B-164878, NOV. 5, 1968

B-164878, NOV. 5, 1968

TO SPANMASTER DIVISION, JERVIS B. WEBB COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 17 AND OCTOBER 1, 1968, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER SOLICITATION NO. N00197 -68-B-0289 ISSUED BY THE NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY.

THE INVITATION FOR BIDS WAS ISSUED ON MAY 17, 1968, FOR TWO 5-TON CAPACITY CRANE SYSTEMS. THE SIX BIDS RECEIVED PURSUANT TO THE INVITATION WERE OPENED ON JUNE 6, 1968, AND THE BID SUBMITTED BY SPANMASTER DIVISION, JERVIS B. WEBB COMPANY (SPANMASTER), WAS FOUND TO BE LOW. BY A LETTER OF JUNE 10, 1968, IN RESPONSE TO A TELEPHONIC REQUEST FROM THE CONTRACTING OFFICER, SPANMASTER SUBMITTED A BROCHURE AND OTHER INFORMATION RESPECTING RELIABILITY AS REQUIRED BY PARAGRAPH 10, PAGE 13 OF THE INVITATION. THE CONTRACTING OFFICER ON JUNE 13, 1968, REQUESTED THAT ADDITIONAL INFORMATION, SUCH AS DESCRIPTIVE LITERATURE, SPECIFICATIONS AND CUTS SHOWING THE TYPE OF CRANES, BE FURNISHED FOR EVALUATION. ADDITIONALLY, SPANMASTER WAS REQUESTED TO CONFIRM ITS PRICE AND THE CONFORMITY OF THE OFFERED EQUIPMENT TO THE SPECIFICATIONS. SPANMASTER, BY LETTER OF THE SAME DAY, FORWARDED TYPICAL DATA SHEETS, CONFIRMED ITS BID PRICE AND ASSERTED THAT THE BID WAS IN COMPLIANCE WITH THE SPECIFICATIONS.

SPANMASTER, ON JUNE 20, 1968, TELEPHONED THE CONTRACTING OFFICER AND ENGINEERING PERSONNEL TO ASCERTAIN THE STATUS OF THE PROCUREMENT. LETTER OF THE SAME DATE TO THE CONTRACTING OFFICER, SPANMASTER ADVISED THAT AS A RESULT OF THE CONVERSATION WITH THE ENGINEERS A REVIEW HAD BEEN MADE OF ITS OFFER, PARTICULARLY RESPECTING THE ADVICE FROM THE ENGINEERS THAT THE SPECIFICATIONS REQUIRED THE CRANE TO HAVE INDIVIDUAL DRIVING MOTORS OR TRACTORS ON EACH END TRUCK. SPANMASTER ADVISED THAT ITS BID WAS BASED UPON EACH CRANE HAVING ONE DRIVE MOTOR, 3/4 HORSEPOWER, WHICH WOULD POWER THE CRANE THROUGH A DRIVE SHAFT TRANSMITTING POWER TO WHEELS MAKING DIRECT CONTACT WITH THE CRANE RUNWAYS. FURTHER, SPANMASTER ADVISED THAT IT BELIEVED THIS WAS THE TYPE DRIVE USED BY THE MAJORITY OF THE CRANE MANUFACTURERS, INCLUDING LOUDEN MACHINERY, THE COMPANY WHOSE CRANE THE ORDNANCE STATION WAS USING; THAT THIS TYPE OF DRIVE WAS PERMISSIBLE UNDER THE MONORAIL MANUFACTURERS ASSOCIATION'S SPECIFICATIONS FROM WHICH THE INVITATION'S SPECIFICATIONS WERE DAPTED; AND THAT THE DIRECT GEARING BETWEEN MOTOR AND WHEEL WAS RESTRICTIVE AND PROPRIETARY TO A SINGLE COMPANY, CLEVELAND TRAMRAIL COMPANY. THEREFORE, SPANMASTER STATED THAT IF THE EXACT LITERAL INTERPRETATION WAS TO BE APPLIED, THE GOVERNMENT HAD AN OBLIGATION TO SO ADVISE BIDDERS AND IF, AS A RESULT OF THE LITERAL INTERPRETATION AND THE INFORMATION FURNISHED RESPECTING RELIABILITY ITS BID WAS HELD NONRESPONSIVE, A PROTEST WOULD BE MADE.

