B-160041, OCT. 27, 1966

B-160041, OCT. 27, 1966

TO POWERCON CORPORATION:

YOUR LETTER DATED AUGUST 18, 1966, RECEIVED HERE SEPTEMBER 12, REQUESTED THE CANCELLATION OF INVITATION FOR BIDS (IFB) NO. DACA51-67 B-0005, ISSUED BY THE DEPARTMENT OF THE ARMY, NEW YORK DISTRICT, CORPS OF ENGINEERS.

THE SUBJECT IFB IS FOR "GENERATOR REHABILITATION AND SWITCHGEAR," AND ORIGINALLY CONSISTED OF 12 UNITS WITH AN OPTION FOR 3 ADDITIONAL UNITS. THE IFB WAS ISSUED ON AUGUST 10, 1966, AND THE ORIGINAL BID OPENING DATE WAS SEPTEMBER 1, 1966. ADDITIONAL UNITS HAVE BEEN ADDED SINCE THAT TIME AND THE BID OPENING DATE HAS BEEN POSTPONED INDEFINITELY.

YOUR LETTER STATES NUMEROUS ALLEGED IMPROPRIETIES IN THE IFB IN JUSTIFICATION OF YOUR REQUEST FOR CANCELLATION. THE TWO PRIMARY OBJECTIONS APPARENTLY ARE THAT THE IFB REQUIRED DELIVERY OVER A 6 MONTH PERIOD WITHOUT PROVIDING FOR PROGRESS PAYMENTS AND THAT THE SWITCHGEAR PORTION OF THE IFB SHOULD HAVE BEEN SEPARATE FROM THE PORTION OF THE IFB RELATING TO DIESEL ENGINES.

THE REPORT SUBMITTED TO OUR OFFICE BY THE CORPS OF ENGINEERS ADVISES THAT, WHILE PROGRESS PAYMENTS WERE NOT CONSIDERED TO BE REQUIRED UNDER THE SUBJECT IFB AND WHILE NO OTHER BIDDERS REQUESTED PROGRESS PAYMENTS, AS A RESULT OF YOUR LETTER THE IFB WILL BE AMENDED TO PROVIDE FOR PROGRESS PAYMENTS.

WITH REGARD TO YOUR CONTENTION THAT THE SWITCHGEAR AND DIESEL ENGINE PORTIONS OF THE IFB SHOULD HAVE BEEN SEPARATE, HOWEVER, THE REPORT JUSTIFIES THE AGENCY'S ACTIONS IN THE FOLLOWING TATEMENT:

"THE PRIMARY REASON FOR SOLICITING BIDS ON A SINGLE ITEM BASIS IS TO PRECLUDE THE NECESSITY FOR ADMINISTERING, SUPERVISING, AND COORDINATING MULTIPLE CONTRACTS. THE NATURE OF THE WORK INVOLVED IS SUCH THAT ALL ELEMENTS MUST BE CAREFULLY COORDINATED, SYNCHRONIZED, AND TESTED TO FUNCTION AS A SINGLE PLANT. TO ACCOMPLISH THIS END, IT IS CONSIDERED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO HAVE A SPECIALIZED PRIME CONTRACTOR ASSUME THE RESPONSIBILITY FOR SUCH COORDINATION AND TESTING.'

OTHER OBJECTIONS STATED IN YOUR LETTER ARE THAT THE IFB DID NOT ALLOW 30 DAYS BEFORE BID OPENING; THAT SECTION 1, PARAGRAPH 1-03C, OF THE IFB IS RESTRICTIVE IN THAT IT REQUIRES THAT WORK PROPOSED BY THE IFB BE SUPERVISED BY THE WHITE MOTOR COMPANY, THE MANUFACTURER OF THE UNITS TO BE REHABILITATED; THAT THE SPECIFICATIONS, PRICE ESCALATION, PAYMENT AND DELIVERY PORTIONS OF THE IFB ARE NOT SUFFICIENTLY SPECIFIC AND THEREFORE PRECLUDE BIDDERS FROM BIDDING ON AN EQUAL BASIS; THAT AN INCORRECT GOVERNMENT-FURNISHED PROPERTY CLAUSE WAS USED IN THE IFB; AND THAT THE TIME OF DELIVERY OF GOVERNMENT PROPERTY WAS NOT STATED IN THE GOVERNMENT- FURNISHED PROPERTY CLAUSE.

THE CORPS OF ENGINEERS REPORT STATES THAT 22 DAYS WERE ALLOWED FOR BIDDING TIME, WHICH WAS CONSIDERED BY THE CONTRACTING OFFICER TO BE REASONABLE, IN VIEW OF THE NATURE OF THIS PROCUREMENT AND THE TIME NEEDED FOR PERFORMANCE.

