B-164444, SEPT. 18, 1968

B-164444, SEPT. 18, 1968

TO CUMMINS DIESEL OF WISCONSIN, INCORPORATED:

WE REFER TO YOUR TELEGRAM DATED MAY 27, 1968, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE REJECTION OF YOUR FIRM'S BID AS NONRESPONSIVE TO THE SPECIFICATION REQUIREMENTS LIMITING THE BRAKE MEAN EFFECTIVE PRESSURE OF THE DIESEL ENGINES USED IN THE FIVE 300 KW ELECTRICAL GENERATING SETS BEING PROCURED BY THE JOHN F. KENNEDY SPACE CENTER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, PROCUREMENT DIVISION, KENNEDY SPACE CENTER, FLORIDA, UNDER ADVERTISED SOLICITATION NO. CC-304-8 ISSUED MARCH 18, 1968. IN ADDITION, YOU CONTEND THAT SINCE THE GENERATOR PROPOSED BY THE SUCCESSFUL BIDDER IN THIS PROCUREMENT, MELLEY MOTOR SUPPLY, INCORPORATED, DOES NOT MEET THE VOLTAGE DIP AND CERTAIN OTHER TECHNICAL REQUIREMENTS OF THE SPECIFICATION, AWARD TO THAT FIRM WAS IMPROPER.

AMENDMENT NO. 1 TO THE SOLICITATION, ISSUED APRIL 11, 1968, IN AN APPARENT RESPONSE TO AN ALLEGATION OF YOUR FIRM THAT THE SPECIFICATIONS WERE RESTRICTIVE, RELAXED THE SPECIFICATIONS TO PERMIT THE ACCEPTANCE OF BOTH TWO AND FOUR CYCLE DIESEL ENGINES, BUT IT ALSO ESTABLISHED A BRAKE MEAN EFFECTIVE PRESSURE LIMIT OF 90 POUNDS PER SQUARE INCH FOR TWO CYCLE ENGINES AND 110 POUNDS PER SQUARE INCH FOR FOUR CYCLE ENGINES.

BIDS WERE OPENED, IN ACCORDANCE WITH THE SCHEDULE AS AMENDED, ON MAY 3, 1968. CUMMINS DIESEL'S FIRST ALTERNATE BID OF $169,490 F.O.B. DESTINATION WAS LOW, WHILE THE BID OF MELLEY MOTOR SUPPLY, AT $174,915 F.O.B. DESTINATION, WAS SECOND LOW.

THE CONTRACTING OFFICER DETERMINED THAT CUMMINS DIESEL'S LOW ALTERNATE BID WHICH PROPOSED A FOUR CYCLE DIESEL ENGINE WITH A BRAKE MEAN EFFECTIVE PRESSURE OF 114.6 POUNDS PER SQUARE INCH, WAS NONRESPONSIVE TO THE TERMS OF THE SOLICITATION, AND THE BID WAS REJECTED ACCORDINGLY.

THE NEXT LOW BID, THAT OF MELLEY MOTOR SUPPLY, WAS FOUND TO BE FULLY RESPONSIVE AND, ON MAY 27, 1968, CONTRACT NO. NAS10-5093, TO PRODUCE THE FIVE DESIRED GENERATOR SETS, WAS AWARDED TO THAT FIRM. THE CONTRACTING OFFICER BY HIS LETTER OF MAY 27, 1968, ADVISED YOU OF THIS AWARD ACTION.

YOU CONTEND THAT THE SPECIFICATION LIMITATION UPON BRAKE MEAN EFFECTIVE PRESSURE ARBITRARILY RESTRICTS COMPETITION BECAUSE IT BARS CONSIDERATION OF SUCH ENGINES AS THE CUMMINS MODEL VT-1710, WHICH YOU MAINTAIN IS COMPARABLE IN ALL IMPORTANT PERFORMANCE CHARACTERISTICS TO THE ACCEPTABLE GMC MODEL 16V71 DIESEL ENGINE. IN SUPPORT OF THIS CONTENTION, YOU SUBMIT EXCERPTS FROM A NUMBER OF TECHNICAL REPORTS WHICH APPROVE OF THE USE OF BRAKE MEAN EFFECTIVE PRESURES IN EXCESS OF THAT PROPOSED IN YOUR BID FOR CERTAIN ELECTRIC POWER APPLICATIONS. IN ADDITION, YOU ALLEGE THAT THE SPECIFICATION LIMITATION UPON BRAKE MEAN EFFECTIVE PRESSURE MAKES THIS PROCUREMENT A SOLE SOURCE PURCHASE IN EFFECT, BECAUSE ONLY THE GMC MODEL 16V71 AMONG ALL THE DIESEL ENGINES REGULARLY PRODUCED IN THIS COUNTRY SATISFIES THIS REQUIREMENT.

AS TO THIS LAST CONTENTION, THE CONTRACTING OFFICER ADVISES THAT WAUKESHA MODEL F2894DSU AND CATERPILLAR MODEL D-398, BOTH REGULARLY PRODUCED DIESEL ENGINES, SATISFY THE SPECIFIED BRAKE MEAN EFFECTIVE PRESSURE LIMITATIONS.

