B-163651, AUG. 9, 1968

B-163651, AUG. 9, 1968

TO SORENSON EQUIPMENT COMPANY:

REFERENCE IS MADE TO A COPY OF YOUR LETTER OF FEBRUARY 23, 1968, ADDRESSED TO THE CONTRACTING OFFICER, U.S. FOREST SERVICE, DENVER, COLORADO, PROTESTING AWARD TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. R2-68-38, DATED DECEMBER 22, 1967, AND TO YOUR LETTER OF MAY 20,1968, TO THIS OFFICE WITH RESPECT TO THE SAME MATTER.

THE INVITATION CALLED FOR BIDS TO BE OPENED ON JANUARY 23, 1968, FOR FURNISHING TWO PORTABLE AIR COMPRESSORS "MINIMUM 150 CFM AT 11,000 FEET ELEVATION, F.O.B. DESTINATION, IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS FOR AIR COMPRESSOR, INVITATION FOR BIDS, AND ANY RESULTANT AWARD/CONTRACT.'

EIGHT BIDS WERE RECEIVED, THE LOW BID BEING SUBMITTED BY INGERSOLL RAND COMPANY IN THE AMOUNT OF $4,282.95 EACH, OR A TOTAL PRICE OF $8,565.90. YOUR COMPANY SUBMITTED THE HIGHEST BID IN THE AMOUNT OF $5,658.40 EACH, OR A TOTAL PRICE OF $11,316.80.

AFTER TECHNICAL EVALUATION WAS MADE OF THE BIDS RECEIVED, AWARD WAS MADE TO THE INGERSOLL-RAND COMPANY ON FEBRUARY 21, 1968.

PAGE 1 OF THE BID SCHEDULE CONTAINED A DESCRIPTIVE LITERATURE REQUIREMENT AS FOLLOWS:

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO MEANS OF OBTAINING COMPRESSION RATING, LUBRICATING SYSTEM, OIL COOLING METHODS, MEANS OF REGULATION AND OTHER SPECIFIC FEATURES CONTAINED IN THE SPECIFICATIONS IN THIS INVITATION FOR BIDS.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

THE PROCUREMENT FILE CONTAINS A COPY OF A LETTER TO YOU FROM THE CONTRACTING OFFICER DATED MARCH 14, 1968, WHICH STATES THAT SHORTLY AFTER THE BID OPENING YOU INFORMALLY PROTESTED THE INGERSOLL-RAND BID, AND WERE SPECIFICALLY ASKED WHETHER YOU WISHED TO SUBMIT A FORMAL PROTEST BEFORE AWARD. UPON YOUR REFUSAL TO DO SO, AND AFTER TECHNICAL PERSONNEL REPORTED THAT THE COMPRESSOR OFFERED BY INGERSOLL-RAND MET THE SPECIFICATION REQUIREMENTS OF THE IFB, AWARD WAS MADE TO THAT FIRM BY A PURCHASE ORDER DATED FEBRUARY 21. IMMEDIATELY THEREAFTER YOU FILED YOUR FORMAL PROTEST.

THE THREE BASIC ISSUES RAISED IN YOUR PROTEST MAY BE ENUMERATED AS FOLLOWS:

(1) INGERSOLL-RAND DID NOT TIMELY SUBMIT THE REQUIRED DESCRIPTIVE LITERATURE.

(2) THE DESCRIPTIVE LITERATURE AS SUBMITTED BY INGERSOLL-RAND FAILED TO SATISFY THE REQUIREMENTS OF THE INVITATION.

(3) THE COMPRESSOR UNITS SOUGHT BY THIS PROCUREMENT (2 UNITS CAPABLE OF PRODUCING 150 CFM AT 11,000 FEET ELEVATION) WERE NOT OF SUFFICIENT FREE AIR CAPACITY TO OPERATE AT THE REQUIRED ELEVATION.

