B-157857, JAN. 26, 1966

B-157857, JAN. 26, 1966

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 29, 1965, WITH ENCLOSURES, FROM THE DIRECTOR OF PROCUREMENT AND PRODUCTION, UNITED STATES ARMY MATERIEL COMMAND, FURNISHING THE REPORT REQUESTED IN OUR LETTER OF OCTOBER 26, 1965, ON THE PROTEST OF THE SILENT HOIST AND CRANE CO., INC., BROOKLYN, NEW YORK, AGAINST THE ACTION OF THE UNITED STATES TANK- AUTOMOTIVE CENTER, WARREN, MICHIGAN, IN REJECTING THE CORPORATION'S BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. AMC 20-113-65-2755 (T).

THE INVITATION CALLED FOR BIDS ON FURNISHING ONE "TRUCK, FORK LIFT, 20,000 LBS HYSTER CO. MODEL NO. CHALLENGER-200 OR EQUAL," WITH THE FOLLOWING SALIENT FEATURES:

"/A) GASOLINE ENGINE POWERED

"/B) PNEUMATIC TIRES

"/C) MAX FORK LIFT HEIGHT 12 FT

"/D) CAPACITY EQUALS 20,000 LBS AT 24 INCHES ON FORKS

"/E) LENGTH OF FORKS - 80 INCHES MINIMUM

"/F) HOUR METER, STD COM-L

"/G) HEADLIGHT

"/H) FIRE EXTINGUISHER

"/I) HORN

"/J) BOOM ATTACHMENT (BOOM 9 FT BY 54 IN. REACH)

"/K) EQUIPPED FOR QUICK REMOVAL OF FORKS (FORK PIN-LOCKS TO BE ON OUTSIDE OF APRON OR OTHER READILY ACCESSIBLE AREA).'

BIDS WERE OPENED ON JULY 22, 1965, AND OF FOUR BIDS RECEIVED, THE LOWEST AS TO PRICE WAS $13,105, WHILE THE OTHER THREE BIDS RANGED FROM $13,579 TO $14,997.70. THE LOW BIDDER, SILENT HOIST AND CRANE CO., INC., HEREINAFTER REFERRED TO AS SILENT HOIST, BID ON ITS OWN FK10 MODEL.

IN A LETTER DATED JULY 12, 1965, WHICH WAS ATTACHED TO ITS BID, SILENT HOIST STATED:

"WE ARE PLEASED TO INDICATE ON YOUR INVITATION FORMS OUR BID FOR SILENT HOIST LIFTRUK MODEL FK10 IN COMPLETE CONFORMANCE WITH YOUR REQUIREMENTS.

"OUR LIFTRUK WILL HAVE ALL ITEMS AS LISTED UNDER THE SALIENT FEATURES, WITH THE EXCEPTION OF ITEM K. WE USE A HANGER TYPE FORK WHICH IS ARRANGED FOR QUICK REMOVAL SO THAT THE BOOM MAY BE PLACED ON THE APRON MOST EXPEDITIOUSLY. THEREFORE WE DO MEET YOUR BASIC REQUIREMENT IN THAT IT IS EQUIPPED FOR QUICK REMOVAL OF FORKS.

"ADDITIONAL SPECIFICATIONS ARE IN THE ENCLOSED BULLETIN 100. SHOULD THERE BE ANY DEVIATION FROM YOUR REQUIREMENTS IN OUR PRINTED LITERATURE, YOUR REQUIREMENTS WILL BE MET. OUR BOOM ATTACHMENT WILL FURNISH THE 9 FT. HIGH TO HOOK THROAT IN THE LOWERED POSITION IN A 54 INCH REACH FROM THE NOMINAL HEEL OF FORK POSITION TO THROAT OF HOOK.

