B-129934, DEC. 17, 1956

B-129934, DEC. 17, 1956

TO MR. HARRY T. THOMPSON, ACTING SUPERINTENDENT, NATIONAL CAPITAL PARKS:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30, 1956, REQUESTING, IN EFFECT, A DECISION AS TO WHETHER WE WOULD BE REQUIRED BY REASON OF A PROTEST OF THE SPECIFICATIONS BY JACK Q. LEVER AND COMPANY, TO OBJECT TO AN AWARD BY YOU AS CONTRACTING OFFICER OF A CONTRACT TO ATLAS AIR CONDITIONING AND SHEET METAL COMPANY, INC., THE LOW BIDDER UNDER AN INVITATION FOR BIDS ISSUED ON OCTOBER 12, 1956, COVERING THE PROPOSED INSTALLATION OF HEATING AND COOLING EQUIPMENT IN THE THOMAS JEFFERSON MEMORIAL, WEST POTOMAC PARK, WASHINGTON, D.C.

THE ABSTRACT OF BIDS SHOWS THAT THE FIVE BIDS RECEIVED IN RESPONSE TO THE GOVERNMENT'S INVITATION WERE IN THE LUMP-SUM AMOUNTS OF $31,975, $33,282.77, $35,889, $38,900 AND $39,900. IN A LETTER DATED OCTOBER 31, 1956, JACK Q. LEVER AND COMPANY, THE THIRD LOWEST BIDDER, PROTESTED THE MAKING OF ANY AWARD UNDER THE INVITATION. IT WAS ALLEGED THAT THE PLANS AND SPECIFICATIONS WERE PREPARED WITH GENERAL ELECTRIC COMPANY EQUIPMENT IN MIND; THAT IN ORDER TO BE AT ALL COMPETITIVE ON THE JOB IT WAS NECESSARY TO OFFER GENERAL ELECTRIC EQUIPMENT; AND THAT THE LOCAL GENERAL ELECTRIC SUPPLY COMPANY REFUSED TO QUOTE THE LEVER COMPANY A WHOLESALE PRICE AND IT BECAME NECESSARY TO CONTACT ONE OF ITS FRANCHISED DEALERS WHO WAS ALSO BIDDING ON THE GOVERNMENT WORK.

YOUR LETTER INDICATES THAT YOUR AGENCY'S ENGINEERS ADMIT THAT GENERAL ELECTRIC DESIGN DATA WERE FOLLOWED AS A GUIDE IN PREPARING THE BID SPECIFICATIONS. YOU STATE THAT THE TYPE OF HEATING AND COOLING EQUIPMENT SPECIFIED FOR INSTALLATION AT THE THOMAS JEFFERSON MEMORIAL IS AN ELECTRICALLY OPERATED DEVICE COMMONLY KNOWN AS AN ELECTRIC HEAT PUMP; THAT THE HEAT PUMP IS A RELATIVELY RECENT DEVELOPMENT AND THE UNITS BEING MANUFACTURED WHICH WOULD BEST MEET THE REQUIREMENTS ARE OF SUCH SIZE AND CAPACITY THAT SEVERAL UNITS WOULD BE REQUIRED TO ACCOMPLISH THE DESIRED RESULTS; AND THAT THE PROJECT WAS DESIGNED WITH A VIEW TO OBTAINING THE BENEFITS OF USING COMMERCIALLY MANUFACTURED APPLIANCES, WHILE KEEPING TO A MINIMUM THE NUMBER OF UNITS REQUIRED, CONSIDERING ALSO THE AVAILABLE SPACE, CAPACITY OF UNITS, AND OTHER LIMITING FACTORS. ALSO, YOU EMPHASIZE THE FACT THAT IN PREPARING PLANS FOR ALTERATIONS OF ANY NATURE IN A MONUMENTAL STRUCTURE SUCH AS THE THOMAS JEFFERSON MEMORIAL IT IS A RESPONSIBILITY OF THE ENGINEER TO SPECIFY MATERIALS, EQUIPMENT AND WORKMANSHIP THAT WILL BE IN KEEPING WITH THE QUALITY AND CHARACTER OF THE NUMEROUS COMPONENTS THAT COMPRISE THE MEMORIAL, ALL OF WHICH ARE OF THE HIGHEST QUALITY OF MATERIAL AND WORKMANSHIP. WITH REFERENCE TO THE PROTESTING BIDDER'S COMPLAINT THAT IT WAS UNABLE TO PURCHASE GENERAL ELECTRIC UNITS AT WHOLESALE PRICES, YOU STATE THAT THE METHOD OF MERCHANDISING THE EQUIPMENT BY THE MANUFACTURER, WHETHER FAVORABLE OR UNFAVORABLE TO A PROSPECTIVE BIDDER, IS NOT A CRITERION WHICH THE ENGINEER WOULD USE IN DETERMINING THE DESIGN REQUIREMENTS AND SUITABILITY IN SPECIFYING EQUIPMENT.

THE GOVERNMENT ADVERTISING STATUTES CONSISTENTLY HAVE BEEN HELD TO REQUIRE THAT EVERY EFFORT SHOULD BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE ADVERTISED SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE GOVERNMENT'S MINIMUM REQUIREMENTS, NOT THE MAXIMUM DESIRED. 32 COMP. GEN. 384, 387.

CONSIDERING THE VARIOUS FACTORS AS OUTLINED IN YOUR LETTER, WHICH WE UNDERSTAND TO MEAN THAT IT WAS THE CONSIDERED DECISION OF THE ENGINEERS THAT NO OTHER COMMERCIAL UNITS WOULD FULLY MEET THE GOVERNMENT'S ACTUAL NEEDS, THE CONCLUSION IS WARRANTED THAT YOUR AGENCY HAS COMPLIED WITH SUCH ADVERTISING REQUIREMENT. WHERE UNDUE DIFFICULTY WOULD BE ENCOUNTERED IN DRAWING DETAILED SPECIFICATIONS WITHOUT REFERENCE TO THE ESSENTIAL CHARACTERISTICS OF THE PRODUCT OF ONE MANUFACTURER, THE SPECIFICATIONS INCORPORATING THOSE ESSENTIAL FEATURES CANNOT BE CONSIDERED TO BE MORE RESTRICTIVE THAN NECESSARY TO ACCOMPLISH THE INTENDED PURPOSE OF THE ADVERTISEMENT. MOREOVER, IT IS EVIDENT, AS YOU SUGGEST, THAT A PRIVATE CONCERN'S MERCHANDISING POLICIES SHOULD NOT HAVE ANY BEARING UPON A DETERMINATION AS TO WHAT KIND, QUALITY OR TYPE OF EQUIPMENT IS REQUIRED TO MEET THE ACTUAL NEEDS OF THE UNITED STATES.

ACCORDINGLY, YOU ARE ADVISED THAT WE WOULD NOT BE REQUIRED, ON THE BASIS OF THE RECORD PRESENTLY BEFORE US, TO OBJECT TO THE MAKING OF THE AWARD TO ATLAS AIR CONDITIONING AND SHEET METAL COMPANY, INC., IF OTHERWISE PROPER.