B-126915, APR. 13, 1956

B-126915: Apr 13, 1956

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JR.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 6. AS YOU WERE ADVISED IN OUR LETTER OF FEBRUARY 15. WAS REFERRED TO THE SECRETARY OF THE ARMY WITH THE REQUEST THAT THE MATTER OF YOUR COMPLAINT BE INVESTIGATED AND THAT A FULL REPORT BE FURNISHED. WHICH IS AS FOLLOWS: "2. DURING THAT TIME EVERY EFFORT WAS MADE TO EXPLAIN THE REQUIREMENTS OF THE SPECIFICATIONS AND PLANS. REQUIRE THAT "FOUR-MOTORED" VACUUM AND CONDENSATE PUMPS BE SPECIFIED AND INSTALLED IN LIEU OF "TWO-MOTORED" UNITS WHICH ARE ACCEPTABLE AND THOROUGHLY CAPABLE OF PERFORMING THEIR INTENDED DUTY. THERE ARE THREE OR FOUR KNOWN MANUFACTURERS WHO MAKE . THERE ARE TEN OR MORE REPUTABLE MANUFACTURERS IN THE TWO-MOTOR FIELD WHO DO NOT MAKE THE FOUR-MOTORED UNIT.

B-126915, APR. 13, 1956

TO THOMAS M. KNIGHT, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 6, 1956, WITH ENCLOSURES, PROTESTING THE INTERPRETATION OF CERTAIN GOVERNMENT SPECIFICATIONS FOR VACUUM HEATING PUMPS BEING OBTAINED FOR HOSPITALS UNDER CONSTRUCTION FOR THE DEPARTMENTS OF THE ARMY AND AIR FORCE. ALSO, THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 27, 1956, REQUESTING INFORMATION AS TO WHETHER OUR OFFICE HAS MADE ANY RULING TO THE EFFECT THAT SPECIFICATIONS MUST PERMIT BIDS FROM A MAJORITY OF MANUFACTURERS.

AS YOU WERE ADVISED IN OUR LETTER OF FEBRUARY 15, 1956, YOUR LETTER OF FEBRUARY 6, 1956, WITH ENCLOSURES, WAS REFERRED TO THE SECRETARY OF THE ARMY WITH THE REQUEST THAT THE MATTER OF YOUR COMPLAINT BE INVESTIGATED AND THAT A FULL REPORT BE FURNISHED, TOGETHER WITH A STATEMENT OF THE ACTION TAKEN OR PROPOSED TO BE TAKEN AS A RESULT OF YOUR PROTEST. RESPONSE TO THAT REQUEST THE SECRETARY OF THE ARMY FORWARDED A REPORT SIGNED "FOR THE CHIEF OF ENGINEERS" BY DAVID H. TALLEY, BRIGADIER GENERAL, U.S.A., ASSISTANT CHIEF OF ENGINEERS FOR MILITARY CONSTRUCTION, WHICH IS AS FOLLOWS:

"2. SINCE FEBRUARY 1955, THE CORPS OF ENGINEERS HAS HAD CONSIDERABLE CORRESPONDENCE AND DISCUSSION WITH MR. KNIGHT CONCERNING SUBJECT SPECIFICATIONS. DURING THAT TIME EVERY EFFORT WAS MADE TO EXPLAIN THE REQUIREMENTS OF THE SPECIFICATIONS AND PLANS, AS WELL AS THE POLICY OF THE SPECIFICATIONS AND PLANS, AS WELL AS THE POLICY OF THE DEPARTMENT OF THE ARMY, TO PROVIDE THE WIDEST POSSIBLE COMPETITION AMONG MANUFACTURERS OF SUITABLE EQUIPMENT CAPABLE OF PERFORMING THE REQUIRED SERVICE. SPECIFICALLY, MR. KNIGHT APPARENTLY DESIRES THAT THE SPECIFICATIONS AS NOW WRITTEN, OR THE INTERPRETATION THEREOF, REQUIRE THAT "FOUR-MOTORED" VACUUM AND CONDENSATE PUMPS BE SPECIFIED AND INSTALLED IN LIEU OF "TWO-MOTORED" UNITS WHICH ARE ACCEPTABLE AND THOROUGHLY CAPABLE OF PERFORMING THEIR INTENDED DUTY. THERE ARE THREE OR FOUR KNOWN MANUFACTURERS WHO MAKE ,FOUR -MOTORED" DUPLEX VACUUM AND CONDENSATE PUMPS. THESE MANUFACTURERS ALSO MAKE TWO-MOTORED VACUUM AND CONDENSATE PUMPS. ON THE OTHER HAND, THERE ARE TEN OR MORE REPUTABLE MANUFACTURERS IN THE TWO-MOTOR FIELD WHO DO NOT MAKE THE FOUR-MOTORED UNIT. IT IS OBVIOUS, THEREFORE, THAT ELIMINATION OF THE MANUFACTURERS OF TWO-MOTORED UNITS WOULD RESTRICT THE FIELD OF BIDDING TO THREE OR FOUR COMPANIES.

