B-172985, SEP 14, 1971

B-172985: Sep 14, 1971

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IT WAS PROPER FOR THE CONTRACTING OFFICER TO DETERMINE PROTESTANT NON- RESPONSIBLE. AS DEFINED IN ASPR 1-904.1 IT IS THE PRIMARY RESPONSIBILITY OF THE CONTRACTING AGENCY TO DRAFT SPECIFICATIONS REFLECTING THE NEEDS OF THE GOVERNMENT AND THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE. INC.: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST AWARD OF A CONTRACT TO ELECTRO-MOTIVE DIVISION. F.15 WAS ADDED. WHEN BIDS WERE OPENED ON MAY 7. YOUR COMPANY'S BID (WHICH DID NOT TAKE ANY EXCEPTIONS TO THE SPECIFICATIONS LISTED IN THE SOLICITATION) WAS THE APPARENT LOWEST RESPONSIVE BID. A PREAWARD SURVEY WAS REQUESTED ON YOUR FIRM FROM DCASR HOUSTON.

B-172985, SEP 14, 1971

BID PROTEST - BIDDER RESPONSIBILITY DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO ELECTRO MOTIVE DIVISION, GENERAL MOTORS CORPORATION, UNDER AN IFB ISSUED BY THE CHARLESTON NAVAL SHIPYARD, FOR THE FABRICATION OF GENERATOR SETS, DIESEL ENGINES WITH SPARE PARTS AND ATTENDANT TECHNICAL DATA. WHERE AN AMENDMENT TO THE IFB REQUIRED THAT "EACH GENERATOR SET SHALL BE DRIVEN BY A SINGLE DIESEL ENGINE," AND THE PRE-AWARD SURVEY TEAM FOUND THAT PROTESTANT CONTEMPLATED THE USE OF TWO ENGINES MOUNTED BACK TO-BACK, IT WAS PROPER FOR THE CONTRACTING OFFICER TO DETERMINE PROTESTANT NON- RESPONSIBLE, AS DEFINED IN ASPR 1-904.1 IT IS THE PRIMARY RESPONSIBILITY OF THE CONTRACTING AGENCY TO DRAFT SPECIFICATIONS REFLECTING THE NEEDS OF THE GOVERNMENT AND THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED.

TO STEWART AND STEVENSON SERVICES, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST AWARD OF A CONTRACT TO ELECTRO-MOTIVE DIVISION, GENERAL MOTORS CORPORATION UNDER IFB N00191 71-B- 0038, ISSUED BY THE CHARLESTON NAVAL SHIPYARD, CHARLESTON, SOUTH CAROLINA.

THE INSTANT SOLICITATION, ISSUED ON MARCH 26, 1971, REQUESTED, INSOFAR AS MATERIAL HERE, BIDS FOR THE FABRICATION OF TWO (2) 2000 KW GENERATOR SETS, FOUR (4) 1000 KW GENERATOR SETS, SIX (6) 1600 BHP/750 RPM DIESEL ENGINES, TOGETHER WITH SPARE TOOLS FOR EACH ITEM AND ATTENDANT TECHNICAL DATA FOR DELIVERY IN APPROXIMATELY 11 MONTHS FROM THE DATE OF AWARD FOR INSTALLATION ABOARD THE USS PROTEUS. BY AMENDMENT NO. 4 DATED APRIL 19, 1971, A NEW PARAGRAPH NO. F.15 WAS ADDED, WHICH PROVIDED:

"FOR DIESEL GENERATOR SETS FURNISHED UNDER ITEMS 001 AND 004, THE 2000 KW AND 1000 KW GENERATOR SETS, RESPECTIVELY, EACH GENERATOR SET SHALL BE DRIVEN BY A SINGLE DIESEL ENGINE."

WHEN BIDS WERE OPENED ON MAY 7, 1971, YOUR COMPANY'S BID (WHICH DID NOT TAKE ANY EXCEPTIONS TO THE SPECIFICATIONS LISTED IN THE SOLICITATION) WAS THE APPARENT LOWEST RESPONSIVE BID. ON MAY 11, 1971, A PREAWARD SURVEY WAS REQUESTED ON YOUR FIRM FROM DCASR HOUSTON. AMONG THE FACTORS FOR WHICH INVESTIGATION WAS REQUESTED WAS WHETHER YOUR FIRM PLANNED TO CONFORM TO THE REQUIREMENT FOR FURNISHING GENERATORS DRIVEN BY A SINGLE DIESEL ENGINE AS SET FORTH IN AMENDMENT 4 QUOTED ABOVE. THE REPORT SUBMITTED BY THE DEPARTMENT OF THE NAVY INDICATES THAT THIS REQUEST WAS BASED UPON ADVICE THAT YOUR COMPANY WAS ATTEMPTING TO FURNISH A TWO-ENGINE DRIVEN GENERATOR ARRANGEMENT FOR A NEW CONSTRUCTION SHIP UNDER ANOTHER CONTRACT.

