B-129432, DEC. 19, 1956

B-129432: Dec 19, 1956

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TO CHICAGO PNEUMATIC TOOL COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5. REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31. THE ENGINE GENERATOR PLANT WAS DESCRIBED IN THE INVITATION AS CONSISTING OF. IN ACCORDANCE WITH ATTACHED "DETAILED REQUIREMENTS.'" ON PAGE 3 OF THE DETAILED REQUIREMENTS IT WAS PROVIDED UNDER SWITCHBOARD THAT "THE NECESSARY EQUIPMENT SHALL BE PROVIDED FOR AUTOMATIC SYNCHRONIZATION OF THE GENERATOR.'. ALL PROSPECTIVE BIDDERS WERE ADVISED THAT THE DESCRIPTION OF ITEM NO. 1 WAS AMENDED TO READ AS OLLOWS: "ENGINE GENERATOR PLANT. THE ABSTRACT OF BIDS SHOWS THAT 6 BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THAT YOUR COMPANY SUBMITTED THE LOWEST BID BY SOME $8.

B-129432, DEC. 19, 1956

TO CHICAGO PNEUMATIC TOOL COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1956, WITH ENCLOSURES, PROTESTING THE PROPOSED AWARD BY THE CIVIL AERONAUTICS ADMINISTRATION TO ANOTHER BIDDER OF A CONTRACT PURSUANT TO INVITATION NO. 6814 ISSUED BY THAT AGENCY. ALSO, REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31, 1956, WITH ENCLOSURES, IN FURTHER SUPPORT OF YOUR PROTEST.

THE INVITATION REQUESTED BIDS FOR FURNISHING ONE ENGINE GENERATOR PLANT, SPARE PARTS, AND SERVICES OF A REGULAR EMPLOYEE OF THE MANUFACTURER TO SUPERVISE THE INSTALLATION OF THE PLANT. THE ENGINE GENERATOR PLANT WAS DESCRIBED IN THE INVITATION AS CONSISTING OF---

"* * * TWO (2) 400-450 KW 0.8 PF, 3-PHASE, 3-WIRE 50 CYCLE, 6600 VOLT, DELTA CONNECTED DIESEL-DRIVEN ENGINE GENERATOR SETS WITH SWITCHBOARD AND AUTOMATIC CONTROLS TO PROVIDE AUTOMATIC STARTING AND STOPPING, AUTOMATIC DUAL-FUEL OPERATION (DIESEL AND NATURAL GAS) AND AUTOMATIC SYNCHRONIZING; IN ACCORDANCE WITH ATTACHED "DETAILED REQUIREMENTS.'" ON PAGE 3 OF THE DETAILED REQUIREMENTS IT WAS PROVIDED UNDER SWITCHBOARD THAT "THE NECESSARY EQUIPMENT SHALL BE PROVIDED FOR AUTOMATIC SYNCHRONIZATION OF THE GENERATOR.' BY AMENDMENT NO. 1, DATED AUGUST 8, 1956, ALL PROSPECTIVE BIDDERS WERE ADVISED THAT THE DESCRIPTION OF ITEM NO. 1 WAS AMENDED TO READ AS OLLOWS:

"ENGINE GENERATOR PLANT, MANUAL STARTING, CONSISTING OF TWO (2) 400 450 KW 0.8 PF, 3-PHASE, 3-WIRE, 50 CYCLE, 6600 VOLT, DELTA CONNECTED, DIESEL- DRIVEN ENGINE-GENERATOR SETS, WITH SWITCHBOARD AND CONTROLS; IN ACCORDANCE WITH ATTACHED "DETAILED REQUIREMENT.'"

PARAGRAPH 8/A) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDED THAT THE CONTRACT WOULD BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WOULD BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

THE ABSTRACT OF BIDS SHOWS THAT 6 BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THAT YOUR COMPANY SUBMITTED THE LOWEST BID BY SOME $8,000. THE ABSTRACT SHOWS ALSO THAT THE EQUIPMENT OFFERED BY YOU WAS FOUND NOT TO MEET THE ADVERTISED SPECIFICATIONS, IN THAT IT DID NOT INCLUDE AUTOMATIC SYNCHRONIZATION REQUIRED BY PARAGRAPH ENTITLED "SWITCHBOARDS" ON PAGE 3 OF THE "DETAILED REQUIREMENTS.' THE CONTRACT WAS AWARDED TO THE WHITE MOTOR COMPANY, WHITE DIESEL ENGINE DIVISION, OF SPRINGFIELD, OHIO, ON OR ABOUT OCTOBER 5, 1956.