THE CONTRACTING OFFICER, BY LETTER OF JULY 15, 1968, ADVISED THAT AS A RESULT OF A REVIEW OF THE EQUIPMENT OFFERED BY SPANMASTER AND THE COMMENTS IN THE LETTER OF JUNE 20, 1968, ITS OFFER HAD BEEN DETERMINED NOT TO MEET THE SPECIFICATIONS. AWARD WAS MADE ON THE SAME DATE TO THE LOW RESPONSIVE OFFEROR. SPANMASTER, BY LETTER DATED JULY 17, 1968, PROTESTED TO THIS OFFICE THE IMPROPER EVALUATION OF ITS OFFER, CONTENDING THAT THE SPECIFICATIONS WERE RESTRICTIVE AS TO THE CARRIER DRIVE.

OUR EXAMINATION OF THE SPECIFICATIONS AND THE PERTINENT CORRESPONDENCE CLEARLY INDICATES THAT THE PERFORMANCE CONTEMPLATED IN THE LETTER OF JUNE 20, 1968, WAS MATERIALLY AT VARIANCE WITH THE SPECIFICATIONS. WE ARE AT A LOSS TO UNDERSTAND THE BASIS FOR YOUR ASSUMPTION THAT THE SPECIFICATIONS MEANT SOMETHING OTHER THAN PLAIN MEANING OF THE LITERAL LANGUAGE.

THIS OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT AN OFFER SHOULD BE EVALUATED IN ACCORDANCE WITH ITS FORM AND CONTENT AT BID OPENING AND NOT ON THE BASIS OF EXTRINSIC EVIDENCE SUPPLIED AFTER OPENING. SEE 41 COMP. GEN. 620. WE THINK THE RULE APPLIES IN CASES SUCH AS THIS WHERE DESCRIPTIVE LITERATURE IS FURNISHED AFTER BID OPENING FOR THE PURPOSE OF DETERMINING THE OFFEROR'S RELIABILITY ESPECIALLY WHEN THE LITERATURE WAS CHARACTERIZED AS TYPICAL DATA NOT NECESSARILY DENOTING THE EXACT SPECIFICATIONS OF THE EQUIPMENT OFFERED.

WE HAVE HELD THAT A BID REGULAR ON ITS FACE SHOULD NEVERTHELESS BE REJECTED WHEN THE CONTRACTING OFFICER IS AWARE PRIOR TO AWARD THAT THE BIDDER'S INTENTION HAD ALWAYS BEEN TO PERFORM IN A MANNER INCONSISTENT WITH THE SPECIFICATIONS. 46 COMP. GEN. 275. IN THIS INSTANCE THE ERRONEOUS BASIS UPON WHICH SPANMASTER BID WAS NOT REVEALED UNTIL AFTER OPENING. TO ALLOW SPANMASTER ON THIS INFORMATION TO CHANGE, WITHDRAW OR OTHERWISE ALTER THE PROPOSAL WOULD VIOLATE A BASIC PRECEPT OF FORMAL ADVERTISING THAT BIDS MAY NOT BE ALTERED AFTER OPENING. 17 COMP. GEN. 554.

APPARENTLY, IN THIS INSTANCE THE TYPICAL DATA SUBMITTED AS PROOF OF RELIABILITY AND THE STATEMENT IN THE JUNE 20, 1968, LETTER AS TO THE BASIS FOR THE BID WERE USED INCORRECTLY BY THE PROCUREMENT OFFICE IN REEVALUATING THE SPANMASTER BID. NEVERTHELESS, WE THINK THE CONTRACTING OFFICER JUSTIFIABLY COULD HAVE USED THAT INFORMATION TO SUPPORT A CONCLUSION THAT HE COULD NOT AFFIRMATIVELY FIND SPANMASTER RESPONSIBLE FOR THE PARTICULAR PROCUREMENT. INASMUCH AS A CONTRACT HAS BEEN AWARDED UNDER THE INVITATION AND SPANMASTER PERSISTS IN A POSITION WHICH CASTS DOUBT UPON ITS ABILITY TO PERFORM, THIS OFFICE CANNOT AGREE THAT THE BEST INTERESTS OF THE GOVERNMENT WOULD BE SERVED BY CANCELING THE AWARD FOR THE FAILURE OF THE CONTRACTING OFFICER TO USE THE PROPER TERMINOLOGY IN REJECTING THE LOW BID.

