B-173743, NOV 15, 1971

B-173743, NOV 15, 1971

BID PROTEST - RESTRICTIVE SPECIFICATIONS DENIAL OF PROTEST AGAINST THE SPECIFICATIONS FOR AN EMERGENCY GENERATOR SET IN A "BRAND NAME OR EQUAL" PROCUREMENT UNDER AN IFB ISSUED BY THE FEDERAL REFORMATORY, EL RENO, OKLA. THERE IS NO INDICATION THAT THE SPECIFICATIONS APPLICABLE TO THE EMERGENCY GENERATOR UNIT HAD ANY ADVERSE EFFECT ON COMPETITION IN THIS CASE. FURTHER, THE PROPER TIME TO PROTEST THE RESTRICTIVE NATURE OF THE SPECIFICATIONS IS PRIOR TO BID OPENING, NOT AFTER CONTRACT AWARD. ACCORDINGLY, THE PROTEST IS DENIED.

TO UNITED ENGINES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 26 AND SEPTEMBER 28, 1971, WITH ENCLOSURES, PROTESTING THE SPECIFICATIONS FOR THE EMERGENCY GENERATOR SET UNDER INVITATION FOR BIDS NO. 15-3357, ISSUED BY THE FEDERAL REFORMATORY, EL RENO, OKLAHOMA, ON NOVEMBER 17, 1970.

THE INVITATION REQUESTED AN AGGREGATE BID FOR THE REHABILITATION OF A BOILER PLANT. THE SPECIFICATIONS (ELECTRICAL PORTION) PROVIDED THAT THE EMERGENCY ENGINE GENERATOR UNIT BE THE APPROVED EQUAL OF CUMMINS ENGINE COMPANY SET MODEL V12-525, AS DESCRIBED IN THE SPECIFICATIONS IN PERTINENT PART AS FOLLOWS:

"10. DIESEL ENGINE:

"A. THE GENERATOR SHALL BE DRIVEN BY A SINGLE ENGINE HAVING A CONTINUOUS RATING OF NOT LESS THAN 400 BRAKE HP AT 1800 RPM. *** THE ENGINE TO BE NATURALLY ASPIRATED WITH NOT LESS THAN 1700 CUBIC INCH DISPLACEMENT, SUPERCHARGED OR TURBOCHARGED WILL NOT BE APPROVED.

"B. THE DIESEL ENGINE SHALL BE OF THE VERTICAL MULTI-CYLINDER FOUR CYCLE SOLID INJECTION FUEL DIESEL TYPE, WITH MOVING PARTS HOUSED. *** THE CYLINDER LINERS OF THE ENGINE SHALL BE OF THE WET TYPE AND REMOVABLE."

R&M MECHANICAL CONTRACTORS, INCORPORATED (R&M) WAS AWARDED THE CONTRACT IN EARLY 1971. IN ACCORDANCE WITH THE GENERAL CONDITIONS OF THE CONTRACT, THE CONTRACTOR BY LETTER DATED MAY 28, 1971, FURNISHED THE CONTRACTING OFFICER WITH A LIST OF ITS PROPOSED SUBCONTRACTORS FOR APPROVAL BY THE GOVERNMENT. THOMPSON ELECTRIC WAS INCLUDED ON THIS LIST FOR THE ELECTRICAL WORK AND, YOU INDICATE, WAS APPROVED FOR AWARD.

YOU REPORT THAT THOMPSON INITIALLY BASED ITS PROPOSAL ON USING YOUR PRODUCT, A DETROIT DIESEL ENGINE, MODEL 12V-71; HOWEVER, YOU WERE SUBSEQUENTLY ADVISED THAT YOUR UNIT WHICH INCLUDES A TWO-CYCLE ENGINE WAS NOT APPROVED FOR USE ON THE PROJECT BY THE GOVERNMENT BECAUSE IT WAS DEEMED NOT TO BE EQUAL TO THE FOUR-CYCLE ENGINE REQUIRED UNDER THE SPECIFICATIONS.

YOU CONTEND THAT EXTENSIVE PAST EXPERIENCE PROVES THE DETROIT DIESEL ENGINE 12V-71 TO BE EQUAL TO THE CUMMINS ENGINE V12-525, AND THAT DISALLOWANCE OF THE TWO-CYCLE ENGINE BASED SOLELY ON DIFFERENCE OF INHERENT DESIGN (AND NOT JOB FULFILLMENT ABILITY) IS RESTRICTIVE AND NONCOMPETITIVE.

IN ADDITION, YOU ALLEGE THAT USE OF THE BRAND NAME UNIT WOULD REQUIRE A DEVIATION IN THE SPECIFICATIONS. YOU CITE THE FOLLOWING POINTS IN THIS REGARD:

"A. SPECIFICATIONS CALL FOR A VERTICAL MULTI CYLINDER ENGINE. CUMMINS OFFERS A HORIZONTAL ENGINE WITH VERTICAL CYLINDERS.

