B-143914, DEC. 8, 1960

B-143914, DEC. 8, 1960

TO THE TRANE COMPANY:

WE REFER TO YOUR TELEFAX OF SEPTEMBER 7, 1960, AND FURTHER CORRESPONDENCE, PROTESTING AGAINST THE SPECIFICATIONS FOR CLASSROOM UNIT VENTILATORS UNDER HOUSING AND HOME FINANCE AGENCY PROJECT NO. N.J. 61-C- FED-3A11, ISSUED ON JULY 5, 1960, FOR THE CONSTRUCTION OF ELEMENTARY SCHOOL FACILITIES AT MCGUIRE AIR FORCE BASE, NEW JERSEY.

THE FACILITIES ARE BEING CONSTRUCTED PURSUANT TO AUTHORITY CONTAINED IN CHAPTER 19, TITLE 20, U.S. CODE, WHICH DEALS WITH THE CONSTRUCTION OF SCHOOL FACILITIES IN AREAS AFFECTED BY FEDERAL ACTIVITIES. THE PLANS AND SPECIFICATIONS WERE PREPARED BY THE FIRM OF PETTY AND CROFT, ARCHITECTS, UNDER A CONTRACT WITH THE COMMUNITY FACILITIES COMMISSIONER, HOUSING AND HOME FINANCE AGENCY, ON BEHALF OF THE GOVERNMENT. THE PRIME CONTRACT DATED SEPTEMBER 9, 1960, WAS AWARDED TO BAND CONSTRUCTION COMPANY AND CALLS FOR THE CONSTRUCTION OF THREE SEPARATE ELEMENTARY SCHOOL BUILDINGS AT MCGUIRE AIR FORCE BASE, NEW JERSEY.

THE ORIGINAL SPECIFICATIONS, ISSUED ON JULY 5, 1960, PROVIDED THAT CLASSROOM UNIT VENTILATORS ,SHALL BE NESBITT, NELSON, TRANE, OR APPROVED EQUAL," AND THAT THE UNIT WALL ASSEMBLIES SHALL CONSIST OF EITHER "UNIT DISCHARGE PLENUMS WITH ORIFICES, FIN-TUBE RADIATION, OR RETURN AIR PLENUMS.' THE AFOREMENTIONED ASSEMBLIES ARE SYSTEMS OF VENTILATOR DESIGN EMPLOYED TO PROTECT AGAINST ROOM WINDOW DOWNDRAFT.

ON JULY 29, 1960, ADDENDUM NO. 1 TO THE SPECIFICATIONS WAS ISSUED WHICH, AMONG OTHER CHANGES, DELETED THE WORDS "UNIT DISCHARGE PLENUMS WITH ORIFICES" FROM THE SPECIFICATION AND, THEREAFTER, ON AUGUST 8, 1960, ADDENDUM NO. 3, WAS ISSUED, WITH THE EFFECT THAT THE SPECIFICATIONS REQUIRE FINNED TUBE RADIATION FOR WINDOW DOWNDRAFT PROTECTION.

THE TRANE COMPANY PROTESTED ON AUGUST 9, 1960, TO THE CONTRACTING OFFICE, THE HOUSING AND HOME FINANCE AGENCY, PHILADELPHIA, PENNSYLVANIA, ALLEGING THAT THE TERMS OF THE ADDENDUM EFFECTIVELY ELIMINATED IT AS A BIDDER ON THE PROJECT SINCE IT REGULARLY USED THE "UNIT DISCHARGE PLENUM WITH ORIFICES" AS AN INTEGRAL PART OF ITS DESIGN. IN SUBSEQUENT CORRESPONDENCE, THE TRANE COMPANY ADVISED THAT WHILE IT COULD PROVIDE THE FINNED TUBE RADIATION SYSTEM OF PROTECTION, WHICH IT SUPPLIED IN A PRIOR MODEL, THE ADOPTION NOW OF THIS SYSTEM WOULD REQUIRE COMPLETE REDESIGN AND NEW TOOLING SO AS TO EFFECTIVELY ELIMINATE IT, COST-WISE, FROM THE BIDDING. TRANE CONTENDS THAT ITS PRESENT SYSTEM IS SUPERIOR TO THE RADIATION TYPE OF DOWNDRAFT PROTECTION REQUIRED BY THE SPECIFICATIONS BECAUSE IT PROVIDES A CONTINUOUS POSITIVE DOWNDRAFT PROTECTION BY USING PRESSURIZED, TEMPERED AIR TO SUIT CLASSROOM CONDITIONS AND IS SUPERIOR TO "ON AND OFF" SYSTEMS SUCH AS "FINNED TUBE RADIATION" OR "RETURN AIR PLENUMS WITH GRILLES," WHICH FAIL TO PROVIDE ANY DOWNDRAFT PROTECTION ON THE "OFF" CYCLE.