YOUR PROTEST IS BASED UPON THE CONTENTION THAT THE CHANGES MADE IN THE ORIGINAL DESCRIPTION OF THE PLANT BY AMENDMENT NO. 1 LED YOU TO BELIEVE THAT IT WAS THE GOVERNMENT'S INTENTION TO REMOVE ALL THE AUTOMATIC FEATURES ORIGINALLY MENTIONED IN THE DESCRIPTION, INCLUDING "AUTOMATIC SYNCHRONIZING.' IN YOUR LETTER OF OCTOBER 31, 1956, THE STATEMENT IS MADE THAT ALL OTHER BIDDERS QUOTED ON ELECTRICAL GEAR PER WESTINGHOUSE QUOTATION AND THAT SUCH GEAR IS NOT FULLY AUTOMATIC REGARDING SYNCHRONIZATION. IT IS STATED FURTHER THAT FOLLOWING RECEIPT OF THE AMENDMENT YOUR ENGINEERING DEPARTMENT ELIMINATED FROM YOUR BID ONLY ONE ITEM REFERRED TO AS "PART NO. 2021, AUTOMATIC SYNCHRONIZER," THE PRICE OF WHICH YOU CLAIM IS $105. YOU STATE ALSO THAT YOU HAVE DISCUSSED THE AMENDMENT WITH SEVERAL MEN IN OTHER COMPANIES WHOSE PRIME JOB IT IS TO PREPARE BIDS ON GOVERNMENT INVITATIONS AND THAT THEIR FEELING IS THE SAME AS YOURS, NAMELY, THAT THE AUTOMATIC CONTROL FEATURES OMITTED BY THE AMENDMENT SHOULD BE OMITTED FROM THE EQUIPMENT WITHOUT REGARD TO THE REQUIREMENTS OF THE DETAILED REQUIREMENTS.

IN YOUR LETTER OF OCTOBER 29, 1956, TO MR. J. S. OLCOTT, A COPY OF WHICH WAS FORWARDED WITH YOUR LETTER OF OCTOBER 31, 1956, YOU STATE THAT AN AUTOMATIC SYNCHRONIZER IS OFFERED ON THE WESTINGHOUSE SWITCHGEAR ONLY ON PANEL NUMBER 3 FOR CONTROL OF NUMBER 2 GENERATOR POWER CIRCUIT BREAKER, AND THAT THIS OPERATES TO RESTRICT PLANT OPERATION IN THAT GENERATOR NUMBER 1 MUST ALWAYS BE STARTED FIRST AND HAVE ITS POWER BREAKER CLOSED MANUALLY TO ENERGIZE THE BUS. IT IS CLAIMED ALSO THAT "IF AN AUTOMATIC SYNCHRONIZER IS REQUIRED IT SHOULD BE PROVIDED WITH A CONTROL TRANSFER SWITCH TO ALLOW FOR AUTOMATIC SYNCHRONIZATION OF EITHER UNIT NUMBER 1 TO UNIT NUMBER 2, OR UNIT NUMBER 2 TO UNIT NUMBER 1.' AS A FURTHER CONTENTION IN SUPPORT OF YOUR PROTEST YOU CLAIM THAT WHILE NO INTERLOCKS ARE PROVIDED ON THE WESTINGHOUSE SWITCHGEAR, ELECTRICAL INTERLOCKS ARE PROVIDED WITH THE GEAR YOU OFFERED TO FURNISH.

