B-182141, DEC 26, 1974

B-182141, DEC 26, 1974

ADMINISTRATIVE INTERPRETATION OF SPECIFICATION REQUIREMENT FOR "GEAR DRIVE TRAIN" AS PERMITTING USE OF "TIMING BELT DRIVE" AFTER SECURING OUTSIDE TECHNICAL ADVICE WAS NOT UNREASONABLE EVEN THOUGH "ALL GEAR" INTERPRETATION MAY BE EQUALLY VALID.

PAUL H. WERRES COMPANY, INC.:

E.C. CAMPBELL, INC. WAS AWARDED A CONTRACT FOR 14 ELECTRIC (BATTERY) STAND-UP INDUSTRIAL, LOW-LIFT PALLET TRUCKS, AS LOW BIDDER UNDER INVITATION NO. 13129 AND 15488, ISSUED BY THE GOVERNMENT PRINTING OFFICE. PAUL H. WERRES COMPANY, INC., THE ONLY OTHER BIDDER, PROTESTED THE AWARD ON THE BASIS THAT THE SCHRECK TRUCKS OFFERED BY CAMPBELL DO NOT COMPLY WITH THE ADVERTISED SPECIFICATION WHICH PROVIDES FOR "REAR WHEEL GEAR DRIVE TRIAN." WERRES POINTS OUT THAT SCHRECK EQUIPMENT INCLUDES A "TIMING BELT DRIVE" AS PART OF THE GEAR DRIVE TRAIN, AND THAT THE SPECIFICATION CONTEMPLATES AN ALL GEAR DRIVE TRAIN. ON THE OTHER HAND, CAMPBELL ADVISES THAT THE SCHRECK EQUIPMENT CONTAINS A "STEEL CABLED GEAR WHICH HAS COGS AND CONTAINS STRANDS OF WIRE AND IS CONNECTED TO GEAR PULLEYS" AND THAT SUCH EQUIPMENT COMPLIES WITH THE SPECIFICATION.

THE INVITATION CONTAINS NO REQUIREMENT FOR DESCRIPTIVE LITERATURE; ONLY A UNIT PRICE WAS REQUESTED FOR EQUIPMENT MEETING THE SPECIFICATIONS. APPARENTLY, DURING A PREAWARD SURVEY OF CAMPBELL, THE CONTRACTING OFFICER BECAME AWARE OF THE TIMING BELT DRIVE IN THE SCHRECK EQUIPMENT BUT CONCLUDED THAT THE BID WAS RESPONSIVE AND THE BIDDER RESPONSIBLE. GPO STATES:

"*** IT IS THE OPINION OF THE CONTRACTING OFFICER THAT SCHRECK TRANSMISSION DESCRIBED BY THE PROTESTANT FULLY MEETS THE REQUIREMENTS OF THE SPECIFICATION FOR A 'REAR WHEEL GEAR DRIVE TRAIN.'

"THE SPECIFICATION DOES NOT REQUIRE 'REAR WHEEL GEAR TRAIN,' A 'REAR WHEEL ALL GEAR DRIVE TRAIN,' OR A 'REAR WHEEL GEAR TRAIN-DRIVE TRAIN' OR THE LIKE, ALTHOUGH THAT MAY HAVE BEEN WHAT THE SPECIFICATION DRAFTER INTENDED. IT SHOULD BE NOTED THAT THE MOTOR DRIVE SHAFT TERMINATES IN A COGGED PULLEY, AND THAT EXCEPT FOR THE TRANSMISSION OF POWER FROM THE DRIVE SHAFT PULLEY TO THE BALANCE OF THE DRIVE TRAIN BY A COGGED BELT, THE DRIVE TRAIN CONSISTS OF GEARS, INCLUDING WORM GEARS. AFTER HAVING CONFERRED WITH VARIOUS ENGINEERS, INCLUDING THE SOCIETY OF AUTOMOTIVE ENGINEERS (SAE) THE CONTRACTING OFFICER CONCLUDED THAT WAS NO STANDARD, GENERALLY UNDERSTOOD INDUSTRY DEFINITION OF A 'GEAR DRIVE TRAIN.' HOWEVER, THE POTENTIAL AMBIGUITY OF THE TECHNICAL SPECIFICATION WAS NOT RAISED PRIOR TO BID OPENING, WHICH WOULD HAVE BEEN THE PROPER TIME TO MAKE SUCH ASSERTIONS. THE CONTRACTING OFFICER DID NOT CONSIDER THE FOREGOING A REASONABLE BASIS UPON WHICH TO CANCEL AND READVERTISE."

