B-125543, NOV. 30, 1955

B-125543, NOV. 30, 1955

TO DETROIT DIESEL ENGINE DIVISION, GENERAL MOTORS CORPORATION:

REFERENCE IS MADE TO OUR LETTER OF SEPTEMBER 27, 1955, RELATIVE TO YOUR PROTEST REGARDING THE SPECIFICATIONS OF A DIESEL DRIVEN GENERATOR SET TO BE PURCHASED FOR THE ADDITIONAL SENATE OFFICE BUILDING.

IN YOUR LETTER OF SEPTEMBER 19, 1955, TO US, YOU STATED THAT YOU WERE NOT PERMITTED TO BID ON THIS EQUIPMENT BECAUSE PARAGRAPH (E) ON PAGE 333 OF THE SPECIFICATION IS PROPRIETARY AND RESTRICTIVE TO THE GENERAL MOTORS 2- CYCLE ENGINE IN THAT IT SPECIFIES A 60 DEGREE V-TYPE, 4-CYCLE, 1,200 R.P.M. ENGINE (CATERPILLAR MODEL D-375, OR APPROVED EQUAL). YOU STATED FURTHER THAT THE TYPES OF UNITS YOU PLANNED TO OFFER ARE PURCHASED FOR THE SORT OF INSTALLATION INVOLVED AND THAT YOU HAVE RECENTLY RECEIVED AN ORDER FOR THREE 200-KW UNITS.

IT APPEARS FROM THE RECORD THAT BY LETTER OF AUGUST 5, 1955, AFTER YOU HAD COMPLAINED ORALLY THAT THE SPECIFICATIONS WERE PROPRIETARY AND RESTRICTIVE, THE ARCHITECT OF THE CAPITOL REQUESTED THE ASSOCIATE ARCHITECT TO LOOK INTO THE CASE. THE QUESTION IN TURN WAS REFERRED TO THE ASSOCIATE'S ELECTRICAL CONSULTANTS, SMITH AND SILVERMAN. IN A LETTER DATED AUGUST 10, 1955, MR. D. A. ALRICH OF THAT FIRM ADVISED THE ASSOCIATE ARCHITECT THAT THE SUBSTITUTION OF A 2-CYCLE, VERTICAL ENGINE FOR THE V- TYPE, 4-CYCLE, ENGINE SPECIFIED WOULD BE A MISTAKE AND THAT "UNDER NO CIRCUMSTANCES WOULD WE RECOMMEND THE USE OF A 2 CYCLE ENGINE FOR AN INSTALLATION OF THIS SORT--- ENGINE REGULATION AND THE RESULTING GENERATOR REGULATION ARE NOT CLOSE ENOUGH IN A 2 CYCLE GINE.' BY LETTER OF SEPTEMBER 6, 1955, THE ARCHITECT OF THE CAPITOL ADVISED YOU THAT IT WAS PREFERRED TO KEEP IN THE SPECIFICATION THE TYPE OF ENGINE AS SPECIFIED. IT WAS ON THE BASIS OF THIS DETERMINATION THAT YOU REFERRED THE QUESTION HERE FOR CONSIDERATION.

IN RESPONSE TO A REQUEST OF OUR OFFICE, THE ARCHITECT OF THE CAPITOL INVESTIGATED YOUR PROTEST FURTHER AND NOW HAS FURNISHED A DETAILED REPORT IN RESPECT THERETO.

THE RECORD SHOWS THAT THE ELECTRICAL CONSULTANTS, SMITH AND SILVERMAN, WERE REQUESTED TO FURNISH A REPORT REGARDING YOUR COMPLAINT. IN THEIR REPORT OF OCTOBER 3, 1955, IT IS STATED THAT THE SPECIFICATIONS WERE PREPARED BY THEM WITH A VIEW TO ADMITTING ANY ENGINES OF EQUAL QUALITY, WORKMANSHIP, PERFORMANCE AND EFFICIENCY AS THE CATERPILLAR MODEL D-375. THEY LISTED IN THEIR REPORT ENGINES OF NINE OTHER MANUFACTURERS WHICH THEY BELIEVED WOULD BE ACCEPTABLE WITHIN SUCH QUALIFICATIONS. UPON A REQUEST FOR CLARIFICATION, MR. SMITH, IN A LETTER DATED OCTOBER 4, 1955, STATED THAT THE OFFICIAL POSITION OF THE FIRM WAS AS STATED ON OCTOBER 3, AND THE VIEWS AS EXPRESSED BY MR. ALRICH IN LETTER OF AUGUST 10, 1955, REFERRED TO ABOVE, DID NOT CONSTITUTE CORRECT STATEMENTS OF THE FIRM'S VIEWS, BEING IN CONFLICT WITH THOSE OF MR. SMITH AND MR. SHAEFER WHO HAD PREPARED THE SPECIFICATIONS FOR THE DIESEL ENGINE. IN HIS LETTER MR. SMITH INDICATED INDORSEMENT OF THE TYPE AND QUALITY OF THE ENGINE MANUFACTURED BY THE DETROIT ENGINE DIVISION OF GENERAL MOTORS, WHICH INDORSEMENT IS NOW STATED TO HAVE BEEN MADE WITH THE EXPECTATION THAT ANY ENGINE OFFERED BY DETROIT DIESEL WOULD MEET THE SAME QUALIFICATIONS AS ALL OTHER MAKES AS TO CAPACITY, PERFORMANCE AND EFFICIENCY.

