B-153599, MAY 28, 1964

B-153599, MAY 28, 1964

TO RALPH B. BLACK COMPANY, INC.:

WE REFER TO YOUR LETTER DATED FEBRUARY 24, 1964, ALLEGING THAT THE CONTRACTING OFFICER APPROVED DRAWINGS FOR A TRANSFER SWITCH TO BE INSTALLED AT HOLLOMAN AIR FORCE BASE AS PART OF THE MODIFICATION OF BUILDING 1080 WHICH DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS.

ON DECEMBER 13, 1963, THE AIR FORCE MISSILE DEVELOPMENT CENTER, (AFSC), HOLLOMAN AIR FORCE BASE, NEW MEXICO, AWARDED CONSTRUCTION CONTRACT NO. AF 29/600/-4490 TO BUILDING MART, INCORPORATED, P.O. BOX 9368, EL PASO, TEXAS, 79984, FOR THE MODIFICATION OF BUILDING 1080 AT THIS INSTALLATION. THERE IS NO INDICATION OR ALLEGATION THAT THIS AWARD TO BUILDING MART WAS IMPROPER IN ANY MANNER. PARAGRAPH 15-21 OF THE SPECIFICATIONS FOR THIS PROJECT PREPARED BY STEARNS-ROGER CORPORATION, 600 BANNOCK, DENVER, COLORADO, LISTED THE REQUIREMENTS FOR THE TRANSFER SWITCH WHICH WAS TO BE INSTALLED AS PART OF THIS PROJECT. IN SUMMARY, THE SPECIFICATIONS REQUIRED THE TRANSFER SWITCH TO MEET THE FOLLOWING CHARACTERISTICS:

(A) OPERATE BY A SINGLE COIL MECHANISM MOMENTARILY ENERGIZED;

(B) TRANSFER POWER SOURCE WITHIN A SIXTH OF A SECOND;

(C) LOCK MECHANICALLY;

(D) HAVE MAIN CONTACTS SURFACED WITH SILVER; AND

(E) INCLUDE ARCING BARRIERS BETWEEN POLES.

CLAUSE (A) OF PARAGRAPH SC-2 OF THE SPECIFICATIONS PROVIDES THAT THE CONTRACTOR SHALL FURNISH EQUIPMENT DATA REGARDING THE TRANSFER SWITCH TO THE CONTRACTING OFFICER FOR APPROVAL. THIS CLAUSE ALSO PROVIDES THAT CORRECTED DATA SHALL BE RESUBMITTED IN THE EVENT OF REJECTION BY THE CONTRACTING OFFICER. CLAUSE (D) OF PARAGRAPH SC-2 PROVIDES AS FOLLOWS:

"EQUIPMENT CHANGES: DURING THE PERIOD FOLLOWING SUBMITTAL OF EQUIPMENT DATA, RSPL, AND ST. AND TEL, ON THE DATES SPECIFIED FOR EACH IN THESE SPECIAL CONDITIONS, TO THE COMPLETION OF CONSTRUCTION, THE CONTRACTOR SHALL PREPARE AND FORWARD SUPPLEMENTAL SUBMITTALS COMPLETE IN DETAIL AS PREVIOUSLY DESCRIBED, REFLECTING ALL CHANGES, SUBSTITUTIONS, REVISIONS, MODIFICATIONS, ETC., IN MECHANICAL AND ELECTRICAL EQUIPMENT SPECIFIED IN THE VARIOUS TECHNICAL SECTIONS OF THESE SPECIFICATIONS AND LISTED ON THE PRELIMINARY EQUIPMENT LIST, OCCURRING DURING THE COURSE OF CONSTRUCTION AND WHICH ARE AUTHORIZED BY APPROVED CHANGE ORDERS. SUBMITTALS SHALL BE MADE TO THE CONTRACTING OFFICER WITHIN THIRTY (30) DAYS AFTER ISSUANCE OF MODIFICATION.'

BUILDING MART'S EQUIPMENT SUPPLIER FOR THE PROJECT WAS ZORK HARDWARE COMPANY, EL PASO, TEXAS, WHICH REPRESENTED ZENITH ELECTRIC COMPANY, CHICAGO, ILLINOIS, A MANUFACTURER OF A TRANSFER SWITCH. ON JANUARY 3, 1964, BUILDING MART FORWARDED DRAWINGS AND LITERATURE REGARDING THE ZENITH TRANSFER SWITCH, WHICH THE CONTRACTOR PROPOSED TO INSTALL, TO THE CONTRACTING OFFICER FOR APPROVAL, AND ON JANUARY 6, 1964, THE ZENITH TRANSFER SWITCH WAS APPROVED ON THE BASIS OF THE DRAWINGS AND LITERATURE SUBMITTED. BY LETTER DATED JANUARY 8, 1964, YOU PROTESTED THIS APPROVAL TO THE CONTRACTING OFFICER ALLEGING THAT THE DRAWINGS AND LITERATURE SUBMITTED BY BUILDING MART INDICATED THAT THE ZENITH SWITCH DID NOT MEET FIVE SPECIFIC REQUIREMENTS OF THE SPECIFICATIONS WHICH YOU LISTED. SUBSEQUENT TO YOUR PROTEST THIS MATTER WAS REVIEWED AND IT WAS DETERMINED BY THE AIR FORCE THAT THE LITERATURE AND DRAWINGS REGARDING THE TRANSFER SWITCH SHOULD BE RESUBMITTED AND THAT THE APPROVAL OF THE ZENITH SWITCH SHOULD BE WITHDRAWN. ON FEBRUARY 26, 1964, THE CONTRACTING OFFICER ADVISED BUILDING MART OF THESE DETERMINATIONS.

