B-145497, MAY 26, 1961

B-145497: May 26, 1961

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THE INVITATION WAS ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE. RADIO INTERFERENCE SUPPRESSION WHICH WERE DEEMED ESSENTIAL TO THE MINIMUM NEEDS OF THE GOVERNMENT. THE BID OPENING WAS ORIGINALLY SET FOR JANUARY 24. BIDS WERE OPENED ON JANUARY 31. THE ABSTRACT OF BIDS SHOWS THAT BIDS WERE RECEIVED ONLY FROM ELECTRIC ARC. 014.00 ENCLOSED WITH YOUR BID FORM WAS A LETTER. WHICH NOTIFIED THE NAVY PURCHASING OFFICE THAT YOU WERE SUBMITTING AN ALTERNATE BID FOR THE INDUCTION HEATING EQUIPMENT REQUIRED. THE BIDS WERE FORWARDED TO THE UNITED STATES NAVAL ENGINEERING EXPERIMENT STATION. THE EXPERIMENT STATION REPORTED BACK WITH REGARD TO YOUR BID AS FOLLOWS: "THE EQUIPMENT IS TO BE USED FOR INDUCTION HEATING AND STRESS RELIEVING OF PROPULSION AND OTHER SHAFTING AT NAVAL SHIPYARDS.

B-145497, MAY 26, 1961

TO ELECTRIC ARC, INC.:

WE REFER TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT MADE IN CONNECTION WITH INVITATION FOR BIDS NO. 600-628-61.

THE INVITATION WAS ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C., CALLING FOR 3 INDUCTION HEATING UNITS FOR SHIPMENT, ONE EACH, TO CHARLESTON, SOUTH CAROLINA, PEARL HARBOR, OAHU, HAWAII, AND PORTSMOUTH, VIRGINIA. THE INVITATION REQUIRED THAT "THE INDUCTION HEATING UNIT SHALL BE EQUAL IN UTILITY, PERFORMANCE, EFFICIENCY, CAPACITY, AND QUANTITY TO THE MODEL MIA-50'S INDUCTION HEATING UNIT MANUFACTURED BY THE HOBART BROTHERS COMPANY, TROY, OHIO, AND SHALL CONFORM TO THE FOLLOWING:" THE SPECIFICATIONS THEREAFTER LISTED THE CHARACTERISTICS, DESIGN, REQUIRED ACCESSORIES, AND RADIO INTERFERENCE SUPPRESSION WHICH WERE DEEMED ESSENTIAL TO THE MINIMUM NEEDS OF THE GOVERNMENT.

THE BID OPENING WAS ORIGINALLY SET FOR JANUARY 24, 1961. BY LETTER OF JANUARY 19, 1961, YOU WROTE TO THE NAVAL EXPERIMENT STATION, ANNAPOLIS, MARYLAND, THAT THE EQUIPMENT AS SPECIFIED EXCLUDED YOU FROM BIDDING ALTHOUGH YOU COULD FURNISH AND OFFER EQUIPMENT, ACCESSORIES AND SERVICES WHICH WOULD DO THE JOB. ON JANUARY 19,1961, THE CONTRACTING OFFICE ISSUED AMENDMENT NO. 1 TO THE INVITATION, WHICH EXTENDED THE TIME OF BID OPENING TO JANUARY 31, 1961.

BIDS WERE OPENED ON JANUARY 31, 1961, AND THE ABSTRACT OF BIDS SHOWS THAT BIDS WERE RECEIVED ONLY FROM ELECTRIC ARC, INC., AND HOBART BROTHERS COMPANY, TROY, OHIO, AS FOLLOWS:

TABLE

ITEM ITEM ITEM

NO. 1 NO. 2 NO. 3 ELECTRIC ARC $12,568.50 $12,055.50 $12,169.50 HOBART 16,458.00 11,625.00 12,014.00

ENCLOSED WITH YOUR BID FORM WAS A LETTER, DATED JANUARY 27, 1961, WHICH NOTIFIED THE NAVY PURCHASING OFFICE THAT YOU WERE SUBMITTING AN ALTERNATE BID FOR THE INDUCTION HEATING EQUIPMENT REQUIRED. THE LETTER LISTED THE PRICES AND SPECIFICATIONS YOU INTENDED TO OFFER ON ITEMS NOS. 1 TO 3. THE BIDS WERE FORWARDED TO THE UNITED STATES NAVAL ENGINEERING EXPERIMENT STATION, ANNAPOLIS, MARYLAND, FOR TECHNICAL EVALUATION. THE EXPERIMENT STATION REPORTED BACK WITH REGARD TO YOUR BID AS FOLLOWS:

