B-149566, OCT. 30, 1962

B-149566, OCT. 30, 1962

TO MR. WILLIAM H. GEARHART:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JULY 27, 1962, ACKNOWLEDGED ON AUGUST 1, AND SUBSEQUENT CORRESPONDENCE, PERTAINING TO YOUR PROTEST AGAINST AN AWARD MADE BY THE DISTRICT CORPS OF ENGINEERS UNDER INVITATION FOR BIDS NO. ENG-25-066-62-116.

AN EXAMINATION OF THE RECORD NOW BEFORE THIS OFFICE INDICATES THAT THE ABOVE-MENTIONED INVITATION FOR CONSTRUCTION OF HEATING PLANT ADDITION, MINOT AIR FORCE BASE, MINOT, NORTH DAKOTA, WAS ISSUED ON MAY 25, 1962, AND BIDS PURSUANT THERETO WERE OPENED AT 10:00 A.M., JUNE 22, 1962. A TOTAL OF SEVEN BIDS WERE RECEIVED, AND THE APPARENT LOW BID WAS THAT SUBMITTED BY YOUR COMPANY IN THE AMOUNT OF $455,850. THE SECOND LOW BID WAS BY THE EICHLEAY CORPORATION IN THE AMOUNT OF $486,800.

THE TERMS OF THE INVITATION REQUIRED BIDDERS TO SUBMIT CERTAIN DATA WITH THEIR BIDS WHICH WOULD BE MADE A PART OF THE CONTRACT. INCLUDED IN THE DATA REQUIRED TO BE SUBMITTED WERE ITEMS G AND H, NAME OF BOILER MANUFACTURER AND BOILER TYPE. THE BID OF YOUR COMPANY INDICATED THAT YOU INTENDED TO FURNISH A BOILER MANUFACTURED BY BOILER ENGINEERING AND SUPPLY CO., INC., OF THE TYPE KNOWN AS "FLO-KONTROLD VERTICAL TYPE -- A.' THE BID OF THE EICHLEAY CORPORATION INDICATED THAT IT INTENDED TO FURNISH A BOILER MANUFACTURED BY BABCOCK AND WILCOX CO., "HTW" TYPE.

PARAGRAPH 21-05 OF THE CONTRACT SPECIFICATIONS PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"21-05. FORCED OR CONTROLLED CIRCULATION HIGH TEMPERATURE HOT WATER GENERATOR.

A. GENERAL. * * * THE GENERATOR AND ALL AUXILIARIES SHALL BE SUPPLIED BY A SINGLE GENERATOR MANUFACTURER SO THAT PERFORMANCE OF THIS EQUIPMENT IS THE RESPONSIBILITY OF A SINGLE MANUFACTURER. GENERATOR SHALL BE THE PRODUCT OF A MANUFACTURER WHO CAN SHOW GENERATORS OF THE DESIGN AND TYPE SPECIFIED HEREIN WHICH HAVE BEEN OPERATING SATISFACTORILY FOR AT LEAST TWO YEARS, WITH A CAPACITY OF AT LEAST 30 MILLION ETU'S PER HOUR AT A LEAVING WATER TEMPERATURE OF AT LEAST 350 DEGREES FAHRENHEIT. * * *"

PARAGRAPH 21-03 OF THE SPECIFICATIONS PROVIDES:

"21-03. GENERAL.

F. THE BID INFORMATION BLANK SUPPLIED WITH THE BID FORM SHALL BE COMPLETED IN FULL AND SUPPLIED WITH THE BID ON THE PROJECT. THE DATA REQUIRED APPLIES TO ONE GENERATOR UNIT COMPLETE. THE DATA SUBMITTED WITH THE SUCCESSFUL BID WILL BE MADE A PART OF THE CONTRACT DOCUMENTS, AND CONFORMANCE OF THE EQUIPMENT FURNISHED BY THE CONTRACTOR TO THE SUBMITTED DATA SHALL BE REQUIRED. AWARD OF THE CONTRACT OR APPROVAL OF THE DATA BY THE CONTRACTING OFFICER WILL NOT RELEASE THE CONTRACTOR FROM COMPLIANCE WITH ALL SPECIFICATION SECTIONS. SUBSTITUTION OF A GENERATOR WITH STOKER AND BURNER UNITS OTHER THAN THAT SUBMITTED IN THE BID FORM WILL NOT BE ACCEPTED.'

IT IS ADMINISTRATIVELY REPORTED THAT IN VIEW OF THE REQUIREMENTS FOR TWO YEARS' SATISFACTORY OPERATING EXPERIENCE, AND BECAUSE OF THE FACT THAT THE SUCCESSFUL BIDDER WAS REQUIRED TO FURNISH GENERATORS MANUFACTURED BY THE MANUFACTURER NAMED IN THE BID, YOUR COMPANY WAS CONTACTED ON JUNE 22, 1962, AND ASKED TO SUBMIT, AMONG OTHER THINGS, THE EXPERIENCE RECORD OF BOILERS OF THE REQUIRED CAPACITY MANUFACTURED BY BOILER ENGINEERING AND SUPPLY CO., INC. ON JUNE 28, 1962, A LETTER WAS RECEIVED FROM THE BOILER MANUFACTURER WHICH INDICATED THAT BOILERS OF THE SAME DESIGN WITH A CAPACITY OF AT LEAST 30 MILLION BTU/HR HAD BEEN BUILT AND OPERATED PREVIOUSLY. BOILERS CITED AS HAVING BEEN BUILT BY THIS MANUFACTURER WHICH WERE COMPARABLE TO THOSE REQUIRED BY THE INVITATION WERE LIMITED TO THREE INSTALLATIONS: NAMELY, SELFRIDGE AFB, MOUNT CLEMENS, MICHIGAN; UNITED STATES NAVAL AIR STATION, LEMOORE CALIFORNIA; AND HARBOR GENERAL HOSPITAL, TORRANCE, CALIFORNIA. THESE INSTALLATIONS WERE CONTACTED, AND IT WAS ASCERTAINED THAT NONE OF THE UNITS MET THE SPECIFIED EXPERIENCE REQUIREMENT OF TWO YEARS' SATISFACTORY OPERATION OF A UNIT OF 30 MILLION BTU/HR OR LARGER AT A TEMPERATURE OF AT LEAST 350 DEGREES FAHRENHEIT; AND THAT THE LARGEST UNITS MANUFACTURED BY THIS COMPANY WHICH HAD TWO YEARS' EXPERIENCE WERE ONES WITH 22 MILLION BTU/HR CAPACITY. ON THE OTHER HAND, THE BOILER PROPOSED BY THE EICHLEAY CORPORATION AND NAMED IN ITS BID IS REPORTED TO HAVE HAD A RECORD OF TWO YEARS' SATISFACTORY OPERATION AT THE REQUIRED CAPACITY AND TEMPERATURE. ACCORDINGLY, IN THE LIGHT OF THESE FACTS, THE BID OF YOUR COMPANY WAS CONSIDERED NONRESPONSIVE, AND AWARD OF A CONTRACT WAS MADE ON JULY 20, 1962, TO THE EICHLEAY CORPORATION.

THE ADMINISTRATIVE OFFICE FURTHER REPORTS THAT ON JULY 27, 1962, IT RECEIVED A TELEGRAM FROM YOUR COMPANY PROTESTING THE AWARD; THAT WHILE NO BASIS FOR THE PROTEST WAS FURNISHED, A MEETING WAS REQUESTED AT 10:00 A.M. ON AUGUST 3, 1962. A MEETING FOR THIS DATE WAS TELEGRAPHICALLY CONFIRMED BY THE CONTRACTING OFFICIALS, BUT DID NOT MATERIALIZE BECAUSE OF YOUR INABILITY TO ATTEND. SUBSEQUENTLY, ON AUGUST 16, 1962, YOU WERE INFORMED THAT SINCE YOU HAD FAILED TO ARRANGE ANOTHER MEETING, IT WAS ASSUMED THAT YOUR PROTEST HAD BEEN ABANDONED; AND AS OF AUGUST 21, 1962, IT IS REPORTED THAT NOTHING FURTHER WAS HEARD FROM YOU.

