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Bill Grunloh Chief Procurement Officer Illinois Department of Transportation 200 Hanley Building 2300 South Dirksen Parkway Springfield, IL 62764 Ms. Gretchen Tucka State Purchasing Officer Illinois Department of Transportation 200 Hanley Building 2300 South Dirksen Parkway Springfield, IL 62764
Re: Protest Concerning Multi-State Locomotive Procurement #14-1-DPIT Dear Mr. Grunloh and Ms. Tucka: Electro-Motive Diesel, Inc. (“EMD”) submits this protest dated February 3, 2014, to the procurement known as “Multi-State Locomotive Procurement #14-1-DPIT” (the “Procurement”). EMD makes this protest pursuant to the terms of Illinois General Assembly (“ILGA”) Title 44, Section 6.420 (“Filing of a Protest”). The Illinois Department of Transportation (“IDOT”), in conjunction with the California Department of Transportation (“CALTRANS”) and the Washington Department of Transportation (“WSDOT”), issued the Procurement. IDOT, CALTRANS and WSDOT formed the joint purchasing entities (each a “JPE” and jointly, the “JPEs”) for the Procurement. On December 18, 2013, the Chief Procurement Office’s (“CPO”) Determination on Award Recommendation was issued by IDOT to the JPEs and the Federal Railroad Administration (“FRA”), recommending an award to Siemens Industry, Inc. (“Siemens”). Pursuant to ILGA Title 44, Section 6.430 1, any award for this Procurement must be stayed until this protest is resolved. Significantly, the proposed award to Siemens does not meet the Illinois Procurement Code requirement that “[a]wards shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the State, taking into consideration price and the evaluation factors set forth in the request for proposals.” 30 ILCS 500/20-15(g) [emphasis added]. In short, Siemens is not a “responsible offeror” and its offer is not “responsive” with respect to the Procurement. EMD is confident that after IDOT reviews the facts presented in this protest, an award to Siemens will be deemed to be contrary to Illinois law, in addition to being inconsistent with the interests of the taxpaying public and the JPEs.
ILGA Title 44, Section 6.430 states, in relevant part, “[w]hen a protest has been timely filed and before an award has been made, the SPO will make no award of the contract until the protest has been resolved, unless the award of the contract without delay is necessary to protect the interests of the State.”
Electro-Motive Diesel • 9301 W. 55th Street • LaGrange, IL 60525 USA • +1.708.387.5488 • www.emdiesels.com Electro-Motive Diesel is owned by Progress Rail Services, A Caterpillar Company #3455731
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 2 of 19 Timely Filing (Pursuant to ILGA Title 44, Section 6.420(a) 2): ILGA Title 44, Section 6.420 requires that a protester files a protest with the CPO within seven calendar days after it knows or should have known facts giving rise to the protest. On January 29, 2014, EMD received information requested from IDOT under FOIA relative to the Siemens proposal. This was the first day EMD knew or should have known facts relative to the locomotive product offered by Siemens under the Procurement, giving rise to this protest. As required by Section 6.420(a), this protest is being filed within seven days of that date, and is being lodged with the CPO. Requirements For Protest (Pursuant to ILGA Title 44, Section 6.420(b)): (1) Name and Address of Protester: Electro-Motive Diesel, Inc. Attn: Gary Eelman Vice President – Passenger Locomotive Sales 9301 W. 55th Street LaGrange, IL 60525 Phone: (708) 387-5488 Fax: (708) 387-6660 (2) Protested Procurement: (3) EMD is an Interested Party: Multi-State Locomotive Procurement #14-1-DPIT EMD participated as a qualified offeror in the Procurement. EMD’s qualified offer was submitted timely on November 27, 2013 pursuant to the requirements of the Procurement.
(4) Detailed Statement: ILGA Title 44, Section 6.420(b)(4) requires a protester to provide factual and legal grounds for its protest. EMD provides these grounds below. Factually, the Siemens locomotive is incapable of achieving and sustaining 125 MPH as required by the Procurement, but was artificially made to appear as though it has this capability. As John Adams once said, “[f]acts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” It is not in the best interest of the JPEs to accept a proposal that does not meet the 125 MPH speed specification. Also, legally, the unfair advantage afforded to Siemens undermined the integrity of the procurement process, placing EMD at a severe disadvantage when IDOT failed to comply with its own procurement process. IDOT’s determination on the sufficiency of proposed award cannot be final and conclusive when such an award is clearly erroneous, arbitrary, capricious, or contrary to law.
ILGA Title 44, Section 6.420(a) states, in relevant part, “[a]ll protests shall be in writing and filed with the CPO within 7 calendar days after the protester knows or should have known of the facts giving rise to the protest. Protests filed after the 7 calendar day period will not be considered.”