WITH RESPECT TO ITEM NO. (1) ABOVE, THE RECORD SHOWS THAT INGERSOLL RAND DID SUBMIT DESCRIPTIVE LITERATURE WITH ITS TIMELY BID, AND THAT THE TECHNICAL EVALUATION AND RECOMMENDATION FOR ACCEPTANCE OF ITS BID WAS BASED SOLELY UPON THAT LITERATURE. YOUR ALLEGATION OF UNTIMELINESS APPEARS TO BE BASED UPON THE FACT THAT AFTER YOUR INFORMAL PROTEST INGERSOLL-RAND, AT THE VERBAL REQUEST OF THE EQUIPMENT SPECIALIST OF THE PROCURING ACTIVITY, FURNISHED A LETTER DATED FEBRUARY 13 IN WHICH IT STATED THAT IT HAD ASSURANCE FROM ITS FACTORY ENGINEERS THAT THE COMPRESSORS OFFERED WOULD DELIVER 150 CFM AT 11,000 FEET ELEVATION AS REQUIRED. WHILE CONSIDERATION OF DESCRIPTIVE MATERIAL SUBMITTED AFTER BID OPENING WAS NOT PERMISSIBLE UNDER THE TERMS OF THE DESCRIPTIVE LITERATURE PROVISIONS OF THE INVITATION, THE TECHNICAL EVALUATION OF THE LITERATURE RECEIVED WITH THE BID HAD ALREADY BEEN MADE, AND THE LETTER REFERRED TO WAS FORWARDED TO THE CONTRACTING OFFICER WITH A MEMORANDUM STATING THAT IT "SUBSTANTIATES THE RECOMMENDATION WHICH I MADE.' IN THESE CIRCUMSTANCES IT DOES NOT APPEAR THAT THE LETTER WAS GIVEN ANY EFFECT IN THE EVALUATION, AND WE THEREFORE DO NOT CONSIDER THAT ANY PREJUDICE TO OTHER BIDDERS RESULTED.

AS TO POINTS (2) AND (3) ABOVE, THE RECORD INDICATES THAT THE PROPOSALS AND DESCRIPTIVE LITERATURE WERE EVALUATED BY TECHNICAL PERSONNEL OF THE PROCUREMENT AGENCY WHO WERE CHARGED WITH RESPONSIBILITY THEREFOR, AND FOUND TO SATISFY THE REQUIREMENTS SET FORTH. THE DETAILED SPECIFICATIONS OF THE IFB CONTAINED THE FOLLOWING PROVISIONS WITH RESPECT TO THE COMPRESSOR: ,INTENT. IT IS THE INTENT OF THIS SPECIFICATION TO DESCRIBE THE MANUFACTURER'S CURRENT PRODUCTION MODEL OF PORTABLE INTERNAL- COMBUSTION ENGINE-DRIVEN AIR COMPRESSOR; CAPABLE OF DELIVERING NOT LESS THAN THE SPECIFIC QUANTITY OF FREE AIR PER MINUTE BY THE -SIZE- DESIGNATION IN THE BID ITEM, DETERMINED IN ACCORDANCE WITH THE LATEST A.S.M.E. POWER TEST CODE (STANDARD CONDITIONS); THE FOLLOWING SPECIFICATION AND DETAIL REQUIREMENTS. UNIT SHALL BE FURNISHED WITH ALL OPERATING ACCESSORIES STIPULATED HEREIN, TOGETHER WITH SUCH MODIFICATIONS AS MAY BE REQUIRED TO ENABLE THE UNIT TO FULFILL THE SERVICE REQUIREMENT.

* * * * * * * "SIZE. THE COMPRESSOR UNIT, INCLUDING ENGINE, SHALL BE CAPABLE OF DELIVERING CONTINUOUSLY THE QUANTITY OF FREE AIR INDICATED BY THE SIZE- DESIGNATION IN THE BID ITEM, AT 100 P.S.I. DISCHARGE PRESSURE, IN ACCORDANCE WITH THE CURRENT A.S.M.E. POWER TEST CODE, WITH SUFFICIENT RESERVE POWER TO PROVIDE FOR THE SPECIFIED FREE-AIR DELIVERY AT THE MAXIMUM OPERATING ELEVATION INDICATED IN THE BID ITEM, WITHOUT OVERHEATING, OR OTHER EVIDENCE OF OVERLOADING.'

