B-149334, AUG. 7, 1962

B-149334, AUG. 7, 1962

TO WILLIAMS AND LANE, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 2, 1962, AND LETTER OF THE SAME DATE, PROTESTING AGAINST THE ACTION OF U.S. ARMY ENGINEER DISTRICT, PHILADELPHIA, PENNSYLVANIA, IN REJECTING YOUR LOW BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. ENG-36-109-62-6. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR LETTER OF JULY 25, 1962.

THE DISTRICT ENGINEER, U.S. ARMY ENGINEER DISTRICT, PHILADELPHIA, PENNSYLVANIA, BY THE REFERRED-TO INVITATION REQUESTED BIDS FOR FURNISHING A 60 KW. UNINTERRUPTED POWER UNIT. PROSPECTIVE BIDDERS WERE ADVISED THAT THE UNIT SHOULD BE COMPLETE WITH CONTROLS, CONTROL CABINET AND CONDENSER AS COVERED IN PROCUREMENT DESCRIPTION ENTITLED "UNINTERRUPTED POWER UNIT" DATED MAY 29, 1962.

THE INVITATION CONTAINED THE FOLLOWING PROVISION WHICH IS QUOTED IN PERTINENT PART AS FOLLOWS:

"REQUIREMENTS FOR DESCRIPTIVE LITERATURE (OCT. 1960)

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, DIMENSIONS, WEIGHT AND DETAILED DESCRIPTION OF MAJOR COMPONENTS AND ACCESSORY EQUIPMENT.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. * * *"

THE RECORD SHOWS THAT FIVE BIDS WERE RECEIVED AND OPENED ON JUNE 20, 1962; THAT THE LOWEST BID WAS SUBMITTED BY YOUR FIRM; AND THAT THE NEXT TWO LOWEST BIDS WERE SUBMITTED BY UNITED STATES MOTORS CORPORATION AND THE R. G. RUSSELL COMPANY, INC. BY LETTER DATED JUNE 21, 1962, THE CHIEF, SUPPLY DIVISION, U.S. ARMY ENGINEER DISTRICT, PHILADELPHIA, FORWARDED TO THE OFFICE OF THE CHIEF OF ENGINEERS, WASHINGTON, D.C., FOR TECHNICAL EVALUATION FOUR OF THE FIVE BIDS RECEIVED IN RESPONSE TO THE INVITATION. BY FIRST INDORSEMENT, THE OFFICE OF THE CHIEF OF ENGINEERS INDICATED THAT THE BID OF YOUR FIRM AND THAT OF THE UNITED STATES MOTORS CORPORATION WERE NOT THAT ONLY THE BIDS OFFERED BY THE R. G. RUSSELL COMPANY, INC., AND CONSOLIDATED DIESEL ELECTRIC CORPORATION WERE TECHNICALLY RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. IN REGARD TO YOUR BID THE OFFICE OF THE CHIEF OF ENGINEERS DETERMINED THAT IT WAS DEFICIENT IN THE FOLLOWING RESPECTS:

"A. WILLIAMS AND LANE, INC., BERKELEY, CALIFORNIA, DESCRIPTIVE LITERATURE INDICATES THE FOLLOWING:

"/1) GENERAL MOTORS MODE 471 DIESEL ENGINE HAVING 133 HP RATING IS PROPOSED. HP RATING APPEARS TO BE IN ERROR SINCE PUBLISHED CATALOG INFORMATION INDICATES A 101 HP CONTINUOUS RATING AT SEA LEVEL AND 60 DEGREES F. THIS OUTPUT IS NOT ADEQUATE FOR A 60KW GENERATOR WHEN OPERATING AT 6100 FEET ALTITUDE AND AT 104 DEGREES F.

"/2) DRAWING NO. EM-1638 INDICATES AN INTEGRAL ENGINE-DRIVEN FAN AND RADIATOR. PD REQUIRES A SEPARATE ELECTRIC MOTOR-DRIVEN CONDENSER.

"/3) DRAWING NO. DM-1659 MAKES NO PROVISION FOR ISOLATING AND BY PASS SWITCHES.'