"WE THANK YOU FOR THIS OPPORTUNITY TO OFFER SILENT HOIST EQUIPMENT FOR YOUR REQUIREMENTS, AND LOOK FORWARD TO HAVING THE PLEASURE OF GIVING YOUR CONTRACT OUR VERY BEST ATTENTION.' ALSO, WITH ITS BID THE CORPORATION SUBMITTED A 3-PAGE PUBLICATION IDENTIFIED AS BULLETIN 100C.

ON JULY 22, 1965, THE CONTRACTING OFFICER TRANSMITTED THE INFORMATION SUBMITTED BY THE TWO LOW BIDDERS, SILENT HOIST AND HYSTER COMPANY, TO THE REQUISITIONING ACTIVITY, UNITED STATES ARMY PONTIAC STORAGE FACILITY, PONTIAC, MICHIGAN, FOR TECHNICAL EVALUATION AND UPON THE BASIS OF THE INFORMATION FURNISHED, THE REQUISITIONING ACTIVITY FOUND THAT THE MODEL FK10 TRUCK FORK LIFT OFFERED BY SILENT HOIST WAS NOT EQUAL TO THE HYSTER MODEL 200 CALLED FOR BY THE INVITATION. ON AUGUST 12, 1965, CONTRACT NO. DA-20-113-AMC-07827 (T) WAS AWARDED TO THE HYSTER COMPANY FOR ITS BRAND NAME PRODUCT.

BY LETTER DATED SEPTEMBER 15, 1965, SILENT HOIST PROTESTED AGAINST THE AWARD TO HYSTER ON THE GROUNDS THAT IT WAS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION FOR BIDS. IN A LETTER DATED OCTOBER 11, 1965, THE CONTRACTING OFFICER ADVISED SILENT HOIST AS FOLLOWS:

"THIS IS IN RESPONSE TO YOUR LETTER OF 15 SEPTEMBER 1965 AND YOUR TELEPHONE CONVERSATION OF 7 OCTOBER 1965 WITH MR. LEWIS KENT OF OUR OFFICE PERTAINING TO IFB-AMC-20-113-65-2755 (T).

"THE "SALIENT FEATURE," PROVISION OF THE IFB WAS INCLUDED TO ASSIST BIDDERS SINCE THE DIFFERENT FIRMS MAKING FORK LIFT TRUCKS OFFER MANY VARIATIONS OF EQUIPMENT IN THEIR DIFFERENT MODELS. HOWEVER, BIDDERS OFFERING "OR EQUAL" WERE COMPELLED TO MEET NOT ONLY THE "SALIENT FEATURES" BUT THE OTHER MATERIAL CHARACTERISTICS OF THE MODEL NO. CITED IN THE ITEM DESCRIPTION, I.E. ----- HYSTER MODEL NO. 200.

"ALTHOUGH YOU MAY HAVE INTENDED TO FULLY COMPLY WITH THE TERMS OF THE INVITATION, OUR EVALUATION OF THE BROCHURE SUBMITTED WITH YOUR BID DISCLOSED THAT THERE WERE SEVERAL SUBSTANTIAL DIFFERENCES BETWEEN THE MODEL DEPICTED IN YOUR BROCHURE AND THE HYSTER MODEL. FOR EXAMPLE, THE HYSTER MODEL POSSESSED FIVE (5) TRANSMISSION SPEEDS TO YOUR FOUR (4). ADDITION, YOUR BROCHURE REVEALED THAT YOUR PRODUCT POSSESSED A STANDARD SINGLE SPEED HOIST CONTROL IN CONTRAST TO THE 2 SPEED AUTOMATIC CONTROL OF THE HYSTER PRODUCT.

"MOREOVER, YOUR BROCHURE LISTS SEVERAL ITEMS OF EQUIPMENT AS OPTIONAL AND YOUR BID DID NOT STATE WHICH OPTIONAL ITEMS WOULD BE FURNISHED IF AN AWARD WAS MADE TO YOUR COMPANY.

