B-171918, MAR 24, 1971

B-171918: Mar 24, 1971

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BOTH LOW BIDDER AND PROTESTANT WERE FOUND TO BE NON-RESPONSIVE BECAUSE THEY OFFERED SWITCHES WHICH DID NOT MEET THE MINIMUM NEEDS OF THE GOVERNMENT AS STATED IN THE SPECIFICATIONS. THE SPECIFICATIONS WERE NOT RESTRICTIVE BECAUSE ALTHOUGH AUTOMATIC SWITCH COMPANY BULLETIN 940 OR APPROVED EQUAL WAS CALLED FOR BY THE IFB THE LISTED SALIENT CHARACTERISTICS OF THE SWITCHES ARE NOT PROPRIETARY TO ASCO AND OTHER MANUFACTURERS ARE FREE TO SUPPLY SWITCHES CONTAINING THE LISTED CHARACTERISTICS. IS THEREFORE UNABLE TO CONCLUDE THAT THE SPECIFICATIONS IMPOSED REQUIREMENTS IN EXCESS OF THE NEEDS OF THE GOVERNMENT OR THAT BIDDERS WERE RESTRICTED TO SUPPLYING THE PRODUCTS OF THE BRAND NAME MANUFACTURER. THE PROTEST IS THEREFORE DENIED.

B-171918, MAR 24, 1971

BID PROTEST - BID RESPONSIVENESS - RESTRICTIVE SPECIFICATIONS DECISION DENYING PROTEST BY SECOND LOW BIDDER AGAINST CONTRACT AWARDED TO GRAYBAR ELECTRIC CO., INC., THIRD LOW BIDDER, FOR THE SUPPLY OF 49 RELAYS AND 22 AUTOMATIC TRANSFER SWITCHES FOR INSTALLATION IN THE HOUSE OFFICE BUILDING, WASHINGTON, D.C. BOTH LOW BIDDER AND PROTESTANT WERE FOUND TO BE NON-RESPONSIVE BECAUSE THEY OFFERED SWITCHES WHICH DID NOT MEET THE MINIMUM NEEDS OF THE GOVERNMENT AS STATED IN THE SPECIFICATIONS. FURTHER, THE SPECIFICATIONS WERE NOT RESTRICTIVE BECAUSE ALTHOUGH AUTOMATIC SWITCH COMPANY BULLETIN 940 OR APPROVED EQUAL WAS CALLED FOR BY THE IFB THE LISTED SALIENT CHARACTERISTICS OF THE SWITCHES ARE NOT PROPRIETARY TO ASCO AND OTHER MANUFACTURERS ARE FREE TO SUPPLY SWITCHES CONTAINING THE LISTED CHARACTERISTICS. THE COMP. GEN. IS THEREFORE UNABLE TO CONCLUDE THAT THE SPECIFICATIONS IMPOSED REQUIREMENTS IN EXCESS OF THE NEEDS OF THE GOVERNMENT OR THAT BIDDERS WERE RESTRICTED TO SUPPLYING THE PRODUCTS OF THE BRAND NAME MANUFACTURER. THE PROTEST IS THEREFORE DENIED.

TO WHITE PLAINS ELECTRICAL SUPPLY CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11, 1971, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. 7094 (IFB 7094), ISSUED BY THE OFFICE OF THE ARCHITECT OF THE CAPITOL.

IFB 7094 WAS ISSUED ON DECEMBER 9, 1970, FOR THE SUPPLY OF 49 RELAYS AND 22 AUTOMATIC TRANSFER SWITCHES TO BE INSTALLED BY GOVERNMENT PERSONNEL IN THE EMERGENCY LIGHTING AND ELEVATOR SYSTEMS IN THE HOUSE OFFICE BUILDINGS, WASHINGTON, D.C. SECTION III OF THE INVITATION, "MATERIALS AND WORKMANSHIP", DESCRIBED THE RELAYS AND AUTOMATIC TRANSFER SWITCHES BY THE NUMBER UNDER WHICH THEY APPEARED IN THE CATALOG OF THE AUTOMATIC SWITCH COMPANY (ASCO). ARTICLE 3-02(B), AS AMENDED, FURTHER PROVIDED:

"AUTOMATIC TRANSFER SWITCHES (SCHEDULE 'B'). AUTOMATIC TRANSFER SWITCHES FOR ELEVATORS SHALL BE AUTOMATIC SWITCH COMPANY BULLETIN 940 OR APPROVED EQUAL. DRAWINGS AND DATA SUBMITTED WITH BID MUST CONTAIN INFORMATION TO SUBSTANTIATE THAT THE SWITCHES HAVE THE FOLLOWING FEATURES:

"1. THE SWITCHES MUST BE TRUE DOUBLE THROW SWITCHES AND NOT AN ASSEMBLY OF SINGLE THROW SWITCHES. ALL MAIN AND ARCING CONTACTS, BOTH NORMAL AND EMERGENCY, SHALL BE MOUNTED ON A SINGLE SHAFT SO THEY MOVE SIMULTANEOUSLY AND ARE INHERENTLY INTERLOCKED.

