B-152033, JAN. 3, 1964

B-152033, JAN. 3, 1964

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTERS OF SEPTEMBER 19 AND DECEMBER 5, 1963, FROM THE ASSISTANT DIRECTOR OF PROCUREMENT, FURNISHING REPORTS ON THE PROTEST OF LETOURNEAU-WESTINGHOUSE COMPANY AGAINST THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. DA-09-177-63-35 ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT MCPHERSON, GEORGIA.

THE INVITATION SOLICITED BIDS--- TO BE OPENED JUNE 25, 1963--- FOR FURNISHING 11 MOTORIZED ROAD GRADERS. THE GRADERS WERE TO BE "DIESEL ENGINE DRIVEN, 13,300 POUNDS MINIMUM BLADE PULL, 12 FOOT BLADE, 6 WHEELS, 4 DRIVING, 2 STEERABLE, LEANING FRONT WHEELS, W/SCARIFIER, CONFORMING TO MIL SPEC MIL-G-804C, TYPE 1, SIZE 3.' THE INVITATION CONTAINED THE USUAL REQUIREMENT THAT BIDDERS WERE TO FURNISH DESCRIPTIVE LITERATURE AND/OR BROCHURES FOR THE ITEMS PROPOSED TO BE FURNISHED AND THAT FAILURE TO SUBMIT DESCRIPTIVE LITERATURE WOULD REQUIRE REJECTION OF BIDS. ALSO, IT WAS STATED THAT THE DESCRIPTIVE LITERATURE WAS REQUIRED TO ESTABLISH, FOR THE PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO PERFORMANCE CHARACTERISTICS AND OPERATION. THREE BIDS WERE RECEIVED. ONE BIDDER SUBMITTED ITS BID ON AN F.O.B. DESTINATION BASIS ONLY. THE LOW BID ON AN F.O.B. ORIGIN BASIS WAS LETOURNEAU-WESTINGHOUSE COMPANY, HEREINAFTER REFERRED TO AS L-W, AND ITS BID WAS $12,454 EACH. THE OTHER BID SUBMITTED ON AN F.O.B. ORIGIN BASIS WAS THAT OF THE GALION IRON WORKS AND MANUFACTURING COMPANY, HEREINAFTER REFERRED TO AS GALION, AND ITS BID WAS IN THE AMOUNT OF $13,118 EACH. W'S BID WAS TRANSMITTED BY LETTER DATED JUNE 21, 1963, IN WHICH IT STATED THAT "WE PROPOSE TO FURNISH OUR MODEL 440 MOTOR GRADER WHICH MEETS THE SPECIFICATIONS AND REQUIREMENTS OF THE INVITATION WITHOUT EXCEPTION.' WAS ACCOMPANIED BY THE COMPANY'S BROCHURE FORM NO. MG-231 ISSUED MAY 1963 WHICH SET OUT THE SPECIFICATIONS OF ITS MODEL 440. GALION'S BID WAS TRANSMITTED WITH ITS LETTER OF JUNE 21, 1963, IN WHICH IT STATED THAT IT WAS QUOTING ITS MODEL 118 MOTOR GRADER. ENCLOSED WITH THAT LETTER WAS ITS BROCHURE OF THE MODEL OFFERED. THE LOW BID OF L-W WAS REJECTED BECAUSE IT WAS DETERMINED THAT ITS MODEL 440 DID NOT MEET THE REQUIREMENTS OF THE INVITATION AS TO MINIMUM BLADE PULL, TIRE SPECIFICATION, HYDRAULICALLY SHIFTABLE MOLDBOARD AND POWER STEERING. THE BID OF GALION WAS ACCEPTED ON JUNE 29, 1963. ON JULY 3, 1963, L-W PROTESTED THE REJECTION OF ITS BID ON THE GROUND THAT THE DETERMINATION MADE BY THE CONTRACTING OFFICE WAS ERRONEOUS. IT IS STATED THAT UPON RECEIPT OF THIS PROTEST GALION WAS REQUESTED AND AGREED TO ACCEPT A STOPWORK NOTICE UNDER THE CONTRACT PENDING THE OUTCOME OF THE PROTEST.

