B-150608, JUN. 4, 1963

B-150608, JUN. 4, 1963

TO MR. JERRY L. DUKE:

FURTHER REFERENCE IS MADE TO YOUR TWO LETTERS DATED FEBRUARY 14, 1963, ONE WITH ENCLOSURES, RELATING TO THE MATTER OF YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO THE EQUIPMENT SERVICE COMPANY, INC., UNDER INVITATION FOR BIDS NO. 01-601-62-881, ISSUED BY THE BROOKLEY AIR FORCE BASE, ALABAMA, UNDER DATE OF MARCH 14, 1962. BY LETTER DATED MARCH 1, 1963, WE ADVISED YOU THAT WE WERE REQUESTING A FURTHER ADMINISTRATIVE REPORT IN THIS CASE AND THAT UPON RECEIPT OF A REPLY WE WOULD ADVISE YOU FURTHER. THE INDICATED REPORT HAS NOW BEEN RECEIVED.

BEFORE PROCEEDING TO A CONSIDERATION OF THE MATTER SET FORTH IN YOUR PROTEST, WE WISH TO CALL ATTENTION TO OUR LETTER OF FEBRUARY 8, 1963, ADVISING YOU THAT SINCE PERFORMANCE UNDER THE CONTRACT HAS LONG SINCE BEEN COMPLETED THERE IS NO CORRECTIVE ACTION WHICH COULD NOW BE TAKEN BY OUR OFFICE WITH RESPECT TO THE AWARD.

THE BASIS FOR YOUR PROTEST APPEARS TO BE YOUR CLAIM THAT THE EQUIPMENT OFFERED BY YOU FULLY CONFORMED TO THE SPECIFICATIONS WHEREAS THE EQUIPMENT OFFERED BY THE EQUIPMENT SERVICE COMPANY DID NOT. ALSO, YOU ALLEGED THAT THE CONTRACTOR DID NOT SUBMIT A "SHEET OF LITERATURE" WITH ITS BID AND DID MAKE "FALSE CLAIMS" FOR ITS EQUIPMENT BY CLAIMING THAT IT WOULD DIG A TRENCH 24 INCHES WIDE BY 5 1/2 FEET DEEP. WITH RESPECT TO THE LATTER STATEMENT, IT WAS ADMINISTRATIVELY DETERMINED THAT THE EQUIPMENT OFFERED BY THE EQUIPMENT SERVICE COMPANY WAS ADEQUATE TO MEET THE CONTRACT REQUIREMENTS AS TO WIDTH AND DEPTH OF THE TRENCH.

THE CITED INVITATION FOR BIDS SOLICITED BIDS FOR A QUANTITY OF SIX WHEEL MOUNTED DITCHING MACHINES, GASOLINE POWER DRIVEN, 0-1200 FOOT PER HOUR, CAPABLE OF ATTACHING A MAXIMUM OF 5 1/2 FOOT DEPTH, 12 INCH WIDTH BOOM, 12 1/2 HORSEPOWER ENGINE, HYDRAULIC POWER BOOM LIFT, REVERSIBLE DIRT CONVEYOR, AUTOMOTIVE TYPE FRONT AXLE, 12 VOLT ELECTRICAL STARTER, DUAL WHEELS, WHEEL WEIGHTS AND ADJUSTABLE CRUMBER, EQUIPPED WITH A MAXIMUM 3 1/2 FOOT DEPTH, 8 INCH WIDTH, WITH HARD SURFACED CUTTER BOOM AND INSULATED CONTROL HANDLES. MODEL ARPS TRENCH DEVIL, MODEL L-12 OR EQUAL.

