B-172142, JUN 28, 1971

B-172142, JUN 28, 1971

BID PROTEST - BID RESPONSIVENESS - EXPERIENCE DATA DENYING PROTEST OF ALLIS-CHALMERS AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AN IFB ISSUED BY THE ARMY CORPS OF ENGINEERS, GALVESTON, FOR DRAINAGE PUMPING EQUIPMENT. PROTESTANT'S CLAIM THAT THE ENGINES OFFERED BY FAIRBANKS MORSE, INC., LOW BIDDER, DO NOT MEET THE EXPERIENCE REQUIREMENTS OF THE SOLICITATION IN THAT THEY HAVE NOT BEEN OPERATING CONTINUOUSLY AT MINIMUM PERFORMANCE LEVELS, IS NOT VALID BECAUSE THE EXPERIENCE REQUIREMENT IN THE INSTANT CASE IS NOT THE SAME AS THE ONE IN THE PREVIOUSLY CANCELLED INVITATION. THERE, FAILURE TO MEET THE CONTINUOUS OPERATION STANDARD PROVIDED A BASIS FOR CANCELLATION OF THE SOLICITATION IN B-170266 (DEC. 30, 1970). HERE, THE EXPERIENCE DATA MUST BE SUBMITTED ON AN HOURS PER YEAR BASIS IN ORDER TO INDICATE THAT THE ENGINES ARE IN CURRENT USE. BEYOND THAT, THERE IS NO REQUIREMENT FOR CONTINUOUS OPERATION. IN RESPONSE TO THE ALLEGATION THAT THERE HAVE BEEN NUMEROUS INSTANCES IN WHICH THE ENGINES HAVE NOT BEEN OPERATING DUE TO MAINTENANCE PROBLEMS, THE OVERRIDING QUESTION IS WHETHER THE ENGINES ACCUMULATED THE REQUIRED NUMBER OF HOURS OF SATISFACTORY PERFORMANCE.

TO ALLIS-CHALMERS:

REFERENCE IS MADE TO YOUR TELEFAX OF MARCH 11, 1971, AND LETTERS OF MARCH 11 AND 17, 1971, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) DACW64-71-B-0060 (RESOLICITATION), ISSUED BY THE DEPARTMENT OF THE ARMY, GALVESTON DISTRICT, CORPS OF ENGINEERS.

THE SUBJECT INVITATION, ISSUED SEPTEMBER 15, 1970, REQUESTED BIDS FOR THE DESIGN, MANUFACTURE AND DELIVERY TO PORT ARTHUR, TEXAS, OF DRAINAGE PUMPING EQUIPMENT AND MATERIALS FOR A PUMPING STATION, INCLUDING THE SERVICES OF AN ERECTION ENGINEER. BIDS WERE PREVIOUSLY RECEIVED FOR THE SAME EQUIPMENT AND SERVICE UNDER INVITATION FOR BIDS NO. DACW64-70 B- 0033. BIDS FOR THAT SOLICITATION WERE OPENED APRIL 16, 1970, AND THEREAFTER THE CORPS REJECTED ALL BIDS RECEIVED AND PROPOSED TO CANCEL THE INVITATION AND READVERTISE WITH NEW SPECIFICATIONS INCORPORATING VARIOUS CHANGES AND CLARIFICATIONS. ONE OF THE BIDDERS UNDER THAT SOLICITATION PROTESTED TO OUR OFFICE THE ACTION THE CORPS PROPOSED TO TAKE AND, IN OUR DECISION IN 50 COMP. GEN. (B-170266, DECEMBER 30, 1970), WE CONCURRED IN THE DECISION OF THE CORPS TO REJECT ALL BIDS AND READVERTISE UNDER REVISED SPECIFICATIONS.

