B-162403, JUL. 19, 1968

B-162403, JUL. 19, 1968

TO LCL CONTROLS:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 22, 1968, AND SUBSEQUENT CORRESPONDENCE WHEREIN YOU PROTEST THE REJECTION OF YOUR BID AS FAILING TO SATISFY THE DESCRIPTIVE DATA REQUIREMENTS OF ADVERTISED SOLICITATION NO. DACW-56-68-B-0036 ISSUED FEBRUARY 12, 1968, BY THE DISTRICT ENGINEER, CORPS OF ENGINEERS, TULSA, OKLAHOMA, FOR THE DESIGN, MANUFACTURE AND INSTALLATION OF A CONTROL SWITCHBOARD AND ASSOCIATED EQUIPMENT AT THE ROBERT S. KERR LOCK AND DAM POWERHOUSE. AS YOU WELL REALIZE, THIS WAS THE THIRD ADVERTISEMENT OF THIS PROCUREMENT, FOR THE CORPS OF ENGINEERS WAS UNABLE TO OBTAIN AN OFFER IT CONSIDERED FULLY RESPONSIVE TO THE DATA REQUIREMENTS OF THE TWO PRIOR SOLICITATIONS.

BID OPENING, HELD ON MARCH 12, 1968, REVEALED THREE FIRMS HAD ENTERED BIDS AS FOLLOWS:

UNITED POWER AND CONTROL SYSTEMS, INC. $282,696.00

LCL CONTROLS 293,945.00

REPUBLIC ELECTRIC AND DEVELOPMENT CO. 325,791.00

BY LETTER OF MARCH 20, 1968, THE CONTRACTING OFFICER REJECTED UNITED'S BID AS NONRESPONSIVE FOR ITS FAILURE TO SATISFY THE DATA REQUIREMENTS OF THE SOLICITATION. UNITED HAS PROTESTED THIS ACTION TO US AND, BY OUR DECISION OF TODAY TO UNITED, COPY ENCLOSED FOR YOUR INFORMATION, WE HAVE DENIED SAID PROTEST.

AS THIS ACTION MADE YOUR FIRM, LCL CONTROLS (LCL) THE APPARENT LOW RESPONSIVE BIDDER, THE USUAL INVESTIGATION OF FINANCIAL STATUS AND OTHER PROCEDURAL MATTERS PRELIMINARY TO AN AWARD WERE INITIATED. HOWEVER, DURING THIS INTERVAL, UNITED SECURED PERMISSION TO REVIEW ITS COMPETITORS' BIDS, AND, AS A RESULT OF THIS REVIEW, CERTAIN APPARENT INADEQUACIES IN THE BIDS OF LCL AND REPUBLIC WERE BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER.

ON THE BASIS OF THIS INFORMATION, WHICH LED TO A FURTHER EVALUATION OF BIDS, THE CONTRACTING OFFICER ADVISED LCL BY LETTER OF APRIL 15, 1968, THAT ITS BID FAILED TO COMPLY WITH THE DESCRIPTIVE DATA REQUIREMENTS OF PARAGRAPHS 22C (2) AND (3) OF THE SOLICITATION AND THAT, ACCORDINGLY, ITS BID WAS REJECTED AS NONRESPONSIVE.

PARAGRAPH 22C (2) INSTRUCTS BIDDERS TO FURNISH IN THE APPROPRIATE SPACES THE NAME OF THE MANUFACTURER PROPOSED FOR CERTAIN DESIGNATED ITEMS AND, WHEN INDICATED, THE TYPE OR CATALOG NUMBER. AMONG THE ITEMS LISTED IN THIS PARAGRAPH WAS THE "AUTOMATIC SYNCHRONIZING EQUIPMENT" AFTER WHICH, IN THE APPROPRIATE SPACE, LCL INSERTED THE WORD "WESTINGHOUSE".