A BID PROTEST CONFERENCE WAS HELD ON NOVEMBER 19, 1974, TO DISCUSS THE TECHNICAL DEFINITION OF "GEAR DRIVE TRAIN." AT THIS CONFERENCE, WERRES INDICATED THAT IT COULD NOT HAVE OFFERED EQUIPMENT USING A BELT TIMING DRIVE AND GEARS BECAUSE IT WOULD NOT HAVE MET THE WEIGHT REQUIREMNTS OF THE SPECIFICATIONS. ALTHOUGH A GAO AUDITOR-ENGINEER WHO ATTENDED THE CONFERENCE CONSTRUED THE SPECIFICATION TO REQUIRE AN ALL GEAR DRIVE TRAIN, WE CONCLUDE AS A MQTTER OF LAW THAT THE QUOTED LANGUAGE IS REASONABLY SUSCEPTIBLE OF THE INTERPRETATION ALLIED BY BOTH GPO AND THE CONTRACTOR, CAMPBELL. GPO STATES, AND WE AGREE, THAT:

"*** IT IS OUR POSITION THAT THE UNQUALIFIED OFFER OF THE CONTRACTOR WHICH THE GOVERNMENT ACCEPTED, OBLIGATES HIM TO FURNISH EQUIPMENT IN ACCORDANCE WITH THE SPECIFICATIONS. THE DETERMINATION OF WHETHER OR NOT SUPPLIES DELIVERED PURSUANT TO A CONTRACT CONFORM TO THE CONTRACT SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING OFFICER."

WE MAY OBSERVE THAT HAD THE QUESTION REGARDING THE USE OF A BELT TIMING DRIVE AND GEARS UNDER THE SPECIFICATION LANGUAGE BEEN RAISED PRIOR TO BID OPENING, A CLARIFYING AMENDMENT SHOULD HAVE BEEN ISSUED. AND WHILE WE MAY BE MORE INCLINED TO THE VIEW THAT "GEAR DRIVE TRAIN" MEANS "GEARS" NOT "BELTS" IN THE SYSTEM, WE ARE NOT DISPOSED, ON THE RECORD, TO RECOMMEND CORRECTIVE ACTION AT THIS TIME. IT IS CLEAR THAT THE CONTRACTING OFFICER SOUGHT AND OBTAINED COMPETENT OUTSIDE TECHNICAL ADVICE BEFORE MAKING HIS AWARD DECISION AND THAT IN DOING SO HE EXERCISED REASONABLE JUDGMENT. A TECHNICAL AREA, SUCH AS INVOLVED HERE, COMPETENT PERSONS MAY DIFFER AND IF THAT BE THE CASE, WE DO NOT FEEL THAT A CONTRACT SHOULD BE TERMINATED WHERE A PARTICULAR POINT OF VIEW ADVERSE TO THE AWARD MAY SEEM TO BE AS EQUALLY VALID AS THE OTHER. WHILE NOT DISPOSITIVE OF THE ISSUE, WE NOTE THAT CAMPBELL HAS STATED THAT DELIVERY WILL BE MADE BY DECEMBER 31, 1974, AND THAT GPO HAS RECEIVED, OR WILL SHORTLY RECEIVE, THE NECESSARY BATTERIES FOR THE TRUCK FROM ANOTHER SUPPLIER.

WE ARE SUGGESTING TO GPO THAT THE DISPUTED LANGUAGE IN THE SPECIFICATIONS BE STUDIED WITH A VIEW TOWARD MINIMIZING FUTURE SIMILAR PROBLEMS.