THE TECHNICAL LITERATURE YOU HAVE FURNISHED SEEMS TO PERMIT THE USE OF DIESEL ENGINES WITH GREATER BRAKE MEAN EFFECTIVE PRESSURES THAN THOSE CONTAINED IN THE SPECIFICATIONS. HOWEVER, THE CONTRACTING OFFICER POINTS OUT THAT THE GENERATOR SETS DESCRIBED IN YOUR SUBMISSION ARE INTENDED FOR DIFFERENT, LESS DEMANDING, APPLICATIONS THAN PROPOSED FOR THE SETS BEING PURCHASED FOR USE AT KENNEDY SPACE CENTER. THE LATTER WILL BE USED TO SUPPLY ELECTRICITY TO THE VARIOUS HIGHLY COMPLEX AND DELICATE ELECTRONIC COMPUTERS AND OTHER INSTRUMENTATION USED IN SUPPORT OF MANNED VEHICLE LAUNCH ACTIVITIES. THIS REQUIRES VERY RELIABLE GENERATOR SETS CAPABLE OF PRODUCING A STEADY CURRENT SUPPLY DESPITE FLUCTUATIONS IN THE ELECTRIC LOAD. IN ADDITION, THESE GENERATOR SETS MUST BE LIGHT ENOUGH TO BE EASILY TRANSPORTED TO THE LAUNCH SITE IN USE.

THIS OFFICE DOES NOT HAVE AN ENGINEERING STAFF TO ASSESS THE RELATIVE MERITS OF ELECTRIC GENERATOR SETS OR THEIR COMPONENT PARTS. WE THEREFORE MUST RELY ON THE CONSIDERED OPINION OF THE PURCHASING ACTIVITY, WHICH EMPLOYS TECHNICAL AND ENGINEERING PERSONNEL COMPETENT TO DETERMINE THE AGENCY'S NEEDS. FOR THIS REASON, IT HAS LONG BEEN THE POLICY OF OUR OFFICE TO ACCEPT AN AGENCY'S DETERMINATION OF ITS PROCUREMENT NEEDS, IN THE ABSENCE OF DEMONSTRATED FRAUD OR CLEARLY CAPRICIOUS ACTION. 17 COMP. GEN. 554. IN THIS CASE WE FIND NO BASIS TO HOLD THE AGENCY'S DETERMINATION INVALID.

REGARDING THE ACCEPTABILITY OF THE BID OF THE SUCCESSFUL OFFEROR, MELLEY MOTOR SUPPLY, THE CONTRACTING OFFICER REPORTS THAT DELCO GENERATOR MODEL NO. E-5284RB PROPOSED BY THAT FIRM WILL MEET THE VOLTAGE DIP AND HARMONIC DISTORTION LIMITATIONS SET OUT IN THE SPECIFICATIONS IF IT IS OPERATED IN CONJUNCTION WITH THE SPECIFIED AUXILIARY EQUIPMENT IN THE MANNER REQUIRED. THE APPARENT INCONSISTENCY BETWEEN THIS CONCLUSION AND THE DELCO FURNISHED INFORMATION ON THE SAME MODEL GENERATOR WHICH INDICATED THAT IT WOULD NOT MEET THE PERFORMANCE REQUIREMENTS OF THE SPECIFICATIONS IS EXPLAINED BY DELCO'S POLICY OF ALLOWING ITSELF A LARGE SAFETY MARGIN WHEN QUOTING THE CHARACTERISTICS OF ITS PRODUCTS UNDER CIRCUMSTANCES WHERE THE ULTIMATE END USE AND AUXILIARY EQUIPMENT ARE NOT FULLY IDENTIFIED. WHILE IT WOULD NOT SEEM INAPPROPRIATE TO RETAIN A LARGE MARGIN FOR SAFETY IN THE SITUATION PRESENTED HERE WHERE GREAT STRESS IS PLACED UPON OBTAINING MAXIMUM RELIABILITY, THE MATTER IS WITHIN THE CONTRACTING OFFICER'S DISCRETION SO LONG AS IT CAN BE SHOWN THAT THE EQUIPMENT DOES IN FACT MEET THE SPECIFICATION MINIMUMS. IN THIS REGARD, WE HAVE BEEN INFORMED THAT GENERATOR SETS ASSEMBLED AS PROPOSED BY MELLEY MOTOR SUPPLY FULLY SATISFY THE PERFORMANCE REQUIREMENTS OF THE SOLICITATION. PARTICULAR, MELLEY MOTOR SUPPLY HAS FURNISHED THE RESULTS OF A TEST CONDUCTED BY DELCO WHICH SHOW THAT THE PROPOSED GENERATOR, MODEL E 5284RB, DOES IN FACT MEET THE VOLTAGE DIP REQUIREMENTS OF THE SPECIFICATION. ACCORDINGLY, WE SEE NO REASON TO DISAGREE WITH THE CONTRACTING OFFICER'S DETERMINATION TO PERMIT THE USE OF THE DELCO GENERATOR MODEL IN QUESTION.

IN VIEW OF THE ABOVE, WE HAVE NO LEGAL OBJECTION TO THE CONTRACT AWARDED TO MELLEY MOTOR SUPPLY. ACCORDINGLY, YOUR PROTEST IS DENIED.