IT IS REPORTED THAT BASED ON THE EVALUATION MADE BY THE OFFICE OF THE CHIEF OF ENGINEERS AND THE FAVORABLE PREAWARD SURVEY OF THE FACILITIES OF THE R. G. RUSSELL COMPANY, INC., AN AWARD WAS MADE TO THAT FIRM ON JUNE 29, 1962. ON THE SAME DAY YOU WERE ADVISED THAT YOUR BID WAS BEING REJECTED BECAUSE IT WAS NOT RESPONSIVE TO THE TECHNICAL REQUIREMENTS OF THE INVITATION. BY TELEGRAM AND LETTER DATED JULY 2 AND 10, 1962, RESPECTIVELY, YOU PROTESTED THE REJECTION OF YOUR BID AND THE AWARD THAT WAS MADE TO R. G. RUSSELL COMPANY, INC.

YOU CONTEND THAT THE GENERAL MOTORS ENGINE YOU PROPOSED TO FURNISH DOES MEET THE HORSEPOWER REQUIRED AT 6100 FEET AND 104 DEGREES F. AND IN SUPPORT THEREOF YOU SUBMITTED A COPY OF A LETTER DATED JULY 16, 1962, RECEIVED FROM GENERAL MOTORS CORPORATION, DETROIT DIESEL ENGINE DIVISION, CERTIFYING THE CONTINUOUS HORSEPOWER OF THE PROPOSED ENGINE. YOU ALSO CONTEND THAT YOU WERE BOUND TO FURNISH WHAT WAS REQUIRED BY THE SPECIFICATIONS, NAMELY, A SEPARATE AIR-COOLED CONDENSER; THAT YOU MARKED YOUR DRAWING "REPRESENTATIVE" AND THAT THEREFORE THE CONTRACTING OFFICER SHOULD IGNORE WHAT APPEARS BYPASS AND ISOLATION SWITCHES IS ESSENTIALLY THE SAME AS YOUR POSITION CONCERNING THE REMOTE COOLING SYSTEM (RADIATOR). IN REGARD TO THE FORMER, YOU CONTEND THAT EVEN THOUGH THE BYPASS SWITCHES DO NOT APPEAR ON YOUR DRAWING, THAT DRAWING WAS MERELY "REPRESENTATIVE" AND THAT SINCE THE SPECIFICATIONS REQUIRE BYPASS SWITCHES YOU WERE OBLIGATED TO, AND WOULD, FURNISH THEM.

IN REGARD TO THE HORSEPOWER REQUIREMENTS THE CONTRACTING OFFICER STATES THAT REFERENCE TO STANDARD CATALOG DATA ON THE GENERAL MOTORS MODEL ALSO, IN REGARD TO YOUR CONTENTION, THE OFFICE OF THE CHIEF OF ENGINEERS OF ENGINEERS REVEALS THAT IT WAS DEFICIENT IN THE FOLLOWING RESPECTS: PUBLISHED LITERATURE AND WAS FOUND TO BE IN ERROR. THE GENERAL MOTORS CORPORATION HAS A QPL RATING FOR THIS ENGINE AT 5,000 FEET ELEVATION AND 125 DEGREES F. OF 94 HP WHEN EQUIPPED WITH FAN AS BIDDER INDICATED ON HIS PRINT. THIS ENGINE MAY DEVELOP 101 HORSEPOWER WHEN A SEPARATE RADIATOR AND ELECTRIC MOTOR DRIVEN FAN IS USED, AS REQUIRED BY THE PROCUREMENT DESCRIPTION. APPLICATION OF DERATING FACTORS TO THE LATTER HP RATING TO COMPENSATE FOR THE 6,100 FEET SINCE THE ENGINE OPERATES ONLY WHEN OTHER SOURCES OF ELECTRICITY FAIL, THE ENGINE WILL BE REQUIRED TO FURNISH THE POWER NECESSARY TO OPERATE THE ELECTRIC MOTOR DRIVEN FAN. THE ENGINE WILL ALSO BE REQUIRED TO FURNISH POWER FOR THE LOSSES SUSTAINED IN THE GENERATOR, FLYWHEEL AND CLUTCH COMPONENTS.

"B. THE ENGINE DRIVEN FAN AND INTEGRALLY MOUNTED RADIATOR ASSEMBLY IS MEANS OF DISPOSING OF THE ENGINE HEAT. THE PROCUREMENT DESCRIPTION REQUIRED A SEPARATE RADIATOR WITH ELECTRIC MOTOR DRIVEN FAN WHICH WILL BE INSTALLED REMOTELY FROM THE ENGINE. AIR SUPPLY TO AND DISCHARGE FROM THE REMOTE RADIATOR WILL BE ACCOMPLISHED THROUGH 30 INCH DUCTS.

