B-158981, JUN. 10, 1966, 45 COMP. GEN. 776

B-158981, JUN. 10, 1966, 45 COMP. GEN. 776

CONTRACTS - SPECIFICATIONS - MILITARY - NONCONFORMANCE PROPRIETY WHEN A CONTRACTING OFFICE IN ADAPTING MILITARY SPECIFICATIONS TO ITS PARTICULAR NEEDS SUBSTITUTES A FORK LIFT TRUCK OR REDUCED CAPACITY, 3,000 POUNDS, WITH A 190-INCH LIFT HEIGHT IN LIEU OF THE 180-INCHES SPECIFICATIONS WITHOUT INVITING BIDS ON THE 18-INCH LIFT HEIGHT AND STATING THE MINIMUM LIFT CAPACITY AT 190 INCHES BUT REQUESTING BIDDERS TO DEFINE THE SAFE CAPACITY OF A TRUCK AT THAT LIFT HEIGHT, THE INVITATION FOR BIDS IS DEFECTIVE AND DOES NOT PRESENT A PROPER BASIS FOR SOLICITING COMPETITIVE BIDS; THEREFORE, THE INVITATION HAVING FAILED TO COMPLY WITH SECTION 1-2.101 OF THE FEDERAL PROCUREMENT REGULATIONS REQUIRING THAT AN INVITATION FOR BIDS DESCRIBE THE NEEDS OF THE GOVERNMENT CLEARLY, ACCURATELY, AND COMPLETELY, AVOIDING UNNECESSARILY RESTRICTIVE SPECIFICATIONS, CANCELLATION OF THE INVITATION IS RECOMMENDED AND IN ANY REPROCUREMENT THE INVITATION SHOULD CLEARLY STATE THE MINIMUM REQUIREMENTS IN ALL AREAS ESSENTIAL TO THE PURPOSES FOR WHICH THE TRUCK WILL BE USED.

TO THE SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, JUNE 10, 1966:

REFERENCE IS MADE TO A LETTER (REF: OA: OF) DATED MAY 6, 1966, FROM THE DEPUTY CHIEF, PROPERTY MANAGEMENT BRANCH, SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MARYLAND, REQUESTING A DECISION REGARDING THE PROTEST OF THE PAUL H. WERRES COMPANY, INC. (WERRES), ROCKVILLE, MARYLAND, AGAINST THE ANTICIPATED AWARD OF A CONTRACT TO EATON, YALE AND TOWNE, INC., BASED ON INVITATION FOR BIDS (IFB) NO. SSP-66-20 ISSUED BY THE SOCIAL SECURITY ADMINISTRATION (SSA), BALTIMORE, MARYLAND, ON FEBRUARY 17, 1966.

THE INVITATION CALLED FOR A NARROW AISLE ELECTRIC REACHING AND TIERING FORK TRUCK WITH EITHER OF TWO SPECIFIED CONTROL SYSTEMS IN ACCORDANCE WITH MILITARY SPECIFICATION NUMBER MIL-T-21643A DATED JANUARY 3, 1964, AS ADAPTED TO THE PROCUREMENT BY A LIST OF OPTIONS, EXCEPTIONS AND SUBSTITUTIONS SET FORTH IN THE INVITATION AND BY TWO AMENDMENTS TO THE IFB. AMENDMENT NO. 1 WAS ISSUED MARCH 7, 1966, EXTENDING THE ORIGINAL BID OPENING DATE OF MARCH 7, 1966, TO MARCH 31, 1966, AND MAKING CHANGES THAT WERE CONCERNED MAINLY WITH THE SUBSTITUTION OF 3,000 POUNDS IN PLACE OF THE ORIGINALLY SPECIFIED 4,000 POUNDS FOR THE RATED LOAD CAPACITY OF THE TRUCK, AND WITH THE SUBSTITUTION OF 190 INCHES FOR 198 INCHES AS THE MINIMUM LIFT HEIGHT. IT IS TO BE NOTED THAT THE 198 INCHES MINIMUM LIFT HEIGHT HAD BEEN PREVIOUSLY SPECIFIED UNDER PARAGRAPH II OF THE IFB IN LIEU OF THE SIZES LISTED UNDER PARAGRAPH 1.2 OF MIL-T-21643A WHICH SHOWED THREE LIFT HEIGHTS--- 144 INCHES, 130 INCHES AND 180 INCHES--- FOR THE TRUCKS COVERED BY THAT MILITARY SPECIFICATION. AMENDMENT NO. 2, ISSUED MARCH 9, 1966, ADDED A PARAGRAPH TO PAGE 7 OF THE IFB WHICH ALLOWED THE GOVERNMENT TO REQUIRE INSPECTION AND TESTING OF THE TRUCK AT ORIGIN.

