B-165532, DEC. 16, 1968

B-165532: Dec 16, 1968

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TO EMPIRE GENERATOR CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25. THE SUBJECT IFB WAS ISSUED ON OCTOBER 14. THE GENERATOR SETS ARE DESCRIBED AS FOLLOWS: "GENERATOR SET. IT IS YOUR CONTENTION THAT THE SPECIFICATIONS FOR THE GENERATOR SETS ARE RESTRICTIVE BECAUSE THE PURCHASE DESCRIPTION IS WRITTEN IN SUCH A WAY AS TO EXCLUDE ALL MANUFACTURERS EXCEPT ONE. YOU CONTEND THAT THIS IS IN VIOLATION OF SECTION 1-1.307-1 (B) OF THE FEDERAL PROCUREMENT REGULATIONS WHICH STATES: "/B) PURCHASE DESCRIPTIONS USED IN COMPETITIVE PROCUREMENTS SHALL NOT SPECIFY A PRODUCT HAVING FEATURES WHICH ARE PECULIAR TO THE PRODUCT OF ONE MANUFACTURER. UNLESS IT HAS BEEN DETERMINED THAT THOSE PARTICULAR FEATURES ARE ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS.

B-165532, DEC. 16, 1968

TO EMPIRE GENERATOR CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25, 1968, WITH ENCLOSURES, PROTESTING AGAINST AWARD TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. 72-22-9, ISSUED BY THE UNITED STATES INFORMATION AGENCY (USIA).

THE SUBJECT IFB WAS ISSUED ON OCTOBER 14, 1968, AND CALLED FOR THE FURNISHING OF ONE YEAR'S SUPPLY OF PORTABLE GASOLINE ENGINE POWERED GENERATOR SETS. THE GENERATOR SETS ARE DESCRIBED AS FOLLOWS:

"GENERATOR SET, PORTABLE, OUTPUT 3600 RPM, 1500 WATTS, 115 VOLTS A.C., SINGLE PHASE, 60 CYCLE, IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS.

AND

"GENERATOR SET, PORTABLE, OUTPUT 3000 RPM, 1250 WATTS, 115 VOLTS A.C., SINGLE PHASE, 50 CYCLE, IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS.'

IT IS YOUR CONTENTION THAT THE SPECIFICATIONS FOR THE GENERATOR SETS ARE RESTRICTIVE BECAUSE THE PURCHASE DESCRIPTION IS WRITTEN IN SUCH A WAY AS TO EXCLUDE ALL MANUFACTURERS EXCEPT ONE. YOU CONTEND THAT THIS IS IN VIOLATION OF SECTION 1-1.307-1 (B) OF THE FEDERAL PROCUREMENT REGULATIONS WHICH STATES:

"/B) PURCHASE DESCRIPTIONS USED IN COMPETITIVE PROCUREMENTS SHALL NOT SPECIFY A PRODUCT HAVING FEATURES WHICH ARE PECULIAR TO THE PRODUCT OF ONE MANUFACTURER, PRODUCER, OR DISTRIBUTOR, AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT OF ANOTHER COMPANY, UNLESS IT HAS BEEN DETERMINED THAT THOSE PARTICULAR FEATURES ARE ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THOSE FEATURES WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM.' IN SUPPORT OF THIS CONTENTION YOU STATE THAT THE WORDS "OR OIL PRESSURE" IN PARAGRAPH 4 (C), PART I OF THE SPECIFICATIONS CAN ONLY MEAN A PRESSURE LUBRICATED ENGINE, WHICH IS MANUFACTURED BY ONLY ONE COMPANY, WHICH WILL NOT SELL THIS TYPE ENGINE TO YOUR FIRM. WE ASSUME THE COMPANY TO WHICH YOU REFER IS THE ONAN DIVISION OF STUDEBAKER CORPORATION (ONAN). ACCORDING TO THE ADMINISTRATIVE REPORT USIA IS NOT PARTICULARLY CONCERNED WITH THE SIZE OF THE ENGINES AS SUCH, OR THAT SMALL ENGINES GENERALLY MAY NOT BE DESIGNED FOR OIL PRESSURE LUBRICATION. IT IS STATED THAT USIA- REQUIREMENT IS FOR A 1.5 KVA UNIT WHICH HAS AN AUTOMATIC CUTOFF IN THE EVENT OF INADEQUATE OIL LEVEL OR PRESSURE. PARAGRAPH 4/C), PART I OF THE EVENT OF INADEQUATE OIL LEVEL OR PRESSURE. PARAGRAPH 4 (C), PART I OF THE SPECIFICATIONS, IN ITS ENTIRETY, STATES:

"POSITIVE LUBRICATION: THE ENGINE MUST BE EQUIPPED WITH A POSITIVE ACTION AUTOMATIC DEVICE WHICH WILL CUT OFF AND PREVENT ENGINE OPERATION IN THE EVENT OF INADEQUATE OIL LEVEL OR OIL PRESSURE.'

IT IS EXPLAINED THAT THIS STATEMENT DOES NOT EXCLUDE ANY PARTICULAR ENGINE DESIGN. IT MERELY CALLS FOR AN AUTOMATIC CUTOFF DEVICE. THUS, IF A SPLASH-TYPE LUBRICATED ENGINE IS OFFERED, IT MUST CUT OFF AUTOMATICALLY IN THE EVENT OF AN INADEQUATE OIL LEVEL. HOWEVER, IF A PUMP TYPE LUBRICATED ENGINE IS OFFERED, IT MUST CUT OFF AUTOMATICALLY IN THE EVENT OF INADEQUATE OIL PRESSURE. WE ARE ADVISED THAT THE REASON FOR THIS REQUIREMENT IS THAT THE PROCURING ACTIVITY IS OF THE OPINION THAT THE AUTOMATIC CUTOFF DEVICE WILL INCREASE THE LIFE OF THE UNITS.

CONCERNING ONAN'S REFUSAL TO SELL YOUR FIRM ENGINES WHICH WOULD MEET THE SPECIFICATIONS, BY ITS LETTER OF OCTOBER 23, 1967, TO YOUR FIRM ONAN STATED THAT IT WAS WILLING TO SELL ITS PRODUCTS TO ANY POTENTIAL PRIME CONTRACTOR OR SUBCONTRACTOR ON A GOVERNMENT CONTRACT, AND BY ITS LETTER OF NOVEMBER 7, 1968, TO USIA IT REITERATES ITS WILLINGNESS TO DO SO. WHILE THE VALIDITY OF YOUR PROTEST ON THIS POINT WOULD APPEAR TO DEPEND UPON WHETHER THE INVITATION REQUIRED PRESSURE TYPE LUBRICATION OF THE TYPE OFFERED BY ONAN, WHICH CONTENTION WE HAVE ALREADY REJECTED, WE ARE ADVISED THAT AT LEAST ONE OTHER BIDDER, KING-KNIGHT COMPANY, WHO WAS BIDDING ON A ENGINE SPLASH TYPE LUBRICATION SYSTEM, SUBMITTED A RESPONSIVE BID. WE ARE FURTHER ADVISED THAT TWO OTHER BIDDERS, KOHLER COMPANY AND DIESEL MOTORS COMPANY, INC., WHO ALSO OFFERED THE SAME TYPE ENGINES, WERE DECLARED NONRESPONSIVE BUT COULD HAVE BEEN RESPONSIVE HAD THEY MADE SOME MINOR MODIFICATIONS.