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 3 of 19 a. Factual Grounds for the Protest 1. The Procurement Requires Locomotives Offered to Achieve and Sustain 125 MPH The Procurement specifications require that the locomotive offered by each offeror be able to operate at a sustained speed of 125 MPH under loaded conditions as specified. This is a material requirement listed as a “pass/fail” criterion in the Procurement and subsequent addenda issued by IDOT (see Section B.10 3 and Addendum 7 4 of the Procurement). Based on the requirements of Section B.10, proposals receiving a “fail” will not be evaluated further. Furthermore, a foundational component of the Passenger Rail Investment and Improvement Act (“PRIIA”); the Next Generation Equipment Committee (“NGEC”) and the specifications therefrom; and the FRA, has remained that moving the nation toward higher speed rail would require cars and locomotives purchased under PRIIA to be capable of sustained speeds of 125 MPH. The specifications for both cars and locomotives issued by the NGEC under PRIIA, in addition to those used in the Procurement, identify this criterion in multiple areas (see, for example, PRIIA Specifications Section 1.3 5; PRIIA Specifications Section 184.108.40.206 6; PRIIA Specifications Section 9.2 7; Addendum 7 of the Procurement 8).
Section B.10 of the Procurement states, in relevant part, “[f]ailure to satisfy the requirements of any of these Pass/Fail categories in the Technical Proposal in Packet 1 will cause an Offer to be rejected and no further evaluation will take place. Those Offers that pass all Pass/Fail categories will have the remainder of their Technical Proposal evaluated and scored.” Addendum 7 states, in relevant part, “[i]n addition to the items listed in these RFP sections, the following items will be evaluated as pass/fail items: Confirmation of compliance with 125 MPH capabilities under loads as defined in Technical Specification 9.2 under the 2 locomotives + 1,360,000 lbs. of trailing load scenario – to be submitted with Service and Performance Simulations in Attachment EE, Appendix G (see Technical Specification 220.127.116.11).”
PRIIA Specification Section 1.3, which addresses Basic Features and Characteristics, states, “[t]raction power sufficient for eight multi-level car train (2 locomotives) 125 mph; Head End Power (HEP) 3 phase 480V 600kW minimum.”
PRIIA Specification Section 18.104.22.168, which addresses Speed, states, “[t]he locomotive shall be designed, constructed and tested to operate at a sustained speed of up to 125 mph on tracks approved by FRA for that speed. Design and test speed shall be prescribed by regulation.”
PRIIA Specification Section 9.2, which addresses Service and Performance Requirements, states, “[t]he offer must include sufficient detail of the methods and values used in the simulation calculations shall be provided to enable accurate assessment of the data provided by the proposal offer. Key to the simulations is evidence that the locomotive being offered is capable of achieving 125 MPH, consistent with the specification. IDOT may audit the Offeror’s proposal simulations.” Please see footnote 4.
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 4 of 19 2. The Siemens Locomotive Cannot Achieve and Sustain 125 MPH a. The Siemens Locomotive Does Not Have Sufficient Horsepower Siemens has offered a locomotive that cannot achieve and sustain 125 MPH, making its proposal non-compliant with the Procurement specifications. In its proposal, the Siemens locomotive is shown to be only 4200 BHP-rated. It is not possible for a locomotive to achieve, let alone sustain, 125 MPH with merely 4200 BHP in the train configurations specified in the Procurement, despite the “BOOST” feature provided in Siemens’s design. The “BOOST” feature appears to elevate the locomotive’s BHP to 4400 for “a controlled period time 9,” which allows its locomotive “to achieve a higher acceleration or top speed 10.” In the context of “higher acceleration or top speed,” the “top speed” on the Siemens locomotive would be something less than 125 MPH because it lacks sufficient horsepower. Determining the ability of a locomotive to achieve and sustain 125 MPH is done empirically through a relatively straightforward and objective calculation. In this case, such calculation concludes that a minimum of 4530.5 BHP would be required under the specified load conditions and rolling resistance formula (Davis) in a best case scenario (assuming, for instance, level tangent track and system efficiencies). These calculations are described in detail in the attached Exhibit A. Because the EMD locomotive offered is 4700 BHP, it provides sufficient power to achieve 125 MPH and it can maintain this speed through minor curves and grades. The Siemens locomotive cannot achieve this speed even on level tangent track. Though the Procurement documents do not specify a minimum horsepower requirement, speed and horsepower are directly related under the laws of physics, and speed is absolutely derived from horsepower. IDOT’s technical evaluation team would have concluded the Siemens locomotive to be underpowered if this calculation were made. To be fair, the Siemens locomotive can achieve 125 MPH, but only while operating downhill. To contemplate such operational limits in real-life service would be unrealistic, not likely acceptable to the public, and could not have possibly been IDOT’s intent. In fact, Appendix G of Attachment EE 11 of the Procurement documents specifies selected corridors, none of which has terrain that permits a constant downhill operation.
