B-151355, JUN. 25, 1963

B-151355, JUN. 25, 1963

TO THE AUTOMATIC DIVISION, YALE AND TOWNE MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 18, 1963, PROTESTING AGAINST THE ACTION OF THE DEFENSE SUPPLY AGENCY IN REJECTING YOUR LOW BID UNDER IFB NO. DSA-4-63-1853.

INVITATION FOR BIDS NO. DSA-4-63-1853 WAS ISSUED ON 25 JANUARY 1963 INVITING BIDS ON 34 EACH, TRUCK, LIFT, FORK, ELECTRIC: SOLID RUBBER TIRE; TYPE EE, SIZE III, WITHOUT BATTERY; (FOR SHIPBOARD USE) IN ACCORDANCE WITH MIL-T-15636E, DATED 29 AUGUST 1958, AMENDMENT NO. 1, DATED 30 OCTOBER 1959, AS MODIFIED THEREIN. CERTAIN CHANGES TO THE SPECIFICATIONS WERE MADE BY AMENDMENTS 1 AND 2 TO THE INVITATION FOR BIDS AND THE BIDS WERE OPENED ON FEBRUARY 27, 1963, WITH FIVE FIRMS SUBMITTING BIDS IN RESPONSE THERETO.

YOUR COMPANY SUBMITTED THE LOWEST BID. HOWEVER, YOUR BID WAS ACCOMPANIED BY A LETTER READING AS FOLLOWS:

"WE WILL FURNISH OUR SHIPBOARD USE MODEL CFH-40 SIMILAR TO THE TRUCK ILLUSTRATED ON THE ATTACHED DRAWING 3-9654, DATED SEPTEMBER 17, 1962.

EXCEPT FOR THE FOLLOWING DEVIATIONS, THE TRUCKS WILL BE IN EXACT ACCORDANCE WITH YOUR SPECIFICATIONS:

(1) WE TAKE TOTAL EXCEPTION TO THE PARAGRAPH ENTITLED "NOTE" ON TOP OF PAGE 6 AS THE WORDING IS TOO GENERAL AND OPEN TO TOO MANY INTERPRETATIONS. ACCORDING TO THE PARAGRAPH AS WRITTEN, EVEN WITH AMENDMENT NUMBER ONE TO THE INVITATION, THE TEST COULD BE CONDUCTED WITH THE LOAD RAISED TO ANY HEIGHT AND SIDESHIFTED AS MUCH AS FOUR INCHES OFF THE CENTER-LINE.

OUR BRAKES WILL HOLD AND STOP THE TRUCK ON THE 15 DEGREE INCLINE, LOADED OR UNLOADED, WITH THE FORKS OR LOAD HEADING UP OR DOWN THE INCLINE, WITH THE FORKS OR LOAD CENTERED (NOT SHIFTED TO THE LEFT OR RIGHT) AND THE TOP SURFACE OF THE FORKS RAISED NO MORE THAN TO CLEAR THE LOAD AND FORKS FROM THE FLOOR LEVEL, WITH FULL BACK TILT.

(2) PARAGRAPH 3.6.3: THE SPECIFICATIONS DO NOT TAKE INTO CONSIDERATION THE INCREASED OVERALL LENGTH OF THE TRUCK WHEN EQUIPPED WITH THE SIDESHIFTER AND HINGED FORK ADAPTATION. THIS RESULTS IN AN OPERATIONAL RIGHT ANGLE AISLE OF 148 INCHES AS SHOWN ON DRAWING S 9654. WHILE OUR OWN TEST OPERATORS CAN PERFORM IN THE 146 INCHES SPECIFIED, THAT WHICH CAN BE ACCOMPLISHED ON A FACTORY TEST FLOOR CANNOT EASILY BE REPEATED IN AN ACTUAL OPERATION WITH SOMETIMES INEXPERIENCED PERSONNEL. WE THEREFORE STATE THAT OUR TRUCK REQUIRES 148 INCHES FOR THIS FUNCTION.

(3) PARAGRAPH 3.3.2.1: WE WILL FURNISH THE "SIPE" CUT CUSHION TYPE TIRE ON THE DRIVE WHEELS AND THE "SIPE" CUT SOLID TYPE TIRE ON THE TRAIL WHEELS AS WE HAVE FOUND THAT THIS IS THE BEST COMBINATION TO MINIMIZE WHEEL SLIPPAGE AS OUTLINED IN PARAGRAPHS 3.3.4.1.

