B-151507, SEP. 3, 1963

B-151507, SEP. 3, 1963

TO THE CONSOLIDATED DIESEL ELECTRIC CORPORATION:

BY LETTERS DATED MAY 8 AND JUNE 3, 1963, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO RUSSEL-HIPWELL ENGINES LIMITED THROUGH THE CANADIAN COMMERCIAL CORPORATION UNDER INVITATION FOR BIDS NO. ENG-36 109-63-5, ISSUED ON FEBRUARY 15, 1963, FOR A QUANTITY OF UNINTERRUPTED POWER UNITS AND ASSOCIATED ITEMS.

SEVEN BIDS WERE RECEIVED AND OPENED ON MARCH 21, 1963, AND THE THREE LOWEST BIDS WERE ABSTRACTED AS FOLLOWS:

TABLE

BIDDER BID TOTAL

INTERNATIONAL FERMONT $287,486

RUSSEL-HIPWELL 322,540

CONSOLIDATED DIESEL ELECTRIC 322,871

THE THREE BIDS WERE TECHNICALLY EVALUATED AS TO RESPONSIVENESS TO THE ADVERTISED SPECIFICATIONS AND IT WAS CONCLUDED BY THE PROCUREMENT AGENCY THAT ONLY THE BID OF RUSSEL-HIPWELL WAS ENTIRELY RESPONSIVE TO THE INVITATION. ON THE BASIS THEREOF, AND A SATISFACTORY PREAWARD SURVEY, AWARD WAS MADE TO THE CANADIAN COMMERCIAL CORPORATION (RUSSEL HIPWELL) ON MAY 3, 1963.

PAGE 13 OF THE INVITATION CONTAINED A DESCRIPTIVE LITERATURE REQUIREMENT AS FOLLOWS:

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, DIMENSIONS, WEIGHT AND DETAILED DESCRIPTION OR MAJOR COMPONENTS AND ACCESSORY EQUIPMENT, AS DETAILED IN PARAGRAPH 4A OF PROCUREMENT DESCRIPTION.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. * * *"

PARAGRAPH 4A OF THE PROCUREMENT DESCRIPTION LISTED THE INFORMATION TO BE SUBMITTED WITH THE BID FOR PURPOSES OF TECHNICAL EVALUATION OF COMPONENTS COMPRISING THE UNINTERRUPTED POWER UNITS OFFERED BY THE BIDDER. YOU QUESTION, IN EFFECT, WHETHER THE DESCRIPTIVE LITERATURE SUBMITTED BY RUSSEL-HIPWELL SATISFIED THE REQUIREMENTS IN THE INVITATION THAT IT "SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS.'

THE SUBJECT PROCUREMENT IS HIGHLY COMPLEX AND EXPENSIVE AND THE RECORD INDICATES THAT THE TECHNICAL PROPOSALS WERE EVALUATED BY COMPETENT TECHNICAL PERSONNEL IN THE PROCUREMENT AGENCY AND, AS STATED BY THE CONTRACTING OFFICER IN LETTER OF MAY 3, 1963, TO YOU, IT WAS DETERMINED THAT "NO VALID BASIS FOR REJECTING THE BIDDER TO WHOM AWARD HAS BEEN MADE ON TECHNICAL GROUNDS AS THE BASIC TECHNICAL PREMISES UPON WHICH YOUR PROTEST WAS FOUNDED WERE UNSUBSTANTIATED BY THE RECORD.' FOR US TO DETERMINE WHETHER THE DESCRIPTIVE LITERATURE MEETS THE STANDARDS ESTABLISHED BY THE INVITATION WOULD REQUIRE THE EMPLOYMENT OF THE SAME KIND OF ENGINEERING EXPERTNESS. THIS WE DO NOT HAVE. THEREFORE, AS IT IS NOT APPARENT FROM THE RECORD THAT THE ADMINISTRATIVE ACTION WAS ARBITRARY OR CAPRICIOUS, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY. NEITHER DO WE PERCEIVE OF ANY BASIS UPON WHICH WE COULD OBJECT TO THE AWARD MADE TO RUSSEL-HIPWELL, THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION.

FURTHER, WITH RESPECT TO THE QUESTION OF WHETHER BIDS MEET THE GOVERNMENT'S SPECIFICATIONS, IT IS AN ESTABLISHED RULE THAT THESE FACTUAL, TECHNICAL DETERMINATIONS ARE THE PRIMARY RESPONSIBILITY OF THE PROCURING AGENCIES. 17 COMP. GEN. 554, 19 ID. 587 AND 40 ID. 35.