Please see Section 1.1.3 (Service and Performance Requirements) of the Siemens proposal, Section 1 (Precondition). Id.
Appendix G of Attachment EE states, in relevant part, “[a] selected Illinois (Chicago to St. Louis) corridor has seven intermediate station stops over 284 miles; A selected California corridor from Sacramento to Bakersfield has ten intermediate station stops over 315 miles; A selected Washington State corridor from Seattle, WA to Eugene, OR route has nine intermediate station stops over 310 miles.”
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 5 of 19
b. Siemens Failed to Comply with the Specified Formula for Rolling Resistance Siemens changed the Procurement’s strictly specified rolling resistance formula and used variations of the Sauthoff formula instead of the required Davis formula. It is industry-wide knowledge that the application of the Sauthoff formula yields more favorable results as opposed to using the Davis formula. This action, which might be Siemens’s most egregious departure from the PRIIA and IDOT requirements, may be a disingenuous act to show compliance with required performance and suggests a blatant disregard for the Procurement’s specifications. In Figure 1 below taken from Siemens’s proposal, Siemens submits to IDOT its modifications to the Procurement-required formula 12. The middle column shows the required factors for calculating rolling resistance, while the right column shows non-compliant factors as revised by Siemens. Despite Siemens’s brazen dictation of revised factors, IDOT appeared to have surrendered its own directives to yield to Siemens’s capricious and arbitrary submittals. No other offeror was permitted to develop its own factors in a similar manner as Siemens did. Siemens simply disregarded the specification without any apparent consideration of the integrity of the procurement process.
Should be – 0.03 Should be – 0.0024
Figure 1 Siemens’s fear of not achieving performance requirements was well justified as it cannot do so without manipulating data. Its concern extended to even considering lower air density at the TTCI test track in Pueblo, Colorado (see Section 2.3.2 of the Siemens proposal). Locomotive operators should not have to rely on lower air density in addition to downhill grades to achieve 125 MPH.
The PRIIA Specification under Section 9.2 requires the following factors in train resistance calculations based on the Davis equation: Coefficient ‘A’ = 1.3 Coefficient ‘B’ = 29 Coefficient ‘C’ = 0.03 Coefficient ‘D’ = 0.0024 Coefficient for trailing locomotive = 0.0012
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 6 of 19
Figure 2 below shows the results of the various rolling resistance curves used by Siemens depending on what they were trying to prove (acceleration and the two used for TTCI). As depicted, this curious way of approaching its lack of locomotive horsepower results in a favorable outcome for Siemens. An offeror using its own version of a rolling resistance formula (as Siemens did) would be able to create nearly any desired outcomes of any given simulation and thus alter what would otherwise be a level analysis between products of multiple offerors. The lower lines represent the reduction in rolling resistance used by Siemens and inappropriately accepted by IDOT. The top line (blue) represents the Procurement’s specification for rolling resistance that EMD used in all of its performance charts. In using its own rolling resistance, Siemens lessened this resistance by some 3,840 lbs and therefore requiring less THP by nearly 1,340 when using the parameters specified and required to be used by the Procurement documents. For whatever reasons, IDOT may have overlooked Siemens’s creative but non-compliant approach.
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 7 of 19 c. Siemens Used Flawed and Incorrect Assumptions in Acceleration Performance Simulation Here again, Siemens displays its non-compliance and creates its own operating conditions and rolling resistance formula for the acceleration simulation. Despite the performance simulation requirements described in the PRIIA Specifications under Section 9.2 13, Siemens patently disregards this requirement and ran the simulation using the Sauthoff formula with no HEP load (see Section 2.2 of the Siemens proposal, as shown in Figure 3 below). This is not a valid simulation in either respect and again demonstrates Siemens’s attempt to circumvent the Procurement requirements in two material respects: HEP load and rolling resistance.
Figure 3 In its attempt to appear compliant, Siemens proceeds to state that the “Davis formula is used…for the simulations at TTCI.” This is beyond misleading and could be construed as trickery. Siemens knew well that on each completed loop of the TTCI test track, its locomotive will achieve 125 MPH at least once while traveling downhill even using the more restrictive Davis formula. Thus, a statement saying that the Davis equation was used per the specification in the TTCI simulations at once gives the appearance of complying with the specifications while not being compliant at all. Siemens used the Davis formula where its underpowered locomotive would not be seen as such (reaching the top speed once going downhill) but changed the formula to accommodate itself where weaknesses in its locomotive’s performance would be obvious, as in the acceleration performance using the Davis formula. It is evident that Siemens provided duplicitous information in an attempt to conceal the substandard performance of the locomotive it proposed. This appears to be another issue that IDOT may have overlooked.