"2. THE SWITCHES SHALL EACH BE OPERATED BY A SINGLE SOLENOID OR MOTOR WHICH IS ENERGIZED ONLY WHILE THE SWITCH IS TRANSFERRING. THE SWITCHES SHALL BE MECHANICALLY HELD IN BOTH NORMAL AND EMERGENCY POSITIONS.

"3. MAIN CONTACTS SHALL BE PROTECTED WITH SEPARATE RENEWABLE ARCING CONTACTS.

"4. ALL CONTACTS, ALL COILS AND ALL CONTROL ELEMENTS SHALL BE REPLACEABLE FROM THE FRONT OF THE SWITCH PANEL WITHOUT REMOVING THE SWITCH FROM THE ENCLOSURE AND WITHOUT REMOVING POWER CABLES FROM THE SWITCH."

THE FOLLOWING BIDS WERE RECORDED AT THE BID OPENING ON JANUARY 6, 1971:

PRINCE GEORGES ELECTRICAL SUPPLY $21,100

WHITE PLAINS ELECTRICAL SUPPLY CO., INC. 21,520

GRAYBAR ELECTRIC CO., INC 24,378

DOMINION ELECTRIC SUPPLY CO., INC. 24,865

WESTINGHOUSE ELECTRIC SUPPLY CO. 24,925

R. G. RUSSELL CO., INC. 31,057

YOUR FIRM AND THE LOW BIDDER, AMONG OTHERS, OFFERED EQUIPMENT MANUFACTURED BY ZENITH CONTROLS, INC. BOTH BIDS INCORPORATED THE FOLLOWING STATEMENT WHICH INITIALLY APPEARED IN ZENITH'S QUOTATIONS TO THE BIDDERS:

"THE ZENITH 6 MT SERIES SWITCHES QUOTED ABOVE ARE EQUAL IN OPERATION AND FUNCTION TO THE ASCO BULLETIN 940 SWITCHES. THE FEATURES LISTED ON PAGE 12 OF THE SPECIFICATIONS ARE PROPRIETARY AND ILLEGAL AS GOVERNMENT FUNDS ARE BEING USED ON THIS JOB. THESE FEATURES LIMIT THE USE OF A PRODUCT AVAILABLE FROM ONE AND ONLY ONE MANUFACTURE. IN VIEW OF THE ABOVE WE TAKE THE FOLLOWING EXCEPTIONS TO THE SPECIFICATIONS.

"1. ZENITH SWITCHES ARE DOUBLE THROW DEVICES HOWEVER ARE CONSTRUCTED WITH DUAL SHAFTS."

"2. ZENITH TRANSFER SWITCHES ARE OPERATED WITH A DUAL SOLENOID MECHANISM."

"3. ZENITH MAIN CONTACTS MEET WITH ROLLING AND WIPING ACTION WHICH ELIMINATES THE NEED FOR ARCHING CONTACTS." ADDITIONALLY, THE LOW BIDDER FAILED TO SUBMIT A BID GUARANTY IN THE FORM OF A BID BOND OR CERTIFIED CHECK, AS REQUIRED BY THE INVITATION. PARAGRAPH 1 OF THE "SUPPLEMENT TO BIDDING CONDITIONS" OF IFB 7094 PROVIDED:

"FAILURE TO SUBMIT THE BID GUARANTY WITH THE BID AND IN THE AMOUNT STIPULATED WILL RESULT IN THE BID BEING DISQUALIFIED AND REJECTED."

ON JANUARY 7, 1971, GRAYBAR ELECTRIC CO., INC., PROTESTED TO THE ACTING ARCHITECT OF THE CAPITOL AGAINST AN AWARD TO EITHER THE LOW BIDDER OR YOUR FIRM, ON THE BASIS THAT THE ABOVE-QUOTED EXCEPTIONS TO THE SPECIFICATIONS RENDERED THOSE BIDS NON-RESPONSIVE. PURSUANT TO A REVIEW AND EVALUATION OF THE BIDS, THE LOW BIDDER WAS DISQUALIFIED FOR LACK OF A BID BOND. MOREOVER, BOTH THE LOW BID AND THE BID OF YOUR FIRM WERE FOUND TO BE NON- RESPONSIVE BECAUSE THEY OFFERED SWITCHES WHICH DID NOT MEET THE MINIMUM NEEDS OF THE GOVERNMENT AS STATED IN THE SPECIFICATIONS. ACCORDINGLY, AWARD WAS MADE TO GRAYBAR AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER ON JANUARY 22, 1971.

