B-157823, MAY 9, 1966

B-157823: May 9, 1966

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO FOLEY MACHINERY CO.: REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 8. S-18375 WAS ISSUED ON AUGUST 10. FOR ADMINISTRATIVE REASONS THIS REQUIREMENT WAS PROCURED UNDER A SEPARATE INVITATION NO. S-18460 WHICH WAS ADVERTISED ON JULY 23. INVITATION NO. -18460 (CORPUS CHRISTI) WAS SENT TO 50 FIRMS OF WHICH 7 RESPONDED. HAWAII AND CAPE KENNEDY WAS SENT TO 63 FIRMS OF WHICH 8 RESPONDED. IT WAS DETERMINED THAT YOUR FIRM'S SELECTION OF 4. 000-AMPERE BUSSES IN THE SWITCHGEAR FOR THE BERMUDA SITE WAS ACCEPTABLE. HAWAII AND CAPE KENNEDY SITES WERE DETERMINED TO BE UNACCEPTABLE BECAUSE THEY FAILED TO MEET THE AMBIENT TEMPERATURE REQUIREMENTS SET FORTH IN PARAGRAPH 1-04 OF THE SPECIFICATIONS AND HENCE WERE DETERMINED TO BE NONRESPONSIVE.

B-157823, MAY 9, 1966

TO FOLEY MACHINERY CO.:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 8, 1965, AND YOUR LETTERS OF OCTOBER 29, 1965, AND FEBRUARY 10, 1966, PROTESTING AGAINST AWARD OF CONTRACTS TO FIRMS OTHER THAN YOUR OWN UNDER INVITATIONS FOR BIDS (IFB) NOS. S-18375/560-A AND S-18460/560 ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), GODDARD SPACE FLIGHT CENTER (GSFC), GREENBELT, MARYLAND.

THE RECORD SHOWS THAT INVITATION NO. S-18375 WAS ISSUED ON AUGUST 10, 1965, FOR THE PURPOSE OF PROCURING ELECTRIC POWER PLANT SYSTEMS FOR REMOTE CONSTRUCTION SITES IN BERMUDA, HAWAII AND CAPE KENNEDY. ALSO, PRIOR TO THE ISSUANCE OF THIS INVITATION, GSFC HAD A REQUIREMENT FOR AN ADDITIONAL ELECTRIC POWER PLANT SYSTEM AT THE NASA CORPUS CHRISTI SITE. FOR ADMINISTRATIVE REASONS THIS REQUIREMENT WAS PROCURED UNDER A SEPARATE INVITATION NO. S-18460 WHICH WAS ADVERTISED ON JULY 23, 1965.

INVITATION NO. -18460 (CORPUS CHRISTI) WAS SENT TO 50 FIRMS OF WHICH 7 RESPONDED, AND INVITATION NO. -18375 FOR THE POWER PLANT SYSTEMS AT BERMUDA, HAWAII AND CAPE KENNEDY WAS SENT TO 63 FIRMS OF WHICH 8 RESPONDED. FOLLOWING TECHNICAL EVALUATION OF THE BIDS, IT WAS DETERMINED THAT YOUR FIRM'S SELECTION OF 4,000-AMPERE BUSSES IN THE SWITCHGEAR FOR THE BERMUDA SITE WAS ACCEPTABLE. HOWEVER, YOUR FIRM'S BIDS FOR THE 3,000- AMPERE BUSSES IN THE SWITCHGEAR FOR INSTALLATION AT THE CORPUS CHRISTI, HAWAII AND CAPE KENNEDY SITES WERE DETERMINED TO BE UNACCEPTABLE BECAUSE THEY FAILED TO MEET THE AMBIENT TEMPERATURE REQUIREMENTS SET FORTH IN PARAGRAPH 1-04 OF THE SPECIFICATIONS AND HENCE WERE DETERMINED TO BE NONRESPONSIVE. ACCORDINGLY, AWARDS WERE MADE AS FOLLOWS:

TABLE

IFB S-18460/560 DATE OF AWARD

1. CORPUS CHRISTI SITE -

ALBAN TRACTOR CO.

CONTRACT NAS5-8874 10-6-65

IFB S-18375/560-A DATE OF AWARD

2. BERMUDA SITE - FOLEY

MACHINERY CO.

CONTRACT NAS5-8824 9-30-65

3. HAWAII SITE - ALBAN

TRACTOR CO.