"3. THE FIVE REFERENCES LISTED BY MR. KNIGHT, IN HIS LETTER OF 6 FEBRUARY 1956, INVOLVE STANDARD PLANS AND SPECIFICATIONS FOR HOSPITALS OF VARIOUS SIZES ISSUED BY THE CORPS OF ENGINEERS. UNDER REFERENCE NO. 1 HE MAKES A FURTHER REFERENCE TO "EXHIBIT A," WHICH IS A COPY OF STANDARD PARAGRAPH 49 -10- AND NOT 49-09, ALTHOUGH THE LATTER NUMBER MAY HAVE APPEARED IN PROJECT SPECIFICATIONS. THE PERTINENT PART OF SUBPARAGRAPH A. GENERAL IS THE FIRST SENTENCE WHICH ORIGINALLY READ: "THE VACUUM PUMPING UNIT SHALL CONSIST OF PUMPS, MOTORS, AND OTHER FUNCTIONING PARTS IN DUPLICATE, AND A SINGLE RECEIVING TANK AS SHOWN ON THE DRAWINGS.' THE WORDING OF THIS PARAGRAPH WAS INTERPRETED BY SOME FIELD OFFICES OF THE CORPS OF ENGINEERS AS PERMITTING EITHER TWO- - OR FOUR-MOTORED VACUUM PUMPING UNITS. THE DRAWINGS MENTIONED DID SHOW "FOUR-MOTORED UNITS" TOGETHER WITH THE REQUIRED NUMBER OF ELECTRICAL CIRCUITS. THE ARCHITECT-ENGINEERS WHO PREPARED THE STANDARD PLANS, PROVIDED FOR THE MAXIMUM REQUIREMENT OF SPACE, PIPING AND ELECTRIC SERVICE, WHICH IS CUSTOMARY PROCEDURE. WHEN THE MATTER WAS BROUGHT TO THE ATTENTION OF THE OFFICE OF THE CHIEF OF ENGINEERS THE EARLY PART OF 1955 BY MR. KNIGHT, ACTION WAS TAKEN TO CLARIFY PARAGRAPH 49-10 A. GENERAL, BY ISSUING AMENDMENT NO. 13 DATED 14 APRIL 1955 DELETING THE FIRST SENTENCE, ABOVE QUOTED, AND SUBSTITUTING THE FOLLOWING: "THE VACUUM PUMPING UNIT SHALL CONSIST OF EITHER TWO OR FOUR PUMPS AND MOTORS, AND OTHER FUNCTIONING PARTS IN DUPLICATE AND A SINGLE RECEIVING TANK WHERE SHOWN ON THE DRAWINGS.' IT IS BELIEVED THAT THE ABOVE CHANGE CLEARLY DEFINES THE ACCEPTABILITY OF EITHER TWO OR FOUR MOTORED VACUUM PUMPING UNITS.

