B-170825(2), MAR 12, 1971

B-170825(2), MAR 12, 1971

BID PROTEST - BID RESPONSIVENESS - MATERIAL DEVIATIONS ADVISING, WITH RESPECT TO THE DECISION OF MARCH 12, 1971, SUSTAINING DECISION B-170825 OF DECEMBER 24, 1970, THAT THE "PROPOSED" CHASSIS MENTIONED IN PARAGRAPH 3(F) OF THE LETTER REQUEST FOR TECHNICAL PROPOSALS (LRFTP) WAS A STANDARD CHASSIS BECAUSE IT IS THAT TYPE OF CHASSIS WHICH PARAGRAPH 3.7.1 OF SPECIFICATION MIL-T-38245B REQUIRES TO BE FURNISHED, ALBEIT WITH MODIFICATIONS. CONSEQUENTLY, WHEN PARAGRAPH 3(F) REQUIRES DETAILED INFORMATION ON THE PROPOSED CHASSIS, IT IS SPECIFICALLY REQUIRING INFORMATION ON THE PARTICULAR STANDARD CHASSIS MODEL BEING FURNISHED. IDENTIFICATION OF THAT CHASSIS IS, THEREFORE, NECESSARY FOR EVALUATION PURPOSES. THE COMP. GEN. WILL NOT ACCEPT THE PROCURING AGENCIES INTERPRETATIONS OF SPECIFICATIONS SINCE THE DETERMINATION OF THE MEANING AND EFFECT OF SPECIFICATIONS IS A MATTER OF LAW WITHIN THE PROVINCE OF THE GAO.

TO MR. SECRETARY:

ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO MCCLURE & TROTTER, ATTORNEYS FOR THE GENERAL STEEL TANK CO. (GST), SUSTAINING DECISION B 170825 OF DECEMBER 24, 1970, 50 COMP. GEN. .

BY LETTER SPPM DATED JANUARY 22, 1971, THE DEPUTY CHIEF, CONTRACT MANAGEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, REQUESTED RECONSIDERATION OF THE PRIOR DECISION. MANY OF THE MATTERS RAISED IN THE DOCUMENTS ACCOMPANYING THE REQUEST ARE CONSIDERED IN THE ENCLOSED DECISION OR IN OUR ORIGINAL DECISION AND DO NOT REQUIRE FURTHER COMMENT. OTHER MATTERS, HOWEVER, ARE CONSIDERED BELOW.

IT IS OUR OPINION THAT THE "PROPOSED" CHASSIS MENTIONED IN PARAGRAPH 3(F) OF THE LETTER REQUEST FOR TECHNICAL PROPOSALS (LRFTP) WAS A STANDARD CHASSIS BECAUSE IT IS THAT TYPE OF CHASSIS WHICH PARAGRAPH 3.7.1 OF SPECIFICATION MIL-T-38245B REQUIRES TO BE FURNISHED, ALBEIT WITH MODIFICATIONS. CONSEQUENTLY, WHEN PARAGRAPH 3(F) REQUIRES DETAILED INFORMATION ON THE PROPOSED CHASSIS, IT IS SPECIFICALLY REQUIRING INFORMATION ON THE PARTICULAR STANDARD CHASSIS MODEL BEING FURNISHED. IDENTIFICATION OF THAT CHASSIS IS, THEREFORE, NECESSARY FOR EVALUATION PURPOSES.