AS WE READ THESE PROVISIONS, THEY WOULD NOT REQUIRE THAT THE DESCRIPTIVE LITERATURE CALLED FOR SHOULD SHOW THAT THE COMPRESSOR OFFERED SHOULD ACTUALLY HAVE AN ESTABLISHED RATING OF 150 CFM AT 100 PSI AT 11,000 FEET ELEVATION, BUT RATHER THAT IT HAVE A RATING OF 150 CFM AT 100 PSI AT NORMAL ELEVATION, WITH SUFFICIENT "RESERVE POWER" TO PROVIDE THE SPECIFIED AIR DELIVERY AT 11,000 FEET. THE DETERMINATION OF THE EXISTENCE OF SUCH RESERVE POWER WE ASSUME TO BE A MATTER OF TECHNICAL ENGINEERING EXPERTISE, AND WHERE WE ARE FACED WITH DIVERSE CONCLUSIONS IN SUCH MATTERS WE ARE REQUIRED TO ACCEPT THE CONCLUSION OF THE GOVERNMENT EXPERTS IN THE ABSENCE OF A CLEAR AND CONVINCING SHOWING THAT THEIR POSITION IS WITHOUT SUBSTANTIAL SUPPORT. THUS WE SAID IN 43 COMP. GEN. 77 AT PAGE 80: "IT HAS LONG BEEN RECOGNIZED THAT THE FACTUAL DETERMINATION AS TO WHETHER THAT WHICH IS OFFERED BY THE BIDDER CONFORMS TO THE SPECIFICATION, IS TO BE DECIDED PRIMARILY BY THE CONTRACTING AGENCY. 17 COMP. GEN. 554, 557. WHILE THIS RULE HAS REFERENCE TO THE END PRODUCT WE SEE NO REASON WHY IT IS NOT ALSO FOR APPLICATION WITH RESPECT TO DATA SUBMITTED PURSUANT TO THE TERMS OF THE INVITATION.'

ON THE PRESENT RECORD WE SEE NO REASON TO QUESTION THE PROCURING AGENCY'S DECISION THAT THE DESCRIPTIVE LITERATURE SUBMITTED BY INGERSOLL-RAND MET THE REQUIREMENTS OF THE INVITATION.

BY YOUR LETTER OF MAY 20, 1968, WITH ENCLOSURES REFERRING TO THE TESTS CONDUCTED BY YOUR COMPANY AND THE FOREST SERVICE ON THE COMPRESSORS FURNISHED BY INGERSOLL-RAND, YOU PROTEST AGAINST THEIR ACCEPTANCE BY THE GOVERNMENT. YOU ALLEGE THAT:

(1) NO TEST WAS RUN BY INGERSOLL-RAND AT THE SPECIFIED ELEVATION (CONDUCTED AT 10,600 (SIC) FEET, RATHER THAN 11,000 FEET).

(2) THE COMPRESSOR WAS NOT RUNNING WITH ITS STANDARD CONTROLS OR AT NORMAL OPERATING SPEEDS.

(3) PRESSURE HAD BEEN INCREASED FROM 100 PSI TO 120 PSI IN AN ATTEMPT TO IMPROVE THEIR PERFORMANCE FIGURES.

(4) THE COMPRESSOR WAS 22 PERCENT DEFICIENT IN DELIVERED AIR AT THE SPECIFIED PRESSURE.

(5) NONE OF THE TERMS OF THE INQUIRY (APPARENTLY YOURS) HAVE BEEN COMPLIED WITH IN PURCHASING PROCEDURE OR EQUIPMENT SPECIFICATIONS, NOR HAVE YOU BEEN GIVEN A SINGLE REASON FOR THE DEVIATIONS.

(6) YOU ARE OF THE OPINION THAT MR. NEWLAND (MR. LLOYD NEWLAND, CHIEF OF MECHANICAL ENGINEERS, U.S. FOREST SERVICE) IS NOT A QUALIFIED ENGINEER TO CONDUCT SUCH A TEST.

