B-166021, JUL. 2, 1969

B-166021: Jul 2, 1969

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TO EMPIRE GENERATOR CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 22. THE SUBJECT CONTRACT WAS AWARDED TO THE LINDEMANN CONSTRUCTION COMPANY (LINDEMANN) IN THE LUMP-SUM AMOUNT OF $269. IT IS REPORTED THAT YOUR FIRM WAS A PROSPECTIVE SUPPLIER TO LINDEMANN'S ELECTRICAL SUBCONTRACTOR OF THE 100-KW. THESE DATA WERE RETURNED TO THE CONTRACTOR AS UNAPPROVED FOR FAILURE TO MEET CONTRACT SPECIFICATIONS REGARDING AUTOMATIC TRANSFER SWITCHES. THE SHOP DRAWINGS WERE RESUBMITTED BY THE CONTRACTOR AND AGAIN THEY WERE RETURNED UNAPPROVED FOR ESSENTIALLY THE SAME REASONS. THE CONTRACTOR THEN SUBMITTED A GENERATOR MANUFACTURED BY ANOTHER FIRM WHICH MET THE SPECIFICATIONS AND WAS ACCEPTED BY THE GOVERNMENT.

B-166021, JUL. 2, 1969

TO EMPIRE GENERATOR CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 22, 1969, WITH ENCLOSURE, PROTESTING THE ACTION OF THE NAVAL FACILITIES ENGINEERING COMMAND IN AWARDING CONTRACT NO. N62470-68-C-0055/NBY-88346 FOR THE CONSTRUCTION OF A COMMUNICATION CENTER AT THE NAVAL AIR STATION, OCEANA, VIRGINIA BEACH, VIRGINIA.

THE SUBJECT CONTRACT WAS AWARDED TO THE LINDEMANN CONSTRUCTION COMPANY (LINDEMANN) IN THE LUMP-SUM AMOUNT OF $269,300 ON MAY 13, 1968. IT IS REPORTED THAT YOUR FIRM WAS A PROSPECTIVE SUPPLIER TO LINDEMANN'S ELECTRICAL SUBCONTRACTOR OF THE 100-KW. EMERGENCY GENERATOR SYSTEM CALLED FOR BY THE CONTRACT. IN AUGUST 1968 LINDEMANN SUBMITTED YOUR DATA FOR THE EMERGENCY GENERATOR. THESE DATA WERE RETURNED TO THE CONTRACTOR AS UNAPPROVED FOR FAILURE TO MEET CONTRACT SPECIFICATIONS REGARDING AUTOMATIC TRANSFER SWITCHES, CIRCUIT BREAKERS, INSULATION, STARTING REQUIREMENTS AND SEVERAL OTHER FEATURES. THE SHOP DRAWINGS WERE RESUBMITTED BY THE CONTRACTOR AND AGAIN THEY WERE RETURNED UNAPPROVED FOR ESSENTIALLY THE SAME REASONS. THE CONTRACTOR THEN SUBMITTED A GENERATOR MANUFACTURED BY ANOTHER FIRM WHICH MET THE SPECIFICATIONS AND WAS ACCEPTED BY THE GOVERNMENT.

IN YOUR LETTER OF JANUARY 22, 1969, YOU STATE THAT IN OUR DECISION OF SEPTEMBER 26, 1967, B-161704, WE HELD THAT A PURCHASE DESCRIPTION REQUIRING AN ELECTRICAL TRANSFER SWITCH OF A SINGLE SOLENOID DESIGN WAS IMPROPER. YOU CONTEND THAT THE PURCHASE DESCRIPTION USED IN THE INSTANT PROCUREMENT REQUIRES A SWITCH OF SINGLE SOLENOID DESIGN, THEREBY LIMITING THE POSSIBLE SOURCE FOR SUCH SWITCH TO TWO MANUFACTURERS, THE AUTOMATIC SWITCH COMPANY AND R. G. RUSSELL, TO THE EXCLUSION OF ALL OTHERS. YOU REQUEST THAT WE ISSUE A RULING THAT NO TRANSFER SWITCHES MAY BE PURCHASED BY ANY GOVERNMENT AGENCY UNTIL SUCH TIME AS THE MANUFACTURERS' PERFORMANCE CLAIMS FOR SHORT CIRCUIT CURRENT WITHSTAND RATINGS, ENDURANCE, INTERRUPTION RATING, AND INRUSH ARE DEMONSTRATED TO COMPLY WITH THE CLAIMED SPECIFICATIONS AS DETERMINED BY AN INDEPENDENT TESTING LABORATORY. YOU FURTHER REQUEST THAT WE RULE THAT TRANSFER SWITCHES MUST BE PROCURED BY GOVERNMENT AGENCIES BY USING PERFORMANCE SPECIFICATIONS ONLY.