"4. IN ORDER TO FURTHER CLARIFY THE MATTER, IT IS PROPOSED TO ISSUE INSTRUCTIONS TO FIELD AGENCIES OF THE CORPS OF ENGINEERS REQUIRING THEM TO ADD APPROPRIATE NOTES TO PERTINENT DRAWINGS WITH RESPECT TO THE VACUUM PUMPING UNITS, PIPING, ELECTRIC SERVICE, AND CAPACITY TABLES SO THAT NO MISUNDERSTANDING OF REQUIREMENTS WILL BE POSSIBLE AS TO THE ACCEPTABILITY OF EITHER TWO- OR FOUR-MOTORED UNITS.

"5. WITH RESPECT TO THE REMARKS CONCERNING THE FORT BELVOIR HOSPITAL IT SHOULD BE NOTED THAT PARAGRAPH 49-09 A. GENERAL, OF THE CONTRACT SPECIFICATIONS CONTAINED THE ORIGINAL WORDING, AND NOT THE REVISED FIRST SENTENCE ABOVE QUOTED FOR STANDARD PARAGRAPH 49-10. SINCE THE FIRST SENTENCE OF THE ORIGINAL PARAGRAPH DID NOT SPECIFICALLY SET FORTH THE NUMBER OF MOTORS, EXCEPT THAT THERE MUST BE MORE THAN ONE, THERE EXISTED A DISCREPANCY BETWEEN PLANS AND SPECIFICATIONS IN WHICH CASE THE SPECIFICATIONS GOVERN. MOREOVER THE "SPECIAL CONDITIONS" SECTION OF THE SPECIFICATIONS STATES: ,THE PRODUCT OF ANY REPUTABLE MANUFACTURER REGULARLY ENGAGED IN THE COMMERCIAL PRODUCTION OF MATERIAL AND EQUIPMENT SPECIFIED IN PART IV, TECHNICAL PROVISIONS, WILL NOT BE EXCLUDED ON THE BASIS OF MINOR DIFFERENCES, PROVIDED ALL ESSENTIAL REQUIREMENTS, CAPACITY, AND PERFORMANCE ARE MET.' ACTING UNDER THE PROVISIONS OF THE CONTRACT DOCUMENTS AND AFTER REVIEW OF THE CONTRACTOR'S OFFERING, THE VACUUM PUMPING EQUIPMENT WAS APPROVED AS MEETING ALL REQUIREMENTS OF THE SPECIFICATIONS REGARDING ARRANGEMENT, MATERIALS, CONTROLS, AND CAPACITY. THE VACUUM PUMPING EQUIPMENT WHICH WAS APPROVED AND IS INSTALLED, CONSISTS OF A SINGLE RECEIVING TANK, TWO PUMPS AND MOTORS, WITH SEPARATE CONTROLS.'

WITH RESPECT TO THE USE OF THE SPECIFICATIONS OF THE PRIME CONTRACTS TO DESCRIBE THE PUMPS WHICH THE CONTRACTORS ARE REQUIRED TO PROCURE AND FURNISH AS A PART OF THE CONSTRUCTION OF THE HOSPITALS, IT IS THE DUTY OF THE ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY THE GOVERNMENT'S NEEDS AND TO DETERMINE FACTUALLY WHETHER ARTICLES OR EQUIPMENT OFFERED BY GOVERNMENT CONTRACTORS MEET THOSE SPECIFICATIONS. 17 COMP. GEN. 554. IT HAS BEEN HELD BY OUR OFFICE THAT IT IS THE DUTY OF SUCH OFFICIALS TO SEE THAT GOVERNMENT SPECIFICATIONS ARE SO DRAFTED AS TO STATE THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT FAIRLY AND ACCURATELY AND THAT THEY ARE NOT SO DRAWN AS TO EXCLUDE FROM COMPETITION ANY MANUFACTURERS OF PRODUCTS MEETING THE NEEDS OF THE GOVERNMENT. IN VIEW OF THE FACTS REPORTED BY THE DEPARTMENT OF THE ARMY ABOVE AND CONSIDERING THE LATITUDE OF DISCRETION NECESSARILY VESTED IN THOSE CHARGED WITH THE RESPONSIBILITY FOR PREPARING THE SPECIFICATIONS TO WHICH REFERENCE IS MADE BY YOU, IT IS OUR CONCLUSION THAT WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE USE OF THE SPECIFICATIONS AS AMENDED.

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