FOUR BIDS RECEIVED UNDER THE RESOLICITATION WERE OPENED FEBRUARY 11, 1971. THE LOW BID WAS SUBMITTED BY FAIRBANKS MORSE, INC., AND YOUR FIRM SUBMITTED THE NEXT LOW BID. SUBSEQUENT TO OPENING, THE BIDS WERE REVIEWED BY REPRESENTATIVES OF EACH FIRM WHICH HAD SUBMITTED BIDS, INCLUDING YOUR FIRM, AND BY TELEGRAM DATED FEBRUARY 15, 1971, YOU ADVISED THE CORPS THAT YOUR REVIEW OF THE BID SUBMITTED BY FAIRBANKS MORSE DISCLOSED IRREGULARITIES. YOUR LETTER OF FEBRUARY 19, 1971, SET FORTH IN DETAIL THE ALLEGED DEVIATIONS CONTAINED IN THE FAIRBANKS MORSE BID. YOUR PROTEST TO OUR OFFICE THAT THE BID SUBMITTED BY FAIRBANKS MORSE IS NONRESPONSIVE IS BASED UPON, AND INCORPORATES IN ITS ENTIRETY, YOUR FEBRUARY 19, 1971, LETTER TO THE CORPS.

THE FIRST BASIS OF THE PROTEST IS THAT THE IFB REQUIREMENT THAT EXPERIENCE DATA BE PROVIDED WITH RESPECT TO THE ENGINES PROPOSED BY THE BIDDER WAS NOT FULFILLED WHEN FAIRBANKS MORSE CITED ITS INSTALLATION OF TWO MARINE PROPULSION ENGINES IN THE VESSEL "ESSO ARKANSAS."

WE NOTE IN THIS RESPECT THAT PART I, SECTION "C," SUBPARAGRAPH 22(C)(3C OF THE INVITATION PROVIDES THAT DESCRIPTIVE DATA SHALL BE FURNISHED, INCLUDING "EXPERIENCE DATA ON ENGINES PROPOSED, TO INCLUDE LOCATION AND DATE INSTALLED." THE IFB SPECIFICATIONS, PART IV, TECHNICAL PROVISIONS, SECTION 3, PARAGRAPH 5.2, PROVIDE THAT:

" *** AN EXPERIMENTAL ENGINE, ONE HAVING A LESSER OR GREATER NUMBER OF CYLINDERS THAN THE STANDARD PRODUCTION ENGINES, ONE WITHOUT A DEMONSTRATED SATISFACTORY SERVICE RECORD AS A FULL DIESEL ENGINE OPERATING NOT LESS THAN 1,200 HOURS PER YEAR WILL BE REJECTED."

IN RESPONSE TO THE REQUIREMENTS SET FORTH ABOVE, FAIRBANKS MORSE CITED THE INSTALLATION OF TWO MARINE PROPULSION ENGINES IN THE VESSEL "ESSO ARKANSAS." THE ENGINES WERE INSTALLED IN JULY 1968, AND AT THE TIME FAIRBANKS MORSE SUBMITTED ITS BID, EACH HAD MORE THAN 16,000 HOURS OPERATING TIME SINCE DATE OF INSTALLATION, WITH AN AVERAGE OPERATING TIME FOR EACH ONE OF 6,000 HOURS PER YEAR.

YOU CONTEND, SPECIFICALLY, THAT OUR DECISION IN 50 COMP. GEN. , SUPRA, PERTAINING TO CANCELED INVITATION NO. DACW64-70-B-0033 PRECLUDES CONSIDERATION OF THE MARINE PROPULSION UNITS CITED BY FAIRBANKS MORSE. THAT DECISION WE INCLUDED THE ADMINISTRATIVE STATEMENT THAT THE EXPERIENCE DATA SUBMITTED BY FAIRBANKS MORSE FOR THE ENGINE PROPOSED UNDER THAT INVITATION WAS NOT ACCEPTABLE BECAUSE IT INDICATED EXPERIENCE OF A DIFFERENT TYPE THAN THAT REQUIRED BY THE INVITATION IN THAT THE TOTAL NUMBER OF HOURS OF OPERATION STATED FOR THE ENGINE INDICATED THAT IT HAD NOT BEEN USED ON A CONTINUOUS BASIS, BUT ONLY ON AN INTERMITTENT, SHORT- TIME BASIS. YOU ALLEGE THAT THE ENGINES OFFERED BY FAIRBANKS MORSE UNDER THE INSTANT IFB ARE OF AN EVEN MORE DIFFERENT TYPE THAN THOSE OFFERED UNDER THE CANCELED INVITATION BECAUSE THEY HAVE NOT BEEN OPERATING CONTINUOUSLY AT THE MINIMUM PERFORMANCE LEVELS ESTABLISHED BY THE SPECIFICATIONS. YOU CONTEND THAT THE FOREGOING IS A REQUIREMENT OF THE EXPERIENCE PROVISION QUOTED ABOVE. YOU POINT OUT THAT OUR PRIOR DECISION AGREED WITH THE DETERMINATION THAT THE FAIRBANKS MORSE BID WAS NONRESPONSIVE EVEN THOUGH THE INVITATION LANGUAGE DID NOT SPECIFICALLY REQUIRE CONTINUOUS OPERATION IN THAT INSTANCE.

YOU FURTHER CONTEND THAT THE PERFORMANCE RECORD OF THE ENGINES ON THE "ESSO ARKANSAS" HAS BEEN UNSATISFACTORY IN LIGHT OF THE SPECIFICATION REQUIREMENT THAT ENGINE DATA SUBMITTED TO SATISFY THE EXPERIENCE REQUIREMENT ESTABLISH A "DEMONSTRATED SATISFACTORY SERVICE RECORD." THIS REGARD, YOUR SUBCONTRACTOR, STEWART & STEVENSON SERVICES, INC., HAS SUBMITTED A LETTER DATED MAY 5, 1971, WHICH LISTS 12 INSTANCES OF ENGINE REPAIR SINCE JULY 1968 AND ALLEGES THAT THIS REPAIR RECORD SERVES TO DISQUALIFY THE MARINE ENGINES ON THE "ESSO ARKANSAS." WE ARE OF THE OPINION THAT THE ENGINE INSTALLATION OFFERED BY FAIRBANKS MORSE MEETS THE ENGINE EXPERIENCE DATA REQUIREMENT.

THE EXPERIENCE REQUIREMENT IN THE INSTANT CASE, HOWEVER, IS NOT THE SAME AS THE ONE IN THE PREVIOUSLY CANCELED INVITATION ON WHICH OUR PRIOR DECISION WAS BASED. THE EXPERIENCE DATA HERE MUST BE SUBMITTED ON AN HOURS PER YEAR BASIS IN ORDER TO INDICATE THAT THE ENGINES ARE IN CURRENT USE AT LEAST TO THE EXTENT THAT THEY HAVE ACCUMULATED 1,200 HOURS OF OPERATION PER YEAR. BEYOND THAT, THERE IS NO REQUIREMENT IN THE INVITATION FOR CONTINUOUS OPERATION OF THE ENGINES, OR FOR OPERATION AT A STATED LEVEL OR SPEED. WE CONCLUDE, THEREFORE, THAT THE DETERMINATION OF THE CONTRACTING OFFICIALS THAT THE OFFERED MARINE ENGINES MEET THE EXPERIENCE REQUIREMENT IS NOT SUBJECT TO QUESTION BY OUR OFFICE.

ON THE QUESTION OF THE SERVICE RECORD OF THE TWO MARINE PROPULSION ENGINES, BY LETTER TO OUR OFFICE OF MAY 25, 1971, FAIRBANKS MORSE RESPONDED TO YOUR ALLEGATIONS AS TO THE UNSATISFACTORY SERVICE RECORD OF THE TWO ENGINES INSTALLED IN THE "ESSO ARKANSAS." IN THE LETTER IT IS STATED THAT BETWEEN THE JULY 1968 DATE OF INSTALLATION AND LATE 1970 THE OWNER OF THE VESSEL, HUMBLE OIL & REFINING COMPANY, TESTED A SPECIAL LUBE OIL FORMULATION IN THE ENGINES WITHOUT FAIRBANKS MORSE'S KNOWLEDGE; THAT THE LUBE OIL PROVED NOT TO BE COMPATIBLE WITH THE SERVICE; AND THAT THE TESTS WERE DISCONTINUED IN 1970 AND THEREAFTER A STANDARD LUBE OIL MEETING FAIRBANKS MORSE SPECIFICATIONS WAS PUT INTO SERVICE. DESPITE THE USE OF THE SPECIAL LUBE OIL FORMULATION, THE LETTER GOES ON TO STATE THAT:

" *** THE ENGINES FROM DATE OF INSTALLATION HAVE SUCCESSFULLY POWERED THE TOW BOAT WITHOUT INTERRUPTION OF SERVICE DUE TO ENGINE FAILURE. IN EXCESS OF 1,200 HOURS PER YEAR PER ENGINE HAS BEEN ACCUMULATED AND TOTAL ENGINE HOURS APPROXIMATE 18,500 ON EACH ENGINE AT THIS TIME. THE ENGINES HAVE BEEN AVAILABLE FOR FULL POWER OPERATION AT ALL TIMES EXCEPT WHEN MAINTENANCE WORK WAS BEING PERFORMED."

ALSO, BY LETTER DATED MAY 25, 1971, HUMBLE OIL & REFINING COMPANY ADVISED THE CORPS THAT SINCE THE "ESSO ARKANSAS" WAS PUT INTO SERVICE IN 1968 THE ENGINES IN IT HAVE ACCOMPLISHED THEIR REQUIRED MISSIONS AND PERFORMED THEIR FUNCTIONS AND HAVE ACCUMULATED IN EXCESS OF 1,200 HOURS PER YEAR OF OPERATION. THE LETTER GOES ON TO STATE THAT SUBSEQUENT TO THE CHANGE TO A LUBE OIL WHICH CONFORMED TO FAIRBANKS MORSE SPECIFICATIONS, THE ENGINES HAVE CONTINUED TO PERFORM THEIR FUNCTIONS AND MISSIONS WITH REDUCED MAINTENANCE.

IN RESPONSE TO YOUR ALLEGATION THAT THERE HAVE BEEN NUMEROUS INSTANCES IN WHICH THE ENGINES HAVE NOT BEEN OPERATING DUE TO MAINTENANCE PROBLEMS, FAIRBANKS MORSE CONTENDS THAT THE MAINTENANCE YOU REFER TO WAS ACTUALLY NORMAL MAINTENANCE WHICH, AT MOST, WAS INCREASED IN FREQUENCY DUE TO THE UTILIZATION OF SPECIAL LUBE OIL IN THE ENGINES BY HUMBLE OIL & REFINING COMPANY. WHETHER THE FREQUENCY OF MAINTENANCE WAS INCREASED BECAUSE THE SPECIAL LUBE OIL WAS USED IS NOT GERMANE TO OUR CONSIDERATION OF THE PROTEST. THE OVERRIDING QUESTION IS WHETHER THE ENGINES HAVE HAD AT LEAST 1,200 HOURS PER YEAR OF SATISFACTORY OPERATION AS REQUIRED BY THE SPECIFICATIONS. IN OTHER WORDS, SO LONG AS REQUIRED MAINTENANCE HAS NOT PRECLUDED THE ACCUMULATION OF 1,200 HOURS OPERATION PER YEAR, THE ENGINES CAN BE SAID TO HAVE DEMONSTRATED THE "SATISFACTORY SERVICE RECORD" REQUIRED BY THE EXPERIENCE REQUIREMENT. IN ITS LETTER OF MAY 25, 1971, FAIRBANKS MORSE CLEARLY STATES THAT EACH OF THE ENGINES HAS HAD 1,200 HOURS PER YEAR OF SATISFACTORY OPERATION SINCE THE DATE OF INSTALLATION AND THERE IS NOTHING IN THE RECORD TO INDICATE OTHERWISE. IN LIGHT OF THIS COMPLIANCE WITH THE INVITATION EXPERIENCE REQUIREMENT AND, FURTHER, IN LIGHT OF THE FACT THAT THE CORPS HAS INDICATED TO OUR OFFICE THAT UPON REVIEW OF THE ALLEGATIONS MADE BY YOUR FIRM AND STEWART & STEVENSON, IT IS STILL SATISFIED WITH THE ENGINE EXPERIENCE DATA SUBMITTED BY FAIRBANKS MORSE, WE ARE OF THE OPINION THAT THE SUBJECT ENGINES HAVE DEMONSTRATED THE REQUIRED SATISFACTORY SERVICE RECORD.