DURING THE WEEK OF MARCH 7, 1966, REPRESENTATIVES OF WERRES ORALLY INFORMED SSA THAT IT COULD NOT COMPLY WITH THE IFB SPECIFICATION REQUIRING A CAPACITY OF 3,000 POUNDS AT AN ELEVATED HEIGHT OF 190 INCHES, IN THAT SUCH A TRUCK COULD NOT LIFT A LOAD OF 3,000 POUNDS TO MAXIMUM FORK ELEVATION WITH FORKS EXTENDED (A REQUIREMENT UNDER PARAGRAPH 3.6.18.1 OF THE MILITARY SPECIFICATION) WITHOUT LOSING STABILITY AND TIPPING FORWARD. IN ADDITION, WERRES STATED ITS BELIEF THAT NO OTHER MANUFACTURER COULD FULFILL THIS REQUIREMENT AND SUGGESTED, THEREFORE, CERTAIN ALTERNATIVES, SUCH AS, REQUIRING 3,000 POUNDS CAPACITY UP TO 175 INCHES AND 2,000 POUNDS THEREAFTER TO 190 INCHES, OR BY SPECIFYING A 4,000 POUNDS CAPACITY TRUCK IN ACCORDANCE WITH OTHER SPECIFICATIONS. THOSE SUGGESTIONS WERE REJECTED BY THE ADMINISTRATION. BY LETTER OF MARCH 18, 1966, WERRES CONFIRMED THOSE ORAL RECOMMENDATIONS AND OBJECTIONS. THE RECORD SHOWS THAT WERRES WAS THE ONLY FIRM TO COMPLAIN ABOUT THE IFB SPECIFICATIONS.

ON MARCH 31, 1966, THE THREE BIDS RECEIVED WERE OPENED AND THE LOWEST BID WAS SUBMITTED BY EATON, YALE AND TOWNE, INC. (EATON), BALTIMORE, MARYLAND. NO BID WAS SUBMITTED BY WERRES, WHICH ON THE SAME DAY PROTESTED ANY AWARD UNDER THE SPECIFICATIONS UNLESS THE AWARD IS BASED ON FULL REQUIREMENTS OF THE SPECIFICATIONS INCLUDING 3,000 POUNDS CAPACITY AT THE SPECIFIED MINIMUM LIFT OF 190 INCHES AND ON ALL STABILITY TESTS AS DETAILED IN THE MILITARY SPECIFICATION MIL-T 21643A. IT IS STATED THAT EATON INDICATED IN ITS BID THAT THE TRUCK WHICH IT PROPOSES TO FURNISH WILL HAVE A CAPACITY OF 3,000 POUNDS AT 180 INCHES LIFT AND 2,700 POUNDS AT 201 INCHES LIFT. THE CONTRACTING AGENCY THROUGH INTERPOLATION DETERMINED THIS TO MEAN THAT THE SAFE CAPACITY OF THE TRUCK, AS REQUESTED TO BE DEFINED UNDER PARAGRAPH III OF THE IFB, IS 2,840 POUNDS AT 190 INCHES.

BY LETTER OF APRIL 15, 1966, WERRES CONFIRMED ITS PROTEST OF MARCH 31 AND REQUESTED THAT THE IFB BE CANCELED AND READVERTISED USING SPECIFICATIONS THAT STATE THE GOVERNMENT'S MINIMUM REQUIREMENTS IN ALL AREAS. IT NOTES IN THAT LETTER "THE SUBJECT INVITATION COVERS, IN ITS FINAL FORM, A 3,000 LB. CAPACITY, NARROW AISLE, REACHING AND TIERING FORK TRUCK, IN ACCORDANCE WITH SPECIFICATION MIL-T-21643A, WITH OPTIONS, DEVIATIONS AND EXCEPTIONS AS LISTED IN THE INVITATION" AND STATES THE BASIS OF ITS PROTEST AS FOLLOWS:

THE BASIS OF THIS PROTEST IS FOUND ON PAGE 7 OF THE INVITATION, PARAGRAPH III. THIS PARAGRAPH REQUESTS THAT THE BIDDER "DEFINE SAFE CAPACITY OF THE TRUCK HE PROPOSES TO FURNISH AT THE 190 INCHES HEIGHTS.' WHEN OUR OFFICE QUESTIONED THE MEANING OF THIS STATEMENT, WE WERE ADVISED THAT THE SOCIAL SECURITY ADMINISTRATION WOULD ACCEPT A TRUCK WITH LESS THAN 3,000 LBS. CAPACITY AT 190 INCHES HEIGHT, SO LONG AS THE BIDDER STATED THE SAFE CAPACITY AT THAT HEIGHT.

