B-145230, FEB. 1, 1962

B-145230, FEB. 1, 1962

TO ACME INDUSTRIES, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE AWARD MADE TO THE TRANE COMPANY UNDER INVITATION FOR BIDS NO. ENG-04-548-61-5, ISSUED BY THE U.S. ARMY CORPS OF ENGINEERS, FORT WORTH, TEXAS.

THE INVITATION REQUESTED BIDS FOR FURNISHING A NUMBER OF WATER CHILLERS. PARAGRAPH 1-07A OF THE SPECIFICATION, COMPRESSOR UNIT, PROVIDED AS FOLLOWS:

"A. GENERAL. THE COMPRESSOR UNITS SHALL BE OF THE OPEN OR HERMETIC (BOLTED-TYPE) RECIPROCATING TYPE, DESIGNED SPECIFICALLY FOR THE REFRIGERANT USED. EACH COMPRESSOR UNIT SHALL CONSIST OF A COMPRESSOR, MOTOR, DRIVE, MOTOR STARTER, SCALE TRAP, SUCTION STRAINER, SUCTION AND DISCHARGE VALVES, SAFETY GUARDS, AND OTHER STANDARD EQUIPMENT AND ACCESSORIES AS SPECIFIED HEREIN. THE CONTRACTOR SHALL FURNISH IN ACCORDANCE WITH SC-4, TABLE A WRITTEN CERTIFICATION THAT COMPRESSOR UNITS OF THE SAME TYPE AND DESIGN AS PROPOSED HAVE SATISFACTORY SERVICE RECORDS IN COMMERCIAL INSTALLATIONS FOR AT LEAST TWO YEARS OF SUCCESSFUL AND CONTINUOUS DUTY AT THE SPEED INDICATED.'

PARAGRAPH 4 OF THE SPECIFICATION CONDITIONS (SC-4), TABLE A, ITEM 22, PROVIDES THAT THE CERTIFICATE OF SATISFACTORY SERVICE RECORD AS REQUIRED BY PARAGRAPH 1-07A SHALL BE SUBMITTED WITHIN 10 DAYS AFTER CONTRACT AWARD DATE.

PARAGRAPH 19, PAGE 6 OF THE CONTINUATION SHEETS, AS MODIFIED BY ADDENDUM NO. 1, ADDITIONAL DATA TO BE SUBMITTED, PROVIDED THAT TO ASSIST IN PERFORMING THE PREAWARD SURVEY EACH BIDDER SHALL BE PREPARED TO SUBMIT AT BID OPENING CERTAIN DATA INCLUDING QUALIFICATION DATA IN ACCORDANCE WITH PARAGRAPH 18 AND COMPLETE ENGINEERING DATA FOR THE EQUIPMENT OFFERED TO DEMONSTRATE ITS COMPLIANCE WITH THE PERFORMANCE, CAPACITY AND QUALIFICATION REQUIREMENTS OF THE SPECIFICATIONS.

ELEVEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE LOWEST APPARENT ACCEPTABLE BID WAS SUBMITTED BY THE TRANE COMPANY. IN A LETTER ACCOMPANYING THE TRANE COMPANY'S BID IT WAS STATED WITH RESPECT TO THE COMPRESSOR AS FOLLOWS:

"THE COMPRESSOR IS A TRANE COMPANY MODEL 3F5A57 DESIGNED FOR CONTINUOUS OPERATION ON R-22 AT 135F CONDENSING. THE COMPRESSOR MOTOR IS DESIGNED FOR PART WINDING STARTING. THE MAXIMUM INRUSH, WITH A PART WINDING STARTER, WILL BE 116 AMPS AT 440 VOLTS. THE RATED FULL LOAD CURRENT OF THIS MOTOR IS 40 AMPS. THIS TYPE OF COMPRESSOR HAS BEEN MANUFACTURED BY THE TRANE COMPANY SINCE 1950 AND COMPRESSORS OF THIS PARTICULAR BORE AND STROKE HAVE BEEN MANUFACTURED BY THE TRANE COMPANY SINCE 1958.

"THE COMPRESSORS WILL BE FABRICATED FROM TRANE COMPANY STOCK PARTS.

"THE COMPRESSOR MOTOR WILL BE GENERAL ELECTRIC, SCHENECTADY, NEW YORK.'