IT IS REPORTED BY THE ADMINISTRATIVE OFFICE THAT THE SPECIFICATIONS WERE PREPARED SO AS TO ASSURE THAT THE FACILITIES WOULD MEET THE GOVERNMENT'S OPERATIONAL REQUIREMENTS AND STILL PERMIT A MAXIMUM DEGREE OF COMPETITION BETWEEN SUPPLIERS. THE APPLICABLE SECTION OF THE SPECIFICATIONS TO WHICH YOU REFER IS 16C.3.5. SECTION 16C.3.5.1 STATES THAT THE SWITCH SHALL BE "OF THE ELECTRICALLY OPERATED MECHANICALLY HELD TYPE AND SHALL BE INHERENTLY DOUBLE THROW.' IN ADDITION, CERTAIN REQUIREMENTS AS TO CONTACT TIMING, TRANSFER TIME, AND TYPE OF CONTACTS ARE INCLUDED. SECTION 16C.3.5.3 REQUIRES THAT THE CONTACTS BE READILY ACCESSIBLE FROM THE FRONT OF THE PANEL FOR SERVICING. THE ADMINISTRATIVE AGENCY REPORTS THAT THE ABOVE REQUIREMENTS RELATE TO ENGINEERING STANDARDS AND PRACTICES AND ARE PROPERLY TERMED "PERFORMANCE" REQUIREMENTS AND THAT SUCH REQUIREMENTS SET REASONABLE STANDARDS OF PERFORMANCE AND ARE NECESSARY FOR PROPER OPERATION AND ADEQUATE RELIABILITY OF THE EMERGENCY POWER GENERATION SYSTEM. IT IS FURTHER REPORTED THAT AT LEAST THREE MANUFACTURERS PRODUCE SWITCHES WHICH MEET OR EXCEED THOSE REQUIREMENTS.

IT IS TRUE, AS YOU ALLEGE, THAT IN OUR DECISION CITED BY YOU WE HELD THAT SPECIFICATIONS WHICH PROVIDED THAT ONLY A SWITCH WHICH "OPERATED BY A SINGLE SOLENOID MOMENTARILY ENERGIZED" WOULD BE ACCEPTABLE WAS RESTRICTIVE OF COMPETITION BECAUSE IT SPECIFIED A CHARACTERISTIC WHICH COULD ONLY BE MET BY ONE MANUFACTURER. WE HELD FURTHER, HOWEVER, THAT THE PROCUREMENT WAS NOT ILLEGALLY AWARDED AND WE MERELY SUGGESTED THAT IN FUTURE PROCUREMENTS THE AGENCY INVOLVED SHOULD GIVE CONSIDERATION TO ELIMINATING THE REQUIREMENT FOR FURNISHING A SINGLE SOLENOID FOR ACCOMPLISHING THE THROWING OPERATION OF THE SWITCH. IN THE INSTANT CASE, SINCE IT IS REPORTED THAT THE SPECIFICATIONS WERE CAREFULLY PREPARED IN THE LIGHT OF THE GOVERNMENT'S NEEDS, WE AGAIN CANNOT CONCLUDE THAT THE REFUSAL TO APPROVE YOUR GENERATOR FOR USE BY THE PRIME CONTRACTOR WAS ILLEGAL. ARE, HOWEVER, REQUESTING THE ADMINISTRATIVE AGENCY TO RECONSIDER THE NECESSITY FOR SPECIFYING A SINGLE SOLENOID IN CONNECTION WITH FUTURE PROCUREMENTS.

WE HAVE NO AUTHORITY AS REQUESTED BY YOU TO RULE THAT NO TRANSFER SWITCH MAY BE PURCHASED BY ANY GOVERNMENT AGENCY UNTIL THE MANUFACTURERS' CLAIMS REGARDING THE EFFICACY OF THEIR PRODUCTS ARE CONFIRMED BY AN INDEPENDENT TESTING LABORATORY. ALSO, WE ARE WITHOUT AUTHORITY TO PRECLUDE THE PURCHASE OF SEITCHES FROM PURCHASE DESCRIPTIONS WHICH ARE OTHER THAN PERFORMANCE SPECIFICATIONS.

THE DRAFTING OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY. 17 COMP. GEN. 554.