B-151467, NOV. 8, 1963

B-151467: Nov 8, 1963

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THIS AWARD WAS MADE PURSUANT TO REQUEST FOR QUOTATIONS NO. 383-261464-63 ISSUED BY THE NAVAL AVIATION SUPPLY OFFICE (HEREAFTER REFERRED TO AS ASO). YOUR PROTEST ALLEGES THAT THE SPECIFICATIONS FOR THIS PROCUREMENT WERE UNFAIR TO FLEXIBLE TUBING CORPORATION. IN THIS REGARD YOU CONTEND THAT FLEXIBLE TUBING CORPORATION WAS REQUIRED TO SUBMIT A BID ON A PRODUCT WHICH HAD BEEN APPROVED FOR LISTING ON THE QUALIFIED PRODUCTS LIST (HEREAFTER REFERRED TO AS QPL) IN ACCORD WITH THE APPLICABLE MILITARY SPECIFICATION WHILE H. WAS PERMITTED TO SUBMIT A BID ON A PRODUCT WHICH HAD NOT BEEN APPROVED FOR THE QPL. IN THIS PROCUREMENT WERE UNREASONABLY LOW AND CONSTITUTED AN ANTI-TRUST VIOLATION. IT WAS DETERMINED THAT THESE DUCTS WOULD BE REQUIRED WITHIN 30 DAYS SINCE THE REPLACEMENT LEVEL FOR WORN-OUT DUCTS HAD BECOME CRITICALLY LOW.

B-151467, NOV. 8, 1963

TO HOWREY, SIMON, BAKER AND MURCHISON:

WE REFER TO YOUR TELEGRAM OF MAY 6, 1963 AND LETTERS DATED JUNE 6, 1963 AND AUGUST 9, 1963, ON BEHALF OF FLEXIBLE TUBING CORPORATION, GUILFORD, CONNECTICUT, PROTESTING THE AWARD TO H. K. PORTER COMPANY, INCORPORATED, THERMOID DIVISION, TACONY AND COMLY STREETS, PHILADELPHIA, PENNSYLVANIA, OF CONTRACT NO. N-383-81359A FOR THE PROCUREMENT OF 326 PNEUMATIC JET STARTER DUCTS (600 DEGREES F.) FOR THE DEPARTMENT OF THE NAVY. THIS AWARD WAS MADE PURSUANT TO REQUEST FOR QUOTATIONS NO. 383-261464-63 ISSUED BY THE NAVAL AVIATION SUPPLY OFFICE (HEREAFTER REFERRED TO AS ASO), PHILADELPHIA, PENNSYLVANIA, ON FEBRUARY 7, 1963.

YOUR PROTEST ALLEGES THAT THE SPECIFICATIONS FOR THIS PROCUREMENT WERE UNFAIR TO FLEXIBLE TUBING CORPORATION, AND IN THIS REGARD YOU CONTEND THAT FLEXIBLE TUBING CORPORATION WAS REQUIRED TO SUBMIT A BID ON A PRODUCT WHICH HAD BEEN APPROVED FOR LISTING ON THE QUALIFIED PRODUCTS LIST (HEREAFTER REFERRED TO AS QPL) IN ACCORD WITH THE APPLICABLE MILITARY SPECIFICATION WHILE H. K. PORTER COMPANY, INCORPORATED, WAS PERMITTED TO SUBMIT A BID ON A PRODUCT WHICH HAD NOT BEEN APPROVED FOR THE QPL. YOU QUESTION THE RESPONSIBILITY OF H. K. PORTER COMPANY, INCORPORATED, AND IN THIS REGARD YOU CITE PREVIOUS CONVICTIONS OF H. K. PORTER COMPANY, INCORPORATED, FOR ANTI-TRUST VIOLATIONS. YOU ALSO CONTEND THAT THE PRICES SUBMITTED BY H. K. PORTER COMPANY, INCORPORATED, IN THIS PROCUREMENT WERE UNREASONABLY LOW AND CONSTITUTED AN ANTI-TRUST VIOLATION.