The PRIIA Specification Section 9.2 requires the following factors for acceleration performance simulations: Coefficient ‘A’ = 1.3 Coefficient ‘B’ = 29 Coefficient ‘C’ = 0.03 Coefficient ‘D’ = 0.0024 Coefficient for trailing locomotive = 0.0012 600 kW HEP load for the trainset (later changed to 45kW per car)
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 8 of 19
The fact is that if Siemens had followed the proper formula and included HEP as required by the Procurement specifications, its locomotive could neither achieve nor sustain 125 MPH as clearly shown in Figure 4 below. Determining whether a locomotive can sustain 125 MPH is nothing more than a simple mathematical equation.
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 9 of 19
If a more realistic set of assumptions were applied to the Siemens locomotive, the graph in Figure 5 shows an even more inferior and underpowered performance by its locomotive (at a HEP load of 600kW). A boost of an additional 200 BHP for “a controlled period of time” would have virtually no effect on the data displayed in Figure 4 or 5.
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 10 of 19 3. Sufficient Horsepower Is Necessary to Maintain a Constant Speed of 125 MPH In requiring a higher constant speed, nothing can substitute for horsepower. Criteria for train rolling resistance were clearly specified in the PRIIA Specification under Section 9.2 14, affording no latitude for alternative assumptions in any calculations. Thus, the results would have been consistent for any offeror. Comparing the horsepower offered with the performance required of the locomotive would have yielded clear results, as can be seen in Figure 4. The results in Figure 4 show that the highest speed that the Siemens locomotive can achieve and sustain is 121 MPH under ideal conditions assuming no grades or curves. The “BOOST” mode offered by Siemens cannot even be considered because it permits a higher BHP for “a controlled period of time” and merely for the purpose of achieving “a higher acceleration or top speed,” but not both, as described by Siemens itself in its proposal. But even if that feature can operate continuously for an extended period of time, the Siemens locomotive still cannot sustain 125 MPH as required by the Procurement specifications because the requisite horsepower simply is not available. Indeed, the sustainable speed is likely to be several miles per hour lower than 121 MPH in real world conditions. Even at an achievable (but not sustainable) speed of 121 MPH, the Siemens locomotive still fails to achieve the strict specification that IDOT stressed as being a material component of the specification and mandatory in this Procurement. 4. The Track Profile Provided by IDOT Is Inconsistent with JPE Routes Presumably due to the number of routes and urgency of this Procurement, IDOT was not able to provide track profiles for any JPE-specified routes as was directed by PRIIA Specifications under Section 9.2 15. Instead, the Procurement directed offerors to use the track profiles of the TTCI test track in Pueblo, Colorado, with the stated intention of simulating multiple selected rail corridors, such as Illinois’s Chicago to St. Louis corridor, California’s Sacramento to Bakersfield corridor and Washington’s Seattle to Eugene route. This substituted and fabricated route has little to do with actual JPE routes and attendant track profiles. As a result, sustained speeds of 125 MPH cannot be demonstrated by simulation on the TTCI track profile; this can be determined only through calculation. This simulation is limited to demonstrating the achievement (and not sustainability) of 125 MPH. Indeed, in its proposal, Siemens refers to its locomotive’s ability to achieve “a maximum speed of 125 mph on the test track at the TTCI in Pueblo, Colorado 16,” but makes no reference to its ability to sustain that speed. Thus, the simulation provided by Siemens in its proposal merely demonstrated its proposed locomotive’s ability to achieve 125 MPH, and in its limited capacity, only while
14 15 16
Please see footnote 12. Please see footnote 7.
Please see Section 1.1.3 (Service and Performance Requirements) of the Siemens proposal, Section 1 (Precondition).