YOU ALSO VOICED AN OBJECTION TO THE PROVISIONS OF PARAGRAPH 3, PART I OF THE SPECIFICATIONS WHICH CALLS FOR 500 HOURS OPERATION WITHOUT MAJOR ENGINE AND/OR GENERATOR OVERHAUL. YOU STATE THAT THIS PRESENTS NO PROBLEMS EXCEPT THAT PARAGRAPH 1, PART II OF THE SPECIFICATIONS, WHILE PERMITTING NORMAL MINOR MAINTENANCE, PROHIBITS REMOVAL OF EITHER THE CYLINDER HEAD OR THE OIL PAN DURING THE TEST RUN PERIOD. IT IS YOUR POSITION THAT THIS IS PART OF THE ROUTINE MAINTENANCE PROCEDURE AS PRESCRIBED BY THE INTERNAL COMBUSTION ENGINE INSTITUTE. IN ANSWER TO THIS OBJECTION, THE REPORT STATES:

"THE AGENCY'S OVERSEAS POSTS ARE NOT STAFFED, TRAINED, OR TOOLED TO OVERHAUL ENGINES OF ANY TYPE. THIS FACT, THEREFORE, PRECLUDES CERTAIN PROCEDURES CONSIDERED ROUTINE IN MORE SOPHISTICATED AREAS. FOR THIS REASON, THE SPECIFICATIONS CLEARLY SPECIFY, FOR ALL BIDDERS ALIKE, THAT - REMOVAL OF EITHER CYLINDER HEAD OR OIL PAN SHALL NOT BE PERMITTED DURING THE TEST RUN PERIOD. - THE PURPOSE BEING TO PROVIDE FIELD POSTS GENERATORS THAT WILL LAST LONGER WITH A MINIMUM OF TENTION.'

THE ESTABLISHMENT OF SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER PRODUCTS OFFERED MEET THESE SPECIFICATIONS ARE PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED. 38 COMP. GEN. 71, 75 AND 36 COMP. GEN. 251, 252. FOR TECHNICAL DETERMINATIONS OF THIS NATURE WE GENERALLY RELY ON THE JUDGMENT AND EXPERTISE OF THE ENGINEERING PERSONNEL OF THE PROCURING AGENCY. THE BASIS OF THE RECORD, WE CANNOT CONCLUDE THAT THE SPECIFICATIONS IN THE INSTANT CASE WERE NOT DRAWN TO MEET THE PROCURING ACTIVITY'S MINIMUM NEEDS.

YOUR THIRD OBJECTION IS IN THE NATURE OF A QUESTION. YOU WANT TO KNOW IF THE COMMERCIAL TELEVISION RECEIVER MENTIONED IN PARAGRAPH 7, PART I, OF THE SPECIFICATIONS IS TO BE OPERATED WITH POWER SUPPLIED BY THE GENERATOR, OR IS IT TO BE OPERATED WITH POWER SUPPLIED BY A COMMERCIAL POWER LINE. YOU POINT OUT THAT IF THE GENERATOR IS TO BE USED AS THE SOURCE OF POWER FOR THE TELEVISION, THERE WILL BE INTERFERENCE IN THE FORM OF VERTICAL ROLL-OVER BECAUSE OF ENGINE INSTANTANEOUS FREQUENCY SHIFTS. THE ADMINISTRATIVE REPORT STATED THAT "THE SOURCE OF TV SET OPERATING POWER IS NOT RELEVANT TO THE SPECIFICATIONS. THE KEY WORD IN THE SPECIFICATIONS IS -RADIATED.- ONDUCTIVE INTERFERENCE IS NEITHER EXPRESSED OR IMPLIED.' HOWEVER, WE HAVE BEEN ADVISED THAT THE TELEVISION RECEIVER MENTIONED IN 7 (B) WILL BE OPERATED WITH POWER SUPPLIED BY THE GENERATOR. IT IS ADMITTED THAT THERE PROBABLY WILL BE SOME INTERFERENCE IN THE FORM OF VERTICAL ROLL OVER. IT IS STATED THAT OCCASIONAL ROLL-OVER INTERFERENCE IS ACCEPTABLE AS LON AS THE PICTURE HOLDS WITHOUT CONSISTENT ROLL-OVER. ALSO, A CERTAIN AMOUNT OF "SNOW" INTERFERENCE IS ACCEPTABLE, SO LONG AS THERE IS AN IDENTIFIABLE IMAGE ON THE SCREEN. WHILE THE LANGUAGE OF 7/A) AND (B) MIGHT WELL HAVE BEEN UNCLEAR, IT DOES NOT APPEAR TO HAVE CREATED ANY DIFFICULTY FOR ANY OF THE FIVE FIRMS WHO SUBMITTED BIDS.

