B-157718, OCT. 1, 1965

B-157718, OCT. 1, 1965

TO MR. L. C. BUXTON, CONTRACTING OFFICER, VETERANS ADMINISTRATION HOSPITAL:

BY LETTER DATED SEPTEMBER 21, 1965, WITH ENCLOSURES, YOU REQUESTED OUR DECISION ON THE PROTEST OF THE INDEPENDENT BOILER AND TANK COMPANY AGAINST THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN ITSELF UNDER AN INVITATION FOR BIDS COVERING THE INSTALLATION OF BOILER PLANT EQUIPMENT AT THE VETERANS ADMINISTRATION HOSPITAL, MARION, INDIANA.

YOU ADVISE THAT ALL OF THE EQUIPMENT IN THE BOILER PLANT, INCLUDING THREE COAL-FIRED BOILERS, AND AUXILIARY EQUIPMENT, ARE BEING REPLACED UNDER SUCCESSIVE CONTRACTS. THE FIRST CONTRACT FOR REPLACEMENT OF BOILER NO. 1, TOGETHER WITH AUXILIARY EQUIPMENT, WAS AWARDED TO THE INDEPENDENT BOILER AND TANK COMPANY ON MARCH 17, 1964. THIS CONTRACT WAS COMPLETED ON NOVEMBER 13, 1964. BIDS FOR THE REPLACEMENT OF BOILER NO. 2 AND CERTAIN AUXILIARY EQUIPMENT WERE SOLICITED IN JANUARY 1965. THIS AWARD WAS ALSO MADE TO INDEPENDENT ON APRIL 1, 1965, AND THE COMPLETION DATE FOR SUCH WORK IS SCHEDULED FOR JULY 1966. ON JUNE 16, 1965, BIDS WERE SOLICITED FROM 15 FIRMS FOR REPLACEMENT OF BOILER NO. 3 AND CERTAIN AUXILIARY EQUIPMENT. THIS INVITATION CALLED FOR CONSIDERABLY MORE WORK THAN THAT PERFORMED UNDER THE PREVIOUS CONTRACTS AWARDED TO INDEPENDENT. UPON THE OPENING OF BIDS ON JULY 16, 1965, IT APPEARS THAT POWER AND COMBUSTION, INC., SUBMITTED THE LOWEST BID IN THE AMOUNT OF $198,969, AND THAT INDEPENDENT SUBMITTED THE NEXT LOWEST BID IN THE AMOUNT OF $214,444. SINCE THE CAPACITY OF THE LOW BIDDER WAS IN QUESTION, THE MATTER OF ITS RESPONSIBILITY WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR DETERMINATION AS TO WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED. ON AUGUST 27, 1965, A CERTIFICATE OF COMPETENCY WAS ISSUED TO POWER AND COMBUSTION, INC. YOU STATE THAT THE INDEPENDENT PROTEST RAISES THE FOLLOWING POINTS:

"1. THEY CLAIM THAT AREAS OF VAGUENESS APPEAR THROUGHOUT THE SPECIFICATION AND DRAWINGS, THUS ALLOWING UNREASONABLE LATITUDE IN BIDDING.

"2. TWO CONTRACTORS WILL BE WORKING IN THE SAME IMMEDIATE AREA ON THE SAME PIPING, WIRING, C., POSING MANY PROBLEMS NOT POSSIBLY FORESEEABLE BY THE BIDDERS.

"3. THAT OUR HOSPITAL MAY FIND ITSELF ATTEMPTING TO OPERATE WITH ONLY ONE BOILER AND NO STANDBY UNIT.'

WE BELIEVE THAT YOUR RESPONSES, STATED BELOW, TO THESE POINTS OF PROTEST JUSTIFY OUR DENIAL OF THE PROTEST:

"POINT 1: OUR SPECIFICATION IS A PERFORMANCE TYPE SPECIFICATION. SPECIFICATION, PARTICULARLY A PERFORMANCE TYPE, IS EVER ALL INCLUSIVE AS TO EVERY SPECIFIC DETAIL. IF ONE COULD BE WRITTEN, IT WOULD BE MUCH TOO RESTRICTIVE. EVEN IF WE MAY BE REQUIRED TO WRITE SOME CHANGE ORDERS AT AN ADDITIONAL COST, WE ARE CONFIDENT THE TOTAL AMOUNT INVOLVED WILL NOT APPROACH THE DIFFERENCE BETWEEN THE TWO BIDS.

