B-157169, OCT. 28, 1965

B-157169: Oct 28, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JULY 6 AND 19. YOU CONTEND THAT YOU WERE THE LOWEST RESPONSIVE BIDDER UNDER BOTH INVITATIONS. INVITATION FOR BIDS NO. 75-6-24-65 WAS ISSUED ON JUNE 3. BIDS WERE OPENED ON JUNE 24. THE FOLLOWING FIVE BIDS WERE RECEIVED: CHART R. 711.00 ALL THREE BIDS BELOW THE DATA PROCESSING BID WERE DECLARED NONRESPONSIVE FOR FAILING TO COMPLY WITH THE REQUIREMENT OF PARAGRAPH 4/1) OF THE SPECIFICATIONS WHICH PROVIDES: "COMPLETED FLOOR SYSTEM DEAD LOAD SHALL NOT EXCEED 6 LBS. YOUR BID WAS FOUND NONRESPONSIVE IN THIS RESPECT BECAUSE OF THE FOLLOWING LANGUAGE FROM THE COVER LETTER DATED JUNE 24. YOU FIRST CONTEND THAT THIS DEVIATION IS SO INSIGNIFICANT WHEN COMPARED TO THE WIDE DIFFERENCE BETWEEN YOUR BID PRICE AND THAT OF DATA PROCESSING THAT.

B-157169, OCT. 28, 1965

TO DON MENDENHALL, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JULY 6 AND 19, 1965, PROTESTING AGAINST THE AWARD OF CONTRACTS TO ANY OTHER BIDDER BY THE ROBERT A. TAFT SANITARY ENGINEERING CENTER, U.S. PUBLIC HEALTH SERVICE, UNDER INVITATIONS FOR BIDS NOS. 77-6-24-65 AND 76-6-25-65. YOU CONTEND THAT YOU WERE THE LOWEST RESPONSIVE BIDDER UNDER BOTH INVITATIONS, WHEREAS THE PROCURING ACTIVITY FOUND YOUR BIDS NONRESPONSIVE TO THE SPECIFICATIONS OF BOTH INVITATIONS AND AWARDED A CONTRACT UNDER EACH INVITATION TO DATA PROCESSING SUPPLIES.

INVITATION FOR BIDS NO. 75-6-24-65 WAS ISSUED ON JUNE 3, 1965, AND CALLED FOR BIDS ON FURNISHING ALL LABOR, MATERIAL, AND EQUIPMENT NECESSARY FOR INSTALLATION OF RAISED FLOORING FOR THE COMPUTER CENTER AT THE NEW SANITARY ENGINEERING CENTER, CINCINNATI, OHIO. BIDS WERE OPENED ON JUNE 24, 1965, AND THE FOLLOWING FIVE BIDS WERE RECEIVED:

CHART

R. B. BRUNEMANN AND SONS, INC. $ 6,062.00

DON MENDENHALL, INC. 6,137.00

CINCINNATI FLOOR COMPANY 6,834.00

DATA PROCESSING SUPPLIES 8,370.00

APACHE FLOORING COMPANY 11,711.00

ALL THREE BIDS BELOW THE DATA PROCESSING BID WERE DECLARED NONRESPONSIVE FOR FAILING TO COMPLY WITH THE REQUIREMENT OF PARAGRAPH 4/1) OF THE SPECIFICATIONS WHICH PROVIDES:

"COMPLETED FLOOR SYSTEM DEAD LOAD SHALL NOT EXCEED 6 LBS. PER SQUARE FOOT, NOT INCLUDING WEIGHT OF FLOOR SURFACE MATERIAL.'

YOUR BID WAS FOUND NONRESPONSIVE IN THIS RESPECT BECAUSE OF THE FOLLOWING LANGUAGE FROM THE COVER LETTER DATED JUNE 24, 1965, ACCOMPANYING YOUR BID:

"OUR COMPLETED FLOOR SYSTEM DEAD LOAD WOULD BE APPROXIMATELY 7.5LBS, PER SQUARE FOOT, EXCLUDING FLOOR SURFACING MATERIAL.'