IN RESPONSE TO OUR REQUEST TO THE SECRETARY OF AGRICULTURE FOR A DETAILED REPORT CONCERNING THE ABOVE ENUMERATED ALLEGATIONS, OUR OFFICE WAS FURNISHED REPORTS FROM THE REGIONAL ENGINEER AND THE CONTRACTING OFFICER. THE REPORT FROM THE REGIONAL ENGINEER IN ANSWER TO THE APPLICABLE PARAGRAPHS OF YOUR LETTER OF MAY 20, 1968, STATED: "PARAGRAPH NO. 3 - WE HAVE NO KNOWLEDGE OF THE NEW JERSEY FLOW METER AND THEREFORE MAKE NO COMMENT ON ITS RELIABILITY. THE NOZZLE (ORIFICE) ARRANGEMENT USED BY INGERSOL-RAND WAS AS SHOWN IN ARRANGEMENT -A- FIGURE 2 OF THE ASME POWER TEST CODES FOR DISPLACEMENT COMPRESSORS, VACUUM PUMPS AND BLOWERS. "PARAGRAPH NO. 4 - THE INGERSOL-RAND COMPRESSOR HAS A FLOATING-SPEED ENGINE CONTROL COMBINED WITH VARIABLE INTAKE UNLOADING. AT THE TIME OF THE PERFORMANCE TEST, THIS CONTROL WAS WORKING TO THE SATISFACTION OF THE PARTIES TO THE CONTRACT AND THE ASME POWER TEST CODES. "PARAGRAPH NO.'S 5 AND 8 - THE LOCATION CHOSEN FOR THE PERFORMANCE TEST WAS ACCEPTABLE TO THE CONTRACTING OFFICER. CONTINUOUS SNOW AND WIND ON TOP OF VAIL PASS MADE TESTING AT THIS ALTITUDE (10,603 FEET) IMPOSSIBLE WITHOUT THE PROTECTION OF SOME SHELTER ON THE DAY THE TEST WAS PERFORMED. ELEVATION OF PERFORMANCE TEST WAS 9,800 FEET ABOVE SEA LEVEL. "PARAGRAPH NO.'S 6 AND 10 - THE PRESSURE OF THE AIR RECEIVER WAS 100 PSI DURING THE TEST PERFORMED BY INGERSOL-RAND. THE 120 PSI REFERRED TO BY MR. SORENSON WAS RECORDED GAUGE PRESSURE ON THEIR NEW JERSEY FLOW METER. "PARAGRAPH NO. 9 - THE CONTROLS IN USE WERE AS STATED IN OUR COMMENTS TO PARAGRAPH NO. 4. THE SPEED DURING THE PERFORMANCE TEST WAS OBTAINED BY A TACOMETER. SPEED RATED VERSUS SPEED AT TIME OF TEST WAS USED AS A CORRECTION FACTOR IN DETERMINING CAPACITY. "PARAGRAPH NO. 11 - THE CAPACITY OF THE COMPRESSOR WAS DETERMINED TO BE ABOVE 150 CFM AT THE ALTITUDE THE TEST WAS PERFORMED. WE HAVE NO REASON TO QUESTION THAT THE SAME CAPACITY WOULDN-T BE ATTAINED AT 11,000 FEET ELEVATION. "PARAGRAPH NO. 12 - OF ALL THE BIDDERS, SORENSON EQUIPMENT COMPANY WAS THE ONLY ONE WHO DIDN-T INTERPRET THE SPECIFICATION AS INTENDED. "ACCORDING TO THE ASME POWER TEST CODES, PARAGRAPH 3.03 (G), MR. NEWLAND SERVED ONLY AS AN OBSERVER. THE ACTUAL PERFORMANCE TEST WAS CONDUCTED BY INGERSOL RAND.'

