B-127681, NOV. 1, 1956

B-127681: Nov 1, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

COOPER EQUIPMENT COMPANY: REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 12. YOUR FIRST COMPLAINT CONCERNING THE MATTER IS REPORTED TO HAVE BEEN MADE TO THE FIELD OFFICE OF THE ARCHITECT OF THE CAPITOL ON FEBRUARY 2. HERLEX DISPOSERS HAVE BEEN OVER-DESIGNED. THAT THEY ARE UNREASONABLY LARGER IN SIZE. THE ARCHITECT OF THE CAPITOL IN RESPONSE TO OUR REQUEST FOR A REPORT IN THE MATTER STATED THAT THE SIZE AND PERFORMANCE STANDARD OF THE DISPOSAL UNITS AS SPECIFIED IN THE CONTRACT WERE BASED UPON DETAILED CONSULTATIONS BETWEEN HIMSELF. HERLEX UNIT WAS SPECIFIED FOR THE PURPOSE OF SETTING A PERFORMANCE STANDARD WHICH ACTION WAS CONCURRED IN BY THE CONSULTANTS. UNITS WERE INSTALLED THEY COULD NOT TAKE THE RESPONSIBILITY OF THE DISPOSAL PROGRAM.

B-127681, NOV. 1, 1956

TO MR. LOUIS COOPER, COOPER EQUIPMENT COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 12, AND OCTOBER 29, 1956, AND PRIOR CORRESPONDENCE PROTESTING THE PROPRIETY OF THE ACTION TAKEN BY THE ARCHITECT OF THE CAPITOL IN PROVIDING FOR THE PURCHASE OF SEVEN, FIVE H.P., FOOD WASTE DISPOSERS FOR THE KITCHEN FACILITIES OF THE NEW SENATE OFFICE BUILDING NOW UNDER CONSTRUCTION.

THE SPECIFICATIONS IN THE CONTRACT FOR THE SUPERSTRUCTURE OF THE ADDITIONAL SENATE OFFICE BUILDING (ACSO-219 DATED SEPTEMBER 9, 1955) SPECIFY 5 H.P. HERLEX MODELS OR APPROVED EQUAL. YOUR FIRST COMPLAINT CONCERNING THE MATTER IS REPORTED TO HAVE BEEN MADE TO THE FIELD OFFICE OF THE ARCHITECT OF THE CAPITOL ON FEBRUARY 2, 1956, OR APPROXIMATELY 5 MONTHS AFTER THE AWARD OF THE CONTRACT. THE BASIS OF YOUR PROTEST AS ORIGINALLY SUBMITTED HERE APPEARS TO BE THAT THE 5 H.P. HERLEX DISPOSERS HAVE BEEN OVER-DESIGNED, THAT THEY ARE UNREASONABLY LARGER IN SIZE, CAPACITY AND COST THAN REQUIRED FOR THE FACILITY AND THAT THEIR VULNERABILITY TO DAMAGE USUALLY RESULTS IN EXPENSIVE MAINTENANCE AND REPLACEMENT COSTS. FOR SUCH REASONS YOU RECOMMEND AND INSIST THAT A CHANGE ORDER BE ISSUED SPECIFYING 3 H.P. WASTE-X-IT DISPOSERS. YOU ASSERT THAT THE 3 H.P. DISPOSER RECOMMENDED BY YOU HAS AN ADEQUATE POUNDS PER HOUR CAPACITY FOR THE FACILITY AND THAT IT DOES NOT REQUIRE FREQUENT REPLACEMENTS OF EXPENSIVE PARTS. ALSO, YOU ASSERT THAT IT HAS ALL THE OTHER ADVANTAGES AS SET FORTH IN YOUR SEVERAL LETTERS INCLUDING THE ABILITY TO WITHSTAND ABUSES TO A GREATER EXTENT THAN THE 5 H.P. MODELS SPECIFIED IN THE CONTRACT.

