B-149758, NOV. 8, 1962

B-149758, NOV. 8, 1962

TO WILLIAMS AND LANE, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1962, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. ENG-36-109-62-7, ISSUED BY THE ARMY ENGINEER DISTRICT OFFICE AT PHILADELPHIA, PENNSYLVANIA. YOU CONTEND THAT YOUR BID AND ACCOMPANYING LETTER DATED AUGUST 3, 1962, WERE RESPONSIVE TO THE INVITATION AND, SINCE YOUR OFFER WAS THE LOWEST RECEIVED THE PROCUREMENT OFFICIALS ERRED IN NOT AWARDING THE CONTRACT TO YOUR CORPORATION.

THE SUBJECTION INVITATION SOUGHT BIDS ON A QUANTITY OF POWER GENERATOR SETS TO BE MANUFACTURED IN ACCORDANCE WITH THE TERMS OF THE INVITATION AND RELATED SPECIFICATIONS MADE A PART THEREOF. NINE BIDS WERE RECEIVED, THE TWO LOWEST BEING THAT OF BOGUE ELECTRIC MANUFACTURING COMPANY, IN THE NET AMOUNT OF $361,000, AND YOUR OFFER OF $357,400, LESS ONE-TENTH OF 1 PERCENT, AS A PROMPT PAYMENT DISCOUNT. THE THIRD LOW BID OF $423,954 WAS SUBMITTED BY RUSSELL HIPWELL, LTD. AFTER OPENING OF THE BIDS THE THREE LOWEST OFFERS WERE SUBMITTED BY THE PURCHASING OFFICE TO CHIEF OF ENGINEERS FOR TECHNICAL EVALUATION. IN RESPONSE DATED AUGUST 14, 1962, THE CHIEF OF ENGINEERS ADVISED THAT BOTH YOUR FIRM AND BOGUE ELECTRIC OFFERED TO FURNISH UNITS EQUIPPED WITH ,MAGNETICALLY ACTUATED MULTIPLE DISC FRICTION TYPE" OR "MAGNETICALLY OPERATED FRICTION," CLUTCHES IN LIEU OF AN INDUCTION OR EDDY TYPE CLUTCH AS REQUIRED BY THE SPECIFICATIONS.

THE PROCUREMENT DESCRIPTION FOR THE UNINTERRUPTED-POWER GENERATING SETS MADE A PART OF THE INVITATION, AND THE ULTIMATE CONTRACT, DESCRIBED THE DESIRED CLUTCH AS FOLLOWS:

"13. MAGNETIC CLUTCH: WHERE AN IN-LINE TYPE OF CONSTRUCTION IS FURNISHED A MAGNETIC CLUTCH OF THE INDUCTION OR EDDY-CURRENT TYPE SHALL BE PROVIDED TO CONNECT THE ENGINE TO THE OTHER ROTATING MEMBERS WHEN ENERGIZED THROUGH THE CONTROL PANEL. THE CLUTCH SHALL BE CONNECTED TO THE SHAFT THROUGH A SPLINE ARRANGEMENT OR THROUGH A HUB-AND GE ARARRANGEMENT. A CLUTCH WITH DRIVE PINS AND BUSHINGS IS NOT ACCEPTABLE. THE CLUTCH SHALL BE CAPABLE OF 1000 TRANSFERS FROM MOTOR TO ENGINE DRIVE UNDER RATED LOAD CONDITIONS AND SHALL BE CAPABLE OF 500 TRANSFERS WITHOUT ADJUSTMENT.'

THE RECORD SHOWS THAT BOTH YOU AND THE SECOND LOW BIDDER PROPOSED TO FURNISH A DISC CLUTCH WHEREAS THE OTHER BIDDERS OFFERED A NON FRICTION TYPE INDUCTION OR EDDY CURRENT CLUTCH. WITH RESPECT TO YOUR CONTENTION, AND THAT OF YOUR SUPPLIER, THE BENDIX CORPORATION, THAT THE CLUTCH OFFERED BY YOU IS AN INDUCTION TYPE WHICH MEETS THE SPECIFICATIONS, THE CHIEF OF ENGINEERS, IN A SUPPLEMENTAL REPORT DATED SEPTEMBER 11, 1962, REAFFIRMS THE POSITION TAKEN BY THE ADMINISTRATIVE OFFICE, TO THE EFFECT THAT IT IS A FRICTION TYPE AND, THEREFORE IS NOT ACCEPTABLE. IN FURTHER SUPPORT OF THAT REASONING, THE CHIEF OF ENGINEERS QUOTES FROM VOLUME C 42.10, 1957 EDITION OF THE ,DEFINITIONS OF ELECTRICAL TERMS," PUBLISHED BY THE AMERICAN INSTITUTE OF ELECTRICAL ENGINEERS, AS FOLLOWS:

"ELECTRIC COUPLING

AN ELECTRIC COUPLING IS A ROTATING MACHINE WHICH TRANSMITS TORQUE BY ELECTRIC OR MAGNETIC MEANS OR IN WHICH THE TORQUE IS CONTROLLED BY ELECTRIC OR MAGNETIC MEANS.'

"INDUCTION COUPLING

AN INDUCTION COUPLING IS AN ELECTRIC COUPLING IN WHICH TORQUE IS TRANSMITTED BY THE INTERACTION OF THE MAGNETIC FIELD PRODUCED BY MAGNETIC POLES ON ONE ROTATING MEMBER AND INDUCED CURRENTS IN THE OTHER ROTATING MEMBER.'

IT IS FURTHER REPORTED THAT THE REQUIREMENTS OF PARAGRAPH 13 OF THE PROCUREMENT DESCRIPTION WERE FULLY DISCUSSED AT A PRE-BID CONFERENCE ON JULY 10, 1962, WHICH WAS ATTENDED BY REPRESENTATIVES FROM WILLIAMS AND LANE AND, IT WAS CLEARLY DEMONSTRATED THAT A FRICTION CLUTCH WAS NOT DESIRED OR AUTHORIZED BY THE SPECIFICATIONS.

MATTERS RELATING TO QUESTIONS OF FACT ARE PRIMARILY FOR DETERMINATION BY THE DEPARTMENT OR AGENCY INVOLVED, AND IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH OR PERSONAL PREJUDICE FINDINGS BASED UPON A BONA FIDE EVALUATION WILL NOT BE DISTURBED BY US. IN THAT CONNECTION WHERE, AS HERE, THERE IS A DIRECT CONFLICT BETWEEN THE ALLEGATIONS OF A BIDDER AND THE FINDINGS OF THE ADMINISTRATIVE OFFICE, THE COURTS HAVE SUPPORTED THE POLICY ADOPTED BY THE ACCOUNTING OFFICERS OF THE UNITED STATES, TO ACCEPT THE CONCLUSIONS OF THE GOVERNMENT AGENCY CONCERNED. LIKEWISE, IT HAS BEEN HELD REPEATEDLY THAT THE UNITED STATES IS NOT REQUIRED TO PURCHASE EQUIPMENT OR SUPPLIES MERELY BECAUSE THEY ARE OFFERED AT A LOWER PRICE WHEN, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, THE ACTUAL NEEDS OF THE GOVERNMENT WOULD NOT BE SERVED THEREBY. CLEARLY, IN THE ORDERLY CONDUCT OF ITS BUSINESS THE GOVERNMENT MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE SUCH DISCRETIONARY AUTHORITY WITH ONE OF ITS POTENTIAL SUPPLIERS.

ACCORDINGLY, THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY WILL NOT BE DISTURBED.