CONTRACT NAS5-8851 10-6-65

4. CAPE KENNEDY SITE - H. O.

PENN MACHINERY CO. INC.

CONTRACT NAS5-8852 10-6-65

YOUR PROTEST IS DIRECTED AGAINST THE FOREGOING AWARDS FOR THE CORPUS CHRISTI, HAWAII AND CAPE KENNEDY SITES, AND YOU TAKE ISSUE WITH THE TECHNICAL EVALUATION MADE OF YOUR BID. YOU PARTICULARLY STRESS THE TECHNICAL EVALUATION MADE OF YOUR BUS BAR CONFIGURATION WHICH YOU PROPOSE TO FURNISH FOR THE POWER PLANT SYSTEMS AT CORPUS CHRISTI, HAWAII AND CAPE KENNEDY.

THE SPECIFICATIONS FOR THE POWER PLANT SYSTEMS FOR THE APOLLO PROGRAM CALLED FOR THE FURNISHING OF GENERATORS, SWITCHGEAR CUBICLES, ONSITE TESTING AND MAINTENANCE MANUALS. PARAGRAPH 1-02 OF THE GENERAL CONDITIONS OF THE SPECIFICATIONS INVOLVED PROVIDED IN PART AS FOLLOWS:

"A. RULES: EQUIPMENT SHALL BE NEW AND SHALL BE DESIGNED, ASSEMBLED, AND TESTED IN ACCORDANCE WITH THE APPLICABLE STANDARDS OF ASA:AIEE AND NEMA.'

ALSO, BEARING ON THE ISSUE RAISED IN YOUR PROTEST, PARAGRAPH 1-04 OF THE SPECIFICATIONS FOR THE SWITCHGEAR ASSEMBLY AT THE CORPUS CHRISTI, CAPE KENNEDY AND HAWAII SITES PROVIDED AS FOLLOWS:

"SWITCHGEAR SHALL HAVE 3,000 AMPERE DUAL MAIN BUSSES IN EACH CUBICLE, FABRICATED FROM HIGH CONDUCTIVITY COPPER DESIGNED TO CARRY FULL-LOAD CURRENT WITHOUT EXCEEDING A RISE OF 30 DEGREES C. ABOVE A 40 DEGREE AMBIENT. * * *"

PARAGRAPH 1-04 OF THE SPECIFICATIONS FOR THE SWITCHGEAR ASSEMBLY AT THE BERMUDA SITE PROVIDED IN PART AS FOLLOWS:

"SWITCHGEAR SHALL HAVE 4,000 AMPERE DUAL MAIN BUSSES IN EACH CUBICLE, FABRICATED FROM HIGH CONDUCTIVITY COPPER DESIGNED TO CARRY FULL-LOAD CURRENT WITHOUT EXCEEDING A RISE OF 30 DEGREES C. ABOVE A 40 DEGREE AMBIENT. * * * "

IN LINE WITH THE FOREGOING SPECIFICATIONS, THE RECORD SHOWS THAT IN YOUR BID FOR THE POWER PLANT SYSTEMS AT CORPUS CHRISTI, HAWAII AND CAPE KENNEDY YOU PROPOSED A BUS CONFIGURATION CONSISTING OF TWO 1/4 INCH BY6 INCH FLAT COPPER BARS PER PHASE WITH 1/4 INCH BETWEEN BARS. THE PROCURING AGENCY REPORTS THAT THIS PROPOSED CONFIGURATION OF BUS BARS WOULD NOT MEET THE AFOREMENTIONED REQUIREMENT OF CARRYING 3,000 AMPERES WITH A LIMITING TEMPERATURE RISE OF 30 DEGREES C. ABOVE AN AMBIENT TEMPERATURE OF 40 DEGREES C. YOUR BIDS FOR THE POWER PLANT SYSTEMS INVOLVED WERE THEREFORE REJECTED AS BEING NONRESPONSIVE. IT IS REPORTED THAT SUBSEQUENT TO BID OPENING YOU OFFERED TO CHANGE YOUR SYSTEM TO CONFORM TO THE SPECIFICATIONS. HOWEVER, THIS MODIFICATION WOULD HAVE PLACED COMPETITORS AT A DISADVANTAGE AND HENCE WAS NOT ACCEPTED. CONFIGURATIONS OF THE TWO 1/4 INCH BY 6 INCH BUS BARS WHICH COULD HAVE MET THE SPECIFICATION REQUIREMENTS WOULD HAVE BEEN MORE COSTLY THAN THE CONFIGURATION PROPOSED BY YOU SINCE IT WOULD HAVE REQUIRED TWO SETS OF BUS BAR SUPPORTS THROUGHOUT THE SWITCHGEAR.