(4) PARAGRAPH 3.6.5: OUR TOP TRAVEL SPEED RANGE IS FROM NO LESS THAN 3 1/2 MPH TO NO MORE THAN 4 1/2 MPH. WITH THE TOP TRAVEL SPEED SO REDUCED, THE TIME REQUIRED FOR THE ACCELERATION TEST PARAGRAPH 3.6.19 IS INCREASED FROM 5 SECONDS TO 6 SECONDS AS HAS BEEN PREVIOUSLY RECOGNIZED.'

IN VIEW OF THE/FOREGOING, YOUR BID WAS REJECTED AS NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION, AND UNDER DATE OF APRIL 12, 1963, YOUR COMPANY WAS ADVISED BY THE CONTRACTING OFFICER AS FOLLOWS:

"THE BID SUBMITTED BY AUTOMATIC WAS DETERMINED TO BE NONRESPONSIVE PURSUANT TO PARAGRAPH 2.404.2 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION BASED UPON YOUR STATEMENTS IN YOUR LETTER DATED 22 FEBRUARY 1963, WHICH ACCOMPANIED YOUR BID, I.E., "EXCEPT FOR THE FOLLOWING DEVIATIONS, THE TRUCKS WILL BE IN EXACT ACCORDANCE WITH YOUR SPECIFICATIONS.'

CONSIDERATION OF YOUR ALLEGED DEVIATIONS REVEALED STATEMENTS THAT:

"WE . . . STATE OUR TRUCK REQUIRES 148 INCHES . . .'

"WE WILL FURNISH . . .'SIPE" CUT SOLID TYPE TIRE . . .'

"OUR TOP TRAVEL SPEED RANGE IS . . . NO MORE THAN 4

1/2 MPH.'

DESPITE YOUR ALLEGATIONS OF IMPOSSIBILITY, THERE WERE THREE BIDDERS WHO TOOK NO EXCEPTIONS TO THE SPECIFICATIONS. FURTHERMORE, THE CONTRACTING OFFICER REFERRED YOUR BID AND ACCOMPANYING LETTER FOR EVALUATION TO TECHNICAL PERSONNEL OF THIS CENTER WHO CONFIRMED THE VALIDITY OF THE SPECIFICATIONS, AS AMENDED.

AS A RESULT, THE CONTRACTING OFFICER REJECTED YOUR BID AND MADE AWARD TO PETTIBONE MERCURY, DIVISION OF PETTIBONE MULLIKEN CORPORATION, UNDER CONTRACT DSA-4-1930.'

YOUR PROTEST AGAINST REJECTION OF YOUR BID ALLEGES THAT CERTAIN OF THE STATEMENTS IN THE LETTER ACCOMPANYING THE BID ARE EXPLANATORY OF THE METHODS TO BE USED TO ACHIEVE SPECIFICATION PERFORMANCE REQUIREMENTS, AND THE OTHERS ARE EXCEPTIONS WHICH HAD TO BE TAKEN IN ORDER TO AVOID BEING AWARDED A CONTRACT CONTAINING SPECIFICATIONS WHICH IT WOULD BE IMPOSSIBLE TO MEET.

WITH RESPECT TO POINT (1) IN THE LETTER ACCOMPANYING YOUR BID, THE CONTRACTING OFFICER HAS ADVISED THAT THE TEST PROCEDURE, AS SET OUT IN TEST FORM NO. 9 TO MIL-STD 268B WHICH IS INCORPORATED IN THE INVITATION SPECIFICATIONS, DOES NOT STATE WHERE THE LOAD WILL BE LOCATED DURING THE TEST PROCEDURE. IT WAS THEREFORE HIS OPINION THAT THE CONTRACTOR WOULD BE PERMITTED TO PLACE THE LOAD IN ANY POSITION HE MIGHT CHOOSE, AND HE THEREFORE DID NOT CONSIDER THE STATEMENTS CONTAINED IN POINT (1) OF THE LETTER ACCOMPANYING YOUR BID TO BE A DEVIATION FROM THE REQUIREMENTS OF THE INVITATION. SINCE POINT (1) WAS NOT LISTED AS A CAUSE OF REJECTION IN THE CONTRACTING OFFICER'S LETTER OF APRIL 12 TO YOUR COMPANY, IT WOULD APPEAR THAT NO FURTHER CONSIDERATION NEED BE GIVEN TO THIS PORTION OF YOUR PROTEST.