ON MARCH 2, 1964, THERE WAS A DISCUSSION OF THE ZENITH TRANSFER SWITCH ATTENDED BY THE CHIEF DESIGN ENGINEER, THE CONTRACTING OFFICER, THE APPROVING ELECTRICAL ENGINEER, AND A REPRESENTATIVE OF ZENITH ELECTRIC COMPANY, WHICH INDICATED THAT ZENITH INTENDED TO SUPPLY A TRANSFER SWITCH WHICH WOULD MEET OR EXCEED THE TECHNICAL REQUIREMENTS SET FORTH IN THE SPECIFICATIONS. ON MARCH 13, 1964, DUNN ELECTRIC COMPANY, 4602 TITANIC AVENUE, EL PASO, TEXAS, FURNISHED BUILDING MART WITH ZENITH ELECTRIC COMPANY'S FORMAL REPLY TO THE CONTENTIONS RAISED IN YOUR PROTEST TO THE CONTRACTING OFFICER AND A COPY OF TRANSFER TIME TESTS ON THE ZENITH TRANSFER SWITCH PERFORMED BY COOK TECHNOLOGICAL CENTER, 6401 OAKTON STREET, MORTON GROVE, ILLINOIS. AIR FORCE HAS FULLY EVALUATED EACH OF THE FIVE ALLEGATIONS IN YOUR PROTEST TO THE CONTRACTING OFFICER AND HAS DETERMINED THAT THE ZENITH TRANSFER SWITCH WILL MEET OR EXCEED ALL OF THE TECHNICAL REQUIREMENTS OF THE SPECIFICATIONS. AIR FORCE'S EVALUATION OF THE ALLEGATIONS IN YOUR PROTEST IN RELATION TO SPECIFICATION REQUIREMENTS BASED ON INFORMATION FURNISHED BY THE CONTRACTOR AFTER YOUR PROTEST IS AS FOLLOWS:

"/1)"MUST BE OPERATED BY A SINGLE SOLENOID MECHANISM.' THE ZENITH SWITCH IS OPERATED BY A DUAL COIL UNIT. THE EVALUATION OF THIS PROTEST DOES NOT INVOLVE SWITCH FUNCTION OR QUALITY BUT IS BASED ON DESIGN. THE SINGLE SOLENOID MECHANISM MUST DEPEND ON ONE UNIT TO BOTH PUSH OR PULL AND IN THE EVENT OF ELECTRICAL FAILURE, WOULD NOT CHANGE TO DESIRED POSITION. THE DUAL SOLENOID MECHANISM DEPENDS INDEPENDENTLY ON ITS PULL DIRECTION AND IN THE EVENT OF ELECTRICAL FAILURE, HAS A 50 PERCENT BETTER CHANCE TO CHANGE TO DESIRED POSITION. THE END PERFORMANCE, IN EITHER SWITCH UNIT, WILL BE THE SAME; HOWEVER, THE OPERATION AND SAFETY FACTOR OF THE ZENITH SWITCH IS CONSIDERED ADVANTAGEOUS TO THE GOVERNMENT.

"/2) "TIME OF TRAVEL OF TRANSFER IN EITHER DIRECTION, 1/6 OF A SECOND OR LESS.' NOTE: SUPPLIER COVER LETTER, ATTACHMENT NR. 5-2, WHICH STATES "0- 10 MINUTE ADJUSTABLE TIME DELAY ON RETRANSFER TO NORMAL.' THIS STATEMENT IS CONSTRUED TO MEAN THAT ANY INTERVAL OF TIME BETWEEN 0-10 MINUTES CAN BE MAINTAINED AND THUS ENCOMPASS THE SPECIFICATIONS REQUIREMENT.

