B-162403, FEB. 2, 1968

B-162403, FEB. 2, 1968

BIDS - DESCRIPTIVE DATA, ETC. - ADEQUACY DECISION TO LCL CONTROLS, THIRD LOW BIDDER, DENYING PROTEST AGAINST REJECTION OF BID UNDER READVERTISEMENT FOR CONTROLS AND SWITCHBOARDS FOR ROBERT S. KERR LOCK AND DAM POWERHOUSE BY CORPS OF ENGINEERS. A THIRD LOW PROTESTING BIDDER WHO ALONG WITH THE OTHER BIDDERS HAD BID REJECTED BECAUSE OF FAILURE TO FURNISH CERTAIN DATA DESCRIBING AN ITEM EXPRESSLY CALLED FOR AND NECESSARY TO DETERMINATION OF COMPLIANCE WITH SPECIFICATIONS HAD BID PROPERLY REJECTED. A TECHNICAL JUDGMENT MADE BY THE PROCURING AGENCY IN ESTABLISHING SPECIFICATIONS AND OF DETERMINING COMPLIANCE WILL NOT BE DISTURBED IN ABSENCE OF PATENTLY ARBITRARY ACTS.

TO LCL CONTROLS:

REFERENCE IS MADE TO OUR DECISION B-162403 OF NOVEMBER 28, 1967, IN WHICH WE STATED THAT YOUR LETTER OF NOVEMBER 10, 1967, ADDRESSED TO THE CORPS OF ENGINEERS, WITH A COPY TO THIS OFFICE, WOULD BE CONSIDERED AS A PROTEST AGAINST THE REJECTION OF THE BID OF LCL CONTROLS (LCL) UNDER THE READVERTISEMENT, SOLICITATION NO. DACW56-68-B-0003, ISSUED JUNE 20, 1967, BY THE TULSA DISTRICT, CORPS OF ENGINEERS.

LIKE ITS PREDECESSOR, SOLICITATION NO. DACW56-67-B-0093, ISSUED MARCH 31, 1967, THE CURRENT SOLICITATION SOUGHT BIDS FOR THE DESIGN, MANUFACTURE, TESTING AND INSTALLATION OF ASSEMBLED CONTROLS AND SWITCHBOARDS, WITH ASSOCIATED INSTRUMENTS AND EQUIPMENT, FOR THE ROBERT S. KERR LOCK AND DAM POWERHOUSE.

AMENDMENT 0006 TO THE SOLICITATION, DATED AUGUST 3, 1967, REQUIRED OFFERORS TO SUBMIT DATA AND DRAWINGS FOR FIVE SPECIFIED ITEMS.

FIVE BIDS WERE RECEIVED BY BID OPENING, AUGUST 17, 1967. OF THESE, UNITED POWER AND CONTROL SYSTEMS, INCORPORATED, WAS LOW AT $301,570, AND THE PROTESTING BIDDER, LCL, WAS THIRD LOW AT $306,580. AFTER CONSIDERATION, ALL FIVE BIDS WERE REJECTED FOR FAILURE TO FURNISH CERTAIN OF THE DRAWINGS AND DATA REQUIRED BY AMENDMENT 0006 AND FOR OTHER REASONS.

THE CONTRACTING OFFICER, BY LETTER OF OCTOBER 24, 1967, ADVISED LCL THAT ITS BID WAS NONRESPONSIVE TO THE DATA SUBMISSION REQUIREMENTS OF THE SOLICITATION. SPECIFICALLY, THE CONTRACTING OFFICER FOUND THAT LCL HAD FAILED TO FURNISH DATA DESCRIBING THE CARRIER CURRENT TUNING EQUIPMENT, WHICH WAS ONE OF THE FIVE ITEMS EXPRESSLY CALLED FOR BY AMENDMENT 0006, AND WHICH WAS INTENDED TO DETERMINE COMPLIANCE OF THE OFFERED ITEM WITH PARAGRAPH 6-06D OF THE SPECIFICATIONS. WHILE LCL DID FURNISH A BILL OF MATERIALS FOR A KATO MOTOR GENERATOR, THE DATA SHOWED A 5 KW MODEL RATHER THAN THE 7.5 KW MODEL REQUIRED BY PARAGRAPH 8-03 OF THE SPECIFICATIONS.

