B-153566, AUG. 31, 1964

B-153566: Aug 31, 1964

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AMERICAN OPTICAL COMPANY: REFERENCE IS MADE TO YOUR LETTER OF APRIL 17. YOU HAVE PROTESTED THAT DESPITE THE FACT THAT YOUR COMPANY APPLIED FOR INCLUSION ON THE REGULAR BIDDERS MAILING LIST IN MAY 1963. WHICH YOU FEEL ARE RESTRICTIVE. THAT THE AIR FORCE FINDS YOUR PRODUCT ACCEPTABLE AND THE NEEDS OF THE AIR FORCE ARE NOT LIKELY TO BE MATERIALLY LESS STRINGENT. THE CONTRACTING OFFICER HAS ADVISED THAT THE REASON YOUR COMPANY WAS NOT SENT AN INVITATION FOR BIDS UNTIL IT WAS REQUESTED IS THAT BID CATEGORY LISTS ARE NORMALLY PREPARED ONLY WHEN THERE ARE TWO OR MORE SOURCES OF SUPPLY FOR AN INDIVIDUAL ITEM AND SINCE ONLY ONE COMPANY WAS LISTED ON THE QUALIFIED PRODUCTS LIST FOR THE ARTICLE IN QUESTION NO BID CATEGORY LIST EXISTED FOR THE ITEM.

B-153566, AUG. 31, 1964

TO MR. J. T. MONAHAN, AMERICAN OPTICAL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 17, 1964, AND PREVIOUS CORRESPONDENCE, RELATIVE TO THE PROTEST MADE IN CONNECTION WITH DEPARTMENT OF THE NAVY INVITATION IFB-383-647-64.

YOU HAVE PROTESTED THAT DESPITE THE FACT THAT YOUR COMPANY APPLIED FOR INCLUSION ON THE REGULAR BIDDERS MAILING LIST IN MAY 1963, IT DID NOT RECEIVE NOTICE OF THE INSTANT PROCUREMENT UNTIL IT LEARNED OF IT THROUGH A COMMERCIAL ADVISEMENT SERVICE ON JANUARY 21, 1964, AND WROTE FOR COPIES OF THE INVITATION FOR BIDS. YOU ALLEGE FURTHER THAT THE SPECIFICATION IN THE SUBJECT INVITATION HAS BEEN DRAWN AROUND THE PRODUCT OF ONE PARTICULAR MANUFACTURER; THAT THE SPECIFICATION OMITTED TESTING AT CERTAIN FREQUENCIES INCLUDED IN THE AMERICAN STANDARDS ASSOCIATION (ASA) METHOD FOR MEASUREMENT OF ATTENUATION INCORPORATED BY REFERENCE INTO THE SPECIFICATION; THAT BUT FOR FAILURE TO MEET CERTAIN SPECIFIC DESIGN CRITERIA, WHICH YOU FEEL ARE RESTRICTIVE, THE PRODUCT OF YOUR COMPANY MET THE SOUND ATTENUATION REQUIREMENTS; AND THAT THE AIR FORCE FINDS YOUR PRODUCT ACCEPTABLE AND THE NEEDS OF THE AIR FORCE ARE NOT LIKELY TO BE MATERIALLY LESS STRINGENT.

THE CONTRACTING OFFICER HAS ADVISED THAT THE REASON YOUR COMPANY WAS NOT SENT AN INVITATION FOR BIDS UNTIL IT WAS REQUESTED IS THAT BID CATEGORY LISTS ARE NORMALLY PREPARED ONLY WHEN THERE ARE TWO OR MORE SOURCES OF SUPPLY FOR AN INDIVIDUAL ITEM AND SINCE ONLY ONE COMPANY WAS LISTED ON THE QUALIFIED PRODUCTS LIST FOR THE ARTICLE IN QUESTION NO BID CATEGORY LIST EXISTED FOR THE ITEM. HOWEVER, WE ARE ADVISED THAT THE INVITATION WAS SYNOPSIZED AND PUBLISHED IN THE "COMMERCE BUSINESS DAILY" SO THAT PROSPECTIVE BIDDERS WERE PUT ON NOTICE OF THE PROCUREMENT. IN ANY EVENT, IN THE PARTICULAR CASE OF YOUR COMPANY, IT LEARNED OF THE PROCUREMENT IN ADVANCE OF THE BID OPENING DATE AND THAT DATE WAS FURTHER POSTPONED TO PROVIDE IT AN OPPORTUNITY TO QUALIFY ITS PRODUCT. IN THAT REGARD, THE CONTRACTING OFFICER DISPUTES THAT THE TEST PROCEDURES USED IN TESTING YOUR COMPANY'S PRODUCT WERE COMPROMISED BECAUSE OF THE TIME ALLOTTED FOR PERFORMING THE TESTING.

