B-157362, NOV. 22, 1965

B-157362, NOV. 22, 1965

TO THE JAMES LEFFEL AND COMPANY:

ON JULY 29, 1965, HEADQUARTERS, DEPARTMENT OF THE ARMY, OFFICE OF THE CHIEF OF ENGINEERS, FORWARDED YOUR PROTEST TO THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. CIVENG-22-052-65-24, TO OUR OFFICE FOR A DECISION. SUBSEQUENT TO THIS REQUEST BY THE CORPS OF ENGINEERS YOU SUBMITTED TO OUR OFFICE CONSIDERABLE ADDITIONAL CORRESPONDENCE IN CONNECTION WITH YOUR CONTENTION THAT YOUR BID SHOULD BE CONSIDERED RESPONSIVE TO THE INSTANT INVITATION. IN THIS REGARD WE HAVE YOUR LETTER OF NOVEMBER 11, 1965, ENCLOSING A REPORT FROM AN INDEPENDENT ENGINEER WHO HAS REVIEWED THE TECHNICAL ASPECTS OF THIS CASE.

THE ABOVE INVITATION WAS ISSUED ON OCTOBER 19, 1964, BY THE UNITED STATES ARMY ENGINEER DISTRICT, VICKSBURG, MISSISSIPPI, FOR THE PROCUREMENT OF A HYDRAULIC TURBINE FOR THE NARROWS DAM AND POWER PLANT IN ACCORDANCE WITH ATTACHED SPECIFICATIONS. BIDS WERE OPENED ON APRIL 6, 1965, AND THREE BIDS WERE RECEIVED AS FOLLOWS:

TABLE

THE JAMES LAFFEL AND COMPANY $255,805

BALDWIN-LIMA-HAMILTON CORPORATION $310,530

ALLIS-CHALMERS MANUFACTURING COMPANY $388,335

PARAGRAPH 4 OF THE INVITATION'S SCHEDULE ENTITLED "DRAWINGS AND DATA TO BE SUBMITTED WITH BID" PROVIDED:

"* * * A. EACH BIDDER SHALL SUBMIT WITH HIS BID THE INFORMATION LISTED BELOW, WHICH WILL BE USED IN DETERMINING THE RESPONSIVENESS OF THE BID. BIDS WILL BE EVALUATED STRICTLY ON THE BASIS OF INFORMATION SUBMITTED WITH THE BID. THE DRAWINGS AND DATA SUBMITTED MUST BE IN SUFFICIENT DETAIL AND CLARITY TO ENABLE MAKING A COMPLETE AND POSITIVE CHECK WITH THE TECHNICAL PROVISIONS OF THE SPECIFICATIONS AND, WHERE HEREINAFTER INDICATED, SUCH DATA WILL BE MADE A PART OF THE CONTRACT INSTRUMENT. IF BIDDERS SUBMIT STANDARD DRAWINGS AND/OR STANDARD PUBLISHED DESCRIPTIVE DATA OF THEIR PRODUCT, ANY MODIFICATION REQUIRED AND INTENDED BY THEM IN ORDER TO MEET THE REQUIREMENT OF THE SPECIFICATIONS SHALL BE CLEARLY SET FORTH BY DESCRIPTION OF THE CHANGE OR REVISION. FAILURE TO SUBMIT DRAWINGS AND DATA OF SUCH DETAIL AND CLARITY AS DESCRIBED ABOVE, FAILURE OF SUCH INFORMATION TO INDICATE COMPLIANCE OF THE BID WITH THE SPECIFICATIONS, OR FAILURE TO SUBMIT ALL OF THE REQUIRED DATA WILL RESULT IN REJECTION OF THE BID. BIDDERS ARE CAUTIONED THAT IF A BIDDER IMPOSES A RESTRICTION THAT ANY OF THE REQUIRED DATA MAY NOT BE PUBLICLY DISCLOSED, SUCH RESTRICTION RENDERS THE BID NONRESPONSIVE IF IT PROHIBITS THE DISCLOSURE OF INFORMATION TO PERMIT COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF THE PRODUCT OFFERED OR TO THOSE ELEMENTS OF THE BID WHICH RELATE TO QUANTITY, PRICE AND DELIVERY TERMS.