YOU FIRST CONTEND THAT THIS DEVIATION IS SO INSIGNIFICANT WHEN COMPARED TO THE WIDE DIFFERENCE BETWEEN YOUR BID PRICE AND THAT OF DATA PROCESSING THAT, PRESUMABLY, IT SHOULD BE WAIVED. SECONDLY, YOU STATE THIS WAS A "CLOSED SPECIFICATION" WHICH ALLOWED DATA PROCESSING TO BID ABOVE THE COMPETITIVE RANGE OF ABOUT $6300. IN VIEW OF THE SO-CALLED "CLOSED SPECIFICATION," YOU CLAIM THAT THIS PROCUREMENT WAS, IN EFFECT, A SOLE- SOURCE PROCUREMENT.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER THE GOODS OR SERVICES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY FOR THE ADMINISTRATIVE AGENCY INVOLVED. 17 COMP. GEN. 554. THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. COMP. GEN. 368; 33 ID. 586.

THE RECORD BEFORE THIS OFFICE INDICATES THAT THE SPECIFICATIONS WERE DEVELOPED TO PROVIDE RAISED FLOORING COMPARABLE TO THE RAISED FLOORING PROVEN SATISFACTORY IN THE PRESENT COMPUTER CENTER IN CINCINNATI. THE PRESENT FLOORING IS OF ALUMINUM DIE CAST CONSTRUCTION AND THE FLOOR SYSTEM DEAD LOAD (EXCLUDING FLOOR SURFACE MATERIAL) DOES NOT EXCEED 6 LBS./SQ. FT. SINCE 1300 SQ.FT. OF THE 6 LBS./SQ.FT. FLOORING WEIGHS APPROXIMATELY 4 TONS, IT WAS DETERMINED THAT LIMITING THE FLOOR SYSTEM DEAD LOAD (EXCLUDING FLOOR SURFACE MATERIAL) TO 6 LBS./-SQ.FT. WAS TECHNICALLY DESIRABLE AND NECESSARY AS THE CENTER WAS ALREADY APPROACHING THE MAXIMUM PERMISSIBLE DEAD FLOOR LOAD OF THE EXISTING FLOOR. HOWEVER, IT WAS DECIDED NOT TO REQUIRE ALUMINUM DIE CAST CONSTRUCTION, AS IN THE PRESENT FLOOR, AND RESTRICT COMPETITION, AS OTHER MATERIALS (E.G., MAGNESIUM AND OTHER ALLOYS IN THE LIGHT WEIGHT GROUP) CAN PROVIDE EQUALLY SATISFACTORY STRENGTH, RIGIDITY, AND RESISTANCE TO CORROSION, WITHOUT UNNECESSARILY LOADING THE FLOOR.

ALTHOUGH THE SPECIFICATIONS FOR THIS REQUIREMENT APPEAR TO FOLLOW VERY CLOSELY THE SPECIFICATIONS OF FLOATING FLOORS, INC., WHICH THE SUCCESSFUL BIDDER BASED ITS BID ON, FOR SEVERAL REASONS WE DO NOT BELIEVE THEY ARE UNDULY RESTRICTIVE. IN THE FIRST PLACE, THE DESIRABILITY AND NECESSITY OF LIMITING THE FLOOR SYSTEM DEAD LOAD HAS BEEN AMPLY EXPLAINED. AT THE SAME TIME, THE ACCOMPLISHMENT OF THIS REQUIREMENT WAS NOT LIMITED TO THE USE OF ALUMINUM DIE CAST CONSTRUCTION USED BY FLOATING FLOORS, INC. MOREOVER, IT IS SIGNIFICANT TO NOTE THAT ALTHOUGH YOU APPARENTLY BASED YOUR BID ON OTHER THAN DIE CAST ALUMINUM AND THEREBY EXCEEDED THE SPECIFIED WEIGHT, THE COMPANY WHOSE PANELS YOU PROPOSED TO USE, LISKEY ALUMINUM, INC., ALSO OFFERS A DIE-CAST ALUMINUM PANEL WHICH IS STATED TO BE "LIGHT IN WEIGHT" AND PRESUMABLY WOULD COME WITHIN THE REQUIRED WEIGHT. IN VIEW THEREOF, AND SINCE THERE APPEARS TO HAVE BEEN SUFFICIENT JUSTIFICATION FOR LIMITING THE DEAD LOAD WEIGHT, WE FIND NO BASIS FOR CONCLUDING THAT SUCH SPECIFICATION WAS UNDULY RESTRICTIVE, AND YOUR PROTEST UNDER IFB NO. 75-6- 24-65 MUST THEREFORE BE DENIED.

