B-155436, DEC. 11, 1964

B-155436, DEC. 11, 1964

TO ERIE STRAYER COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19, 1964, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. DSA-7-65-438, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO, ON AUGUST 3, 1964.

THE INVITATION SOLICITED BIDS ON A 2 1/2 CUBIC YARDS NOMINAL CAPACITY BUCKET DESCRIBED AS ,BUCKET, CLAMSHELL, TWO LINE, LEVER ARM, GENERAL PURPOSE TYPE, 5 TEETH, A/A SIZE CABLE REQUIREMENT. IN ACCORDANCE WITH MIL -B-16028C, DATED 21 JUN 60, TITLED - BUCKETS CLAMSHELL, TYPE 2, SIZE 25.' THE REFERENCED MILITARY SPECIFICATION MIL-B-16028C PROVIDES UNDER PARAGRAPH 3.4.2 THAT "THE LIPS OF THE BUCKET SHALL BE OF CAST MANGANESE, CHROME NICKEL, OR CHROME VANADIUM STEEL, OR COMBINATIONS THEREOF, HEAT TREATED TO A BRINELL HARDNESS OF 185 AND SHALL BE GROUND TO A SUITABLE CUTTING EDGE.'

FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THE LOWEST WAS SUBMITTED BY ERIE STRAYER COMPANY. YOUR BID WAS ACCOMPANIED BY MATERIAL INCLUDING A FOUR PAGE DOCUMENT ENTITLED ,SPECIFICATIONS FOR ERIE 2-LINE CLAMSHELL BUCKET" WHICH CONTAINED TYPEWRITTEN DIMENSIONAL DATA FOR A 2 1/2 CUBIC YARDS BUCKET ON PAGE 1 OF THE OTHERWISE PREPRINTED DOCUMENT. THE CONTRACTING OFFICER INTERPRETED SUCH DOCUMENT AS FORMING AN INTEGRAL PART OF YOUR BID AND AS DESCRIBING THE ITEM WHICH YOU PROPOSED TO FURNISH IN RESPONSE TO THE ADVERTISED SPECIFICATIONS. SUCH INTENDED PURPOSE OF THE SPECIFICATION ATTACHMENT APPEARS TO BE BORNE OUT BY YOUR STATEMENT "FOR PURPOSES OF CLARIFICATION WE ATTACHED OUR STANDARD SPECIFICATION SHEET WHICH IN NO WAY INDICATES OUR HAVING OFFERED A PRODUCT NOT IN FULL ACCORDANCE WITH THE SPECIFICATIONS EXCEPT FOR THE ONE SITUATION OF OFFERING A SEVEN TOOTH BUCKET WHICH IS DEFINITELY SUPERIOR TO A FIVE TOOTH BUCKET.'

YOU CONTEND THAT REPRESENTATIONS MADE BY THE CONTRACTING OFFICER IN AN ORAL DISCUSSION WITH YOUR REPRESENTATIVE THAT THE SHEAVE BEARINGS AND THE BUCKET LIPS OF YOUR PRODUCT DID NOT MEET SPECIFICATIONS ARE ERRONEOUS, AND ALSO THAT YOUR SEVEN-TOOTH BUCKET OFFERED IN LIEU OF THE ADVERTISED FIVE- TOOTH BUCKET MET THE SPECIFICATIONS AS IT IS SUPERIOR AND ACTUALLY EXCEEDS THE REQUIREMENT IN THAT RESPECT. YOU FURTHER STATE THAT IT IS YOUR OPINION THAT, ASIDE FROM THE FIVE OR SEVEN TOOTH ISSUE, THE PROCURING AGENCY HAS INADVERTENTLY DRAWN IMPROPER CONCLUSIONS BY CATALOGUE LITERATURE RELATIVE TO YOUR LINE OF CLAMSHELL BUCKETS OBTAINED FROM SOME SOURCE OTHER THAN HAVING BEEN SUBMITTED IN ACCOMPANIMENT WITH YOUR QUOTATION.

