B-163607, MAR. 11, 1968

B-163607: Mar 11, 1968

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THAT SPECIFICATIONS FOR HEATING PLANT AT AIR FORCE ACADEMY WERE SO RESTRICTIVE THAT ONLY ONE BOILER MANUFACTURER COULD COMPLY AND THAT LOW SUCCESSFUL BIDDER'S BOILER HAD NOT DEMONSTRATED SATISFACTORY OPERATION. WHERE EQUIPMENT OF TWO MANUFACTURERS WOULD MEET SPECIFICATIONS AND FACT THAT SPECIFICATIONS WERE SIMILAR TO EQUIPMENT OF ANOTHER MANUFACTURER NOW IN USE IS NOT INDICATIVE THAT SPECIFICATIONS ARE RESTRICTIVE. ALSO AS TO WHETHER LOW BIDDER HAS DEMONSTRATED EXPERIENCE IS PRIMARILY MATTER OF ADMINISTRATIVE DISCRETION AND AGENCY'S DETERMINATION IS NOT BASED ON SUBSTANTIAL EVIDENCE. WILL NOT SUBSTITUTE HIS JUDGMENT. OF ARMY OBJECTION WAS MADE TO THE PRE-AWARD INFORMATION REQUIREMENT IN THE INVITATION BECAUSE IT GAVE BIDDER OPTION OF REFUSING AWARD AFTER BID OPENING BY CREATING DEFICIENCIES AND THEREBY CAUSING REJECTION.

B-163607, MAR. 11, 1968

BIDS - SPECIFICATIONS - RESTRICTIVE DECISION TO INTERNATIONAL BOILER WORKERS CO., DENYING AMONG OTHER CONTENTIONS, THAT SPECIFICATIONS FOR HEATING PLANT AT AIR FORCE ACADEMY WERE SO RESTRICTIVE THAT ONLY ONE BOILER MANUFACTURER COULD COMPLY AND THAT LOW SUCCESSFUL BIDDER'S BOILER HAD NOT DEMONSTRATED SATISFACTORY OPERATION. WHERE EQUIPMENT OF TWO MANUFACTURERS WOULD MEET SPECIFICATIONS AND FACT THAT SPECIFICATIONS WERE SIMILAR TO EQUIPMENT OF ANOTHER MANUFACTURER NOW IN USE IS NOT INDICATIVE THAT SPECIFICATIONS ARE RESTRICTIVE. ALSO AS TO WHETHER LOW BIDDER HAS DEMONSTRATED EXPERIENCE IS PRIMARILY MATTER OF ADMINISTRATIVE DISCRETION AND AGENCY'S DETERMINATION IS NOT BASED ON SUBSTANTIAL EVIDENCE. COMP. GEN. WILL NOT SUBSTITUTE HIS JUDGMENT. IN A LETTER TO SECY. OF ARMY OBJECTION WAS MADE TO THE PRE-AWARD INFORMATION REQUIREMENT IN THE INVITATION BECAUSE IT GAVE BIDDER OPTION OF REFUSING AWARD AFTER BID OPENING BY CREATING DEFICIENCIES AND THEREBY CAUSING REJECTION. SINCE OPTION IS INCONSISTANT WITH COMPETITIVE BID SYSTEM CLAUSE SHOULD BE ELIMINATED.

TO THE INTERNATIONAL BOILER WORKS COMPANY:

WE REFER TO YOUR PROTEST, FORWARDED TO THIS OFFICE BY THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. DACA45-68-B-0005.