THE BID OPENING WAS POSTPONED FROM AUGUST 16 TO AUGUST 19 IN ORDER TO CONSIDER THE PROTEST. AFTER BID OPENING, THE AWARD WAS HELD UP PENDING FURTHER CONSIDERATION OF THE PROTEST. THE PROJECT ARCHITECT EXPRESSED HIS VIEWS ON THE PROTEST IN A LETTER OF AUGUST 30, 1960, TO THE ADMINISTRATIVE AGENCY, IN PART AS FOLLOWS:

"IN MY EXPERIENCE IN THE LAST TEN YEARS IN THE BUILDING OF SCHOOLS, I CONSIDER RADIATION UNDER THE WINDOWS IN TODAY'S TYPE CLASSROOMS AN ESSENTIAL FOR SATISFACTORY COMFORT TO THOSE PUPILS SITTING ALONG THE WINDOWS. WHILE THERE MAY BE CHEAPER SYSTEMS TO DEAL WITH THE DOWNDRAFT PROBLEM, I DO NOT CONSIDER THE RESULTS EQUAL ANY MORE THAN I WOULD CONSIDER A WOOD ROOF EQUAL TO A SLATE ROOF.

"I FURTHER DO NOT CONSIDER THE BELT DRIVEN (TRANE) UNIT EQUAL TO A DIRECT DRIVEN UNIT AS THE BELT DRIVEN IS NOT AS QUIET AS THE DIRECT DRIVE.

"I KNOW OF NOTHING ON THE TRANE SYSTEM TO PREVENT THE BLOWING OF COLD AIR ALONG THE WINDOWS WHEN THE UNIT IS ON THE COOLING CYCLE. WITH THE NELSON AND NESBITT UNITS, THIS AIR IS DIRECTED BY THE UNIT AND NOT SPREAD ALONG THE WINDOWS TO MEET THE COLD AIR DROP FROM THE GLASS.'

IT IS ADMINISTRATIVELY REPORTED THAT NELSON, NESBITT, AND ALSO TRANE, IF IT SO CHOSE, COULD FURNISH A UNIT USING THE FINNED TUBE RADIATION TYPE OF SYSTEM. BASED ON THE FOREGOING, IT WAS ADMINISTRATIVELY CONCLUDED, ON SEPTEMBER 12, 1960, THAT THE SPECIFICATIONS, AS REVISED, DID PERMIT COMPETITIVE BIDDING AND DID NOT BAR THE TRANE COMPANY FROM MAKING SUCH BIDS TO INTERESTED GENERAL CONTRACTORS.

THE GOVERNMENT ADVERTISING STATUTES CONSISTENTLY HAVE BEEN HELD TO REQUIRE THAT ADVERTISED SPECIFICATIONS BE STATED IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE LEGITIMATE NEEDS OF THE GOVERNMENT. 32 COMP. GEN. 384, 387. THE DETERMINATION OF WHAT ARE THE LEGITIMATE NEEDS AND THE DRAFTING OF SPECIFICATIONS TO MEET SUCH NEEDS ARE MATTERS WHICH LIE PRIMARILY WITHIN THE JURISDICTION OF THOSE CHARGED WITH THE OPERATING RESPONSIBILITY, THE CONTRACTING AGENCY. 17 COMP. GEN. 554, 557.

IN THE INSTANT CASE, THE PROJECT ARCHITECT AND THE ADMINISTRATIVE OFFICIALS RESPONSIBLE FOR ADMINISTERING THE PROJECT CONCLUDED THAT VENTILATION WITH FINNED TUBE RADIATION WAS THE PREFERRED SYSTEM FOR PROTECTING THE CLASSROOMS AGAINST WINDOW DOWNDRAFT. THE SYSTEM OF VENTILATION YOU OFFER WAS CONSIDERED FOR USE AND DETERMINED NOT TO BE AS ACCEPTABLE. YOU CONTEND THAT THE REVISED SPECIFICATIONS FAVOR ONE COMPANY. THE RECORD INDICATES THAT ALTHOUGH YOU ARE ABLE TO FURNISH FINNED TUBE RADIATION, YOU CAN DO SO ONLY AT A COMPETITIVE PRICE DISADVANTAGE, SINCE IT IS NOT YOUR NORMAL COMMERCIAL PRODUCT. HOWEVER, IT IS EVIDENT THAT THE GOVERNMENT'S NEEDS, WITH RELATION TO WHAT KIND, QUALITY OR TYPE OF EQUIPMENT IS TO BE UTILIZED, CANNOT BE DETERMINED BY A PRIVATE CONCERN'S SALES POLICIES. B-129934, DECEMBER 12, 1956. THE REVISED SPECIFICATIONS HERE CONSIDERED INCORPORATE DESIGN FEATURES ADMINISTRATIVELY DETERMINED TO BE BEST SUITED FOR THE PARTICULAR FUNCTION TO BE ACCOMPLISHED. UNDER THESE CIRCUMSTANCES, WE CANNOT CONSIDER SUCH SPECIFICATIONS AS UNREASONABLY RESTRICTIVE. SEE 33 COMP. GEN. 595.

ACCORDINGLY, YOU ARE ADVISED THAT ON THE PRESENT RECORD THIS OFFICE PERCEIVES NO BASIS FOR TAKING EXCEPTION TO THE SPECIFICATIONS UNDER PROJECT NO. N.J. 61-C-FED-3A11.