THE CONTRACTING OFFICER'S STATEMENTS CONCERNING YOUR ALLEGATIONS ARE AS FOLLOWS: "STATEMENT IN REGARD TO THE SECOND PARAGRAPH OF THE ABOVE LETTER. "IN ONE OF THE TELEPHONE CONVERSATIONS WITH MR. RICHARDS OF SORENSON EQUIPMENT COMPANY, PREVIOUS TO MAKING ARRANGEMENTS FOR MAKING THE TESTS ON MAY 17, I DID MENTION THAT IF THE TESTS WERE RUN, THE GOVERNMENT WOULD PROBABLY HAVE THE TESTS RUN BY AN INDEPENDENT TESTING FIRM. THIS WAS BASED ON MY DISCUSSIONS WITH DON SCHULTZ FROM THE BRANCH OF MECHANICAL ENGINEERING. AN ESTIMATE OF $250.00 FOR RUNNING THE TESTS IN THE FIELD WAS VERBALLY STATED BY AN INDEPENDENT TESTING FIRM. "ON THE DATE I TOLD MR. SORENSON THAT THE TESTS WOULD BE PERFORMED AT VAIL PASS, HE WAS AGREEABLE TO THIS SITE. THERE WAS NO MENTION MADE AS TO WHOM WOULD RUN THE TESTS. MR. SORENSON'S LETTER OF MARCH 15, STATES THAT IF INGERSOLL- RAND DID NOT HAVE THE EQUIPMENT NECESSARY TO MAKE THE TESTS, THEY WOULD FURNISH THEIR ORIFICES AND FLOW GAGES NECESSARY FOR THE TESTS. THIS CERTAINLY SEEMED TO BE AN INDICATION THAT THERE WAS NO OBJECTION TO OUR MAKING THE TESTS AND USING THEORIFICES IN TESTING. IT WAS NOT MY INTENTION TO GIVE MR. SORENSON THE IMPRESSION THAT THE TESTS ON MAY 17 WOULD BE RUN BY AN INDEPENDENT FIRM. THIS, IN MY OPINION, WAS AN ASSUMPTION HE MADE FROM TALKING TO MR. RICHARDS IN REGARD TO THE TESTS EARLIER. "THE COMPRESSOR WAS AVAILABLE TO MESSRS. SORENSON AND RICHARDS EARLIER, BUT WE DID NOT ARRIVE BACK AT VAIL PASS UNTIL 3:30 P.M. IT TOOK LONGER THAN ANTICIPATED TO HAVE A BRAKE LINE ON MR. SORENSON'S CAR REPAIRED. BEFORE ALLOWING MESSRS. SORENSON AND RICHARDS TO MAKE THEIR TEST WITH THE NEW JERSEY FLOW METER, I ASKED MR. NEWLAND IF THE COMPRESSOR MET SPECIFICATIONS. HE STATED THAT IN HIS OPINION THE INGERSOLL-RAND COMPRESSOR MET SPECIFICATIONS. "STATEMENT IN REGARD TO THE FIFTH PARAGRAPH OF THE ABOVE LETTER. "IN HAVING THE TESTS RUN SOME JUDGMENT AND ECONOMIC FACTORS HAVE TO BE TAKEN INTO CONSIDERATION. VAIL PASS WAS THE BEST GEOGRAPHIC LOCATION AVAILABLE ON MAY 17. THE COMPRESSOR HAD TO BE MOVED APPROXIMATELY 75 MILES FROM GLENWOOD SPRINGS TO VAIL PASS. VAIL PASS IS APPROXIMATELY 95 MILES FROM DENVER. THE ONLY REASON FOR NOT PERFORMING THE TESTS AT VAIL PASS WAS TO PROVIDE PROTECTION FROM THE WIND AND SNOW - NOT THE 800 FEET DIFFERENCE IN ELEVATION. THE TESTS WERE RUN TO DETERMINE IF THE COMPRESSOR FURNISHED BY INGERSOLL-RAND COMPANY MET, IN THE GOVERNMENT'S OPINION, THE SPECIFICATIONS AS SET FORTH IN IFB R2-68- 38. "THE INVITATION DID NOT REQUIRE A PERFORMANCE TEST AT 11,000 FEET ELEVATION. IT WAS PERFORMED BECAUSE THE QUESTION WAS RAISED AS TO WHETHER THE COMPRESSOR COULD MEET THE SPECIFICATIONS AT THIS ELEVATION. IT IS MY OPINION THE COMPRESSOR DID MEET THE SPECIFICATIONS AS SET FORTH IN IFB R2- 68-38. WHEN MAKING A TEST OF THIS NATURE, THE ASME TEST CODE STATES THAT PARTIES TO THE CONTRACT HAVE A NUMBER OF ITEMS TO REACH AN AGREEMENT ON IN REGARD TO TESTING. THESE WERE AGREED TO BY THE PARTIES OF THE CONTRACT. "THE TECHNICAL ASPECTS OF THE COMPRESSOR THAT WERE STATED BY MR. SORENSON CAN BEST BE ANSWERED BY TECHNICAL PERSONNEL. A COPY FROM THE DIVISION OF ENGINEERING WITH THEIR COMMENTS IN REGARD TO STATEMENTS MADE IN MR. SORENSON'S LETTER OF MAY 20, 1968, HAS BEEN SUBMITTED UNDER COVER LETTER DATED JUNE 20. (THE COMMENTS OF THE REGIONAL ENGINEER QUOTED ABOVE.) "CONTRACTING OFFICER'S OPINION THE QUESTION HAS EVOLVED DOWN TO A DEFINITION OF FREE AIR DELIVERY. MR. SORENSON CHOSE NOT TO MAKE ANY MENTION IN HIS LETTER TO THE DISCUSSION THAT TOOK PLACE AT VAIL PASS CONCERNING FREE AIR DELIVERY. HE DID NOT AGREE WITH THE DEFINITION THAT MR. NEWLAND SHOWED HIM IN THE ASME BOOKLET - (DISPLACEMENT COMPRESSORS, VACUUM PUMPS AND BLOWERS POWER TEST CODE) - FOR FREE AIR. REFERENCE IS MADE TO THIS POWER TEST CODE IN THE SPECIFICATIONS OF THE CONTRACT. "THE DEFINITIONS STATED IN MY LETTER TO MR. SORENSON, DATED JUNE 28, 1968, ARE WHAT MY DETERMINATION HAS BEEN BASED ON FOR ACCEPTING THE COMPRESSOR. "THE INTENT OF THE SPECIFICATIONS WAS TO OBTAIN A STANDARD PRODUCTION MODEL OF A PORTABLE AIR COMPRESSOR CLASSIFIED AS A 150 CFM UNIT. THIS CLASS OF UNIT WOULD MEET THE SERVICE REQUIREMENTS AS SET FORTH IN SPECIFICATIONS. "ALL BIDDERS - EXCEPT SORENSON EQUIPMENT COMPANY - BID A 150 OR 160 CFM COMPRESSOR. IT IS MR. SORENSON'S OPINION THAT ONLY A 200 CFM COMPRESSOR WOULD MEET THE REQUIREMENTS OF THE SPECIFICATIONS AS SET FORTH IN THE CLAUSE ENTITLED - SIZE. IT THEN BECAME A QUESTION OF WHETHER THE FREE-AIR DELIVERY SHOULD BE MEASURED AT THE INTAKE OR THE OUTLET. OUR DETERMINATION AND THAT OF THE CONTRACTOR WAS TO MEASURE THE FREE AIR DELIVERY AT THE INTAKE IN ACCORDANCE WITH THE ASME POWER TEST CODE. THE FIELD TEST WAS PERFORMED TO DETERMINE IF THE INGERSOLL RAND COMPRESSOR WOULD MEET THE THREE REQUIREMENTS SET FORTH IN THE SPECIFICATIONS CLAUSE - SIZE. THE LETTER FROM THE DIVISION OF ENGINEERING STATES THAT THE COMPRESSOR MET THESE REQUIREMENTS.'