THE LETTER OF JULY 17, 1968, FROM SPANMASTER ALSO CONTENDS THE CARRIER DRIVE SPECIFICATION WAS RESTRICTIVE AND PROPRIETARY TO A PARTICULAR MANUFACTURER. THE SPECIFICATIONS IN THIS CASE WERE ADAPTED FROM THE GENERAL DESIGN SPECIFICATIONS OF THE MONORAIL MANUFACTURERS ASSOCIATION WITH DIFFERENCES NOTABLY IN THE DRIVE REQUIREMENT. ADDITIONALLY, AS POINTED OUT BY SPANMASTER, THE SPECIFICATIONS IN QUESTION HAVE BEEN USED AT OTHER ACTIVITIES. WE THINK THE INFORMATION RESPECTING PAST USAGE AND THE SOURCE OF THE SPECIFICATIONS TENDS TO SHOW THEY DID REFLECT THE NEEDS OF THE GOVERNMENT AND WERE ADAPTED TO PROVIDE A WIDE FIELD OF COMPETITION. FURTHER, THE ALLEGED RESTRICTIVE DRIVE REQUIREMENT IN THE INVITATION IS IN FACT MET BY THREE KNOWN CRANE MANUFACTURERS INCLUDING THE MANUFACTURER OF THE CRANE IN USE AT THE ORDNANCE STATION.

THE PROCURING ACTIVITY HAS THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS TO REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT IN SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THOSE NEEDS. THE EXERCISE OF DISCRETION BY THE AGENCY IN DETERMINING THE ACTUAL NEEDS OF THE GOVERNMENT IS NOT SUBJECT TO OUR REVIEW IN THE ABSENCE OF BAD FAITH. 40 COMP. GEN. 294. THE MERE SHOWING THAT THE GUIDELINE SPECIFICATIONS ESTABLISHED BY THE MONORAIL MANUFACTURERS ASSOCIATION WERE BROADER THAN THOSE OF THE INVITATION DOES NOT ESTABLISH THAT THE PROCURING ACTIVITY ABUSED ITS DISCRETION BY DETERMINING THE GOVERNMENT'S NEEDS TO REQUIRE A PARTICULAR TYPE DRIVE.

THAT PORTION OF THE SPANMASTER LETTER OF JULY 17, 1968, DEALING WITH THE 15,000-HOUR MINIMUM LIFE REQUIREMENT FOR BEARINGS IS ALSO WITHOUT MERIT FOR ESSENTIALLY THE SAME REASONS. THOSE BEARINGS WERE DETERMINED NECESSARY TO MEET THE GOVERNMENT'S NEEDS AND AT LEAST THREE SUBCONTRACTORS ARE KNOWN TO PRODUCE THE REQUIRED BEARINGS.

FINALLY, THE LETTER OF OCTOBER 1, 1968, QUESTIONS WHY THE "STOP ORDER" REQUESTED ON JUNE 17, 1968, WAS NOT HONORED. PARAGRAPH 2-407.9 (C) OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT PROTESTS RECEIVED AFTER AWARD SHALL BE HANDLED IN ACCORDANCE WITH DEPARTMENTAL PROCEDURES. THIS OFFICE DOES NOT HAVE AUTHORITY TO COMPEL THE AGENCY TO EXERCISE ITS DISCRETION IN DETERMINING WHETHER PERFORMANCE SHOULD BE POSTPONED OR STOPPED.

ACCORDINGLY, THE ABOVE REASONS REQUIRE THAT YOUR PROTEST MUST BE DENIED BY THIS OFFICE.