WE NEXT TURN TO YOUR CONTENTION THAT THE GUARANTEED MAXIMUM CAPABILITY OF THE ENGINE APPEARS TO EXCEED ITS PUBLISHED PEAKING RATING. IN THIS REGARD, PART IV OF THE IFB SPECIFICATIONS, TECHNICAL PROVISIONS, SECTION 3, PARAGRAPH 6.1, PROVIDES THAT THE ENGINES MUST MEET CERTAIN MAXIMUM BRAKE HORSEPOWER (B. HP.) REQUIREMENTS OF THE PUMPS WITH ENGINE SPEED NOT TO EXCEED A CERTAIN NUMBER OF REVOLUTIONS PER MINUTE (R.P.M.) AND A MAXIMUM BRAKE MEAN EFFECTIVE PRESSURE (B.M.E.P.). THE PARAGRAPH ALSO PROVIDES THAT THE ENGINES SHALL BE CAPABLE OF CONTINUOUS OPERATION AT 110 PERCENT FULL LOAD FOR A PERIOD OF 2 HOURS OUT OF 24.

THIS SAME REQUIREMENT WAS INCLUDED IN THE CANCELED INVITATION AND IN ITS BID UNDER THAT INVITATION FAIRBANKS MORSE LISTED A PEAKING RATING WHICH EXCEEDED THE PEAKING RATING SET FORTH IN ITS PUBLISHED DATA ON THE ENGINE. OUR DECISION PERTAINING TO THAT INVITATION INCORPORATED THE OFFICE OF THE CHIEF OF ENGINEERS DETERMINATION THAT THE LISTING OF A PEAKING RATING IN THE BID EXCEEDING THAT LISTED IN THE PUBLISHED DATA WAS A MAJOR DEVIATION WHICH JUSTIFIED REJECTION OF THE FAIRBANKS MORSE BID.

IN RESPONSE TO YOUR PRESENT CONTENTION ON THIS QUESTION, THE ADMINISTRATIVE REPORT FURNISHED BY THE CORPS STATES THAT:

"THE DETERMINATION THAT THE REQUIRED 2 HOUR IN 24 HOUR RATING IS GREATER THAN THE PUBLISHED PEAKING RATING OF THE ENGINE MADE BY OCE IN ITS 1 JULY 1970 TECHNICAL REVIEW OF FAIRBANKS MORSE'S RESPONSE TO SOLICITATION NO. DACW64-70-B-0033, DATED 19 DECEMBER 1969, WAS BASED ON RATINGS PUBLISHED BY THE FAIRBANKS MORSE POWER SYSTEMS DIVISION ON SHEETS D3800A21 AND D3800A24 (RATING AND GENERAL DATA - MODELS 38D8-1/8 OIL DIESEL, 38DD8-1/8 DUAL FUEL AND 38D38-1/8 SPARK IGNITION GAS ENGINES) DATED NOVEMBER 1966. FAIRBANKS MORSE WHEN ASKED TO VERIFY THE DATE OF THE LATEST PUBLISHED INFORMATION ON THE MODEL 38D8-1/8 OIL DIESEL ENGINE ADVISED THAT THE NOVEMBER 1966 DATA WAS THE LATEST. SUBSEQUENT TO REJECTION OF ALL BIDS UNDER SOLICITATION NO. DACW64-70-B 0033 FAIRBANKS MORSE MADE KNOWN THE FACT THAT THEIR ENGINE HAD BEEN IMPROVED AND UP-RATED AND THAT SHEETS D3800A21 AND D3800A24 HAD BEEN REVISED IN SEPTEMBER 1968. BASED ON THE SEPTEMBER 1968 DATA THE PROPOSED ENGINE DOES MEET SPECIFICATION REQUIREMENTS AND THEREFORE IS ACCEPTABLE."