CONCERNING POINT (2) IN THE LETTER ACCOMPANYING YOUR BID, YOUR PROTEST IS SILENT AS TO ANY ADDITIONAL REASON OR JUSTIFICATION FOR THE STATEMENTS CONTAINED THEREIN, NOR DO YOU CONTEST THE CONTRACTING OFFICER'S INTERPRETATION, AS STATED IN HIS LETTER OF APRIL 12 TO YOUR COMPANY, THAT POINT (2) CONSTITUTES A STATEMENT BY YOUR COMPANY THAT YOUR TRUCK REQUIRES 148 INCHES TO NEGOTIATE A RIGHT ANGLE TURN. THE CONTRACTING OFFICER HAS ADVISED THAT HE HAS DETERMINED IT IS NOT IMPOSSIBLE FOR TRUCKS EQUIPPED WITH SIDESHIFTERS AND HINGED FORK ADAPTATIONS TO MEET THIS REQUIREMENT. SINCE WE ARE OF THE OPINION THAT ACCEPTANCE OF YOUR BID, SUBJECT TO YOUR STATEMENT IN POINT (2), WOULD HAVE OBLIGATED YOUR COMPANY ONLY TO FURNISH TRUCKS CAPABLE OF NEGOTIATING A RIGHT ANGLE TURN IN NO MORE THAN 148 INCHES, WE MUST AGREE WITH THE CONCLUSION OF THE CONTRACTING OFFICER THAT THIS QUALIFICATION IN YOUR BID CONSTITUTED A MATERIAL DEVIATION FROM THE SPECIFICATION REQUIREMENTS WHICH RENDERED YOUR BID NONRESPONSIVE TO THE INVITATION AND REQUIRED REJECTION OF THE BID.

WHILE CONSIDERATION OF POINTS (3) AND (4) MAY THEREFORE BE ACADEMIC, IT SHOULD BE NOTED THAT PARAGRAPH 3.3.2.1 OF MIL-T-15636E, AS AMENDED ON PAGE 4 OF THIS INVITATION FOR BIDS, REQUIRED ALL FOUR TIRES TO BE OF THE NON- SKID CUSHION TYPE. THE REQUIREMENT WITH RESPECT TO BRAKES TO WHICH YOUR PROTEST REFERS IS SET OUT AS FOLLOWS UNDER PARAGRAPH 3.3.4.1 OF THE SPECIFICATIONS:

"THE BRAKES SHALL BE SO DESIGNED THAT THE EFFECT OF THE BRAKES WILL BE DIVIDED BETWEEN THE DRIVE AND THE STERN WHEELS IN THE BEST PROPORTION TO MINIMIZE WHEEL SLIPPAGE WHEN STOPPING ON A WET SURFACE UNDER THE FOLLOWING CONDITIONS OF OPERATION: TRUCK FULLY LOADED, TRUCK NOT LOADED, TRAVELING FORWARD AND TRAVELING BACKWARD.'

IT IS THE OPINION OF THE CONTRACTING OFFICER, WITH WHICH WE CONCUR, THAT THE MINIMUM WHEEL STOPPAGE REQUIREMENTS OF PARAGRAPH 3.3.4.1 RELATE ONLY TO THE BRAKING SYSTEM AND HAS NO RELATION TO, OR INCONSISTENCY WITH, THE TIRE REQUIREMENTS SET OUT IN PARAGRAPH 3.3.2.1, AS AMENDED ON PAGE 4 OF THE INVITATION. IN VIEW THEREOF, AND IN VIEW OF THE CONTRACTING OFFICER'S ADVICE THAT THE CUSHION TYPE TIRE SPECIFIED BY THE INVITATION IS MORE EXPENSIVE THAN THE SOLID RUBBER TIRE WHICH YOUR BID PROPOSED TO FURNISH,WE MUST CONCUR IN THE CONTRACTING OFFICER'S CONCLUSION THAT THE STATEMENT CONTAINED IN POINT (3) OF THE LETTER ACCOMPANYING YOUR BID ALSO CONSTITUTED A MATERIAL DEVIATION WHICH RENDERED YOUR BID NONRESPONSIVE. THIS DEFECT COULD NOT BE CURED BY YOUR OFFER ON MARCH 14 TO FURNISH CUSHION TIRES ON BOTH DRIVE AND TRAIL WHEELS, IF SUCH WERE DESIRED.