THE INCLUSION OF THE ABOVE PROVISION IN A FORMAL INVITATION FOR BIDS IS NOT ONLY CONTRARY TO STANDARD PROCUREMENT PROCEDURE BUT IS ALSO INCONSISTENT WITH THE REQUIREMENTS OF FORMAL ADVERTISING. THE SUBJECT INVITATION REQUIRED BIDS TO BE SUBMITTED IN ACCORDANCE WITH MIL-T 21643A, WHICH DEFINES THE TRUCK CAPACITY AT 3,000 LBS. AT ALL HEIGHTS. NONE OF THE OPTIONS AND EXCEPTIONS LISTED A REDUCED CAPACITY AT 190 INCHES HEIGHT AS A DEVIATION TO THAT SPECIFICATION. THEREFORE, THE REQUEST THAT THE BIDDER DEFINE THE SAFE CAPACITY AT THAT HEIGHT WAS NOT A LEGAL REQUIREMENT OF THE INVITATION. THE RESULT OF PARAGRAPH III, PAGE 7, WAS TO ALLOW BIDDERS TO DEVIATE FROM THE REQUIRED SPECIFICATION WITHOUT SPECIFYING THE MINIMUM REQUIREMENT OF THAT DEVIATION.

THE REPORT SUBMITTED BY SSA IN THIS MATTER INDICATES THAT THE CONTRACTING AGENCY HAS TAKEN THE POSITION THAT THE TRUCK REQUIRED TO BE FURNISHED UNDER THE IFB IS TO HAVE A CAPACITY OF 3,000 POUNDS UP TO 180 INCHES OF LIFT, AND A SAFE (BUT UNDEFINED) CAPACITY AT THE MINIMUM LIFT HEIGHT OF 190 INCHES WHICH SAFE CAPACITY BIDDERS WERE TO DEFINE PURSUANT TO PARAGRAPH III,"CAPACITY," ON PAGE 7 OF THE IFB. THAT PARAGRAPH, AS AMENDED, READS:

THE BIDDER IS REQUESTED TO DEFINE SAFE CAPACITY OF THE TRUCK HE PROPOSES TO FURNISH AT THE 190 INCHES HEIGHT.

ONE REASON, THE AGENCY POINTS OUT "FOR INCLUDING THIS SECTION WAS TO DEFINITELY DETERMINE THE MAXIMUM WEIGHT WE (THE AGENCY) COULD LIFT SAFELY TO THE 190 INCH HEIGHT, FULLY COGNIZANT OF THE FACT THAT AFTER A CERTAIN HEIGHT (IN THIS CASE 180 INCHES), THE CAPACITY WOULD DECREASE.' IN SUCH CONNECTION IT IS STATED:

IT IS OUR CONTENTION THAT THE MILITARY SPECIFICATION T-21643A COVERS A TRUCK OF 3000 POUND CAPACITY AT 180 INCHES OF LIFT, BUT SINCE WE REQUIRE A TRUCK CAPABLE OF LIFTING TO 190 INCHES, WE SPECIFICALLY INCLUDED IN OUR INVITATION FOR BID, THE FOLLOWING SECTION III--- CAPACITY * * *. THE REPORT FURTHER STATES:

THE PAUL H. WERRES COMPANY, INC. IS MAINTAINING THAT THE MILITARY SPECIFICATION STIPULATES 3000 POUNDS CAPACITY AT 190 INCHES. THIS IS NOT THE CASE; THE MILITARY SPECIFICATIONS STATE 3000 POUNDS AT 180 INCHES, AND THIS CAPACITY WE REQUIRE AND EXPECT. HOWEVER, IN SPECIFYING THE 190 INCH LIFT, WE REALIZED THAT THE CAPACITY WOULD REDUCE AND CONSEQUENTLY WE REQUESTED DEFINITION OF THIS REDUCTION.

