B-161086, MAR. 8, 1968

B-161086, MAR. 8, 1968

BIDS - SPECIFICATIONS - RESTRICTIVE DECISION TO EMPIRE GENERATOR CORPORATION, SECOND LOW BIDDER, DENYING PROTEST AGAINST ALLEGED RESTRICTIVE SPECIFICATIONS FOR GASOLINE ENGINE POWERED GENERATOR SETS ISSUED BY FEDERAL HIGHWAY ADMINISTRATION. BIDDER WHO PROTESTS THAT SPECIFICATIONS WERE RESTRICTIVE BUT WHO WAS SUCCESSFUL UNDER SECOND INVITATION AFTER ALL BIDS WERE REJECTED UNDER FIRST INVITATION AND PROCUREMENT READVERTISED UNDER PERFORMANCE-TYPE SPECIFICATIONS MUST HAVE PROTEST DENIED SINCE ENGINE WAS COMMERCIALLY AVAILABLE FROM SEVERAL SOURCES AND SEVERAL BIDS COMPLYING WITH REQUIREMENTS WERE RECEIVED UNDER FIRST INVITATION. ALTHOUGH THERE MAY HAVE BEEN AN OVERSTATEMENT OF THE MINIMUM HORSEPOWER REQUIREMENTS, IN VIEW OF REJECTION AND READVERTISEMENT NO ACTION BY GAO IS REQUIRED.

TO EMPIRE GENERATOR CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING ALLEGED RESTRICTIVE SPECIFICATIONS IN CONNECTION WITH INVITATIONS FOR BIDS NOS. 67-53 AND 68- 2, ISSUED BY THE FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION.

THE RECORD SHOWS THAT INVITATION NO. 67-53, ISSUED ON JUNE 5, 1967, REQUESTED BIDS FOR 15 GASOLINE-ENGINE-POWERED GENERATOR SETS WITH A POWER RATING OF NOT LESS THAN 12 KW FOR STANDBY SERVICE, 10 KW FOR CONTINUOUS LOAD AT SEA LEVEL, AND CAPABLE OF PRODUCING A MINIMUM OF 6 KW CONTINUOUS LOAD AT 10,000 FEET ELEVATION. ONE OF THE SPECIFICATION REQUIREMENTS WAS THAT THE ENGINE DEVELOP A MINIMUM OF 30 HORSEPOWER AT 1,800 RPM. DURING THE PERIOD OF TIME THE PROCUREMENT WAS BEING ADVERTISED, NO MANUFACTURER OR OTHER PROSPECTIVE BIDDER REQUESTED A CHANGE IN THE SPECIFICATION FOR THE REASON THAT THE SPECIFICATIONS WERE RESTRICTIVE.

FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE LOW BID WAS IN THE TOTAL AMOUNT OF $22,248. YOUR BID, IN THE TOTAL AMOUNT OF $22,440 WAS SECOND LOW, AND OFFERED A WISCONSIN MODEL VG4 ENGINE RATED AT 32 HORSEPOWER AT 1,800 RPM. YOU ALSO SUBMITTED WITH THE BID A LETTER DATED JUNE 21, 1967, PROTESTING THE SPECIFICATION REQUIREMENT FOR AN ENGINE WITH A MINIMUM OF 30 HORSEPOWER. IT WAS STATED THAT THE STANDARD WISCONSIN MODEL VH4 22-HORSEPOWER ENGINE WOULD MEET THE ELECTRICAL AND ALTITUDE REQUIREMENTS, AND WOULD RESULT IN A REDUCTION OF $70 PER UNIT IN THE PRICE BID. IT IS FURTHER STATED THAT OTHER MANUFACTURERS, INCLUDING THREE OF THE OTHER FOUR FIRMS WHICH SUBMITTED BIDS ON THIS PROCUREMENT, USED THE WISCONSIN VH4 OR THE VF4 TO ACHIEVE 10 KW.

