B-161282, JUL. 20, 1967

B-161282: Jul 20, 1967

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BIDS - DEVIATIONS - DESCRIPTIVE LITERATURE AWARD TO LOW BIDDER WHO SUBMITTED TO ARMY DESCRIPTIVE LITERATURE THAT DID NOT SHOW THAT SWITCHES FOR DIESEL GENERATORS DID NOT MEET SPECIFICATIONS SHOULD HAVE BEEN QUESTIONED. IF DESCRIPTIVE LITERATURE IS NECESSARY. SINCE CONTRACTOR IS MEETING SPECIFICATIONS. TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JUNE 6. THE SOLICITATION WAS FOR THREE 100 KW DIESEL DRIVEN GENERATORS (ITEM 1) AND THREE 60 KW DIESEL DRIVEN GENERATORS (ITEM 2). INSOFAR AS IS PERTINENT HERE. "WE TAKE NO EXCEPTIONS TO THE SPECIFICATION AND WILL DELIVER AS REQUIRED. IN THIS BID TRANSMITTAL LETTER IT IS SPECIFICALLY STATED THAT ZENITH 100 KW AND 60 KW ATTACHMENTS ARE INCLUDED IN THEIR BID.

B-161282, JUL. 20, 1967

BIDS - DEVIATIONS - DESCRIPTIVE LITERATURE AWARD TO LOW BIDDER WHO SUBMITTED TO ARMY DESCRIPTIVE LITERATURE THAT DID NOT SHOW THAT SWITCHES FOR DIESEL GENERATORS DID NOT MEET SPECIFICATIONS SHOULD HAVE BEEN QUESTIONED. IF DESCRIPTIVE LITERATURE IS NECESSARY, THEN ASPR 2-202.5/D) REQUIRES INCLUSION OF PROVISION REQUIRING REJECTION OF BID IF LITERATURE DOES NOT CONFORM TO SPECIFICATIONS. HOWEVER, SINCE CONTRACTOR IS MEETING SPECIFICATIONS, CANCELLATION OF CONTRACT WOULD NOT BE IN INTEREST OF GOVT.

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JUNE 6, 1967, FROM THE ACTING DIRECTOR OF PROCUREMENT POLICY AND REVIEW, FURNISHING THE REPORT REQUESTED IN OUR LETTER OF APRIL 26, 1967, ON THE PROTEST OF JOHNSON AND TOWERS, INCORPORATED, CAMDEN, NEW JERSEY, AGAINST AWARD OF A CONTRACT TO THE ALBAN TRACTOR COMPANY BY THE WALTER REED MEDICAL CENTER UNDER INVITATION FOR BIDS NO. DADA 15-67-B-0071, FOR 60 AND 100 KW DIESEL GENERATOR SETS.

THE SOLICITATION WAS FOR THREE 100 KW DIESEL DRIVEN GENERATORS (ITEM 1) AND THREE 60 KW DIESEL DRIVEN GENERATORS (ITEM 2), WITH BID OPENING DATE OF FEBRUARY 14, 1967. INSOFAR AS IS PERTINENT HERE, THE SPECIFICATION PROVIDED AS FOLLOWS:

"1.6 INFORMATION TO BE FURNISHED BY BIDDER:

"/1) DRAWINGS OF THE GENERATOR SET AND ITS FOUNDATION REQUIREMENTS.

"/2) LITERATURE DESCRIBING UNIT.

"/3) DRAWINGS AND/OR LITERATURE DESCRIBING AUXILIARY EQUIPMENT TO BE FURNISHED.

"2.6 AUTOMATIC TRANSFER SWITCHES FOR THE 60 KW GENERATORS SHALL BE 3 POLE, 200 AMPERES PER POLE. AUTOMATIC TRANSFER SWITCHES FOR THE 100 KW GENERATORS SHALL BE 3 POLES, 400 AMPERES PER POLE.

"THE TRANSFER SWITCHES SHALL BE INHERENTLY INTERLOCKED AND INHERENTLY DOUBLE THROW. ALL PARTS OF THE OPERATING MECHANISM AND MECHANICAL INTERLOCKS SHALL BE ELECTRICALLY DEAD. THE SWITCH SHALL BE ELECTRICALLY OPERATED AND MECHANICALLY HELD IN EITHER POSITION. MAIN CONTACTS SHALL BE SILVER SURFACED AND PROTECTED BY SEPARATE RENEWABLE ARCING CONTACTS AND ARC BARRIERS ON ALL POLES;,

A LETTER ACCOMPANYING THE ALBAN TRACTOR COMPANY'S BID STATED,"THIS LETTER SHALL BECOME A PART OF OUR OFFERING ON THIS INVITATION", AND CONCLUDED,"WE TAKE NO EXCEPTIONS TO THE SPECIFICATION AND WILL DELIVER AS REQUIRED;, ALSO, IN THIS BID TRANSMITTAL LETTER IT IS SPECIFICALLY STATED THAT ZENITH 100 KW AND 60 KW ATTACHMENTS ARE INCLUDED IN THEIR BID; THE DESCRIPTIVE LITERATURE INCLUDED WITH THE TRANSMITTAL LETTER INDICATED THAT ZENITH SWITCHES WOULD BE USED, BUT THE LITERATURE DID NOT CONTAIN INFORMATION THAT WOULD SHOW THAT THE SWITCHES OFFERED DID OR DID NOT MEET THE BID SPECIFICATIONS.

