B-130198, FEB. 14, 1957

B-130198: Feb 14, 1957

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GENERAL MOTORS CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27. YOU STATE THAT ALTHOUGH TWO OF YOUR DISTRIBUTORS ARE LOW BIDDERS YOU ARE INFORMED THAT THE NATIONAL BUREAU OF STANDARDS CONTEMPLATES AWARDING THE CONTRACT TO THE CATERPILLAR TRACTOR COMPANY. YOU CONTEND THAT THE INVITATION "IS A PROPRIETARY AND RESTRICTIVE SPECIFICATION. THEY ARE SPECIFYING A METHOD OF MANUFACTURE IN THE PRODUCT" SINCE THE SPECIFICATIONS REQUIRE A FOUR CYCLE DIESEL ENGINE WITH WET TYPE CYLINDER LINES. THE SPECIFICATIONS REQUIRE EACH UNIT TO HAVE A SEPARATE GASOLINE STARTER. IT IS STATED IN THE SPECIFICATIONS THAT "CATERPILLAR D-318 (SELF -REGULATING) DIESEL ELECTRIC SET. WILL BE ACCEPTABLE UNDER THIS INVITATION.'.

B-130198, FEB. 14, 1957

TO DETROIT DIESEL ENGINE DIVISION, GENERAL MOTORS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1956, AND ITS ENCLOSURES, RELATIVE TO INVITATION FOR BIDS NO. 135-57 ISSUED BY THE NATIONAL BUREAU OF STANDARDS ON DECEMBER 7, 1956, FOR THE PURCHASE OF ELECTRIC GENERATOR SETS. YOU STATE THAT ALTHOUGH TWO OF YOUR DISTRIBUTORS ARE LOW BIDDERS YOU ARE INFORMED THAT THE NATIONAL BUREAU OF STANDARDS CONTEMPLATES AWARDING THE CONTRACT TO THE CATERPILLAR TRACTOR COMPANY, A HIGHER BIDDER, AND YOU REQUEST THAT AWARD BE MADE TO THE LOWEST BIDDER FURNISHING THE GENERAL MOTORS UNIT. YOU CONTEND THAT THE INVITATION "IS A PROPRIETARY AND RESTRICTIVE SPECIFICATION," STATING THAT "INSTEAD OF REQUESTING A REQUIREMENT, THEY ARE SPECIFYING A METHOD OF MANUFACTURE IN THE PRODUCT" SINCE THE SPECIFICATIONS REQUIRE A FOUR CYCLE DIESEL ENGINE WITH WET TYPE CYLINDER LINES.

IN RESPONSE TO A REQUEST BY THIS OFFICE, THE DEPARTMENT OF COMMERCE HAS FURNISHED COPIES OF PERTINENT PAPERS AND A MEMORANDUM BY THE NATIONAL BUREAU OF STANDARDS SETTING OUT ITS VIEWS IN THE MATTER. THE INVITATION REQUESTED BIDS FOR FURNISHING TWO DIESEL ELECTRIC SETS DESCRIBED IN ITEMS NOS. 1 AND 2 AS FOLLOWS:

"1. NOT LESS THAN 55 KW AT .80 P.F. AT 5000 FT. ALTITUDE AND 100 DEGREES F.

2. NOT LESS THAN 60 KW AT .80 P.F. AT 1500 FT. ALTITUDE AND 100 DEGREES F.'

THE SPECIFICATIONS REQUIRE EACH UNIT TO HAVE A SEPARATE GASOLINE STARTER. IT IS STATED IN THE SPECIFICATIONS THAT "CATERPILLAR D-318 (SELF -REGULATING) DIESEL ELECTRIC SET, OR EQUAL, WILL BE ACCEPTABLE UNDER THIS INVITATION.'

THE FOLLOWING BIDS WERE RECEIVED:

CHART

ITEM ITEM

BIDDER NO. 1 NO. 2

WESTERN MACHINERY AND ENGINE COMPANY $5,558.00 (WITH $5,558.00 (WITH

HYDRAULIC HYDRAULIC

STARTER) STARTER)

$5,248.00 $5,248.00

COLORADO BUILDERS SUPPLY COMPANY $5,950.00 $5,950.00

CATERPILLAR TRACTOR COMPANY $6,292.00 $6,292.00

THE READY-POWER COMPANY $6,683.00 $6,683.00

MCCOY COMPANY $7,015.00 $7,015.00

ALTHOUGH YOU STATE THAT THE GENERAL MOTORS UNIT "COMPLIES IN ALL WAYS WITH THE REQUIREMENTS AS OUTLINED UNDER PAGE 1 OF THE ENCLOSED INVITATION AND THE OTHER SPECIFICATIONS WHICH ARE GENERAL FOR THIS TYPE OF SET,"IT APPEARS TO BE AGREED BY ALL CONCERNED THAT THE UNITS OFFERED BY THE TWO LOWEST BIDDERS DO NOT COMPLY WITH SOME REQUIREMENTS OF THE SPECIFICATIONS FOR THE ITEMS CALLED FOR BY THE INVITATION. FOR EXAMPLE, IT IS STATED IN THE BUREAU OF STANDARDS MEMORANDUM THAT NEITHER OF THE LOW BIDDERS CONTEMPLATES THE USE OF A GASOLINE ENGINE AS A STARTING DEVICE THOUGH REQUIRED BY THE SPECIFICATIONS AND REGARDED BY THE BUREAU AS ESSENTIAL.

