EACH BIDDER SHOULD FURNISH COMPLETE DESCRIPTIVE LITERATURE, DRAWINGS OR PHOTOGRAPHS, AND TECHNICAL DATA COVERING THE EQUIPMENT HE PROPOSES TO FURNISH, IDENTIFYING THE EQUIPMENT BY THE NAME OF THE MANUFACTURER AND THE MODEL NUMBER. LACK OF SPECIFIC AND COMPLETE INFORMATION WILL BE SUFFICIENT CAUSE FOR REJECTION OF BID/S). WHERE THE BIDDER'S PRODUCT DIFFERS FROM THE SPECIFIC REQUIREMENTS, EACH POINT OF DIFFERENCE SHOULD BE CLEARLY DESCRIBED. THIS REQUIREMENT IS SET FORTH TO FACILITATE THE REVIEW OF BIDS AND IS NOT TO BE CONSTRUED BY THE BIDDER AS WAIVING ANY OF THE REQUIREMENTS OF THIS SPECIFICATION.'

SUBSEQUENT TO THE ISSUANCE OF THE INVITATION SOME FIRMS PROTESTED TO THE CONTRACTING AGENCY THE PROPRIETARY NATURE OF THE REQUIREMENTS OF THE PURCHASE DESCRIPTION WITH PARTICULAR REFERENCE TO PARAGRAPHS 3.4 AND 6.3. AS A RESULT OF SUCH PROTESTS, AMENDMENT NO. 1 TO THE INVITATION ISSUED ON MAY 2, 1958, PROVIDED IN PART AS FOLLOWS:

"SPECIFICATIONS ARE AMPLIFIED AS FOLLOWS:

"BIDS MUST PROVIDE THE INFORMATION SPECIFIED IN PARAGRAPH 6.3 OF THE PURCHASE DESCRIPTION SO THAT THEY MAY BE TECHNICALLY EVALUATED.

"WITH RESPECT TO THE USE OF COMMERCIALLY AVAILABLE COMPONENTS IN LIEU OF THOSE SPECIFIED IN THE PURCHASE DESCRIPTION, IF THESE COMPONENTS ARE FUNCTIONALLY EQUAL FROM A DESIGN AND TEST STANDPOINT, THESE COMPONENTS CAN BE UTILIZED PROVIDED THEY CAN BE ADAPTED SO THAT THE OVERALL CONFIGURATION OF THE VEHICLE, TURNING RADIUS, LONGITUDINAL AND LATERAL STABILITY FACTORS, UNDERCLEARANCE, SPACE, DIMENSIONAL LIMITATIONS, ETC., ARE NOT CHANGED. THE DESIGN OF THE BASIC FRAME MUST BE ADHERED TO SINCE IT HAS BEEN RESOLVED THAT THE FRAME MEETS THE NECESSARY STRUCTURAL STRENGTH AND SIZE REQUIRED FOR THE VEHICLES.

"AS TO THE REQUIREMENT FOR PROVISION OF MOUNTINGS FOR CLARK EQUIPMENT COMPANY COMPONENTS IN THE VEHICLE IN ADDITION TO BIDDER'SCOMPONENTS, IT WILL NOT BE NECESSARY TO PROVIDE FOR SUCH MOUNTINGS, BUT SPACE AND DIMENSIONAL LIMITATIONS MUST BE MAINTAINED AS SPECIFIED.'

THE FIVE BIDS RECEIVED WERE OPENED ON MAY 26, 1958, AS SCHEDULED. THE BAKER INDUSTRIAL TRUCKS DIVISION OF THE OTIS ELEVATOR COMPANY STATED IN ITS BID THAT THE EQUIPMENT OFFERED WAS IN STRICT ACCORDANCE WITH THE SPECIFICATIONS. BAKER ALSO SUBMITTED WITH ITS BID THE CONCURRENT SPARE PARTS LISTING AND A LETTER DATED MAY 23, 1958, WHICH STATES:

"OUR BID IS BASED UPON THE SPECIFICATIONS AND DRAWINGS AS SPELLED OUT IN THE INVITATION. WE PROPOSE TO FURNISH OUR MODEL RJF-060 TRUCK WHICH UTILIZES A HERCULES ENGINE, ALLISON TRANSMISSION AND FOUR WHEEL DRIVE COMPANY AXLES. THE CALCULATIONS COVERING OUR PROPOSED DRIVE LINE ARE ATTACHED FOR YOUR REVIEW, AND SHOW THAT THESE PROPOSED COMPONENTS MEET THE PERFORMANCE REQUIREMENTS OF YOUR SPECIFICATIONS. ALSO ATTACHED FOR COMPARISON ARE CALCULATIONS COVERING A DRIVE LINE WHICH UTILIZES CLARK AXLE AND TRANSMISSION AND WAUKESHA ENGINES.'

