B-118150, JUNE 4, 1954, 33 COMP. GEN. 586

B-118150, JUNE 4, 1954, 33 COMP. GEN. 586

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - MINIMUM NEEDS REQUIREMENT DRAFTING OF SPECIFICATIONS FOR EQUIPMENT CONSIDERED NECESSARY TO MEET A PARTICULAR NEED OF THE GOVERNMENT IS AN ADMINISTRATIVE RESPONSIBILITY AND THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE TO MEET SPECIFICATIONS OF HIGHLY SPECIALIZED SCIENTIFIC EQUIPMENT, WHICH WERE DRAWN TO MEET THE NEEDS OF AN AGENCY, WILL NOT BE SUFFICIENT TO CONCLUDE THAT THE SPECIFICATIONS ARE RESTRICTIVE TO THE POINT OF PRECLUDING FREE AND OPEN COMPETITION.

ACTING COMPTROLLER GENERAL WEITZEL TO CONTROL CORPORATION, JUNE 4, 1954:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23, 1953, PROTESTING THE ACTION OF THE SOUTHWESTERN POWER ADMINISTRATION, DEPARTMENT OF THE INTERIOR, IN REFUSING TO MAKE AN AWARD OF A CONTRACT TO YOU PURSUANT TO INVITATION NO. SPA-188, DATED FEBRUARY 19, 1953.

BRIEFLY STATED, YOU PROTEST THAT ALTHOUGH YOU WERE THE LOW BIDDER YOU FAILED TO RECEIVE THE AWARD OF THE CONTRACT BECAUSE THE EQUIPMENT OFFERED BY YOU DID NOT COMPLY WITH CERTAIN FEATURES OF THE INVITATION'S SPECIFICATIONS, WHICH YOU CONTEND GO BEYOND THE REQUIREMENTS NECESSARY TO ACHIEVE THE END RESULT DESIRED BY THE GOVERNMENT. SPECIFICALLY, YOU CONTEND THAT THE REQUIREMENTS IN THE SPECIFICATIONS FOR INCLUSION IN THE EQUIPMENT OF FEATURES SUCH AS THE "CHECK BACK," BLINKING ALARM LIGHTS, AND OPERATION OF THE SUPERVISORY EQUIPMENT FROM A 60 CELL STATION BATTERY ARE UNREALISTIC WITH REGARD TO THE PERFORMANCE EXPECTED FROM THE EQUIPMENT TO BE PROCURED AND ARE RESTRICTIVE IN THAT THEY UNREASONABLY LIMIT THE QUALIFIED BIDDERS TO CERTAIN MANUFACTURERS OR SUPPLIERS WHOSE EQUIPMENT INCLUDES SUCH FEATURES.

THERE NOW HAS BEEN RECEIVED FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF INTERIOR A REPORT WHICH STATES IN PART AS FOLLOWS:

THERE IS ABSOLUTELY NO EVIDENCE TO SUBSTANTIATE THE CONTENTION OF CONTROL CORPORATION THAT THE SPECIFICATIONS WERE DRAWN TO RESTRICT COMPETITION. IT IS SIGNIFICANT TO NOTE THAT NONE OF THE OTHER (3) BIDDERS RAISED ANY OBJECTION TO THE SPECIFICATIONS ON THE GROUND THAT THEY WERE RESTRICTIVE OF COMPETITION. SINCE THE CONTRACTING OFFICER DETERMINED THAT THE BID OF CONTROL CORPORATION FAILED TO MEET CERTAIN MATERIAL REQUIREMENT OF THE SPECIFICATIONS, HE HAD NO ALTERNATIVE BUT TO AWARD THE CONTRACT TO THE NEXT LOWEST BIDDER, THE WESTINGHOUSE ELECTRIC CORPORATION. ANOTHER CONTENTION MADE BY CONTROL CORPORATION TO THE EFFECT THAT THE SPECIFICATIONS INCORPORATED IN THE INVITATION FOR BIDS ARE UNREALISTIC TO THE PERFORMANCE EXPECTED FROM THE EQUIPMENT TO BE PROCURED, IS CONTROVERTED BY THE EVIDENCE WHICH SHOWS THAT THE SPECIFICATIONS PREPARED BY THE SOUTHWESTERN POWER ADMINISTRATION WERE WRITTEN TO COVER THE TYPE OF EQUIPMENT WHICH IT FELT WOULD BEST SERVE ITS ACTUAL MINIMUM NEEDS.

IT CONNECTION WITH THE INCLUSION IN THE SPECIFICATIONS OF THE FEATURES AGAINST WHICH YOU PROTEST, A MEMORANDUM FROM THE ADMINISTRATOR, SOUTHWESTERN POWER ADMINISTRATION, REPORTED AS FOLLOWS:

