B-126915, JUL. 30, 1956

B-126915, JUL. 30, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JUNE 11, 1956, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), SUBMITTED IN RESPONSE TO OFFICE LETTER OF MAY 3, 1956, TO YOU, REQUESTING A REPORT RELATIVE TO THE ADDITIONAL PROTEST MADE BY MR. THOMAS M. KNIGHT, JR., 801 AMERICAN SECURITY BUILDING, WASHINGTON 5, D.C., IN HIS LETTER OF APRIL 20, 1956, AGAINST THE ACTION OF THE CORPS OF ENGINEERS IN PERMITTING THE PRIME CONTRACTOR CONSTRUCTING THE FORT BELVOIR HOSPITAL TO FURNISH VACUUM HEATING PUMPS WHICH ALLEGEDLY DO NOT COMPLY WITH THE CONTRACT REQUIREMENTS.

THE ORIGINAL PROTEST OF MR. KNIGHT WAS CONSIDERED IN LETTER OF APRIL 13, 1956, TO HIM, A COPY OF WHICH WAS FURNISHED TO YOU BY OUR LETTER OF SAME DATE.

MR. KNIGHT'S LETTER OF APRIL 20, 1956, READS AS FOLLOWS:

"YOUR LETTER OF APRIL 13, 1956, CONCLUDES WITH THE FOLLOWING STATEMENT: "IN VIEW OF THE FACTS REPORTED BY THE DEPARTMENT OF THE ARMY ABOVE AND CONSIDERING THE LATITUDE OF DISCRETION NECESSARILY VESTED IN THOSE CHARGED WITH THE RESPONSIBILITY FOR PREPARING THE SPECIFICATIONS TO WHICH REFERENCE IS MADE BY YOU, IT IS OUR CONCLUSION THAT WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE USE OF THE SPECIFICATIONS AS AMENDED.' HOWEVER, THERE HAS NEVER BEEN ANY OBJECTION TO THE SPECIFICATIONS EITHER AS AMENDED OR PRIOR TO AMENDMENT. VACUUM PUMPS STRICTLY COMPLYING WITH THE UNAMENDED SPECIFICATIONS WERE SUPPLIED FOR THE FT. KNOX AND THE WRIGHT -PATTERSON AFB HOSPITALS. MY PROTEST WAS AND IS AGAINST THE ACTION OF THE CORPS OF ENGINEERS IN ACCEPTING FOR THE FT. BELVOIR HOSPITAL A PUMP WHICH DOES NOT COMPLY WITH THE CONTRACT REQUIREMENTS.

"GENERAL TULLEY JUSTIFIES THIS DEVIATION BY--- (A) A CONFLICT BETWEEN SPECIFICATIONS AND DRAWINGS, AND (B) A CLAUSE IN THE "SPECIAL CONDITIONS.'

"/A) THE SPECIFICATIONS PERFECTLY COMPLEMENT THE DRAWINGS. THE FIRST SENTENCE OF PARAGRAPH 49-09/A) REQUIRES: "PUMPS, MOTORS AND OTHER FUNCTIONING PARTS IN DUPLICATE.' THIS SIMPLY MEANS THAT THERE SHALL BE TWO VACUUM PUMPS, TWO VACUUM PUMP MOTORS, TWO CONDENSATE PUMPS, TWO CONDENSATE PUMP MOTORS, TWO FLOAT SWITCHES, TWO VACUUM REGULATORS, ETC.THIS IS AUGMENTED BY PARAGRAPH 49-09 (B) WHICH SPECIFICALLY STATES: "EACH PUMP SHALL BE DRIVEN BY A SLEEVE OR BALL BEARING MOTOR...' THE DRAWINGS VERY CLEARLY SHOW THE FOUR-MOTORED CONSTRUCTION IN SEVERAL PLACES. NOWHERE IN EITHER THE SPECIFICATIONS OR THE DRAWINGS IS THERE ANY MENTION OF ANY ARRANGEMENT WHEREBY ONE MOTOR WOULD DRIVE TWO PUMPS.

"JUST WHERE IS THE CONFLICT BETWEEN THE SPECIFICATIONS AND THE DRAWINGS?

