B-156247, JUN. 10, 1965

B-156247, JUN. 10, 1965

TO MR. MAX E. GREENBERG:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1965, PROTESTING ON BEHALF OF YOUR CLIENT, ARTHUR VENNERI COMPANY, AGAINST THE ACTION OF THE DEPARTMENT OF THE ARMY IN AWARDING A CONTRACT TO HENSEL PHELPS CONSTRUCTION CO. PURSUANT TO INVITATION NO. ENG-25-066-65 53, AS AMENDED.

THE UNITED STATES ARMY ENGINEER DISTRICT, OMAHA, CORPS OF ENGINEERS, OMAHA, NEBRASKA, BY THE REFERRED-TO INVITATION REQUESTED BIDS FOR THE CONSTRUCTION OF AN E. M. BARRACKS COMPLEX AT FORT CARSON, COLORADO. THE WORK COVERS THE CONSTRUCTION OF 27 BUILDINGS CONSISTING OF ENLISTED MEN'S BARRACKS; MESS, ADMINISTRATION, HEADQUARTERS AND POST EXCHANGE BUILDINGS; GYMNASIUM; CHAPEL AND GROUP HEATING PLANT. FOR BIDDING PURPOSES, THE WORK WAS DIVIDED INTO THREE SCHEDULES, SCHEDULE I BEING FOR ALL BUILDINGS EXCEPT THE HEATING PLANT, SCHEDULE II, THE HEATING PLANT, AND SCHEDULE III, A COMBINATION OF SCHEDULES I AND II. BIDDERS WERE PERMITTED TO BID ON SCHEDULES I, II, III, OR ANY COMBINATION.

FOURTEEN BIDS WERE RECEIVED AND OPENED ON DECEMBER 22, 1964. THE LOW BIDDER WAS HENSEL PHELPS CONSTRUCTION CO., HEREINAFTER CALLED PHELPS, WHOSE BID ON SCHEDULE III WAS $10,464,495. PHELPS DID NOT BID ON SCHEDULE II AND BECAUSE ITS BID ON SCHEDULE I WAS INCOMPLETE IT WAS CONSIDERED AS NONRESPONSIVE AS TO THAT SCHEDULE. YOUR CLIENT, HEREINAFTER REFERRED TO AS VENNERI, SUBMITTED BIDS ON ALL THREE SCHEDULES. VENNERI'S BID ON SCHEDULE III WAS IN THE AMOUNT OF $10,942,075. THE BID OF PHELPS ON SCHEDULE III WAS ACCEPTED ON FEBRUARY 25, 1965, AND THE RECORD INDICATES THAT YOUR CLIENT WAS NOTIFIED OF THE AWARD OF THE CONTRACT TO PHELPS.

THE RECORD INDICATES THAT BY TELEGRAM DATED JANUARY 5, 1965, VENNERI ADVISED THE CONTRACTING OFFICE THAT IT HAD REASON TO BELIEVE THAT IN ITS BID PHELPS DESIGNATED A BOILER (HOT WATER GENERATOR) MANUFACTURER WHO DOES NOT MAKE A BOILER WHICH COMPLIES WITH THE REQUIREMENTS SPECIFIED IN PAGES BF-10 THROUGH -14 OF THE SPECIFICATIONS AND THAT IF THIS IS TRUE THE LOW BID OF PHELPS MUST BE CONSIDERED AS BEING NONRESPONSIVE. IN A LETTER DATED JANUARY 13, 1965, TO THE DISTRICT ENGINEER (CONTRACTING OFFICER) YOU CONTEND, IN EFFECT, THAT THE GENERATORS MANUFACTURED BY THE UNION IRON WORKS WHICH PHELPS OFFERED TO FURNISH DO NOT QUALIFY UNDER THE PROVISIONS OF PARAGRAPH 27A-05A OF THE SPECIFICATIONS WHICH PROVIDE THAT THE GENERATORS "SHALL BE THE PRODUCT OF A MANUFACTURER WHO CAN SHOW INSTALLATION AND OPERATION OF GENERATORS OF THE DESIGN AND TYPE SPECIFIED HEREIN, WHICH HAVE BEEN INSTALLED AND OPERATING SATISFACTORILY FOR AT LEAST TWO YEARS, AT A CAPACITY OF AT LEAST 30 MILLION BTU'S PER HOUR AT A LEAVING WATER TEMPERATURE OF AT LEAST 350 DEGREE F.' YOU ALSO CONTEND THAT THE GENERATORS OFFERED DO NOT COMPLY WITH THE PROVISIONS OF PARAGRAPH 27A 05F (1) IN THAT THE CLOSURE OF THE PROFFERED GENERATOR HAS NO MACHINED CONTACT SURFACE; THAT THE GENERATOR HAS HEADERS IN THE GENERATOR'S REFRACTORY CONTRARY TO THE SPECIFICATIONS; AND WHILE THE WATER TUBES ARE CONNECTED BY ROLLING THEY ARE ROUND RATHER THAN RECTANGULAR OR OVAL AS REQUIRED.