"POINT 2: OUR SPECIFICATIONS (SECTION 700-1-A AND 700-1-B) PROVIDE THAT NO WORK WILL START ON BOILER NO. 3 UNTIL NEW BOILER NO. 2 IS IN OPERATION. FOR THIS REASON, THE TWO CONTRACTORS WILL NOT BE WORKING IN THE SAME IMMEDIATE AREA FOR ANY APPRECIABLE AMOUNT OF TIME, SO THAT NO CONFLICTS SHOULD ARISE. IT IS TRUE THAT POWER AND COMBUSTION, INC. WOULD BE WORKING ON THE AUXILIARY EQUIPMENT OUTLINED UNDER SECTION 709 7 OF THE SPECIFICATIONS BUT THIS IS IN A SEPARATE WORK AREA WITH NO FORESEEABLE CONFLICT.

"POINT 3: SECTIONS 700-1-A AND 700-1-B OF THE SPECIFICATIONS PROVIDE THAT WORK MAY NOT BE STARTED ON BOILER NO. 3 UNTIL BOILER NO. 2 IS IN OPERATION AND ALSO PROVIDES THAT THE CONTRACTOR MUST MAKE ALL CHANGES IN THE BOILER PLANT REQUIRED TO KEEP BOILERS 1 AND 2 IN OPERATION. THUS, WE WILL NOT BE FACED WITH OPERATION OF THE PLANT WITH ONLY ONE BOILER.'

ADDITIONALLY, WE WISH TO OBSERVE AS TO POINT NO. 1 THAT PERFORMANCE TYPE SPECIFICATIONS OF THE SAME BASIC CHARACTER ARE INVOLVED IN THE THREE BOILER JOBS; THAT THE DRAFTING OF THESE SPECIFICATIONS WAS THE HOSPITAL'S RESPONSIBILITY AS WELL AS THE INTERPRETATION THEREOF, AND THAT INDEPENDENT'S COMPLAINT AS TO THEIR DEFINITENESS IS NOT WELL TAKEN SINCE IT HAS PERFORMED OR WILL PERFORM THE OTHER TWO CONTRACTS PURSUANT THERETO WITHOUT APPARENT OBJECTION OR DIFFICULTY.

RESPECTING POINT NO. 2, WE NOTE THAT THE SPECIFICATIONS ACCOMPANYING THE INSTANT INVITATION CONTAIN THE FOLLOWING GENERAL PROVISION WHICH, WE ASSUME, WAS, AND IS, A PART OF THE TWO INDEPENDENT CONTRACTS:

"14 OTHER CONTRACTS

"THE GOVERNMENT MAY UNDERTAKE OR AWARD OTHER CONTRACTS FOR ADDITIONAL WORK, AND THE CONTRACTOR SHALL FULLY COOPERATE WITH SUCH OTHER CONTRACTORS AND GOVERNMENT EMPLOYEES AND CAREFULLY FIT HIS OWN WORK TO SUCH ADDITIONAL WORK AS MAY BE DIRECTED BY THE CONTRACTING OFFICER. THE CONTRACTOR SHALL NOT COMMIT OR PERMIT ANY ACT WHICH WILL INTERFERE WITH THE PERFORMANCE OF WORK BY ANY OTHER CONTRACTOR OR BY GOVERNMENT EMPLOYEES.'

HENCE, THE SITUATION COMPLAINED OF WAS CONTEMPLATED BY THE PARTIES AND THE CONTRACTS SPECIFICALLY IMPOSE ENFORCEABLE OBLIGATIONS OF NONINTERFERENCE ON INDEPENDENT AS WELL AS OTHER CONTRACTORS.

AS TO POINT NO. 3, WE HAVE NO COMMENT TO OFFER OTHER THAN TO OBSERVE THAT THE ADMINISTRATION OF CONTRACTS IS THE CONCERN OF THE CONTRACTING AGENCY AND NOT OF AN UNSUCCESSFUL BIDDER.

THE PROTEST, THEREFORE, IS DENIED AND AWARD UNDER THE INVITATION SHOULD BE MADE TO THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER.