B-176323, DEC 19, 1972

B-176323, DEC 19, 1972

BID PROTEST - DESIGN SPECIFICATIONS - DESCRIPTIVE LITERATURE - PRIOR CONSIDERATION DECISION REGARDING A PROTEST ON BEHALF OF UNIDYNAMICS/ST. LOUIS, INC., AGAINST THE AWARD OF A CONTRACT TO ALLIS-CHALMERS CORPORATION UNDER AN IFB ISSUED BY THE MEMPHIS DISTRICT, U.S. ARMY CORPS OF ENGINEERS, FOR TWO BOTTOM-HINGED GATES AND OPERATING MACHINERY FOR FLOOD CONTROL. THE COMP. GEN. BELIEVES THAT THE AGENCY'S ACTION IN REJECTING UNIDYNAMICS' BID BECAUSE OF ITS INCLUSION OF A PLATE THICKNESS IS INCONSISTENT WITH THE ACCEPTANCE OF A BID WHICH INCLUDES AN ESTIMATED WEIGHT SINCE THE ESTIMATED OVERALL WEIGHT IS DIRECTLY RELATED TO THE THICKNESS OF THE GATES, AND THEREFORE BOTH SPECIFICATIONS MAY BE SAID TO REQUIRE DESIGN ACCEPTANCE. IN ADDITION, THE AGENCY CONSIDERED SIMILAR DESCRIPTIVE LITERATURE IN AN EARLIER INVITATION WITHOUT FINDING IT OBJECTIONABLE. THEREFORE, THE INVITATION SHOULD BE CANCELLED AND THE REQUIREMENT RESOLICITED.

TO MR. SECRETARY:

WE REFER TO A LETTER DATED AUGUST 4, 1972, AND SUBSEQUENT CORRESPONDENCE, FROM THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, TRANSMITTING REPORTS IN CONNECTION WITH THE PROTEST FILED ON BEHALF OF UNIDYNAMICS/ ST. LOUIS, INCORPORATED (UNIDYNAMICS), AGAINST THE AWARD OF A CONTRACT TO ALLIS-CHALMERS CORPORATION (ALLIS) UNDER INVITATION FOR BIDS NO. DACW66-72 -B-0128, ISSUED BY THE MEMPHIS DISTRICT, UNITED STATES ARMY CORPS OF ENGINEERS.

THE INVITATION, ISSUED ON MAY 12, 1972, SOLICITED BIDS FOR DESIGN, MANUFACTURE AND DELIVERY OF TWO BOTTOM-HINGED GATES AND OPERATING MACHINERY FOR FLOOD CONTROL. THE INVITATION CONTAINED THE FOLLOWING REQUIREMENT FOR DESCRIPTIVE LITERATURE:

"4. REQUIREMENT FOR DESCRIPTIVE LITERATURE.

"(A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS SPECIFIED IN (C) BELOW.

"(B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. *** BIDS WILL BE EVALUATED STRICTLY ON THE BASIS OF THE INFORMATION SUBMITTED WITH THE BID. BIDDERS SUBMIT STANDARD DRAWINGS AND/OR STANDARD PUBLISHED DESCRIPTIVE DATA FOR THEIR PRODUCT, ANY MODIFICATION REQUIRED AND INTENDED BY THEM TO SHOW COMPLIANCE OF THE OFFER WITH THE REQUIREMENTS OF THE SPECIFICATIONS SHALL BE CLEARLY INDICATED THEREON, AND ANY INAPPLICABLE DESCRIPTION OR DATA SHALL BE DELETED. ***

"(C) IN ACCORDANCE WITH (A) ABOVE, THE FOLLOWING INFORMATION AND DESCRIPTIVE DATA SHALL BE FURNISHED:

(1) DRAWINGS AND DESCRIPTIVE DATA, INCLUDING, BUT NOT LIMITED TO A SECTIONAL VIEW AND AN ELEVATION VIEW.