IN SUPPORT OF ITS CONTENTION THAT ITS MODEL 440 DID IN FACT MEET THE MINIMUM BALDE PULL OF 13,300 POUNDS, L-W STATED THAT THE GRADER HAD BEEN QUALIFIED TO CLASS I, SIZE G-5 MOTOR GRADERS UNDER BUREAU OF PUBLIC ROADS SPECIFICATION NO. 00-G-00630A, WHICH IT ALLEGES IS COMPARABLE TO THE TYPE 1, SIZE 3 GRADER UNDER MILITARY SPECIFICATION MIL-G-804C. UPON A REQUEST BY OUR OFFICE FOR VERIFICATION OF THE CORRECTNESS OF THIS CONTENTION, A CHECK WAS MADE WITH THE UNITED STATES ARMY ENGINEER RESEARCH AND DEVELOPMENT LABORATORIES (ERDL), FORT BELVIOR, VIRGINIA, AND IT WAS ASCERTAINED THAT A TEST CONDUCTED IN 1959 SHOWED A BLADE PULL OF 13,800 POUNDS AT A SPEED OF 2.05 MILES PER HOUR. THE REPORT OF ERDL DATED NOVEMBER 21, 1963, ON THIS MATTER OF BLADE PULL SHOWN THAT THE MODEL 440 GRADER WILL MEET THE REQUIREMENTS OF MIL-G-804C IF IT IS EQUIPPED WITH A CUMMINS C-160-BI ENGINE. THE BROCHURE FURNISHED BY L-W SHOWS THAT THE GRADER CAN BE EQUIPPED WITH EITHER THE GM-4-71 ENGINE OR THE CUMMINS C-160 -BI ENGINE. IT WAS INFORMALLY ASCERTAINED FROM THE CHIEF ENGINEER AR ERDL THAT THE GENERAL MOTORS MODEL ENGINE, IF USED IN THE MODEL 440 GRADER, IS NOT QUITE AS EFFICIENT INSOFAR AS BLADE PULL IS CONCERNED. CONFIRMATION OF THE REPORT BY ERDL THE CONTRACTING OFFICER AT TOOELE ARMY DEPOT, TOOELE, UTAH, REPORTS UNDER DATE OF NOVEMBER 19, 1963, THAT TWO MODEL 440 GRADERS WERE ACCEPTED BY THE POST ENGINEER AT THAT DEPOT AS COMPLYING WITH SPECIFICATIONS MIL-C-804C AND THAT THE GOVERNMENT INSPECTOR AT L-W'S PLANT UNDER THAT PURCHASE HAD ADVISED THAT:

"* * * OTHER GRADERS MADE BY LETOURNEAU-WESTINGHOUSE COMPANY TO SPECIFICATION MIL-G-804C HAD PASSED PILOT MODEL TEST, INCLUDING 13,300 LBS MINIMUM BLADE PULL UNDER CONTRACT NO. DA-11-184-ENG-19873 AND 188 EACH MODEL 440, AWARDED BY U.S. ENGINEER PROCUREMENT OFFICE, CHICAGO, ILLINOIS.'

THE REJECTION IN THIS CASE OF L-W'S MODEL 440 FOR NOT MEETING THE BLADE PULL TEST WAS BASED ON APPARENTLY ERRONEOUS INFORMATION FURNISHED THE CONTRACTING OFFICE SUBSEQUENT TO THE OPENING OF BIDS BY A REPRESENTATIVE OF L-W WHO STATED THAT THE MODEL 440 GRADER WAS RATED AT 12,400 POUNDS. THE CONTRACTING OFFICER WAS JUSTIFIED AT THE TIME IN REJECTING THE BID OF L-W SINCE THE INFORMATION RECEIVED SHOWED THAT THE MODEL 440 DID NOT MEET THE PERFORMANCE REQUIREMENTS. THIS MATTER APPEARS TO HAVE BEEN THE PRINCIPAL BASIS FOR THE REJECTION OF THE L-W BID.