"THE EQUIPMENT IS TO BE USED FOR INDUCTION HEATING AND STRESS RELIEVING OF PROPULSION AND OTHER SHAFTING AT NAVAL SHIPYARDS. THIS IS ACCOMPLISHED IN SHOPS AND ABOARD SHIP. IN EITHER CASE, BUT PARTICULARLY ABOARD SHIP, SPACE TO DO THE JOB IS LIMITED AND ACCESS TO SUCH SPACE IS DIFFICULT. THIS MAKES IT NECESSARY THAT COILS BE ACCOMMODATED IN SMALL AND DIFFICULT- TO-GET-AT AREAS; AND THEREFORE, SHOULD BE OF SMALLEST POSSIBLE DIAMETER TO FACILITATE INSTALLATION. FOR THIS REASON, A 400-CYCLE SYSTEM IS REQUIRED. ELECTRIC ARC OFFERS A 60 CYCLE SYSTEM, WHICH REQUIRES COILS OF SUCH DIAMETER AS TO INCREASE THE DIFFICULTY OF HANDLING AND INSTALLATION.

"THIS PROCESS ALSO REQUIRES THAT THE SHAFTING UNDERGOING INDUCTION HEATING BE ROTATED TO AVOID DISTORTION. THIS PART OF THE PROCESS IS ESSENTIAL; AND DURING THE ROTATION, THE TEMPERATURE IN THE HEATING COIL MUST BE KEPT CONSTANT AND THE SAME THROUGHOUT THE ENTIRE COIL. THIS REQUIRES THAT THE EQUIPMENT BE PROVIDED WITH A RADIAMATIC SENSING HEAD. THE EQUIPMENT OFFERED BY THE ELECTRIC ARC COMPANY DOES NOT PROVIDE THIS.

"IT IS CONSIDERED THAT THE SPECIFICATIONS ARE NOT RESTRICTIVE. THEY DO INCLUDE DESIGN FEATURES WHICH ARE ESSENTIAL TO THE PROPER OPERATION OF THIS EQUIPMENT TO SATISFY THE DEMANDS OF THE USING ACTIVITY.'

THE HOBART BID WAS CONSIDERED NONRESPONSIVE BECAUSE OF THE DELIVERY IT OFFERED (THEY OFFERED DELIVERY 22 WEEKS AFTER DATE OF CONTRACT WHICH EXCEEDED THE 120 DAYS DELIVERY SPECIFIED). NO AWARD WAS MADE UNDER THE PROCUREMENT AND THE INVITATION WAS CANCELLED.

IT IS REPORTED THAT ELECTRIC ARC AND HOBART BROTHERS COMPANY WERE THEN SOLICITED FOR A NEGOTIATED CONTRACT IN STRICT ACCORDANCE WITH THE REQUIREMENTS OF ITEM NO. 1 OF THE CANCELLED INVITATION. IT IS FURTHER REPORTED THAT YOU OFFERED THE SAME HEATING UNIT WHICH WAS ORIGINALLY REJECTED. HOWEVER, HOBART OFFERED DELIVERY WITHIN 120 DAYS AFTER DATE OF CONTRACT. AS A RESULT, AWARD WAS MADE TO HOBART UNDER CONTRACT NO. N600 (24) 56567, DATED APRIL 5, 1961.

ESSENTIALLY, YOU OBJECT TO THE NECESSITY FOR THE FEATURES REQUIRED BY THE NAVY ON THIS PROCUREMENT. THE ADMINISTRATIVE OFFICE STATES THAT THE REQUIREMENTS IMPOSED BY THE SPECIFICATIONS ARE ESSENTIAL TO THE PROPER OPERATION OF THE EQUIPMENT TO SATISFY THE DEMANDS OF THE USING ACTIVITY.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE AGENCIES CONCERNED. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF THIS OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET MINIMUM NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. IN THIS REGARD, WE STATED IN 36 COMP. GEN. 251, 252, AS FOLLOWS:

"* * * THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.'

FROM THE RECORD BEFORE US, IT APPEARS THAT THE SPECIFICATIONS REFLECTED A BONA FIDE DETERMINATION OF THE MINIMUM NEEDS OF THE GOVERNMENT. UNDER THESE CIRCUMSTANCES, IT IS OUR OPINION THAT THE SPECIFICATIONS WERE NOT UNDULY RESTRICTIVE.