B-150146, DEC. 18, 1962

B-150146, DEC. 18, 1962

TO INTERNATIONAL HARVESTER COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 29, 1962, WITH ENCLOSURES, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. FNVN-F 42634, ISSUED BY THE NATIONAL BUYING DIVISION, FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION. YOU CONTEND, IN SUBSTANCE, THAT YOUR BID WAS COMPLETELY RESPONSIVE TO THE INVITATION AND, SINCE IT WAS THE LOWEST OFFER RECEIVED, SHOULD HAVE BEEN ACCEPTED.

THE SUBJECT INVITATION SOUGHT BIDS FOR THE FURNISHING OF 1,809 PARCEL DELIVERY TRUCKS IN ACCORDANCE WITH THE SEVERAL SPECIFICATIONS MADE A PART THEREOF. POST OFFICE DEPARTMENT SPECIFICATIONS NO. POD-T 173, DATED APRIL 25, 1962, COVERS FOUR WHEEL PARCEL DELIVERY TRUCKS, ONE TON CAPACITY, AND INCORPORATES BY REFERENCE A LIST OF OTHER FEDERAL AND MILITARY SPECIFICATIONS, INCLUDING FEDERAL SPECIFICATION NO. KKK-T-719, FOR TRUCKS OF 6,400 POUNDS GROSS VEHICLE WEIGHT. PARAGRAPH 3.19.2 OF THE LATTER SPECIFICATION PROVIDES IN PERTINENT PART AS FOLLOWS: "UNLESS THE TIRE SIZE IS SPECIFIED IN THE INVITATION FOR BIDS, EACH TIRE SHALL HAVE A LOAD- CARRYING CAPACITY BASED ON THE TIRE AND RIM ASSOCIATION, INC. RATING AT LEAST EQUAL TO THE LOAD IMPOSED UPON IT BY THE FULLY EQUIPPED AND LOADED VEHICLE.'

THE INVITATION STIPULATED THAT QUESTIONNAIRE FORM FSS-130, COMPLETELY FILLED IN MUST BE SUBMITTED WITH MOTOR VEHICLE QUOTATIONS AND WOULD BE MADE A PART OF ANY RESULTING CONTRACT. IT FURTHER PROVIDED THAT--- "WHEN THE DATA INSERTED BY THE BIDDER IN THE QUESTIONNAIRE DIFFERS FROM THE SPECIFICATION CONTAINED IN THE INVITATION FOR BIDS, IT WILL BE CONCLUDED BY THE GOVERNMENT THAT THE BIDDER INTENDS TO BIND HIMSELF IN ANY RESULTING CONTRACT, TO WHICH HE HAS STATED HE WILL OFFER IN THE QUESTIONNAIRE, RATHER THAN WHAT IS REQUIRED BY THE SPECIFICATION OF THE INVITATION.'

YOUR COMPLETED FORM FSS-130 SUBMITTED WITH YOUR BID SHOWED THAT THE GROSS VEHICLE WEIGHT ON THE REAR TIRES WOULD BE 3,875 POUNDS (ITEM 1C). UNDER ITEM 15 YOU LISTED THE SIZE OF THE TIRES WHICH YOU CONTEMPLATED FURNISHING AS 7.00 BY 15, SIX PLY AND UNDER ITEM 25 YOU STATED THAT THE TRUCK OFFERED WOULD NOT DEVIATE FROM THE SPECIFICATIONS.