THE DEPARTMENT OF COMMERCE HAS REPORTED TO OUR OFFICE THAT THE CIVIL AERONAUTICS ADMINISTRATION DISCOVERED, AFTER DISTRIBUTING THE ORIGINAL INVITATION TO PROSPECTIVE BIDDERS, THAT THE DESCRIPTION OF THE PLANT IN THE SCHEDULE DID NOT AGREE WITH THE "DETAILED REQUIREMENTS" IN THAT THE DESCRIPTION IN THE SCHEDULE IMPLIED A FULLY AUTOMATIC POWER PLANT CAPABLE OF OPERATING UNATTENDED, WHEREAS THE TYPE OF OPERATION DESIRED BY THE GOVERNMENT WAS ADEQUATELY DESCRIBED IN THE "DETAILED REQUIREMENTS" EXCEPT FOR THE METHODS OF STARTING AND STOPPING. IT IS REPORTED THAT THE AMENDMENT WAS ISSUED TO ELIMINATE CONFLICT BETWEEN THE DESCRIPTION IN THE SCHEDULE AND THE DESCRIPTION IN THE "DETAILED REQUIREMENTS" AND TO SPECIFY THE METHOD OF STARTING AND STOPPING. IT SEEMS TOO CLEAR FOR ARGUMENT THAT THE AMENDED SCHEDULE STILL REQUIRED THE PLANTS TO COMPLY WITH THE "DETAILED REQUIREMENTS," WHICH INCLUDED AUTOMATIC SYNCHRONIZATION. CERTAINLY IF THE AMENDED DESCRIPTION HAD BEEN USED IN THE ORIGINAL INVITATION THERE COULD HAVE BEEN NO QUESTION AS TO THE APPLICABILITY OF THE DETAILED REQUIREMENTS, AND WE SEE NO SUBSTANTIAL GROUND FOR REACHING A DIFFERENT INTERPRETATION MERELY BECAUSE THERE HAD BEEN AN AMENDMENT.

AS TO YOUR ALLEGATION THAT THE ACCEPTED BID DID NOT OFFER AUTOMATIC SYNCHRONIZATION, IT IS OBSERVED THAT THE DESCRIPTION OF THE SYNCHRONIZER OFFERED BY THE SUCCESSFUL BIDDER STATES THAT ,NECESSARY AUXILIARIES" WILL BE FURNISHED WITH THE SYNCHRONIZER, AND THE ADMINISTRATIVE OFFICE ADVISES THAT THESE WILL INCLUDE A SELECTOR SWITCH WHICH WILL BE USED IN SELECTING THE GENERATOR TO BE SYNCHRONIZED TO THE BUS. THUS, THE FURNISHING OF THIS SWITCH WITH THE SYNCHRONIZER WILL MAKE IT POSSIBLE TO START EITHER ONE OF THE TWO ENGINES FIRST. IT IS THE VIEW OF THE CONTRACTING OFFICIALS THAT THE EQUIPMENT PROVIDED WITH SUCH A SELECTOR SWITCH MEETS THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS SO FAR AS AUTOMATIC SYNCHRONIZATION IS CONCERNED.

AS TO INTERLOCKING THE CIRCUIT BREAKERS, THE CIVIL AERONAUTICS ADMINISTRATION REPORTS THAT THIS MATTER WAS DISCUSSED WITH WESTINGHOUSE FOR THE PURPOSE OF ASCERTAINING WHETHER THAT CONCERN UNDERSTOOD THE REQUIREMENTS OF THE INVITATION FOR BIDS AND IT WAS ESTABLISHED THAT THE REQUIREMENTS WERE UNDERSTOOD AND THAT THE NECESSARY AUXILIARY CONTACTS ARE STANDARD EQUIPMENT ON AUTOMATIC CIRCUIT BREAKERS. THE METHOD OF INTERLOCKING IS REPORTED TO BE MERELY A MATTER OF WIRING AND NOT A SPECIFIC ITEM OF EQUIPMENT, AND THE ADMINISTRATIVE OFFICE IS SATISFIED THAT THE EQUIPMENT OFFERED BY THE SUCCESSFUL BIDDER CAN BE SO WIRED AS TO PROVIDE THE "PROPER INTERLOCKS" REQUIRED.

THE CONTRACT WAS AWARDED TO THE WHITE MOTOR COMPANY ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT YOUR BID WAS NOT FULLY RESPONSIVE TO THE ADVERTISED CONDITIONS IN ALL MATERIAL RESPECTS. DETERMINATIONS AS TO RESPONSIVENESS OF BIDS AND INTERPRETATION OF SPECIFICATIONS ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE RESPONSIBLE ADMINISTRATIVE OFFICIALS, AND THEY MAY BE QUESTIONED ONLY WHERE THEY ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE OR APPEAR TO BE SO ARBITRARY OR FRAUDULENT AS TO SHOW BAD FAITH. WE FIND NO SUCH GROUNDS IN THIS CASE.

ACCORDINGLY, YOUR PROTEST IS WITHOUT SUFFICIENT MERIT TO JUSTIFY OUR OFFICE IN HOLDING THAT THE AWARD OF THE CONTRACT WAS LEGALLY DEFECTIVE.