"B. THE DRAWINGS AND DATA SUBMITTED SHALL INCLUDE, AS A MINIMUM, THE FOLLOWING: * * *"

SUB-PARAGRAPH 2 OF PARAGRAPH 4 PROVIDED FOR "OTHER SPECIFIED DATA.' WAS SPECIFICALLY PROVIDED THAT THIS DATA WOULD BE INCLUDED AS A PART OF THE CONTRACT INSTRUMENT. SUB-PARAGRAPH (F) OF SUB-PARAGRAPH 2 ON PAGE 7 OF THE INVITATION REQUIRED THE BIDDER TO SPECIFY THE THROAT DIAMETER OF THE RUNNER IN INCHES. YOUR INSERTED "79 INCH DIA. * ," AS YOUR CHARACTERISTIC FOR THIS ITEM. ON THE BOTTOM OF PAGE 7 OF THE INVITATION YOUR INSERTED: "*SEE LETTER ACCOMPANYING BID.' THE COVER LETTER ACCOMPANYING YOUR BID, DATED APRIL 3, 1965, STATED AS FOLLOWS ON PAGE 1:

"IT IS THE INTENTION AND PURPOSE OF THIS BID TO COMPLY IN ALL DETAILS WITH THE COMPLETE REQUIREMENTS--- TECHNICAL, COMMERCIAL AND OTHERWISE AS OUTLINED IN YOUR SPECIFICATIONS IN GUIDE TO BIDDERS. IF ANY DEVIATION OCCURRED IN OUR PROPOSAL IT IS UNINTENTIONAL AND WE RESPECTFULLY REQUEST THAT YOU CONSIDER THAT WE ARE INTENDING TO CONFORM THROUGHOUT.'

PAGE 2 OF THIS LETTER STATED AS FOLLOWS:

"THE RUNNER OFFERED IN OUR PROPOSAL IS OF THE MOST MODERN TYPE AND SLIGHTLY DIFFERENT IN DISCHARGE DIAMETER THAN MENTIONED IN YOUR SPECIFICATIONS. INCIDENTALLY, WITH OUR COMPLETE DEVELOPMENT, IF YOU WOULD DESIRE THIS TURBINE TO BE MORE OR LESS CAPACITY THAN WE HAVE INDICATED, WE COULD ARRANGE IT WITHOUT CHANGING THE PRICE.'

PARAGRAPH 2.05 OF THE SPECIFICATIONS OF THE INSTANT INVITATION PROVIDED AS FOLLOWS:

"2.05. RUNNER. A. THE TURBINE RUNNER SHALL BE OF THE FRANCIS TYPE, AND SHALL EITHER BE MADE OF CAST STEEL IN ONE PIECE OR SHALL BE MADE OF A CAST - OR PLATE-STEEL CROWN AND A CAST- OR PLATE-STEEL BAND WITH CAST-STEEL BUCKETS WELDED TO BOTH CROWN AND BAND. THE RUNNER SHALL BE DESIGNED AND CONSTRUCTED TO WITHSTAND SAFELY THE STRESSES DUE TO OPERATION AT RUNAWAY SPEED UNDER CONDITIONS OF MAXIMUM HEAD WITH THE WICKET GATES AT THE MAXIMUM RUNAWAY POSITION AND WITH NO LOAD ON THE GENERATOR. THE RUNNER SHALL ALSO BE DESIGNED SO AS TO MINIMIZE VIBRATION DURING OPERATION. THE RUNNER SHALL HAVE A THROAT DIAMETER OF NOT LESS THAN 81 INCHES.'

IN VIEW OF THE LANGUAGE IN PARAGRAPH 4 OF THE INVITATION, QUOTED ABOVE, IT IS CLEAR THAT THE DATA WHICH BIDDERS WERE TO FURNISH ON PAGE 7 IS A MATERIAL PART OF THE BID.