IN LETTER DATED MAY 25, 1956, THE ARCHITECT OF THE CAPITOL IN RESPONSE TO OUR REQUEST FOR A REPORT IN THE MATTER STATED THAT THE SIZE AND PERFORMANCE STANDARD OF THE DISPOSAL UNITS AS SPECIFIED IN THE CONTRACT WERE BASED UPON DETAILED CONSULTATIONS BETWEEN HIMSELF, HIS ASSOCIATE ARCHITECTS ON THE PROJECT AND THEIR EXPERT CONSULTANTS IN THE FOOD SERVICE FIELD AND REPRESENTATIVES OF NATIONWIDE FOOD SERVICE, INC., OF CHICAGO, OPERATORS OF THE EXISTING SENATE RESTAURANT FACILITIES AND PROSPECTIVE OPERATORS OF THE NEW SENATE OFFICE BUILDING KITCHEN FACILITIES. REPORTED THAT SUCH CONSULTATIONS DEALT WITH ALL ASPECTS OF PERFORMANCE REQUIREMENTS OF THE NEW FACILITY, INCLUDING:

(1) THE AMOUNT OF WORK REQUIRED FOR THE NUMBER OF UNITS TO BE INSTALLED IN RELATION TO THE NUMBER OF MEALS ESTIMATED DURING NORMAL PERIODS AND PEAK PERIODS.

(2) POTENTIAL CAPACITY OF 3 H.P. AND 5 H.P. UNITS IN RELATION TO NORMAL AND PEAK LOADS TOGETHER WITH THE SAFETY FACTOR INVOLVED INCIDENT TO PEAK LOADING OR POTENTIAL OVERLOADING OPERATIONS.

(3) THE AVERAGE TYPE AND QUANTITY OF FOOD WASTE TO BE FED INTO THE UNITS.

(4) SPEED OF DISPOSAL OF THE VARIOUS MODELS AND THEIR RELATIVE FINENESS OF GRINDING.

(5) NOISE FACTORS.

(6) RELATIVE COST OF THE 3 H.P. AND 5 H.P. UNITS TOGETHER WITH THE EASE OF MAINTENANCE AND RELATIVE AVERAGE MAINTENANCE COSTS.

THE ARCHITECT REPORTED FURTHER THAT UPON CONCLUSION OF THE ABOVE CONSULTATIONS THE CONSULTANTS RECOMMENDED THAT THE 5 H.P. UNITS BE SPECIFIED IN THE CONTRACT AS NECESSARY FOR THE PROPER OPERATION OF THE DISPOSAL PROGRAM AND THAT HE CONCURRED IN SUCH RECOMMENDATION. HE STATED THAT THE 5 H.P. HERLEX UNIT WAS SPECIFIED FOR THE PURPOSE OF SETTING A PERFORMANCE STANDARD WHICH ACTION WAS CONCURRED IN BY THE CONSULTANTS. REPORTED FURTHER THAT IN VIEW OF THE STATEMENTS MADE IN YOUR LETTER OF APRIL 20, 1956, HE HAD HIS CONSULTANTS REVIEW THEIR RECOMMENDATION AND THAT UPON THE BASIS OF SUCH REVIEW THEY NOT ONLY CONFIRMED THEIR ORIGINAL RECOMMENDATION BUT CONCLUDED THAT IF 3 H.P. UNITS WERE INSTALLED THEY COULD NOT TAKE THE RESPONSIBILITY OF THE DISPOSAL PROGRAM.

PURSUANT TO AN INFORMAL REQUEST YOU WERE FURNISHED A COPY OF THE ARCHITECT'S LETTER OF MAY 25, 1956. IN YOUR LETTER OF JUNE 12, 1956, YOU DISPUTED THE CORRECTNESS OF THE VARIOUS STATEMENTS AND CONCLUSIONS IN THE ARCHITECT'S LETTER OF MAY 25 AND URGED THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO ISSUE A CHANGE ORDER SPECIFYING 3 H.P. WASTE -X-IT DISPOSERS FOR THE PROPOSED INSTALLATION. ON THE BASIS OF YOUR REPRESENTATIONS, YOUR LETTER OF JUNE 12, TOGETHER WITH YOUR LETTERS OF JUNE 15 AND JULY 31, WAS REFERRED TO THE ARCHITECT FOR A SUPPLEMENTAL REPORT.