A. TYPICAL GATE ARRANGEMENT.

B. TYPICAL POWER UNIT AND CONTROL PANEL ARRANGEMENT.

C. GENERAL ARRANGEMENT OF EQUIPMENT IN CONTROL HOUSE THAT IS 10' WIDE, BY 11' LONG, AND 8' HIGH.

(2) OTHER SPECIFIC DATA. THE FOLLOWING WEIGHTS, DIMENSIONS AND OTHER DATA SHALL ALSO BE FURNISHED:

A. WEIGHT OF GATES.

B. WEIGHT OF MACHINERY.

C. WEIGHT OF POWER UNIT."

TWO BIDS, ONE FROM UNIDYNAMICS AT $187,394 AND THE OTHER FROM ALLIS AT $308,269 WERE RECEIVED AND OPENED ON JUNE 17. IN RESPONSE TO THE ABOVE- CITED REQUIREMENT, UNIDYNAMICS INCLUDED WITH ITS BID TWO DRAWINGS TOGETHER WITH A COVERING SHEET. THIS SHEET, WHICH IS PREFACED BY AN OFFER TO COMPLY WITH THE SPECIFICATIONS, INCLUDES THE FOLLOWING STATEMENTS WHICH PERTAIN TO THIS PROTEST: "THE BASIC GATE STRUCTURE WILL BE 1/2" PLATE ON THE UPSTREAM FACE AND 3/8" PLATE ON THE DOWNSTREAM FACE. THE HYDRAULIC CYLINDER WILL BE 15" BASE WITH APPROXIMATELY 15 FT STROKE" AND "THE HYDRAULIC POWER SUPPLY WILL CONSIST OF TWO 5 HP DESIGN B MOTORS, DRIVING TWO VARIABLE DISPLACEMENT PRESSURE COMPENSATED PUMPS DEVELOPING 1,000 PSI WORKING PRESSURE."

THE AGENCY HAS CONCLUDED THAT THESE STATEMENTS, WHICH IT CATEGORIZES AS UNSOLICITED, QUALIFY THE UNIDYNAMICS' BID. ACCORDINGLY, IT HAS DETERMINED THAT THIS BID IS NONRESPONSIVE AND INELIGIBLE FOR AWARD.

THIS DETERMINATION IS BASED PRIMARILY ON THE AGENCY'S ARGUMENT THAT UNIDYNAMICS' SUBMISSION OF A SPECIFIC PLATE THICKNESS WOULD PREMATURELY BIND THE GOVERNMENT TO ACCEPT THE UNIDYNAMICS' DESIGN.

THE SPECIFICATION WHICH DEALS WITH THE THICKNESS OF THE PLATING TO BE UTILIZED IN THE GATE STRUCTURE STATES AS FOLLOWS:

"IN NO EVENT SHALL ANY MATERIAL HAVING A THICKNESS LESS THAN 3/8-INCH BE USED FOR ANY MEMBER CARRYING LOAD OR SUBJECT TO CONTACT WITH WATER. THE REQUIRED THICKNESS OF MEMBERS SHALL BE DETERMINED FROM THE LOADS IMPOSED."

THE SPECIFICATIONS FURTHER PROVIDE THAT -

"THE GATES SHALL BE DESIGNED TO SAFELY RESIST ALL LOADS IMPOSED UPON THEM BY BOTH STATIC AND DYNAMIC FORCES APPLIED IN ANY POSITION BETWEEN OPENED AND CLOSED. THE POSITION OF THE GATE RESULTING IN THE MAXIMUM LOADING AND STRESSES SHALL BE DETERMINED AND ANALYZED, AND COMPUTATIONS FURNISHED IN ACCORDANCE WITH 1-2.3 OF THESE SPECIFICATIONS."

PARAGRAPH 1-2.3 PROVIDES THAT THESE COMPUTATIONS MUST BE SUBMITTED FOR THE CONTRACTING OFFICER'S APPROVAL WITHIN 90 DAYS AFTER AWARD. WE AGREE WITH THE AGENCY'S POSITION THAT UNDER THESE PROVISIONS THE MINIMUM THICKNESS FOR LOAD-BEARING OR WATER CONTACTING GATE PARTS IS SUBJECT TO THE FURTHER REQUIREMENT THAT THE ACTUAL THICKNESS MUST BE DETERMINED BY THE LOAD CALCULATIONS TO BE SUBMITTED FOR GOVERNMENT APPROVAL BY THE CONTRACTOR AFTER AWARD.