THAT INVITATION, ISSUED OCTOBER 6, 1967, BY THE U.S. ARMY ENGINEER DISTRICT, OMAHA, NEBRASKA, REQUESTED BIDS FOR THE CONSTRUCTION OF A HEATING PLANT AND BUILDING ADDITIONS AT THE UNITED STATES AIR FORCE ACADEMY. ON NOVEMBER 29, 1967, THE TEN BIDS RECEIVED WERE OPENED. THE TERMS OF THE INVITATION REQUIRED THE LOW RESPONSIVE BIDDER TO SUBMIT PRIOR TO CONTRACT AWARD CERTAIN DESCRIPTIVE DATA CONCERNING THE HTHW GENERATOR AND AUXILIARIES TO BE FURNISHED UNDER THE CONTRACT. PARAGRAPH 13, PAGE IB -5 OF THE INVITATION PROVIDED:

"13. PRE-AWARD INFORMATION. THE LOW RESPONSIVE BIDDER WILL BE REQUIRED TO COMPLETE AND SUBMIT ALL HTHW GENERATOR AND AUXILIARIES DATA REQUIRED ON THE ATTACHED PAGES BIB-1 THROUGH BIB-4 PRIOR TO AWARD OF THE CONTRACT. THIS DATA WILL BE REVIEWED TO VERIFY IN GENERAL THAT IT MEETS THE MINIMUM REQUIREMENTS OF THE SPECIFICATIONS. IF THIS REVIEW REVEALS DEFICIENCIES IN THE PROPOSED GENERATOR THE BIDDER MAY PROPOSE REVISIONS TO OR SUBSTITUTIONS FOR THE ORIGINALLY PROPOSED GENERATOR TO CORRECT THE DEFICIENCIES SO LONG AS IT DOES NOT CHANGE THE AMOUNT OF HIS BID. IF THE BIDDER DECLINES TO CORRECT THE DEFICIENCIES WITHOUT ADJUSTMENT IN HIS BID, HIS BID WILL BE REJECTED. AWARD OF THE CONTRACT WILL NOT RELEASE THE CONTRACTOR FROM COMPLIANCE WITH THE SPECIFICATION REQUIREMENTS. THE BID DATA, AS SUBMITTED BY THE SUCCESSFUL BIDDER WILL BE MADE A PART OF THE CONTRACT.'

THE PERTINENT SPECIFICATIONS CONCERNING THE MANUFACTURE OF HTHW GENERATORS WERE SET FORTH IN SPECIFICATION SECTION 15E, HIGH TEMPERATURE WATER GENERATOR AND AUXILIARIES WHICH PROVIDED IN ART:

"2.8 EXPERIENCE REQUIREMENTS. HIGH TEMPERATURE WATER GENERATOR SHALL BE THE PRODUCT OF A MANUFACTURER WHO CAN SHOW SUCCESSFUL INSTALLATION AND SATISFACTORY OPERATION OF GENERATORS OF THE DESIGN AND TYPE SPECIFIED HEREIN, WHICH HAVE BEEN INSTALLED AND OPERATING SATISFACTORY FOR AT LEAST 2 YEARS PRIOR TO BID OPENING DATE; AND THE RATED CAPACITY OF THE GENERATOR BEING AT LEAST 30 MILLION BTU PER HOUR AT A LEAVING WATER TEMPERATURE OF AT LEAST 350 DEGREES F. AND WITH THE SAME FLOW PATTERN AND CHARACTERISTICS.

"2.9 DESCRIPTION OF SYSTEM

2.9.1 EXISTING GENERATORS. HIGH TEMPERATURE HOT WATER IN THIS PLANT IS NOW GENERATED BY THREE COMBUSTION ENGINEERING LAMONT, CONTROLLED CIRCULATION, WATER TUBE GENERATORS. THE EXISTING GENERATORS ARE DESIGNED FOR 500 PSIG OPERATING PRESSURE. EACH HAS A NAME PLATE HEATING SURFACE OF 9,810 SQ. FT. GENERATORS WERE MANUFACTURED AND INSTALLED IN ACCORDANCE WITH ASME RULES AND ARE DATED 1957. THE OUTLETS OF EACH GENERATOR'S SAFETY VALVES ARE PIPED TO A CENTRIFUGAL SEPARATOR TANK WITH A DRAIN TO THE BLOW-DOWN PIT AND A VENT THROUGH THE ROOF.