THE CORPS OF ENGINEERS DETERMINED THAT YOUR BID TO THE INSTANT INVITATION WAS NONRESPONSIVE ON THE BASIS THAT YOUR INSERTION OF 79 INCHES AS THE GUARANTEED CHARACTERISTIC OF THE THROAT DIAMETER OF THE RUNNER DID NOT COMPLY WITH THE REQUIREMENT IN THE SPECIFICATIONS FOR A RUNNER WITH A THROAT DIAMETER OF 81 INCHES. YOU HAVE PROTESTED THIS DETERMINATION ALLEGING THAT THE TURBINE MANUFACTURERS RATHER THAN THE CORPS OF ENGINEERS SHOULD SPECIFY THE THROAT DIAMETER OF THE RUNNER. YOU ALLEGE THAT THE COVER LETTER SUBMITTED WITH YOUR BID ESTABLISHES THE RESPONSIVENESS OF YOUR BID. YOU HAVE ALSO BROUGHT TO OUR ATTENTION YOUR TECHNICAL OBJECTIONS TO THE BID SUBMITTED BY BALDWIN-LIMA HAMILTON.

WITH RESPECT TO YOUR CONTENTION REGARDING THE REQUIREMENT IN THE SPECIFICATIONS THAT THE TURBINE RUNNER HAVE A MINIMUM THROAT DIAMETER OF 81 INCHES YOUR LETTER OF OCTOBER 19, 1965, ADVISES OUR OFFICE AS FOLLOWS:

"4. THERE IS NO JUSTIFICATION FOR OVERRIDING A MANUFACTURER'S EXPERIENCE WHEN THE TURBINE MUST PRODUCE RESULTS IN POWER, SPEED AND EFFICIENCY AND UNDER CONTRACT BOND AND ESPECIALLY IS THIS EMPHASIZED WHEN THE MANFACTURER HAS EXPERIENCE IN UNITS OF THE SAME SIZE AND TYPE SUCH AS REFERRED TO ABOVE AND MANY OTHERS.

"5. IN VIEW OF THE FOREGOING THERE IS NO CAUSE FOR AN ARBITRARY DIMENSION OF THE RUNNER OR ANY OTHER PART OF THE TURBINE BEING SPECIFIED, PARTICULARLY SINCE IT IS OBVIOUS THAT THE U.S. ENGINEERS DO NOT HAVE TO MAKE THE GUARANTEES OR DO NOT HAVE TO BACK THEM UP OR DO NOT HAVE TO PUT UP BOND FOR THEIR PERFORMANCE BUT THE TURBINE MANUFACTURER MUST DO THIS.

"23. THE BASIC PRINCIPLE IS THE OUTPUT AT THE TURBINE COUPLING AND THAT IS WHAT IS CALLED FOR TO BE PRODUCED. WE HAVE GIVEN BETTER CAVITATION GUARANTEES. WE HAVE GIVEN BETTER EXPECTED EFFICIENCIES AND PERFORMANCE OVER THE TOTAL RANGE OF HEADS. WE HAVE GIVEN BETTER GUARANTEE, VIZ; 1,000 HP MORE THAN THE OTHERS IN THE BID FORM AT FULL GAGE AND 132 FT. NET HEAD, AND ALL GUARANTEES UNDER BOND.

"24. THE VENTER AREA CONTROLS THE POWER OUTPUT FROM THE RUNNER. PITTING IS DUE TO BLADE SHAPE. INLET DIAMETER IS FUNCTION OF SPEED IN REFERENCE TO PEAK EFFICIENCY. A GOOD OPERATING UNIT IS DUE TO DESIGNING OF THE ENTIRE OVERALL COORDINATED TURBINE AND ALSO COMPLETE DRAFT TUBE IN SOLID COLUMN OF WATER FOR BEST PERFORMANCE.'

THE REPORT FROM THE INDEPENDENT ENGINEER, WHICH ACCOMPANIED YOUR LETTER OF NOVEMBER 11, 1965, STATES AS FOLLOWS WITH RESPECT TO THE MINIMUM THROAT DIAMETER OF THE RUNNER IN THE SPECIFICATIONS:

"IT IS ESSENTIAL TO RECOGNIZE THAT ANY ONE DIMENSION OF A HYDRAULIC TURBINE IS NOT NECESSARILY THE CONTROLLING DIMENSION BUT THE INLET, THE RUNNER PASSAGES, THE OUTFLOW AREA AND THE DIAMETER OF THE OUTFLOW ALL MUST BE CORRELATED FOR ANY GIVEN DESIGN. THIS IS DEPENDENT ENTIRELY ON THE INDIVIDUAL MANUFACTURER'S PRACTICE AND CAN ONLY BE EVALUATED PROPERLY IN THE ACTUAL FIELD TESTS OF A COMPLETED PROJECT AS TO WHETHER HIS SELECTION OF RELATIVE DIMENSIONS OF THE CRITICAL WATER PASSAGES IS SOUND.'