ON JANUARY 10, 1963, ASO PREPARED THE REQUISITION FOR THE PROCUREMENT OF THESE 326 JET STARTER DUCTS (600 DEGREES F.) AND IT WAS DETERMINED THAT THESE DUCTS WOULD BE REQUIRED WITHIN 30 DAYS SINCE THE REPLACEMENT LEVEL FOR WORN-OUT DUCTS HAD BECOME CRITICALLY LOW. PRIOR PROCUREMENT HISTORY INDICATED THAT TWO SOURCES, FLEXIBLE TUBING CORPORATION AND H. K. PORTER COMPANY, INCORPORATED, WERE CURRENTLY AVAILABLE TO FULFILL THE REQUIREMENTS FOR THESE DUCTS. THE DUCT MANUFACTURED BY FLEXIBLE TUBING CORPORATION AS PART NO. FT-3565 RECEIVED TECHNICAL APPROVAL FROM THE BUREAU OF WEAPONS, DEPARTMENT OF THE NAVY, FOR LISTING ON THE QPL IN AUGUST 1962. THE DUCT MANUFACTURED BY H. K. PORTER COMPANY, INCORPORATED, AS PART NO. 51135 HAD NOT RECEIVED THIS TECHNICAL APPROVAL FROM BUREAU OF WEAPONS FOR LISTING ON THE QPL. HOWEVER, THE 600 DEGREE PORTER DUCT PART NO. 51135 HAD PREVIOUSLY BEEN PURCHASED BY ASO AS REPLACEMENTS FOR WORN OUT 600 DEGREE DUCTS AND THE PORTER DUCT PART NO. 51135 WAS THE ORIGINAL 600 DEGREE DUCT INSTALLED FOR JET AIRCRAFT IN CONNECTION WITH THE STARTER UNIT MANUFACTURED BY THE AIRESEARCH MANUFACTURING CORPORATION AND IN THIS REGARD THE PORTER DUCT WAS SPECIFICALLY ADAPTED FOR USE IN CONNECTION WITH THE AIRESEARCH COMPRESSOR AND POWER UNITS AFTER EXTENSIVE RESEARCH AND TESTING. THE APPLICABLE MILITARY SPECIFICATION APPROVED BY THE BUREAU OF WEAPONS FOR THE PROCUREMENT OF 600 DEGREE F. PNEUMATIC JET STARTER DUCTS, MIL-D-22706 (WEP), PROVIDED THAT THE DUCTS FURNISHED PURSUANT TO THIS SPECIFICATION BE DUCTS WHICH HAD BEEN APPROVED FOR LISTING ON THE APPLICABLE QPL. HOWEVER, AT THE TIME THE REQUEST FOR QUOTATIONS FOR THESE DUCTS WAS ISSUED, THE APPLICABLE MILITARY SPECIFICATION WAS UNDER REVIEW BY BUREAU OF WEAPONS AND IT WAS EXPECTED THAT THE REVISED SPECIFICATION WOULD NOT BE ISSUED FOR 90 DAYS.

ON JANUARY 21, 1963, ASO NOTIFIED BUREAU OF WEAPONS OF THE REQUIREMENT FOR THE PROCUREMENT OF 326 PNEUMATIC JET STARTER DUCTS (600 DEGREES F.) AND ASO RECOMMENDED THAT THIS PROCUREMENT BE BY PART NUMBER. BUREAU OF WEAPONS DID NOT OBJECT TO THIS ACTION AT THIS TIME. ON FEBRUARY 7, 1963 ASO ISSUED REQUEST FOR QUOTATIONS NO. 383 261464-63 FOR THE PROCUREMENT OF THE 326 PNEUMATIC JET STARTER DUCTS (600 DEGREES F.) AND THE SPECIFICATIONS FOR THESE DUCTS WERE LISTED IN PERTINENT PART AS FOLLOWS:

TABLE

"SPARE PARTS FOR SUPPORT OF RCPP105, RCPT105,

MD-3A POWER PACKAGES. PACK 1 PER UNIT PKG.

1. HOSE--- 600 DEGREE 20 FT LENGTH (WITH SCUFFER JACKET, LESS

END FITTINGS)

PART NO.

H. K. PORTER 51135-00-00-20

FLEXIBLE TUBING FT 3565

STOCK NO.

RM4720-833-2589-R830"

CONCERNING THE PROCUREMENT OF THESE ITEMS BY NEGOTIATION RATHER THAN FORMAL ADVERTISING THE CONTRACTING OFFICER FOUND THAT COMPETITION FOR THESE ITEMS WAS IMPRACTICABLE. IT WAS FOUND THAT PREPRODUCTION TESTING OF THESE ITEMS WOULD NOT BE FEASIBLE AS THE ITEMS WERE REQUIRED WITHIN 30 DAYS; THEREFORE, THE DETERMINATION WAS MADE TO LIMIT THIS PROCUREMENT TO DUCTS WHICH DID NOT REQUIRE TESTING TO DETERMINE ACCEPTABILITY. THE ESTIMATED COST FOR THIS PROCUREMENT WAS $86,325.