"2.9.2 EXISTING BURNERS. EACH GENERATOR IS SERVED BY TWO TODD SHIPYARD COMBINATION GAS-OIL BURNERS. EACH BURNER HAS A GAS RING AND A PRESSURE ATOMIZING NOZZLE FOR OIL FIRING. FLAME DETECTORS ARE FIREYE. NATURAL GAS IS THE PRIMARY FUEL, NO. 6 FUEL OIL IS PROVIDED FOR STANDBY.

"3. MATERIALS AND EQUIPMENT SHALL CONFORM TO THE RESPECTIVE PUBLICATIONS AND OTHER REQUIREMENTS SPECIFIED BELOW. OTHER MATERIALS AND EQUIPMENT SHALL BE AS SPECIFIED ELSEWHERE HEREIN AND AS SHOWN ON THE DRAWINGS AND SHALL BE THE CATALOG PRODUCTS OF MANUFACTURERS REGULARLY ENGAGED IN THE MANUFACTURE OF SUCH PRODUCTS. ITEMS OF EQUIPMENT, AS ASSEMBLED, SHALL BE ESSENTIALLY SIMILAR TO EQUIPMENT THAT HAS BEEN IN SATISFACTORY USE AT LEAST TWO YEARS, AND SHALL BE SUPPORTED BY A SERVICE ORGANIZATION THAT IS, IN THE OPINION OF THE CONTRACTING OFFICER, REASONABLY CONVENIENT TO THE SITE.

"7.3 CAPACITY. THE HIGH TEMPERATURE WATER GENERATOR SHALL HAVE A CONTINUOUS CAPACITY OF 80,000,000 BTU PER HOUR WHEN FIRED WITH FUELS AS SPECIFIED HEREINAFTER. ALL PRESSURE PARTS SHALL BE DESIGNED FOR 500 PSI WORKING PRESSURE. THE GENERATOR SHALL NORMALLY OPERATE WITH WATER SUPPLIED AT A MINIMUM INLET TEMPERATURE OF 312 DEGREES F. AND DELIVER WATER AT THE OUTLET AT 454 DEGREES F. AT THE APPROX. FLOW RATE OF 1150 GPM.

"7.4 MINIMUM HEATING SURFACE AND FURNACE VOLUME. THE GENERATOR SHALL HAVE A MINIMUM OF 975 SQ. FT. OF EFFECTIVE RADIANT HEATING SURFACE AND AT LEAST 10,650 SQ. FT. OF TOTAL HEATING SURFACE. FURNACE VOLUME BELOW SCREEN TUBES SHALL BE NOT LESS THAN 2780 CU. FT.' THE LOW SUCCESSFUL BIDDER PROPOSED TO FURNISH FLO-KONTROLD HTHW GENERATORS MANUFACTURED BY BOILER ENGINEERING AND SUPPLY COMPANY.

YOU CONTEND THAT THE SPECIFICATIONS WERE SO RESTRICTIVE AS TO LIMIT CONSIDERATION TO ONE BOILER MANUFACTURER, BOILER ENGINEERING AND SUPPLY COMPANY, AND THAT THE FLO-KONTROLD HTHW GENERATORS OFFERED BY THE LOW BIDDER HAD NOT DEMONSTRATED SATISFACTORY OPERATION AS REQUIRED BY SPECIFICATION PARAGRAPH 2.8, SECTION 15E, OF THE INVITATION. THE DISTRICT ENGINEER ACKNOWLEDGED YOUR PROTEST BY TELEGRAM DATED DECEMBER 18, 1967, AND ALSO ADVISED THAT THE INVITATION WAS NOT CONSIDERED RESTRICTIVE INASMUCH AS BOILERS MANUFACTURED BY BABCOCK AND WILCOX, AND COMBUSTION ENGINEERING COMPANY WERE ACCEPTABLE AND THAT THE FLO KONTROLD HTHW GENERATORS COMPLIED WITH THE EXPERIENCE REQUIREMENTS. ON DECEMBER 21, 1967, THE DISTRICT ENGINEER DECIDED, NOTWITHSTANDING YOUR PROTEST, THAT IMMEDIATE AWARD WAS NECESSARY AND IN THE BEST INTEREST OF THE GOVERNMENT AND ON DECEMBER 27, 1967, YOU WERE REQUESTED BY TELEGRAM TO WITHDRAW YOUR PROTEST IN VIEW OF THE DENIAL OF THE SAME BY THE DISTRICT ENGINEER AND THE AWARD TO THE LOW BIDDER. HOWEVER, YOU WERE ALSO ADVISED THAT THE PROTEST WOULD BE SUBMITTED TO THIS OFFICE, IF SO DESIRED. BY YOUR TELEGRAM OF JANUARY 3, 1968, YOU CHOSE THE LATTER COURSE OF ACTION.