"/B) THE CITED SECTION FROM THE "SPECIAL CONDITIONS" DOES NOT APPLY WITH RESPECT TO THE FT. BELVOIR HOSPITAL SITUATION. YOU WILL RECALL THAT IN MY LETTER OF FEBRUARY 6, 1956, I POINTED OUT THAT A PUMP OF THE TYPE SHOWN IN BULLETIN S-100 WAS SUPPLIED; WHEREAS, THIS SAME MANUFACTURER HAS THE SPECIFIED CONSTRUCTION, AS EVIDENCED BY THEIR BULLETIN S-300. THEREFORE THERE IS NO REASON WHY THAT MANUFACTURER WOULD BE UNDULY INCONVENIENCED BY BEING REQUIRED TO COMPLY WITH THE CONTRACT REQUIREMENTS. YOU WILL UNDOUBTEDLY BE INTERESTED IN KNOWING THAT PAGE 2 OF HIS BULLETIN S-300 GIVES SOME OF THE ADVANTAGES OF THE FOUR-MOTORED CONSTRUCTION.

"THIS DEVIATION FROM THE CONTRACT REQUIREMENTS IS NOT A "MINOR DIFFERENCE.' IF THE PUMP NOW INSTALLED IN THE FT. BELVOIR HOSPITAL IS FINALLY ACCEPTED, SUCH ACTION WOULD RESULT IN THE LOSS OF SEVERAL THOUSAND DOLLARS.

"ACCORDINGLY, THEREFORE, I REQUEST THAT PROPER STEPS BE TAKEN TO ASSURE COMPLIANCE WITH THE CONTRACT REQUIREMENTS, WITH PARTICULAR REFERENCE TO THE VACUUM HEATING PUMP FOR THE FT. BELVOIR HOSPITAL.'

THE ASSISTANT SECRETARY OF THE ARMY FORWARDED A REPORT SIGNED "FOR THE CHIEF OF ENGINEERS" BY PAUL D. TROXLER, COLONEL, CORPS OF ENGINEERS, ACTING ASSISTANT CHIEF OF ENGINEERS FOR MILITARY CONSTRUCTION, WHICH IS AS FOLLOWS:

"2. TWO POINTS OF DISCUSSION (A) AND (B) RAISED BY MR. KNIGHT IN HIS LETTER OF 20 APRIL 1956 INVOLVE VACUUM PUMPS DESCRIBED IN CONTRACT SPECIFICATIONS AND SHOWN ON CONTRACT DRAWINGS.

"UNDER POINT (A) HE INTERPRETS THE WORDING IN THE FIRST SENTENCE OF PARAGRAPH 49-09 (A): ,PUMPS, MOTORS, AND OTHER FUNCTIONING PARTS IN DUPLICATE," AS MEANING THAT THERE SHALL BE TWO VACUUM PUMPS, TWO VACUUM PUMP MOTORS, TWO CONDENSATE PUMPS, TWO CONDENSATE PUMP MOTORS, TWO FLOAT SWITCHES, TWO VACUUM REGULATORS, ETC. THE WORDING DOES NOT REQUIRE FOUR PUMPS AND FOUR MOTORS, AS HE INDICATES, BUT CAN BE INTERPRETED TO MEAN MORE THAN ONE PUMP AND MOTOR, EACH INDIVIDUALLY CAPABLE OF HANDLING THE NECESSARY CONDENSATE AND AIR CAPACITIES OF THE SYSTEM. THE CONTRACT DRAWINGS DID INDICATE FOUR PUMPS AND FOUR MOTORS WITH FOUR ELECTRICAL CIRCUITS WHICH REPRESENTED THE MAXIMUM REQUIREMENT WHEN THAT TYPE OF EQUIPMENT IS INSTALLED. THE CONFLICT BETWEEN THE ORIGINAL SPECIFICATIONS AND DRAWINGS RESULTED IN THE FACT THAT THE SPECIFICATIONS DID NOT INDICATE THE EXACT NUMBER OF PUMPS AND MOTORS.

