B-147625, DEC. 29, 1961

B-147625, DEC. 29, 1961

TO ELI BEAR, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 21, 1961, AND LETTER OF NOVEMBER 17, 1961, FROM YOUR CLIENT, ALBAN TRACTOR CO., INC., CONCERNING ITS PROTEST AGAINST THE REJECTION OF ITS LOW BID AND THE AWARD TO THE READY-POWER CO., THE NEXT LOW BIDDER, UNDER U.S. NAVY IFB 421-22- 62.

ALBAN TRACTOR CO., INC., STATES IN ITS LETTER THAT THE ONLY REASON ADVANCED FOR NOT AWARDING THE CONTRACT TO IT WAS THE CLAIM THAT THE TRANSFER SWITCH WAS NOT DOUBLE THROW AS SPECIFIED IN THE SPECIFICATIONS. IT CONCEDES THAT THE SWITCH DOES NOT MEET THE DEFINITION IN THE AMERICAN INSTITUTE OF ELECTRICAL ENGINEERS (AIEE) HANDBOOK, BUT SINCE IT PURPORTEDLY QUALIFIES AS A DOUBLE THROW DESIGN FOR UNITED STATES PATENT OFFICE PURPOSES IT CONTENDS THAT IT SHOULD NOT HAVE BEEN REJECTED. IN THE ALTERNATIVE, IT OFFERS TO SUBSTITUTE EQUIPMENT THAT ALLEGEDLY WILL COMPLY COMPLETELY WITH THE SPECIFICATIONS. ALSO, IT TAKES EXCEPTION TO AND RECOMMENDS WITHDRAWAL OF THE AWARD MADE TO THE READY-POWER CO. IN THAT THE BID UPON WHICH THE CONTRACT IS BASED IS NOT RESPONSIVE TO THE INVITATION BECAUSE THE UNIT OFFERED IN THE BID EXCEEDED THE MAXIMUM LENGTH DIMENSION SPECIFIED IN THE SPECIFICATIONS.

AS A RESULT OF THE PROTEST LODGED BY ALBAN TRACTOR CO., INC., THE NAVY BUREAU OF SUPPLIES AND ACCOUNTS HAS REVIEWED THE BID OF THE READY POWER CO. AND HAS AGREED THAT THE BID WAS NONRESPONSIVE.

WITH RESPECT TO THE RESPONSIVENESS OF THE BID OF THE ALBAN TRACTOR CO., INC., IT SHOULD BE POINTED OUT THAT ALTHOUGH THE PATENT OFFICE MAY CATEGORIZE CERTAIN TRANSFER SWITCHES AS DOUBLE THROW, ACTUAL DETERMINATIONS AS TO THE PARTICULAR TYPE OF DOUBLE THROW SWITCHES BEST SUITED FOR THE GOVERNMENT'S NEED, AND THE REJECTION OF OTHER TYPES AS UNSUITABLE, ARE PECULIARLY WITHIN THE PROVINCE OF THE PROCURING AGENCIES. SUCH DETERMINATIONS ARE NOT SUBJECT TO QUESTION BY THIS OFFICE UNLESS THEY APPEAR TO BE WHOLLY ARBITRARY AND WITHOUT SUBSTANTIAL BASIS.

IN THE LETTER FROM ALBAN TRACTOR CO., INC., IT WAS CONCEDED THAT THERE WAS IN THE AIEE HANDBOOK A BASIS FOR REJECTION OF THE DOUBLE THROW TRANSFER SWITCH OFFERED BY THE COMPANY. FURTHER, THE ADMINISTRATIVE RECORD SHOWS THAT THE OFFERED SWITCH WAS NOT CONSIDERED DESIRABLE AFTER AN EVALUATION OF IT IN THAT THE APPARATUS WAS CONSIDERED MORE SUSCEPTIBLE TO FAILURE THAN LESS COMPLICATED DESIGNS AND ALSO, IN THE EVENT THE SWITCH HANDLE SHOULD BREAK, TWO CIRCUITS COULD BECOME CLOSED AT ONCE, A CONDITION WHICH THE CONTRACTING FACILITY SEEKS TO GUARD AGAINST AND WHICH IS NOT FEASIBLE IN THE SWITCH DESIRED.

IN VIEW OF THE ALBAN TRACTOR CO., INC., CONCESSION THAT THE OFFERED TRANSFER SWITCH DOES NOT MEET THE AIEE STANDARD, THERE APPEARS TO HAVE BEEN A SUBSTANTIAL BASIS FOR THE ADMINISTRATIVE CONCLUSION TO REJECT THE BID. FURTHER, INASMUCH AS A REVIEW OF THE APPARATUS WAS UNDERTAKEN PRIOR TO THE REJECTION AND THERE WAS DETERMINED TO BE CERTAIN OBJECTIONABLE FEATURES IN THE EQUIPMENT BASED UPON THAT REVIEW, THE DETERMINATION DOES NOT APPEAR TO HAVE BEEN ARBITRARY.

ALSO, A RULE OF LONGSTANDING PRECLUDES CONSIDERATION OF THE ALBAN TRACTOR CO., INC., OFFER TO NOW SUBSTITUTE EQUIPMENT FOR THAT ORIGINALLY OFFERED WITH ITS BID. SEE 17 COMP. GEN. 554, 558.

IN THE CIRCUMSTANCES, WE WILL NOT OBJECT TO THE ADMINISTRATIVE REJECTION OF THE ALBAN TRACTOR CO., INC., BID NOR TO A PROPOSAL MADE BY THE BUREAU OF SUPPLIES AND ACCOUNTS TO CANCEL THE CONTRACT WITH THE READY-POWER CO. AND TO READVERTISE THE PROCUREMENT.