YOU FURTHER CONTEND THAT THE TOTAL BOILER HEATING SURFACE WOULD BE APPROXIMATELY 4,688 SQUARE FEET, WHEREAS PARAGRAPH 27A-05C REQUIRES THAT THE TOTAL BOILER HEATING SURFACE BE NOT LESS THAN 5,200 SQUARE FEET.

THE TERMS OF THE INVITATION REQUIRED BIDDERS TO SUBMIT CERTAIN DATA WITH THEIR BIDS WHICH WOULD BE MADE A PART OF THE CONTRACT. INCLUDED IN THE DATA REQUIRED TO BE SUBMITTED WERE ITEMS 7 AND 8, GENERATOR MANUFACTURER AND GENERATOR MANUFACTURER'S TYPE, APPEARING ON PAGE BF 11 OF THE SPECIFICATIONS. THE BID OF YOUR CLIENT, VENNERI, INDICATED THAT IT INTENDED TO FURNISH A HOT WATER GENERATOR MANUFACTURED BY BOILER ENGINEERING AND SUPPLY CO., OF THE TYPE KNOWN AS ,FLO-KONTROLD 4OV-SB.' THE BID OF PHELPS INDICATED THAT IT INTENDED TO FURNISH A GENERATOR MANUFACTURED BY UNION IRON WORKS, DIVISION OF RILEY STOKER CORP., FCH-40 TYPE.

THE INVITATION AND BID FORM CONTAINED A NUMBER OF STATEMENTS CONCERNING THE DATA TO BE FURNISHED BY BIDDERS. NOTE 5B ON PAGE BF-9 OF THE INVITATION PROVIDES FOR AN EXAMINATION OF THE BID DATA FOR GENERAL VERIFICATION THAT THE DATA SUBMITTED MEETS THE SPECIFICATIONS. THAT PARAGRAPH ALSO PROVIDES THAT THE CONTRACTOR IS NOT RELEASED FROM COMPLIANCE WITH ALL OF THE SPECIFICATION REQUIREMENTS BY AWARD TO A BIDDER WHO HAS FURNISHED DATA NOT CONFORMING TO THE SPECIFICATIONS. SUBPARAGRAPH "C" OF THE SAME NOTE, THE RIGHT IS RESERVED TO THE CONTRACTING OFFICER TO WAIVE MINOR DEVIATIONS OF THE BID DATA FROM DETAILED SPECIFICATION REQUIREMENTS ALONG WITH A SIMILAR WAIVER IN CONNECTION WITH NONCRITICAL ITEMS. SPECIFICATION PARAGRAPH 27A-03 PROVIDES THAT "ITEMS OF EQUIPMENT, AS ASSEMBLED, SHALL BE ESSENTIALLY SIMILAR TO EQUIPMENT THAT HAS BEEN IN SATISFACTORY USE AT LEAST TWO YEARS.' SPECIFICATION PARAGRAPH 27A-05 PROVIDES THAT THE "GENERATORS SHALL BE THE PRODUCT OF A MANUFACTURER WHO CAN SHOW INSTALLATION AND OPERATION OF GENERATORS OF THE DESIGN AND TYPE SPECIFIED HEREIN, WHICH HAVE BEEN INSTALLED AND OPERATING SATISFACTORILY FOR AT LEAST TWO YEARS, AT A CAPACITY OF AT LEAST 30 MILLION BTU'S PER HOUR AT A LEAVING WATER TEMPERATURE OF AT LEAST 350 DEGREE F.'