THE INVITATION FOR BIDS FIXED THE BID OPENING TIME AS 10:30 A.M., C.S.T., ON MARCH 29, 1962, AT THE BROOKLEY AIR FORCE BASE, ALABAMA. THE RECORD SHOWS THAT EIGHT BIDS WERE RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF BIDS, THE LOWEST BID BEING THAT SUBMITTED BY BUS TRENCHER SALES AT THE BID PRICE OF $9,600, LESS A DISCOUNT OF TEN PERCENT FOR PAYMENT WITHIN TEN DAYS. THE NEXT LOWEST BID WAS SUBMITTED BY THE EQUIPMENT SERVICE COMPANY, INC., AT THE BID PRICE OF $11,700, LESS THE DISCOUNT OF TWO PERCENT FOR PAYMENT WITHIN TEN DAYS. THIS COMPANY PROPOSED TO FURNISH "DAVIS MODEL "C" PART NO: T 66," AND ATTACHED TO THE BID WAS THE REQUIRED DESCRIPTIVE LITERATURE. ALSO ATTACHED TO THE BID WAS A LETTER FROM THE EQUIPMENT SERVICE COMPANY THE FIRST PARAGRAPH THEREOF READING AS FOLLOWS:

"WE PROPOSE TO FURNISH THE MODEL T-66 DAVIS TRENCHER, CRAWLER MOUNTED. DIGGING SPEED 1 TO 12 FEET PER MINUTE, CAPABLE OF ATTACHING A MAXIMUM 5 1/2 FT. DEPTH, 24 INCHES WIDE BOOM, 12 1/2 HP GASOLINE ENGINE, HYDRAULICALLY OPERATED BOOM WITH BUILT-IN PRE LOADED SHOCK ABSORBER, AUTOMATICALLY LOCKS IN DESIRED POSITION, 12 VOLT ELECTRICAL STARTER, ADJUSTABLE CRUMBLER EQUIPPED WITH MAXIMUM 3 1/2 FT. DEPTH, 8 INCHES WIDE WITH HARD SURFACED HIGHEST QUALITY HEAT TREATED STEEL ALLOY CUTTERS.'

THE LOW BID BY BUS TRENCHER SALES PROPOSED TO FURNISH BUS BROWN TRENCHER, MODEL 468R, AND ATTACHED TO THE BID WAS A BROCHURE SHOWING THE SPECIFICATIONS OF THE MODEL 468R TRENCHER. THERE WAS ALSO INCLUDED WITH THE BID THE FOLLOWING ADDITIONAL DATA:

"12 1/2 HP WISCONSIN ENGINE, HYDRAULIC BOOM LIFT, REVERSIBLE DIRT AUGERS, HD FRONT AXLE ON ROLLER BEARINGS, ELECTRICAL STARTING, 12 VOLT, DUAL WHEELS,

3 1/2 FT. DEEP, 8 IN. WIDE HARD SURFACED CUTTER BOOM AND INSULATED CONTROLS.'

UNDER DATE OF APRIL 3, 1962, THE CONTRACTING OFFICER REQUESTED THE EASTERN GROUND ENGINEERING ELECTRONICS INSTALLATION AGENCY AT THE BROOKLEY AIR FORCE BASE TO REVIEW THE BIDS AND SUBMIT AN EVALUATION THEREOF, PARTICULARLY WITH REFERENCE TO THE "BRAND NAME OR EQUAL" CLAUSE CONTAINED IN THE INVITATION FOR BIDS. THE AGENCY REPLIED UNDER DATE OF APRIL 20, 1962, IN PART, AS FOLLOWS:

"A. AN OVERALL EVALUATION OF THE "BUS BROWN" MODEL 468-R INDICATES THAT THIS 1100 POUND MACHINE IS TOO LIGHT FOR ITS PROPOSED USAGE, SINCE IT WOULD BE SUBJECTED TO VARIOUS SOIL CONDITIONS WHERE GREATER WEIGHT AND POSITIVE TRACTION IS REQUIRED. THERE IS NO PROVISION FOR WHEEL WEIGHTS TO CONFORM TO SPECIFICATIONS. THE MAXIMUM 3 1/2 FOOT DEPTH OF TRENCH AND 8 INCH WIDTH, AS OFFERED, WITH NO PROVISION FOR A MAXIMUM 5 1/2 FOOT DEPTH OF TRENCH AND 12 INCH WIDTH, DOES NOT CONFORM TO REQUIREMENTS AND SPECIFICATIONS.