THE SUBSTANCE OF YOUR PROTEST IS THAT THE SPECIFICATIONS OF IFB 7094 ARE UNDULY RESTRICTIVE IN THAT ALTHOUGH THEY PURPORT TO PERMIT BIDDERS TO SUPPLY SPECIFIED ASCO SWITCHES "OR APPROVED EQUAL," THREE OF THE LISTED SALIENT CHARACTERISTICS OF THOSE SWITCHES DESCRIBE FEATURES PROPRIETARY TO ASCO. THEREFORE, YOU CONTEND THAT THE INSTANT INVITATION FOR BIDS IN FACT CONSTITUTES A SOLE SOURCE PROCUREMENT.

AS WE OBSERVED IN OUR DECISION 40 COMP. GEN. 592(1961), THE ARCHITECT OF THE CAPITOL IN AWARDING CONTRACTS IS NORMALLY BOUND BY THE PROVISIONS OF 41 U.S.C. 5, WHICH REQUIRES THAT THE MAXIMUM POSSIBLE COMPETITION CONSISTENT WITH THE GOVERNMENT'S INTEREST BE OBTAINED IN THE AWARD OF A GOVERNMENT CONTRACT. WITHIN THIS LIMITATION, THE AGENCY CONCERNED IS VESTED WITH THE DISCRETION TO DETERMINE THE MANNER IN WHICH BIDDERS SHALL BE REQUIRED TO COMPETE IN A GIVEN PROCUREMENT. A METHOD OF OBTAINING SUCH COMPETITION IN FEDERAL PROCUREMENT, UTILIZED IN THIS CASE, IS TO DESCRIBE THE SUPPLIES BEING PURCHASED BY A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION. PURSUANT TO SUCH A DESCRIPTION, BIDDERS MAY FURNISH EITHER THE BRAND NAME PRODUCT SPECIFIED OR AN "EQUAL" PRODUCT WHICH POSSESSES THOSE SALIENT PHYSICAL, FUNCTIONAL OR OTHER CHARACTERISTICS OF THE BRAND NAME PRODUCT SET FORTH IN THE SOLICITATION.

YOUR PROTEST INVOKES TWO RECOGNIZED RULES GOVERNING "BRAND NAME OR EQUAL" SOLICITATIONS, THE FIRST OF WHICH IS THAT A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IS INAPPROPRIATE WHEN IT HAS BEEN DETERMINED THAT ONLY ONE PRODUCT MEETS THE ESSENTIAL NEEDS OF THE GOVERNMENT, AS WHERE THE SUPPLIES ARE AVAILABLE FROM ONLY ONE SOURCE. THE SECOND PRINCIPLE IS THAT THE SOLICITATION MUST INFORM BIDDERS OF THE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT, AND ONLY THOSE CHARACTERISTICS ESSENTIAL TO THE NEEDS OF THE GOVERNMENT SHOULD BE SO LISTED. 48 COMP. GEN. 441 (1968).

IT IS REPORTED BY THE OFFICE OF THE ARCHITECT OF THE CAPITOL THAT THE AUTOMATIC TRANSFER SWITCHES SUPPLIED UNDER THE INSTANT PROCUREMENT ARE TO BE USED IN EMERGENCY LIGHTING AND ELEVATOR SYSTEMS IN THE HOUSE OFFICE BUILDINGS. BECAUSE OF THE CRITICAL NATURE OF THE FACILITIES TO BE SERVED, THE MOST RELIABLE AND POSITIVE-ACTION TYPE OF SWITCH WAS REQUIRED. AS A RESULT, CERTAIN SWITCHES MANUFACTURED BY ASCO WERE DESIGNATED AS THE BRAND NAME PRODUCTS, AND SEVERAL SALIENT CHARACTERISTICS THEREOF WERE SPECIFIED IN THE SOLICITATION.

WE ARE ADVISED THAT ALTHOUGH ASCO MAY HAVE BEEN A PIONEER IN THE DEVELOPMENT OF THE TYPE OF SWITCH SPECIFIED BY IFB 7094, THERE ARE NO KNOWN PATENT RIGHTS NOW EXISTING ON THE TYPE OF COMPONENTS, FEATURES OR ARRANGEMENTS SPECIFIED FOR THESE SWITCHES. THUS, OTHER MANUFACTURERS ARE FREE TO SUPPLY SWITCHES CONTAINING THE LISTED SALIENT CHARACTERISTICS, AS IS ILLUSTRATED BY THE FACT THAT ONE OF THE OTHER BIDDERS ON THE INSTANT PROCUREMENT OFFERED SWITCHES OF ITS OWN MANUFACTURE WHICH MET THE SPECIFICATION REQUIREMENTS.