IN YOUR LETTER DATED DECEMBER 26, 1967, YOU ALLEGED THAT COMBUSTION ENGINEERING AND BABCOCK AND WILCOX FAILED TO SUBMIT QUOTES TO PRIME CONTRACTORS AND THAT THIS WAS EVIDENCE OF A RESTRICTIVE INVITATION. ASSUMING, ARGUENDO, THAT THIS IS THE CASE, IT DOES NOT ESTABLISH THAT THE INVITATION MUST HAVE BEEN RESTRICTIVE. THE DRAFTING OF SPECIFICATIONS TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING ACTIVITY AND THE EXERCISE OF THAT DETERMINATION OF NEEDS IS NOT SUBJECT TO REVIEW BY THIS OFFICE EXCEPT FOR EVIDENCE OF ABUSE OF DISCRETION OR BAD FAITH. 45 COMP. GEN. 365. IT WAS ADMINISTRATIVELY DETERMINED THAT THE BOILERS OF COMBUSTION ENGINEERING AND BABCOCK AND WILCOX WOULD CONFORM WITH THE SPECIFICATIONS. IT WAS ALSO NOTED THAT THE SPECIFICATIONS USED WERE SIMILAR TO THOSE TO WHICH THE BOILER PRESENTLY INSTALLED AT THE ACADEMY CONFORMS. THE PRESENTLY INSTALLED ITEM IS A COMBUSTION ENGINEERING BOILER AND IS NOT THE PRODUCT OF BOILER ENGINEERING AND SUPPLY COMPANY. ACCORDINGLY, WE CANNOT CONCUR IN YOUR CONCLUSION THAT THE FAILURE OF THOSE TWO COMPANIES TO QUOTE OFFERS TO BIDDERS, IF SUCH WAS IN FACT THE CASE, INDICATED A RESTRICTIVE INVITATION FOR BIDS.

YOUR LETTER OF DECEMBER 26, 1967, ALSO CITED THE SIMILARITY IN DESIGN BETWEEN BOILERS REQUESTED AND THOSE PRESENTLY INSTALLED AT THE ACADEMY AS SUPPORTING YOUR ALLEGATION THAT THE INVITATION WAS RESTRICTIVE. THE PRESENTLY INSTALLED BOILERS HAVE NOT BEEN CONTINUOUSLY OPERATING AT THEIR RATED CAPACITY (100,000,000 BTU/HR.) WHICH WAS THE SPECIFIED CAPACITY IN THE ORIGINAL PROCUREMENT SPECIFICATION. IT IS YOUR CONTENTION THAT THE ABOVE INFORMATION COMBINED WITH THE DOWNWARD REVISION OF THE CURRENT SPECIFICATIONS WHICH DERATE THE BOILERS TO 80,000,000 BTU/HR. OUTPUT INSTEAD OF 100,000,000 BTU/HR. OUTPUT WOULD INDICATE THAT THE GENERATORS CAN CARRY ONLY 80 PERCENT OF THEIR RATED CAPACITY. THIS INFORMATION, IF ACCURATE, WOULD SEEM TO AFFECT ONLY THE ABILITY OF YOUR COMPETITOR, COMBUSTION ENGINEERING, TO PERFORM UNDER A CONTRACT REQUIRING AN OUTPUT OF 100,000,000 BTU/HR. IN THIS CASE THE PROCURING ACTIVITY DETERMINED THE NEEDS OF THE ACADEMY TO BE BOILERS OPERATING AT 80,000,000 BTU/HR., AT WHICH RATE COMBUSTION ENGINEERING BOILERS HAVE BEEN OPERATING. INASMUCH AS THE PRESENTLY INSTALLED BOILERS COULD COMPLY WITH THE SPECIFICATIONS OF THE INVITATION, WE DO NOT AGREE THE EVIDENCE LEADS TO THE CONCLUSION THAT THE INVITATION WAS RESTRICTIVE.

