B-152440, DEC. 19, 1963

B-152440: Dec 19, 1963

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TO THE COOPER-BESSEMER CORPORATION: FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING INVITATION FOR BIDS NO. YOU STATE THAT WHILE COOPER-BESSEMER COULD HAVE SUBMITTED A BID WHICH WOULD HAVE COMPLIED WITH THE OPERATION REQUIREMENTS SET FORTH IN THE INVITATION. IT WAS PREVENTED FROM SUBMITTING A BID BY CERTAIN PARTICULAR RESTRICTIONS WHICH ARE ALLEGED NOT TO BE ESSENTIAL TO THE SATISFACTORY OVER-ALL OPERATION OF THE VESSEL AS DESCRIBED IN THE PURCHASE DESCRIPTION. IT IS CONTENDED THAT THE RESTRICTIONS ARE UNDULY RESTRICTIVE AND THAT. PARAGRAPH 1.2 OF THE PURCHASE DESCRIPTION PROVIDES: "NO PROPULSION COMPONENTS WILL BE CONSIDERED EXCEPT ONE THAT IS A PRODUCT OF AMERICAN MANUFACTURE BY A FIRM REGULARLY ENGAGED IN THEIR MANUFACTURE.

B-152440, DEC. 19, 1963

TO THE COOPER-BESSEMER CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING INVITATION FOR BIDS NO. CG-60,217-A ISSUED BY THE UNITED STATES COAST GUARD FOR MAIN PROPULSION MACHINERY PLANT, DIESEL-GAS TURBINE, IN STRICT ACCORDANCE WITH THE ATTACHED "PURCHASE DESCRIPTION FOR MAIN PROPULSION MACHINERY PLANT FOR 350 FOOT CLASS WPC VESSEL" NO. ENE-25-63 DATED 7 JUNE 1963.

YOU STATE THAT WHILE COOPER-BESSEMER COULD HAVE SUBMITTED A BID WHICH WOULD HAVE COMPLIED WITH THE OPERATION REQUIREMENTS SET FORTH IN THE INVITATION, IT WAS PREVENTED FROM SUBMITTING A BID BY CERTAIN PARTICULAR RESTRICTIONS WHICH ARE ALLEGED NOT TO BE ESSENTIAL TO THE SATISFACTORY OVER-ALL OPERATION OF THE VESSEL AS DESCRIBED IN THE PURCHASE DESCRIPTION. THE PRIMARY RESTRICTIONS WHICH PREVENTED COOPER BESSEMER FROM SUBMITTING A RESPONSIVE BID PERTAIN TO (1) OPERATING EXPERIENCE, AND (2) WEIGHT. IT IS CONTENDED THAT THE RESTRICTIONS ARE UNDULY RESTRICTIVE AND THAT, THEREFORE, THE INVITATION SHOULD BE CANCELLED AND THE PURCHASE DESCRIPTION AMENDED SO AS TO PERMIT FREE AND OPEN COMPETITION.

WITH RESPECT TO EXPERIENCE SECTION A, PARAGRAPH 1.2 OF THE PURCHASE DESCRIPTION PROVIDES:

"NO PROPULSION COMPONENTS WILL BE CONSIDERED EXCEPT ONE THAT IS A PRODUCT OF AMERICAN MANUFACTURE BY A FIRM REGULARLY ENGAGED IN THEIR MANUFACTURE. THE DIESEL ENGINE AND GAS TURBINE MUST BE OF A BASIC MODEL WHICH HAS BEEN TESTED AND USED IN INDUSTRIAL MILITARY OR MARINE SERVICE WITHIN FIVE (5) PERCENT OF 3500 BHP AND 18000 BHP RESPECTIVELY. THE RIGHT IS RESERVED TO REJECT BIDS WHERE, IN THE OPINION OF THE COAST GUARD, THE MANUFACTURER HAS NOT HAD ADEQUATE EXPERIENCE IN THE MANUFACTURE OF THE TYPE AND SIZE OF THE PRODUCTS OFFERED.'

PARAGRAPH 3.5, SECTION A, LIMITS THE WEIGHT OF EACH OF THE MAJOR COMPONENTS OF THE PROPULSION MACHINERY RATHER THAN LIMITING ONLY THE OVER- ALL WEIGHT OF ALL THE COMPONENTS.