"THE ARTICLE OF THE INVITATION ENTITLED "BRAND NAME OR EQUAL" CONTAINS SEVERAL MATERIAL PROVISIONS. SUBPARAGRAPH (A) STATES, AMONG OTHER THINGS,"BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS.' AS ALREADY POINTED OUT, AN EVALUATION DISCLOSED THAT THE PRODUCT OFFERED BY YOU WAS NOT EQUAL TO THE HYSTER MODEL IN ALL MATERIAL RESPECTS.

"SUBPARAGRAPH (C) (1) PROVIDED,"ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS PART OF HIS BID ALL DESCRIPTIVE MATERIAL ----- NECESSARY FOR THE PURCHASING ACTIVITY TO ----- (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH ----- .' AGAIN, THE BROCHURE ACCOMPANYING YOUR BID DEPICTED SEVERAL MAJOR ITEMS OF OPTIONAL EQUIPMENT. IT WAS IMPOSSIBLE, THEREFORE, FOR ATAC TO ESTABLISH EXACTLY WHAT YOU WERE PROPOSING TO FURNISH.

"UNDER THE CIRCUMSTANCES, WE HAD NO CHOICE BUT TO DECLARE YOUR BID NON- RESPONSIVE FOR FAILING TO MEET OUR REQUIREMENTS. IT IS OUR SINCERE HOPE THAT WE WILL CONTINUE TO BE FAVORED WITH FUTURE PROPOSALS FROM YOUR COMPANY.'

IN A LETTER DATED OCTOBER 14, 1965, TO OUR OFFICE, SILENT HOIST PROTESTED THE REJECTION OF ITS BID ON THE FOLLOWING GROUNDS:

(A) THAT IT WAS THE LOW RESPONSIVE BIDDER;

(B) THAT IT OFFERED TO MEET ALL OF THE "SALIENT FEATURES; "

(C) THAT ITS BID WAS DETERMINED TO BE NONRESPONSIVE ON THE BASIS OF EVALUATION FACTORS NOT SPECIFIED IN THE INVITATION FOR BIDS;

(D) THAT THE AWARD AS MADE WAS ARBITRARY, CAPRICIOUS AND CONTRARY TO LAW.

IN REGARD TO THE MANNER IN WHICH THE SALIENT FEATURES OF THE EQUIPMENT WERE LISTED IN THE INVITATION THE CONTRACTING OFFICER MADE THE FOLLOWING COMMENTS:

"QUESTION:

"IS A BID REJECTION BY THE CONTRACTING OFFICER BASED ON CRITERIA OTHER THAN THE "SALIENT FEATURES," ARBITRARY, CAPRICIOUS, AND CONTRARY TO LAW?

"DISCUSSION:

"IN THE FIFTH PARAGRAPH OF ITS PROTEST, SILENT HOIST QUOTES THE SALIENT FEATURES LANGUAGE OF THE ITEM DESCRIPTION, NAMES CERTAIN SALIENT FEATURES, AND ASKS, "WHY THEN WERE THEY LISTED, EXCEPT TO SPECIFY THE ACTUAL NEEDS OF THE SERVICE ----- ? " THIS IS TRUE. BUT IT IS EQUALLY TRUE THAT THE ENGINE FOR A SPECIALIZED ITEM OF EQUIPMENT LIKE A FORKLIFT TRUCK CAPABLE OF TRANSPORTING ITEMS UP TO 20,000 LBS, CANNOT BE ADEQUATELY DESCRIBED BY THE WORDS "GASOLINE ENGINE POWERED.' THE SALIENT FEATURE QUOTED CONSTITUTES A SENSIBLE GUIDELINE ONLY WHEN CONSIDERED WITH THE HYSTER MODEL 200 TRUCK.

