B-161086, MAY 16, 1967

B-161086: May 16, 1967

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TO EMPIRE GENERATOR CORPORATION: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 67-168-22-CA. THE SUBJECT PROCUREMENT IS TO FURNISH THE ENTIRE REQUIREMENT OF THE USIA FOR PORTABLE GASOLINE-ENGINE-POWERED GENERATOR SETS FOR A PERIOD OF ONE YEAR. THE GENERATOR SETS ARE DESCRIBED AS FOLLOWS: "GENERATOR SET. GASOLINE TANK FURNISHED MUST HAVE A CAPACITY TO OPERATE THE UNIT FOR A MINIMUM OF THREE (3) HOURS UNDER FULL RATED LOAD (AT SEA LEVEL) WITHOUT REFUELING. ALTERNATOR SHALL BE INSULATED WITH CLASS "B" INSULATION PER MEMO MGI-6.08 AND VARNISH PER MIL 1137 CLASS "B.'" THE SIX BIDS RECEIVED WERE EVALUATED BY ENGINEERS OF THE AGENCY'S MOTION PICTURE AND TELEVISION SERVICE WHO CONCLUDED THAT ONLY THEONAN BID MET THE SPECIFICATIONS AND THAT "ALL OTHER BIDS FAIL TO PROVIDE THE EQUAL QUALITY AND CHARACTERISTICS OF THE ONAN AK SERIES MODEL CITED AS AN EXAMPLE IN THE INVITATION.'.

B-161086, MAY 16, 1967

TO EMPIRE GENERATOR CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 67-168-22-CA, BY THE UNITED STATES INFORMATION AGENCY (USIA).

THE SUBJECT PROCUREMENT IS TO FURNISH THE ENTIRE REQUIREMENT OF THE USIA FOR PORTABLE GASOLINE-ENGINE-POWERED GENERATOR SETS FOR A PERIOD OF ONE YEAR. THE GENERATOR SETS ARE DESCRIBED AS FOLLOWS:

"GENERATOR SET, PORTABLE, OUTPUT AT 3600 RPM, 1500 WATTS, 115 VOLTS A.C., SINGLE PHASE, 60 CYCLE, IN ACCORDANCE WITH THE SPECIFICATIONS

"ONAN AK SERIES OR EQUAL"

AND

"GENERATOR SET, SAME AS ABOVE, EXCEPT OUTPUT AT 3000 RPM, 1250 WATTS, 115 VOLTS A.C., SINGLE PHASE, 50 CYCLE.

"ONAN AK SERIES OR EQUAL" THE INVITATION ALSO INCLUDES THE FOLLOWING SPECIFICATIONS:

"ENGINE. THE ENGINE TO BE AIR-COOLED, GASOLINE DRIVE, 4 CYCLE, SINGLE CYLINDER,"L" TYPE HEAD. ENGINE TO DELIVER NO LESS THAN 3.7HORSE POWER AT 3600 RPM'S AND EQUIPPED WITH AN AUTOMATIC-RECOIL ROPE STARTER. (ENGINES FOR BOTH 50 AND 60 CYCLE SETS SHALL BE IDENTICAL). THE ENGINE SHALL BE FURNISHED WITH INTAKE VALVE OF ALLOY STEEL, EXHAUST VALVE TO BE SATELLITE- FACED AND EXHAUST VALVE SEAT TO BE SOLID STELLITE REPLACEABLE INSERT. THE OILING SYSTEM FOR MAIN BEARINGS AND CONNECTING ROD SHALL BE OF THE POSITIVE DISPLACEMENT GEAR TYPE OIL PUMP. ENGINE TO BE EQUIPPED WITH DIAPHRAGM TYPE FUEL PUMP AND FUEL FILTER. MOTOR SPEED CONTROL GOVERNOR SHALL BE OF THE GEAR-DRIVEN FLY BALL TYPE. GASOLINE TANK FURNISHED MUST HAVE A CAPACITY TO OPERATE THE UNIT FOR A MINIMUM OF THREE (3) HOURS UNDER FULL RATED LOAD (AT SEA LEVEL) WITHOUT REFUELING. IGNITION SHALL BE OF THE PERMANENT MAGNETO TYPE, SUITABLY DUST-AND-MOISTURE-PROOFED.

"ALTERNATOR. TO BE OF THE SATURATED FIELD, TWO (2) POLE REVOLVING ARMATURE, CONNECTED DIRECTLY TO ENGINE CRANKSHAFT TO INSURE PERMANENT ALIGNMENT. GENERATOR OUTPUT TO TERMINATE IN A BOX CONTAINING ONE (1) DUPLEX RECEPTACLE (BRYANT NO. 9200 OR EQUAL) AND ONE (1) TWIST LOCK RECEPTACLE (RUBBELL NO. 7210 OR EQUAL). ALTERNATOR SHALL BE INSULATED WITH CLASS "B" INSULATION PER MEMO MGI-6.08 AND VARNISH PER MIL 1137 CLASS "B.'"