IN YOUR PROTEST YOU HAVE PRESENTED SEVERAL TECHNICAL FACETS OF YOUR BID WHICH YOU BELIEVE WERE OBJECTIONABLE TO THE NASA PROCUREMENT PERSONNEL. HOWEVER, IT SHOULD BE POINTED OUT THAT THE DETERMINATION BY GSFC THAT YOUR BIDS FOR THE CORPUS CHRISTI, HAWAII AND CAPE KENNEDY SITES WERE NONRESPONSIVE WAS BASED ENTIRELY ON THE CONCLUSION THAT THE BUS CONFIGURATIONS WOULD NOT CARRY 3,000 AMPERES AT THE SPECIFIED TEMPERATURE RISE. THE OTHER AREAS ALLEGED BY YOU AS REPRESENTING NASA OBJECTIONS WERE NOT, IN FACT, GROUNDS FOR THE FINDING OF NONRESPONSIVENESS.

IN YOUR LETTER OF FEBRUARY 10, 1966, TO OUR OFFICE IN THIS MATTER YOU ALLEGE CERTAIN DISCREPANCIES IN NASA'S ADMINISTRATIVE REPORT ON YOUR PROTEST. IN RESPONSE TO OUR REQUEST FOR A SUPPLEMENTAL REPORT RESPONSIVE TO SUCH ALLEGATIONS THE PROCURING AGENCY REITERATED THAT THE DETERMINATION THAT YOUR BIDS WERE NONRESPONSIVE WAS BASED ENTIRELY ON THE CONCLUSION RAISED BY COGNIZANT GSFC TECHNICAL PERSONNEL THAT YOUR PROPOSED BUS (COPPER BAR) CONFIGURATION WOULD NOT CARRY 3,000 AMPERES AT THE SPECIFIED TEMPERATURE RISE. MOREOVER, IT IS STRESSED THAT THERE WAS NO REQUIREMENT IN THE INVITATIONS FOR SUBMISSION OF A DIAGRAM OR CONFIGURATION OF BUS BAR SPACING. SUCH REQUIREMENT WAS DELIBERATELY OMITTED BY GSFC BECAUSE IT KNEW THAT VARIOUS METHODS OF CONFIGURATION EXISTED WHICH WOULD MEET PERFORMANCE REQUIREMENTS AND GSFC DID NOT WISH TO LIMIT BIDDERS TO ANY ONE BID CONFIGURATION. NOTWITHSTANDING THAT A CONFIGURATION OF BUS BAR SPACING WAS NOT REQUIRED BY THE INVITATIONS, YOUR FIRM CHOSE TO SUBMIT ONE WITH ITS BIDS. HAVING DONE SO, THE PROCURING AGENCY HAD NO CHOICE BUT TO EVALUATE IT. SUCH EVALUATION UTILIZING NUMEROUS DESIGN HANDBOOKS FOR COPPER BUSSES IN USE IN THE ENGINEERING FIELD (AND EVEN THE DELTA STAR TABLE 12 FURNISHED BY YOUR FIRM) SHOWS CONCLUSIVELY THAT THE SPACING DESIGN OFFERED BY YOUR FIRM, WITH TWO 1/4 INCH BY 6 INCH BUS BARS SPACED 1/4 INCH APART, WILL NOT CARRY 3,000 AMPERES AT THE SPECIFIED TEMPERATURE RISE IN THE ENCLOSED TYPE OF SWITCHGEAR CALLED FOR BY THE INVITATIONS. ALSO, WHILE YOU HAVE CONTENDED THAT GSFC CONTRACTED WITH THE SCHOONMAKER COMPANY FOR SWITCHGEAR IDENTICAL TO THAT PROPOSED BY YOUR FIRM, IT IS REPORTED THAT THIS STATEMENT IS CORRECT ONLY AS IT RELATES TO THE SIZES OF FOLEY'S AND SCHOONMAKER'S BUS BARS. ALTHOUGH THE SIZES WERE IDENTICAL IN EACH CASE THERE WAS A MATERIAL DIFFERENCE IN THE TWO METHODS OF SPACING AND YOUR FIRM'S PROPOSED CONFIGURATION HAD A BUS CAPACITY OF ONLY 2,620 AMPERES, COMPARED WITH SCHOONMAKER'S CAPACITY OF 3,155 AMPERES. AS TO THE OTHER ALLEGATIONS PRESENTED IN YOUR LETTER OF FEBRUARY 10, THE PROCURING AGENCY REPORTS AS FOLLOWS:

