B-147931, JUL. 18, 1962

B-147931, JUL. 18, 1962

TO THE SECRETARY OF THE ARMY:

WE REFER TO OUR LETTERS OF MARCH 20, 1962, AND JANUARY 18, 1962, CONCERNING THE PROTEST OF MINNEAPOLIS-HONEYWELL REGULATOR COMPANY AGAINST CERTAIN SOLE-SOURCE SPECIFICATIONS INCORPORATED IN INVITATION FOR BIDS NO. ENG-04-058-61-14, WHICH MATTER IS THE SUBJECT OF REPORTS FROM YOUR DEPARTMENT TO THIS OFFICE OF APRIL 20, 1962, AND FEBRUARY 28, 1962.

PURSUANT TO THE SUBJECT INVITATION, CONTRACT NO. DA-01-076-ENG-5154 WAS AWARDED TO BLOUHT BROTHERS CORPORATION IN JUNE 1961, COVERING THE CONSTRUCTION OF A PROPULSION ENGINE ALTITUDE TEST CELL AT ARNOLD ENGINEERING DEVELOPMENT CENTER, COFFEE COUNTY, TENNESSEE. IT IS REPORTED THAT THE DESIGN AND TECHNICAL SPECIFICATIONS UNDER THE CONTRACT WERE PREPARED IN 1960 UNDER AN ARCHITECT-ENGINEER CONTRACT AWARDED BY THE DEPARTMENT OF THE AIR FORCE.

SECTION 34 OF THE SPECIFICATIONS COVERS A TEST INSTRUMENTATION SYSTEM. SEVERAL OF THE ITEMS LISTED UNDER THE SECTION SPECIFY A SOLE SOURCE MANUFACTURER. PARAGRAPH 11E OF SECTION 34 CALLS FOR 24 STRIP CHART RECORDERS, LEEDS AND NORTHRUP CO., NO SUBSTITUTION PERMITTED; PARAGRAPH 11F CALLS FOR A MULTIPOINT STRIP CHART RECORDER, LEEDS AND NORTHRUP, NO SUBSTITUTION PERMITTED; AND PARAGRAPH 11I CALLS FOR 4 RECORDING OSCILLOGRAPHS, CONSOLIDATED ELECTRO-DYNAMICS CORPORATION, NO SUBSTITUTION PERMITTED. ON THESE ITEMS THE PRIME CONTRACTOR OFFERED PRODUCTS OF MINNEAPOLIS-HONEWELL REGULATOR COMPANY, BUT WAS NOTIFIED BY THE CONTRACTING OFFICE THAT THE HONEYWELL ITEMS WERE UNACCEPTABLE UNDER THE SOLE SOURCE REQUIREMENTS CONTAINED IN PARAGRAPHS 11E, F AND I OF SECTION 34.

MINNEAPOLIS-HONEYWELL HAS PROTESTED THIS ACTION ON THE BASIS THAT THE ITEMS IT OFFERS ARE EQUAL TO THE SPECIFIED SOLE SOURCE EQUIPMENT AND THAT THE SOLE SOURCE REQUIREMENT IS UNDULY RESTRICTIVE OF COMPETITION.

THE ARMED SERVICES PROCUREMENT REGULATION, PARAGRAPH 1-1206 (1) STATES IN PERTINENT PART AS FOLLOWS:

"/A) * * * PURCHASE DESCRIPTION SHALL NOT BE WRITTEN SO AS TO SPECIFY A PRODUCT, OR A PARTICULAR FEATURE OF A PRODUCT, PECULIAR TO ONE MANUFACTURER AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT MANUFACTURED BY ANOTHER COMPANY, UNLESS IT IS DETERMINED THAT THE PARTICULAR FEATURE IS ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THE PARTICULAR FEATURE WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM.

"/B) THE WORDS "OR EQUAL" SHOULD NOT BE ADDED WHEN IT HAS BEEN DETERMINED IN ACCORDANCE WITH (A) ABOVE THAT ONLY A PARTICULAR PRODUCT MEETS THE ESSENTIAL REQUIREMENTS OF THE GOVERNMENT AS FOR EXAMPLE, (1) WHERE THE REQUIRED SUPPLIES CAN BE OBTAINED ONLY FROM THE SOURCE; * * *"

PARAGRAPH 1-305.6, ASPR, CONTAINED LANGUAGE OF THE SAME IMPORT UNDER THE REGULATION IN EFFECT AT THE TIME OF AWARD TO THE PRIME CONTRACTOR.

