B-162403, AUG. 20, 1968

B-162403, AUG. 20, 1968

TO LCL CONTROLS:

WE REFER TO YOUR LETTERS OF JULY 23 AND 24, 1968, REQUESTING RECONSIDERATION OF OUR DECISION B-162403, JULY 19, 1968, WHICH DENIED THE PROTEST AGAINST THE REJECTION OF YOUR BID UNDER ADVERTISED SOLICITATION NO. DACW56-68-B-0036 ISSUED FEBRUARY 12, 1968, BY THE DISTRICT ENGINEER, CORPS OF ENGINEERS, TULSA DISTRICT, TULSA, OKLAHOMA, TO PROCURE A CONTROL SWITCHBOARD AND ASSOCIATED EQUIPMENT FOR INSTALLATION IN THE ROBERT S. KERR LOCK AND DAM POWERHOUSE. LCL'S BID WAS REJECTED FOR FAILURE TO COMPLY WITH THE DESCRIPTIVE DATA REQUIREMENTS OF THE SOLICITATION, PARTICULARLY IN REGARD TO THE AUTOMATIC SYNCHRONIZING EQUIPMENT UNDER PARAGRAPH 3-09 OF THE SPECIFICATIONS.

YOUR RECENT LETTERS POINT OUT THAT THE SPECIFICATIONS PERMITTED BIDDERS TO OFFER A ,WESTINGHOUSE TYPE XT" AUTOMATIC SYNCHRONIZER WITHOUT SUBMITTING DESCRIPTIVE DATA AS AN ITEM WHICH HAD BEEN PREVIOUSLY APPROVED FOR USE IN THE PROJECT. YOU CONTEND THAT THE INSERTION OF THE WORD ,WESTINGHOUSE" IN THE APPROPRIATE BLANK OPPOSITE THE WORDS "AUTOMATIC SYNCHRONIZING EQUIPMENT" IN PARAGRAPH 22C (2), CONSTITUTED FULL COMPLIANCE. IT IS CONTENDED THAT BY THIS ACT LCL INDICATED THAT IT PROPOSED TO FURNISH A WESTINGHOUSE TYPE X - TRANSISTORIZED SYNCHRONIZER INCLUDING ALL SPECIFIED AUXILIARY ITEMS.

OUR PRIOR DECISION HELD THAT THE WORDS "WESTINGHOUSE TYPE XT" WERE INTENDED AND COULD REASONABLY BE CONSTRUED TO CALL OUT A WESTINGHOUSE TYPE XT7-C, RATHER THAN A WESTINGHOUSE TYPE X - TRANSISTORIZED SYNCHRONIZER. IT WAS THEREFORE CONCLUDED THAT ONLY A BID OFFERING A WESTINGHOUSE TYPE XT7-C OR THE DESIGNATED GENERAL ELECTRIC MODEL COULD BE CONSIDERED RESPONSIVE WITHOUT THE SUBMISSION OF DATA ESTABLISHING THAT THE OFFERED PRODUCT SATISFIED THE SPECIFICATION REQUIREMENTS. YOU STRONGLY DISAGREE WITH THIS CONCLUSION, STATING ON PAGE THREE OF YOUR LETTER OF JULY 23, 1968, THAT "THE WORDS WESTINGHOUSE TYPE XT CAN ONLY BE INTERPRETED TO MEAN -WESTINGHOUSE TYPE X-TRANSISTORIZED-, (ABBREVIATED AS -WESTINGHOUSE TYPE X -T-).' FURTHER, ON PAGE FOUR OF THE SAME LETTER YOU ALLUDE TO THE PRIOR CANCELLED SOLICITATIONS WHICH PRECEDED THE ONE IN QUESTION, ALLEGING: "* * * THERE WAS NO AMBIGUITY IN THE CALL OUT OF THIS DEVICE IN ANY OF THE THREE ADVERTISEMENTS. IN EACH INSTANCE, THE CALL OUT WAS FOR A - WESTINGHOUSE TYPE XT-. THIS IS PRECISELY WHAT WE OFFERED, AND THIS OFFER WAS NOT CHALLENGED ON TWO INSTANCES.'

THIS LATTER ALLEGATION IS NOT SUPPORTED BY THE RECORD. LCL'S BID ON THE IMMEDIATELY PRIOR SOLICITATION, NO. DACW56-68-B-0003, ISSUED BY THE TULSA DISTRICT, CORPS OF ENGINEERS, ENCLOSED TECHNICAL DATA WHICH INCLUDES 23 PAGES OF MATERIAL DESCRIBING THE "WESTINGHOUSE TYPE XT7-C ELECTRONIC SYNCHRONIZER.' WE ARE ENCLOSING FOR YOUR INFORMATION A COPY OF THIS TECHNICAL DATA DESCRIBING THE TYPE XT7-C FURNISHED BY LCL TO THE CORPS OF ENGINEERS IN RESPONSE TO THE PRIOR SOLICITATION. WE BELIEVE THIS PRIOR RESPONSE CONTRAVENES YOUR ALLEGATION THAT THE GOVERNMENT'S FAILURE TO CRITICISE LCL'S EARLIER BIDS LULLED YOUR FIRM INTO THE BELIEF THAT A TYPE X - TRANSISTORIZED WAS DESIRED. IN OUR OPINION YOUR PRIOR RESPONSE TENDS TO SUPPORT THE REASONABLENESS OF THE CONTRACTING OFFICER'S VIEW THAT A "WESTINGHOUSE TYPE XT7-C" WAS IN FACT REQUIRED.