CONCERNING YOUR LAST OBJECTION YOU POINT OUT THAT ON PAGE 6 OF THE IFB A CERTIFICATION, FROM AN INDEPENDENT TESTING LABORATORY EMPLOYING REGISTERED PROFESSIONAL ENGINEERS, THAT 50 CYCLE AND 60 CYCLE UNITS HAVE SUCCESSFULLY PASSED THE 500 HOUR TEST IS REQUIRED WITHIN 120 DAYS AFTER RECEIPT OF THE AWARD. HOWEVER, SECTION 1, PART II, OF THE SPECIFICATIONS REQUIRES THAT THE SAME CERTIFICATION ACCOMPANY THE BID. APPARENTLY THE PROCURING ACTIVITY ALSO NOTICED THIS INCONSISTENCY AND ISSUED AMENDMENT NO. 1 WHICH DELETED THE FIRST SENTENCE OF PARAGRAPH 1, PART II, OF THE SPECIFICATIONS AND SUBSTITUTED LANGUAGE REQUIRING THAT THE LOWEST RESPONSIVE BIDDER FURNISH A CERTIFICATE IN ACCORDANCE WITH SECTION 1, PAGE 6 OF THE IFB. SINCE THE PROCURING ACTIVITY STATES THAT THIS AMENDMENT WAS SENT TO ALL POTENTIAL BIDDERS, WE CAN ONLY ASSUME THAT YOU RECEIVED THE AMENDMENT.

IT APPEARS THAT A COOP OF YOUR LETTER OF OCTOBER 25 TO USIA, IN WHICH YOU RAISED THE ABOVE OBJECTIONS, WAS SENT SIMULTANEOUSLY TO THIS OFFICE. VIEW THEREOF, WE ARE ADVISED THAT USIA CONSIDERED YOUR LETTER AS A PROTEST TO THE GENERAL ACCOUNTING OFFICE. CONSEQUENTLY, AGENCY PERSONNEL WERE OF THE OPINION THAT ANY MATTERS RAISED BY YOUR LETTER, WITH THE EXCEPTION OF YOUR THIRD QUESTION RELATING TO INTERFERENCE, AND WHICH THEY CONSIDERED A TECHNICAL QUESTION TO BE ANSWERED BY USIA, SHOULD BE ANSWERED BY THIS OFFICE. IT IS FURTHER EXPLAINED THAT, HAD THEY RECEIVED YOUR LETTER PRIOR TO YOUR PROTEST TO THIS OFFICE, IT WOULD HAVE BEEN TREATED AS A REQUEST FOR AN EXPLANATION OF THE MEANING OR INTERPRETATION OF THE SPECIFICATIONS PURSUANT TO SECTION 3 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS AND FPR 1 2.207 (D). WHILE IT IS OUR OPINION THAT YOUR LETTER OF OCTOBER 25 SHOULD PROPERLY HAVE BEEN HANDLED UNDER SECTION 3, AND WE ARE TODAY ADVISING USIA TO INSURE SUCH HANDLING OF SIMILAR REQUESTS IN FUTURE PROCUREMENTS, WE DO NOT BELIEVE IT WOULD BE IN THE GOVERNMENT'S BEST INTEREST TO REQUIRE USIA TO REJECT THE BIDS WHICH HAVE ALREADY BEEN OPENED AND TO READVERTISE THE INSTANT PROCUREMENT.