YOU ALSO PROTESTED AWARD TO THE LOW BIDDER OFFERING FLO-KONTROLD HTHW GENERATORS ON THE BASIS THAT THOSE GENERATORS HAD NOT DEMONSTRATED SATISFACTORY PERFORMANCE. THIS CONTENTION WAS BASED UPON THE DIFFICULTIES ALLEGEDLY EXPERIENCED WITH THESE GENERATORS AT THE CAPE CANAVERAL (MERRITT ISLAND) INSTALLATION. AS REQUIRED BY PARAGRAPH 2.8, SECTION 15E, THE LOW BIDDER SUBMITTED A LETTER FROM THE MANUFACTURER OF FLO-KONTROLD HTHW GENERATORS WHICH LISTED THREE INSTALLATIONS AT WHICH GENERATORS WERE OPERATING AT THE CAPACITY OF AT LEAST 30,000,000 BTU/HR. THAT PARAGRAPH, EXPERIENCE REQUIREMENTS, IS SUBSTANTIALLY SIMILAR TO THE CLAUSE REQUIRING TWO YEARS OF EXPERIENCE TO BE CONSIDERED RESPONSIBLE INCLUDED IN THE PROCUREMENT N62477-67-B-0914,FOR THE CONSTRUCTION OF A CENTRAL HEATING PLANT AT THE UNITED STATES NAVAL ACADEMY, ANNAPOLIS, MARYLAND. IN OUR DECISION B-161045, MAY 10, 1967, CONCERNING YOUR PROTEST OF THE REJECTION OF YOUR BID FOR FAILURE TO SATISFY THE LITERAL REQUIREMENT OF THAT SIMILAR CLAUSE, WE STATED IN PART:

"CONSEQUENTLY, IT IS OUR VIEW THAT IN DETERMINING WHETHER IBW WOULD BE A RESPONSIBLE SUBCONTRACTOR FOR THE HTW GENERATORS SPECIFIED, ALL OF THE FACTS AND CIRCUMSTANCES REGARDING THE POTENTIAL SUPPLIER'SABILITY TO PERFORM SHOULD BE CONSIDERED.'

THE DETERMINATION OF RESPONSIBILITY IS PRIMARILY A MATTER WITHIN THE DISCRETION OF THE ADMINISTRATIVE AGENCY AND WE WILL NOT SUBSTITUTE OUR OWN JUDGMENT THEREFOR UNLESS IT IS SHOWN THAT THE AGENCY'S DETERMINATION WAS NOT BASED ON SUBSTANTIAL EVIDENCE. SEE 39 COMP. GEN. 468. B-141138, 12- 23-59 WE FIND NO SUCH SHOWING IN THIS CASE.

FOR THE REASONS SET FORTH ABOVE WE FIND NO BASIS TO OBJECT TO THE AWARD MADE UNDER INVITATION FOR BIDS NO. DACA45-68-B-0005. ACCORDINGLY, YOUR PROTEST IS DENIED.