B-151793, AUG. 7, 1963

B-151793, AUG. 7, 1963

TO ELCEN METAL PRODUCTS COMPANY:

WE REFER AGAIN TO YOUR LETTER OF JUNE 12, 1963, WITH ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR BID FOR CLEVIS HANGERS UNDER TVA INVITATION FOR BIDS NO. 58-98848.

ITEMS 50 THROUGH 59 OF THE INVITATION SOLICITED BIDS FOR:

"PIPE HANGER - ADJUSTABLE WROUGHT CLEVIS HANGER, CRINNELL FIGURE 260 OR EQUAL.'

YOUR LOW BID FOR THESE ITEMS OFFERED HANGERS OF YOUR OWN MANUFACTURE AS THE EQUAL OF THE NAMED BRAND. YOUR HANGERS WERE REJECTED ON THE GROUND THAT THE LOAD RATINGS AS SHOWN IN YOUR CATALOG FOR YOUR HANGERS WERE NOT EQUAL TO THE LOAD RATINGS FOR THE NAMED BRAND. YOU CONTEND THAT YOUR HANGERS ARE IN FACT EQUAL AND THE DIFFERENCE BETWEEN THE TWO SETS OF RATINGS RESULTS SIMPLY FROM THE FACT THAT YOU HAVE ALLOWED A GREATER SAFETY FACTOR. YOU NOTE ALSO THAT YOU HAD PREVIOUSLY BEEN AWARDED A CONTRACT FOR YOUR HANGERS UNDER THE SAME SPECIFICATION.

THE TVA IN A REPORT ON THE MATTER DATED JULY 10, 1963, TAKES THE POSITION THAT IT CANNOT SAFELY RELY ON LOAD RATINGS IN EXCESS OF THOSE SHOWN IN THE MANUFACTURER'S CATALOG WHETHER OR NOT THE RATINGS ARE DESCRIBED AS "RECOMMENDED" RATHER THAN "MAXIMUM.' IT IS FURTHER NOTED THAT THE MANUFACTURER'S CATALOG RATING FOR THE NAMED BRAND IS STATED SPECIFICALLY IN TERMS OF "MAXIMUM RECOMMENDED LOAD WITH MINIMUM SAFETY FACTOR OF 5.' IT IS STATED THAT THE CATALOG LOAD RATING FOR YOUR HANGERS VARIES FROM 38 TO 78 PERCENT OF THOSE OF THE NAMED BRAND. FINALLY THE REPORT TATES:

"* * * THESE HANGERS ARE FOR USE IN THE STEAM PIPING SYSTEM OF A VERY LARGE POWER PLANT AND THE ELCEN HANGERS WITH THEIR LOWER LOAD RATING WERE NOT CONSIDERED THE EQUAL OF THOSE SPECIFIED AND WERE ACCORDINGLY REJECTED.'

WITH RESPECT TO THE HANGERS PURCHASED FROM YOUR FIRM UNDER AN EARLIER CONTRACT, THE REPORT STATES THAT THE CONTRACT WAS AWARDED THROUGH INADVERTENCE WITHOUT REALIZING THAT THEY WERE NOT IN FACT THE EQUAL OF THOSE SPECIFIED.

IT IS WELL RECOGNIZED THAT IN ADVERTISED PROCUREMENTS GENERALLY THE PROCURING AGENCY HAS THE PRIMARY RESPONSIBILITY AND AUTHORITY TO DECIDE FACTUALLY WHETHER A GIVEN PRODUCT CONFORMS TO THE ADVERTISED SPECIFICATIONS. 40 COMP. GEN. 35, 17 COMP. GEN. 554. IN THIS CASE THE PROCURING AGENCY HAS DETERMINED THAT YOUR HANGERS DO NOT CONFORM.

IT MUST ALSO BE NOTED THAT TVA PROCURES ITS REQUIREMENTS UNDER ITS OWN ORGANIC ACT, SECTION 9 (B) OF WHICH, 16 U.S.C. 831H, PROVIDES IN PERTINENT PART AS FOLLOWS:

"ALL PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES, EXCEPT FOR PERSONAL SERVICES, MADE BY THE CORPORATION, SHALL BE MADE AFTER ADVERTISING, IN SUCH MANNER AND AT SUCH TIMES SUFFICIENTLY IN ADVANCE OF OPENING BIDS, AS THE BOARD SHALL DETERMINE TO BE ADEQUATE TO INSURE NOTICE AND OPPORTUNITY FOR COMPETITION * * * PROVIDED FURTHER. THAT IN COMPARING BIDS AND IN MAKING AWARDS THE BOARD MAY CONSIDER SUCH FACTORS AS RELATIVE QUALITY AND ADAPTABILITY OF SUPPLIES OR SERVICES * * *.'

IN VIEW OF THE DETERMINATION OF THE PROCURING AGENCY AND THE CITED PROVISION OF LAW THERE APPEARS TO BE NO BASIS UPON WHICH WE COULD LEGALLY OBJECT TO THE ACTION TAKEN IN THIS MATTER IN THE ABSENCE OF A CLEAR SHOWING, WHICH HAS NOT BEEN MADE OR ALLEGED, THAT THE SELECTION OF THE SUCCESSFUL BIDDER WAS MOTIVATED BY BAD FAITH OR FRAUD. B 141933, MARCH 24, 1960.