YOUR LETTERS PLACE GREAT STRESS ON THE FACT THAT THE WESTINGHOUSE TYPE XT7-C AUTOMATIC SYNCHRONIZER IS NO LONGER IN PRODUCTION, CONCLUDING THAT IT WAS THEREFORE UNREASONABLE FOR OFFERORS TO ASSUME THAT THE GOVERNMENT INTENDED TO PROCURE AN OBSOLETE PIECE OF EQUIPMENT. HOWEVER, IN ITS SALES LITERATURE WESTINGHOUSE STILL OFFERS SUCH A MODEL TO PROSPECTIVE PURCHASERS. AS STATED IN OUR PRIOR DECISION, WESTINGHOUSE PRICE LIST PL- 56-920, DATED MARCH 1, 1968, APPROXIMATELY THE SAME DATE AS THE ISSUANCE OF THE SUBJECT SOLICITATION, OFFERS FOR SALE THE WESTINGHOUSE TYPE XT7-C AUTOMATIC SYNCHRONIZER AS AN IN-STOCK ITEM. WE THEREFORE CONCLUDE THAT ALTHOUGH THE TYPE XT7-C WAS BEING PHASED OUT OF PRODUCTION, IT WAS NOT UNREASONABLE FOR OFFERORS TO ASSUME THE GOVERNMENT WISHED TO PURCHASE SAID MODEL, OR ITS EQUAL.

IN ADDITION, REGARDLESS OF WHICH OF THE TWO WESTINGHOUSE AUTOMATIC SYNCHRONIZERS WAS INTENDED AS AN ACCEPTABLE PRODUCT UNDER PARAGRAPH 3 09 OF THE SPECIFICATIONS, OFFERORS WHO INDICATED IN THE APPROPRIATE BLANK IN PARAGRAPH 22C (2) THAT THEY PROPOSED TO FURNISH WESTINGHOUSE AUTOMATIC SYNCHRONIZING EQUIPMENT WERE REQUIRED TO SUBMIT DATA DESCRIBING THE AUXILIARY ITEMS, BECAUSE NO WESTINGHOUSE MANUFACTURED SPEED MATCHER OR VOLTAGE BALANCE RELAY WAS LISTED AS AN ACCEPTABLE PRODUCT UNDER THE SPECIFICATIONS. WHILE YOU CONTEND THAT THE TYPE X AUTOMATIC SYNCHRONIZER INCLUDES ALL THE SPECIFIED AUXILIARY EQUIPMENT, WE NOTE THAT THE AUXILIARY ITEMS ARE LISTED AND PRICED SEPARATELY IN THE WESTINGHOUSE SALES LITERATURE. THE FACT THAT THE AUXILIARY ITEMS ARE DESCRIBED AS PLUG-IN UNITS WHICH ARE DESIGNED TO FUNCTION COMPATIBLY WITH THE WESTINGHOUSE TYPE X AUTOMATIC SYNCHRONIZER DOES NOT WARRANT THE CONCLUSION THAT THE UNITS ARE AN INTEGRAL PART OF THE AUTOMATIC SYNCHRONIZER, SINCE ALL OF THE UNITS, OR ANY COMBINATION THEREOF, MAY BE PURCHASED TO SUIT THE USER'S REQUIREMENTS. THEREFORE, LCL'S BID, WHICH DID NOT INCLUDE TECHNICAL DATA DESCRIBING THE AUXILIARY UNITS FOR THE WESTINGHOUSE AUTOMATIC SYNCHRONIZER IT PROPOSED TO FURNISH, MUST BE CONSIDERED NONRESPONSIVE TO THE SOLICITATION'S REQUIREMENTS FOR DATA IN ANY CASE.

WE NOTE TOO, THAT NOWHERE IN THE WESTINGHOUSE DESCRIPTIVE LITERATURE OR SALES LITERATURE IN OUR POSSESSION IS THE WESTINGHOUSE TYPE X AUTOMATIC SYNCHRONIZER TERMED EITHER A "WESTINGHOUSE TYPE X TRANSISTORIZED" OR "WESTINGHOUSE TYPE X-T" AS YOU CONTEND. IT IS RATHER LABELED SIMPLY THE ,WESTINGHOUSE TYPE X.'

WE RECOGNIZE THAT IN PREPARING ITS BID, LCL RELIED UPON THE ENGINEERING SKILL AND TECHNICAL INTERPRETATIONS FURNISHED BY THE SALES ENGINEERS OF THE EQUIPMENT MANUFACTURERS, AND THAT, IN VIEW OF THE EXTENDED HISTORY OF THIS PROCUREMENT, YOUR FIRM MIGHT WELL BE DISAPPOINTED BY THE FAILURE OF ITS REPEATED EFFORTS TO OBTAIN AN AWARD. HOWEVER, FROM OUR REVIEW OF THE ENTIRE RECORD, WE ARE OF THE OPINION THAT ALL PROSPECTIVE CONTRACTORS WERE TREATED FAIRLY AND WERE AFFORDED AN EQUAL OPPORTUNITY TO COMPETE FOR THE CONTRACT AWARD.

AS INDICATED IN OUR DECISION OF JULY 19, 1968, TO YOU, WE HAVE SUGGESTED TO THE SECRETARY OF THE ARMY THAT THE FORMAT OF FUTURE SOLICITATIONS OF THIS TYPE BE REDRAFTED TO CLARIFY BOTH THE DESCRIPTIVE DATA REQUIREMENTS AND THE IDENTIFICATION OF ITEMS WHICH ARE ACCEPTABLE TO THE GOVERNMENT WITHOUT SUCH DATA.

IN VIEW OF THE ABOVE, OUR ORIGINAL DECISION DENYING LCL'S PROTEST IS AFFIRMED.