BY LETTER DATED JUNE 27, 1967, YOU FURTHER ADVISED THE CONTRACTING OFFICER THAT THE BID RESULTS SHOWED THAT YOU WERE WITHIN A VERY FEW DOLLARS OF BEING THE LOW BIDDER, AND THAT YOU WOULD HAVE BEEN LOW IF PERMITTED TO USE THE WISCONSIN VH4 ENGINE. YOU FURTHER ADVISED THAT WISCONSIN MOTORS HAD JUST ADVISED YOU THAT BY USING A SPECIAL ALTITUDE HEAD ON THEIR VH4 ENGINE, THEY WOULD BE ABLE TO COMPENSATE FOR A SUBSTANTIAL PART OF THE ALTITUDE AND JUSTIFY A RATING OF 9.65 KW AT 10,000 FEET.

IT WAS DETERMINED THAT ALL BIDS RECEIVED WERE NONRESPONSIVE FOR REASONS OTHER THAN THE HORSEPOWER OF THE ENGINE, AND THEY WERE REJECTED. IN VIEW OF YOUR PROTEST, THREE OF THE PREVIOUS BIDDERS WERE CONTACTED REGARDING THEIR VIEWS ON THE 30-HORSEPOWER-ENGINE REQUIREMENT. WHILE NONE OF THE THREE FIRMS CONTACTED LISTED ANY OBJECTION TO THE 30-HORSEPOWER REQUIREMENT, THEY EXPRESSED THE OPINION THAT IF PERFORMANCE-TYPE SPECIFICATIONS WERE PROVIDED, THE BURDEN WOULD BE PLACED ON THE BIDDER TO SUPPLY AN ENGINE TO FIT THE NEED, NAMELY THE OUTPUT OF 6 KW (CONTINUOUS RATING) OF ELECTRICAL POWER AT 10,000 FEET ELEVATION. THEREFORE, THE RESOLICITATION, INVITATION FOR BIDS NO. 68-2, MODIFIED THE SPECIFICATIONS FOR THE ENGINE TO REQUIRE THAT IT "SHALL DEVELOP SUFFICIENT HORSEPOWER TO PRODUCE NOT LESS THAN 6 KILOWATTS (CONTINUOUS RATING) AT 10,000 FEET ELEVATION.'

IN RESPONSE TO THE READVERTISEMENT, YOU SUBMITTED A BID OF $21,975, AS COMPARED TO YOUR EARLIER BID OF $22,440. THE LOW BIDDER UNDER THE FIRST INVITATION (ONAN DIVISION OF STUDEBAKER CORPORATION) QUOTED THE SAME PRICE, $22,248. OF THE OTHER THREE FIRMS WHICH SUBMITTED BIDS UNDER BOTH INVITATIONS AND WHOM YOU INDICATED WERE PREJUDICED BY THE ORIGINAL SPECIFICATIONS, ONE REDUCED ITS PRICE, ANOTHER INCREASED ITS PRICE, AND THE THIRD QUOTED THE SAME PRICE.

IT WAS DETERMINED THAT YOUR BID UNDER THE SECOND INVITATION WAS RESPONSIVE AND, THEREFORE, THE AWARD WAS MADE TO YOU AS THE LOW RESPONSIBLE BIDDER, ON SEPTEMBER 21, 1967.

ON THE BASIS OF THE FACTS SET FORTH ABOVE, WE CANNOT AGREE WITH YOUR CONTENTION THAT THE SPECIFICATION WITH RESPECT TO THE 30 HORSEPOWER ENGINE UNDER THE FIRST INVITATION WAS UNDULY RESTRICTIVE. APPARENTLY, THE TYPE OF ENGINE SPECIFIED WAS COMMERCIALLY AVAILABLE FROM VARIOUS SOURCES, AS IS INDICATED BY THE FACT THAT YOU AND SEVERAL OTHER FIRMS WERE ABLE TO AND DID SUBMIT BIDS IN COMPLIANCE THEREWITH. THE MOST THAT CAN BE SAID IS THAT THERE WAS A POSSIBLE OVERSTATEMENT OF THE MINIMUM HORSEPOWER OF THE ENGINE REQUIRED TO MEET THE POWER NEEDED.

IN ANY EVENT, ALL BIDS UNDER THE FIRST INVITATION WERE REJECTED AND THE PROCUREMENT READVERTISED UNDER PERFORMANCE-TYPE SPECIFICATIONS AND AWARD WAS MADE TO YOU. THEREFORE, NO FURTHER ACTION WOULD APPEAR NECESSARY BY THIS OFFICE IN THE MATTER.