WITH RESPECT TO YOUR CONTENTION THAT THE BOILER PROPOSED TO BE FURNISHED BY YOUR COMPANY COMPLIED WITH THE PROVISIONS OF PARAGRAPH 21 05 OF THE SPECIFICATIONS, THE ADMINISTRATIVE OFFICE, IN A SUPPLEMENTAL REPORT DATED OCTOBER 4, 1962, ADVISED AS FOLLOWS:

"THE PROTESTANT FURNISHED THE CONTRACTING OFFICER WITH THE FOLLOWING THREE BOILER INSTALLATIONS WHICH ALLEGEDLY COMPLY WITH PARAGRAPH 21-05 OF THE SPECIFICATIONS * * *:

"1. SELFRIDGE AIRFIELD, MICHIGAN

2. NAVAL AIR STATION, LEMOORE, CALIFORNIA

3. HARBOR GENERAL HOSPITAL, TORRANCE, CALIFORNIA

"3. THE FOLLOWING INFORMATION WAS OBTAINED AS A RESULT OF INQUIRIES DIRECTED TO THESE THREE LOCATIONS:

"A. AT SELFRIDGE AIRFIELD THERE IS A 12 MILLION BTU/HR BOILER WHICH WAS PLACED IN OPERATION IN OCTOBER 1960.

"B. AT THE NAVAL AIR STATION, LEMOORE, CALIFORNIA, THERE ARE FOUR BOILERS, THREE WITH A 22 MILLION BTU/HR RATING AND ONE WITH A 15 MILLION BTU/HR RATING. THESE BOILERS WERE ALL PLACED IN OPERATION IN OCTOBER 1960.

"C.THE HARBOR GENERAL HOSPITAL HAS TWO BOILERS WITH A 22 MILLION BTU/HR RATING WHICH WERE PLACED IN OPERATION IN NOVEMBER 1961.

"4. THE CONTRACTOR'S CONTENTION APPEARS TO BE THAT BY COMPUTING HEATING SURFACE OF HIS INSTALLED BOILERS AT LEMOORE BY THE SAME METHOD HE CAN CLAIM TO HAVE IN REALITY A BOILER OF 30 MILLION BTU CAPACITY.

"5. FURTHER INQUIRY AS TO THE CAPACITY OF THE BOILERS INSTALLED AT THE NAVAL AIR STATION, LEMOORE, CALIFORNIA HAS SHOWN THAT THE NAME PLATES ON THE THREE BOILERS SHOW THEIR CAPACITIES AS 22 MILLION BTU/HR. THE OPERATING MANUAL FURNISHED BY THE MANUFACTURER OF THESE BOILERS SHOWS THAT THEY EACH HAVE 306 SQUARE FEET OF PROJECTED SURFACE AND 1737 SQUARE FEET OF CONVENTION SURFACE OR A TOTAL OF 2,043 SQUARE FEET OF EFFECTIVE HEATING SURFACE. THE MEANS OF MEASURING THE CONVICTION SURFACE IS UNIFORM AND THEREFORE THE AMOUNT OF 1737 SQUARE FEET WILL NOT CHANGE; HOWEVER, USING THE MOST LIBERAL METHOD OF MEASURING THE PROJECTED SURFACE THAT AMOUNT COULD BE INCREASED TO 707 SQUARE FEET RESULTING IN A TOTAL OF 2444SQUARE FEET OF EFFECTIVE HEATING SURFACE. IN THEIR 1962 CATALOG THE MANUFACTURER ESTABLISHES A FORMULA OF 100 SQUARE FEET OF HEATING SURFACE FOR EACH MILLION BTU/HR. USING THAT FORMULA THESE BOILERS COULD BE RATED AS HIGH AS 24.4 MILLION BTU/HR.