IN A SUPPLEMENTAL REPORT, DATED SEPTEMBER 21, 1956, COPY OF WHICH WAS INFORMALLY FURNISHED YOU ALSO, THE ARCHITECT REPORTED THAT HE HAD AGAIN REVIEWED THE SIZE REQUIREMENTS OF THE DISPOSAL UNITS IN RELATION TO THE PROSPECTIVE NEEDS OF THE INVOLVED KITCHEN FACILITIES AND INSTITUTED AN INVESTIGATION INCIDENT TO YOUR ALLEGATIONS PARTICULARLY WITH RESPECT TO THE HERLEX MODEL DESIGNATED IN THE CONTRACT FOR PERFORMANCE STANDARD PURPOSES. THE ARCHITECT REPORTED THAT AFTER CONSIDERATION OF YOUR ALLEGATIONS IN THE LIGHT OF A SUBSEQUENT INVESTIGATION AND THE ADVICE OF HIS CONSULTANTS HE CONCLUDED THAT THE STANDARD OF PERFORMANCE CHOSEN FOR THE DISPOSALS SPECIFIED IN THE CONTRACT IS IN THE BEST INTERESTS OF THE UNITED STATES AND THAT THE OPERATION OF THE NEW FACILITIES CANNOT, WITH A SUFFICIENT MARGIN OF SAFETY, DEPEND ON DISPOSALS OF A SMALLER SIZE THAN THE 5 H.P. MODEL AS SPECIFIED IN THE CONTRACT. ALSO HE REPORTED THAT NOTWITHSTANDING YOUR CONTENTIONS TO THE CONTRARY HE HAD CONFIDENCE IN THE SOUNDNESS OF THE ADVICE RECEIVED FROM HIS OWN STAFF AND INDEPENDENT CONSULTANTS AS WELL AS IN THE ASSOCIATE ARCHITECT FOR THE PROJECT CHOSEN BY THE SENATE OFFICE BUILDING COMMISSION FROM A NUMBER OF THE FOREMOST ARCHITECTS OF THE NATION. IN ADDITION, HE EXPRESSED THE VIEW THAT THE NATIONWIDE FOOD SERVICE, INC., OPERATOR OF MORE THAN TWO HUNDRED RESTAURANT FACILITIES AND THE PROSPECTIVE OPERATOR OF THE NEW SENATE OFFICE FACILITY IS COMPETENT TO RENDER ADVICE RELATIVE TO THE OPERATING CAPACITY OF DISPOSALS.