THE FOLLOWING PARAGRAPH REQUIRED THE SUBMISSION OF DATA IN THOSE CASES WHERE AN OFFEROR PROPOSED TO FURNISH AN ITEM WHICH WAS NOT SHOWN AS A PRE- APPROVED PRODUCT IN THE SPECIFICATION AS FOLLOWS:

"C (3) FOR ANY PRODUCT NAMED IN SUBPARAGRAPH B (2) ABOVE THAT DIFFERS FROM THE PRODUCT NAMED IN THE TECHNICAL PROVISIONS (BY REASON OF MODIFICATION OR BY BEING OF A DIFFERENT TYPE OR BY BEING A PRODUCT OF A DIFFERENT MANUFACTURER) THE BIDDER SHALL SUBMIT DRAWINGS AND DATA CONFORMING TO THE REQUIREMENTS OF SUBPARAGRAPH A ABOVE.'

PARAGRAPH 22A PROVIDED THAT WHERE DATA WAS REQUIRED, IT SHOULD BE "... IN SUFFICIENT DETAIL AND CLARITY TO ENABLE MAKING A COMPLETE AND POSITIVE CHECK WITH THE TECHNICAL PROVISIONS OF THE SPECIFICATIONS ...'.

LCL FURNISHED NO INFORMATION RELATIVE TO THE AUTOMATIC SYNCHRONIZING EQUIPMENT OTHER THAN THE WORD "WESTINGHOUSE" IN THE APPROPRIATE BLANK.

PARAGRAPH 3-09A OF THE SPECIFICATIONS FOR THE SUBJECT SOLICITATION PROVIDED:

"A. THE AUTOMATIC SYNCHRONIZING SYSTEM SHALL BE DESIGNED TO PERMIT EITHER MANUAL OR AUTOMATIC CONTROL OF TURBINE SPEED, GENERATOR VOLTAGE, AND BREAKER CLOSING, FOR THE PURPOSE OF CONNECTING A GENERATOR TO A RUNNING SYSTEM WITH A MINIMUM OF DISBURBANCE TO THE MACHINE OR THE SYSTEM. THE EQUIPMENT SHALL INCLUDE AN AUTOMATIC SYNCHRONIZER (DEVICE 25,) WESTINGHOUSE TYPE XT OR GENERAL ELECTRIC TYPE GES OR EQUAL, A VOLTAGE BALANCE RELAY, (DEVICE 60B,) GENERAL ELECTRIC TYPE GTR, OR EQUAL (VOLTAGE CHECK ONLY FOR SYNCHRONIZING PERMISSION), A CUTOFF RELAY, (DEVICE 25A,) GENERAL ELECTRIC IJS OR EQUAL (DELAY ONLY - NOT FOR CHECK) (IF A GENERAL ELECTRIC SYNCHRONIZER IS FURNISHED), A SPEED MATCHER, (DEVICE 15M) GENERAL ELECTRIC TYPE GTL, OR EQUAL, AND AUXILIARY RELAYS AND CONTROL SWITCHES AS REQUIRED.'

THE CONTRACTING OFFICER ADVISES THAT THIS SPECIFICATION WAS INTENDED TO PRE-QUALIFY THE DESIGNATED TYPES OF WESTINGHOUSE AND GENERAL ELECTRIC AUTOMATIC SYNCHRONIZERS, AND, IN ADDITION, PRE-QUALIFY THE DESIGNATED TYPES OF GENERAL ELECTRIC VOLTAGE BALANCE RELAY AND SPEED MATCHER. ACCORDING TO THE CONTRACTING OFFICER, A BID SUCH AS LCL-S, OFFERING WESTINGHOUSE AUTOMATIC SYNCHRONIZING EQUIPMENT, MUST BE CONSTRUED AS OFFERING THE DESIGNATED WESTINGHOUSE AUTOMATIC SYNCHRONIZER, PLUS A VOLTAGE BALANCE RELAY AND SPEED MATCHER MANUFACTURED BY WESTINGHOUSE WHICH SATISFIED THE SPECIFICATION'S TECHNICAL REQUIREMENTS AND WHICH WERE THE EQUAL OF THE DESIGNATED GENERAL ELECTRIC VOLTAGE BALANCE RELAY AND SPEED MATCHER. AS TO THESE LAST TWO ITEMS, PARAGRAPH 22C (3) THEREFORE REQUIRED THE SUBMISSION OF DATA ADEQUATE TO DEMONSTRATE THEIR EQUIVALENCY WITH THE SPECIFIED GENERAL ELECTRIC DEVICES.