LCL, IN ITS NOVEMBER 10, 1967, LETTER TO THE CORPS OF ENGINEERS, DENIES THAT THE DATA IT SUBMITTED FOR CARRIER CURRENT TUNING EQUIPMENT IS INSUFFICIENT FOR EVALUATION PURPOSES AND, INSTEAD, CONTENDS THAT THE DESCRIPTIVE LITERATURE ENTITLED "COUPLING CAPACITORS AND POTENTIAL DEVICES" , WESTINGHOUSE PL 39-620, SATISFIES THE NEED FOR INFORMATION ON TUNING DEVICES WHERE IT STATES: "THE DEVICE WILL SUPPLY POTENTIAL FOR LOCAL METERING (NOT FOR REVENUE), RELAYING, INDICATING LAMPS AND INSTRUMENTS SUCH AS VOLTMETERS AND SYNCHROSCOPES. IT CAN BE SUPPLIED WITH CARRIER CURRENT ACCESSORIES WHEN SPECIFIED, OR THE ACCESSORIES CAN BE ADDED AT A LATER DATE. WHEN A WIDE BAND FILTER IS REQUIRED, A HI-COUPLER CAN BE SUPPLIED MOUNTED IN THE BASE HOUSING.' THIS INFORMATION, IT IS URGED, IS ALL THAT IS NEEDED TO EVALUATE THE CARRIER CURRENT TUNING EQUIPMENT OFFERED BY LCL.

WHETHER THE QUOTED INFORMATION IS ADEQUATE FOR THE PURPOSE INTENDED IS ESSENTIALLY AN ENGINEERING DETERMINATION. WE HAVE RECOGNIZED THE PRIMACY OF THE USING AGENCIES IN MAKING SUCH DETERMINATION. SEE 17 COMP. GEN. 554, 557. IN THE ABSENCE OF PATENTLY ARBITRARY ACTS, WE WILL NOT DISTURB THE PURELY TECHNICAL JUDGMENTS MADE BY THE PROCURING ACTIVITIES IN THE COURSE OF ESTABLISHING SPECIFICATIONS AND OF DETERMINING COMPLIANCE THEREWITH. ACCORDINGLY, WE CANNOT OBJECT TO THE DECISION OF THE CORPS OF ENGINEERS THAT THE DATA LCL FURNISHED WAS INADEQUATE FOR THE PURPOSE OF DETERMINING COMPLIANCE WITH THE SPECIFICATIONS.

WE NOTE THAT OTHER BIDDERS OFFERED FAR MORE COMPREHENSIVE INFORMATION ABOUT THE EQUIPMENT. FOR EXAMPLE, THE DESCRIPTIVE LITERATURE ON GENERAL ELECTRIC TYPE CL-2 "LINE-TUNING ASSEMBLIES" , SUBMITTED BY TWO OTHER FIRMS IN RESPONSE TO THE REQUIREMENT FOR DATA ON THE CARRIER CURRENT TUNING EQUIPMENT, LISTS THE GENERAL FEATURES OF THE EQUIPMENT, INCLUDING DIMENSIONS, AND GIVES INTENDED APPLICATIONS, IN ADDITION TO ELECTRICAL CHARACTERISTICS, PERFORMANCE CURVES, CIRCUIT DIAGRAMS AND PHOTOGRAPHS OF INSTALLATIONS. IN COMPARISON, THE QUOTED STATEMENT CONTAINED IN THE WESTINGHOUSE DESCRIPTIVE LITERATURE, WHICH LITERATURE IS PRIMARILY ORIENTED TOWARD OTHER ASSOCIATED EQUIPMENT, WOULD APPEAR TO BE INADEQUATE FOR EVALUATION PURPOSES. UNDER THE CIRCUMSTANCES, THE CORPS OF ENGINEERS' DECISION TO REJECT LCL'S BID APPEARS REASONABLE.

SINCE WE HAVE CONCLUDED THAT LCL FAILED TO SUPPLY SUFFICIENT DATA TO MEET THE REQUIREMENTS OF AMENDMENT 0006, AND SINCE SUCH FAILURE RENDERED LCL NONRESPONSIVE TO THE REQUIREMENTS OF THE SOLICITATION, THE REJECTION OF LCL'S BID APPEARS PROPER. THEREFORE, THE OTHER CONTENTION REGARDING THE RESPONSIVENESS OF LCL'S BID NEED NOT BE CONSIDERED.