B-209452, JAN 18, 1983

B-209452, JAN 18, 1983

DIGEST: WHERE SOLICITATION REQUIRED "ALL OF THE GENERIC TYPES OF EQUIPMENT PROPOSED" TO HAVE BEEN IN SERVICE FOR MINIMUM OF 1 YEAR PRIOR TO SPECIFIED DATE, CONTRACTING OFFICER WAS REASONABLE IN ACCEPTING IMPROVED VERSION OF A BASIC SYSTEM WHICH HAD BEEN IN SERVICE FOR REQUIRED PERIOD SINCE THE TERM "GENERIC TYPE OF EQUIPMENT" REFERS TO GROUPS OR KINDS OF SIMILAR EQUIPMENT PERFORMING ESSENTIALLY THE SAME FUNCTION AND DOES NOT REQUIRE THAT IDENTICAL EQUIPMENT BE FURNISHED.

BAILEY CONTROLS COMPANY:

BAILEY CONTROLS COMPANY, A DIVISION OF THE BABCOCK & WILCOX COMPANY (BAILEY), PROTESTS THE AWARD OF A CONTRACT TO ANOTHER FIRM FOR DESIGNING, FABRICATING AND DELIVERING EQUIPMENT TO REPLACE OBSOLETE EQUIPMENT BEING USED TO MONITOR AND CONTROL COOLING SYSTEMS IN A NUCLEAR REACTOR. THIS IS A NEGOTIATED PROCUREMENT BEING CONDUCTED BY THE J.A. JONES CONSTRUCTION SERVICES COMPANY (JONES), WHICH IS A MANAGEMENT PRIME CONTRACTOR FOR THE DEPARTMENT OF ENERGY. BAILEY CONTENDS LEEDS & NORTHRUP COMPANY, WHICH JONES HAS SELECTED FOR AWARD, SUBMITTED A PROPOSAL INDICATING THAT THE EQUIPMENT IT INTENDS TO FURNISH WILL NOT MEET THE SOLICITATION'S REQUIREMENT THAT ALL GENERIC EQUIPMENT PROPOSED SHALL HAVE BEEN MANUFACTURED AND IN SERVICE FOR A SPECIFIED PERIOD OF TIME.

WE FIND NO MERIT TO THE PROTEST.

THE SOLICITATION REQUIRED THAT "ALL OF THE GENERIC TYPES OF EQUIPMENT PROPOSED SHALL HAVE BEEN MANUFACTURED AND IN SERVICE FOR A MINIMUM OF 1 YEAR PRIOR TO MARCH 1, 1982."

LEEDS & NORTHRUP IDENTIFIED TWO INSTALLATIONS IN RESPONSE TO THE 1 YEAR EXPERIENCE REQUIREMENT. ONE INSTALLATION, INVOLVING A SYSTEM SIMILAR TO THE ONE PROPOSED HERE, DID NOT BECOME OPERATIONAL UNTIL APRIL 1981 AND OBVIOUSLY DOES NOT MEET THE 1-YEAR REQUIREMENT. THE OTHER SYSTEM IDENTIFIED BY LEEDS & NORTHRUP HAS BEEN IN SERVICE SINCE 1980 BUT DOES NOT HAVE ALL OF THE FEATURES OF THE SYSTEM WHICH LEEDS & NORTHRUP PROPOSED TO MEET THE REQUIREMENTS OF THE SOLICITATION ISSUED BY JONES. BAILEY CONTENDS THAT THE PROPOSED LEEDS & NORTHRUP SYSTEM IS A LARGER SYSTEM AND IS NOT GENERICALLY SIMILAR EQUIPMENT TO THE EARLIER SYSTEM.