PARAGRAPH 3(F)4 OF THE LRFTP REQUIRED THE SUBMISSION OF THE CHASSIS MANUFACTURER'S CATALOG SHEETS ON THE STANDARD ("PROPOSED") CHASSIS BEING OFFERED. THESE SHEETS SERVED THE PURPOSE, AMONG OTHERS PERHAPS, OF IDENTIFYING THE MANUFACTURER'S COMMERCIALLY AVAILABLE STANDARD CHASSIS MODEL WHICH, AS MODIFIED, WOULD BE FURNISHED BY THE SUCCESSFUL BIDDER. FURTHER, THESE CATALOG SHEETS ARE THE TYPE OF TECHNICAL DATA DEFINED IN PARAGRAPH 3.1 OF MIL-T-45341J SINCE THEY ARE THE TYPE OF DOCUMENT WHICH IS SUPPLIED TO COMPANY REPRESENTATIVES AND FROM WHICH THE BUYING PUBLIC CAN SELECT VEHICLE MODELS AND COMPONENTS. IN SHORT, THE CATALOG SHEETS ARE ADVERTISED DATA OF THE CHASSIS MANUFACTURER. AS SUCH, THEIR SUBMISSION NOT ONLY IDENTIFIES THE STANDARD CHASSIS BEING OFFERED BUT PROVIDES THE BASIS FOR DETERMINING WHETHER THE ENGINE BEING FURNISHED IS AT LEAST THE CHASSIS MANUFACTURER'S ADVERTISED STANDARD FOR THE CHASSIS WHICH THE CATALOG SHEET DESCRIBES, AS REQUIRED BY PARAGRAPH 3.7.1.1 OF MIL-T- 38245B. RELIANCE ON DATA, SUCH AS THE SICARD LETTER OF SEPTEMBER 15, 1969, WHICH DOES NOT FALL WITHIN THE PARAGRAPH 3.1 (MIL-T-45341J) DEFINITION OF TECHNICAL DATA, FOR SUCH A DETERMINATION IS, THEREFORE, UNWARRANTED.

THE CONTENTION IS MADE THAT OUR OFFICE SHOULD ACCEPT THE INTERPRETATIONS AND TECHNICAL CONCLUSIONS OF THE EVALUATING AGENCY IN THE INSTANT PROCUREMENT. WE DO NOT AGREE. IN THE FIRST PLACE, WE DO NOT FEEL CONSTRAINED TO ACCEPT THE PROCURING OR EVALUATING ACTIVITY'S INTERPRETATIONS OF SPECIFICATIONS SINCE THE DETERMINATION OF THE MEANING AND EFFECT OF SPECIFICATIONS IS A MATTER OF LAW WITHIN THE PROVINCE OF OUR OFFICE TO DECIDE. SECONDLY, UPON FURTHER REVIEW, WE BELIEVE THOSE INTERPRETATIONS TO BE IMPROPER SINCE, IN EFFECT, THEY WAIVED MATERIAL REQUIREMENTS OF THE SPECIFICATIONS. FINALLY, OUR USUAL ACCEPTANCE OF TECHNICAL CONCLUSIONS IS PREMISED ON THE ASSUMPTION THAT THE BASIS FOR REACHING THOSE CONCLUSIONS ARE CORRECT. WHERE, AS HERE, HOWEVER, WE REACH A CONTRARY CONCLUSION, WE MAY NOT ACCEPT TECHNICAL DETERMINATIONS FOUNDED ON OBVIOUS MISINTERPRETATIONS OF WHAT THE SPECIFICATIONS REQUIRED OF RESPONDING BIDDERS.

WE HAVE BEEN REPEATEDLY URGED TO ACCEPT THE PROPOSITION THAT THE TECHNICAL DATA DEFINED IN PARAGRAPH 3.1 OF MIL-T-45341J NEED ONLY BE ON FILE IN THE ENGINEERING OFFICE OF THE PROCURING ACTIVITY PRIOR TO DELIVERY OF THE ITEM. WE NOTED, IN OUR ORIGINAL DECISION OF DECEMBER 24, 1970, THAT ALL PARTIES SEEMED TO AGREE THAT THE DETERMINATION OF WHETHER A PROPOSED CHASSIS WAS A MANUFACTURER'S STANDARD WAS TO BE BASED ON SUCH TECHNICAL DATA. CONSEQUENTLY, SINCE WE FELT THAT THE TECHNICAL EVALUATION REQUIRED CONSIDERATION OF THE CHASSIS AND ENGINE PROPOSED AND SINCE THE TECHNICAL DATA WOULD ASSURE THAT THOSE ITEMS WERE COMMERCIALLY AVAILABLE AND STANDARD, WE CONCLUDED THAT THE CHASSIS MANUFACTURER'S TECHNICAL DATA HAD TO BE TIMELY SUBMITTED FOR CONSIDERATION DURING THE EVALUATION OF FIRST-STEP TECHNICAL PROPOSALS.

