B-161111, MAY 26, 1967

B-161111, MAY 26, 1967

TO THE SECRETARY OF THE INTERIOR:

BY LETTER DATED APRIL 19, 1967, MR. GEORGE E. ROBINSON, DEPUTY ASSISTANT SECRETARY OF THE INTERIOR, FURNISHED OUR OFFICE WITH A REPORT ON THE PROTEST OF MILLER INDUSTRIALS AGAINST AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. ALB 67-17 ISSUED ON JANUARY 30, 1967, BY THE UNITED STATES BUREAU OF MINES, ALBANY, OREGON, ON THE GROUND THAT IT IS THE LOWEST RESPONSIVE BIDDER. A SUPPLEMENTAL REPORT WAS SUPPLIED LATER AT OUR REQUEST, AND A MEETING BETWEEN BUREAU OF MINES PERSONNEL AND REPRESENTATIVES OF OUR OFFICE WAS HELD IN ORDER TO CLARIFY THE INITIAL AND SUPPLEMENTAL REPORTS.

THE INVITATION REQUESTED BIDS FOR FURNISHING AIR POLLUTION CONTROL DEVICES, AND FIVE BIDS WERE RECEIVED AND OPENED AS SCHEDULED. THE THE LOWEST BID WAS RECEIVED FROM MILLER INDUSTRIALS IN THE AMOUNT OF $45,975 AND THE SECOND LOW BID WAS RECEIVED FROM LINN PACIFIC MECHANICAL CONTRACTOR, INC., IN THE AMOUNT OF $61,237. HOWEVER, A DETERMINATION WAS MADE BY THE CONTRACTING OFFICER THAT THE MILLER BID WAS INADEQUATE BECAUSE IT DID NOT PROVIDE SUFFICIENT CAPACITY TO ADEQUATELY HANDLE THE VOLUME AND TYPE OF GASES PRODUCED BY THE FURNACES AND KILNS LISTED IN THE INVITATION. IT IS THEREFORE PROPOSED THAT THE MILLER BID BE REJECTED AS NONRESPONSIVE TO THE INVITATION SPECIFICATIONS AND THAT AWARD BE MADE TO LINN PACIFIC. AWARD HAS BEEN POSTPONED, HOWEVER, PENDING THE RESOLUTION OF THE MILLER PROTEST.

SECTION I OF THE SPECIFICATIONS LISTS THE VARIOUS TYPES OF FURNACES AND KILNS FOR WHICH THE AIR POLLUTION CONTROL DEVICES ARE REQUIRED. WITH REGARD TO THE PERFORMANCE REQUIRED OF PROPOSED SYSTEMS, SECTION II OF THE SPECIFICATIONS PROVIDES AS FOLLOWS:

"II. PARTICLE COLLECTOR OR COLLECTORS SPECIFICATIONS

"1.00 EFFICIENCY FOR ATMOSPHERIC EFFLUENTS FROM KILNS

THE PARTICLE COLLECTOR SHALL EXCEED 96 PERCENT EFFICIENCY (BY WEIGHT) FOR PARTICULATE MATTER OF 2 MICRONS DIAMETER AND LARGER AND ALSO HAVE CAPABILITIES TO REMOVE PARTICLES AS SMALL AS 0.8 MICRON DIAMETER.

"2.00 EFFICIENCY FOR ELECTRIC FURNACE ATMOSPHERIC EFFLUENT

THE PARTICLE COLLECTOR SHALL EXCEED 96 PERCENT EFFICIENCY (BY WEIGHT) FOR PARTICULATE MATTER OF 0.4 MICRON DIAMETER AND LARGER, AND ALSO HAVE CAPABILITIES TO REMOVE PARTICLES AS SMALL AS 0.3 MICRON DIAMETER.

"3.00 CAPACITY FOR KILN ATMOSPHERIC EFFLUENT

THE PARTICLE COLLECTOR FOR KILN E SHALL BE SIZED TO REMOVE AT LEAST 20 POUNDS OF PARTICULATE MATTER PER HOUR, ALSO THE MAXIMUM WEIGHT OF PARTICULATE OF 2.0 MICRON DIAMETER AND LARGER THAT CAN BE REMOVED FROM THE EFFLUENT IN 15 MINUTES SHALL BE SPECIFIED.

"4.00 CAPACITY FOR ELECTRIC FURNACE ATMOSPHERIC EFFLUENT

THE PARTICLE COLLECTOR FOR FURNACE A SHALL BE SIZED TO REMOVE AT LEAST 20 POUNDS OF PARTICULATE PER HOUR, ALSO THE MAXIMUM WEIGHT OF PARTICULATE OF 0.4 MICRON DIAMETER AND LARGER THAT CAN BE REMOVED FROM THE EFFLUENT IN 15 MINUTES SHALL BE SPECIFIED.