IN JUSTIFICATION OF THE SECTION 34 SOLE SOURCE PROCUREMENT REQUIREMENTS, THE CONTRACTING OFFICER STATES THAT SPECIFIC FEATURES OF THE DESIGNATED PRODUCTS WERE DEEMED ESSENTIAL TO MEET THE GOVERNMENT REQUIREMENTS AND WERE, AS FAR AS COULD BE ASCERTAINED, THE ONLY EXISTING ITEMS OF THE TYPES WHICH WOULD PERFORM THE REQUIRED FUNCTIONS AND BE COMPATIBLE WITH EXISTING INSTRUMENTATION SYSTEMS FOR THE ROCKET TEST FACILITY AND THAT PRODUCTS OF OTHER MANUFACTURERS LACKED THE PARTICULAR FEATURES REQUIRED AND WOULD ACCORDINGLY NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM. ALSO, SOLE SOURCE WAS BASED ON THE FOLLOWING ADDITIONAL REASONS:

"A. THE SPECIFIED INSTRUMENTS HAVE BEEN PROVEN AND THE PERFORMANCE OF THESE INSTRUMENTS IS A KNOWN ITEM.

"B. PHYSICAL SIZES, CONNECTORS, AND WIRING DIAGRAMS HAD TO BE KNOWN BEFORE FINAL DRAWINGS AND LAYOUTS COULD BE MADE. IF SOLE SOURCE PROCUREMENT WAS NOT REQUIRED, DETAILED DESIGN WOULD HAVE HAD TO BE DELAYED UNTIL ALL PROCUREMENT WAS COMPLETED. THIS WOULD MATERIALLY AFFECT LUMP SUM DESIGN AND CONSTRUCTION PRICES. ANY CHANGES TO TYPE OF INSTRUMENTS SPECIFIED WILL MATERIALLY AFFECT THE SUITABILITY OF THESE ITEMS FOR SPACES PROVIDED.

"C. THE SPECIFIED SOLE SOURCE INSTRUMENTS ARE NOW IN USE IN OTHER ARNOLD ENGINEERING DEVELOPMENT CENTER TEST CELLS AND SPARE PARTS AND SUPPLIES ARE AVAILABLE. OTHER TYPES OF INSTRUMENTS WOULD ADD TO REQUIREMENTS FOR SPARE PARTS.

"D. READ-OUT EQUIPMENT IS REQUIRED FOR A MAJOR PORTION OF THE SOLE SOURCE ITEMS AND IS NOW IN USE AT THE ARNOLD ENGINEERING DEVELOPMENT CENTER. SOME OF THE SOLE SOURCE ITEMS ARE COMPLETE ELEMENTS IN THEMSELVES AND DO NOT REQUIRE READ-OUT EQUIPMENT. IF INSTRUMENTS AREPROCURED OTHER THAN THE SPECIFIED MODELS, THE EXISTING READ-OUT EQUIPMENT WILL NOT BE COMPATIBLE AND ADDITIONAL EQUIPMENT BEYOND THE STATED REQUIREMENTS WOULD HAVE TO BE PROCURED.

"E. COMPLETE INSTRUMENTS AND COMPONENTS OF INSTRUMENT ASSEMBLIES CONTINUALLY SHIFT BETWEEN CELLS AND FACILITIES AT THE AEDC TO KEEP INSTRUMENT INVENTORIES AT THE MINIMUM. IF THE IDENTICAL MODELS ARE NOT PROCURED, THE SUB-ASSEMBLIES AND INSTRUMENTS WOULD NOT BE COMPATIBLE AND INTERCHANGEABLE.'

MINNEAPOLIS-HONEYWELL CONTENDS THAT HONEYWELL EQUIPMENT PERFORMING THE SAME FUNCTIONS AS THE SOLE SOURCE EQUIPMENT SPECIFIED IN SECTION 34 IS PRESENTLY IN USE AT THE ARNOLD ENGINEERING DEVELOPMENT CENTER. IN A SUPPLEMENTAL REPORT OF APRIL 9, 1962, THE CONTRACTING OFFICER STATES IN PART AS FOLLOWS:

"C. THE STRIP CHART RECORDERS SPECIFIED IN SECTION 34 HAVE SEVERAL PERFORMANCE FEATURES WHICH ARE AVAILABLE ONLY TO A LIMITED EXTENT IN THE DEVICES THAT MINNEAPOLIS-HONEYWELL PROPOSED TO SUPPLY. THE SPECIFICATIONS CALL FOR A RECORDER SPAN THAT MAY BE ADJUSTED TO ANY VALUE REQUIRED DOWN TO A MINIMUM FULL SCALE SPAN OF 2.00 MILLIVOLTS. MINNEAPOLIS-HONEYWELL'S PROPOSED DEVICES WOULD HAVE A MINIMUM SPAN OF 5.0 MILLIVOLTS--- 2 1/2 TIMES AS GREAT.