WE HAVE REVIEWED THE SEPTEMBER 1968 PUBLISHED DATA ISSUED BY FAIRBANKS MORSE SETTING FORTH THE PEAKING RATING FOR THE ENGINE INVOLVED HERE AND SUCH DATA CLEARLY INDICATE THAT PUBLISHED PEAKING RATING FOR THAT ENGINE IS EQUAL TO THE PEAKING RATING OF 2,640 B. HP. SET OUT IN THE FAIRBANKS MORSE BID. WHILE YOU STATE THAT YOU HAVE BEEN UNABLE TO ACQUIRE THE REVISED FAIRBANKS MORSE DATA SHEETS AND INTIMATE THEREFORE THAT THE SHEETS FURNISHED THE GOVERNMENT BY FAIRBANKS MORSE DO NOT QUALIFY AS "PUBLISHED INFORMATION" AVAILABLE PRIOR TO THE INVITATION DATE WITHIN THE CONTEMPLATION OF PARAGRAPH 5.2 OF PART IV, SECTION 3 OF THE INVITATION, THE RECORD BEFORE US INDICATES THAT THE SHEETS WERE IN FACT PUBLISHED IN SEPTEMBER 1968, BEFORE ISSUANCE OF THE INSTANT INVITATION. WE NOTE THAT THE INVITATION PARAGRAPH RELIED ON BY YOU IN THIS REGARD REQUIRES THE FURNISHING OF PUBLISHED INFORMATION IN ORDER TO DETERMINE THAT THE ENGINE OFFERED IS A STANDARD PRODUCTION ITEM AND WE CONCLUDE THAT THE DATA SHEETS SUBMITTED CONSTITUTED SUFFICIENT BASIS FOR THE CONTRACTING OFFICER'S DETERMINATION THAT THE ENGINES OFFERED WERE STANDARD PRODUCTION ITEMS MEETING THE PEAKING RATING SET OUT IN THE SPECIFICATIONS. IN OUR OPINION, THE FACT THAT ALLIS-CHALMERS WAS UNABLE TO ACQUIRE THESE SHEETS DOES NOT SERVE TO INVALIDATE THIS DETERMINATION.

YOU ALSO REFER TO THE FACT THAT THE B.M.E.P. FURNISHED BY FAIRBANKS MORSE IN ITS BID IS THE SAME AS THAT IN ITS BID UNDER THE PRIOR INVITATION FOR A LOWER CONTINUOUS B. HP. RATING, AND YOU CONCLUDE THEREFROM THAT THE CAPABILITY OF FAIRBANKS MORSE'S PROPOSED ENGINE IS LESS THAN THE GUARANTEED VALUE STATED IN THE PRESENT BID. IN THIS REGARD, YOU POINT OUT THAT THE FAIRBANKS MORSE BID LISTS A B.M.E.P. OF 82.8 P.S.I. WHILE THE FAIRBANKS MORSE DATA SHEETS SHOW A B.M.E.P. OF 84.86 P.S.I. AT THE CONTINUOUS ENGINE RATING REQUIRED BY THE SPECIFICATION. IN RESPONSE TO THIS CONTENTION THE CORPS HAS REPORTED THAT:

"PARAGRAPH 6.1 IN SECTION 3 OF TECHNICAL PROVISIONS REQUIRES THAT 'THE ENGINES SHALL BE ABLE TO MEET MAXIMUM POWER REQUIREMENTS OF THE PUMPS WITH ENGINE SPEEDS NOT TO EXCEED 900 RPM AND A MAXIMUM BMEP AS TABULATED BELOW.' THE TABULATION INDICATES THAT THE MAXIMUM BMEP FOR THE PROPOSED ENGINE WHICH IS A NATURALLY ASPIRATED AND BLOWER SCAVENGED ENGINE IS 90 PSI. COLT INDUSTRIES CALCULATED THE BMEP AT WHICH ENGINE WOULD BE OPERATING WHEN PUMPING PER CONDITION 2 (NOT LESS THAN 1,113 CFS AT A POOL- TO-POOL HEAD OF 12.8 FEET) CORRECTED FOR CHAIN LOSSES AND MULTIPLIED BY 1.10 (2,332 BHP AND 900 RPM). FOR THIS OPERATING CONDITION THE CALCULATED VALUE OF BMEP IS CORRECT. FURTHERMORE, THE BMEP AT 2,400 HORSEPOWER AND 900 RPM IS 84.86 PSI WHICH CORRESPONDS WITH PUBLISHED DATA AND IS WELL BELOW THE MAXIMUM (90 PSI) PERMITTED."

