B-179831, FEB 4, 1974

B-179831: Feb 4, 1974

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OBLIGATION TO PERFORM IN ACCORDANCE THEREWITH AND QUESTION OF WHETHER EQUIPMENT OFFERED BY BIDDER ACTUALLY COMPLIES WITH SPECIFICATIONS IS ISSUE OF FACT TO BE DETERMINED BY CONTRACTING AGENCY AND. MATTER OF WHETHER BIDDER DELIVERS EQUIPMENT CONFORMING TO SPECIFICATIONS RELATES TO CONTRACT ADMINISTRATION WHICH IS RESPONSIBILITY OF PROCUREMENT ACTIVITY. ONE OF THE ITEMS OF EQUIPMENT TO BE FURNISHED AND INSTALLED BY GARDNER- ZEMKE WAS AN AUTOMATIC TRANSFER SWITCH MANUFACTURED BY R. THE PROCURING ACTIVITY STATES THAT THE CORRECT NUMBERS OF THE PARAGRAPHS OF THE SPECIFICATIONS IN QUESTION ARE PARAGRAPHS 24.1.2 AND 24.1.6. OUR OFFICE HAS COMPARED THE SPECIFICATION SHEET SUBMITTED BY BLACK AND THE SPECIFICATION SHEET SUBMITTED BY THE PROCURING ACTIVITY AND HAS NOTED THAT THE LANGUAGE IN PARAGRAPHS 24.1.2 AND 24.1.6 OF THE SPECIFICATION SHEET SUBMITTED BY THE PROCURING ACTIVITY IS IDENTICAL TO THE LANGUAGE IN PARAGRAPHS 25.1.2 AND 25.1.6 OF THE SPECIFICATION SHEET SUBMITTED BY BLACK.

B-179831, FEB 4, 1974

WHEN BIDDER SUBMITS ITS BID WITHOUT EXCEPTION TO SPECIFICATIONS, IT ASSUMES, UPON AWARD, OBLIGATION TO PERFORM IN ACCORDANCE THEREWITH AND QUESTION OF WHETHER EQUIPMENT OFFERED BY BIDDER ACTUALLY COMPLIES WITH SPECIFICATIONS IS ISSUE OF FACT TO BE DETERMINED BY CONTRACTING AGENCY AND, MOREOVER, MATTER OF WHETHER BIDDER DELIVERS EQUIPMENT CONFORMING TO SPECIFICATIONS RELATES TO CONTRACT ADMINISTRATION WHICH IS RESPONSIBILITY OF PROCUREMENT ACTIVITY. SEE CASES CITED.

TO RALPH B. BLACK CO., INC.; THE GARDNER-ZEMKE CO., INC.:

THE HOLLOMAN AIR FORCE BASE, NEW MEXICO, AWARDED DEPARTMENT OF THE AIR FORCE CONTRACT NO. F29651-73-C-0234 TO THE GARDNER-ZEMKE CO., INC., FOR THE CONSTRUCTION OF A WEAPONS GUIDANCE TEST FACILITY (ALTER) AT THE BASE. ONE OF THE ITEMS OF EQUIPMENT TO BE FURNISHED AND INSTALLED BY GARDNER- ZEMKE WAS AN AUTOMATIC TRANSFER SWITCH MANUFACTURED BY R. G. RUSSELL CO., INC.

THE RALPH B. BLACK COMPANY, INC. (BLACK), PROTESTS THE ACTION OF THE PROJECT ENGINEER AT THE HOLLOMAN AIR FORCE BASE IN APPROVING AN ALLEGED CHEAPER MODEL OF AN AUTOMATIC TRANSFER SWITCH OFFERED BY GARDNER-ZEMKE, WHICH ITEM, IT STATES, A MEMBER OF THE ENGINEERING DEPARTMENT OF THE KIRTLAND AIR FORCE BASE, NEW MEXICO - THE ACTIVITY WHICH DESIGNED THE PROJECT - RECOMMENDED BE REJECTED BECAUSE IT DID NOT CONFORM TO PARAGRAPH 25.1.6 AND THE FIRST SENTENCE OF PARAGRAPH 25.1.2 OF THE SPECIFICATIONS. IN THIS CONNECTION, THE PROCURING ACTIVITY STATES THAT THE CORRECT NUMBERS OF THE PARAGRAPHS OF THE SPECIFICATIONS IN QUESTION ARE PARAGRAPHS 24.1.2 AND 24.1.6. OUR OFFICE HAS COMPARED THE SPECIFICATION SHEET SUBMITTED BY BLACK AND THE SPECIFICATION SHEET SUBMITTED BY THE PROCURING ACTIVITY AND HAS NOTED THAT THE LANGUAGE IN PARAGRAPHS 24.1.2 AND 24.1.6 OF THE SPECIFICATION SHEET SUBMITTED BY THE PROCURING ACTIVITY IS IDENTICAL TO THE LANGUAGE IN PARAGRAPHS 25.1.2 AND 25.1.6 OF THE SPECIFICATION SHEET SUBMITTED BY BLACK.

