B-146698, SEP. 26, 1961

B-146698: Sep 26, 1961

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TO THE I-T-E CIRCUIT BREAKER COMPANY: FURTHER REFERENCE IS MADE TO THE TRANSMITTAL TO OUR OFFICE OF A COPY OF YOUR LETTER DATED AUGUST 16. NINE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THEY WERE OPENED ON AUGUST 10. ADDITIONAL REQUIREMENTS ARE SET FORTH IN THE DESCRIPTION OF THE ITEM INCLUDING A RESTRICTION ON THE OVERALL SIZE OF THE UNIT AND A REQUIREMENT THAT THE EQUIPMENT SHOULD BE "WESTINGHOUSE G0345G500 OR EQUAL.'. THE FOUR BIDS ON ITEM NO. 1 WERE IN THE AMOUNTS OF $9. 400 WAS QUOTED BY THE WESTINGHOUSE ELECTRIC CORPORATION. THE DIFFERENCES BETWEEN THE OFFERED MODEL OF EQUIPMENT AND THE UNIT AS DESCRIBED IN THE INVITATION WERE EXPLAINED IN YOUR BID AS REQUIRED BY NOTE NO. 6 AT PAGE 6 OF THE BIDDING SCHEDULE WHICH DEALS WITH BRAND NAME OR EQUAL TERMS.

B-146698, SEP. 26, 1961

TO THE I-T-E CIRCUIT BREAKER COMPANY:

FURTHER REFERENCE IS MADE TO THE TRANSMITTAL TO OUR OFFICE OF A COPY OF YOUR LETTER DATED AUGUST 16, 1961, TO THE ARMY CHEMICAL CENTER, EDGEWOOD, MARYLAND, PROTESTING THE POSSIBLE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER ITEM NO. 1 OF INVITATION FOR BIDS NO. CML 18-108-62 9, ISSUED JULY 11, 1961, COVERING A REQUIREMENT FOR FOUR ITEMS OF ELECTRICAL SUPPLIES.

NINE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THEY WERE OPENED ON AUGUST 10, 1961. FOUR BIDDERS QUOTED PRICES ON ITEM NO. 1, WHICH CALLED FOR THE FURNISHING OF A 34.5 KV CIRCUIT BREAKER,"OUTDOOR, OIL TYPE, FRAME MOUNTED, THREE TANK, THREE POLE, SINGLE THROW, RATED 1200 AMP CONTINUOUS AND 1500 MVA INTERRUPTING CAPACITY, SOLENOID OPERATING MECHANISM TO BE 115/230 VOLT C., AUTOMATIC RECLOSING, 48 VOLT D.C. TRIPPING, AUTOMATIC RESET SINGLE RECLOSURE, SGR-12 RELAY SPDT-CC AND CO CONTACTS WITH FLEXITEST UNIVERSAL CASE FT-11.' ADDITIONAL REQUIREMENTS ARE SET FORTH IN THE DESCRIPTION OF THE ITEM INCLUDING A RESTRICTION ON THE OVERALL SIZE OF THE UNIT AND A REQUIREMENT THAT THE EQUIPMENT SHOULD BE "WESTINGHOUSE G0345G500 OR EQUAL.'

THE FOUR BIDS ON ITEM NO. 1 WERE IN THE AMOUNTS OF $9,201, $9,400, $9,795 AND $11,500. YOU QUOTED THE PRICE OF $9,201 AND THE SECOND LOWEST PRICE OF $9,400 WAS QUOTED BY THE WESTINGHOUSE ELECTRIC CORPORATION, YOU OFFERED TO FURNISH YOUR MODEL NO. 34.5 KS 1500-12, WHICH VARIES FROM THE GOVERNMENT'S DESCRIPTION OF THE DESIRED UNIT IN THE FOLLOWING PARTICULARS: (1) THE OFFERED MODEL HAS A SINGLE TANK DESIGN INSTEAD OF THE SPECIFIED THREE-TANK DESIGN; (2) THE OFFERED MODEL HAS A PNEUMATIC OPERATING MECHANISM INSTEAD OF THE SPECIFIED SOLENOID OPERATING MECHANISM; AND (3) THE DIMENSIONS OF THE OFFERED MODEL, HEIGHT 134 7/8 INCHES, WIDTH 59 INCHES, LENGTH 90 1/8 INCHES, EXCEED WITH RESPECT TO HEIGHT AND WIDTH THE SPECIFIED MAXIMUM DIMENSIONS OF 126 INCHES, 48 INCHES, AND 144 FEET FOR HEIGHT, WIDTH AND LENGTH.