WE AGREE WITH THE SSA CONTENTION THAT MILITARY SPECIFICATION T 21643A COVERS A TRUCK OF 3,000 POUNDS CAPACITY AT 180 INCHES OF LIFT (SIZE 3), TO THE EXTENT THAT SUCH A TRUCK IS AMONG THE SIZES WHICH COULD BE SPECIFIED IN A PROCUREMENT UNDER THAT SPECIFICATION. HOWEVER, OTHER LIFT HEIGHTS OF 144 INCHES (SIZE 1) AND 130 INCHES (SIZE 2) FOR TRUCKS OF THAT CAPACITY ARE ALSO COVERED BY THE SPECIFICATION. AS POINTED OUT ABOVE, NONE OF THOSE CAPACITY LIFT HEIGHTS SETS FORTH IN MIL-T-21643A WERE INCORPORATED INTO THE SUBJECT IFB WHICH, UNDER PARAGRAPH II, AS AMENDED, SPECIFIED FOR THE TRUCK DESIRED A MINIMUM LIFT HEIGHT OF 190 INCHES IN LIEU OF THOSE HEIGHTS SHOWN IN THE MILITARY SPECIFICATION. EVEN IF THE IFB WERE TO BE CONSIDERED AS NOT DEVIATING FROM THE MILITARY SPECIFICATION'S CAPACITY LIFT PROVISIONS WE ARE UNABLE TO ASCERTAIN FROM IFB PROVISIONS HOW A BIDDER WOULD KNOW THAT, OF THE THREE SIZES COVERED BY THE MILITARY SPECIFICATION, THE 180 INCHES LIFT HEIGHT AT CAPACITY WEIGHT WAS REQUIRED AND EXPECTED. IN ADDITION THERETO, THE SSA REPORT DOES NOT APPEAR TO STATE ACCURATELY WERRES' POSITION IN THIS MATTER. RATHER THAN MAINTAINING THAT THE MILITARY SPECIFICATION STIPULATES 3,000 POUNDS CAPACITY AT 190 INCHES, WE FEEL THAT WERRES' LETTERS REFLECT CLEARLY THE VIEW THAT THE 190 INCHES LIFT HEIGHT IS A REQUIREMENT ONLY OF THE SUBJECT IFB SPECIFICATIONS AND CONSTITUTES A DEVIATION FROM THE MILITARY SPECIFICATION.

THE PUBLIC ADVERTISING STATUTES HAVE CONSISTENTLY BEEN HELD TO REQUIRE THE PROCURING AGENCIES OF THE GOVERNMENT TO PREPARE SPECIFICATIONS WHICH DESCRIBE THEIR ACTUAL NEEDS. CONCOMITANT WITH THE ADMINISTRATIVE DETERMINATION THAT SSA REQUIRED A TRUCK "CAPABLE OF LIFTING TO 190 INCHES" WAS THE RESPONSIBILITY FOR DETERMINING THE AGENCY'S MINIMUM WEIGHT REQUIREMENT AT 190 INCHES. SECTION 1-2.101 OF THE FEDERAL PROCUREMENT REGULATIONS SETS FORTH, AS THE FIRST BASIC STEP OF FORMAL ADVERTISING, THE PREPARATION OF INVITATIONS FOR BIDS "DESCRIBING THE REQUIREMENTS OF THE GOVERNMENT CLEARLY, ACCURATELY, AND COMPLETELY, BUT AVOIDING UNNECESSARILY RESTRICTIVE SPECIFICATIONS OR REQUIREMENTS WHICH MIGHT UNDULY LIMIT THE NUMBER OF BIDDERS.' IT THEREFORE APPEARS THAT UNDER THE CIRCUMSTANCES INVOLVED AND IN ORDER TO SATISFY SUCH BASIC PRINCIPLES, SSA SHOULD HAVE DETERMINED ITS MINIMUM NEEDS FOR LIFT CAPACITY AT 190 INCHES, AND SHOULD HAVE DESIGNATED THE ACCEPTABLE MINIMUM CAPACITY AT THAT FORK ELEVATION IN THE INVITATION.

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE IFB WAS DEFECTIVE IN FAILING TO DEFINITELY STATE A REQUIREMENT FOR A MINIMUM LIFT CAPACITY OF 3,000 POUNDS AT 180 INCHES, AND IN FAILING TO STATE A MINIMUM LIFT CAPACITY AT 190 INCHES. IT FOLLOWS THAT THE IFB DOES NOT PRESENT A PROPER BASIS FOR THE SOLICITATION OF COMPETITIVE BIDS. THE IFB SHOULD THEREFORE BE CANCELED, AND IN ANY REPROCUREMENT OF THE ITEM THE INVITATION SHOULD CLEARLY STATE THE AGENCY'S MINIMUM REQUIREMENTS IN ALL AREAS CONSIDERED ESSENTIAL TO THE PURPOSES FOR WHICH THE TRUCK WILL ..END :