WITH RESPECT TO POINT (4) IN THE LETTER ACCOMPANYING YOUR BID, THE DEVIATIONS TO THE SPECIFICATIONS CONTAINED ON PAGE 5 OF THE INVITATION STATE THAT PARAGRAPH 3.6.5 THEREOF IS MODIFIED TO PROVIDE THE MAXIMUM SPEED SHALL BE NOT TO EXCEED 3 1/2 TO 4 MPH, AND PARAGRAPH 3.6.19 OF THE SPECIFICATION IS MODIFIED TO REQUIRE THAT THE VEHICLE FROM A STANDING START SHALL HAVE AN AVERAGE ACCELERATION RATE SUCH AS TO NEGOTIATE A DISTANCE OF 22 FEET IN NOT MORE THAN 5 SECONDS. PARAGRAPH 3.6.5, SPECIFICATION MIL-T-1563E, READS AS FOLLOWS:

"WHILE CARRYING A RATED LOAD ON A LEVEL SURFACE, TRUCKS SHALL HAVE A FORWARD AND REWARD SPEED OF NOT LESS THAN 5 MILES PER HOUR, AS MEASURED IN STANDARD MIL-STD 268.' THIS PARAGRAPH WAS AMENDED ON PAGE 5 OF THE INVITATION FOR BIDS AS FOLLOWS: "PARAGRAPH 3.6.5, LINE 3--- DELETE "OF NOT LESS THAN 5 FT. AND SUBSTITUTE "NOT TO EXCEED 3 1/2 TO 4 INCHES.'" THE AMENDMENT INCLUDED THE WORD "INCHES" AND IF THE ENTIRE PARAGRAPH WERE QUOTED AS AMENDED IT WOULD READ AS FOLLOWS: ,WHILE CARRYING A RATED LOAD ON A LEVEL SURFACE, TRUCK SHALL HAVE A FORWARD AND REWARD SPEED NOT TO EXCEED 3 1/2 TO 4 INCHES MILES PER HOUR, AS MEASURED BY STANDARD MIL-STD 268.' YOU CLAIM THAT SINCE PARAGRAPH 3.6.5, AS AMENDED ON PAGE 5 OF THE INVITATION FOR BID, ERRONEOUSLY INSERTED THE WORD "INCHES" THERE WAS, IN EFFECT, NO SPEED REQUIREMENT AND THEREFORE THE INSERTION OF "3 1/2 TO 4 1/2 MILES PER HOUR" IN YOUR BID IS NOT AN EXCEPTION.

IT CAN BE READILY RECOGNIZED FROM READING THE ENTIRE PARAGRAPH AS AMENDED THAT THE WORD INCHES" IS ERRONEOUS AND SHOULD, THEREFORE, BE OMITTED IN READING THIS REQUIREMENT. IT DOES NOT APPEAR THAT ANY OF THE BIDDERS MISUNDERSTOOD THIS REQUIREMENT AND IT IS EVIDENT THAT YOUR COMPANY READ IT AS IT IS INTENDED BECAUSE YOU CROSSED THROUGH THE WORD "INCHES" AND INSERTED IN LIEU THEREOF "MPH.' IT IS THEREFORE APPARENT THAT NO BIDDER WAS PREJUDICED BY THE TYPOGRAPHICAL ERROR CONTAINED IN THE AMENDMENT ON PAGE 5 OF THE INVITATION, SINCE YOUR COMPANY READILY RECOGNIZED THIS ERROR AS DID OTHER BIDDERS. PARAGRAPH 3.6.5 MUST THEREFORE BE CONSTRUED AS IT WAS INTENDED AND UNDERSTOOD BY ALL BIDDERS, WITHOUT REFERENCE TO THE TYPOGRAPHICAL ERROR CONTAINED THEREIN.