IN OUR VIEW, THE USE OF THE TERM "ALL GENERIC TYPES OF EQUIPMENT" INDICATES AN INTENTION TO ENCOMPASS A GROUP OF SIMILAR EQUIPMENT AND NOT TO REQUIRE THAT EQUIPMENT IDENTICAL TO THAT BEING OFFERED HAVE BEEN IN SERVICE FOR A MINIMUM PERIOD OF 1 YEAR. THE WORD "GENERIC" IS DEFINED IN WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1971 ED.) AS RELATING TO OR DESCRIPTIVE OF ALL MEMBERS OF A GENUS, SPECIES, CLASS OR GROUP. SEE OLYMPIC MOTORS V. MCCROSKEY, 132 P. 2D 355 (WASH. 1942), WHERE THE COURT HELD THAT LANGUAGE OF A GENERIC IMPORT IS LANGUAGE WHICH HAS A WIDE OR GENERAL APPLICATION. THEREFORE, WE BELIEVE THE TERM "ALL GENERIC TYPES OF EQUIPMENT" AS USED IN THE SOLICITATION MAY REASONABLY PREVENT ACCEPTANCE OF NEWLY DESIGNED, UNTRIED EQUIPMENT BUT PERMIT THE ACCEPTANCE OF AN IMPROVED VERSION OF BASIC EQUIPMENT WHICH HAS MET THE IN-SERVICE REQUIREMENT AND HAS BEEN ADAPTED TO MEET THE SPECIFIC PERFORMANCE REQUIREMENTS OF THE SOLICITATION.

IT IS OUR UNDERSTANDING THAT THE PRIMARY DIFFERENCE BETWEEN THE CONTROL SYSTEM PROPOSED BY LEEDS & NORTHRUP AND THE ONE WHICH THE FIRM PLACED IN SERVICE IN 1980 IS THAT THE FORMER INCORPORATES A DATA HIGHWAY SYSTEM WHICH PERMITS THE CONTROLLERS SURROUNDING THE CENTRAL MINI-STATION TO COMMUNICATE WITH EACH OTHER RATHER THAN SOLELY WITH THE CENTRAL STATION. IN OTHER WORDS, THE UPGRADED SYSTEM WILL PERFORM THE SAME FUNCTIONS AS THE EARLIER VERSION; IT MERELY HAS AN ADDITIONAL CAPABILITY.

WE THINK THAT THE CONTRACTING OFFICER'S DETERMINATION THAT THE TWO VERSIONS WERE OF THE SAME GENERIC TYPE WAS REASONABLE. BAILEY HAS OFFERED NO SUPPORT FOR ITS CONTENTION THAT THE TWO SYSTEMS ARE NOT GENERICALLY SIMILAR BEYOND SAYING THAT THE PROPOSED VERSION IS LARGER THAN THE BASIC SYSTEM.

BAILEY INITIALLY RAISED TWO OTHER MATTERS WHICH WE DO NOT RESOLVE. FIRST, BAILEY CONTENDS THAT LEEDS & NORTHRUP STAFF DID NOT MEET A SOLICITATION REQUIREMENT FOR HAVING PREVIOUSLY PROVIDED ENGINEERING SERVICES AND EQUIPMENT FOR A LICENSED NUCLEAR REACTOR. BAILEY DID NOT PURSUE THIS POINT AFTER THE DEPARTMENT OF ENERGY REPORTED THAT SUCH EXPERIENCE HAD BEEN VERIFIED BY JONES AFTER RECEIPT OF PROPOSALS. BAILEY ALSO INITIALLY PROTESTED THAT ITS PROPOSAL OFFERED A LOWER PRICE THAN WAS OFFERED BY LEEDS & NORTHRUP. ENERGY STATES, HOWEVER, THAT WHILE BAILEY'S BASE PRICE PLUS OPTION 1 MAY HAVE BEEN LOW, WHEN THE ADDITIONAL PRICING FOR SPARES AND OTHER OPTIONS ARE ADDED AS REQUIRED, BAILEY'S TOTAL PRICE IS NOT LOWER THAN LEEDS & NORTHRUP'S PRICE. AGAIN, BAILEY HAS NOT REBUTTED THIS POINT. IT APPEARS, THEREFORE, THAT BAILEY CONCEDES THESE POINTS AND WE HAVE NOT CONSIDERED THEM.

UNDER THESE CIRCUMSTANCES, WE HAVE NO BASIS TO QUESTION THE PROPOSED AWARD. SEE TYMSHARE, INC., B-193703, SEPTEMBER 4, 1979, 79-2 CPD 172; PAUL H. WERRES COMPANY, INC., B-182141, DECEMBER 26, 1974, 74-2 CPD 388.

THE PROTEST IS DENIED.