THE OTHER FEATURES OF THE MODEL 440 GRADER WHICH WERE REGARDED AS REQUIRING ITS REJECTION FOR NOT MEETING THE SPECIFICATIONS PERTAINED TO (1) THE LARGE FRONT TIRES AND POWER STEERING WHICH THE BROCHURE SHOWED AS OPTIONAL ITEMS AND (2) THE MOLDBOARD WHICH WAS NOT IDENTIFIED AS TO WHETHER IT WAS MECHANICALLY OPERATED OR HYDRAULICALLY OPERATED AS REQUIRED BY SPECIFICATIONS. THE GALION BROCHURE AS REGARDS THE MOLDBOARD SHOWED THE NOTATION "HYDRAULIC SHIFTABLE MOLDBOARD AVAILABLE.' THIS NOTATION WAS REGARDED AS INDICATING THAT GALION WOULD FURNISH A HYDRAULICALLY OPERATED MOLDBOARD. IT IS NOT CONTENDED BY THE CONTRACTING OFFICE THAT L-W WOULD NOT FURNISH THE OPTIONAL ITEMS (LARGE FRONT TIRES AND POWER STEERING) BUT RATHER THAT THE MERE FACT THESE TWO ITEMS WERE OFFERED AS OPTIONAL SUPPORTS THE CONTENTION THAT THE MODEL 440 GRADER "IS DESIGNED FOR A LIGHTER RANGE OF WORK PERMITTING A LOWER MINIMUM BLADE PULL RATING.' THE FACT REMAINS, HOWEVER, THAT THE TECHNICAL PERSONNEL AT ERDL CONSIDERS THAT THE MODEL 440 MORE THAN MEETS THE MINIMUM BLADE PULL WHICH WAS CONSIDERED THE MAIN PERFORMANCE REQUIREMENT. THE FOLLOWING STATEMENT WAS MADE IN THIS CONNECTION BY AN OFFICIAL OF THE THIRD UNITED STATES ARMY ENGINEER SECTION:

"C. WITH RESPECT TO THIS COMPATIBILITY OF ACCEPTING THE OPTIONAL PROVISIONS OF THE GALION BROCHURE AS RELATES TO THE HYDRAULICALLY SHIFTABLE MOLDBOARD AS OPPOSED TO THE OBJECTION TO THE OPTIONAL PROVISIONS OF THE LETOURNEAU-WESTINGHOUSE BROCHURE AS TO LARGE FRONT TIRES AND POWER STEERING, THE FOLLOWING FACTORS WERE CONSIDERED:

"/1) THE LARGE FRONT TIRES AND POWER STEERING WERE CONSIDERED BASIC TO THE QUALIFICATIONS OF THE MODEL 440 GRADER UNDER THE SPECIFICATIONS WHEREAS THE HYDRAULICALLY SHIFTABLE MOLDBOARD WAS NOT. DETERMINATION THAT THE MODEL 440 GRADER QUALIFIED AS A TYPE 1, SIZE 3, MINIMUM BLADE PULL RATING OF 13,300 POUNDS WOULD NOT HAVE BEEN AFFECTED BY WHETHER THE MACHINE WAS OR WAS NOT EQUIPPED WITH A HYDRAULICALLY SHIFTABLE MOLDBOARD.

"/2) THE HYDRAULICALLY SHIFTABLE MOLDBOARD WAS CONSIDERED AS A DISTINCT ITEM. OUR SPECIFICATIONS REQUIRED THE GRADER TO HAVE THIS ADDED AND DESIRABLE FEATURE. THE GALION BROCHURE INDICATED THE FEATURE AS BEING AVAILABLE WITH THEIR MODEL 118 GRADER, THE LETOURNEAU WESTINGHOUSE BROCHURE DID NOT INDICATE THE FEATURE AS BEING AVAILABLE WITH THE MODEL 440 GRADER, SO THE OBJECTION WAS TAKEN.'

WITH RESPECT TO THE MOLDBOARD WHICH WAS NOT CONSIDERED "BASIC TO THE QUALIFICATIONS OF THE MODEL 440 GRADER," THE CHIEF ENGINEER, ERDL, HAS INFORMALLY ADVISED US THAT L-W'S BROCHURE NO. MG-191 ISSUED JUNE 1961, CONSISTING OF FOUR PAGES, SHOWED THE HYDRAULIC MOLDBOARD ON THE MODEL 440 GRADER AS AN OPTIONAL ITEM BUT WHEN THE BROCHURE OF THIS MODEL WAS REISSUED IN MAY 1963 (NO. MG-231) IT CONSISTED ONLY OF TWO PAGES AND SOME OF THE DESCRIPTION IN THE 1961 BROCHURE WAS ELIMINATED BUT THE HYDRAULIC MOLDBOARD WAS STILL AN OPTIONAL ITEM.