YOU FURTHER ALLEGE THAT THE ACCELERATION TEST REQUIREMENTS AS SPECIFIED IN PARAGRAPH 3.6.19 OF THE SPECIFICATION AND THE 15 LAPS PER HOUR TEST COURSE REQUIREMENT OF PARAGRAPH 5.2.2.2.2 OF MIL-STD 268B ARE IMPOSSIBLE IN VIEW OF THE DECREASED MAXIMUM SPEED REQUIREMENTS FOR THE VEHICLE. SINCE THERE IS A RELATIONSHIP BETWEEN THE SPEED AND THESE TEST REQUIREMENTS, DECREASING THE MAXIMUM SPEED REQUIREMENT SHOULD NORMALLY RESULT IN AN ADJUSTMENT IN THE ACCELERATION AND THE TEST COURSE REQUIREMENTS. HOWEVER, TECHNICAL PERSONNEL AT THE DEFENSE GENERAL SUPPLY CENTER DETERMINED BEFORE AWARD THAT THE SPEED REDUCTION WITHOUT A COMMENSURATE ADJUSTMENT IN THE ACCELERATION AND THE TEST COURSE REQUIREMENTS DID NOT RESULT IN IMPOSSIBILITY TO MEET THE ACCELERATION AND 15 LAP PER HOUR TEST REQUIREMENTS. THIS CONCLUSION HAS BEEN RECONSIDERED AND AFFIRMED SINCE RECEIPT OF YOUR PROTEST, AND IN THE ABSENCE OF CONVINCING EVIDENCE THAT SUCH CONCLUSION IS IN ERROR, IT WILL BE ACCEPTED BY THIS OFFICE.

WHILE THE SUCCESSFUL BIDDER IN THIS PROCUREMENT HAS BEEN GRANTED DEVIATIONS FROM THE SPECIFICATIONS REQUIREMENTS ON TWO PREVIOUS PROCUREMENTS OF THE ITEM IN QUESTION, THE RECORD INDICATES THAT NO SUCH DEVIATIONS WERE REQUESTED BY THAT BIDDER, OR WERE TO BE GRANTED TO THAT BIDDER IN THE PRESENT PROCUREMENT, IN VIEW THEREOF, AND SINCE DEVIATIONS IN PREVIOUS CONTRACTS DO NOT CONSTITUTE A PROPER BASIS FOR ANTICIPATING APPROVAL OF THE SAME DEVIATIONS IN A SUBSEQUENT CONTRACT, IT WOULD NOT APPEAR THAT THE MATTERS INCLUDED IN POINT (4) OF THE LETTER ACCOMPANYING YOUR BID ARE OF A NATURE WHICH WOULD AFFECT THE VALIDITY OF THE CONTRACT AWARDED IN THE PRESENT PROCUREMENT.

IN VIEW OF THE FOREGOING WE MUST CONCLUDE THAT THERE IS NO VALID BASIS UPON WHICH THE CONTRACT AWARDED TO THE PETTIBONE MERCURY DIVISION OF THE PETTIBONE MULLIKEN CORPORATION MAY BE QUESTIONED, AND YOUR PROTEST MUST THEREFORE BE DENIED.

FOR YOUR INFORMATION AND GUIDANCE, WE ARE ENCLOSING A COPY OF OUR DECISION OF MAY 24, 1963, B-151155. AS INDICATED AT PAGE 4 OF THAT DECISION, IT IS OUR BELIEF THAT DIFFERENCES OF OPINION, WHICH ARE REFLECTED BY A BIDDER'S DISAGREEMENT WITH THE PROVISIONS OF AN INVITATION OR A SPECIFICATION, SHOULD BE SUBMITTED TO THE CONTRACTING AGENCY PRIOR TO THE SUBMISSION OF A BID WHICH IS QUALIFIED BY A STATEMENT INDICATING THAT THE BIDDER DOES NOT INTEND TO FURNISH ITEMS WHICH COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATIONS. WE THEREFORE SUGGEST THAT, IN FUTURE PROCUREMENT WHERE YOU BELIEVE ANY PROVISION OF THE INVITATION FOR BIDS, DRAWINGS, SPECIFICATIONS, OR OTHER DOCUMENTS WHICH MAY AFFECT CONTRACTUAL OBLIGATIONS UPON AWARD OF THE CONTRACT, IS ERRONEOUS, AMBIGUOUS, OR IMPOSSIBLE OF ATTAINMENT, IT SHOULD BE CALLED TO THE ATTENTION OF THE CONTRACTING OFFICER IN WRITING PRIOR TO BID SUBMISSION, TOGETHER WITH A REQUEST FOR AN AMENDMENT TO THE INVITATION WHICH WILL CORRECT, INTERPRET, OR OTHERWISE EXPLAIN TO ALL BIDDERS THE QUESTIONED PORTION OF THE INVITATION.