B-146161, JUN. 26, 1961

B-146161, JUN. 26, 1961

TO THE SECRETARY OF THE ARMY:

WE HAVE A LETTER OF JUNE 16, 1961, WITH ENCLOSURES, SIGNED BY THE CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTING OUR DECISION AS TO THE PROPER DISPOSITION OF BIDS SUBMITTED PURSUANT TO INVITATION NO. ENG-11-184-61-AF-389-JD ISSUED MARCH 15, 1961, BY THE CORPS OF ENGINEERS FOR THE PROCUREMENT OF 26 FIREFIGHTING TRUCKS FOR USE BY THE DEPARTMENT OF THE NAVY.

THE INVITATION REQUIRED THAT THE TRUCKS CONFORM TO MILITARY SPECIFICATION MIL-T-19233/DOCKS), AS AMENDED. THAT SPECIFICATION PROVIDES AT PARAGRAPH 3.7.6.1 AS FOLLOWS:

"* * * TORQUE CAPACITY OF THE TRANSMISSION SHALL BE ADEQUATE TO TRANSMIT THE MAXIMUM GROSS TORQUE OF THE ENGINE THROUGH ALL GEAR REDUCTIONS. * *

WHEN BIDS WERE OPENED ON APRIL 14, 1961, AS SCHEDULED, IT WAS FOUND, FROM THE INFORMATION CONTAINED IN THE ANSWERS TO QUESTIONNAIRES REQUIRED UNDER THE TERMS OF THE INVITATION TO BE SUBMITTED WITH EACH BID, THAT THE THREE LOW BIDDERS WERE OFFERING AN ENGINE WITH A GROSS TORQUE OF 309-FOOT POUNDS AND A TRANSMISSION WITH AN INPUT TORQUE CAPACITY OF 230-FOOT POUNDS. HAS BEEN DETERMINED THAT THE TRANSMISSION OFFERED DOES NOT MEET THE SPECIFICATION PROVISION QUOTED ABOVE.

IN CORRESPONDENCE WITH THE LOW BIDDER AFTER OPENING IT WAS ESTABLISHED THAT THE TRANSMISSION LISTED WAS THAT WHICH THE BIDDER INTENDED TO OFFER AND WHICH IN HIS JUDGMENT IS ADEQUATE FOR USE WITH THE VEHICLE. WE DO NOT QUESTION THAT THE VEHICLE AS OFFERED BY THE THREE LOW BIDDERS WOULD BE CAPABLE OF PERFORMANCE STANDARDS ADEQUATE TO MEET MANY USES. IN THIS CASE THE INTENDED USE OF THE VEHICLES, AS FIRE TRUCKS, IMPORTS THAT THEIR NORMAL EMPLOYMENT WILL BE UNDER CONDITIONS OF AN EMERGENCY NATURE. BELIEVE IT REASONABLE TO CONCLUDE UNDER THE CIRCUMSTANCES, AS THE USING ACTIVITY APPARENTLY HAS, THAT THE PERFORMANCE STANDARDS REGARDED AS THE MINIMUM NECESSARY TO MEET THE GOVERNMENT'S REQUIREMENTS IN THIS CASE ARE HIGHER THAN WOULD BE APPLICABLE TO OTHER USES OF THE VEHICLES.

THE DRAFTING OF PROPER SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT AND THE DETERMINATION FACTUALLY WHETHER THE PRODUCT OFFERED MEETS THOSE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY. 17 COMP. GEN. 554. IN VIEW OF THE USING AGENCY'S SCOPE OF AUTHORITY IN THIS AREA AND THE APPARENTLY UNQUESTIONED FACT THAT THE TORQUE CAPACITY OF THE TRANSMISSION OFFERED IS MATERIALLY LESS THAN THE MAXIMUM GROSS TORQUE OF THE ENGINE, CONTRARY TO PARAGRAPH 3.7.6.1, WE CONCLUDE THAT THE FIRST THREE BIDS DID NOT OFFER PRODUCTS CONFORMING THE THE SPECIFICATIONS.

THE INVITATION PROVIDES AT PAGE 2 OF THE SCHEDULE AS FOLLOWS:

"TECHNICAL DATA QUESTIONNAIRE:

THE BIDDER SHALL FILL IN THE ANSWERS TO ALL APPLICABLE ITEMS OF THE QUESTIONNAIRE INCLUDED HEREIN AND MADE A PART OF THIS INVITATION ON PAGES 27 THROUGH 34.'