ON MARCH 18, 1963, FLEXIBLE TUBING CORPORATION DIRECTED A TELEGRAM TO THE BUREAU OF WEAPONS PROTESTING AN AWARD TO ANY BIDDER WHOSE PRODUCT HAD NOT QUALIFIED FOR QPL LISTING PRIOR TO AWARD UNDER THE APPLICABLE MILITARY SPECIFICATION CITED ABOVE. SUBSEQUENT TO THIS PROTEST THE FOLLOWING CORRESPONDENCE TOOK PLACE BETWEEN ASO AND BUREAU OF WEAPONS TO DETERMINE THE ACCEPTABILITY OF THE PORTER DUCT, PART NO. 51135, FOR THE REQUIREMENTS OF THIS PROCUREMENT. ON APRIL 2, 1963 THE BUREAU OF WEAPONS NOTIFIED ASO THAT NO DEFICIENCY OR FAILURE REPORTS FROM USING ACTIVITIES HAD BEEN RECEIVED IN CONNECTION WITH THE PORTER DUCT, PART NO. 51135. ON APRIL 19, 1963, ASO REQUESTED THAT BUREAU OF WEAPONS CONFIRM ITS TECHNICAL APPROVAL OF THE PORTER DUCT, PART NO. 51135 AND THAT BUREAU OF WEAPONS CONFIRM THAT THIS DUCT MEETS THE REQUIREMENTS OF THE DEPARTMENT OF THE NAVY. IN THIS LETTER ASO ALSO SUBMITTED ITS TECHNICAL COMMENTS CONCERNING CERTAIN UNFAVORABLE TEST REPORTS WHICH HAD BEEN RECEIVED BY THE BUREAU OF WEAPONS IN CONNECTION WITH THE PORTER DUCT, PART NO. 51135. BUREAU OF WEAPONS CONFIRMED ITS TECHNICAL APPROVAL OF THE PORTER DUCT TO ASO ON APRIL 29, 1963. THIS APPROVAL WAS BASED IN PART ON THE PRIOR SATISFACTORY SERVICE USE OF THE PORTER DUCT, PART NO. 51135 AND WAS BASED IN PART ON THE RESULTS OF TESTS PERFORMED ON THE PORTER DUCT AT THE PATUXENT NAVAL AIR TEST CENTER, PATUXENT, MARYLAND, WHICH CONCLUDED THAT THE PORTER DUCT WAS ACCEPTABLE FOR SERVICE USE. IN THIS REGARD FURTHER INVESTIGATION OF THIS TEST REPORT BY THIS OFFICE HAS REVEALED THAT THE TESTS AT PATUXENT WERE PROBABLY CONDUCTED ON THE PORTER DUCT, PART NO. 51154, AN IMPROVED VERSION OF THE PORTER DUCT, PART NO. 51135. WE ARE INFORMED THAT THE PORTER DUCT, PART NO. 51154 IS PRESENTLY BEING USED BY THE DEPARTMENT OF THE AIR FORCE.

BOTH FLEXIBLE TUBING CORPORATION AND THE H. K. PORTER COMPANY, INCORPORATED, SUBMITTED PROPOSALS FOR THIS PROCUREMENT. THE H. K. PORTER COMPANY, INCORPORATED, PROPOSAL QUOTED A PRICE OF $205 EACH OR $66,083 FOR THE 326 DUCTS SPECIFIED WHILE THE FLEXIBLE TUBING CORPORATION PROPOSAL QUOTED A PRICE OF $242.71 EACH OR $79,123.46 FOR THE 326 DUCTS. ON THE BASIS OF THESE PROPOSALS CONTRACT NO. N383 81359A WAS AWARDED TO THE H. K. PORTER COMPANY, INCORPORATED, ON MAY 7, 1963. WE ARE INFORMED THAT THE H. K. PORTER COMPANY, INCORPORATED, BEGAN DELIVERIES UNDER THIS CONTRACT ON MAY 24, 1963, AND THAT DELIVERIES WERE COMPLETED ON JUNE 14, 1963. ON MAY 6, 1963, YOU DIRECTED A TELEGRAM TO THIS OFFICE REQUESTING THAT THE AWARD TO THE H. K. PORTER COMPANY, INCORPORATED, BE CANCELLED AND ON JUNE 6, 1963 AND AUGUST 9, 1963 YOU SUBMITTED YOUR ALLEGATIONS IN REGARD TO THIS PROTEST TO THIS OFFICE.

IN SITUATIONS OF THIS NATURE WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE AGENCY ON WHOSE BEHALF THE PROCUREMENT IS MADE. IT ALSO HAS BEEN HELD THAT THE ADVERTISING STATUTES REQUIRE EVERY EFFORT TO BE MADE TO DRAW SPECIFICATIONS IN SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE GOVERNMENT'S NEEDS, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE USING AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY'S OPINION IS IN ERROR AND THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATIONS WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE A VIOLATION OF LAW. SEE 17 COMP. GEN. 554; B-148964 AUGUST 21, 1962.