LCL, ON THE OTHER HAND, CONTENDS THAT THE SPECIFICATION CALLING FOR WESTINGHOUSE TYPE XT SHOULD BE READ AS REQUIRING A WESTINGHOUSE TYPE X AUTOMATIC SYNCHRONIZER AND AUXILIARIES (TRANSISTORIZED-NO TUBES), WHICH WOULD INCLUDE THE ACCESSORY DEVICES LISTED IN PARAGRAPH 3-09A, SUCH AS THE SPEED MATCHER. AS EVIDENCE OF THIS CONTENTION, LCL FURNISHED A LETTER DATED APRIL 16, 1968, FROM MR. A. L. SCHRALLA, SALES ENGINEER, WESTINGHOUSE ELECTRIC CORPORATION, SAN FRANCISCO, CALIFORNIA, WHICH STATES THAT WESTINGHOUSE HAS NEVER MANUFACTURED A TYPE XT AUTOMATIC SYNCHRONIZER, AND THAT PARAGRAPH 3-09 OF THE SPECIFICATIONS "WAS OBVIOUSLY MEANT TO DESIGNATE OUR TYPE X".

LCL'S LETTER OF APRIL 22, 1968, ACKNOWLEDGES THE EXISTENCE OF A WESTINGHOUSE TYPE XT7-C BUT ALLEGES THAT IT IS AN OBSOLETE TYPE NO LONGER PRODUCED BY WESTINGHOUSE.

THE CONTRACTING OFFICER'S REPORT OF APRIL 30, 1968, TO THIS OFFICE STATES THAT IF LCL PROPOSED TO FURNISH A TYPE "X" AUTOMATIC SYNCHRONIZER, THIS WOULD BE AT VARIANCE FROM THE DESIRED WESTINGHOUSE TYPE XT7-C, WHICH WAS THE ONLY WESTINGHOUSE EQUIPMENT OF THIS TYPE WHICH HAD BEEN APPROVED. HAVING PROPOSED AN ALTERNATE WHOSE SUITABILITY FOR THE JOB IS UNKNOWN, LCL WAS OBLIGED UNDER PARAGRAPH 22C (3) TO DEMONSTRATE THAT THE WESTINGHOUSE TYPE X-TRANSISTORIZED AUTOMATIC SYNCHRONIZER MET THE SPECIFICATION REQUIREMENTS.

THE CONTRACTING OFFICER AGREES THAT WESTINGHOUSE NO LONGER REGULARLY PRODUCES THE TYPE XT7-C AUTOMATIC SYNCHRONIZER, BUT BECAUSE FOUR OF THESE DEVICES ARE PRESENTLY IN STOCK AND AVAILABLE FOR SALE, AND, FURTHER, BECAUSE ADDITIONAL UNITS WILL BE BUILT ON A SPECIAL ORDER BASIS, HE DOES NOT AGREE THAT THE SPECIFICATIONS COULD ONLY BE READ AS REQUIRING A TYPE X, TRANSISTORIZED-NO TUBES SYNCHRONIZER. A MARCH 1, 1968, WESTINGHOUSE PRICE LIST, PL-56-920, PAGE 1, FOR AUTOMATIC SYNCHRONIZERS LISTING A TYPE XT7-C IS OFFERED AS PROOF OF THIS CONTENTION.

THE ARMY THEREFORE CONCLUDES THAT THE WORDS "WESTINGHOUSE TYPE XT" SHOULD REASONABLY BE INTERPRETED TO SIGNIFY WESTINGHOUSE TYPE XT7-C. THIS BEING THE CASE, A TYPE X, TRANSISTORIZED COULD BE ACCEPTED ONLY AS AN ALTERNATE TO THE TYPE XT7-C, AND PARAGRAPH 22C (3) WOULD REQUIRE THE SUBMISSION OF DATA DEMONSTRATING ITS EQUIVALENCE WITH THE SPECIFIED TYPE. ACCORDINGLY, THE ACCEPTANCE OF LCL'S BID WOULD PLACE THE GOVERNMENT IN THE UNTENABLE POSITION OF ACCEPTING AN ITEM WHICH WAS NOT CONTEMPLATED BY THE PROCURING ACTIVITY, AND WHICH HAD NOT BEEN SHOWN TO BE A SATISFACTORY SUBSTITUTE FOR THE ITEM CONTEMPLATED.