THE TECHNICAL DATA QUESTIONNAIRE IN WHICH THE BIDDER WAS REQUIRED TO FURNISH DETAILED INFORMATION ON THE PRODUCT OFFERED, INCLUDING GROSS MAXIMUM TORQUE OF THE ENGINE AND MAXIMUM TORQUE CAPACITY OF THE TRANSMISSION, STATES AT THE BEGINNING---

"THE BIDDER SHALL FILL IN THE ANSWERS TO ALL APPLICABLE ITEMS OF THE FOLLOWING QUESTIONNAIRE AND SUBMIT IT, WITH THE BID FOR EVALUATION. THIS COMPLETED QUESTIONNAIRE SHALL FORM A PART OF THE FORMAL CONTRACT DOCUMENT.'

PARAGRAPH 28 OF THE QUESTIONNAIRE ALSO PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO DECLARE ANY BID NONRESPONSIVE IF NOT ACCOMPANIED BY A QUESTIONNAIRE COMPLETE IN ALL APPLICABLE PARTS AND WITH INFORMATION PROPERLY REFLECTING THE PRODUCT TO BE FURNISHED. THE QUESTIONNAIRE AT PARAGRAPH 28B PROVIDES SPACES FOR THE BIDDER TO INDICATE HIS AGREEMENT TO PERFORM IN COMPLETE COMPLIANCE WITH THE SPECIFICATION AND TO INDICATE ANY EXCEPTIONS FROM THOSE SPECIFICATIONS. FINALLY, AT PARAGRAPH 28C THERE IS SPACE TO INDICATE THE BIDDER'S AGREEMENT THAT, UNLESS AN EXCEPTION IS LISTED IN 28B, COMPLETE COMPLIANCE WITH THE SPECIFICATION CAN BE REQUIRED AT THE BID PRICE REGARDLESS OF THE INFORMATION FURNISHED IN THE QUESTIONNAIRE.

THE THREE LOW BIDDERS LISTED NO EXCEPTIONS AND INDICATED BY CHECKING THE APPROPRIATE BOX THEIR AGREEMENT TO CONFORM COMPLETELY TO THE SPECIFICATIONS. THE QUESTION HAS BEEN RAISED WHETHER THE AFFIRMATIVE RESPONSE BY THE BIDDER CONSTITUTES AN OVERALL OFFER TO COMPLY WHICH RENDERS THE BID RESPONSIVE NOTWITHSTANDING THE MATERIAL DEVIATIONS FROM THE SPECIFICATIONS INDICATED IN THE DETAILED TECHNICAL DATA.

THE FUNCTION OF THE TECHNICAL DATA QUESTIONNAIRE IS CLEARLY TO PROVIDE FOR THE SUBMISSION OF UNIFORM DESCRIPTIVE DATA BY THE BIDDERS. INDICATED ABOVE, THE ANSWERS PROVIDED BY THE BIDDERS ARE USED IN BID EVALUATION AND UPON ACCEPTANCE BECOME PART OF THE CONTRACT. FURTHER, BIDDERS ARE WARNED THAT FAILURE TO COMPLETE THE QUESTIONNAIRE ACCURATELY MAY RESULT IN BID REJECTION. UNDER THESE CIRCUMSTANCES IT IS OUR VIEW THAT THE RULES PERTAINING TO THE EFFECT OF AN OVERALL OFFER TO COMPLY WHEN DESCRIPTIVE DATA REQUIREMENTS HAVE NOT BEEN MET ARE ALSO APPLICABLE TO THIS SITUATION. WE HAVE HELD THAT AN OVERALL OFFER TO COMPLY CANNOT BE REGARDED AS OVERCOMING THE SPECIFIC PROVISIONS OF THE INVITATION REQUIRING THE FURNISHING OF MATERIAL DESCRIPTIVE DATA. 40 COMP. GEN. 132, 135; 36 COMP. GEN. 415, 417; B-138462, MARCH 9, 1959.

COMPETITIVELY ADVERTISED PROCUREMENTS UNDERTAKEN BY THE MILITARY AGENCIES MAY BE AWARDED UNDER 10 U.S.C. 2305 (C) ONLY UPON THOSE BIDS CONFORMING TO THE INVITATION. IN THIS CASE THE SPECIFICATION APPLICABLE TO THE PROCUREMENT CLEARLY REQUIRES A GIVEN MINIMUM TORQUE CAPACITY FOR THE TRANSMISSION IN RELATION TO THE GROSS TORQUE OF THE ENGINE. WE ARE AWARE OF NO BASIS FOR CONCLUDING THAT SUCH REQUIREMENT DOES NOT ACCURATELY REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT. FINALLY, IT IS CLEAR THAT AN OVERALL OFFER TO COMPLY IS NOT SUFFICIENT TO CURE THE DEVIATIONS FROM THE SPECIFICATIONS STATED IN THE INFORMATION SUPPLIED WITH THE BID. ACCORDINGLY, THOSE BIDS WHICH OFFERED TRANSMISSIONS NOT CONFORMING TO THE QUOTED PROVISION OF THE SPECIFICATION MAY NOT BE CONSIDERED FOR AWARD.