"C. PROCUREMENT DESCRIPTION REQUIRED ISOLATING AND BY-PASS SWITCHES DISCONNECTED FROM THE ELECTRIC CIRCUIT WITHOUT INTERRUPTING THE POWER IN THE CIRCUIT SERVING THE CRITICAL LOAD. THIS IS AN UNUSUAL FEATURE NOT NORMALLY FURNISHED IN UNITS OF THIS TYPE. THE ARRANGEMENT PERMITS WITHOUT DANGER TO THE PERSONNEL. THESE SWITCHES WERE NOT INDICATED ON THE CONTROL PANEL ARRANGEMENT SUBMITTED BY THE LOW BIDDER.

"4. REVIEW OF THE INFORMATION SUBMITTED BY THE SECOND LOWEST BIDDER INDICATED THAT HE PROPOSED AN ENGINE DRIVEN FAN AND ENGINE MOUNTED RADIATOR; HE FAILED TO INDICATE THE REQUIRED ISOLATION AND BY-PASS SWITCHES AND HE PROPOSED TO USE A TWO UNIT MOTOR-GENERATOR COMBINATION IN LIEU OF A SINGLE UNIT GENERATOR. HIS BID WAS CONSIDERED NON RESPONSIVE.'

PARAGRAPH (A) OF "REQUIREMENTS FOR DESCRIPTIVE LITERATURE," PROVIDES THAT THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCT THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, DIMENSION, WEIGHT AND DETAILED DESCRIPTION OF MAJOR COMPONENTS AND ACCESSORY EQUIPMENT.

THE ISSUE TO BE DECIDED HERE IS WHETHER THE DESCRIPTIVE LITERATURE FURNISHED BY YOUR FIRM SATISFIED THE REQUIREMENTS IN THE PROVISION OF SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS.'

IT IS THE CONTENTION OF THE CONTRACTING OFFICER THAT THE DESCRIPTIVE LITERATURE WAS DEFICIENT IN THIS RESPECT. UNDER THE PROVISIONS OF THE OFFICE HAS HELD THAT TECHNICAL DATA REQUIRED TO BE SUBMITTED FOR THE PURPOSES OF BID EVALUATION, AS DISTINGUISHED FROM MATERIAL REQUIRED PART OF THE BID SO THAT THE FAILURE TO INCLUDE THE REQUIRED INFORMATION IN THE TECHNICAL DATA MAKES THE BID NONRESPONSIVE TO THE INVITATION. SEE 40 COMP. GEN. 132. FURTHER, THE FAILURE TO TAKE EXCEPTIONS TO THE SPECIFICATIONS OR STATEMENTS WHICH MAY CONSTITUTE AN OVER-ALL OFFER TO COMPLY WITH THE SPECIFICATIONS, REGARDLESS OF THE DATA, CANNOT BE REGARDED AS COMPLYING WITH SPECIFIC REQUIREMENTS OF AN INVITATION FOR THE FURNISHING OF MATERIAL DATA. SEE 36 COMP. GEN. 415.

THE DETERMINATION OF WHETHER THE DESCRIPTIVE LITERATURE FURNISHED BY A BIDDER DEMONSTRATED THE CONFORMABILITY OF THE PRODUCT OFFERED TO THE SPECIFICATIONS IS CLEARLY A TECHNICAL ONE REQUIRING THE USE BY THE CONTRACTING OFFICER OF EVERY MEANS AT HIS DISPOSAL TO ASSIST HIM IN THIS DETERMINATION. THE RECORD INDICATES THAT THE OPINIONS OF QUALIFIED ENGINEERING PERSONNEL OF THE OFFICE OF THE CHIEF OF ENGINEERS WERE SOLICITED AND USED BY THE CONTRACTING OFFICER IN REACHING A CONCLUSION ON THE ADEQUACY OF THE DESCRIPTIVE LITERATURE. HAVING REGARD FOR THE WIDE DISCRETION VESTED IN THE CONTRACTING OFFICER IN THE DETERMINATION EVALUATION PURPOSES, WE CAN FIND NO LEGAL BASIS FOR QUESTIONING THE REJECTION OF YOUR BID WHERE IN HIS JUDGMENT THE DESCRIPTIVE LITERATURE FURNISHED FAILED TO SHOW THAT THE PRODUCT OFFERED CONFORMED TO THE SPECIFICATIONS.