THE CONTRACTING OFFICER THEREFORE CONCLUDES THAT LCL'S BID IS NOT RESPONSIVE TO THE DATA REQUIREMENTS OF THE SOLICITATION REGARDLESS OF WHETHER THE BID IS READ AS OFFERING A WESTINGHOUSE TYPE X, TRANSISTORIZED, OR A WESTINGHOUSE TYPE XT7-C.

FURTHERMORE, IT IS THE POSITION OF THIS OFFICE THAT THE APPROPRIATE TIME FOR A DETAILED EXAMINATION OF A SOLICITATION AND THE CLARIFICATION OF ANY PROVISION THOUGHT TO BE AMBIGUOUS OR CONFUSING IS PRIOR TO THE TIME SPECIFIED FOR BID OPENING. B-151355, JUNE 25, 1963; B-162566, DECEMBER 13, 1967. THE APPLICATION OF THIS PRINCIPLE WOULD APPEAR ESPECIALLY APPROPRIATE HERE WHERE PROSPECTIVE OFFERORS HAD KNOWLEDGE OF THE DIFFICULTIES INVOLVED AND HAD PARTICIPATED IN THE TWO PRIOR SOLICITATIONS WHICH HAD FAILED TO OBTAIN A BID RESPONSIVE TO THE DATA REQUIREMENTS.

WE NOTE THAT THE CORPS OF ENGINEERS HELD A PRE-BID CONFERENCE OPEN TO ALL INTERESTED PARTIES FOR THE EXPRESS PURPOSE OF PROVIDING A FORUM FOR PROSPECTIVE CONTRACTORS TO PRESENT AND DISCUSS SUCH POTENTIAL DIFFICULTIES. WHILE WE RECOGNIZE THAT REPRESENTATIVES FROM THE EQUIPMENT MANUFACTURERS DID ATTEND THIS CONFERENCE, IT SEEMS REASONABLE TO BELIEVE THAT LCL CONTROLS, AS A PROSPECTIVE CONTRACTOR WHO WOULD BEAR THE DIRECT OBLIGATION OF SATISFYING THE SOLICITATION REQUIREMENTS, SHOULD HAVE TAKEN ADVANTAGE OF THIS OPPORTUNITY TO DISCUSS THE SOLICITATION'S REQUIREMENT. HAVING FAILED TO SEND A REPRESENTATIVE TO THIS CONFERENCE, LCL'S FAILURE TO CORRECTLY INTERPRET AND COMPLY WITH THE SOLICITATION REQUIREMENTS MUST BE VIEWED AS LCL'S OWN RESPONSIBILITY.

IN VIEW OF THE ABOVE, WE CAN TAKE NO OBJECTION TO THE PROPOSED AWARD TO REPUBLIC. ACCORDINGLY, YOUR PROTEST IS DENIED.

WE ARE ADDRESSING A SEPARATE LETTER TO THE SECRETARY OF THE ARMY SUGGESTING CERTAIN CHANGES IN THE SOLICITATION FORMAT REGARDING THE METHOD OF SETTING OUT DATA REQUIREMENTS WHERE OFFERORS ARE FREE TO PROPOSE ALTERNATIVES TO PRODUCTS NAMED AND APPROVED BY THE SPECIFICATION. PRIMARILY, WE SEE A NEED FOR A MORE DIRECT TYING OF THE DATA PAGE FORMAT TO THE SPECIFICATION FORMAT, SO THAT THE CONNECTION BETWEEN THE TWO IS MORE READILY APPARENT.

IT IS HOPED THAT THIS EFFORT TO ELIMINATE WHAT APPEARS TO BE UNNECESSARY COMPLEXITY IN FORM WILL HELP OFFERORS MEET THE DATA REQUIREMENTS OF FUTURE SOLICITATIONS, EVEN THOUGH THE MATTER IS BASICALLY AN ADMINISTRATIVE PROBLEM RATHER THAN A LEGAL QUESTION.