IN THESE CIRCUMSTANCES IT HAS NOT BEEN SHOWN THAT THE DETERMINATION BY ASO THAT EITHER THE FLEXIBLE DUCT OR THE PORTER DUCT DESCRIBED IN THE GOVERNMENT SPECIFICATIONS WOULD MEET THE ACTUAL NEEDS OF THE GOVERNMENT WAS CLEARLY ERRONEOUS OR THAT THESE SPECIFICATIONS WERE UNDULY RESTRICTIVE OF COMPETITION. THE DETERMINATION TO REQUIRE PROPOSALS ON THE PART NUMBERS LISTED IN THESE SPECIFICATIONS WAS BASED ON AN URGENT REQUIREMENT. IF ASO HAD INSERTED AN "OR EQUAL" PROVISION IN CONNECTION WITH THE PORTER PART NUMBER LISTED IN THE SPECIFICATIONS PREPRODUCTION TESTING OF THE "OR EQUAL" PRODUCTS WOULD HAVE BEEN REQUIRED. AS STATED ASO DETERMINED THAT SUCH TESTING WAS NOT FEASIBLE BECAUSE THE ITEMS SPECIFIED IN THIS PROCUREMENT WERE NEEDED WITHIN 30 DAYS. WHILE A SUBSEQUENT REVIEW OF THIS RECORD MAY INDICATE THAT THE ORIGINAL ASO DETERMINATION OF URGENCY WAS NOT AS EXTREME AS DETERMINED TO BE IN FEBRUARY 1963, AT THE TIME THIS REQUEST FOR PROPOSALS WAS ISSUED, WE CANNOT QUESTION THAT THE STOCK LEVEL FOR THESE ITEMS HAD BECOME CRITICALLY LOW AS ASO STATES AND THAT URGENCY TO REPLACE THE WORN-OUT DUCTS DID EXIST. WE DO NOT BELIEVE THAT ERROR CAN BE IMPUTED TO ASO ON THE BASIS THAT THE PORTER DUCT DID NOT TECHNICALLY MEET THE ACTUAL REQUIREMENTS OF THE DEPARTMENT OF THE NAVY. THE ASO DETERMINATION IN THIS REGARD WAS BASED ON THE TECHNICAL APPROVAL OF THE PORTER DUCT, PART NO. 51135 FROM THE BUREAU OF WEAPONS. WHILE THIS TECHNICAL APPROVAL FROM THE BUREAU OF WEAPONS TO ASO WAS BASED IN PART ON THE PATUXENT NAVAL AIR TEST CENTER REPORT WHICH HAS NOW BECOME SUBJECT TO QUESTION, AN OVERALL REVIEW OF THE RECORD INDICATES THAT THE BUREAU OF WEAPONS HAD A SUFFICIENT BASIS IN ADDITION TO THE PATUXENT REPORT, CONSIDERING THE PRIOR SERVICE USE OF THE PORTER DUCT, PART NO. 51135, FOR GIVING ITS TECHNICAL APPROVAL FOR THIS PROCUREMENT OF THE PORTER DUCT. BOTH OF THE DUCTS SPECIFIED IN THIS REQUEST FOR PROPOSALS APPARENTLY MET THE ACTUAL NEEDS OF THE GOVERNMENT AS ADMINISTRATIVELY DETERMINED, AND IN THESE CIRCUMSTANCES WE FIND NO BASIS TO CONCLUDE THAT THE AWARD TO THE H. K. PORTER COMPANY, INCORPORATED, WAS INVALID.

AS WE HAVE NO EVIDENCE THAT THE H. K. PORTER COMPANY, INCORPORATED, HAD BEEN PLACED ON THE DEBARRED LIST AT THE TIME OF THIS PROCUREMENT AND AS PORTER WAS ADMINISTRATIVELY DETERMINED TO BE RESPONSIBLE WE WILL NOT QUESTION THE AWARD MADE TO THE H. K. PORTER COMPANY, INCORPORATED, SOLELY ON THE BASIS OF THE EVIDENCE PRESENTED BY YOU CONCERNING PORTER'S RESPONSIBILITY. WE HAVE REVIEWED YOUR CONTENTION THAT THE PRICES QUOTED BY H. K. PORTER COMPANY, INCORPORATED, IN ITS BID CONSTITUTED AN ANTI- TRUST VIOLATION AND DO NOT FIND THEREIN SUCH CONCLUSIVE EVIDENCE AS TO REQUIRE INTERFERENCE WITH THE AWARD TO H. K. PORTER COMPANY, INCORPORATED, ON THIS BASIS.

IN VIEW OF THE FOREGOING REASONS YOUR PROTEST IS DENIED.

WE ARE ENCLOSING COPIES OF THE CORRESPONDENCE OF APRIL 2, 1963, AND APRIL 9, 1963, BETWEEN THE BUREAU OF WEAPONS AND ASO AS YOU REQUESTED.