"UNDER THE SECOND POINT (B) HE INDICATES THAT BECAUSE A MANUFACTURER CAN FURNISH EITHER TWO-MOTORED OR FOUR-MOTORED PUMPING EQUIPMENT, THE PARAGRAPH HEADED "SPECIAL CONDITIONS" WOULD NOT APPLY AND THAT A FOUR PUMP, FOUR-MOTORED UNIT MUST BE FURNISHED. THE CHIEF OF ENGINEERS CONTENDS THAT REGARDLESS OF THE TYPE OF UNITS A MANUFACTURER IS CAPABLE OF SUPPLYING, THE REFERENCE PARAGRAPH, "SPECIAL CONDITIONS," WOULD BE APPLICABLE.

"3. WITH RESPECT TO THE FINAL REMARKS OF MR. KNIGHT CONCERNING THE FORT BELVOIR HOSPITAL INSTALLATION, THE ALLEGED DEVIATION FROM THE CONTRACT REQUIREMENTS IS CONSIDERED TO BE OF "MINOR IMPORTANCE" DUE TO THE FACT THAT THE SPECIFICATIONS DID NOT REQUIRE A SPECIFIC NUMBER OF PUMPS AND MOTORS FOR THE VACUUM PUMPING UNIT. MR. KNIGHT'S INDICATION THAT THE UNIT AS PRESENTLY INSTALLED WILL RESULT IN THE LOSS OF SEVERAL THOUSAND DOLLARS, IF FINALLY ACCEPTED, CANNOT BE SUBSTANTIATED. HOWEVER, IF THE UNIT WERE TO BE REMOVED AND REPLACED BY THE TYPE HE REQUESTS, THE COST COULD WELL EXCEED THE AMOUNT STATED ABOVE.

"4. SINCE THE EQUIPMENT HAS BEEN APPROVED AND INSTALLED AS MEETING ALL REQUIREMENTS OF THE SPECIFICATIONS REGARDING ARRANGEMENT, MATERIALS, CONTROLS, AND CAPACITY, ITS REMOVAL CANNOT BE JUSTIFIED AND, IF THE EQUIPMENT COMPLIES WITH FINAL TEST PROCEDURE, IT WILL BE ACCEPTED AS INSTALLED.'

IN HIS SUPPLEMENTAL REPORT, THE CHIEF OF ENGINEERS CONTENDS THAT BECAUSE PARAGRAPH 49-09 (A) OF THE SPECIFICATIONS CAN POSSIBLY BE INTERPRETED AS CALLING FOR ONLY TWO MOTORS, THERE IS A CONFLICT WITH THE DRAWINGS WHICH ADMITTEDLY SHOW FOUR MOTORS, SAID TO REPRESENT THE "MAXIMUM REQUIREMENT.' MR. KNIGHT CONTENDS THAT NO CONFLICT EXISTS BETWEEN PARAGRAPH 49-09 AND THE DRAWINGS. CONCEDING ARGUENDO THAT ONE MIGHT CONCLUDE FROM READING SUBPARAGRAPH (A) OF PARAGRAPH 49-09 THAT IT CALLED FOR TWO MOTORS, THE FACT REMAINS THAT SUBPARAGRAPH (B) OF THAT PARAGRAPH PROVIDES THAT "EACH PUMP SHALL BE DRIVEN BY A SLEEVE OR BALL BEARING MOTOR * * *.' THIS REQUIREMENT IS IGNORED IN THE REPORT FURNISHED. THUS, WHILE THE PROVISIONS OF SUBPARAGRAPH (A) OF PARAGRAPH 49-09 OF THE SPECIFICATIONS, STANDING ALONE, MAY HAVE BEEN AMBIGUOUS, THE PROVISIONS OF SUBPARAGRAPH (B) OF THAT PARAGRAPH, IN CONJUNCTION WITH THE DRAWING, WHOLLY ELIMINATE ANY POSSIBLE AMBIGUITY. THEREFORE, WE MUST CONCLUDE THAT THE CONTRACT CALLED FOR THE FURNISHING OF FOUR MOTORS AND YOU ARE ACCORDINGLY ADVISED THAT THE CONTRACTOR SHOULD BE REQUIRED TO FURNISH THE ADDITIONAL MOTORS OR, IF THAT BE IMPRACTICABLE, ACTION SHOULD BE INITIATED TOWARDS A REDUCTION IN THE CONTRACT PRICE OF THE PROJECT TO COMPENSATE FOR THE OMITTED MOTORS. A REPORT OF THE CORRECTIVE ACTION TAKEN IS REQUESTED.