INASMUCH AS THE VALIDITY OF THE CONTRACT AWARDED MUST BE DETERMINED ON THE BASIS OF THE RECORD BEFORE THE CONTRACTING OFFICER AT THE TIME OF AWARD, AND WE HAVE CONCLUDED FOR THE REASONS STATED ABOVE THAT THERE IS NO LEGAL GROUND ON WHICH WE COULD REQUIRE THE CONTRACT TO BE CANCELLED, YOUR OBJECTIONS TO ACCEPTANCE OF THE ARTICLES TENDERED BY THE CONTRACTOR MUST NECESSARILY GO TO THE ADMINISTRATION OF THE CONTRACT.

CONCERNING YOUR CONTENTION THAT MR. LLOYD NEWLAND IS NOT A QUALIFIED ENGINEER TO CONDUCT TESTS OF THE NATURE HERE INVOLVED, WE MUST DECLINE TO EXPRESS AN OPINION THEREON.

BASED UPON THE INFORMATION FURNISHED US CONCERNING THE TESTS OF THE EQUIPMENT OFFERED, WE CANNOT CONCLUDE THAT THE ACTION TAKEN BY THE FOREST SERVICE IN ACCEPTING SUCH EQUIPMENT WAS NOT FOUNDED UPON SOUND TECHNICAL ADVICE, OR THAT SUCH ACTION WAS IN VIOLATION OF LAW OR THE PROVISIONS OF THE CONTRACT.