IT IS THE INDEPENDENT ENGINEER'S POSITION THAT A FIXED DIMENSION FOR THE RUNNER HAS NO VALIDITY IN ITSELF.

THE POSITION OF THE CORPS OF ENGINEERS REGARDING THE SPECIFYING OF A MINIMUM THROAT DIAMETER FOR THE RUNNER IS AS FOLLOWS:

"10. THE SPECIFYING OF A MINIMUM THROAT DIAMETER IS NOT RESTRICTIVE. ALL OF THE TURBINE MANUFACTURERS CAN DESIGN AND MANUFACTURE A TURBINE TO THE SPECIFIED REQUIREMENTS. THEY CAN ALSO DESIGN AND MANUFACTURE A RUNNER WITH THE DIAMETER PROPOSED BY JAMES LEFFEL, BUT IT WOULD NOT HAVE THE SAME CHARACTERISTICS AS THE TURBINE REQUIRED BY THE SPECIFICATIONS.'

IT IS ALSO THE POSITION OF THE CORPS OF ENGINEERS THAT THE MINIMUM THROAT DIAMETER OF THE RUNNER WAS SPECIFIED FOR REASONS OTHER THAN THOSE RELATING TO HORSEPOWER AND VELOCITY. WITH RESPECT TO THE REPORT FROM THE INDEPENDENT ENGINEER WE DO NOT AGREE WITH THE POSITION THAT THE SPECIFYING OF A FIXED DIMENSION FOR THE DIAMETER OF THE RUNNER SERVES NO PURPOSE, SINCE THIS REPORT INDICATES THAT THE RUNNER DIAMETER CAN HAVE AN EFFECT ON THE SPEED OF THE WATER WHEEL. (SEE REFERENCE 13-/B) OF THE INDEPENDENT ENGINEER'S REPORT). OUR OFFICE HAS CONSISTENTLY HELD THAT THE DRAFTING OF SPECIFICATIONS TO SATISFY THE NEEDS OF THE GOVERNMENT IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY AND THAT WE WILL NOT QUESTION THIS TYPE OF DETERMINATION UNLESS SHOWN TO BE ARBITRARY OR CAPRICIOUS. SEE B- 151909, NOVEMBER 18, 1963; 38 COMP. GEN. 190 AND DECISIONS CITED THEREIN. THE QUESTION WHETHER A MINIMUM DIAMETER OF A RUNNER IN A TURBINE PROCUREMENT SHOULD BE SPECIFIED BY THE GOVERNMENT OR WHETHER THE TURBINE MANUFACTURER, AFTER CONSIDERING THE OVERALL DESIGN AND THE PERFORMANCE REQUIRED, COULD BEST DETERMINE THIS CHARACTERISTIC IS A QUESTION WHICH REQUIRES CONSIDERABLE ENGINEERING EXPERTISE TO ANSWER. THERE IS A DIFFERENCE OF OPINION ON THIS QUESTION BETWEEN YOU AND THE CORPS OF ENGINEERS. ON THE BASIS OF THE RECORD PRESENTED WE CANNOT SAY THAT THE OPINION BY THE CORPS OF ENGINEERS ON THIS QUESTION IS ARBITRARY OR CAPRICIOUS; CONSEQUENTLY, WE WILL NOT SUBSTITUTE OUR JUDGMENT ON THIS POINT FOR THAT OF THE CORPS OF ENGINEERS.

THE NEXT QUESTION IS WHETHER YOUR BID COULD BE CONSIDERED ON THE BASIS THAT YOUR BID OFFERED TO FURNISH A RUNNER WITH A THROAT DIAMETER OF 81 INCHES, AT NO ADDITIONAL COST, IF THE GOVERNMENT SO DESIRED. IT IS OUR VIEW THAT THE GENERAL COMPLIANCE OFFER ON PAGE 1 OF YOUR COVER LETTER, QUOTED, ABOVE, COULD NOT BE CONSIDERED AS OFFSETTING THE SPECIFIC EXCEPTION TO THE SPECIFICATIONS ON PAGE 7 OF YOUR BID. SEE 36 COMP. GEN. 415; 40 COMP. GEN. 132.