"5.00 COMBINED CAPACITIES OF PARTICULATE COLLECTORS

THE PARTICULATE COLLECTOR OR COLLECTORS THAT FURNACE A AND KILN E ARE CONNECTED TO SHALL BE SUCH THAT BOTH KILN E AND FURNACE A CAN BE OPERATED SIMULTANEOUSLY WITH MAXIMUM EMISSIONS AND MEET EFFICIENCIES STATED IN PARAGRAPHS 1.00 AND 2.00.

"6.00 PROVISIONS FOR SAMPLING EFFLUENTS

PROVISIONS SHALL BE MADE FOR MONITORING AND SAMPLING EFFLUENT ENTERING AND LEAVING PARTICULATE COLLECTOR OR COLLECTORS. SUCH PROVISIONS SHALL BE READILY ACCESSIBLE AND ADAPTABLE FOR USING STANDARD SAMPLING DEVICES.

"7.00 TEMPERATURE SAFETY DEVICES

ANY AIR CLEANING EQUIPMENT OR BLOWERS SHALL BE PROTECTED FROM EXCESSIVE TEMPERATURES WITH ADEQUATE SAFETY DEVICES SUCH AS TEMPERATURE ACTUATED AUTOMATIC CUT OFF SWITCHES AND/OR BY PASS VALVES AND STACKS.'

SECTION III OF THE SPECIFICATIONS ADVISED BIDDERS THAT INDIVIDUAL SYSTEMS FOR EACH FURNACE OR KILN UNIT, A COMBINATION OF SYSTEMS FOR TWO OR MORE UNITS, OR A CENTRAL SYSTEM FOR ALL UNITS COULD BE PROPOSED. THE REMAINDER OF THE SPECIFICATIONS SETS OUT GENERAL INFORMATION WHICH IS NOT RELATED TO THE ACTUAL PERFORMANCE OF THE AIR POLLUTION CONTROL DEVICES. CONCERNING INFORMATIONAL DATA, SECTION 6.01 OF THE SPECIFICATIONS PROVIDE:

"A PRELIMINARY DRAWING OR SKETCH SHOWING LOCATION OF PROPOSED AIR CLEANING EQUIPMENT, ASSOCIATED DUCT WORK AND FUME COLLECTORS SHALL BE INCLUDED WITH THE BID.'

THE MILLER BID PROPOSED A SYSTEM WHICH WOULD PROVIDE SIMULTANEOUS CONTROL OF FURNACE A AND KILN E, WHILE ALSO HANDLING AIR POLLUTION CONTROL OF THE OTHER LISTED KILNS AND FURNACES. A LETTER SUBMITTED WITH THE MILLER BID STATED THAT ITS PROPOSED SYSTEM WOULD MEET THE REQUIREMENTS SET OUT IN SPECIFICATION ITEMS 1.00 THROUGH 7.00 WITH REGARD TO EFFICIENCY AND CAPACITY. THE UNIT OFFERED BY MILLER IS A NO. 3-1400 A.E. REES CLOTH TUBE FILTER. ACCORDING TO LITERATURE VOLUNTARILY SUBMITTED WITH THE MILLER BID, THIS UNIT HAS 4,200 SQUARE FEET OF CLOTH AREA FOR THE PROCESSING OF POLLUTED AIR WHICH, WITH AN AIR-TO-CLOTH RATIO OF 2.5 TO 1 --- THE RATIO SPECIFIED IN THE MILLER BID--- WOULD RESULT IN A CAPACITY OF 10,500 CUBIC FEET PER MINUTE (C.F.M.) OF EFFLUENT FROM THE FURNACES AND KILNS. THIS LATTER FIGURE MAY BE FOUND IN A CHART CONTAINED IN THE MILLER LITERATURE.

IN A MEMORANDUM DATED MARCH 14, 1967, JUSTIFYING THE PROPOSED REJECTION OF THE MILLER BID AND THE PROPOSED AWARD TO THE SECOND LOW BIDDER, LINN PACIFIC, THE BUREAU OF MINES PROJECT ADVISER STATED AS FOLLOWS:

"ONLY ONE BID AND PROPOSAL CONTAINS A DEVICE THAT IS CAPABLE OF REMOVING OBNOXIOUS AND DANGEROUS GASES FROM THE KILN EFFLUENT, THIS IS THE SCRUBBER LISTED BY LINN PACIFIC. THE SCRAP AUTOS NOTED AS BEING PROCESSED IN THE BID INVITATION, DO CONTAIN SULFUR (IN RUBBER, OILS, GREASE, AND ELECTRICAL COMPONENTS) AND PHOSPHOROUS IN UNDERCOATINGS, PRIMERS, AND PAINTS.