THE SUPERVISORY CONTROL UTILIZED IN POWER SYSTEM OPERATION IS A HIGHLY SPECIALIZED ITEM OF ELECTRICAL EQUIPMENT WHICH FOR THE MOST PART IS CUSTOM DESIGNED AND BUILT TO FIT THE PARTICULAR NEEDS AND REQUIREMENTS OF THE USER. IT IS SIGNIFICANT TO NOTE THAT THIS EQUIPMENT MECHANICALLY PERFORMS THE FUNCTIONS OF SUBSTATION OPERATORS OR LABORERS, AND THE IMPORTANCE OF ITS FUNCTIONS CANNOT BE MEASURED BY ITS MONETARY VALUE, WHICH REPRESENTS APPROXIMATELY ONE PERCENT OF THE INVESTED COST OF THE FACILITIES WHICH IT PROTECTS, SUPERVISES AND OPERATES. AMONG THE FOUR MAJOR SUPPLIERS OF SUPERVISORY CONTROL EQUIPMENT, THERE IS NO STANDARDIZATION OF EQUIPMENT AND NO UNIFORMITY IN FUNCTIONS AND MANNER OF PERFORMANCE. EACH SUPPLIER, THEREFORE, SHOULD BE ABLE TO SUPPLY WITH HIS EQUIPMENT ANY FUNCTION REQUIRED OR SPECIFIED BY THE USER. BECAUSE OF THE FOREGOING FACTS, IT WAS NECESSARY TO MAKE AN INTENSIVE ENGINEERING STUDY TO DETERMINE THE PARTICULAR NEEDS OF THE SOUTHWESTERN POWER ADMINISTRATION IN CONNECTION WITH THE PREPARATION OF THE SPECIFICATIONS APPLICABLE TO INVITATION FOR BIDS NO. SPA-188. * * * THE ENGINEERING STUDY REVEALED IN MANY CASES THAT THE EQUIPMENT TO BE INCLUDED IN THE INVITATION FOR BIDS WOULD BE OPERATED ADJACENT TO EXISTING SUPERVISORY EQUIPMENT. IT WAS CONSIDERED ESSENTIAL TO OBTAIN OPERATING FEATURES SIMILAR TO THOSE INCORPORATED IN EXISTING INSTALLED EQUIPMENT, IN ORDER TO INSURE THE SATISFACTORY OPERATION OF SAID EQUIPMENT BY SUBSTATION OPERATORS AND TO PREVENT SERIOUS DAMAGE TO GOVERNMENT FACILITIES WHICH WOULD PROBABLY OCCUR IN THE EVENT SAID OPERATORS WERE REQUIRED TO OPERATE AND MAINTAIN AT THE SAME SUBSTATION SEVERAL TYPES OF SUPERVISORY CONTROL EQUIPMENT HAVING DISSIMILAR OPERATING FEATURES. MOREOVER, THESE STUDIES REVEALED THAT THE SAME OPERATING FEATURES WERE ESSENTIAL FOR THE OTHER EQUIPMENT WHICH WAS NOT TO BE OPERATED ADJACENT TO EXISTING SUPERVISORY EQUIPMENT. IT IS FREQUENTLY NECESSARY TO TRANSFER SUBSTATION OPERATORS FROM ONE SUBSTATION TO ANOTHER. ONCE AN OPERATOR HAS BECOME FAMILIAR WITH AND ACCUSTOMED TO THE OPERATION OF SUPERVISORY CONTROL EQUIPMENT HAVING SPECIFIC OPERATING FEATURES, IT IS EXCEEDINGLY DIFFICULT FOR HIM TO MAKE THE NECESSARY ADJUSTMENT REQUIRED FOR THE USE OF EQUIPMENT HAVING DIFFERENT OPERATING FEATURES, AND AS SAID HERETOFORE THERE IS A DISTINCT POSSIBILITY THAT THE INCORRECT USE OF SUCH EQUIPMENT MAY RESULT IN SERIOUS DAMAGE TO GOVERNMENT FACILITIES. THESE ENGINEERING STUDIES RESULTED IN THE ESTABLISHMENT OF THE ESSENTIAL FUNCTIONAL FEATURES WHICH WERE SUBSEQUENTLY INCORPORATED INTO THE INVITATION SPECIFICATIONS.

* * * IT IS SIGNIFICANT THAT EACH OF THE OTHER THREE BIDDERS PROPOSED TO SUPPLY EQUIPMENT WITH A CHECK-BACK FEATURE, AS WELL AS THE FEATURE OF SELECTION BEFORE OPERATION AS SPECIFIED BY THE GOVERNMENT, AND NO OBJECTIONS WERE RAISED BY THESE BIDDERS ON THE GROUND THAT THE SPECIFICATIONS WERE RESTRICTIVE OF COMPETITION.

THE ADMINISTRATOR FURTHER REPORTED THAT BEFORE AN AWARD WAS MADE THE FOUR BIDS RECEIVED WERE REFERRED TO THE APPROPRIATE TECHNICAL DIVISION FOR REVIEW AS TO WHETHER THEY ADHERED TO THE SPECIFICATIONS AND, AFTER CAREFUL CONSIDERATION OF THE RECOMMENDATIONS OF THE CHIEF, BUREAU OF ENGINEERING AND THE BOARD OF AWARDS, THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NOT RESPONSIVE WITH RESPECT TO A NUMBER OF MATERIAL TERMS AND CONDITIONS.

IT IS, OF COURSE, NOT WITHIN THE PROVINCE OF THIS OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 17 COMP. GEN. 554. MOREOVER, THE EQUIPMENT REQUIRED BY THE GOVERNMENT IN THIS MATTER IS OF A HIGHLY SPECIALIZED SCIENTIFIC NATURE AND THE QUESTION AS TO WHAT TYPE OF EQUIPMENT IS TO BE PROCURED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT IS FOR DETERMINATION ON THE BASIS OF EXPERT OPINION. WHILE THE LAW REQUIRING ADVERTISING FOR BIDS AND AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER, IN EACH CASE, CONTEMPLATES FAIR AND UNRESTRICTED COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE NEEDS WILL NOT BE SUFFICIENT TO WARRANT THE CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTED. SEE 30 COMP. GEN. 368.

ACCORDINGLY, UNDER THE REPORTED FACTS AND CIRCUMSTANCES, THIS OFFICE WOULD NOT BE JUSTIFIED IN HOLDING THAT THE SPECIFICATIONS EXCEED THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT OR THAT THEY WERE RESTRICTIVE TO THE POINT OF PRECLUDING FREE AND OPEN COMPETITION.