THE DIFFERENCES BETWEEN THE OFFERED MODEL OF EQUIPMENT AND THE UNIT AS DESCRIBED IN THE INVITATION WERE EXPLAINED IN YOUR BID AS REQUIRED BY NOTE NO. 6 AT PAGE 6 OF THE BIDDING SCHEDULE WHICH DEALS WITH BRAND NAME OR EQUAL TERMS. WE UNDERSTAND THAT IT IS YOUR CONTENTION THAT YOUR OFFERED MODEL IS EQUAL OR SUPERIOR TO THE UNIT AS DESCRIBED IN THE INVITATION.

THE CONTRACTING OFFICER HAS TAKEN THE POSITION THAT YOUR BID ON ITEM NO. 1 OF THE INVITATION SHOULD BE REJECTED. IT IS HIS OPINION THAT, WHILE A BRAND NAME WAS USED IN THE GOVERNMENT'S DESCRIPTION OF THE UNIT WHICH IT DESIRED TO PURCHASE, THE CONTROLLING FACTOR IS WHETHER THE PRODUCT OFFERED BY YOUR FIRM MEETS THE BASIC REQUIREMENTS OF THE INVITATION, INCLUDING THE CHARACTERISTICS WHICH WERE ADDED TO COVER THE PARTICULAR NEEDS OF THE GOVERNMENT. HE CONCLUDES THAT, TO BE RESPONSIVE TO THE INVITATION, THE MODEL OFFERED IN YOUR BID MUST NOT ONLY BE EQUAL TO THE CITED WESTINGHOUSE MODEL BUT MUST ALSO MEET THE OTHER REQUIREMENTS STATED IN THE DESCRIPTION OF THE DESIRED UNIT.

THE RECORD INDICATES THAT THE GOVERNMENT INTENDED TO PURCHASE A CIRCUIT BREAKER FOR INSTALLATION IN AN EXISTING SUBSTATION AS A REPLACEMENT ITEM. MAXIMUM DIMENSIONS WERE SPECIFIED TO ENABLE INSTALLATION IN THE EXISTING ENCLOSURE AND FOR THE FURTHER REASON THAT ANY EXCESS HEIGHT OF THE UNIT TO BE PURCHASED WOULD BRING THE HIGH VOLTAGE BUSHINGS TOO CLOSE TO THE STEEL STRUCTURE. A SOLENOID OPERATING MECHANISM WAS SPECIFIED BECAUSE IT WAS BELIEVED TO BE DESIRABLE TO MAINTAIN UNIFORMITY IN THE ELECTRICAL SYSTEM OF THE ARMY CHEMICAL CENTER WHICH IS NOW USING ONLY SOLENOID OPERATED HIGH VOLTAGE CIRCUIT BREAKERS. A THREE-TANK UNIT WAS SPECIFIED FOR VARIOUS REASONS, INCLUDING AN ADMINISTRATIVE DETERMINATION THAT AN INSTALLATION OF A SINGLE TANK UNIT WOULD REQUIRE A RELOCATION OF THE EXISTING CONTROL WIRING UNIT CONDUIT WHICH IS EMBEDDED IN THE CONCRETE SUBSTATION BASE.

WE AGREE WITH THE CONTRACTING OFFICER THAT THE BID OF YOUR FIRM IS NOT RESPONSIVE TO THE INVITATION IN CERTAIN MATERIAL RESPECTS AND, AS SUCH, SHOULD BE REJECTED.

WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER ADVERTISED SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION, IT IS APPARENT THAT THE ARMY CHEMICAL CENTER WAS JUSTIFIED IN SPECIFYING THE REQUIREMENTS WHICH YOUR OFFERED EQUIPMENT FAILS TO MEET. AS STATED IN 36 COMP. GEN. 251, THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEEDS. THE OBJECTIVE TO BE ACHIEVED IS THE DRAFTING OF SPECIFICATIONS WHICH WILL NOT BE UNDULY RESTRICTIVE OF COMPETITION; BUT IT IS NEVERTHELESS PROPER FOR THE GOVERNMENT CONTRACTING AGENCY TO ADVERTISE FOR BIDS ON THE BASIS OF OBTAINING EQUIPMENT WHICH WILL FULFILL ITS MINIMUM NEEDS.