"PARTICULATE MATTER CAN BE REMOVED BY THE BAGHOUSES PROPOSED BY THE OTHER BIDDERS. HOWEVER, TWO OF THESE HAVE ONLY A MARGINAL CAPACITY AS REGARDS THE SQUARE FEET OF CLOTH AVAILABLE IN THE BAGHOUSE. OUR CALCULATIONS, USING A RATIO OF 2.5/1 (CFM AIR TO SQUARE FEET OF CLOTH) AS RECOMMENDED IN BROCHURES ATTACHED TO THE BIDS WOULD INDICATE THAT A RATE OF 12,050 CFM OF AIR WOULD BE NEEDED TO COOL THE AIR TO A SAFE LEVEL, 250 DEGREES F. THE BIDDERS HAVE PROPOSED THE USE OF BAGHOUSES THAT WOULD HAVE A CAPACITY OF 10,500 CFM FOR MILLER INDUSTRIAL AND 10,000 FOR CAROTHERS. THIS WOULD PROBABLY CAUSE A VERY LOW BAG LIFE IN THE BAGHOUSES.

"IT IS RECOMMENDED THAT THE BID OF LINN PACIFIC BE ACCEPTED AS BEING THE ONLY SYSTEM THAT CONTAINS THE POTENTIAL FOR REMOVAL OF BOTH GAS AND PARTICULATE POLLUTANTS.'

ATTACHED TO A LATER MEMORANDUM DATED MARCH 23, 1967, ARE CALCULATIONS PERFORMED BY THE PROJECT ADVISER CONCLUDING THAT 21,400 C.F.M. OF AIR AT 250 DEGREES F., AS OPPOSED TO THE 12,050 C.F.M. FIGURE MENTIONED IN THE ABOVE-QUOTED MEMORANDUM, ARE NECESSARY TO CONTROL THE GASES EMITTED FROM FURNACE A AND KILN E COMBINED. THE CALCULATIONS NECESSARY TO ARRIVE AT THIS 21,400 C.F.M. FIGURE ARE QUITE COMPLEX, REQUIRING THE USE OF VARIOUS INDUSTRY ACCEPTED SOURCE MATERIALS IN ORDER TO ESTIMATE VARIOUS VALUES USED IN CALCULATING THE ESTIMATED VOLUME OF GASES EXPECTED TO BE EMITTED FROM THE FURNACES AND KILNS. WE ARE INFORMALLY ADVISED THAT THE USE OF DIFFERENT SOURCE MATERIALS COULD POSSIBLY RESULT IN SOME DIFFERENCE IN THE FINAL VOLUME FIGURES.

WE DO NOT QUESTION THE CONCLUSION THAT THE C.F.M. REQUIREMENTS OUTLINED ABOVE ARE NECESSARY FOR THE PROPER FUNCTIONING OF THE EQUIPMENT BEING PROCURED. WE ALSO DO NOT QUESTION THE FACT THAT PROPOSED AIR POLLUTION CONTROL DEVICES MUST BE ENTIRELY CAPABLE OF REMOVING OBNOXIOUS AND DANGEROUS GASES FROM THE FURNACE AND KILN EFFLUENTS. HOWEVER, THE INVITATION SPECIFICATIONS DO NOT SET OUT ANY SPECIFIC C.F.M. REQUIREMENTS NOR DO THEY INFORM BIDDERS HOW THE C.F.M. REQUIREMENTS WILL BE CALCULATED FOR PURPOSES OF BID EVALUATION. ALSO, WHILE THE SPECIFICATIONS MENTION THAT UNBURNED AUTOMOBILE SCRAP WILL BE FED INTO KILNS D AND E, THEY DO NOT REQUIRE THAT PROPOSED SYSTEMS BE CAPABLE OF HANDLING SULPHUR OR OTHER OBNOXIOUS OR DANGEROUS GASES RESULTING FROM SUCH SCRAP. ON THE CONTRARY, THE SPECIFICATIONS REFER ONLY TO SIZES AND AMOUNTS OF ,PARTICULATE MATTER.' AS EVIDENCED BY THE DIFFERENT FIGURES QUOTED IN THE MARCH 14 AND MARCH 23 MEMORANDA FROM THE PROJECT ADVISER AND BY THE FACT THAT ONLY ONE OUT OF THE FIVE BIDDERS--- ALL APPARENTLY KNOWLEDGEABLE IN THE FIELD OF AIR POLLUTION CONTROL --- PROPOSED A SYSTEM WHICH WAS SATISFACTORY TO THE GOVERNMENT AIR POLLUTION ENGINEERS INSOFAR AS C.F.M. CAPACITY WAS CONCERNED, DIFFERING ESTIMATES OF C.F.M. CAPACITY ARE ENTIRELY POSSIBLE.