THE QUESTION IS ALSO PRESENTED WHETHER YOUR BID COULD BE CONSIDERED RESPONSIVE ON THE BASIS OF THE STATEMENT ON PAGE 2 OF THE COVER LETTER ACCOMPANYING YOUR BID. ARMED SERVICES PROCUREMENT REGULATION 2-301 ENTITLED "RESPONSIVENESS OF BIDS," PROVIDES:

"/A) TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS * * *.'

ARMED SERVICES PROCUREMENT REGULATION 2-404.2 ENTITLED "REJECTION OF INDIVIDUAL BIDS," ROVIDES:

"/A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS SHALL BE REJECTED.'

YOUR BID SPECIFICALLY OFFERED TO FURNISH A TURBINE WITH A RUNNER HAVING A 79-INCH THROAT DIAMETER AND YOUR COVER LETTER ON PAGE 2 OFFERED TO FURNISH A TURBINE WITH MORE OR LESS CAPACITY AT NO ADDITIONAL COST TO THE GOVERNMENT. THE SPECIFICATIONS REQUIRED A TURBINE WITH A RUNNER HAVING A THROAT DIAMETER OF 81 INCHES. WITH RESPECT TO THE VARIOUS MEANS BY WHICH THE CAPACITY OF A TURBINE MAY BE CHANGED, THE CORPS OF ENGINEERS HAS ADVISED OUR OFFICE AS FOLLOWS:

"* * * THE PERFORMANCE OF THE RUNNER CAN BE ALTERED BY INCREASING OR DECREASING THE ENTRANCE DIAMETER OF THE RUNNER AND BY DECREASING OR INCREASING THE VENTING BETWEEN BUCKETS WITHOUT INCREASING THE THROAT DIAMETER OF THE RUNNER * * *.'

THE QUOTE FROM THE CORPS OF ENGINEERS INDICATES THAT THE CAPACITY OF THE TURBINE CAN BE ALTERED BY THREE DIFFERENT MEANS, THAT IS, BY CHANGING THE ENTRANCE DIAMETER OF THE RUNNER, WHICH WE ARE ADVISED IS DIFFERENT FROM THE THROAT DIAMETER OF THE RUNNER, CHANGING THE VENTING BETWEEN BUCKETS, OR CHANGING THE THROAT DIAMETER OF THE RUNNER. IN THESE CIRCUMSTANCES WE FIND THAT YOUR OFFER TO FURNISH A TURBINE OF MORE OR LESS CAPACITY AT NO ADDITIONAL COST IS NOT A SPECIFIC OFFER TO FURNISH A TURBINE WITH A RUNNER HAVING A THROAT DIAMETER OF 81 INCHES. CONSEQUENTLY, WE CANNOT CONSIDER THE STATEMENT ON PAGE 2 OF YOUR COVER LETTER AS A BASIS FOR OFFSETTING THE SPECIFIC EXCEPTION TO THE SPECIFICATION ON PAGE 7 OF YOUR BID.

WITH RESPECT TO THE MONETARY SAVING WHICH WOULD BE GAINED FROM THE ACCEPTANCE OF YOUR BID YOU ARE ADVISED THAT IT HAS BEEN THE CONSISTENT POSITION OF OUR OFFICE THAT THE MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM IS INFINITELY MORE IN THE PUBLIC INTEREST THAN A FINANCIAL SAVING IN ANY INDIVIDUAL CASE. SEE 44 COMP. GEN. 495 AND 38 COMP. GEN. 532. WE HAVE BROUGHT YOUR TECHNICAL OBJECTIONS REGARDING BALDWIN-LIMA-HAMILTON'S BID TO THE ATTENTION OF THE CORPS OF ENGINEERS. AFTER REVIEW OF YOUR TECHNICAL OBJECTIONS THE CORPS OF ENGINEERS HAS ADVISED OUR OFFICE THAT BALDWIN-LIMA-HAMILTON'S BID IS CONSIDERED TO BE RESPONSIVE. IN THE CIRCUMSTANCES OF THIS CASE WE FIND NO BASIS TO QUESTION THIS DETERMINATION BY THE CORPS OF ENGINEERS. SEE B-156679, AUGUST 26, 1965.