B-157463, OCT. 5, 1965

B-157463: Oct 5, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 11. BIDS WERE REQUESTED ON ONE UNIT UNDER ITEM 1 AND TWO UNITS UNDER ITEM 2. THREE BIDS WERE RECEIVED AND OPENED ON JUNE 28. 687 EACH FOR THE UNITS UNDER ITEMS 1 AND 2 WAS THE LOWEST BID RECEIVED. LONG COMPANY WAS AWARDED THE CONTRACT AS THE LOWEST RESPONSIVE BIDDER. ITS BID WAS ON ONAN DIVISION STUDEBAKER INDUSTRIES. YOUR BID WAS ON THE KOHLER COMPANY'S "KOHLER" BRAND. YOU STATE THAT "THE SPECIFICATIONS WERE VERY BROAD EXCEPT FOR A FEW PARAGRAPHS. WHERE THEY HAVE SPELLED OUT ONE MANUFACTURE.'. THE LANGUAGE OBJECTED TO (PAGE 5 OF THE INVITATION) IS AS FOLLOWS: "THE AUTOMATIC TRANSFER CONTROL ALONG WITH THE ELECTRIC GENERATING PLANT AND STARTING CONTROL SHALL BE BUILT AND SUPPLIED AS A COMPLETE PACKAGE BY ONE MANUFACTURER.

B-157463, OCT. 5, 1965

TO LOCKRIDGE AND SEEL, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 11, 1965, WITH ENCLOSURES, PROTESTING AWARD UNDER INVITATION NO. 65-59 ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, RICHMOND, VIRGINIA.

THE INVITATION SOLICITED BIDS FOR FURNISHING TWO ITEMS OF GASOLINE DRIVEN STANDBY ELECTRIC GENERATING SETS OF 115-KILOWATT RATING. BIDS WERE REQUESTED ON ONE UNIT UNDER ITEM 1 AND TWO UNITS UNDER ITEM 2.

THREE BIDS WERE RECEIVED AND OPENED ON JUNE 28, 1965. YOUR BID IN THE AMOUNT OF $7,687 EACH FOR THE UNITS UNDER ITEMS 1 AND 2 WAS THE LOWEST BID RECEIVED. J. P. LONG COMPANY, INC., SUBMITTED THE SECOND LOWEST BID OF $7,825 EACH FOR THE SAME QUANTITY. J. P. LONG COMPANY WAS AWARDED THE CONTRACT AS THE LOWEST RESPONSIVE BIDDER. ITS BID WAS ON ONAN DIVISION STUDEBAKER INDUSTRIES, INC., BRAND "ONAN," MODEL NO. 115WA-4R8, GENERATOR SET. YOUR BID WAS ON THE KOHLER COMPANY'S "KOHLER" BRAND, MODEL NO. 115R84, GENERATOR SET.

YOU STATE THAT "THE SPECIFICATIONS WERE VERY BROAD EXCEPT FOR A FEW PARAGRAPHS, WHERE THEY HAVE SPELLED OUT ONE MANUFACTURE.' THE LANGUAGE OBJECTED TO (PAGE 5 OF THE INVITATION) IS AS FOLLOWS:

"THE AUTOMATIC TRANSFER CONTROL ALONG WITH THE ELECTRIC GENERATING PLANT AND STARTING CONTROL SHALL BE BUILT AND SUPPLIED AS A COMPLETE PACKAGE BY ONE MANUFACTURER. THIS MANUFACTURER SHALL ACCEPT RESPONSIBILITY FOR PERFORMANCE AND SERVICE OF THE COMPLETE STANDBY PLANT (PACKAGE). HE SHALL HAVE AVAILABLE FACTORY TRAINED SERVICE PERSONNEL AND PARTS STOCKED FOR ALLOWING FOR QUICK EMERGENCY SERVICE. THIS SERVICE AND PARTS DISTRIBUTION MUST BE MAINTAINED LOCALLY.'

THE GENERAL SPECIFICATIONS PROVIDE (PAGE 3 OF THE INVITATION) THAT THE PERFORMANCE OF THE ELECTRIC PLANT SHALL BE CERTIFIED BY AN INDEPENDENT TESTING LABORATORY AS TO THE PLANT'S FULL POWER RATING AND VOLTAGE AND FREQUENCY REGULATION.

THE SPECIFICATIONS FURTHER PROVIDE, PAGE 4 OF THE INVITATION, INSOFAR AS IS RELEVANT TO YOUR PROTEST, AS FOLLOWS:

"AUTOMATIC LOAD TRANSFER CONTROL: AN AUTOMATIC LOAD TRANSFER CONTROL SHALL BE PROVIDED TO CONNECT THE NORMAL POWER TO THE LOAD AND UPON FAILURE OF LINE VOLTAGE AUTOMATICALLY START THE STANDBY GENERATOR AND CONNECT IT TO THE LOAD.