"B. SPECIFICATIONS STATE THERE WILL BE ONE MORE BEARING THAN THERE ARE CYLINDERS. THE CUMMINS ENGINE IS A 12 CYLINDER ENGINE WITH 7 BEARINGS.

"C. THE SPECIFICATIONS SPECIFIED A CUMMINS V12-525 ENGINE WHICH IS AN OBSOLETE ENGINE AND NO LONGER AVAILABLE FROM CUMMINS. THE V12-525 HAS BEEN REPLACED WITH THEIR MODEL V-1710."

ALSO, YOU STATE THAT "NO OTHER ENGINE MANUFACTURER OTHER THAN CUMMINS COULD MEET THESE SPECIFICATIONS *** ."

WITH REGARD TO THE SPECIFICATION REQUIREMENT FOR A FOUR-CYCLE ENGINE, THE BUREAU OF PRISONS REPORTS AS FOLLOWS:

"THE SPECIFICATION FOR THE 250KW DIESEL GENERATOR WAS PREPARED TO OBTAIN MINIMUM MAINTENANCE AND MAXIMUM SERVICE; THEREFORE, A 4-CYCLE ENGINE WAS SPECIFIED. THE 4-CYCLE ENGINE HAS THE ADVANTAGES OF COOLER PISTONS, HIGHER MECHANICAL EFFICIENCY AND NO FUEL LOSS DURING EXHAUST. THE ENGINE WAS SPECIFIED TO BE NATURALLY ASPIRATED. THE 2-CYCLE ENGINE USES A ROOTS BLOWER TO INCREASE THE FULE CHARGE TO THE CYLINDERS TO INCREASE THE POWER. THE BLOWER IS ADDED EQUIPMENT TO BE SERVICED. THE SPECIFICATION CALLED FOR WET-TYPE CYLINDER LINERS WHICH ALLOW FOR GREATER COOLING OF THE ENGINE WHICH WILL RESULT IN LONGER ENGINE LIFE."

THE BUREAU ALSO LISTS A NUMBER OF OTHER FIRMS MANUFACTURING GENERATOR SETS SIMILAR TO THE SPECIFIED UNIT, INCLUDING KOHLER, ONAN AND FAIRBANKS MORSE. HOWEVER, YOU CONTEND THAT NONE OF THESE LISTED FIRMS ACTUALLY MANUFACTURE A DIESEL ENGINE SIMILAR TO THE SPECIFIED ENGINE.

ARTICLE 22 OF THE GENERAL CONDITIONS OF THE CONTRACT STATES THAT ANY REFERENCE TO NAME OR MAKE SHALL BE INTERPRETED AS ESTABLISHING A STANDARD OF QUALITY AND NOT AS LIMITING COMPETITION. THE PROVISION AUTHORIZES THE CONTRACTOR TO SUBSTITUTE EQUAL ITEMS IF APPROVED IN ADVANCE IN WRITING BY THE CONTRACTING OFFICER. A DISAGREEMENT BETWEEN THE CONTRACTOR AND THE CONTRACTING OFFICER AS TO WHETHER A PROPOSED SUBSTITUTE WAS IN FACT EQUAL TO THE DESIGNATED ITEM WOULD PRESUMABLY BE DECIDED PURSUANT TO THE DISPUTES CLAUSE OF THE CONTRACT. SUCH AN ISSUE WOULD BE SUBJECT TO OUR REVIEW ONLY AFTER EXHAUSTION OF THE PRESCRIBED ADMINISTRATIVE REMEDIES. WE ARE, OF COURSE, CONCERNED THAT GOVERNMENT PROCUREMENT SOLICITATIONS SHOULD NOT CONTAIN SPECIFICATIONS WHICH ARE UNDULY RESTRICTIVE OF COMPETITION. THERE IS NO INDICATION THAT THE SPECIFICATIONS APPLICABLE TO THE EMERGENCY GENERATOR UNIT HAD ANY ADVERSE EFFECT ON COMPETITION IN THIS CASE. FURTHER, IT IS OUR POSITION THAT PROTESTS AGAINST THE RESTRICTIVE NATURE OF THE SPECIFICATIONS SHOULD BE FILED PRIOR TO BID OPENING.

ACCORDINGLY, WE MUST DENY YOUR PROTEST AGAINST THE ACTION OF THE CONTRACTING OFFICE IN NOT APPROVING YOUR PRODUCT FOR THE INSTANT PROJECT. HOWEVER, WE ARE FORWARDING YOUR CONTENTIONS TO THE CONTRACTING AGENCY FOR ITS CONSIDERATION.