IT IS REPORTED THAT DURING THE SURVEY CONDUCTED ON MAY 13 AND 14, 1971, AT YOUR PLANT, YOUR REPRESENTATIVES WERE ASKED TO EXPLAIN STEWART AND STEVENSON'S PLANS FOR SUBCONTRACTING, AND FOR EVENTUALLY FURNISHING THE GENERATORS AND ENGINES. YOUR OFFICIALS BOTH ORALLY AND BY SKETCHES INDICATED THAT YOU PROPOSED TO FURNISH FOR ITEM 1 (2000 KW GENERATOR) A "SPLIT CRANK SHAFT" ARRANGEMENT OF A GENERAL MOTORS (GM) 149T1, 32 CYLINDER ENGINE. THIS ARRANGEMENT CONSISTS OF TWO 16 CYLINDER, MODEL 149T1, GM DIESEL ENGINES MOUNTED BACK-TO-BACK, WITH A GENERATOR MOUNTED BETWEEN THEM. IN THIS REGARD, IT IS REPORTED THAT THE LARGEST GM 149T1 MADE IS A 16 CYLINDER ENGINE. ALSO, AS TO ITEM 7 (PROPULSION ENGINES, 1740HP, 750 RPM) YOUR FIRM PROPOSED THAT EACH OF THE SIX REQUIRED ENGINES UNDER THIS CATEGORY WOULD CONSIST OF A SERIES OF GM 149T1, 24 CYLINDER, SPLIT CRANK SHAFT TYPE. THIS ARRANGEMENT CONSISTS OF TWO MODEL 12-149T1, 12 CYLINDER ENGINES MOUNTED BACK-TO-BACK WITH A GEAR BOX BETWEEN THEM. VIEW OF THE FOREGOING, IT WAS THE OPINION OF THE PREAWARD SURVEY BOARD THAT YOUR FIRM HAD NOT OFFERED A SINGLE DIESEL ENGINE TO DRIVE THE GENERATORS REQUIRED UNDER ITEMS 001 AND 0007, AND A NO AWARD RECOMMENDATION WAS THEREFORE MADE.

AS A CONSEQUENCE OF SUCH FINDINGS, THE CONTRACTING OFFICER DETERMINED ON MAY 18, 1971, THAT YOUR FIRM WAS NOT RESPONSIBLE AS DEFINED IN PARAGRAPH 1 -904.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). IT WAS ALSO DETERMINED PURSUANT TO ASPR 1-705.4(C)(IV) THAT THE AWARD OF A CONTRACT MUST BE MADE WITHOUT DELAY AND THE QUESTION OF YOUR RESPONSIBILITY WAS THEREFORE NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY. AWARD WAS MADE TO ELECTRO-MOTIVE DIVISION OF GM ON MAY 21, 1971, AS THE NEXT LOW RESPONSIVE, RESPONSIBLE BIDDER.

WHILE YOU ADMITTED OFFERING A SPLIT CRANK SHAFT ENGINE DESIGN, YOU DENY THAT SUCH A CONFIGURATION TECHNICALLY CONSTITUTES TWO ENGINES. YOU ARGUE THAT THE ONLY WAY IT COULD BE CONSIDERED TWO ENGINES WOULD BE IF THE BANKS COULD BE OPERATED INDEPENDENTLY ONE FROM THE OTHER. YOU INDICATE THAT SINCE THIS IS IMPOSSIBLE WITH YOUR DESIGN, THE CONFIGURATION OFFERED BY YOUR FIRM IS A SINGLE ENGINE.

IT HAS CONSISTENTLY BEEN OUR POSITION THAT THE CONTRACTING AGENCY IS PRIMARILY RESPONSIBLE FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT, AND THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE AGENCY, MEET ITS NEED. FROM THE RECORD BEFORE US, WE FIND NO VALID BASIS TO QUESTION THE CONTRACTING OFFICER'S CONCLUSION, SUPPORTED BY THE FINDING OF THE PREAWARD SURVEY TEAM, THAT YOUR SPLIT CRANK SHAFT ENGINE DESIGN MUST BE CONSIDERED A TWO ENGINE DRIVE WHICH DOES NOT MEET THE INTENT OF THE SINGLE ENGINE SPECIFIED IN AMENDMENT 4. IT IS ALSO REPORTED THAT BECAUSE OF THE OVERALL LENGTH OF YOUR DESIGN IT WOULD POSE UNDESIRABLE DESIGN AND PRODUCTION PROBLEMS IN THE INSTALLATION ABOARD THE SHIP IN QUESTION, WHICH IS THE VERY PROBLEM AMENDMENT 4 PROPOSED TO PRECLUDE. ADDITIONALLY, IT APPEARS THAT A SINGLE 16 CYLINDER 149TI GM GENERATOR ENGINE OF THE TYPE OFFERED BY YOUR FIRM WOULD NOT PROVIDE THE REQUIRED HORSEPOWER TO DRIVE A 2000 KW GENERATOR SET.

YOU ALSO QUESTION WHETHER THE PROCUREMENT OFFICIALS WERE IN POSSESSION OF UP TO DATE DATA SHEETS AND OTHER PERTINENT TECHNICAL INFORMATION SO AS TO PERMIT THEM TO MAKE AN INFORMED JUDGMENT AS TO WHETHER THE ENGINE OFFERED BY YOUR FIRM DID IN FACT MEET THE REQUIREMENTS OF THE IFB. FROM OUR REVIEW OF THE DATA SHEETS AND OTHER INFORMATION FURNISHED OUR OFFICE BY YOUR LETTER OF JULY 19, 1971, TOGETHER WITH THE REPORT FROM THE NAVY, IT WOULD APPEAR THAT THE PROCURING ACTIVITY WAS IN POSSESSION OF ALL NECESSARY INFORMATION CONCERNING THE GM MOTORS THAT YOU PROPOSED TO FURNISH UNDER THIS IFB.

THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED. 36 COMP. GEN. 251 (1956). IN THE INSTANT CASE, WE BELIEVE THE RECORD ADEQUATELY ESTABLISHES THAT, THE ENGINE DESIGN CONTEMPLATED BY YOUR BID DID NOT COMPLY WITH THE SPECIFICATION REQUIREMENTS AND WOULD NOT HAVE MET THE NEEDS OF THE PROCURING AGENCY. IN VIEW THEREOF, WE FIND NO BASIS TO QUESTION THE CONTRACTING OFFICER'S CONCLUSION THAT YOUR BID SHOULD BE REJECTED.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.