WITH REGARD TO YOUR COMPLAINT THAT THE SPECIFICATIONS ARE NOT SPECIFIC BECAUSE THEY REQUIRE ADHERENCE TO "MANUFACTURER'S RECOMMENDATIONS" WHICH ARE NOT CONTAINED IN THE IFB, THE REPORT STATES THAT THIS PROCEDURE IS NORMAL PRACTICE WHERE MANUFACTURED EQUIPMENT IS TO BE REHABILITATED. THE REPORT FURTHER STATES, IN ANSWER TO YOUR OBJECTIONS CONCERNING SHIPMENT OF COMPONENTS TO THE MANUFACTURER, THAT "IT IS NORMAL PRACTICE TO SHIP COMPONENTS SUCH AS GOVERNORS AND FUEL PUMPS TO THE MANUFACTURER OR ITS AUTHORIZED SERVICE SHOP FOR INSPECTION AND OVERHAUL.' THE REPORT MAINTAINS THAT THE ALTERNATIVES OF "OVERHAUL OR EXCHANGE" IN THE CASE OF GOVERNORS AND "CALIBRATE OR REPLACE" IN THE CASE OF PYROMETERS, WHICH YOU CONTEND ARE NOT SPECIFIC, ARE NECESSARY BECAUSE THE PARTICULAR ALTERNATIVE USED DEPENDS ON THE METHOD EMPLOYED BY THE MANUFACTURER AT A GIVEN TIME, AND THAT "THE USE OF EITHER METHOD WOULD NOT BE OF SUFFICIENT MONETARY SIGNIFICANCE AS TO AFFECT MATERIALLY THE OVERALL BID PRICE.'

THE REPORT STATES THAT THE PRICE ESCALATION PORTION OF THE IFB IS IN ACCORDANCE WITH ASPR 2-201 (A) (XX), WHICH REQUIRES THAT THE INVITATION PROVIDE THE EXACT BASIS UPON WHICH BIDS WILL BE EVALUATED, AND THAT THE GOVERNMENT-FURNISHED PROPERTY CLAUSE IS AUTHORIZED BY ASPR 13-702. ANSWER TO YOUR CONTENTION THAT THE TIME OF DELIVERY OF GOVERNMENT- FURNISHED PROPERTY SHOULD BE STATED, THE REPORT POINTS OUT THAT THE IFB DOES NOT REQUIRE THAT THE GOVERNMENT DELIVER THE GOVERNMENT-FURNISHED PROPERTY, BUT RATHER THAT IT BE PICKED UP BY THE CONTRACTOR FROM STORAGE AT TINKER AIR FORCE BASE.

THE REPORT ALSO CONCLUDES THAT THE TRANSPORTATION PORTION OF THE IFB IS CLEAR SINCE THE REQUIREMENT THAT EQUIPMENT BE PICKED UP AT TINKER AIR FORCE BASE REFERS TO THE ITEMS TO BE REHABILITATED, WHILE THE F.O.B. ORIGIN REQUIREMENT REFERS TO THE ITEMS AFTER REHABILITATION, AT WHICH TIME THEY WILL BE PICKED UP AT THE CONTRACTOR'S PLANT BY THE GOVERNMENT.

SIMILARLY, PARAGRAPH 16, SCHEDULE PAGE 9, ENTITLED "PAYMENT," WHICH WAS QUESTIONED BY YOU, IS CLEAR WHEN READ IN CONJUNCTION WITH GENERAL PROVISION 7 OF THE STANDARD SUPPLY CONTRACT PROVISIONS OF THE IFB.

WITH REGARD TO YOUR COMPLAINT CONCERNING STORAGE CHARGES CAUSED BY GOVERNMENT DELAY IN TAKING DELIVERY UNDER AN EARLIER CONTRACT, THE CORPS OF ENGINEERS REPORT STATES THAT THE SPECIFIC DELAY MENTIONED BY YOU WAS CAUSED BY UNUSUAL CIRCUMSTANCES BEYOND THE CONTROL OF THE CONTRACTING OFFICER, BUT THAT UNDER NORMAL CONDITIONS, THE DELAY IS NOT SO UNREASONABLE THAT THE INCLUSION IN THE IFB OF PROVISIONS FOR THE PAYMENT OF STORAGE CHARGES WOULD BE WARRANTED.

EXCEPT FOR YOUR OBJECTION TO THE FAILURE OF THE ARMY TO INCLUDE A PROVISION FOR PROGRESS PAYMENTS, WHICH PROVISION, AS INDICATED ABOVE, WILL BE ADDED TO THE IFB, AND YOUR OBJECTIONS TO THE FORM OF CERTAIN CLAUSES INCLUDED IN THE IFB, WHICH IN OUR OPINION ARE ADEQUATELY ANSWERED BY THE CORPS OF ENGINEERS REPORT AS SUMMARIZED ABOVE, YOUR COMPLAINTS GENERALLY CONCERN AREAS WITHIN THE BROAD RANGE OF ADMINISTRATIVE DISCRETION VESTED IN THE CONTRACTING OFFICIALS. THE ADMINISTRATIVE AGENCIES ARE CHARGED WITH THE RESPONSIBILITY OF PROCURING NEEDED SUPPLIES AND SERVICES. INCLUDED IN THIS RESPONSIBILITY, NECESSARILY, IS THE DRAFTING OF INVITATIONS AND SPECIFICATIONS DESIGNED TO MEET THE NEEDS OF THE GOVERNMENT. THIS OFFICE WILL NOT INTERFERE IN THESE AREAS UNLESS THERE IS CLEAR EVIDENCE THAT THE CONTRACTING OFFICER'S ACTIONS ARE SO UNREASONABLE THAT THEY AMOUNT TO AN ABUSE OF HIS DISCRETION. A REVIEW OF THE CORPS OF ENGINEERS REPORT LEADS US TO THE CONCLUSION THAT THE IFB ADEQUATELY MEETS THE NEEDS OF THE GOVERNMENT AND IS SUFFICIENTLY CLEAR TO ENABLE ALL BIDDERS TO BID ON AN EQUAL BASIS.