IT IS STATED FURTHER IN THE MEMORANDUM THAT THE GENERATOR SETS ARE NEEDED BY THE BUREAU FOR USE IN THE INTERNATIONAL GEOPHYSICAL YEAR PROGRAM, WHICH IS A COOPERATIVE SCIENTIFIC EFFORT AMONG THE PRINCIPAL NATIONS OF THE WORLD TO OBTAIN DATA WITH RESPECT TO THE EARTH AND ITS ATMOSPHERE AND THAT IT IS IMPORTANT THAT THE EQUIPMENT USED BE HIGHLY RELIABLE SINCE IT IS TO BE USED AT REMOTE LOCATIONS WHERE IMMEDIATE REPAIR OR REPLACEMENT WOULD NOT BE POSSIBLE. THE GENERATOR SETS COVERED BY THE INVITATION ARE FOR USE IN REMOTE DESERT LOCATIONS IN CHILE AND PERU DURING A PERIOD OF ONE YEAR AND THEREFORE WILL BE SUBJECTED TO GREAT VARIATIONS IN TEMPERATURE.

IN THE MEMORANDUM, IT IS STATED:

"IN THE PREPARATION OF THE SPECIFICATIONS THE OBJECTIVE WAS TO ACQUIRE EQUIPMENT THAT WOULD NOT ONLY MEET OPERATIONAL REQUIREMENTS UNDER THE ENVIRONMENTAL CONDITIONS ANTICIPATED IN THESE LOCALITIES BUT WHICH WOULD PERFORM RELIABLY WITH A MINIMUM OF MAINTENANCE AND MOST IMPORTANT BE OF A TYPE WITH WHICH THE TECHNICAL PERSONNEL ASSIGNED TO THE PROJECT IS MOST FAMILIAR. THE TECHNICAL PERSONNEL WHO WILL BE OPERATING THE EQUIPMENT ARE RADIO ENGINEERS AND THEIR OPERATING EXPERIENCE WITH DIESEL ELECTRIC GENERATORS HAS BEEN CONFINED TO THE EQUIPMENT OF THE TYPE SPECIFIED. THERE WILL BE NO DIESEL ENGINE MECHANICS EMPLOYED TO WORK WITH THESE GROUPS AND SUCH ROUTINE MAINTENANCE AS MAY BE NECESSARY IS EXPECTED TO BE PERFORMED ON THE SITE BY THE ENGINEERS AND SCIENTISTS. FURTHERMORE, THERE IS A RECOGNIZED DIFFERENCE OF OPINION IN THE DIESEL ENGINE INDUSTRY AS TO THE RELATIVE MERITS OF THE TWO STROKE CYCLE VERSUS THE FOUR STROKE CYCLE. IN VIEW OF THIS DIFFERENCE OF OPINION IN THE INDUSTRY, THE TECHNICAL EMPLOYEES WHO ARE SEEKING THE PRESENT EQUIPMENT SPECIFIED FOUR STROKE CYCLE DIESEL MOTOR GENERATOR SETS BECAUSE THOSE EMPLOYEES HAVE FOUND SUCH SETS TO BE RELIABLE AND TO REQUIRE LITTLE ATTENTION IN OTHER FIELD STATION OPERATIONS UNDER THEIR DIRECTION IN THE PAST.'

WITH RESPECT TO YOUR CONTENTION THAT THE REQUIREMENTS FOR FOUR CYCLE OPERATION AND FOR WETLINERS RESTRICTS THE BIDDING TO THE CATERPILLAR DIESEL ENGINE COMPANY IN THE SIZE SPECIFIED, IT IS REPORTED THAT OTHER FIRMS ALSO PRODUCE FOUR CYCLE WETLINER DIESEL ENGINES, ALTHOUGH THE SIZE OF THOSE ENGINES IS NOT KNOWN TO THE BUREAU AND THEREFORE THE VIEW IS EXPRESSED THAT THE SPECIFICATIONS ARE NOT PROPRIETARY AND RESTRICTIVE.

IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THE BIDS RECEIVED ARE RESPONSIVE TO SUCH SPECIFICATIONS IS PRIMARILY A RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE REQUIRING THE MATERIALS OR EQUIPMENT. 21 COMP. GEN. 1132, 1136. ALSO, THE QUESTION AS TO WHETHER EQUIPMENT SUCH AS HERE INVOLVED IS NECESSARY TO MEET THE REQUIREMENTS OF THE GOVERNMENT IS ONE PRIMARILY FOR DETERMINATION BY THOSE CHARGED WITH OPERATING RESPONSIBILITY. IN THE INSTANT MATTER, IT IS NOT ESTABLISHED THAT THE SPECIFICATIONS ARE IN FACT RESTRICTIVE. FURTHERMORE, EVEN IF THE SPECIFICATIONS PROPERLY COULD BE REGARDED AS RESTRICTIVE, IT APPEARS THAT THEY REPRESENT THE ACTUAL AND BONA FIDE NEEDS OF THE BUREAU OF STANDARDS IN VIEW OF THE SPECIAL USE FOR WHICH THE GENERATOR SETS ARE INTENDED, AND THE FACT--- IF IT BE A FACT--- THAT SETS MANUFACTURED BY ONLY ONE PRODUCER CONFORM TO THE SPECIFICATIONS DOES NOT PRECLUDE THE GOVERNMENT FROM PURCHASING SUCH EQUIPMENT.

FOR THE REASONS HEREIN INDICATED, THERE APPEARS NO PROPER BASIS FOR OBJECTION BY THIS OFFICE TO ..END :