BLACK STATES THAT THE PROJECT ENGINEER AT HOLLOMAN AIR FORCE BASE REJECTED THE RECOMMENDATION OF THE KIRTLAND AIR FORCE BASE NOTWITHSTANDING THAT HE KNEW THAT THE TEST REPORTS ON THE TRANSFER SWITCH SUBMITTED BY GARDNER-ZEMKE DID NOT MEET THE SPECIFICATIONS.

IN REGARD TO BLACK'S STATEMENT THAT THE PROJECT ENGINEER'S APPROVAL WAS BASED UPON A LETTER RECEIVED FROM A SUPPLIER IN WHICH IT WAS STATED THAT THE TRANSFER SWITCH WOULD MEET SPECIFICATIONS, THE PROCURING ACTIVITY DENIES RECEIVING SUCH A LETTER. WHILE IT IS TRUE THAT A MEMBER OF THE ENGINEERING DEPARTMENT OF THE KIRTLAND AIR FORCE BASE RECOMMENDED THAT THE TRANSFER SWITCH OFFERED BY GARDNER-ZEMKE BE REJECTED, IT IS REPORTED THAT AT THE TIME OF SUCH RECOMMENDATION, THE MEMBER OF THE KIRTLAND ENGINEERING DEPARTMENT DID NOT HAVE A COPY OF THE TEST REPORTS ON THE TRANSFER SWITCH IN QUESTION AND THAT HIS RECOMMENDATION WAS BASED UPON AN EXAMINATION OF THE DESCRIPTIVE LITERATURE SUBMITTED BY GARDNER-ZEMKE. ALSO, IT IS REPORTED THAT WHEN THE CONTENTS OF THE TEST REPORTS ON THE TRANSFER SWITCH WERE MADE KNOWN TO THE MEMBER OF THE KIRTLAND ENGINEERING DEPARTMENT, HE CHANGED HIS RECOMMENDATION FROM NONACCEPTABLE TO ACCEPTABLE.

THE RECORD INDICATES THAT THE TRANSFER SWITCH IN QUESTION WAS TESTED BY ELECTRICAL TESTING LABORATORIES, INC., AT THE REQUEST OF THE MANUFACTURER THEREOF AND IT IS REPORTED THAT THE TEST REPORTS INDICATE THAT THE TRANSFER SWITCH APPROVED BY THE PROJECT ENGINEER MEETS, AMONG OTHERS, THE REQUIREMENTS OF THE PARAGRAPHS OF THE SPECIFICATIONS CITED BY BLACK.

THE QUESTION OF WHETHER THE TRANSFER SWITCH OFFERED BY GARDNER-ZEMKE ACTUALLY COMPLIES WITH THE SPECIFICATIONS IS AN ISSUE OF FACT TO BE DETERMINED BY THE CONTRACTING AGENCY. B-177753, JULY 10, 1973, AND B 167263, SEPTEMBER 18, 1969. WHEN A BIDDER SUBMITS ITS BID WITHOUT EXCEPTION TO THE SPECIFICATIONS, IT ASSUMES, UPON AWARD, THE OBLIGATION TO PERFORM IN ACCORDANCE THEREWITH. IN ANY EVENT, THIS IS A MATTER RELATING TO CONTRACT ADMINISTRATION WHICH IS A RESPONSIBILITY OF THE PROCUREMENT ACTIVITY. B-178341, JULY 9, 1973; B-178508, OCTOBER 23, 1973.

SINCE THE FOREGOING INDICATES THAT ACCEPTANCE OF THE TRANSFER SWITCH HAS BEEN EFFECTED IN ACCORDANCE WITH THE TERMS OF THE CONTRACT, FURTHER ACTION BY OUR OFFICE DOES NOT APPEAR TO BE NECESSARY.

ACCORDINGLY, THE PROTEST IS DENIED.