WITH RESPECT TO THE RATIONALE FOR THE THREE SALIENT CHARACTERISTICS OF THE SWITCHES TO WHICH YOU AND THE LOW BIDDER TOOK EXCEPTION, AND THE EFFECT OF ACCEPTING SUCH EXCEPTIONS, IT IS REPORTED THAT A SINGLE SHAFT ARRANGEMENT WITH NORMAL POWER CONTACTS ON ONE SIDE AND EMERGENCY POWER CONTACTS ON THE OTHER SIDE PROVIDES OPPOSITE FIXED POSITION CONTACTS AND INSURES INHERENT MECHANICAL INTERLOCKING AGAINST SIMULTANEOUS ENGAGEMENT OF NORMAL AND EMERGENCY POWER CONTACTS. THE USE OF SEPARATE SHAFTS FOR EACH SOURCE OF POWER RELIES ON AN INTERLOCK SYSTEM WHICH IS SUBJECT TO REMOVAL OR ADJUSTMENT; THEREBY PERMITTING THE POSSIBILITY OF BOTH SOURCE CIRCUITS BEING SIMULTANEOUSLY OPEN, PROVIDING NO POWER, OR CLOSED, CREATING A SHORT CIRCUIT OF THE POWER SOURCE. THE USE OF A SPRING LOADING FEATURE FURTHER PRECLUDES ANY POSSIBILITY OF A NEUTRAL POSITION BETWEEN THE SOURCES OF POWER.

WE ARE FURTHER ADVISED THAT THE USE OF A SINGLE SOLENOID OR MOTOR FOLLOWS WITH THE SINGLE SHAFT ARRANGEMENT AND GUARANTEES THAT WHICHEVER ACTION (ON OR OFF) IS APPLIED TO ONE POWER SOURCE THE OPPOSITE (ON OR OFF) ACTION IS SIMULTANEOUSLY APPLIED TO THE OTHER POWER SOURCE; THERE BEING ONLY ONE ENERGIZING ELEMENT - NAMELY THE ONE MOTOR. IN REGARD TO THE THIRD SALIENT CHARACTERISTIC, THE USE OF ARCING CONTACTS IS REQUIRED PRIMARILY FOR PROTECTION AGAINST BURN-OUT OF THE MAIN CONTACTS IN SHORT CIRCUIT CONDITIONS AND SECONDARILY TO PROVIDE POSITIVE PROTECTION FOR MAIN CONTACTS DURING NORMAL OFF AND ON SWITCHING OPERATIONS. THE SUBSTITUTION OF A WIPING ACTION FOR ARCING CONTACTS DOES NOT NEARLY APPROACH AS DEFINITE A PROTECTION AS ARCING CONTACTS PROVIDE, AND ACCORDINGLY CANNOT BE CONSIDERED A COMPARABLY EQUAL PROTECTION UNDER ANY CIRCUMSTANCES. THE DEVELOPMENT OF ARCING CONTACTS HAS UNQUESTIONABLY REVOLUTIONIZED THE APPLICATION OF ELECTRICAL DISCONNECTS IN RECENT YEARS AND THE USE OF SAME IS CONSIDERED VERY ESSENTIAL TO THE MAINTENANCE OF VITAL EMERGENCY EQUIPMENT.

THE DRAFTING OF SPECIFICATIONS FOR MATERIALS OR SERVICES TO BE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE PROCURING AGENCIES, AND THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF AN AGENCY UNLESS THE LATTER IS OBVIOUSLY ARBITRARY OR UNREASONABLE. 17 COMP. GEN. 554 (1938). ON THE RECORD PRESENTLY BEFORE US, WE ARE UNABLE TO CONCLUDE THAT THE SPECIFICATIONS IMPOSED REQUIREMENTS IN EXCESS OF THE ESSENTIAL NEEDS OF THE GOVERNMENT, OR THAT BIDDERS WERE RESTRICTED TO SUPPLYING THE PRODUCTS OF THE BRAND NAME MANUFACTURER. SINCE THE EQUIPMENT OFFERED BY YOU AND THE LOW BIDDER DID NOT CONFORM TO DESIGN FEATURES SPECIFIED TO BE MATERIAL AND ESSENTIAL, THEY WERE NOT EQUAL IN ALL MATERIAL RESPECTS AND ACCEPTANCE THEREOF COULD ONLY HAVE BEEN ACCOMPLISHED BY A WAIVER OF THE ADVERTISED SPECIFICATIONS. SINCE THIS ACTION WOULD HAVE BEEN IMPROPER UNDER LONG-ESTABLISHED RULES GOVERNING THE PROCUREMENT OF SUPPLIES, WE ARE OF THE OPINION THAT THE DETERMINATION THAT THE TWO LOWEST BIDS WERE NOT RESPONSIVE TO THE SOLICITATION WAS PROPER, AND NOT SUBJECT TO QUESTION BY OUR OFFICE.

FOR THE REASONS STATED, YOUR PROTEST MUST BE DENIED.