IN COMMENTING ON YOUR CONTENTIONS THE CONTRACTING OFFICER REPORTS:

"THE PROTESTING BIDDER STATES THAT THE BEARINGS IN THE BUCKET SHEAVES MEET SPECIFICATIONS AND THAT ITS SEVEN TOOTH BUCKET EXCEEDS SPECIFICATIONS. THE CONTRACTING OFFICER NEITHER ADMITS NOR DENIED THESE ALLEGATIONS, BUT STATES THAT NEITHER OF THESE POINTS WAS THE REASON FOR REJECTION. TO THE EXTENT THAT, IN ORAL DISCUSSION WITH THE BIDDER'S REPRESENTATIVE, SHE MAY HAVE LED HIM TO BELIEVE THAT THESE WERE GROUNDS FOR REJECTION, THE CONTRACTING OFFICER AGREES THAT THE BIDDER WAS MISINFORMED.

"HOWEVER, ERIE STRAYER ALSO STATES: "THE ADDITIONAL CLAIM THAT WE OFFERED BUCKET LIPS MADE OF HIGH CARBON STEEL CONTRARY TO THE SPECIFICATIONS IS ALSO ERRONEOUS" (SEE PAGE 2, LETTER OF PROTEST). IN MAKING THIS STATEMENT, THE BIDDER APPARENTLY OVERLOOKED ITS "SPECIFICATIONS" WHICH WERE ATTACHED TO AND MADE A PART OF THE BID (SEE PAGE 2, OF ENCL NO. 2).'

THE REFERENCED PROVISION UNDER THE HEADING "REMOVABLE ACCESSORIES" ON PAGE 2 OF YOUR SPECIFICATION DOCUMENT DESCRIBES THE BUCKET LIPS AS FOLLOWS:

"THE BUCKET LIPS ARE OF HIGH CARBON STEEL TO IMPROVE THEIR WEAR RESISTING QUALITY AND THEY ARE OF SUFFICIENT WIDTH TO RECEIVE ALL TEETH BOLTS.'

THE CONTRACTING OFFICER FURTHER ADVISES THAT HIGH CARBON STEEL COMPOSITION IS NOT THE EQUIVALENT OF THE MATERIAL (CAST MANGANESE, CHROME NICKEL, OR CHROME VANADIUM STEEL, OR COMBINATIONS THEREOF HEAT TREATED TO A BRINELL HARDNESS OF 185) REQUIRED BY SPECIFICATION MIL-B 16028C AND FOR THIS REASON ALONE YOUR BID WAS REJECTED AS NONRESPONSIVE.

SINCE YOU DO NOT QUESTION THE FACT THAT YOUR BID OFFERED YOUR SEVEN TOOTH BUCKET, WHICH WAS REFERRED TO ONLY IN THE SPECIFICATION SHEET ATTACHED TO YOUR BID, WE DO NOT UNDERSTAND HOW IT CAN REASONABLY BE ARGUED THAT THE SPECIFICATION OF HIGH CARBON STEEL BUCKET LIPS, WHICH APPEARED IN THE SAME SHEET, CAN BE DISREGARDED. THE ESSENTIAL QUESTION IS WHETHER THE GOVERNMENT, IF IT ACCEPTED YOUR BID AS SUBMITTED,COULD HAVE REQUIRED YOU TO FURNISH A BUCKET WITH ANYTHING OTHER THAN HIGH CARBON STEEL LIPS.

IT IS OUR VIEW, FROM THE FACE OF YOUR BID, THAT IT WAS CLEARLY QUALIFIED BY THE ATTACHED SPECIFICATION SHEET, AND THAT ACCEPTANCE OF YOUR BID WOULD HAVE OBLIGATED YOU ONLY TO FURNISH THE BUCKET DESCRIBED THEREIN.

THE INVITATION IN THIS CASE INCORPORATED A STANDARD MILITARY SPECIFICATION FOR CLAMSHELL BUCKETS, ADOPTED UNDER CLEAR LEGAL AUTHORITY, THE USE OF WHICH WAS OBLIGATORY UPON THE MILITARY AGENCIES. SINCE THE LIPS OF THE BUCKET PROPOSED TO BE SUPPLIED BY YOU WERE DESCRIBED IN THE SPECIFICATIONS ATTACHED BY YOU TO YOUR BID AS BEING OF A DIFFERENT MATERIAL THAN THAT CALLED FOR BY THE GOVERNMENT SPECIFICATION, YOUR BID WAS PROPERLY REJECTED AS NONRESPONSIVE, AND YOUR PROTEST IS THEREFORE DENIED.