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 11 of 19 operating downhill. Siemens must have known about this unacceptable result, which could be why it used a non-compliant formula to calculate a favorable outcome for itself. 5. IDOT Erred in Ignoring the Locomotive Horsepower Needed for Speed Requirements As the agency providing oversight of the Procurement, it was IDOT’s responsibility to ensure that those reviewing the performance section of the proposals would calculate (logically early on in the process) whether a proposed locomotive could reach, let alone sustain, 125 MPH based simply on the horsepower offered. This would have served to distinguish “pass” from “fail” proposals immediately through a straightforward mathematical calculation. However, it is not clear whether these calculations were made. If they were made, IDOT would have concluded that the Siemens locomotive could not possibly reach and sustain 125 MPH given its horsepower; indeed, if the calculations were made, the results appeared to have been ignored. Failing to examine the horsepower aspect as it relates to the ability of the locomotive to meet IDOT’s requirements has led to the selection of a factually non-compliant locomotive. Siemens’s proposed locomotive simply does not comply with the achievable or sustainable speed requirement of the specification which is both paramount for real world performance and compulsory for award of the contract according to IDOT’s own requirements. 6. The Form of the Siemens Proposal Failed to Comply with Procurement Requirements Continuing its pattern of non-compliance and disregard for the integrity of the procurement process, Siemens exceeded the page limit allocated for the Vehicle Major Systems portion (Section A.21.5.1) of Packet 1. According to Q&A #252 of Addendum 11 of the Procurement, offerors were limited to 160 pages; Siemens submitted 175 pages. Based on the Procurement process identified in Addendum 8 17, any pages an offeror submits in excess of the page limit will not be evaluated by IDOT. This means that relative to the Siemens proposal, the last 15 pages of the Vehicle Major Systems portion should not have been evaluated. These pages covered Chapter 17 (Fuel System) and Chapter 24 (Safety Accessories) in the Siemens proposal. Although these pages should not have been evaluated as stipulated in the Procurement documents, IDOT appeared to have contravened this requirement, reviewing and scoring the pages in the Siemens proposal that were beyond the page limit. The “Responsive Score Calculations” generated by IDOT provides a score for at least one of these sections beyond the page limit, as shown in Figure 6 below [emphasis added by highlighting portions].
The “Page Limits” section of Addendum 8, page 6, states, “[a]lso, please note that if a Final Offer contains pages in excess to the page limits shown above for any section, the excess pages will be removed from the Final Offer (including all copies) and any information presented on the excess pages will not be evaluated.”
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 12 of 19
Responsiveness Points Category Buy America Standardization General Arrangement Drawings Performance/Route Simulations TS Chapter 4 - Locomotive Carbody TS Chapter 5 - Running Gear (Trucks) TS Chapter 6 - Couplers and Draft Gear TS Chapter 7 - Braking System TS Chapter 8 - Engineer's Cab TS Chapter 9 - Locomotive Propulsion TS Chapter 10 - AC Power Dist, etc. TS Chapter 11 - Lighting TS Chapter 12 - Loco to Train Comm TS Chapter 13 - Head End Power (HEP) TS Chapter 14 - Battery System TS Chapter 15 - Sanding System TS Chapter 16 - Engineer's Cab Controls TS Chapter 17 - Fuel System Previous Similar Experience Program Management Schedule and Narrative Total Score Percent of Total Responsiveness Points Available 8 8 2 5 4 7 1 2 2 8 2 1 1 4 0.5 0.5 2 1 2 5 4 70 EMD 5.000 8.000 1.600 4.830 3.267 5.425 0.800 1.667 1.543 6.311 1.633 0.800 0.750 3.086 0.417 0.417 1.650 0.800 2.000 5.000 3.000 57.995 82.85% Siemens 8.000 8.000 2.000 4.960 3.600 6.125 0.800 1.667 1.771 6.578 1.600 0.850 0.750 3.429 0.417 0.433 1.750 0.800 2.000 5.000 4.000 64.529 92.18% MPI 8.000 6.000 1.600 4.750 3.467 5.425 0.800 1.600 1.657 7.200 1.633 0.800 0.800 3.200 0.400 0.350 1.650 0.800 2.000 4.000 2.250 58.382 83.40% Available N/A N/A N/A N/A 60 40 20 30 35 90 60 20 20 35 30 30 40 40 N/A N/A N/A
Sub Criteria Points EMD N/A N/A N/A N/A 49 31 16 25 27 71 49 16 15 27 25 25 33 32 N/A N/A N/A Siemens N/A N/A N/A N/A 54 35 16 25 31 74 48 17 15 30 25 26 35 32 N/A N/A N/A MPI N/A N/A N/A N/A 52 31 16 24 29 81 49 16 16 28 24 21 33 32 N/A N/A N/A
Figure 6 For Fuel System, an offeror can receive a maximum of 1 point. Because Siemens’s information should not have been evaluated, Siemens should have received zero points. However, as shown in Figure 6 above, Siemens was clearly evaluated, as it received 0.8 point for this section. Similarly, Safety Accessories should not have been evaluated, and it is not clear whether IDOT reviewed this section since no responsive points were assigned to this chapter. IDOT’s evaluation of Fuel System, which was provided on pages beyond the page limit imposed by IDOT, is a departure from the requirements of the Procurement. 7. The Underpowered Siemens Locomotive Gives Siemens a Pricing Advantage Providing an underpowered locomotive presents a number of opportunities for Siemens to significantly reduce the overall cost of ownership of the vehicle and its purchase price. When a