ON THE BASIS OF THE FOREGOING, AND IN ORDER TO SECURE INFORMATION CONCERNING THE COMPETITIVE COST OF THE DIESEL 2-CYCLE ENGINE WHICH YOU PROPOSED TO FURNISH AND THE 4-CYCLE CATERPILLAR D-375 ENGINE FOR WHICH AN ORDER HAD BEEN PLACED BY THE ELECTRICAL SUBCONTRACTOR WITH THE ALBAN TRACTOR COMPANY, INC., AT A TOTAL COST OF $17,334, A PROPOSAL WAS OBTAINED FROM THE DISTRIBUTOR OF THE DETROIT DIESEL ENGINE IN THE AMOUNT OF $17,850 FOR THE EQUIPMENT PROPOSED TO BE FURNISHED. THIS LATTER PROPOSAL, WHICH IS $516 IN EXCESS OF THAT SUBMITTED BY ALBAN TRACTOR COMPANY, INC., WAS SENT BY YOU TO THE ARCHITECT OF THE CAPITOL BY LETTER OF OCTOBER 10, 1955.

IN ADDITION TO ASCERTAINING THE ABOVE FACTS WITH RESPECT TO THE ALLEGED RESTRICTIVE PROVISIONS OF THE SPECIFICATIONS AND THE COST ELEMENTS INVOLVED, THE ARCHITECT OF THE CAPITOL HAD A STUDY MADE OF THE PERFORMANCE CHARACTERISTICS OF THE CATERPILLAR MODEL D-375, AS WELL AS THE CAPABILITY OF YOUR EQUIPMENT TO MEET THE ADDITIONAL SENATE OFFICE BUILDING REQUIREMENTS. BASED UPON INFORMATION DEVELOPED BY THE ASSOCIATE ARCHITECT OF THE CAPITOL THROUGH HIS ELECTRICAL CONSULTANTS THAT THE UNIT OFFERED BY YOU WOULD NOT PRODUCE 200 KW AT A CONTINUOUS RATING, AS REQUIRED BY PARAGRAPH (D), PAGE 333 OF THE SPECIFICATIONS, THE ARCHITECT OF THE CAPITOL HAS FOUND THAT YOUR EQUIPMENT IS NOT ACCEPTABLE FOR THE PARTICULAR SERVICE REQUIRED. IN THIS CONNECTION, THE CONSULTANTS STATED THAT THEIR FINDING DOES NOT IMPLY DISAPPROVAL OF THE DESIGN OR CONSTRUCTION OF THE DETROIT DIESEL ENGINE, BUT ONLY OF THE PARTICULAR SIZE OF THE UNIT PROPOSED FOR THIS PARTICULAR JOB. THEY STATED FURTHER THAT, SINCE THEY HAD NOT RECEIVED FROM DETROIT DIESEL ANY DATA UPON WHICH THEY COULD JUDGE THE ENGINE CAPACITY OF LARGER SIZE UNITS, THEY WERE NOT IN A POSITION TO GIVE A SPECIFIC RECOMMENDATION AS TO WHAT MODEL WOULD BE ACCEPTABLE UNDER THE SPECIFICATION.

IT APPEARS SUFFICIENTLY CLEAR FROM THE ARCHITECT'S REPORT THAT, IRRESPECTIVE OF WHETHER THE ADVERTISED SPECIFICATION SHOULD BE INTERPRETED AS REQUIRING A 4-CYCLE ENGINE AS AGAINST A 2-CYCLE ENGINE, THE SPECIFICATIONS DID NOT RESTRICT PROSPECTIVE BIDDERS TO THE CATERPILLAR MODEL D-375 DIESEL ENGINE. THAT EQUIPMENT WAS REFERRED TO FOR THE PURPOSE OF DESCRIBING THE NEEDS OF THE GOVERNMENT.

THE STIPULATION OF A TRADE NAME OF A PARTICULAR ARTICLE FOLLOWED BY THE WORDS "OR EQUAL" MAKES IT CLEAR THAT THE PROCUREMENT IS NOT TO BE RESTRICTED TO THE PARTICULAR ARTICLE NAMED. IT IS THE PROVINCE OF THE CONTRACTING AGENCY TO DRAFT SPECIFICATIONS SETTING FORTH FAIRLY THE GOVERNMENT'S NEEDS TO BE SUPPLIED AND WHEN SPECIFICATIONS STATE THE GOVERNMENT'S REQUIREMENTS ACCURATELY AND REFLECT AN ACTUAL NEED, THEY ARE NOT NECESSARILY RESTRICTIVE MERELY BECAUSE THE PRODUCT OF A PARTICULAR MANUFACTURER MAY FAIL TO MEET THEM.

IN THE PRESENT CASE, THE SPECIFICATIONS ADMITTED ANY ENGINES OF EQUAL QUALITY, WORKMANSHIP, PERFORMANCE AND EFFICIENCY AS THE CATERPILLAR MODEL D-375 AND, SINCE IT APPEARS THAT THERE ARE ENGINES OF OTHER MANUFACTURERS UPON WHICH COMPETITION COULD BE OBTAINED UNDER THE SPECIFICATIONS, YOUR PROTEST APPEARS TO BE WITHOUT SUFFICIENT MERIT TO JUSTIFY OUR OFFICE IN HOLDING THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE OF COMPETITION.