IT IS YOUR CONTENTION THAT THE SIZE YOU SPECIFIED IS "OF CAPACITY SUITABLE" FOR THE VEHICLE WEIGHT OF THE TRUCK, AS SET FORTH IN THE FIRST SENTENCE OF PARAGRAPH 3.3.16.1 OF THE SPECIFICATIONS (POD-T-173) PREVIOUSLY REFERRED TO. HOWEVER, THAT ARGUMENT COMPLETELY DISREGARDS THE CLEAR DIRECTIVE CONTAINED IN THE SECOND SENTENCE OF THAT PARAGRAPH AND PARAGRAPH 3.19.2 OF FEDERAL SPECIFICATION NO. KKK-T-719, WHICH REQUIRES THAT EACH TIRE SHALL HAVE A LOAD CARRYING CAPACITY BASED ON THE TIRE AND RIM ASSOCIATION, INC. RATING. YOU STATE IN YOUR LETTER OF OCTOBER 29,SUPRA, THAT ENGINEERING DATA LISTS THE SIZE TIRE YOU SPECIFIED AS HAVING A MAXIMUM RATED LOAD OF 1,605 POUNDS. IN THAT CONNECTION WE ARE ADVISED THAT THE LATEST EDITION OF THE TIRE AND RIM ASSOCIATION, INC. PUBLICATION RATES SUCH TIRE AS 1,520 POUNDS. IN ANY EVENT, UNDER THE COMPUTATION FURNISHED BY YOU THE REAR AXLE TIRES OF YOUR VEHICLE WOULD BE OVERLOADED AT LEAST BY 665 POUNDS ON THE OFFERED SIZE (1,605 TIMES 2 EQUALS 3,210, AS COMPARED TO THE STIPULATED REAR WEIGHT OF 3,875 POUNDS). FOR THAT REASON YOUR BID WAS REJECTED AS BEING NONRESPONSIVE, WHICH ACTION WAS APPROVED BY THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION AND, BY THE USING AGENCY, THE POST OFFICE DEPARTMENT. AWARD WAS MADE TO THE NEXT BIDDER AT AN AVERAGE PRICE, CONSIDERING DISCOUNTS, $21.01 PER TRUCK IN EXCESS OF YOUR AVERAGE BID PRICE.

THE FACT THAT YOU AFFIRMATIVELY STATED THAT NO EXCEPTION IS TAKEN TO THE SPECIFICATIONS MAY NOT BE ACCEPTED AS A CURE FOR THE MATERIAL DEFECT CONTAINED IN YOUR BID. B-149172, AUGUST 8, 1962, 42 COMP. GEN. - . WHILE YOU CONTENDED THAT YOU WOULD FURNISH WHATEVER SIZE WAS REQUIRED, YOUR BID IN FACT OFFERED A DEFINITE SIZE--- WHICH YOU STILL CONTEND IS ADEQUATE--- AND WE KNOW OF NO BASIS FOR HOLDING THAT ACCEPTANCE OF THE BID WOULD HAVE OBLIGATED YOU TO FURNISH ANY OTHER SIZE. THE FACT THAT THE SUBJECT TIRE MAY BE CONSIDERED SUITABLE FOR THE SAME WEIGHT TRUCKS IN COMMERCIAL USE OR FOR OTHER GOVERNMENT PROCUREMENTS HAS NO LEGAL FORCE OR EFFECT AS TO THIS TRANSACTION. HERE, THE REQUIRED TIRE LOADING WAS STIPULATED AND IN SUCH CASES IT HAS BEEN HELD REPEATEDLY THAT THE UNITED STATES IS NOT REQUIRED TO PURCHASE EQUIPMENT OR SUPPLIES MERELY BECAUSE THEY ARE OFFERED AT A LOWER PRICE WHEN, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, IN DRAFTING THE SPECIFICATIONS, THE MINIMUM NEEDS OF THE GOVERNMENT ARE PREDETERMINED. B-144844, MAY 11, 1961. CLEARLY, IN THE ORDERLY CONDUCT OF ITS BUSINESS THE GOVERNMENT MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE SUCH DISCRETIONARY AUTHORITY WITH ONE OF ITS POTENTIAL SUPPLIERS.

ACCORDINGLY, THE ACTION TAKEN BY THE GENERAL SERVICES ADMINISTRATION WILL NOT BE DISTURBED.