REGARDING YOUR CONTENTION THAT THE GENERATORS PROPOSED TO BE FURNISHED BY PHELPS DO NOT COMPLY WITH THE SPECIFICATIONS BECAUSE THE CLOSURE FOR ACCESS HOLES IN THE HEADER HAS NO MACHINED CONTACT SURFACE, THE ADMINISTRATIVE OFFICE REPORTS THAT SINCE WELDED TUBES WILL BE FURNISHED BY PHELPS ACCESS OPENINGS WILL NOT BE REQUIRED. IT IS ALSO POINTED OUT THAT EACH END OF EACH HEADER HAS A GASKETED ACCESS FLANGE TO PROVIDE ACCESS FOR INSPECTION AND CLEANING. WITH RESPECT TO YOUR CONTENTION THAT THE GENERATOR OFFERED HAS HEADERS IN THE GENERATOR'S REFRACTORY CONTRARY TO THE SPECIFICATIONS, IT IS REPORTED THAT THE DRAWING (PR.R. 1555-A) SUBMITTED BY PHELPS, AS WELL AS THE CURRENT CATALOGS IN THE ADMINISTRATIVE OFFICE, INDICATES EXTERNAL HEADERS WILL BE FURNISHED AS SPECIFIED. REGARD TO YOUR CONTENTION THAT THE WATER TUBES ARE ROLLED INTO A ROUND HEADER WHICH DOES NOT COMPLY WITH THE SPECIFICATIONS, IT IS REPORTED THAT ON THE BOILERS PROPOSED TO BE FURNISHED THE STUB TUBE ENDS ARE WELDED INTO THE HEADERS AFTER WHICH THE HEADERS ARE MOVED INTO PLACE AND THE TUBE WELDED TO THE STUB ENDS. SINCE THE TUBES ARE NEITHER ORIFICED NOR ROLLED, THERE IS NO NEED FOR ACCESS OTHER THAN THE FLANGED OPENINGS AT EACH END OF EACH HEADER. REGARDING THE BOILER HEATING SURFACE, IT IS REPORTED THAT CLARIFIED DATA, INCLUDING MANUFACTURER'S DRAWING NUMBER P.R.1555-A (REFERENCED IN THE ORIGINAL DATA), SHOWED THAT THE SURFACE REQUIREMENTS SPECIFIED WERE MET.

REGARDING THE EXPERIENCE REQUIREMENTS OF SPECIFICATION PARAGRAPH 27A-05 WHICH YOU ALLEGE ARE NOT MET BY UNION IRON WORKS GENERATORS OFFERED BY PHELPS, IT MAY BE POINTED OUT THAT NEITHER THE PHELPS NOR THE VENNERI GENERATORS WOULD LITERALLY COMPLY WITH THAT PARAGRAPH OF THE SPECIFICATION. HOWEVER, AS ABOVE INDICATED, SPECIFICATION PARAGRAPH 27A- 03 DEALING WITH MATERIALS AND EQUIPMENT PROVIDES THAT "ITEMS OF EQUIPMENT, AS ASSEMBLED, SHALL BE ESSENTIALLY SIMILAR TO EQUIPMENT THAT HAS BEEN IN SATISFACTORY USE AT LEAST TWO YEARS.' THE TWO SPECIFICATION PARAGRAPHS ARE AT LEAST SOMEWHAT AT VARIANCE. THE ADMINISTRATIVE OFFICE REPORTS THAT IT IS SATISFIED THAT THE UNION IRON WORKS GENERATORS WOULD SATISFACTORILY PERFORM. ALTHOUGH THIS MANUFACTURER DOES NOT HAVE TWO YEARS SATISFACTORY OPERATION OF GENERATORS AT A CAPACITY OF 30,000,000 B.T.U.-S, IT IS NOTED THAT IT DOES HAVE TWO YEARS SATISFACTORY OPERATION OF GENERATORS OF SIMILAR DESIGN BUT OF A CAPACITY OF 25,000,000 B.T.U.-S. IN VIEW THEREOF, AND SINCE IT APPEARS THAT PHELPS WILL FURNISH GENERATORS ESSENTIALLY SIMILAR TO THOSE WHICH HAVE PERFORMED SATISFACTORILY FOR TWO YEARS, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE AWARD OF THE CONTRACT, PARTICULARLY SINCE IT IS REPORTED THAT THE EXPERIENCE REQUIREMENT OF THE SPECIFICATIONS WILL BE MET BY THE TIME THE GENERATORS ARE FABRICATED AND READY FOR INSTALLATION AT THE SITE.

ACCORDINGLY, WE FIND NO LEGAL BASIS TO DISTURB THE AWARD MADE TO HENSEL PHELPS CONSTRUCTION CO. ..END :