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 13 of 19 locomotive is underpowered, the diesel engine can be smaller, thus reducing the number of cylinders required. In Siemens's proposal, it is able to supply a locomotive with 20% fewer cylinders than the locomotive offered by EMD. Fewer cylinders means lower lifecycle costs. It also means the engine support systems (such as the emissions after-treatment and cooling systems) and the alternator and propulsion system components can be smaller. Smaller components are less costly to manufacture and lighter in weight, and consequently, the total cost of ownership are drastically reduced for the locomotive. As a result, Siemens is able to offer a locomotive which weighs at least 11,000 pounds less than EMD's locomotive. But it can only do so because the engine and support components are not sized to meet the material requirements of the Procurement - to achieve and sustain 125 MPH. b. Legal Grounds for the Protest 1. The Integrity of the Procurement Process Was Undermined When Siemens Received an Unfair Advantage over Other Offerors IDOT’s acceptance of Siemens’s non-compliant and arguably misleading proposal provided a distinct and unfair advantage to one offeror over other offerors, undermining the integrity of the procurement process as prohibited by ILGA Title 44, Section 6.420(b)(4). The Procurement’s specifications strictly required that locomotives proposed by offerors must achieve and sustain 125 MPH, and as described above, the Siemens locomotive is incapable of complying with this specification. Accepting the Siemens locomotive when IDOT knew or should have known about the locomotive’s lack of capabilities frustrated the very essence of the Procurement - to acquire locomotives capable of sustained speed of 125 MPH. This acceptance undermined the integrity of the procurement process as it created an uneven playing field for all of the offerors responding to the Procurement, favoring one offeror over others. Likewise, the acceptance of Siemens’s non-compliant locomotive is a fundamental violation of IDOT’s own requirements stated under Section A.7.5.2 18 of the Procurement, again undermining the integrity of the procurement process. The mandate to achieve and sustain 125 MPH is so notably material that specifications in the Procurement documents, in addition to those from NGEC, were unequivocal in this mandate. Failure to comply with this requirement is unquestionably a material deviation from the Procurement requirements.
Section A.7.5.2 of the Procurement states, “[a]n exception, if not material, may be waived by IDOT. An exception from a requirement is material if the deficient response is not in substantial accord with the RFP requirements, provides an advantage to one Offeror over other Offerors, or has a potentially significant effect on the delivery, quantity or quality of items offered, amount paid to the Offeror, or on the cost to IDOT. Material deviations cannot be waived.”
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 14 of 19 Furthermore, Siemens’s (i) use of the Sauthoff formula for rolling resistance calculations and (ii) failure to consider a HEP load in its acceleration calculations, also created an unfair advantage for itself. IDOT presumably had no latitude to arbitrarily ignore these variations while holding other offerors to the Procurement’s specifications. If the availability of more favorable results by disregarding the Davis formula or HEP loads were made available to other offerors, a more equal comparison between Siemens’s locomotive and other offerors’ locomotives can be made. For instance, if other offerors were permitted to use other rolling resistance numbers, drastically different performance would have been derived and it likely would have affected engines and systems, locomotive weight, P2 forces, standardization, Buy America, Service Proven, and project schedule. Such factors could have been used producing lighter weights, less required horsepower, increased fuel efficiency, lower life cycle cost, and acquisition cost. The acceptance of a non-compliant offer from Siemens unquestionably created an uneven playing field for all the offerors. In its form as submitted to IDOT, Siemens’s proposal was undeniably non-compliant. IDOT’s waiver of an offeror’s compliance would signal a clear partiality for one offeror over others, thereby unfavorably skewing 19 the procurement process and breaching the public trust while compromising the integrity of the procurement process in violation of Illinois law 20. 2. IDOT Further Undermined the Procurement Process When It Failed to Comply with Its Procurement Process IDOT failed to enforce its own “pass/fail” criteria specified in Section B.10 21 of the Procurement. In this section, the Procurement rules require that if a proposal does not satisfy the requirements of any “pass/fail” categories in the Technical Proposal, then the proposal must be rejected and further evaluation will necessarily cease. As demonstrated above, knowing the horsepower alone would have informed a technically competent evaluator that the Siemens locomotive cannot even achieve 125 MPH as required by the Procurement specifications. In other words, no other calculation or evaluation was necessary
It is important to note that Siemens also provided IDOT with one or more iPads as part of its proposal. EMD questions the business necessity of this practice and invites the State to scrutinize its implications under the applicable procurement laws and related authority. See, e.g, 720 ILCS 5-33; See also U.S. v. Siemens Aktiengesellschaft, Case No. 08-367 (D.D.C. Filed Dec. 15, 2008); SEC v. Siemens Aktiengesellschaft, Case No. 1:08cv-02167 (D.D.C. Filed Dec. 15, 2008) and related material at http://www.justice.gov/opa/pr/2008/December/08crm-1105.html. ILGA Title 44, Section 6.20(a) states, in relevant part, “[i]t is the policy of the CPO for the Department that all activities of the appointed SPOs and other designees related to the procurement process maximize the value of the expenditure of public funds in procuring contracts, and that those appointed and designated act in a manner that maintains public trust in the integrity of the process.”