THE SIX BIDS RECEIVED WERE EVALUATED BY ENGINEERS OF THE AGENCY'S MOTION PICTURE AND TELEVISION SERVICE WHO CONCLUDED THAT ONLY THEONAN BID MET THE SPECIFICATIONS AND THAT "ALL OTHER BIDS FAIL TO PROVIDE THE EQUAL QUALITY AND CHARACTERISTICS OF THE ONAN AK SERIES MODEL CITED AS AN EXAMPLE IN THE INVITATION.' USIA PROPOSES TO AWARD THE CONTRACT TO ONAN AS THE ONLY RESPONSIVE BIDDER.

YOUR PROTEST IS BASED ON THE CONTENTIONS THAT THE SPECIFICATIONS ARE SO WRITTEN THAT ONLY ONAN CAN MEET THEM AND THAT THE GENERATOR YOU PROPOSED IS EQUAL OR SUPERIOR TO THE ONE OFFERED BY ONAN. YOU ALSO CONTEND THAT A SPLASH LUBRICATION TYPE ENGINE IS A DURABLE AND DEPENDABLE AS A FORCED LUBRICATION SYSTEM, CONTRARY TO USIA'S OPINION, AND THAT THIS FACT COULD BE PROVEN BY ADEQUATE TESTING.

THE ENGINEER'S REPORT LISTS EIGHT ESSENTIAL REQUIREMENTS OF A GENERATOR SET NECESSARY TO ITS NEEDS, ALL OF WHICH ARE AVAILABLE IN THE ONAN GENERATOR AND, ACCORDING TO THE REPORT, ARE WITHIN THE CAPABILITY OF OTHER GENERATOR MANUFACTURERS. TWO OF THESE REQUIREMENTS ARE (1) AN ENGINE LUBRICATION SYSTEM OF THE PUMP TYPE RATHER THAN THE SPLASH TYPE AND (2) A FUEL SYSTEM OF THE FILTER PUMP TYPE RATHER THAN THE GRAVITY FEED TYPE. WITH REGARD TO THESE TWO REQUIREMENTS THE REPORT INCLUDES THE FOLLOWING:

"THE TWO MOST CRITICAL REQUIREMENTS OF A GENERATOR FOR OVERSEAS USIS PROGRAM USE ARE AN OIL PUMP AND A FUEL PUMP AND FILTER. THESE COMPONENTS ARE CRITICAL TO THE DEPENDABILITY AND DURABILITY OF GENERATORS USED UNDER USIS FIELD OPERATING CONDITIONS WHERE THE VARIETY OF ADVERSE OPERATING CONDITIONS FAR EXCEED THOSE NORMALLY ENCOUNTERED IN THE USUAL DOMESTIC APPLICATIONS.'

THE REPORT GOES ON TO STATE THAT IN FISCAL YEARS 1958 TO 1963 THE AGENCY PROCURED A GENERATOR EMPLOYING AN ENGINE WITH A SPLASH TYPE LUBRICATION SYSTEM. PROCUREMENT OF THIS GENERATOR WAS DISCONTINUED IN FISCAL YEAR 1963 BECAUSE OF CONTINUOUS SERVICE PROBLEMS ATTRIBUTED IN PART TO THE LUBRICATION SYSTEM. PROCUREMENT OF THE ONAN UNITS WAS BEGUN IN FISCAL YEAR 1964. THESE USE THE SAME ENGINE AS THE UNITS CURRENTLY OFFERED. THE FOLLOWING CHART INDICATES THE COMPARATIVE ENDURANCE AND DEPENDABILITY OF THE TWO TYPES:

SETS ON AUG. IMV CRITICAL RESERVE TYPE FY HAND AGE PARTS COST PARTS STOCK SPLASH 1964* 443 2-1/2-3 $11,508 $2,000 (APPROX.) TYPE YEARS FORCED 1966 554 1-1/2 YEARS 2,625

32 * LATEST YEAR FOR WHICH FIGURES ARE AVAILABLE.

THE REPORT STATES FURTHER:

"WE ATTRIBUTE THIS DIFFERENCE IN SPARE PARTS AND REPAIR SERVICES PRIMARILY TO THE MORE ADEQUATE LUBRICATION PROVIDED BY THE FORCED LUBRICATION SYSTEM AS OPPOSED TO THE SPLASH TYPE.