INVITATION FOR BIDS NO. 76-6-25-65 CALLED FOR BIDS ON FURNISHING AND INSTALLING AN AIR-CONDITIONING SYSTEM IN THE COMPUTER ROOM UNDER THE RAISED FLOOR PLENUM. THE FOLLOWING FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND OPENED ON JUNE 25, 1965:

CHART

REFRIGERATION PRODUCTS COMPANY $13,010.00

CINCINNATI AIR CONDITION COMPANY

(BID 1) 14,475.00

DON MENDENHALL, INC. 15,900.00

CINCINNATI AIR CONDITIONING COMPANY

(BID 2) 16,625.00

DATA PROCESSING SUPPLIES 17,457.00

THE BID OF REFRIGERATION PRODUCTS AND THE TWO BIDS OF CINCINNATI AIR CONDITIONING WERE REJECTED AS NOT MEETING THE REQUIREMENTS OF SPECIFICATION NO. 27. BASED ON THE DESCRIPTIVE LITERATURE SUBMITTED WITH YOUR BID AND CONSULTATION WITH AN OFFICIAL OF YOUR COMPANY IT WAS DETERMINED THAT YOUR BID WAS NONRESPONSIVE. THEREFORE, AWARD WAS MADE TO DATA PROCESSING SUPPLIES WHOSE BID WAS CONSIDERED RESPONSIVE TO ALL THE SPECIFICATIONS.

THE MEMORANDUM WITH RESPECT TO EVALUATION OF YOUR BID LISTS THE FOLLOWING DEVIATIONS FROM THE SPECIFICATIONS:

"1- THE HUMIDIFICATION IN THIS SYSTEM IS BY DIFFUSION RATHER THAN ELECTRIC VAPORIZATION AS CALLED FOR IN SPEC. NO. 6. THIS IS A SERIOUS DEVIATION BECAUSE LIQUID CONTAINING DISSOLVED MATERIALS WOULD BE BLOWN INTO THE AREA TO SETTLE ON AND INTERFERE WITH THE OPERATION OF THE COMPUTER AND RELATED EQUIPMENT. THE DEPOSITS WOULD INTERFERE WITH PROPER OPERATIONS WITH CARDS, MAGNETIC TAPE, ETC.

"2- THE REHEAT COILS HAVE NO FAIL-SAFE SAFETY SWITCHES AS CALLED FOR IN SPEC. NO. 9.

"3- CONTRARY TO SPEC. NO. 11, NO EXPANSION VALVE CONTROL IS PROVIDED BUT INSTEAD IT IS THE COMMERCIAL AND OLD CAPILLARY COIL TYPE. THIS IS SERIOUS, BECAUSE IT DOES NOT GIVE CLOSE CONTROL, AND IS EXPENSIVE AND DIFFICULT TO SERVICE--- WHICH IS WHAT WE ARE TRYING TO GET AWAY FROM AND THIS WAS INCLUDED IN THE SPECS. FOR THESE REASONS.

"4- NO HIGH OR LOW PRESSURE CONTROL CUT-OFF ON COMPRESSOR ARE PROVIDED AS CALLED FOR IN SPEC. NO. 11 AND ELSEWHERE. THIS SYSTEM AS BID WOULD CAUSE A LOSS OF THE CHARGE IN THE COMPRESSORS EACH TIME IT IS SERVICED--- CERTAINLY NOT AN ACCEPTABLE OR ECONOMICAL SITUATION.