PARAGRAPH TWO OF THE DESCRIPTIVE LITERATURE CLAUSE REQUIRES THE SUBMISSION OF SPECIFIC WEIGHTS FOR THE GATES, MACHINERY AND POWER UNIT. WE ARE INFORMED THAT ONLY APPROXIMATE WEIGHTS WERE REQUIRED AND THAT THE WORD "APPROXIMATE" WAS INADVERTENTLY OMITTED FROM THE CLAUSE. THIS IS SUBSTANTIATED BY THE FACT THAT BOTH BIDDERS SUBMITTED AND THE AGENCY ACCEPTED APPROXIMATE WEIGHTS. WE ALSO NOTE THAT THE DESCRIPTIVE LITERATURE CLAUSE IN AN EARLIER INVITATION FOR SUBSTANTIALLY THE SAME EQUIPMENT CALLED FOR APPROXIMATE WEIGHTS.

IN ANY EVENT, THE BIDS SET FORTH APPROXIMATE WEIGHT FOR THE GATES. SEEMS TO US THAT THE WEIGHT OF THE GATES IS DIRECTLY RELATED TO THE THICKNESS OF THE PLATES USED IN THEIR CONSTRUCTION. IF THE SUBMISSION OF THE PLATE THICKNESS CAN BE SAID TO BIND THE GOVERNMENT TO A PARTICULAR DESIGN, THEN THE SUBMISSION OF ESTIMATED OVERALL WEIGHT, WHICH IS DEPENDENT ON THE THICKNESS WOULD ALSO DICTATE A DESIGN.

IT APPEARS THAT THE AGENCY'S ACTION IN REJECTING UNIDYNAMICS' BID BECAUSE OF THE INCLUSION OF THE PLATE THICKNESS IS INCONSISTENT WITH THE ACCEPTANCE OF A BID WHICH INCLUDES AN ESTIMATED WEIGHT SINCE BOTH MAY BE SAID TO REQUIRE DESIGN ACCEPTANCE. THE SAME MAY BE SAID ALSO OF THE AGENCY'S POSITION IN REGARD TO UNIDYNAMICS' INCLUSION OF SPECIFIC MOTOR AND HYDRAULIC CYLINDER SIZES, SINCE THE BIDDER WAS REQUIRED TO FURNISH WEIGHTS ON THESE COMPONENTS AS WELL.

IN ADDITION, WE NOTE THAT AN EARLIER INVITATION FOR VIRTUALLY THE SAME EQUIPMENT AND CONTAINING A SIMILAR DESCRIPTIVE LITERATURE CLAUSE WAS CANCELLED DUE TO "INADEQUATE SPECIFICATIONS". THIS CANCELLATION FOLLOWED A PROTEST FILED WITH THE AGENCY BY ALLIS, DIRECTED, IN PART, TO THE RESPONSIVENESS OF THE UNIDYNAMICS' BID. DURING THE CONSIDERATION OF THIS PROTEST THE AGENCY DID NOT INDICATE THAT UNIDYNAMICS' DESCRIPTIVE LITERATURE, WHICH WAS THE SAME AS THAT SUBMITTED UNDER THE SUBJECT INVITATION WOULD RENDER THE BID NONRESPONSIVE. IT SEEMS TO US THAT THE AGENCY SHOULD HAVE DETECTED WHAT IT REGARDED AS OBJECTIONABLE IN THE UNIDYNAMICS' LITERATURE AND EITHER CLARIFIED THE INVITATION OR ADVISED THE BIDDER OF THE MATTER PRIOR TO THE SECOND BID SUBMISSION.

ACCORDINGLY, WE BELIEVE THAT THE INCLUSION OF THIS DESCRIPTIVE LITERATURE CLAUSE AND THE PREJUDICIAL EFFECT IT HAD ON THE LOW BIDDER REQUIRES THAT THE INVITATION BE CANCELLED AND THE REQUIREMENT RESOLICITED.