"THE SUPERIORITY OF THE PRESSURE TYPE FUEL FEED BY MEANS OF A FUEL PUMP AND FILTER OVER THE GRAVITY TYPE FEED STEMS FROM THE FACT THAT THE FUEL PUMP DELIVERS A CONSTANT SUPPLY UNDER PRESSURE, WHEREAS WITH A GRAVITY FEED THE FUEL SUPPLY WILL FAIL PREMATURELY WHEN THE UNIT IS OPERATED OUT OF LEVEL AND VIOLATES THE PURPOSE FOR HAVING A THREE HOUR FUEL TANK CAPACITY. IN VIEW OF THE PLACES AND KIND OF TERRAIN WHERE WE NORMALLY USE THESE GENERATORS IN CONNECTION WITH MOTION PICTURE SHOWINGS, OUR TECHNICIANS, BASED ON FIELD EXPERIENCE, FIND THAT THE FUEL PUMP AND FILTER ELEMENTS ARE A MUST IF SCREENING INTERRUPTIONS DUE TO FUEL SUPPLY FAILURE ARE TO BE AVOIDED. THE FUEL FILTER IS AN ESSENTIAL ELEMENT WHICH AIDS IN PREVENTING SUCH STOPPAGES DUE TO CLOGGED FUEL LINES WHICH OCCUR MORE FREQUENTLY IN GRAVITY TYPE FUEL FEEDS. FUEL SUPPLIES AVAILABLE IN THE FIELD OVERSEAS WHERE THESE GENERATORS ARE USED, IS SELDOM CRYSTAL PURE AND FREE OF DEBRIS AS WE NORMALLY FIND COMPARABLE FUELS IN THE UNITED STATES. THE FUEL PUMP AND FILTER SYSTEM PROVIDE AN ADDED GUARANTEE AGAINST INTERRUPTION OF FILM PROGRAMS BECAUSE OF POWER FAILURES DUE A BREAKDOWN IN THE ENGINE FUEL SUPPLY SYSTEM.

"DESPITE CONSTANT TRAINING AND REMINDERS, OPERATORS IN THE FIELD ARE OFTEN LAX IN KEEPING OIL LEVELS IN THE GASOLINE ENGINES AT PRESCRIBED LEVELS AND ARE LAX ABOUT THE MANNER IN WHICH THESE UNITS ARE TRANSPORTED, CAUSING OIL TO BE LOST BY IMPROPER HANDLING. THE PRESSURE TYPE GEAR PUMP LUBRICATION SYSTEM WILL OPERATE WITH EVEN SOME OIL WHEREAS NONE OF THE SPLASH SYSTEMS, WITH WHICH IMV HAS HAD EXPERIENCE, LUBRICATE THE ENGINE ADEQUATELY ON A HALF LEVEL OR LOW LEVEL OIL SUPPLY. WHEN THE OIL SUPPLY DROPS BELOW THIS LEVEL, IMV EXPERIENCE INDICATES THAT ENGINE BURNOUT CAN AND DOES FOLLOW ALL TOO FREQUENTLY. FORCED LUBRICATION SYSTEMS SUCH AS USED IN THE ONAN ENGINE ACCOMMODATE A FAR WIDER MARGIN OF ERROR ON OIL LEVELS WITHOUT IRREPARABLE DAMAGE TO INTERNAL ENGINE COMPONENTS.' SINCE ONAN WAS THE ONLY BIDDER OFFERING TO MEET BOTH OF THESE REQUIREMENTS, AWARD TO IT IS RECOMMENDED BY THE ENGINEERS.

THE ESTABLISHMENT OF SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER PRODUCTS OFFERED MEET THE SPECIFICATIONS ARE MATTERS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED. 36 COMP. GEN. 251. WE HAVE HELD THAT WHERE THERE IS IN EXISTENCE A COMMERCIAL PRODUCT WHICH MEETS THE GOVERNMENT'S MINIMUM REQUIREMENTS, AND WHERE IT IS OTHERWISE IMPRACTICAL TO STATE THE GOVERNMENT'S NEEDS, THE PROCUREMENT MAY BE ADVERTISED ON THE BASIS OF THE KNOWN PRODUCT QUALIFIED BY SUCH WORDS AS "OR EQUAL.' BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCT WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. THE PURPOSE OF THIS REQUIREMENT IS TO MAKE CLEAR THE ESSENTIALITY OF ANY CHARACTERISTICS WHICH MIGHT NOT OTHERWISE BE APPARENT. WHILE THE "BRAND NAME" DESIGNATION IS INTENDED AS DESCRIPTIVE AND MUST BE SO INTERPRETED, SPECIFICATIONS SPELLING OUT ESSENTIAL CHARACTERISTICS REQUIRED TO MEET THE NEEDS OF THE GOVERNMENT MUST BE MET.

IT IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY TO DETERMINE WHETHER AN OFFERED PRODUCT MEETS THE SPECIFICATIONS. THIS IS TRUE WHETHER THE SPECIFICATIONS ARE STATED IN TERMS OF BRAND NAME OR EQUAL OR IN MORE CONVENTIONAL TERMS. WE WOULD NOT BE JUSTIFIED IN QUESTIONING SUCH A DETERMINATION UNLESS IT WAS CLEARLY ESTABLISHED THAT THE DETERMINATION WAS NOT MADE IN GOOD FAITH OR WAS NOT SUPPORTED BY SUBSTANTIAL REASONS. COMP. GEN. 190. IN THE INSTANT CASE, WE SEE NO BASIS FOR CONCLUDING THAT THE AGENCY PERSONNEL ACTED OTHER THAN IN GOOD FAITH, OR THAT THEIR DETERMINATION, WHICH WAS ESSENTIALLY OF A TECHNICAL NATURE, WAS WITHOUT ANY SUBSTANTIAL BASIS.

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