21 20 19
Please see footnote 3.
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 15 of 19 to determine whether a locomotive can achieve the required speed outside of a calculation based on horsepower. If IDOT had fully considered the Siemens locomotive’s capabilities (or lack thereof) based solely on a scrutinized evaluation and calculation of the Siemens locomotive’s horsepower, the Siemens proposal would have been rejected upon IDOT’s completion of its review of Packet 1 (Technical Proposal). This means that pursuant to Section B.10, no further evaluation would have occurred, which means that IDOT should not have reached Packet 2 that contained Siemens’s pricing. Furthermore, Siemens’s (i) use of the Sauthoff formula for rolling resistance calculations and (ii) failure to consider a HEP load in its acceleration calculations, should have disqualified its proposal for material non-compliance with the Procurement specifications. Such disqualification should have occurred at the completion of IDOT’s review of Packet 1. Instead, IDOT proceeded with its evaluation of Siemens’s proposal in blatant disregard of the requirement in Section B.10. Finally, IDOT failed to comply with its Procurement process, evaluating the Fuel System chapter of the Vehicle Major Systems portion of the Siemens proposal when IDOT’s own procurement rules would have necessarily precluded this section from review and evaluation. Scoring this section when it should not have been evaluated again would signal a clear partiality for one offeror over others. IDOT’s failure to comply with its own procurement process compromised the integrity of the entire Procurement. 3. The Undermined Procurement Process Severely Disadvantaged EMD The unfair advantage given to Siemens severely disadvantaged EMD. As described in Section (b)(1) above, if all offerors had been afforded the ability to arbitrarily reduce the performance of their proposed locomotive, or apply other means to obtain more favorable results such as disregarding HEP load or using the Sauthoff formula, thereby allowing offerors to propose a locomotive with lower sustained speed (believing it to be acceptable to IDOT), other product configurations could have been submitted. A lower performing locomotive requires less power, and consequently, a lower price could be offered. Such differences shape the determination of the Procurement’s award. Most importantly, scoring in other categories also could have been profoundly different. EMD prides itself in its ability to find the right solution for its customers. If EMD had known that offerors may provide a solution with lower performance criteria, EMD may have provided a different solution that would have met the JPEs’ needs and with reduced pricing. However, EMD was unconscionably deprived of this opportunity. No communication was made to EMD (and other offerors) providing specifications for a lower-performing locomotive. Knowing only those specifications provided in the Procurement and trusting the integrity of the procurement process, EMD strictly adhered to the Procurement documents and offered a compliant locomotive in all areas of the specifications, as well as meeting all “pass/fail” items. As a result of EMD’s strict compliance with the Procurement documents, EMD’s proposal was automatically placed at a distinct handicap in price and scoring in contrast to the non-compliant locomotive offered by
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 16 of 19 Siemens, thus requiring that the relief sought by EMD be granted to ensure fairness and preservation of the Procurement’s integrity. c. Request for Relief EMD requests that IDOT immediately stay the proposed award to Siemens pursuant to Title 44, Section 6.430 22, confirm the statements in this protest and subsequently cancel this Procurement. EMD further requests that a new procurement be issued as soon as possible and that IDOT adheres to all requirements for locomotive performance in its evaluation. If, however, IDOT is permitted by Illinois law to award the Procurement to the lowest-priced compliant offeror (rather than issue a new procurement), EMD is positioned to begin the process of executing the terms of its proposal submitted to IDOT for the Procurement. EMD believes it has provided sufficient information in this protest, including in Exhibit A, that substantiates the non-compliance of the Siemens locomotive. It would be irresponsible and potentially unlawful to knowingly procure a locomotive that only reaches its specified velocity in a downhill or less-than-specified configuration. Furthermore, the Federal and State taxpayers need to be aware that their tax revenue dedicated to 125 MPH service would be misspent in the event that IDOT continues with its intent to award. The FRA and NGEC members have supported the sustained 125 MPH requirement and in this instance, may have a keen interest in the outcome of this protest as will the media. In addition, because EMD believes this protest to be of interest to current and potential JPEs, EMD is taking steps to assure that this protest is communicated to those parties concurrently with this mailing to IDOT. (5) Timeliness: Consistent with the terms of ILGA Title 44, Section 6.420(a), this protest is being filed within seven days of January 29, 2014 and is therefore timely. January 29, 2014 was the day that EMD received information requested from IDOT under FOIA relative to the Siemens proposal. This was therefore the first day EMD knew or should have known facts relative to the locomotive product offered by Siemens under the Procurement, and of such product’s failure to meet the Procurement’s specifications, giving rise to this protest.
(Signature Appears on the Following Page)
Please see footnote 1.