YOU ARGUE THAT THESE RESTRICTIONS WERE NOT APPLIED IN THE PURCHASE DESCRIPTION (ENE-32-61, DATED 9 JUNE 1961) FOR THE 210 FOOT CLASS WPC VESSEL, AND THAT YOU KNOW OF NO DISTINCTION BETWEEN THE 350 FOOT CLASS VESSEL AND THE 210 FOOT CLASS VESSEL WHICH REQUIRES MORE EXPERIENCE ON THE DIESEL ENGINES AND GAS TURBINES FOR THE ONE THAN FOR THE OTHER. IT IS FURTHER STATED THAT THE EXPERIENCE CLAUSE PRECLUDES COOPER-BESSEMER FROM OFFERING ITS GSV-16-T ENGINE, EVEN THOUGH BUILT FOR, TESTED AND ACCEPTED BY THE UNITED STATES NAVY AT EXACTLY THE SAME RATING REQUIRED HERE, AND THAT IT ALSO PRECLUDES COOPER-BESSEMER FROM OFFERING THE RT 165 TURBINE UTILIZING A PRATT AND WHITNEY AIRCRAFT CG-4 GENERATOR, WHICH HAS UNDERGONE EXTENSIVE TESTING AT THE UNITED STATES NAVY BOILER TEST LABORATORY, PHILADELPHIA, PENNSYLVANIA. YOU CONTEND THAT THE GSV ENGINE HAS BEEN, AND IS NOW BEING, CONSISTENTLY OPERATED FOR THE PURPOSE OF DRIVING CENTRIFUGAL COMPRESSORS, THAT WHILE SUCH OPERATION IS NOT WITHIN FIVE PERCENT OF THE REQUIRED RATING, IT IS A CONTINUING COMMERCIAL USE HAVING WEIGHT AS TO ENGINE OPERABILITY, EXPERIENCE AND LIKELIHOOD OF SUCCESSFUL PERFORMANCE, AND SUCH EXPERIENCE IS ENTITLED TO CONSIDERATION.

IT IS CONCEDED THAT COOPER-BESSEMER'S DESIGN FOR THE POWER TURBINE PORTION OF THE GAS TURBINE UNIT HAS NOT BEEN TESTED, ALTHOUGH IT IS STATED THAT THE GAS GENERATOR PORTION HAS BEEN TESTED. NEVERTHELESS, YOU CLAIM THAT THIS SAME 18,000 HORSEPOWER CONCEPT HAS BEEN THOROUGHLY PROVEN AT LOWER RATINGS AND IS PERFORMING SATISFACTORILY IN ALL COOPER BESSEMER JET- POWERED GAS TURBINE INSTALLATIONS ACTUALLY IN SERVICE; THAT THIS LOAD TURBINE DESIGN IS A SIMPLE AND NATURAL ESCALATION FROM EXTENSIVE OPERATING EXPERIENCE, AND THAT COOPER-BESSEMER JET-POWER EXPERIENCE DEMONSTRATES A SUFFICIENT LIKELIHOOD THAT ITS LOAD TURBINE WILL BE READY FOR SERVICE AT THE TIME OF COMMISSIONING OF THE VESSEL EQUALLY WITH ANY OTHER MANUFACTURER UNDER THE EXPERIENCE CLAUSE.

WITH RESPECT TO WEIGHT REQUIREMENTS, IT IS CONTENDED THAT WHILE THE GSV ENGINE EXCEEDS THE ENGINE WEIGHT LIMIT, THIS EXCESS WEIGHT IS TAKEN CARE OF BY LESS WEIGHT IN THE OTHER COMPONENTS AND THAT THE OVER-ALL WEIGHT IS THE PRIMARY CONSIDERATION.

THE RECORD SHOWS THAT THE COAST GUARD WAS FULLY AWARE OF THE EXPERIENCE AND THE WEIGHT OF THE GSV-16-T ENGINE AT THE TIME THE SPECIFICATION REQUIREMENTS WERE DRAWN. THE COAST GUARD REPORTS THAT THE EXPERIENCE CLAUSE FOR THE 210 FOOT CUTTER WAS NOT AS RIGID AS THAT HERE INVOLVED BECAUSE THE COST INVOLVED ON THE 210 FOOT PLANT WAS MUCH LESS AND A CERTAIN AMOUNT OF DEVELOPMENT WAS FELT TO BE POSSIBLE WITH A 2500 HORSEPOWER PLANT. HOWEVER, IN VIEW OF THE HIGH COST OF THE 350 FOOT CUTTER AND A POWER PLANT IN EXCESS OF 20,000 HORSEPOWER PER SHAFT, THE COAST GUARD HAD NEITHER THE FUNDS NOR TIME TO SUPPORT A DEVELOPMENT PROJECT ON SUCH A LARGE SCALE. THE FUND SITUATION AND THE CRITICAL NEED FOR NEW VESSELS REQUIRED THAT THE FIRST VESSEL OF THE 350 FOOT CLASS BE AS NEARLY AS POSSIBLE OPERATIONALLY READY FOR SERVICE IMMEDIATELY UPON ITS COMMISSIONING, AND THAT THEREFORE, THESE SPECIFICATIONS WERE SO DRAWN AS TO SPECIFICALLY EXCLUDE ANY MACHINERY COMPONENTS WHICH HAD NOT BEEN TESTED AT THE REQUIRED POWER AND WERE NOT IN INDUSTRIAL USE. IN VIEW OF THE LIMITED FIELD IN THE POWERS INVOLVED, IT WAS NOT MADE A CONDITION THAT THE COMPONENTS SHOULD HAVE BEEN TESTED AT SEA.