"AMPERAGE RATING OF THE TRANSFER SWITCH SHALL BE ADEQUATE TO MEET THE REQUIREMENTS OF BOTH, MAXIMUM ENGINE-GENERATOR OUTPUT AND COMMERCIAL LINE SERVICE.

"EACH POLE SHALL BE OF DOUBLE-BREAK DESIGN WITH SOLID SILVER CADMIUM CONTACTS CAPABLE OF SWITCHING BOTH INDUCTIVE AND RESISTIVE LOADS. * * * EACH POLE SHALL BE TOTALLY ENCLOSED IN A SEPARATE HEAT RESISTANT CHAMBER TO PREVENT CROSS ARCING BETWEEN POLES.'

YOUR BID WAS DETERMINED TO BE NONRESPONSIVE INASMUCH AS IN YOUR LETTER OF JUNE 25, 1965, WHICH ACCOMPANIED YOUR BID, IT WAS STATED THAT YOU WOULD NOT HAVE YOUR GENERATOR TESTED BY AN INDEPENDENT LABORATORY FOR CERTIFICATION AS TO ITS PERFORMANCE REGARDING THE PLANT'S FULL POWER RATING AND VOLTAGE AND FREQUENCY REGULATION. YOU ALSO STATED THEREIN THAT THE TRANSFER SWITCH CONTROLS ARE MANUFACTURED BY ZENITH ELECTRIC COMPANY WHICH THE ADMINISTRATIVE OFFICE DETERMINED DID NOT MEET THE SPECIFICATIONS AS REQUESTED UNDER THE AUTOMATIC LOAD TRANSFER CONTROL PROVISIONS OF THE INVITATION BECAUSE THE ZENITH SWITCH DOES NOT HAVE THE TOTALLY ENCLOSED POLES OR DOUBLE-BREAK DESIGN.

THE ADMINISTRATIVE OFFICE REPORTS THAT DIFFICULTIES WERE BEING EXPERIENCED WITH GENERATORS WHEN THE CONTROL AND GENERATOR WERE BUILT BY TWO DIFFERENT MANUFACTURERS. COMPLETE DEPENDABILITY OF OPERATION IS CONSIDERED ESSENTIAL IN AN AUTOMATIC SYSTEM FOR TRANSFERRING FROM NORMAL TO EMERGENCY ELECTRIC SERVICE IN A HOSPITAL WHERE PROTECTION OF LIFE DEPENDS ON CONTINUITY OF ELECTRIC SERVICE.

THE RECORD INDICATES THAT THE PROCURING AGENCY ADVERTISED THE MINIMUM NEEDS OF THE GOVERNMENT FOR STANDBY GENERATOR SETS AND DESCRIBED THOSE NEEDS IN BROAD GENERAL TERMS. NEITHER THE INVITATION FOR BIDS NOR THE SPECIFICATIONS FORMING A PART THEREOF MADE ANY MENTION OF A TRADE NAME OR THE NAME OF ANY PROPRIETARY ARTICLE OR PATENTED DEVICE AND THE VETERANS ADMINISTRATION IS NOT AWARE OF ANY UNDULY RESTRICTIVE OR PROPRIETARY PROVISIONS OF THE SPECIFICATIONS. THIS WOULD SEEM TO BE SUPPORTED BY THE FACT THAT TWO ACCEPTABLE BIDS WERE RECEIVED, THE LOWEST OF WHICH WAS ACCEPTED. FURTHER, THE VARIOUS REASONS GIVEN FOR THE REJECTION OF YOUR BID INDICATE THAT THE SPECIFICATION REQUIREMENTS ARE NOT DRAWN AROUND THE CHARACTERISTICS OF THE EQUIPMENT OF ONE MANUFACTURER.

THE RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE PROCUREMENT AGENCY. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. COMP. GEN. 368. NOR IS THERE ANY REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT REGARD TO THE PARTICULAR NEEDS TO BE SERVED. 36 COMP. GEN. 251, 252.

ACCORDINGLY, UNDER THE REPORTED FACTS AND CIRCUMSTANCES, THIS OFFICE WOULD NOT BE JUSTIFIED IN HOLDING THAT THE SPECIFICATIONS PERTAINING TO THE AUTOMATIC TRANSFER CONTROL EXCEED THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND THAT THE INVITATION IS LEGALLY DEFECTIVE. THEREFORE, YOUR PROTEST MUST BE DENIED.