"D. TO ILLUSTRATE THE IMPORTANCE OF THE MORE SENSITIVE INSTRUMENT, A TEST RUN IN THE J-3 VERTICAL ROCKET CALL IS CITED. THIS TEST REQUIRED THE ACCURATE MEASUREMENT OF LIQUID OXYGEN TEMPERATURES NEAR -297 DEGREES FAHRENHEIT. TO MEASURE THIS CRITICAL TEMPERATURE, COPPER CONSTANTAN THERMOCOUPLES WERE USED AND THE RECORDERS WERE INDIVIDUALLY CALIBRATED. USING THE 2.0 MILLIVOLT SPAN AVAILABLE ON THE RECORDERS, THE INSTRUMENTS COULD BE CALIBRATED TO HAVE A RANGE OF FROM MINUS 300 TO MINUS 145 DEGREES FAHRENHEIT--- A SPAN ONLY 155 DEGREES. IF THE MOST SENSITIVE RANGE AVAILABLE WERE 5.0 MILLIVOLTS, THE RECORDERS WOULD HAVE HAD TO HAVE BEEN CALIBRATED FROM MINUS 300 TO PLUS 18 DEGREES FAHRENHEIT--- A SPAN OF 318 DEGREES. WITH THE 2.0 MILLIVOLT SPAN THE TEMPERATURE COULD BE READ TO WITHIN .38 DEGREE ON THE SCALE. WITH THE 5.0 MILLIVOLT SPAN THE TEMPERATURE COULD ONLY HAVE BEEN READ TO WITHIN .79 DEGREE. THE NECESSITY OF THE MOST SENSITIVE RECORDER TO OBTAIN MAXIMUM RESOLUTION ALONE DICTATES THE SPECIFIED RECORDER. SUCH REQUIREMENT IS BORNE OUT AT OTHER SUCH TEST FACILITIES WHERE THERMOCOUPLE OUTPUT AND RANGES REQUIRE 2.5 MILLIVOLT FULL SPAN; HUNTSVILLE PERSHING AND SATURN FACILITIES EXEMPLIFY THIS.

"E. THE PRECEDING PARAGRAPHS SUPPORT THE STATEMENTS CONTAINED IN SUBPARAGRAPH E. OF MY ORIGINAL FINDINGS AND JUSTIFICATION. THIS IS FURTHER SUPPORTED BY THE FACT THAT THERE ARE AT PRESENT APPROXIMATELY 80 MINNEAPOLIS-HONEYWELL GALVANOMETERS AT AEDC FOR USE IN SEVERAL MINNEAPOLIS -HONEYWELL MODEL 906 VISICORDERS. THESE GALVANOMETERS WILL NOT FIT THE MODEL 1012 OSCILLOGRAPH THAT MINNEAPOLIS-HONEYWELL IS PROPOSING TO SUPPLY. THIS INDICATES THAT MINNEAPOLIS-HONEYWELL GALVANOMETERS WILL NOT EVEN FIT ALL MINNEAPOLIS-HONEYWELL RECORDERS; HOWEVER, ALL OF THE 1500 CONSOLIDATED ELECTRO-DYNAMICS CORP. GALVANOMETERS WILL FIT EVERY C.B.C. RECORDER. THIS ALSO SUPPORTS THE STATEMENTS IN SUBPARAGRAPH C. OF MY ORIGINAL FINDINGS AND JUSTIFICATION.