THE COAST GUARD TAKES EXCEPTION TO YOUR CLAIMS THAT THE 18,000 HORSEPOWER "CONCEPT" HAS BEEN PROVEN AT LOWER RATINGS AND THAT THE LOAD TURBINE DESIGN IS A SIMPLE AND NATURAL ESCALATION FROM EXTENSIVE OPERATING EXPERIENCE. IT IS REPORTED THAT THERE IS NO SUCH THING AS A SIMPLE AND NATURAL ESCALATION FROM A 10,000 HORSEPOWER PLANT TO A 18,000 HORSEPOWER PLANT. WITH RESPECT TO THE GSV ENGINE, IT IS REPORTED THAT ONLY ONE ENGINE OF THIS DESIGN HAS BEEN BUILT BY COOPER BESSEMER; THAT THE ONE ENGINE IN QUESTION IS PRESENTLY IN COOPER BESSEMER PLANT AND HAS NOT BEEN PUT INTO USE UNDER LOAD CONDITIONS COMPARABLE TO THOSE REQUIRED HERE, AND THAT THEREFORE IT WAS CONSIDERED UNWISE TO ALLOW FOR A SHIP THE SIZE OF THE 350 FOOT CUTTER THIS ENGINE, WHICH WAS CONSIDERED AS A "ONE OF A KIND" ENGINE, NOT THOROUGHLY TESTED AND PROVEN.

THE COAST GUARD FURTHER REPORTS THAT THE DESIGNERS OF THE 350 FOOT CUTTER WISH TO GUARD AGAINST HAVING A WEIGHT PROBLEM, CAUSED BY MACHINERY; THAT EXPERIENCE ON THE PLANT FOR THE 210 FOOT CUTTER INDICATED THAT A TOTAL WEIGHT REQUIREMENT FOR THE PROPULSION PLANT WAS NOT SUFFICIENT AS IT WAS QUITE POSSIBLE TO USE A HEAVY COMPONENT AS ONE ELEMENT AND TO MAKE UP FOR IT BY SLIGHTING THE WEIGHT IN OTHER COMPONENTS. IN ORDER TO GUARD AGAINST SUCH A SITUATION, IT WAS CONSIDERED NECESSARY TO PROVIDE FOR INDIVIDUAL MAXIMUM WEIGHTS FOR THE DIESEL ENGINE, THE GAS TURBINE, AND THE REDUCTION GEAR, RATHER THAN AN OVER-ALL MAXIMUM TOTAL WEIGHT FOR THE THREE COMPONENTS.

IT CONSISTENTLY HAS BEEN HELD THAT IT IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY TO DRAFT SPECIFICATIONS REFLECTING ITS NEEDS. WHERE HIGHLY SPECIALIZED EQUIPMENT IS BEING PURCHASED, WE HAVE APPROVED THE PRESCRIPTION BY THE BID INVITATION OF SUCH MINIMUM ACTUAL SERVICE STANDARDS AS THOSE REQUIRED IN THIS INSTANCE. DETERMINATIONS WITH RESPECT TO THE TYPES AND EXTENT OF ACTUAL USE TO BE REQUIRED TO ESTABLISH SATISFACTORY PERFORMANCE AND RELIABILITY OF EQUIPMENT OFFERED TO THE GOVERNMENT ARE, IN THE FIRST INSTANCE, WITHIN THE PROVINCE OF THE ADMINISTRATIVE AGENCY, AND IN THE ABSENCE OF CONVINCING EVIDENCE THAT THE REQUIREMENTS IMPOSED ARE CLEARLY IN EXCESS OF WHAT COULD REASONABLY AND IN GOOD FAITH BE CONSIDERED NECESSARY TO MEET THE AGENCY'S NEEDS AND ADEQUATELY PROTECT THE INTEREST OF THE GOVERNMENT, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE ADMINISTRATIVE AGENCY. SEE 26 COMP. GEN. 676, 39 ID. 173.

IN THE INSTANT CASE THE COAST GUARD DETERMINED THAT THE EXPERIENCE REQUIREMENT, MAXIMUM WEIGHT FOR INDIVIDUAL COMPONENTS, AND OTHER STATED REQUIREMENTS FOR THE POWER PLANT WERE NECESSARY TO INSURE THAT THE 350 FOOT WPC VESSEL, WHICH WILL COST IN EXCESS OF $10,000,000, WILL BE OPERATIONAL UPON COMMISSIONING AND FOR CONTINUED RELIABLE PERFORMANCE. ITS DETERMINATIONS WERE MADE APPARENTLY WITH ADEQUATE KNOWLEDGE OF POSSIBLE ALTERNATE ENGINES, SUCH AS YOURS, WHICH WOULD THEREBY BE EXCLUDED, AND REPRESENT CONSIDERED TECHNICAL JUDGMENTS WITH RESPECT TO THE MERITS THEREOF AND THE PROBABILITIES OF ACHIEVING THE DESIRED RELIABILITY OF PERFORMANCE WITH THE MINIMUM OF CORRECTION OR MODIFICATION OF THE PROPULSION MACHINERY.

IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR GROSS ERROR, WE FIND NO LEGAL BASIS TO QUESTION SUCH DETERMINATIONS. YOUR PROTEST MUST THEREFORE BE DENIED.