ALBAN TRACTOR COMPANY WAS THE LOW BIDDER ON ITEMS 1 AND 2 COMBINED. FOLLOWING BID OPENING A REPRESENTATIVE OF JOHNSON AND TOWERS STATED TO THE CONTRACTING OFFICER THAT THE ALBAN TRACTOR COMPANY BID (AND SEVERAL OTHER BIDS AS WELL) OFFERED AUTOMATIC TRANSFER SWITCHES MADE BY ZENITH THAT DID NOT MEET THE SPECIFICATIONS SET OUT IN THE INVITATION, BUT GAVE NO REASONS OR DETAILS AS TO HOW OR WHY THE ZENITH SWITCHES DID NOT MEET THE SPECIFICATIONS.

SINCE THE ALBAN TRACTOR COMPANY TOOK NO EXCEPTIONS TO THE SPECIFICATIONS AND THE CENTER ENGINEER, WALTER REED ARMY MEDICAL CENTER, AFTER A TECHNICAL EVALUATION FOUND THE BID ACCEPTABLE, THE CONTRACTING OFFICER DETERMINED THAT THE ALBAN TRACTOR COMPANY BID WAS RESPONSIVE AND AWARDED THE CONTRACT TO THAT FIRM ON MARCH 13, 1967. ON MARCH 15, 1967, JOHNSON AND TOWERS PROTESTED TO THE CONTRACTING OFFICER THAT THE ZENITH SWITCHES OFFERED BY LOW BIDDER DOES NOT HAVE "RENEWABLE ARCING CONTACTS" AND DO NOT COMPLY WITH THE SPECIFICATIONS.

IT IS FURTHER REPORTED THAT IN VIEW OF THE PROTEST, THE CONTRACTING OFFICER ADVISED THE CONTRACTOR THAT "THE GOVERNMENT FULLY EXPECTS THE ALBAN TRACTOR COMPANY TO DELIVER AUTOMATIC TRANFER SWITCHES IN STRICT COMPLIANCE WITH PARAGRAPH 2.6 OF THE CONTRACT SPECIFICATIONS;, IN A LETTER OF REPLY DATED MARCH 30, 1967, THE ALBAN TRACTOR COMPANY STATED THAT:

"THE AUTOMATIC TRANSFER SWITCH THAT WILL BE FURNISHED ON THIS CONTRACT TO MEET THE SPECIFICATION TO THE LETTER WILL BE THE RUSSELECTRIC RMT TYPE. THIS SWITCH CAN BE EQUIPPED WITH SEPARATE RENEWABLE ARCHING (SIC) CONTACTS AND ARC BARRIERS ON ALL POLES. COMPLETE AND DETAILED INFORMATION ON THIS SWITCH ALONG WITH THE BALANCE OF THE SUBMITTAL INFORMATION REQUIRED BY THE SPECIFICATION WILL BE IN YOUR HANDS IN A FEW DAYS;,

IN ITS LETTER OF PROTEST DATED APRIL 14, 1967, TO OUR OFFICE, JOHNSON AND TOWERS STATED THAT:

"ONE OF THE ITEMS TO BE FURNISHED AS PART OF THE DIESEL GENERATOR SETS WAS AN AUTOMATIC TRANSFER SWITCH. SECTION 2.6 OF THE CONTRACT SPECIFICATION DESCRIBES THE TYPE OF SWITCH TO BE FURNISHED. ONE SENTENCE OF THIS SECTION STATES -MAIN CONTACTS SHALL BE SILVER SURFACED AND PROTECTED BY SEPARATE RENEWABLE ARCING CONTACTS AND ARC BARRIERS ON ALL POLES.-

"WE SOLICITED BIDS FROM THE AUTOMATIC SWITCH COMPANY, ZENITH ELECTRIC COMPANY AND OTHERS FOR THESE SWITCHES. A COPY OF OUR QUOTATION FROM ZENITH ELECTRIC COMPANY IS ENCLOSED. PLEASE NOTE THAT THEY TAKE EXCEPTION TO THIS PART OF THE SPECIFICATION AND STATE THAT THEIR TYPES MT AND 6MT SWITCHES ARE NOT SUPPLIED WITH ARCING CONTACTS.