"5- FILTRATION IS ONLY RATED AT 35 PERCENT NBS STANDARD, INSTEAD OF 70 PERCENT NBS WHICH WE DESIRE AND WHICH IS STANDARD IN THIS TYPE OF APPLICATION.'

APPARENTLY YOU WERE INFORMED BY THE PROCUREMENT OFFICE OF THE ABOVE RESULTS OF THE EVALUATION OF YOUR BID AND MADE THE FOLLOWING REPLY IN YOUR LETTER OF JULY 10, 1965:

"TO BE MORE SPECIFIC IN SECTION 6 WE WERE TOLD THAT OUR HUMIDIFIER WAS NOT ACCEPTABLE YET BOTH THE S.E.S. AND THE DATA-AIRE UNITS USE THE SAME ARMSTRONG HUMIDIFIER.

"IN SECTION 9 WE WERE TOLD THAT WE DID NOT HAVE A BUILT-IN AIR FAILURE SAFETY SWITCH BUT TO THE BEST OF OUR KNOWLEDGE NEITHER DOES THE S.E.S. UNIT. WE DO HAVE THE NECESSARY SAFETY DEVICES WHICH ARE A HIGH TEMPERATURE LIMIT SWITCH AND A FAN BLOWER INTERLOCK.

"IN SECTION 11 WE WERE TOLD THAT WE HAD NO "EXPANSION CONTROL VALVE" THIS IS CORRECT BECAUSE OUR REFRIGERATION CYCLE IS BASED ON USING A CAPILLARY TUBE ASSEMBLY. THIS IS JUST A DIFFERENT MEANS OF PRODUCING THE SAME RESULT AND NO ONE HAS EVER BEEN ABLE TO DEMONSTRATE ANY SUPERIORITY FOR THE "PUMP DOWN" SYSTEM.'

WE ARE NOW ADVISED THAT THE ORIGINAL EVALUATION WITH RESPECT TO COMPLIANCE OF YOUR UNIT WITH SPECIFICATION SECTION 6 WAS IN ERROR, SINCE SUBSEQUENT DISCUSSIONS AND AN EXAMINATION OF BROCHURE DAM-S1 (WHICH APPEARS TO SUPERSEDE DAM-E1) INDICATES THE DATA-AIRE HUMIDIFIER IS OF THE EVAPORATIVE PAN TYPE, AS REQUIRED. WITH RESPECT TO THE OTHER DEVIATIONS BETWEEN YOUR UNIT AND THE SPECIFICATIONS LISTED ABOVE, WE SEE NO VALID BASIS UPON WHICH TO DISAGREE WITH THE PROCURING AGENCY'S POSITION THAT THE FEATURES IN QUESTION ARE NECESSARY AND DESIRABLE. SINCE SUCH FEATURES WOULD APPEAR TO AFFECT BOTH THE PRICE AND THE QUALITY OF THE UNIT, THE FAILURE OF YOUR BID TO OFFER SUCH FEATURES MUST BE CONSIDERED MAJOR DEFICIENCIES WHICH MAY NOT BE WAIVED AND WHICH THEREFORE RENDER YOUR BID NONRESPONSIVE.

WITH RESPECT TO YOUR ALLEGATION THAT THE DATA PROCESSING SUPPLIES UNIT FAILS TO COMPLY WITH SPECIFICATION SECTION 9, AS AMENDED, PARAGRAPH 13 OF THE S.E.S. BROCHURE STATES THAT,"EACH REHEAT COIL SHALL HAVE A BUILT-IN AIR FAILURE SAFETY SWITCH.'

IN VIEW OF THE FOREGOING, WE ARE OF THE OPINION THAT YOUR BID UNDER IFB NO. 75-6-24-65 WAS PROPERLY REJECTED, AND THAT NO BASIS EXISTS FOR OUR OFFICE TO DISTURB THE CONTRACTS AWARDED. YOUR PROTEST IS THEREFORE DENIED.