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 17 of 19 (6) Signature: Respectfully submitted by Electro-Motive Diesel, Inc.
Gary Eelman Vice President - Passenger Locomotive Sales
Copies to the following via overnight mail: Bruce Roberts, PE Division Chief (Acting) CALTRANS Division of Rail P.O. Box 942874, MS 74 Sacramento, CA 94274-0001 David Smelser - ARRA Cascades Program Manager WSDOT WSDOT Headquarters Mailing Address Washington State Department of Transportation 310 Maple Park Avenue SE P.O. Box 47300 Olympia, WA 98504-7300 Mario Bergeron Chief Mechanical Officer Amtrak 100 S. French Street Wilmington, DE 19801 Craig O'Riley Iowa Department of Transportation Office of Systems Planning 800 Lincoln Way Ames, IA 50010 Kristi Jamison State Rail Plan Project Manager MODOT 105 West Capitol Jefferson City, MO 65102 Larry Karnes Project Manager Michigan State Rail Plan State Transportation Building 425 W. Ottawa Street P.O. Box 30050 Lansing, MI 48909
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 18 of 19
Minimum Engine Power Requirements PRIIA Specification 305-005 Rev A and the Procurement documents establish that a speed of 125 MPH must be sustained for a consist made up of two locomotives and 8 cars (1,360,000 pounds of trailing load). Each car has a minimum HEP load of 45 kW. Based on the calculations shown below, in order for this consist to sustain this speed on tangent, level track, a minimum of 4530.5 BHP per locomotive is required. Calculating Minimum Engine Power Requirements requires first calculating the equivalent rolling resistance of the consist, then calculating the power required at the rail (tractive horsepower or THP) and finally the total required engine power (brake horsepower or BHP) based on rolling resistance and THP, HEP requirements and locomotive auxiliary loads. Assumptions The Procurement documents provided the basic consist configuration, including the Davis constants for the locomotives and passenger cars specified. For these calculations, an assumed weight of 265,658 pounds is used for the locomotive. Subtle variations such as locomotive weight and assumed system efficiencies have a minimal impact on the end result. Davis Constants A Lead Locomotive Trailing Locomotive Passenger Cars 1.3 1.3 1.3 B 29 29 29 C 0.03 0.03 0.03 D 0.0024 0.0012 0.00044
Calculating Rolling Resistance The equivalent rolling resistance at 125 MPH expressed in thousands of Newtons (a unit of effort) is as follows: Rolling Resistance (kN) Lead Locomotive Trailing Locomotive Passenger Cars Total 27.03 15.27 54.90 97.19
Electro-Motive Diesel, Inc. Protest to Multi-State Procurement #14-1-DPIT February 3, 2014 Page 19 of 19 Calculating Tractive Horsepower (THP) The power required at the rail to move the consist at a sustained 125 MPH on tangent, level track is calculated using the following formula: P (kW) = Effort (N) * Speed (m/s) = =
Note that 125 MPH is equivalent to 201.2 km/hr. The rolling resistance was calculated above to be 97.19 kN. Therefore, the power required for the consist to sustain 125 MPH is: P (kW) = 97.19 kN * 201.2 km/hr / 3.6 = 5,431.8 kW or 7,284.2 THP This equates to THP = 3,642 HP per locomotive.
Calculating Brake Horsepower (BHP) BHP is the total engine horsepower required by the locomotive(s) and consist to sustain 125 MPH on tangent level track. BHP includes the tractive horsepower (THP), the consist HEP requirements and the engine horsepower required to power the engine auxiliary loads such as mechanical pumps and cooling fans. In order to calculate these requirements, it is common system design practice to assume certain system efficiencies. The following calculations include very conservative “best case” system efficiencies. THP – an AC traction system has a typical system efficiency of 90%. If 5,431.8 kW is required to sustain 125 MPH, then based on a 90% system efficiency, 6,035.3 kW is required from the engine to supply the traction system. HEP – 8 cars at 45 kW/car require 360 kW. An AC based HEP system has a typical system efficiency of 90%. If 360 kW is required, then based on a 90% system efficiency, 400 kW is required from the engine to supply the HEP system. Accessory Power – a modern diesel engine has a typical auxiliary load of 5% of the total THP and HEP power requirement. This equates to an additional 321.8 kW (5% of the sum of 6,035.3 and 400) required from the engine to supply the auxiliary loads. Therefore the consist requires BHP = THP + HEP + Accessory Power = 6,035.3 + 400 + 321.8 = 6,757.1 kW or 9,061 BHP. Each of the two locomotives in the consist must be capable of generating 4530.5 BHP.
In order for the 2-locomotive and 8-car consist specified by the Procurement documents to achieve and sustain 125 MPH on tangent level track, each locomotive has to have minimum engine power 4530.5 BHP.
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