"B. AN OVERALL EVALUATION OF THE "DAVIS T-66" MODEL C INDICATES THAT THIS MACHINE WILL MEET OUR TRENCHING REQUIREMENTS. A DEMONSTRATION OF THIS TRACK MOUNTED MACHINE PROVES THAT IR PROVIDES MAXIMUM TRACTION EVEN UNDER ADVERSE SOIL CONDITIONS. SIMPLICITY OF OPERATION AND MAINTENANCE ASPECTS ARE VERY DESIRABLE FEATURES. SINCE THIS MACHINE MEETS OUR REQUIREMENTS AND IS SOME $200.00 CHEAPER PER MACHINE THAN THE "ARPS L12," WE REQUEST PROCUREMENT OF THE "DAVIS T66" MODEL "

ON THE BASIS OF THE RECORD BEFORE HIM, INCLUDING THE REPORT JUST QUOTED, THE CONTRACTING OFFICER CONSIDERED AND REJECTED THE BID OF BUS TRENCHER SALES AS NONRESPONSIVE FOR FAILURE OF THE EQUIPMENT OFFERED TO MEET IN ALL MATERIAL RESPECTS THE CHARACTERISTICS OF THE BRAND NAME SPECIFIED IN THE INVITATION. AN AWARD WAS MADE TO THE EQUIPMENT SERVICE COMPANY, INC., MOBILE, ALABAMA, ON THE BASIS OF A DETERMINATION BY THE CONTRACTING OFFICER THAT THE DAVIS T-66 TRENCHER OFFERED BY THE SUCCESSFUL BIDDER WAS EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME SPECIFIED IN THE INVITATION.

THE RECORD SHOWS THAT FOLLOWING THE FOREGOING ACTION THERE WAS CONSIDERABLE CORRESPONDENCE WITH THE DEPARTMENT OF THE AIR FORCE IN WHICH YOU PROTESTED THE AWARD OF A CONTRACT IN THIS CASE. AS A RESULT OF YOUR PROTEST THE CONTRACTING OFFICER AGAIN REVIEWED THE MATTER AND SUBMITTED A STATEMENT OF FACTS AND CIRCUMSTANCES. IN RECOMMENDING THAT YOUR PROTEST BE DENIED, THE CONTRACTING OFFICER SUMMARIZED HIS REASONS THEREFOR IN THE FOLLOWING PARAGRAPH:

"THE CONTRACTING OFFICER CONFIRMS HIS OPINION THAT THE BID OF BUS TRENCHER SALES DID NOT MEET THE REQUIREMENT OF THE IFB. THE OPINION WAS BASED ON THE INFORMATION SUBMITTED WITH THE BID WHICH DOES NOT SUPPORT THE BIDDERS CONTENTION, AFTER BID OPENING, THAT THE ITEM OFFERED DID MEET THE IFB REQUIREMENT. THE QUESTION AS TO THE WEIGHT OF THE MACHINE COULD BE QUESTIONABLE SINCE IT WAS NOT SET FORTH AS A SALIENT CHARACTERISTIC IN THE PURCHASE DESCRIPTION; HOWEVER, THERE IS NO QUESTION AS (TO) THE 5 1/2 FEET BY 12 IN. BOOM. IT IS THEREFORE RECOMMENDED THAT THE BIDDERS PROTEST BE DENIED.'

THE APPLICABLE STATUTES PROVIDE THAT PUBLIC OFFICERS MAY NOT ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS. IT IS THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. 17 COMP. GEN. 554, 557. WE FIND NO LACK OF SUCH EVIDENCE IN THIS CASE AND YOUR PROTEST MUST THEREFORE BE DENIED.

THE ENCLOSURES TO YOUR LETTER OF FEBRUARY 14, 1963, ARE RETURNED HEREWITH.