IN YOUR LETTER OF OCTOBER 12, 1956, YOU CHALLENGE THE QUALIFICATIONS OF THE ARCHITECT'S CONSULTANTS, HIS CONCLUSIONS AND RECOMMENDATIONS AND OTHER MATTERS AND DATA CONTAINED IN THE SUPPLEMENTAL REPORT OF SEPTEMBER 21. YOU CONCLUDE THAT YOUR COMMENTS CONSTITUTE IRREFUTABLE PROOF OF THE SUPERIORITY OF THE 3 H.P. WASTE-X-IT DISPOSERS OVER THE HERLEX 5 H.P. DISPOSERS FOR USE IN THE NEW SENATE OFFICE FACILITY. FOR SUCH REASONS YOU AGAIN REQUEST US TO INSTRUCT THE ARCHITECT TO ISSUE A CHANGE ORDER REQUESTING THE CONTRACTOR TO FURNISH SEVEN 3 H.P. WASTE-X-IT DISPOSERS IN LIEU OF THE SEVEN 5 H.P. HERLEX DISPOSERS, THUS REDUCING THE FINANCIAL OBLIGATION OF THE GOVERNMENT.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO YOUR REQUEST AND THE VARIOUS CONTENTIONS AND ALLEGATIONS MADE IN YOUR LETTERS AS WELL AS THE ARCHITECTS' DETERMINATIONS AND CONCLUSION AS SET FORTH IN HIS REPORTS. WITH RESPECT TO THE CONTROVERSY CONCERNING THE TECHNICAL PERFORMANCE FACTORS OF THE TWO TYPES OF DISPOSALS AND THEIR VULNERABILITY TO DAMAGE, IT IS OUR VIEW THAT IN SUCH SITUATIONS WHERE THERE EXISTS A SUBSTANTIAL DIFFERENCE IN OPINION AMONG TECHNICAL EXPERTS IN THEIR PARTICULAR FIELD AS TO THE RELATIVE MERITS OF TWO PRODUCTS, IT CANNOT BE SAID THAT THE SELECTION OF EITHER ONE TO THE EXCLUSION OF THE OTHER, JUSTIFIES OUR OFFICE IN OVERRULING THE DISCRETION NECESSARILY VESTED IN THE CONTRACTING OFFICER OF THE ADMINISTRATIVE AGENCY IN THE ABSENCE OF ANY SHOWING OF FRAUD OF FAVORITISM AMOUNTING TO FRAUD. NEITHER IS IT WITHIN THE PROVINCE OF THIS OFFICE TO DECIDE WHAT THE NEEDS OF THE GOVERNMENT MAY BE OR TO COMPEL AN ADMINISTRATIVE AGENCY TO SPECIFY ONE PRODUCT OVER ANOTHER IN CONTROVERSIES SUCH AS INVOLVED IN THE INSTANT MATTER.

ACCORDINGLY, SINCE THERE IS NOTHING IN THE RECORD INDICATING BAD FAITH ON THE PART OF THE ADMINISTRATIVE AGENCY OR THAT IT WAS MOTIVATED BY ANY DESIRE OTHER THAN TO OBTAIN FOR THE GOVERNMENT DISPOSALS WHICH WILL BEST MEET THE NEEDS OF THE GOVERNMENT, IT MUST BE CONCLUDED THAT THERE IS NO PROPER LEGAL BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.

WITH RESPECT TO THE REQUEST IN THE CONCLUDING PARAGRAPH OF YOUR LETTER OF OCTOBER 29, 1956, THAT YOU BE ACCORDED A FURTHER HEARING AT WHICH THE ARCHITECT OF THE CAPITOL WOULD BE REQUESTED TO APPEAR FOR QUESTIONING CONCERNING YOUR COMPLAINT, YOU ARE ADVISED THAT OUR OFFICE DOES NOT HAVE AUTHORITY TO SUBPOENA WITNESSES OR TO EXAMINE THEM ORALLY BUT MUST DISPOSE OF QUESTIONS PRESENTED ON THE BASIS OF THE WRITTEN RECORD. THE VARIOUS ALLEGATIONS IN SUPPORT OF YOUR COMPLAINT WERE--- AT OUR REQUEST--- INVESTIGATED BY THE ARCHITECT OF THE CAPITOL ON TWO DIFFERENT OCCASIONS AND DETAILED REPORTS WERE FURNISHED OUR OFFICE BOTH OF WHICH REPORTS WERE MADE AVAILABLE YO YOU. ALSO, YOU HAVE BEEN ACCORDED EVERY OPPORTUNITY TO PRESENT YOUR VIEWS AT SEVERAL CONFERENCES HERE AND TO FURNISH ANY PERTINENT EVIDENCE TO SUPPORT YOUR COMPLAINT. IN YOUR LETTER OF OCTOBER 12, AS WELL AS IN THE CONFERENCE OF OCTOBER 29, YOU AGAIN DISPUTED VARIOUS STATEMENTS MADE BY THE ARCHITECT IN SUPPORT OF THE ACTION TAKEN IN THE MATTER. HOWEVER, FOR THE REASONS STATED ABOVE WE WOULD NOT BE WARRANTED IN FURTHER QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.