"THE IFB DOES NOT SPECIFY THAT BIDS WILL BE EVALUATED ON THE BASIS OF THE SALIENT FEATURES. AS SHOWN ABOVE, THEY ARE TOO GENERAL TO CONSTITUTE ANYTHING BUT GUIDES. ASPR 1-1206.4 (A) SAYS ,BIDS OFFERING PRODUCTS WHICH DIFFER FROM BRAND NAME PRODUCTS REFERENCED IN A "BRAND NAME OR QUAL" PURCHASE DESCRIPTION SHALL BE CONSIDERED FOR AWARD WHERE THE CONTRACTING OFFICER DETERMINES IN ACCORDANCE WITH THE TERMS OF THE CLAUSE IN 1-1206.3 (B) THAT THE OFFERED PRODUCTS ARE EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCTS REFERENCED.'"

IT IS REPORTED THAT ON THE BASIS OF THE INFORMATION FURNISHED BY SILENT HOIST WITH ITS BID THE FOLLOWING DEFICIENCIES IN THE MODEL OFFERED BY IT WERE NOTED:

"A. THE FORKLIFT REQUIRED FOR GOVERNMENT USE MUST BE USABLE IN VERY CLOSE QUARTERS. FOR THIS REASON FORK DIMENSIONS, SPREAD, AND TYPE ARE IMPORTANT. SILENT HOIST OFFERS A FORK SPREAD OF 66 INCH MAXIMUM; 38 INCH MINIMUM. THE HYSTER MODEL 200 OFFERS A SPREAD OF 67 INCHES MAXIMUM; 23 INCHES MINIMUM. SILENT HOIST APPARENTLY PROPOSES TO MEET THE FORK LENGTH SALIENT FEATURE OF 80 INCH MINIMUM LENGTH BY PROVISION OF FORK SLEEVES. THE NAMED PRODUCT IN THE IFB INCLUDES AN 80 INCH FORK.

"B. THE OVERHEAD GUARD PROTECTING THE OPERATOR WHICH IS PART OF THE HYSTER MODEL NO. 200 IS ABSENT ON THE SILENT HOIST VEHICLE. THEIR BROCHURE SHOWS AN OVERHEAD GUARD AS AN OPTIONAL FEATURE.

"C. THE HYSTER MODEL NO. 200 OFFERS AN OIL COOLED CLUTCH WITH HYDRAULIC ASSIST. THE SILENT HOIST VEHICLE OFFERS AN OIL COOLED CLUTCH AS AN OPTIONAL FEATURE. NO HYDRAULIC ASSIST IS OFFERED. FOR EASE OF OPERATION AND AVOIDANCE OF OPERATOR FATIGUE, THIS REQUIREMENT IS MATERIAL.

"D. THE SILENT HOIST VEHICLE USES A FOUR SPEED TRANSMISSION. THE ITEM SPECIFIED IN THE CONTRACT REQUIRES A FIVE SPEED TRANSMISSION.

"E. THE HYSTER MODEL NO. 200 HAS AN ENGINE CAPABILITY OF 143 HORSEPOWER. THE SILENT HOIST ENGINE PROVIDES 125 HORSEPOWER. THIS ENGINE SIZE DIFFERENTIAL IMPACTS ON LIFT AND WORK CAPABILITY.

"F. THE TWO SPEED AUTOMATIC CONTROL PROVIDED FOR HOIST OPERATION OF THE HYSTER VEHICLE IS NOT OFFERED ON THE SILENT HOIST ITEM. LIKE PARAGRAPH C. ABOVE, THIS IMPACTS ON HUMAN FACTORS ENGINEERING CONSIDERATIONS AS WELL AS PERFORMANCE.

"G. THE BOOM ATTACHMENT FOR THE SILENT HOIST ITEM LACKS ADAPTABILITY FOR HANDLING ODD SIZED MACHINE TOOLS IN THAT THE HOOK SUSPENSION IS FIXED.

"H. THE SILENT HOIST BROCHURE DOES NOT SPECIFY THE TYPE OF OPTIONAL OR EXTRA EQUIPMENT THEY PROPOSE TO FURNISH. THE CONTRACTING OFFICER FOUND THAT THE BIDDER DID NOT INCLUDE IN HIS BID A CLEAR DESCRIPTION, NOR CLEARLY MARK HIS DESCRIPTIVE MATERIAL TO SHOW WHAT, IF ANY, MODIFICATIONS OR OPTIONAL MATERIAL HE PROPOSED TO SUPPLY TO MAKE HIS ITEM THE EQUAL OF THE NAMED PRODUCT.