"F. AS CONCERNS THE ACCURACY OF THE STATEMENTS IN SUBPARAGRAPH B. OF THE FINDINGS AND JUSTIFICATION, THE FOLLOWING INFORMATION IS OFFERED. SPECIFYING SOLE SOURCE THE DESIGN COULD BE COMPLETED AND PUT OUT FOR BID WITH THE ASSURANCE THAT THE ITEMS PROCURED WOULD MEET REQUIREMENTS. NOT TO SPECIFY SOLE SOURCE WOULD LEAVE THE DOOR OPEN FOR ITEMS WHICH ARE CLAIMED TO BE EQUAL BUT, IN FACT, ARE NOT EQUAL. ADDITIONALLY, REDESIGN CAUSED BY A SUBSTITUTE ITEM COULD, IN TURN, REQUIRE FURTHER REDESIGN OF ASSOCIATED COMPONENTS AND RESULT IN A CHAIN REACTION WHICH WOULD SERIOUSLY DELAY COMPLETION OF THE PROJECT.

"G. WITH REFERENCE TO THE STATEMENTS IN SUBPARAGRAPH D. OF THE FINDINGS AND JUSTIFICATION, THE RECORDERS AND OSCILLOGRAPHS SPECIFIED IN SECTION 34 OF THE SPECIFICATIONS ARE COMPLETE READ-OUT ITEMS IN THEMSELVES AND AS SUCH DO NOT FALL UNDER THE JUSTIFICATION OF THAT SUBPARAGRAPH. THIS IS AS STATED IN THE SECOND SENTENCE OF THAT SUBPARAGRAPH. THE BALANCE OF THAT SUBPARAGRAPH PERTAINS TO SECTION 34 OF THE SPECIFICATIONS EXCLUSIVE OF THE ABOVE MENTIONED ITEMS AND IS TRUE AND CORRECT.

"A. IN THE INSTANCE OF THE STRIP CHART RECORDERS OF PARAGRAPHS 11E AND 11F AND OF THE OSCILLOGRAPHS OF PARAGRAPH 11I. THE PERTINENT JUSTIFICATIONS ARE THESE:

(1) THE INSTRUMENTS SPECIFIED ARE A STANDARD CATALOG ITEM, FULLY DEVELOPED AND HAVING KNOWN SATISFACTORY PERFORMANCE.

(2) INSTRUMENTS AND SUB-ASSEMBLIES ARE INTERCHANGEABLE WITH EXISTING EQUIPMENT.

(3) THESE INSTRUMENTS USE PRESENTLY STOCKED AND READILY AVAILABLE SPARE PARTS AND SUPPLIES.

(4) CERTAIN ESSENTIAL PERFORMANCE FEATURES WERE AVAILABLE ON THESE INSTRUMENTS WHICH WERE NOT AVAILABLE ON OTHER VENDORS' STANDARD ITEMS OF EQUIPMENT.

"C. OSCILLOGRAPH SPECIFIED IN PARAGRAPH 11I OF SECTION 34. SOME OF THE CHARACTERISTICS OF THE NAMED BRAND OSCILLOGRAPH REQUIRED BY THE SPECIFICATIONS ARE TO BE FOUND IN OTHER MANUFACTURER'S EQUIPMENT; HOWEVER, THE SPECIFICATIONS DO NOT LIST COMPLETELY ALL OF THE CHARACTERISTICS EMBODIED IN THE NAMED BRAND EQUIPMENT WHICH ARE CONSIDERED ESSENTIAL. SINCE THE ITEM WAS BEING SPECIFIED AS SOLE SOURCE, FREQUENCIES AND RESPONSES OF THE GALVANOMETERS REQUIRED WERE OMITTED. THERE ARE PRESENTLY AT AEDC 32 GALVANOMETERS WITH A MAXIMUM FREQUENCY OF 5000 CPS AND 94 GALVANOMETERS WITH A MAXIMUM SENSITIVITY OF 1.62 MICRO AMP/INCH. MINNEAPOLIS-HONEYWELL HAS 12 TYPES OF GALVANOMETERS AVAILABLE WHICH HAVE A MAXIMUM FREQUENCY OF 4800 CPS AND A MAXIMUM SENSITIVITY OF 4.10 MICRO AMP/INCH. THE FOUR 36 CHANNEL OSCILLOGRAPHS WILL COST APPROXIMATELY $38,000 TOTAL, EXCLUSIVE OF THE NEEDED GALVANOMETERS. GALVANOMETERS COST FROM $130.00 TO $250.00 EACH, BUT USING A MEAN OF $150.00 EACH AND CONSIDERING 4 TIMES 36, OR 144 GALVANOMETERS, THIS WOULD COST ABOUT $21,600. TO PROVIDE COMPLETE RANGE OF DATA ACQUISITION, 2 MORE COMPLETE SETS WOULD BE REQUIRED AT AN ADDED COST OF $43,200, WITH CONSIDERABLE DOUBT AS TO SUCH MEETING THE LIMIT OF MAXIMUM FREQUENCY AND MAXIMUM SENSITIVITY.