THE RULES OF COMPETITIVE BIDDING REQUIRE THAT ALL BIDDERS BID ON AN EQUAL BASIS. BIDDERS CANNOT COMPETE ON AN EQUAL BASIS UNLESS THEY KNOW IN ADVANCE THE BASIS ON WHICH THEIR BIDS WILL BE EVALUATED. 36 COMP. GEN. 380; 41 ID. 76, 81. THEREFORE, THE METHOD BY WHICH BIDS ARE TO BE EVALUATED MUST BE SET OUT IN THE INVITATION AND THE SPECIFICATIONS MUST BE SUFFICIENTLY DEFINITE TO PUT BIDDERS ON NOTICE OF WHAT IS NECESSARY TO FULFILL THE MINIMUM NEEDS OF THE GOVERNMENT. 41 U.S.C. 253 (A); FEDERAL PROCUREMENT REGULATIONS (FPR) SECTION 1 1.305.

WE NOTE THAT THE INVITATION DID NOT REQUIRE THE SUBMISSION OF DESCRIPTIVE LITERATURE WITH THE BIDS; NOR DID IT PROVIDE THAT BIDS WOULD BE EVALUATED ON THE BASIS OF SUBMITTED DESCRIPTIVE LITERATURE. HOWEVER, MILLER INDUSTRIAL'S BID WAS DETERMINED TO BE NONRESPONSIVE BASED UPON A REVIEW OF ITS DESCRIPTIVE LITERATURE VOLUNTARILY SUBMITTED. WHILE SUCH LITERATURE DID CONSTITUTE A PART OF ITS BID AND QUALIFIED IT ACCORDINGLY, A REJECTION BASED UPON THE TECHNICAL DEFECTS OF THE INFORMATIONAL DATA WAS NOT AUTHORIZED BY THE INVITATION SINCE THOSE DEFECTS DID NOT CONSTITUTE DEVIATIONS FROM THE ADVERTISED SPECIFICATIONS. IF TECHNICAL OR DESCRIPTIVE DATA WAS REQUIRED FOR BID EVALUATION PURPOSES, SUCH REQUIREMENT SHOULD HAVE BEEN INCLUDED IN THE ADVERTISED SPECIFICATIONS. SEE FPR 1-2.202-5 (D); 38 COMP. GEN. 59, 64.

IN THE PRESENT CASE, APPARENTLY IT IS NECESSARY THAT THE NEEDED AIR POLLUTION CONTROL DEVICES BE CAPABLE OF REMOVING OBNOXIOUS AND DANGEROUS GASES FROM THE KILN EFFLUENT AND THAT THEY HAVE A MINIMUM 21,400 C.F.M. CAPACITY. HOWEVER, NEITHER OF THESE REQUIREMENTS IS INCLUDED IN THE SPECIFICATIONS. FOUR OUT OF THE FIVE BIDDERS SUBMITTING BIDS PROPOSED SYSTEMS WHICH DID NOT MEET THE AFTER DETERMINED MINIMUM CAPACITY REQUIREMENTS AND WHICH WERE NOT CAPABLE OF HANDLING OBNOXIOUS AND DANGEROUS GASES, ALTHOUGH APPARENTLY MOST, IF NOT ALL, OF THESE BIDDERS ARE CAPABLE OF SUPPLYING SYSTEMS WHICH COULD MEET THESE REQUIREMENTS. THEREFORE CONCLUDE, ON THE BASIS OF THE RECORD AS SUPPLEMENTED, THAT THE INVITATION PRECLUDED BIDDERS FROM BIDDING ON AN EQUAL BASIS AND THAT IT SHOULD BE CANCELED AND THE PROCUREMENT READVERTISED UNDER PROPER DETAILED SPECIFICATIONS SETTING OUT THE MINIMUM ACCEPTABLE C.F.M. CAPACITIES, THE NATURE AND KIND OF ANY DANGEROUS AND OBNOXIOUS GASES TO BE HANDLED BY PROPOSED SYSTEMS, AND ANY OTHER REQUIREMENTS DETERMINED TO BE NECESSARY FOR ADEQUATE FUNCTIONING OF THE SYSTEMS.

THE PAPERS FORWARDED WITH YOUR APRIL 19, 1967, LETTER ARE RETURNED HEREWITH AS REQUESTED.