YOU PROTEST THE ACCEPTANCE OF THE TRANE COMPANY'S BID ON THE BASIS THAT THE TYPE AND DESIGN OF THE COMPRESSOR THAT IT PROPOSED TO FURNISH DOES NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS IN THAT SUCH UNITS DO NOT HAVE A SATISFACTORY SERVICE RECORD IN COMMERCIAL INSTALLATIONS FOR AT LEAST TWO YEARS OF SUCCESSFUL AND CONTINUOUS DUTY AT THE SPEED INDICATED.

THERE IS NO REQUIREMENT IN THE INVITATION THAT THE SATISFACTORY SERVICE DATA BE SUBMITTED WITH THE BID. RATHER, TABLE A, REFERRED TO ABOVE, SPECIFICALLY PROVIDED THAT THE CERTIFICATION OF SATISFACTORY SERVICE RECORD AS REQUIRED BY PARAGRAPH 1-07A SHALL BE SUBMITTED WITHIN 10 DAYS AFTER CONTRACT AWARD DATE. ALSO, THE DATE SPECIFIED IN PARAGRAPH 19 WAS NOT REQUIRED TO BE SUBMITTED WITH THE BID. SUCH DATE WAS FOR THE PURPOSE OF ASSISTING IN PERFORMING THE PREAWARD SURVEY AND IT WAS PROVIDED ONLY THAT THE BIDDER BE PREPARED TO SUBMIT SUCH DATA AT THE BID OPENING. THEREFORE, THE FACT THAT THE TRANE COMPANY MAY NOT HAVE STATED SPECIFICALLY IN THE DATE SUBMITTED WITH ITS BID WHERE OR WHEN THE COMPRESSOR HAD BEEN INSTALLED WOULD NOT RENDER ITS BID UNRESPONSIVE TO THE INVITATION.

THE CONTRACTING OFFICER DETERMINED THAT THE TRANE COMPANY'S MODEL F COMPRESSOR UNIT WITH HERMETIC MOTOR REPRESENTS PROGRESSIVE MODEL IMPROVEMENTS WHICH DO NOT REFLECT CHANGES IN BASIC DESIGN OF ITS STANDARD MODEL B COMPRESSOR UNIT WHICH HAS BEEN IN CONTINUOUS OPERATION FOR TWO YEARS. IT WAS ALSO DETERMINED THAT ALTHOUGH NOT YET IN CONTINUOUS COMMERCIAL OPERATION FOR TWO YEARS, THE MODEL F UNIT WITH HERMETIC MOTOR HAS BEEN IN USE IN RAILROAD CARS BY THE PACIFIC FRUIT EXPRESS SINCE AUGUST 1960 AND THAT THROUGH JANUARY 1961 THESE UNITS HAD A TOTAL OPERATION RECORD OF 897,000 HOURS WITH ONLY FIVE FAILURES, OR A MEANTIME BETWEEN FAILURES OF 180,000 HOURS. THE MODEL F COMPRESSOR WITH HERMETIC MOTOR ALSO HAS BEEN IN USE BY THE PACIFIC FINANCE CORPORATION, LOS ANGELES, SINCE OCTOBER 1959 AND HAS A SATISFACTORY SERVICE RECORD SINCE THAT DATE.

THE QUESTION WHETHER A LATER MODEL REPRESENTS MERELY PROGRESSIVE MODEL IMPROVEMENTS WHICH DO NOT REFLECT CHANGES IN BASIC DESIGN OF PRIOR MODELS SO AS TO MEET THE LENGTH OF SERVICE REQUIREMENTS IS A QUESTION OF FACT FOR DETERMINATION BY THE CONTRACTING OFFICER. SEE 17 COMP. GEN. 554,557. THE INSTANT CASE THE CONTRACTING OFFICER HAS DETERMINED THAT THE TRANE COMPANY HAS ESTABLISHED THAT ITS MODEL F COMPRESSOR UNIT WITH HERMETIC MOTOR HAS A SATISFACTORY SERVICE RECORD AND OTHERWISE COMPLIES WITH THE REQUIREMENTS OF THE SPECIFICATIONS. WE FIND NO LEGAL BASIS TO QUESTION SUCH DETERMINATION AND, THEREFORE,YOUR PROTEST MUST BE DENIED.