"BASED ON THE TERMS OF THE CONTRACT, THE REGULATIONS, AND THE ADVICE OF THE REQUISITIONER, THE CONTRACTING OFFICER DETERMINED THAT THE BID OF SILENT HOIST WAS DEFICIENT IN THAT THE BIDDER FAILED TO SPECIFY THE OPTIONAL OR EXTRA EQUIPMENT THEY PROPOSED TO FURNISH TO MAKE THEIR PRODUCT THE "EQUAL" OF THE NAMED BRAND, AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD TO SILENT HOIST. THE CONTRACTING OFFICER FOUND, FURTHER, THAT THE VEHICLE OFFERED BY SILENT HOIST WAS NOT, IN FACT, THE EQUAL OF THE NAMED PRODUCT AND DID NOT MEET THE ACTUAL NEEDS OF THE GOVERNMENT.'

ASPR 1-1206.2 (B) PROVIDES THAT: " "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.' IT IS REPORTED THAT THE REFERENCED BRAND NAME MODEL INCLUDES (1) AN OVERHEAD GUARD, (2) AN OIL COOLED CLUTCH WITH HYDRAULIC ASSIST, (3) A 5-SPEED TRANSMISSION, (4) AN ENGINE CAPABILITY OF 143 HORSEPOWER AND (5) A 2-SPEED AUTOMATIC CONTROL, AND THAT THE FKLO MODEL OF SILENT HOIST IS INFERIOR TO THE BRAND NAME MODEL BECAUSE IT LACKS THESE FEATURES. YET THE INVITATION DID NOT LIST THESE FIVE FEATURES AS ESSENTIAL REQUIREMENTS. IT IS NOTED FROM THE LIST OF SALIENT FEATURES APPEARING IN THE INVITATION THAT THE ONLY REFERENCE THEREIN TO FEATURES OF THE ENGINE IS THAT IT BE GASOLINE POWERED. IF THE ABOVE-CITED FIVE CHARACTERISTICS OF THE BRAND NAME ITEM ARE ESSENTIAL TO YOUR NEEDS, THE INVITATION SHOULD LIST THESE FEATURES UNDER THE "ESSENTIAL REQUIREMENTS.' BIDDERS OFFERING ,EQUAL" PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEM. UNDER THE REGULATIONS THEY ARE ENTITLED TO BE ADVISED IN THE INVITATION OF THE PARTICULAR FEATURES OR CHARACTERISTICS OF THE REFERENCED ITEM WHICH THEY ARE REQUIRED TO MEET. AN INVITATION WHICH FAILS TO LIST ALL THE CHARACTERISTICS DEEMED ESSENTIAL, OR LISTS CHARACTERISTICS WHICH ARE NOT ESSENTIAL, IS DEFECTIVE. 41 COMP. GEN. 242, 250-51; B-154611, AUGUST 28, 1964. SEE, ALSO, 38 COMP. GEN. 345 AND B-157081, OCTOBER 18, 1965.

IT IS REPORTED THAT A STOPWORK ORDER HAS BEEN ISSUED TO THE HYSTER COMPANY AND THAT SUCH ORDER WILL REMAIN IN FORCE UNTIL A DECISION HAS BEEN REACHED BY OUR OFFICE IN THE MATTER. ACCORDINGLY, SINCE WE BELIEVE THAT THE SUBJECT INVITATION IS DEFECTIVE FOR THE FOREGOING REASONS, THE AWARD MADE TO THE HYSTER COMPANY SHOULD BE CANCELED AND THE REQUIREMENT READVERTISED UNDER A SPECIFICATION WHICH FULLY ADVISES BIDDERS OF ALL THE ESSENTIAL REQUIREMENTS OF THE ITEM.