"BECAUSE OF THIS EXCEPTION WE BASED OUR BID ON USING THE AUTOMATIC SWITCH COMPANY PRODUCT WHICH DOES MEET THE SPECIFICATION. SINCE THE PRICE OF THEIR PRODUCT WAS SUBSTANTIALLY HIGHER OUR BID PRICE WAS HIGHER;, WITH THIS LETTER, THERE WAS ENCLOSED A COPY OF A PRICE QUOTATION OBTAINED FROM ZENITH ELECTRIC COMPANY, DATED JANUARY 23, 1967, CONCERNING TRANSFER SWITCHES, WHICH CONTAINED THE FOLLOWING NOTATION:

"EXCEPTIONS TO SPECS:

"ZENITH MAIN CONTACTS MEET WITH ROLLING AND WIPING ACTION, THEREFORE ARCING CONTACTS ARE NOT NECESSARY AND NOT SUPPLIED;,THE LETTER FURTHER STATES THAT THE ABOVE INFORMATION WAS MADE KNOWN TO THE CONTRACTING OFFICIALS PRIOR TO AWARD, AND WAS AVAILABLE TO APPROPRIATE AUTHORITIES AT THE CONTRACTING OFFICE BY EXAMINATION OF THE ZENITH CATALOG. IN ADDITION, IT IS ARGUED THAT THE FACT THAT ALBAN TRACTOR COMPANY LATER AGREED TO FURNISH SWITCHES THAT MEET SPECIFICATION REQUIREMENTS HAS NO BEARING ON THE FACT THAT THE BID WAS NON-RESPONSIVE.

THE TEST OF THE RESPONSIVENESS OF A BID IS WHETHER, UPON ACCEPTANCE, THE BIDDER IS BOUND TO PERFORM IN STRICT ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS. IN THIS INSTANCE, WHILE THE LOW BID DID NOT ON ITS FACE EXCEPT TO ANY REQUIREMENT OF THE SPECIFICATIONS, THE OFFERED SWITCHES AS NORMALLY MANUFACTURED DO NOT MEET THE ARCING CONTACT REQUIREMENT SPELLED OUT IN THE INVITATION FOR BIDS AND THERE APPEARS TO BE A SUBSTANTIAL QUESTION, IN VIEW OF THE SUBSEQUENT OFFER BY THE CONTRACTOR TO SUPPLY THE PRODUCT OF ANOTHER MANUFACTURER, WHETHER THE SWITCHES PROFFERED IN THE LOW BID COULD BE MODIFIED TO MEET THE IFB REQUIREMENT.

THIS DILEMMA ARISES BECAUSE THE IFB, WHILE CALLING FOR THE SUBMISSION OF DRAWINGS AND/OR DESCRIPTIVE LITERATURE CONCERNING THE PRODUCT AND ACCESSORIES OFFERED, DOES NOT MEET THE STANDARDS ESTABLISHED AT ASPR 2 202.5 FOR OBTAINING DESCRIPTIVE LITERATURE. ASPR 2-202.5 (B) PROVIDES THAT INVITATIONS SHALL CALL FOR DESCRIPTIVE DATA ONLY WHEN NEEDED TO DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS. WHEN DESCRIPTIVE LITERATURE IS REQUIRED, ASPR 2-202.5 (B) MAKES MANDATORY IN THIS KIND OF SITUATION THE INCLUSION OF A PROVISION STATING IN PART,"FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID;,

IF THE DESCRIPTIVE LITERATURE WAS REGARDED AS NECESSARY AND THE CLAUSE REQUIRED BY ASPR HAD BEEN INCLUDED IN THE INVITATION FOR BIDS, THE LITERATURE ON THE SWITCHES SUBMITTED WITH THE LOW BID WOULD HAVE REQUIRED ITS REJECTION FOR FAILURE TO SHOW THAT THE ARCING CONTACT REQUIREMENT WOULD BE MET. IF, ON THE OTHER HAND, THERE WAS NO NEED FOR THE LITERATURE, IT SHOULD NOT HAVE BEEN CALLED FOR. IF THE LITERATURE HAD NOT BEEN REQUIRED AND NONE HAD BEEN INCLUDED IN THE LOW BID, SUCH BID, PRESUMABLY, WOULD HAVE BEEN CLEARLY RESPONSIVE.

WE THINK THE FAILURE TO COMPLY WITH ASPR CREATED AN AMBIGUITY CASTING SERIOUS DOUBT ON THE VALIDITY OF THE INVITATION AND THE RESULTING CONTRACT, WHICH DOUBT, INCIDENTALLY, IS NOT OVERCOME BY ANY OVERALL OFFER TO COMPLY IN THE BID. SEE 41 COMP. GEN. 192; 40 ID. 132; 36 ID. 415. HOWEVER, SINCE THE CONTRACT CALLED FOR DELIVERY OF THE ITEMS IN 180 DAYS, MORE THAN 120 DAYS OF WHICH HAVE PASSED, AND SINCE IT APPEARS THAT THE ACTUAL NEEDS OF THE GOVERNMENT WILL BE MET, WE DO NOT FEEL THAT CANCELLATION OF THE CONTRACT AT THIS TIME WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT.

WE NOTE, IN THE REPORT LETTER OF JUNE 6, 1967, THAT ACTION WILL BE TAKEN TO INSURE THAT ASPR 2-202.5 IS COMPLIED WITH IN THE FUTURE.