THUS IT NOW APPEARS THAT THE INFORMATION WHICH THE CONTRACTING OFFICER HAD BEFORE HE MADE AWARD TO GALION WAS ERRONEOUS INSOFAR AS THE MINIMUM BLADE PULL OF THE MODEL 440 GRADER OFFERED BY L-W WAS CONCERNED AND THE RECORD SHOWS THAT THE MODEL WILL MEET THE MINIMUM BLADE PULL REQUIRED BY THE SPECIFICATIONS. ALSO IT APPEARS THAT THE OPTIONAL ITEMS OF LARGE TIRES ON THE FRONT WHEELS AND OF POWER STEERING WHICH WERE REGARDED AS CONFIRMING A BLADE PULL LOWER THAN 13,300 POUNDS MAY NOT BE SO REGARDED IN VIEW OF THE ADDITIONAL INFORMATION NOW PRESENTED THAT THE GRADER MEETS THE BLADE PULL REQUIREMENTS. THE SOLE QUESTION REMAINING IS WHETHER THE FAILURE OF L W TO SHOW IN ITS BROCHURE THAT THE HYDRAULIC MOLDBOARD WAS AVAILABLE SHOULD BE REGARDED AS A FAILURE TO FURNISH DESCRIPTIVE DATA REQUIRED BY THE INVITATION AND WHICH WOULD REQUIRE REJECTION OF ITS BID.

OUR OFFICE HAS CONSISTENTLY RECOGNIZED THAT IN APPROPRIATE CIRCUMSTANCES INVITATIONS MAY REQUIRE, AS A CONDITION OF RESPONSIVENESS, THE SUBMISSION WITH THE BID OF DESCRIPTIVE DATA IN ORDER TO FIX PRECISELY THE NATURE OF THE ITEM OR ITEMS TO BE FURNISHED UNDER THE CONTRACT. SEE 36 COMP. GEN. 376; ID. 415. A MERE ALLEGATION THAT ALL THE SPECIFICATIONS WILL BE MET ORDINARILY IS NOT SUFFICIENT TO SATISFY A DATA REQUIREMENT. SEE 40 COMP. GEN. 132, 135. THIS IS PARTICULARLY TRUE WHERE A BIDDER OFFERS A STANDARD PRODUCTION MODEL MODIFIED AS NECESSARY TO MEET THE SPECIFICATIONS. SUCH CASES THE BIDDER SHOULD FURNISH DETAILS AS TO HOW IT WILL MODIFY THE MODEL. SEE B-150622, JUNE 6, 1963. HOWEVER, IN THIS CASE THE HYDRAULICALLY OPERATED MOLDBOARD WAS NOT CONSIDERED "BASIC TO THE QUALIFICATIONS" OF THE MODEL 440 GRADER BUT AS A DISTINCT ITEM AND FROM THE BID OF GALION COULD BE CONSIDERED MERELY AS AN OPTIONAL ITEM TO A GRADER. IT WOULD APPEAR, THEREFORE, THAT THE FAILURE TO MENTION SUCH AN OPTIONAL ITEM IN THE BROCHURE WOULD NOT RELIEVE L-W OF FURNISHING SUCH AN OPTIONAL ITEM IF ITS BID HAD BEEN ACCEPTED. NO DATA WAS REQUIRED AS TO HOW THIS HYDRAULICALLY OPERATED MOLDBOARD WOULD FUNCTION OR HOW IT WOULD BE ATTACHED TO THE GRADER. INSOFAR AS THE RECORD SHOWS, GALION DID NOT FURNISH ANY DATA IN THIS REGARD.

IT HAS BEEN REPORTED THAT NO DELIVERY ORDERS HAVE BEEN PLACED AGAINST THE CONTRACT AWARDED TO GALION AND THAT IT HAS ACCEPTED A STOPWORK ORDER UNDER THE CONTRACT PENDING THE OUTCOME OF THIS PROTEST. IF, AS INDICATED BY THE LETOURNEAU-WESTINGHOUSE COMPANY, IT IS STILL WILLING TO ACCEPT AWARD AT ITS BID PRICE, THE CONTRACT SHOULD BE CANCELED AND AWARD MADE TO IT. ..END