"IF EQUIPMENT OTHER THAN THAT SPECIFIED IS PROVIDED, MORE EXTENSIVE ACCEPTANCE AND PERFORMANCE TESTING WOULD BE REQUIRED. THIS COULD DELAY THE PROGRAM, ESPECIALLY IF THE EQUIPMENT DID NOT PERFORM SATISFACTORILY AND HAD TO BE REPLACED OR REWORKED AS HAVE THE 20 MINNEAPOLIS-HONEYWELL RECORDERS.

"DESIGNATION OF SOLE SOURCE FOR ITEMS SUCH AS SINGLE POINT STRIP CHART RECORDERS, MULTIPOINT STRIP CHART RECORDER AND RECORDING OSCILLOGRAPHS IS JUSTIFIED AND THERE SHOULD BE NO RELAXATION FOR THE PURPOSE OF PERMITTING COMPETITION ON SAME. HOWEVER, IT HAS BEEN DETERMINED THAT CERTAIN OTHER ITEMS WERE NOT REQUIRED TO BE OF A DEFINITE MANUFACTURER AND THERE IS NOW IN PROCESS A MODIFICATION TO THE CONTRACT RELAXING THE REQUIREMENTS FOR THESE ITEMS, DELETING THE WORDAGE "NO SUBSTITUTION PERMITTED" AND ADDING "OR EQUAL.' THESE ARE AS FOLLOWS:

TABLE

PAGE 34-6 CABINET RACKS AND ROLLER TRUCKS.

PAGE 34-6 TYPES A THROUGH E RELAY RACKS.

PAGE 34-6 BLANK PANELS, SHELVES AND DRAWERS.

PAGE 34-12 ELECTRIC CLOCK.

PAGE 34-12 WIND SPEED AND DIRECTIONAL EQUIPMENT. FOUR ITEMS.

PAGE 34-13 BAROMETER.'

BY LETTER OF MAY 3, 1962, MINNEAPOLIS-HONEYWELL HAS SUBMITTED A REPLY TO THE SUPPLEMENTAL STATEMENT OF THE CONTRACTING OFFICER, AND A COPY OF THIS LETTER IS ENCLOSED HEREIN. MUCH OF THE MINNEAPOLIS HONEWELL REPLY CONCERNS THE SUITABILITY OF ITS EQUIPMENT FOR PURPOSES OF THE REQUIRED PERFORMANCE UNDER THIS PROCUREMENT, AND APPEARS TO PUT IN QUESTION EITHER THE GOOD FAITH OR THE COMPETENCE OF THE AIR FORCE OR ARCHITECT-ENGINEER PERSONNEL RESPONSIBLE FOR THE SOLE-SOURCE REQUIREMENTS IN QUESTION.

IN VIEW OF THE FACT THAT THE SUBJECT CONTRACT WAS AWARDED IN JUNE 1961 AND THAT NO PROTEST OF THE SPECIFICATIONS IN QUESTION WAS MADE UNTIL LONG AFTER THE AWARD, AND IT PRESUMABLY WOULD NOT NOW BE FEASIBLE TO MODIFY THE SPECIFICATIONS EVEN IF PROPER, WE WILL INTERPOSE NO OBJECTION TO PAYMENTS UNDER THE CONTRACT. SINCE THE ULTIMATE RESPONSIBILITY FOR THE SPECIFICATIONS APPEARS TO REST UPON THE AIR FORCE, A COPY OF THIS LETTER AND ENCLOSURE IS BEING TRANSMITTED TO THE SECRETARY OF THAT DEPARTMENT. HOWEVER, YOUR ATTENTION IS DIRECTED TO THE FACT THAT THE JUSTIFICATIONS FURNISHED TO THE CONTRACTING OFFICER IN SUPPORT OF THE SOLE SOURCE SPECIFICATIONS APPEAR TO BE SOMEWHAT LESS THAN CONVINCING, IN THAT THEY LEAVE ROOM FOR DOUBT AS TO WHETHER SIMILAR STATEMENTS MIGHT NOT HAVE BEEN MADE WITH RESPECT TO ONE OR MORE OTHER MAKES OR BRANDS OF INSTRUMENTS.