WE REMAIN UNPERSUADED THAT THE CIRCUMSTANCES OF THIS TWO-STEP PROCUREMENT ALLOW A DIFFERENT CONCLUSION. NOT ONLY IS THE SUBMISSION OF THE TECHNICAL DATA REQUIRED FOR A PROPER EVALUATION OF PROPOSALS BUT CATALOG SHEETS ON THE STANDARD CHASSIS PROPOSED ARE SPECIFICALLY REQUIRED TO BE SUBMITTED BY PARAGRAPH 3(F)4 OF THE LRFTP. OTHER CIRCUMSTANCES MAY ALLOW OTHER RESULTS BUT THEY HAVE NO PERTINENCE HERE.

NOTWITHSTANDING THAT THE LRFTP STATES THAT ONE OF THE EVALUATION CRITERIA IS "COMPLIANCE WITH REQUIREMENTS," THE CONTENTION IS MADE THAT OUR INSISTENCE ON COMPLIANCE, IN THE FIRST STEP, WITH PARAGRAPHS 3.7.1 AND 3.7.1.1 OF MIL-T-38245B IS UNWARRANTED SINCE PARAGRAPH 4 OF THE LRFTP AUTHORIZED AND ENCOURAGED OFFERORS TO SUBMIT MULTIPLE TECHNICAL PROPOSALS PRESENTING DIFFERENT APPROACHES. IN THIS CONNECTION, OUR ATTENTION IS DIRECTED TO 46 COMP. GEN. 34 (1966), ALSO INVOLVING A TWO STEP PROCUREMENT. THIS DECISION HELD THAT THE ACCEPTABILITY OF PROPOSALS WHICH PRESENT NEW DESIGNS OR DIFFERENT APPROACHES WOULD BE DEPENDENT ON THE FULFILLMENT OF THE BASIC REQUIREMENTS OF THE SPECIFICATIONS RATHER THAN ON FULL COMPLIANCE WITH ALL DETAILS OF THE SPECIFICATIONS.

WHILE OUR OFFICE ON ONE HAND AND YOUR DEPARTMENT AND GST ON THE OTHER MAY HAVE HELD CONFLICTING VIEWS ON WHAT TIME WHAT DATA HAD TO BE SUBMITTED ON WHAT CHASSIS, THERE HAS NEVER BEEN A DISPUTE THAT A STANDARD CHASSIS AND COMPATIBLE STANDARD ENGINE ARE REQUIRED BY THE SPECIFICATIONS. BOTH GST AND YOUR DEPARTMENT ARGUE STRONGLY THAT THE A 6000 SERIES OF CHASSIS SHOULD BE CONSIDERED THE STANDARD CHASSIS FOR THIS PROCUREMENT, AND THE DIRECTOR, PROCUREMENT AND PRODUCTION, IN HIS LETTER OF JANUARY 12, 1971, TO AFLC/PMP STATES:

" *** THE SPECIFICATION (PARAGRAPH 3.7.1, MIL-T-38245B) REQUIRES THAT THE CHASSIS FURNISHED TO THE GOVERNMENT PURSUANT TO A DEFINITIVE CONTRACT WHICH CARRIES THIS SPECIFICATION BE THE MANUFACTURERS STANDARD CHASSIS EXCEPT AS MODIFIED TO COMPLY WITH THE APPLICATION OF THE CHASSIS AS CONTEMPLATED BY THE CONTRACT."

IN VIEW OF THIS, WE CANNOT AGREE WITH THE CONCLUSION, SUGGESTED BY THE REFERENCE TO 46 COMP. GEN., SUPRA, THAT THE REQUIREMENTS OF PARAGRAPHS 3.7.1 AND 3.7.1.1 DO NOT CONSTITUTE BASIC REQUIREMENTS OF THE PROCUREMENT. QUITE THE CONTRARY APPEARS TO BE TRUE AND TECHNICAL PROPOSALS, AS EVALUATED, MUST EVIDENCE COMPLIANCE WITH THOSE MATERIAL SPECIFICATION REQUIREMENTS.