B-208544, MAR 7, 1983

B-208544, MAR 7, 1983

DIGEST: AGENCY'S INTERPRETATION OF A CLAUSE IN INVITATION FOR BIDS REQUIRING THAT THE PRODUCT OFFERED BE THE "LATEST MODEL OF THE STANDARD PRODUCT OF THE MANUFACTURER" TO MEAN LATEST MODEL THAT MEETS THE SPECIFICATIONS IS REASONABLE.

FIAT ALLIS NORTH AMERICA, INC.:

FIAT ALLIS NORTH AMERICA, INC. PROTESTS THE PROSPECTIVE AWARD OF A CONTRACT TO CATERPILLAR TRACTOR CO. UNDER INVITATION FOR BIDS NO. DLA 700- 82-B-0657 ISSUED BY THE DEFENSE LOGISTICS AGENCY FOR CRAWLER-TYPE TRACTORS. FIAT ALLIS CONTENDS THE PARTICULAR THE SOLICITATION REQUIREMENT THAT THE TRACTOR BE "THE LATEST MODEL OF THE STANDARD PRODUCT OF THE MANUFACTURER." WE DENY THE PROTEST.

THE SOLICITATION IS FOR THIRTEEN FULLY-TRACKED, DIESEL-DRIVEN TRACTORS WITH VARIOUS ATTACHMENTS AND SPECIAL EQUIPMENT. DLA PROPOSES TO AWARD THE CONTRACT TO CATERPILLAR WHICH SUBMITTED THE LOW BID FOR EACH ITEM, OFFERING THE CATERPILLAR D8K. FIAT ALLIS SUBMITTED THE SECOND LOW BID FOR MOST OF THE ITEMS.

THE SOLICITATION CONTAINS THE FOLLOWING CERTIFICATION:

"THE OFFEROR CERTIFIES THAT THE MAKE/MODEL IDENTIFIED BELOW, WHICH IS OFFERED UNDER THIS SOLICITATION, IS ITS STANDARD COMMERCIAL ITEM WHICH FULLY COMPLIES WITH THE REQUIREMENTS OF FED.STD. KKK-T-631E, PARA. 3.1."

PARAGRAPH 3.1 OF FEDERAL SPECIFICATION KKK-T-631E PROVIDES AS FOLLOWS:

"THIS SPECIFICATION COVERS DIESEL-ENGINE-DRIVEN, CRAWLER TYPE TRACTORS AND ALLIED EQUIPMENT OF CONVENTIONAL DESIGN AND HEAVY DUTY CONSTRUCTION, COMPLETE WITH ALL NECESSARY OPERATING ACCESSORIES CUSTOMARILY FURNISHED WITH TRACTORS OF THIS TYPE WHETHER STIPULATED HEREIN OR AND ATTACHMENTS AS MAY BE NECESSARY TO

FIAT ALLIS CONTENDS THAT THE D8K DOES NOT MEET THE SPECIFICATIONS BECAUSE IT IS NOT THE LATEST MODEL OF THE STANDARD PRODUCT OF CATERPILLAR. FIAT ALLIS PRODUCTIVE THAN ITS CONVENTIONALLY DESIGNED PREDECESSOR, THE D8K." FIAT ALLIS HAS ALSO SUBMITTED A "RETAIL SALES MODEL IDENTIFICATION CHART" (APRIL 1982) ISSUED BY THE EARTHMOVING STATISTICAL ADVISORY COMMITTEE. THE CHART LISTS BOTH THE D8K AND D8L AS CATERPILLAR'S OFFERINGS IN THE 260 TO 345 HORSEPOWER CLASS, BUT DESIGNATES THE D8K AS A PHASED-OUT OR DISCONTINUED MODEL.

ALTHOUGH THE RECORD IS CLEAR THAT THE "L" MODEL AND NOT THE "K" IS THE LATEST MODEL IN THE D8 SERIES, DLA STATES THAT THE D8K IS ACCEPTABLE. DLA READS THE LATEST MODEL REQUIREMENT TO MEAN THAT THE TRACTOR MUST BE THE LATEST MODEL THAT MEETS THE OTHER SPECIFICATIONS. SINCE THE D8K IS, UNDER DLA'S INTERPRETATION, THE LATEST MODEL OF CATERPILLAR'S STANDARD PRODUCT. THEREFORE DLA INTENDS TO AWARD THE CONTRACT TO CATERPILLAR.

WE FIND THAT DLA'S INTERPRETATION OF THE LATEST MODEL REQUIREMENT REASONABLE. THE REQUIREMENT IS INTENDED TO REQUIRE BIDDERS TO OFFER THEIR LATEST MODELS. TO CONSTRUE THE CLAUSE SO AS TO ELIMINATE COMPLETELY FROM COMPETITION A FIRM THAT HAS ONLY ONE MODEL THAT MEETS THE SPECIFICATIONS AND ANOTHER MORE RECENT MODEL THAT DOES NOT MEET THE SPECIFICATIONS WOULD UNNECESSARILY RESTRICT THE COMPETITION. WE FIND NO BASIS TO QUESTION THE PROPOSED AWARD.

THE PROTEST IS DENIED.