IN YOUR LETTER OF JUNE 3, 1963, YOU POINT OUT THAT RUSSEL-HIPWELL SUBMITTED DETAILED DESIGN DATA RELATIVE TO THE INERTIA FLYWHEEL OVER AND ABOVE THAT REQUESTED IN PARAGRAPH 4 (A) OF THE PROCUREMENT DESCRIPTION; THAT THE DESIGN DETAILS RELATIVE TO THE ADEQUACY OF THE STEEL PROPOSED BY THIS BIDDER WAS QUESTIONABLE IN THE LIGHT OF A TECHNICAL ANALYSIS MADE BY YOU AND SUBMITTED TO THE PROCUREMENT AGENCY; AND THAT DISCUSSIONS WITH GOVERNMENT PERSONNEL HAVE ELICITED THE GENERAL OPINION THAT EVEN THOUGH THE INERTIA FLYWHEEL MAY BE "MARGINAL" THE GOVERNMENT DOES NOT HAVE ANY CLEAR INDICATION EITHER FROM THE DATA OR YOUR ANALYSIS THAT THE FLYWHEEL WOULD DEFINITELY FAIL AND, HENCE, THE GOVERNMENT NEED NOT CONCERN ITSELF WITH AN ANALYSIS OF THE DESIGN. THEREFORE, YOU CONTEND THAT SUCH AN ADMISSION OF "MARGINAL" DESIGN WAS SUFFICIENT CAUSE FOR BID REJECTION AND THAT PROOF OF DEFINITE FAILURE IS NOT REQUIRED. ADDITIONALLY, YOU POINT OUT THAT THE SUBMISSION OF DATA NOT REQUIRED BUT WHICH SHOWED "MARGINAL" DESIGN QUALIFIED THE BID RELATIVE TO QUALITY AND PRICE.

IT IS REPORTED THAT YOUR PROTEST ON THIS POINT IS BASED ON THE PREMISE THAT THE FLYWHEEL MATERIAL WOULD BE "ASTM SPEC A212, GRADE A, NORMALIZED.' HOWEVER, THE ACCEPTED BID ACTUALLY QUALIFIED THE MATERIAL SPECIFICATION BY STATING THAT IT WOULD BE "OF MODIFIED GAUGE AND MECHANICAL PROPERTIES.' THIS BIDDER FURTHER STATED THAT "EACH FLYWHEEL WOULD BE MANUFACTURED, TESTED AND WOULD COMPLY WITH ALL THE REQUIREMENTS OF THE SPECIFICATION.' IT THUS APPEARS THAT SINCE YOUR BASIC ASSUMPTION WAS INCORRECT, THE STRESS ANALYSIS PREPARED BY YOU BASED ON THAT ASSUMPTION MAY NOT BE ACCEPTED AS PROOF THAT THE FLYWHEEL DOES NOT MEET THE SPECIFICATIONS.

WE FIND NOTHING THE THE RECORD TO SHOW THAT THE PROCUREMENT AGENCY BELIEVED THAT THE DESIGN OF THE INERTIA FLYWHEEL WAS "MARGINAL" OR THAT SUCH DESIGN DATA MATERIALLY CONFLICTED WITH THE SPECIFICATIONS OR THE DESCRIPTIVE LITERATURE REQUIREMENTS. NEITHER DO WE FIND ANY BASIS TO CONCLUDE THAT SUCH DESIGN DATA WAS IN EXCESS OF THAT REQUIRED TO BE FURNISHED OR THAT SUCH DATA MATERIALLY QUALIFIED THE BID SO AS TO REQUIRE ITS REJECTION. CF. 39 COMP. GEN. 878; 40 ID. 548; ASPR 2 202.5 (F).

WHILE AN UNINTERRUPTED POWER SUPPLY IS NOT SHOWN IN GROUP 61 OF THE LISTING IN ARMY PROCUREMENT PROCEDURE 6-103.5 (II) AS BEING ONE OF THE CATEGORIES OF SUPPLIES WHICH MAY BE PROCURED THROUGH THE CANADIAN COMMERCIAL CORPORATION, THIS ITEM PROPERLY MAY BE, AND WILL BE, LISTED IN CLASS 6115 OF GROUP 61. WE FIND NOTHING IN SECTION VI, PART V, ASPR, WHICH COULD BE INTERPRETED AS ELIMINATING A CANADIAN PRODUCT FROM EVALUATION ON AN EQUAL BASIS WITH A DOMESTIC PRODUCT SOLELY BECAUSE A FEDERAL STOCK NUMBER HAS NOT BEEN ASSIGNED TO THE PRODUCT WHICH OTHERWISE FALLS WITHIN A LISTED GROUP.