B-163241, FEB. 16, 1968

B-163241, FEB. 16, 1968

BIDS - DEVIATIONS - GUARANTEE AND WARRANTY PROVISIONS DECISIONS TO SECRETARY DEPARTMENT OF TRANSPORTATION DENYING PROTESTANT'S WALKER-NEER MFG. CO. REQUEST FOR CANCELLATION OF NEGOTIATED CONTRACT TO SECOND LOW BIDDER BY FEDERAL HIGHWAY ADMINISTRATION. ALTHOUGH INTERPRETATION BY REJECTED BIDDER THAT STANDARD WARRANTY GUARANTEE WAS IN ADDITION TO SPECIFIC GUARANTEE AND THEREFORE BID OFFERING MAXIMUM GUARANTEE OF SIX MONTHS SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE IS REASONABLE INTERPRETATION. HOWEVER, AWARD TO SECOND LOW BIDDER WAS MADE IN GOOD FAITH AND WILL NOT BE DISTURBED. DEPARTMENT IS TO CLARIFY LANGUAGE IN FUTURE TO MAKE IT CLEAR THAT STANDARD AND SPECIFIC GUARANTEES ARE MUTUALLY EXCLUSIVE.

TO MR. SECRETARY:

WE REFER TO THE PROTEST OF WALKER-NEER MANUFACTURING COMPANY, INCORPORATED, AGAINST THE AWARD MADE UNDER FEDERAL HIGHWAY ADMINISTRATION (FHA) SOLICITATION NO. 68-12. THE MATTER WAS THE SUBJECT OF A REPORT TO US DATED JANUARY 23, 1968 (REFERENCE 54-80).

THE INVITATION IN QUESTION WAS ISSUED ON OCTOBER 9, 1967, FOR THE PURCHASE OF FIVE WELL DRILLS. PAGE 4 OF THE INVITATION STATED: "GUARANTEE: EQUIPMENT AWARDED AS A RESULT OF THIS SOLICITATION SHALL BE GUARANTEED IN ACCORDANCE WITH PARAGRAPH 5A OF THE FHWA ADDITIONAL BIDDING TERMS AND CONDITIONS. "ALL SPARE PARTS SHALL BE GUARANTEED IN ACCORDANCE WITH PARAGRAPH 5C OF THE FHWA ADDITIONAL BIDDING TERMS AND CONDITIONS.' PARAGRAPH 5 ON PAGE 3 OF THE FHWA ADDITIONAL BIDDING TERMS AND CONDITIONS OF THE INVITATION PROVIDED IN PERTINENT PART AS FOLLOWS:

"GUARANTEE PROVISIONS:

SPECIFIC GUARANTEES:

A. CONSTRUCTION EQUIPMENT AND HEAVY TRUCKS:

(12) TWELVE MONTHS OR 12,000 MILES, WHICHEVER OCCURS FIRST.

B. AUTOMOTIVE VEHICLES:

(24) TWENTY-FOUR MONTHS OR 24,000 MILES, WHICHEVER OCCURS FIRST.

C. SPARE PARTS:

(90) DAYS FROM DATE OF FIRST USE BUT NO LATER THAN (1) YEAR AFTER DELIVERY TO DESTINATION.

D. MANUFACTURER'S STANDARD GUARANTEE, COPY TO BE FURNISHED.'

BIDS WERE OPENED ON NOVEMBER 3, 1967. OF THE 3 BIDS RECEIVED, THE LOWEST AS TO PRICE WAS FROM WALKER-NEER MANUFACTURING COMPANY. INCLUDED WITH THAT BID WAS A COPY OF A WALKER-NEER "WARRANTY AND GUARANTEE" FORM, EFFECTIVE DATE DECEMBER 1, 1959, SETTING FORTH A WARRANTY PERIOD ON ITS EQUIPMENT OF "SIX (6) MONTHS FROM DATE OF SHIPMENT, BUT NOT TO EXCEED NINETY (90) DAYS AFTER PLACED IN SERVICE.' THE BID AND THE COVER LETTER DATED OCTOBER 23, 1967, INCLUDED CERTAIN INFORMATION RELATING TO THE PRICING AND CERTAIN DESCRIPTIVE INFORMATION PERTAINING TO THE BIDDER'S EQUIPMENT, BUT NO STATEMENT OR REFERENCE WAS MADE TO THE TERMS OF GUARANTEE OR TO THE ENCLOSED ,WARRANTY AND GUARANTEE" FORM.

THE CONTRACTING OFFICER CONCLUDED THAT THE WALKER-NEER BID WAS NONRESPONSIVE IN THAT IT OFFERED A MAXIMUM OF A SIX-MONTHS' GUARANTEE WHEREAS THE SOLICITATION CALLED FOR A 12-MONTHS' GUARANTEE. ACCORDINGLY, ON DECEMBER 15, 1967, AWARD WAS MADE TO THE NEXT LOW BIDDER, KOEHRING COMPANY.

WE ARE FORCED TO AGREE WITH THE CONTENTION MADE BY WALKER-NEER THAT THE SOLICITATION PROVISIONS QUOTED ABOVE MAY BE INTERPRETED AS CALLING FOR THE FURNISHING OF THE MANUFACTURER'S STANDARD GUARANTEE IN ADDITION TO AGREEING TO THE SPECIFIC GUARANTEES UNDER SECTIONS A AND C OF PARAGRAPH 5. WE DO NOT AGREE THAT THIS IS THE MOST REASONABLE INTERPRETATION OF THE PROVISION, PARTICULARLY SINCE NO APPARENT PURPOSE IS SERVED BY REQUIRING A STANDARD GUARANTEE IN ADDITION TO THE SPECIFIC GUARANTEES. WE UNDERSTAND THE LANGUAGE USED WILL BE CLARIFIED IN FUTURE SOLICITATIONS TO MAKE IT CLEAR THAT THE STANDARD AND SPECIFIC GUARANTEES ARE MUTUALLY EXCLUSIVE.

REGARDLESS OF THIS POINT, FOR THE REASONS STATED IN OUR DECISION TO WALKER-NEER, COPY ENCLOSED, WE FIND NO BASIS FOR DISTURBING THE AWARD MADE.