"/3) "PROTECTED BY ARCING CONTACTS.' LITERATURE FURNISHED, ATTACHMENT NO. 5-3, REVEALS THAT BLOW OUT COILS ARE UTILIZED TO PREVENT ARCING THROUGH THE MEDIA OF MAGNETIC FORCE. ARC CHUTES ARE ALSO PROVIDED, TO FURTHER PREVENT EXCESSIVE ARCING, AND THE ROLLING AND WIPING ACTION OF THE CONTACTS ELIMINATE THE POSSIBILITY OF FREEZING CLOSED. THIS ACTION ASSURES THAT THE CONTACT MEETING POINT AND THE LOAD POINT ARE NOT THE SAME, THUS ELIMINATING THE NEED FOR ARCING TIPS. THE FUNCTIONAL OPERATION OF THIS FACTOR IS CONSIDERED EQUIVALENT OR SUPERIOR TO THE SPECIFICATION REQUIREMENT.

"/4) "MAIN CONTACTS SHALL BE SILVER SURFACED.' THE MANUFACTURER STATED THAT ALL SWITCHES, ABOVE 200 AMP RATE, HAVE SILVER CONTACTS.

"/5) "SWITCH SHALL BE POSITIVELY LOCKED MECHANICALLY ON EITHER SOURCE WITHOUT THE AID OF HOOKS, LATCHES OR SEMI-PERMANENT MAGNETS OR SPRINGS.' THE ZENITH LITERATURE STATES,"THE SWITCH SHALL BE POSITIVELY LOCKED MECHANICALLY. GRAVITY OR SPRING OPERATED SWITCHES ARE NOT EPTABLE.' THE MANUFACTURER HAS FURTHER STATED THE MECHANICAL METHOD BY USE OF STURDY LAMINATED CAMS THAT HAVE A MACHINED NOTCH THAT MECHANICALLY HOLD THE SWITCH IN PLACE. THE LOCK APPLICATION IS CONSIDERED TO BE WITHIN THE SPECIFICATION REQUIREMENT.'

MOREOVER, AIR FORCE ADVISES THAT THE INITIAL APPROVAL OF THE ZENITH SWITCH WOULD HAVE BEEN PROPER IF THERE HAD BEEN A MORE STRINGENT TECHNICAL EVALUATION OF THE ZENITH SWITCH OR IF THE SUPPLIER, ZORK HARDWARE COMPANY, HAD FURNISHED ALL OF THE PERTINENT INFORMATION REGARDING THE ZENITH SWITCH AT THE TIME THIS MATTER WAS INITIALLY SUBMITTED TO THE CONTRACTING OFFICER FOR APPROVAL. WE ARE ALSO ADVISED BY AIR FORCE THAT THE FINAL DETERMINATION OF THE ACCEPTABILITY OF THE ZENITH SWITCH WILL BE BASED ON ACTUAL OPERATIONAL TESTS PERFORMED ON THE SWITCH WHICH IS SCHEDULED FOR DELIVERY ON APRIL 17, 1964, AND THAT YOU WILL BE ADVISED OF THE RESULTS OF THESE TESTS.

THERE IS NO QUESTION THAT BUILDING MART COULD CONTRACTUALLY BE REQUIRED TO FURNISH A TRANSFER SWITCH WHICH CONFORMS EXACTLY TO THE SPECIFICATIONS AND IT IS TRUE THERE IS SOME QUESTION WHETHER THE ZENITH SWITCH CONFORMS EXACTLY TO THE TRANSFER SWITCH DESCRIBED IN THE SPECIFICATIONS. HOWEVER, A REVIEW OF THE RECORD INDICATES THAT AFTER A TECHNICAL EVALUATION OF THE ZENITH SWITCH BASED ON INFORMATION WHICH WAS FURNISHED BY THE CONTRACTOR SUBSEQUENT TO YOUR PROTEST, AND OF ALL THE ASPECTS OF YOUR PROTEST, TO THE CONTRACTING OFFICER, THE AIR FORCE STILL FEELS THAT THE ZENITH SWITCH WILL MEET OR EXCEED ALL OF THE FUNCTIONAL REQUIREMENTS OF THE SPECIFICATIONS. AS THIS DETERMINATION REQUIRES THE USE OF ENGINEERING EXPERTISE WHICH WE DO NOT HAVE, IT WILL NOT BE QUESTIONED BY US UNLESS, CONTRARY TO THE PRESENT CASE, IT IS SHOWN TO BE ARBITRARY OR CAPRICIOUS. ALSO, THE ACCEPTANCE OF THE ZENITH SWITCH WOULD BE CONSISTENT WITH CLAUSE (D) OF PARAGRAPH SC-2 OF THE SPECIFICATIONS, QUOTED ABOVE, WHICH PROVIDES FOR MODIFICATION OR SUBSTITUTIONS IN MECHANICAL OR TECHNICAL EQUIPMENT AS ARE AUTHORIZED BY APPROVED CHANGE ORDERS. IN THESE CIRCUMSTANCES WE FIND NO BASIS TO QUESTION THE LEGALITY OF AN ADMINISTRATIVE DETERMINATION TO ACCEPT THE ZENITH SWITCH.