WHILE YOU DISAGREE WITH THE ABOVE CONCLUSION THAT THE B.M.E.P. LISTED BY FAIRBANKS MORSE IS SUFFICIENT TO COMPLY WITH THE SPECIFICATIONS, THAT CONCLUSION IS THE CONSIDERED OPINION OF THE CORPS BASED UPON THE TECHNICAL EXPERTISE AVAILABLE TO THE CORPS. SINCE OUR OFFICE IS NOT EQUIPPED TO RESOLVE THE FACTUAL DISPUTE EXISTING IN THESE CIRCUMSTANCES, WE ARE REQUIRED TO BASE OUR DETERMINATION ON THE FACTS AS REPORTED BY THE CORPS. HENCE, WE CONCLUDE THAT THE B.M.E.P. LISTED BY FAIRBANKS MORSE MEETS THE INVITATION SPECIFICATIONS.

YOU ALSO CONTEND THAT THE CURVE SHEET ENTITLED "TORQUE AND BHP VS ENGINE RPM" SUBMITTED BY FAIRBANKS MORSE WITH ITS BID CLEARLY SHOWS THAT THE MAXIMUM CAPABILITY OF THE ENGINE AT 900 R.P.M. IS ONLY 109 PERCENT RATHER THAN THE 110 PERCENT REQUIRED BY THE SPECIFICATIONS. TO THIS WE CANNOT SUBSCRIBE. THE SPECIFICATIONS STATE THAT THE MAXIMUM B. HP. IS TO BE 110 PERCENT OF THE B. HP. RATE FOR EACH CYLINDER. THE MAXIMUM B. HP. FOR EACH CYLINDER MULTIPLIED BY THE NUMBER OF CYLINDERS GIVES THE MAXIMUM ENGINE B. HP. FOR THE REQUIRED 2 HOURS IN 24 RATING. WHILE THE CURVE GRAPHICALLY DEPICTED ON THE SHEET SUBMITTED BY FAIRBANKS MORSE WITH ITS BID SHOWS THE MAXIMUM B. HP. PER CYLINDER AT 900 R.P.M. TO BE 218 RATHER THAN 220 (109 PERCENT OF THE RATED B. HP. INSTEAD OF THE REQUIRED 110 PERCENT), IT IS STATED AT THE BOTTOM OF THE CURVE SHEET THAT THE MAXIMUM 2-HOUR IN 24-HOUR B. HP. IS 2,640 B. HP., INDICATING THAT THE MAXIMUM B. HP. OF THE ENGINE PROPOSED IS IN FACT 220 B. HP. PER CYLINDER RATHER THAN 218, AT 900 R.P.M., OR 110 PERCENT OF THE FULL LOAD, AS IS REQUIRED BY THE SPECIFICATIONS. IN THIS REGARD, HAD IT BEEN THE INTENTION OF FAIRBANKS MORSE TO STATE ONLY 109 PERCENT OF THE RATED ENGINE B. HP. RATHER THAN THE REQUIRED 110 PERCENT, 2,616 B. HP. WOULD HAVE BEEN LISTED IN THE STATEMENT AT THE BOTTOM OF THE CURVE SHEET AS THE ENGINE MAXIMUM FOR PURPOSES OF THE 2 HOUR IN 24-HOUR REQUIREMENT, RATHER THAN 2,640 B. HP., AS IS IN FACT LISTED THERE. IN VIEW OF THIS WE THINK IT IS REASONABLE TO CONCLUDE THAT THE MAXIMUM B. HP. CURVE ON THE SHEET SUBMITTED BY FAIRBANKS MORSE WAS CARELESSLY DRAWN AND WAS INTENDED TO BE 220, OR 110 PERCENT, OF THE RATED B. HP. PER CYLINDER RATHER THAN THE 218, OR 109 PERCENT, INDICATED ON THE SHEET AND THAT THE STATEMENT AT THE BOTTOM OF THE CURVE SHEET THAT THE 2- HOUR IN 24-HOUR RATING IS 2,640 B. HP. IS SUFFICIENT TO RENDER THE FAIRBANKS MORSE BID RESPONSIVE IN THIS REGARD.