CLARK EQUIPMENT COMPANY PROTESTS THE CONSIDERATION OF BAKER'S BID ON THE BASIS OF THE TECHNICAL ADEQUACY OF THE EQUIPMENT PROPOSED TO BE FURNISHED BY BAKER AND FOR THE REASON THAT THE INFORMATION REQUIRED BY VARIOUS PROVISIONS OF THE PURCHASE DESCRIPTION, PARTICULARLY PARAGRAPH 6.3, QUOTED ABOVE, WERE NOT COMPLIED WITH BY BAKER.

THE CONTRACTING OFFICER REPORTS THAT "THE PURCHASE DESCRIPTION COVERING THE SUPPLIES CONTAINED A LIST OF DRAWINGS WHICH, ALONG WITH THE DETAILED SPECIFICATIONS CONTAINED THEREIN, FULLY AND ACCURATELY DESCRIBED THE FABRICATION OF THE TRUCKS SO AS TO MEET THE SPECIFIED PERFORMANCE STS.' THEREFORE, IT WOULD APPEAR THAT THERE WAS NO INFORMATION THAT A BIDDER WHO OFFERED TO COMPLY WITH THE SPECIFICATIONS COULD ACTUALLY SUBMIT WITH THE BID OTHER THAN THE PLANS, DRAWINGS AND SPECIFICATIONS WHICH WERE A PART OF THE INVITATION ITSELF.

THE ALTERNATE ITEMS WHICH BAKER SPECIFIED IN HIS BID THAT IT WOULD FURNISH ARE STATED BY THE TECHNICAL PERSONNEL OF THE STORAGE DIVISION OF THE BUREAU OF SUPPLIES AND ACCOUNTS WHICH HAS A TECHNICAL COGNIZANCE OVER ALL MATERIALS HANDLING EQUIPMENT UNDER SINGLE SERVICE PROCUREMENT, TO BE "ALLOWED BY AMENDMENT NO. 1 TO THIS IFB AND ARE CONSIDERED TO BE SATISFACTORY ALTERNATES TO THE CORRESPONDING ENGINE, TRANSMISSION, AND DRIVE ASSEMBLIES SPECIFIED IN THE REFERENCED CIFICATION.' OTHERWISE BAKER'S BID TOOK NO EXCEPTION WHATSOEVER TO THE REQUIREMENTS OF THE PURCHASE DESCRIPTION AND SPECIFICALLY ANSWERED "YES" TO THE QUESTION CONTAINED IN THE VITATION,"IS EQUIPMENT OFFERED IN STRICT ACCORDANCE WITH GOVERNING SPECIFICATIONS?

THE CONTRACTING OFFICER STATES THAT AFTER HAVING EXHAUSTIVELY EXAMINED THE FACTS OF THE CASE, HE IS OF THE OPINION THAT NOTWITHSTANDING THE ALLEGATIONS OF CLARK EQUIPMENT COMPANY, THEIR INTERPRETATION OF REGULATIONS AND THE INTENT OF THE GOVERNMENT AND OF THE LOW BIDDER, THE BID OF BAKER INDUSTRIAL TRUCKS DIVISION OF OTIS ELEVATOR COMPANY, IS RESPONSIVE TO THE TERMS AND SPECIFICATIONS OF THE INVITATION, IFB 600-1405 -58. THIS CONCLUSION IS BASED ON THE FOLLOWING FACTS:

"/A) THE COMPANY IN ITS BID STATED UNEQUIVOCALLY THAT IT WAS BIDDING IN STRICT ACCORDANCE WITH THE SPECIFICATIONS AND REITERATED THE SAME IN THEIR COVERING LETTER, IN THEIR LETTER OF 3 JUNE 1958 AND IN ALL COMMUNICATIONS WITH THE CONTRACTING OFFICER;

"/B) THE COMPANY DID COMPLY WITH THE MATERIAL REQUIREMENTS OF THE SPECIFICATIONS;

"/C) THE COMPANY DID NOT AT ANYTIME CONTRADICT, EITHER DIRECTLY OR BY IMPLICATION, THEIR UNEQUIVOCAL OFFER TO MEET SPECIFICATIONS WITHOUT EXCEPTION.'

IN VIEW OF THE FOREGOING WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN HOLDING THAT BAKER'S BID WAS UNRESPONSIVE TO THE INVITATION. WERE WE TO HOLD THAT BAKER'S BID WAS UNRESPONSIVE IT WOULD APPEAR THAT WE WOULD BE REQUIRED TO QUESTION THE RESTRICTIVE NATURE OF THE PURCHASE DESCRIPTION. ACCORDINGLY, YOU ARE ADVISED THAT THE BID OF BAKER INDUSTRIAL TRUCKS DIVISION OF THE OTIS ELEVATOR COMPANY MAY BE CONSIDERED RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION HERE INVOLVED.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT OF FACTS AND RECOMMENDATION, ARE RETURNED.