THE CONTRACTING OFFICER HAS ACKNOWLEDGED THAT THE SPECIFICATION WAS PATTERNED AFTER THE PRODUCT MANUFACTURED BY A PARTICULAR MANUFACTURER. IS REPORTED THAT THE DEVICE COVERED BY THE SPECIFICATION WAS DEVELOPED BY THE DAVID CLARK COMPANY UNDER CONTRACT TO THE NAVY AND THAT WHILE THE ARTICLE HAS BEEN PATENTED BY THAT COMPANY, THE NAVY HAS ACQUIRED A LICENSE UNDER THE PATENT IN QUESTION SO THAT NO SOURCE IS PREVENTED FROM MANUFACTURING THE DEVICE FOR THE NAVY. IT IS REPORTED FURTHER THAT THE SPECIFICATION DESIGN IS DICTATED BY THE HEALTH HAZARDS TO HEARING INCIDENT TO CLOSE PROXIMITY TO LIVE AIRCRAFT ON CARRIER FLIGHT DECKS. IN THE NAVY VIEWPOINT, CLOSE PROXIMITY OF FLIGHT DECK PERSONNEL TO LAUNCHING AIRCRAFT AND TO MANY OTHER AIRCRAFT WITH ENGINES OPERATING, HIGH WIND CONDITIONS, THE NEED TO BE IDENTIFIED WITH COLORED CLOTH HELMETS TO WHICH IMPACT PROTECTIVE SHELLS, PADS AND GOGGLES ARE ATTACHED AND THE INTEGRATION OF SOUND ATTENUATION DEVICES WITH THOSE HELMETS ARE FACTS SUPPORTING REQUIREMENTS IN THE NAVY MORE STRINGENT THAN THE AIR FORCE.

THE CONTRACTING OFFICER HAS ADVISED THAT WHILE THE ASA TEST PROCEDURE REQUIRES TESTING AT 3,000 AND 6,000 CPS, NAVY HEARING EXPERTS DO NOT BELIEVE TESTS AT THOSE FREQUENCIES ARE NECESSARY FOR THE SOUND ATTENUATION DEVICES. IT IS STATED THAT THOSE FREQUENCIES ARE NOT SIGNIFICANT BECAUSE THEY ARE HALF-OCTAVE POINTS.

MOREOVER, IT IS REPORTED THAT ATTENUATION IS THE PRIME CONSIDERATION AND WAS THE MAJOR REASON FOR REJECTION OF YOUR COMPANY'S PRODUCT. IN THAT REGARD, YOU HAVE STATED THAT THE TEST RESULTS ARE SATISFACTORY WHEN INTERPRETED IN TERMS OF GRAND MEAN AND STANDARD DEVIATION PROVIDED FOR IN PARAGRAPH 7.1.2.2 OF THE ASA METHOD FOR MEASUREMENT REFERENCED IN PARAGRAPH 4.6.5 OF THE SPECIFICATION.

PARAGRAPH 4.6.5 OF THE SPECIFICATION PROVIDES:

"SOUND ATTENUATION OF SOUND AURAL PROTECTOR - THE ATTENUATION OF THE AURAL PROTECTOR SHALL BE MEASURED IN ACCORDANCE WITH AMERICAN STANDARDS ASSOCIATION STANDARD METHOD Z-24.22-1957 FOR MEASURING REAL EAR ATTENUATION. MEASUREMENT SHALL BE TO NEAREST 0.1 DECIBEL. THERE SHALL BE THIRTY DETERMINATIONS PER FREQUENCY PER SAMPLE UNIT.'

PARAGRAPH 7.1.2.2 OF THE ASA METHOD FOR MEASUREMENT STATES:

"THESE INDIVIDUAL MEASURES SHALL BE SUMMARIZED, FOR EACH FREQUENCY, IN TERMS OF A GRAND MEAN AND THE STANDARD DEVIATION.'

PARAGRAPH 4.6.5 DOES NOT INDICATE THAT ANYTHING MORE THAN THE MANNER OF MEASURING IN THE ASA STANDARD IS BEING ADOPTED. PARAGRAPH 7.1.2.2 OF THE ASA STANDARD IS A REQUIREMENT UNDER THE SECTION ON "MEASUREMENTS TO BE REPORTED" AND IS A REPORTING PROCEDURE RATHER THAN A MEASURING PROCEDURE AND THUS NOT SPECIFICALLY INCORPORATED INTO THE NAVY SPECIFICATION. THEREFORE DOES NOT APPEAR THAT THE NAVY UNDER THE NAVY SPECIFICATION WAS REQUIRED TO CONSIDER ANY MORE THAN THE RESULTS ON EACH INDIVIDUAL TEST.

THE RESPONSIBILITY FOR DETERMINING PROCUREMENT NEEDS, FOR DRAFTING SPECIFICATIONS WHICH REFLECT THOSE NEEDS AND FOR DETERMINING WHETHER ARTICLES OFFERED MEET THE SPECIFICATIONS IS WITHIN THE PROVINCE OF THE GOVERNMENT ADMINISTRATIVE OFFICERS. 17 COMP. GEN. 554. AND A PROCURING ACTIVITY IS NOT REQUIRED TO PURCHASE EQUIPMENT NOT FULFILLING THE PARTICULAR NEEDS SOLELY BECAUSE IT CAN BE PURCHASED AT A LOWER PRICE. COMP. GEN. 251, 252.

IN VIEW OF THE FOREGOING, WE COULD NOT PROPERLY QUESTION THE REFUSAL OF THE ADMINISTRATIVE AGENCY TO QUALIFY YOUR PRODUCT. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.

IN YOUR APRIL 17 LETTER YOU INDICATED THAT AS OF THAT TIME YOUR COMPANY HAD NOT RECEIVED DETAILED RESULTS OF THE TESTS MADE ON ITS PRODUCT. IT IS OUR UNDERSTANDING THAT DETAILED TEST RESULTS WERE SUBSEQUENTLY FURNISHED YOUR COMPANY BY NAVAL AIR ENGINEERING CENTER LETTER OF MAY 22, 1964.