"1. ALTHOUGH THE IFBS REQUIRED A SHOWING OF BUS BAR SIZES AND QUANTITIES, THEY DID NOT REQUIRE A SHOWING OF BUS BAR SPACING.

"2. THERE WAS NO VIOLATION OF THE DESCRIPTIVE LITERATURE REQUIREMENT BY THE H. O. PENN COMPANY WHEN IT STATED IN ITS BID THAT "REQUIRED AMPERES WOULD BE MET.' THE STATEMENT WAS NOT MADE AS A SUBSTITUTE FOR, BUT WAS MADE COLLATERALLY WITH, THE SUBMISSION OF DESCRIPTIVE LITERATURE.

"3. (A) NO ONE BIDDER WAS FAVORED OVER OTHER BIDDERS. FOLEY VOLUNTARILY, WITHOUT BEING REQUIRED TO DO SO BY THE IFBS, SUBMITTED A BUS BAR SPACING CONFIGURATION THAT WOULD NOT MEET PERFORMANCE SPECIFICATIONS. THERE HAS BEEN NO ADMISSION BY NASA, AND IT IS NOT A FACT, THAT THE BUS BARS PROPOSED BY SUCCESSFUL BIDDERS WERE INADEQUATE.

(B) SUCCESSFUL BIDDERS HAVE NOT BEEN PERMITTED TO CHANGE THEIR PROPOSED BUS BAR SIZES.

"4. AS HAS BEEN STATED BEFORE, ANY ONE OF A NUMBER OF BUS BAR SPACING METHODS WOULD HAVE MET NASA SPECIFICATIONS. OUR TECHNICAL REPRESENTATIVES DO NOT BELIEVE THAT ANY SIGNIFICANT COST DIFFERENTIAL EXISTS AMONG THE POSSIBLE CONFIGURATIONS OF THE THREE 1/4 INCH BY 5 INCH BARS PROPOSED BY H. O. PENN.

"WE DO NOT AGREE WITH FOLEY'S CONCLUSION THAT THE USE BY THE SUCCESSFUL BIDDERS OF A STORED ENERGY CIRCUIT BREAKER, INSTEAD OF A SOLENOID OPERATED BREAKER, GIVES THE SUCCESSFUL BIDDERS A COST ADVANTAGE OF APPROXIMATELY $1,000. THE ITE STORED ENERGY CIRCUIT BREAKER PROPOSED BY THE SUCCESSFUL BIDDERS IS EQUAL TO THE WESTINGHOUSE SOLENOID CIRCUIT BREAKER AND THE PRICES ARE ABOUT THE SAME.'

THE RESPONSIVENESS OF A BID MUST BE DETERMINED SOLELY ON THE BASIS OF THE BID AND ANY EXPLANATORY INFORMATION SUBMITTED THEREWITH PRIOR TO BID OPENING. IF A BID IS SO PREPARED AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO COMPLY WITH THE INVITATION REQUIREMENTS, ANY NEGOTIATIONS WITH THE BIDDER TO CLARIFY SUCH INTENTION WOULD BE OBJECTIONABLE ON THE GROUNDS THAT NO BIDDER SHOULD BE AFFORDED A SECOND CHANCE TO BID AFTER BIDS ARE OPENED. SEE 36 COMP. GEN. 705.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND TO DETERMINE FACTUALLY WHETHER EQUIPMENT OFFERED BY BIDDERS MEETS THOSE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE PROCUREMENT ACTIVITY. SEE 17 COMP. GEN. 554, 19 ID. 587 AND 40 ID. 35. THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE PROCUREMENT ACTIVITY, REASONABLY MEET THE ACTIVITY'S NEED.

IN THE CIRCUMSTANCES, NO LEGAL BASIS EXISTS FOR DISTURBING THE ACTION OF THE ADMINISTRATIVE OFFICIALS, AND YOUR PROTEST IS DENIED.