YOUR FINAL CONTENTIONS ARE THAT THE FAILURE OF FAIRBANKS MORSE TO SUBMIT DATA TO SHOW THAT IT COULD PROSECUTE THE WORK AS REQUIRED BY PARAGRAPH 26 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, THE FAILURE TO INITIAL CHANGES MADE ON THE FAIRBANKS MORSE BID AND, FINALLY, THE FAILURE TO ENTER THE BIDDER'S NAME ON EACH OF THE INVITATION CONTINUATION SHEETS SHOULD RESULT IN REJECTION OF THE FAIRBANKS MORSE BID.

IT IS ADMINISTRATIVELY REPORTED THAT, CONTRARY TO YOUR CONTENTION, FAIRBANKS MORSE DID FURNISH WITH ITS BID A LISTING OF QUALIFICATIONS SETTING FORTH CONTRACTS WHICH THE COMPANY HAD ENTERED INTO WITH OTHER CORPS OF ENGINEERS DISTRICTS INCLUDING THE TYPE OF EQUIPMENT FURNISHED. THE CORPS IS OF THE OPINION THAT THIS IS INFORMATION SUFFICIENT TO FULFILL THE REQUIREMENT. FURTHER, THIS INVITATION REQUIREMENT GOES TO THE RESPONSIBILITY OF THE BIDDER RATHER THAN TO THE RESPONSIVENESS OF HIS BID, AND OUR OFFICE HAS FREQUENTLY HELD THAT INFORMATION CONCERNING A BIDDER'S RESPONSIBILITY MAY BE FURNISHED AFTER BID OPENING. THEREFORE, IF THE INFORMATION IN THE BID WERE INSUFFICIENT TO ESTABLISH FAIRBANKS MORSE'S QUALIFICATIONS, IT COULD BE SECURED AT ANY TIME BEFORE CONTRACT AWARD.

CONCERNING THE FAILURE OF FAIRBANKS MORSE TO ENTER ITS NAME ON EACH OF THE CONTINUATION SHEETS OF THE BID AS REQUIRED BY STANDARD FORM 33A, OUR OFFICE HAS HELD THAT SUCH OMISSIONS MAY BE CONSIDERED CLERICAL DEFICIENCIES OF INSUFFICIENT SUBSTANCE TO AFFECT CONTRACT AWARD AND MAY THEREFORE BE WAIVED. SEE B-164615, AUGUST 26, 1968.

AS TO THE MATTER OF THE TWO UNINITIALED CHANGES CONTAINED IN FAIRBANKS MORSE'S BID, WE NOTE THAT THESE CHANGES CONCERNED THE NUMERICAL VALUE OF THE B. HP. OF THE DIESEL ENGINE AND THE 2 HOURS IN 24 B. HP. RATING. YOU CONTEND, STANDARD FORM 33A, PARAGRAPH 2(B), REQUIRES ALL CHANGES IN THE BID TO BE INITIALED BY THE PERSON SIGNING THE BID. HOWEVER, SO LONG AS AN UNINITIALED CHANGE RAISES NO DOUBT AS TO THE BIDDER'S INTENTION AND IT IS CLEAR THAT IT WAS NOT MADE AFTER BID OPENING, THE FAILURE TO FOLLOW THE INSTRUCTIONS OF STANDARD FORM 33A THAT CHANGES BE INITIALED MAY BE WAIVED AS A MINOR INFORMALITY. SEE 49 COMP. GEN. 541 (1970). IN THE INSTANT CASE THE FACT THAT THE B. HP. FIGURES INTENDED TO BE LISTED WERE THE CHANGED BUT UNINITIALED ONES IS CLEAR BECAUSE THOSE SAME FIGURES APPEAR ELSEWHERE IN THE DATA SUBMITTED BY FAIRBANKS MORSE WITH ITS BID. FURTHER, THERE IS NO INDICATION THAT THE CHANGES WERE NOT MADE BEFORE BID OPENING. IN LIGHT OF THIS, THE FAILURE TO INITIAL THE QUESTIONED CHANGES MAY BE WAIVED AS A MINOR INFORMALITY.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, THE PROTEST IS DENIED.