"6. WE RECOGNIZE THAT THERE ARE MANY METHODS OF COMPUTING HEATING SURFACE, SOME OF WHICH ARE:

STEEL BOILER INSTITUTE

AMERICAN BOILER MANUFACTURERS ASSOCIATION

AMERICAN SOCIETY OF HEATING, REFRIGERATING AND AIR CONDITIONING ENGINEERS

AMERICAN SOCIETY OF MECHANICAL ENGINEERS TEST CODE.

"7. ALTHOUGH ALL OF THESE METHODS ARE DIFFERENT, THE USE OF ANY OF THESE METHODS OF COMPUTATION WILL GIVE RESULTS WITHIN 10 PERCENT OF EACH OTHER. THIS VARIATION WOULD NOT BE SUFFICIENT TO JUSTIFY THE CONTRACTOR'S CLAIM IF THE SURFACE MEASUREMENTS GIVEN IN THE MANUFACTURER'S OPERATING MANUAL ARE CORRECT.'

WE CONSISTENTLY HAVE TAKEN THE POSITION THAT IT IS THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS. WITH RESPECT TO THE REQUIREMENTS SET FORTH IN THE ABOVE-QUOTED SECTIONS OF THE SPECIFICATIONS, WE HAVE HELD THAT AWARD OF A CONTRACT PURSUANT TO THE FORMAL ADVERTISING REQUIREMENTS OF THE SEVERAL STATUTES APPLICABLE TO THE VARIOUS AGENCIES OF THE GOVERNMENT MAY BE LIMITED TO THOSE BIDDERS MEETING SPECIFIED QUALITATIVE AND QUANTITATIVE EXPERIENCE REQUIREMENTS IN A SPECIALIZED FIELD WHERE THE INVITATION SO PROVIDES AND UPON A PROPER DETERMINATION THAT THE INTERESTS OF THE GOVERNMENT WOULD THEREBY BE SERVED. SEE, FOR EXAMPLE, 37 COMP. GEN. 196; 35 COMP. GEN. 161; 26 COMP. GEN. 676; AND 20 COMP. GEN. 862, 865. AND, IN THIS CONNECTION, ATTENTION IS INVITED TO THE FACT THAT ARTICLE 9, GENERAL PROVISIONS, OF THE STANDARD CONSTRUCTION CONTRACT, REVISED APRIL, 1961, REQUIRES THAT THE CONTRACTOR OBTAIN THE PRIOR APPROVAL OF THE CONTRACTING OFFICER FOR MACHINERY, MECHANICAL, AND OTHER EQUIPMENT TO BE INCORPORATED IN THE WORK. ACCORDINGLY, WE ARE AWARE OF NO REASON FOR OBJECTING TO THE INCLUSION OF PARAGRAPHS 21.03 AND 21.05 IN THE SPECIFICATION.

IN THE LIGHT OF THE FACTS PRESENTED, IT IS APPARENT THAT YOUR BID WAS CONSIDERED NONRESPONSIVE BECAUSE OF THE FAILURE OF THE PROPOSED BOILERS TO MEET THE ABOVE-QUOTED EXPERIENCE REQUIREMENTS OF THE SPECIFICATION; AND SINCE THE SPECIFICATION ALSO PROHIBITED THE BIDDER FROM SUPPLYING A BOILER OF A MANUFACTURER OTHER THAN THE ONE NAMED ON THE BID DATA SHEET, IT WAS CONSIDERED IMPOSSIBLE FOR YOUR COMPANY TO REMEDY THE DEFICIENCY.

IN CONCLUSION, THEREFORE, FOR THE REASONS SET FORTH ABOVE, WE PERCEIVE NO BASIS FOR HOLDING THAT THE CONTRACT AWARDED PURSUANT TO INVITATION FOR BIDS NO. ENG-25-066-62-116 IS LEGALLY INVALID.