B-155092, OCT. 28, 1964

B-155092: Oct 28, 1964

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TO PARKER AIRCRAFT COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 27. YOU CONTEND THAT YOUR PROPOSAL WAS RESPONSIVE. THAT YOUR OFFERED PRICE WAS EQUAL TO OR BETTER THAN THAT OF YOUR COMPETITOR AND THAT. WAS INTENDED AS A BID QUALIFICATION. YOU SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO DISCUSS THAT QUESTION WITH NAVY REPRESENTATIVES BEFORE THE MAKING OF A CONTRACT AWARD. THE RECORD SUBMITTED BY THE DEPARTMENT OF THE NAVY SHOWS THAT PROPOSALS WERE SOLICITED FROM FOUR FIRMS. IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT YOUR PROPOSAL COULD NOT BE ACCEPTED AND A CONTRACT WAS AWARDED TO VICKERS ON JULY 16. THE CONTRACT PRICE WAS $375 PER UNIT BASED UPON ACCEPTANCE OF FIVE PREPRODUCTION SAMPLES AS PART OF THE REQUIRED DELIVERY OF 97 PUMPS.

B-155092, OCT. 28, 1964

TO PARKER AIRCRAFT COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 27, 1964, PROTESTING THE REJECTION OF YOUR PROPOSAL AND THE ACCEPTANCE OF THE PROPOSAL SUBMITTED BY THE SPERRY RAND CORPORATION, VICKERS INCORPORATED DIVISION, UNDER REQUEST FOR PROPOSAL NO. 1582, ISSUED ON MAY 5, 1964, BY THE NAVAL ORDNANCE PLANT, FOREST PARK, ILLINOIS, COVERING A REQUIREMENT FOR 97 HYDRAULIC PUMPS TO CONFORM TO BUREAU OF WEAPONS DRAWING NO. 2132037, MILITARY SPECIFICATION MIL-MK 46-21, REVISION D, DEVIATION 1, AND SUPPLEMENTARY DOCUMENTATION. YOU CONTEND THAT YOUR PROPOSAL WAS RESPONSIVE, THAT YOUR OFFERED PRICE WAS EQUAL TO OR BETTER THAN THAT OF YOUR COMPETITOR AND THAT, IF THERE EXISTED A DOUBT AS TO WHETHER YOUR COVERING LETTER OF MAY 21, 1964, WAS INTENDED AS A BID QUALIFICATION, YOU SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO DISCUSS THAT QUESTION WITH NAVY REPRESENTATIVES BEFORE THE MAKING OF A CONTRACT AWARD.

THE RECORD SUBMITTED BY THE DEPARTMENT OF THE NAVY SHOWS THAT PROPOSALS WERE SOLICITED FROM FOUR FIRMS. ONE COMPANY DID NOT SUBMIT A PROPOSAL AND ANOTHER COMPANY FAILED TO SUBMIT ITS PROPOSAL ON TIME. THERE REMAINED FOR CONSIDERATION THE PROPOSALS SUBMITTED BY YOUR COMPANY AND THE SPERRY RAND CORPORATION, VICKERS INCORPORATED DIVISION.

ON JUNE 19, 1964, IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT YOUR PROPOSAL COULD NOT BE ACCEPTED AND A CONTRACT WAS AWARDED TO VICKERS ON JULY 16, 1964, FOLLOWING NEGOTIATIONS WITH VICKERS CONCERNING ITS ORIGINALLY OFFERED PRICES AND DELIVERY TERMS. THE CONTRACT PRICE WAS $375 PER UNIT BASED UPON ACCEPTANCE OF FIVE PREPRODUCTION SAMPLES AS PART OF THE REQUIRED DELIVERY OF 97 PUMPS. THAT PRICE WAS THE SAME AS THAT OFFERED BY YOUR COMPANY, SUBJECT TO WAIVER OF THE REQUIREMENT FOR SUBMISSION OF PREPRODUCTION SAMPLES. VICKERS TOOK NO EXCEPTION TO THE TECHNICAL REQUIREMENTS OF THE REQUEST FOR PROPOSAL ALTHOUGH THAT COMPANY INDICATED THAT ITS PRICING WAS TO SOME EXTEND DEPENDENT UPON THE INTERPRETATION GIVEN TO THE TEST DATE REQUIREMENTS OF THE SPECIFICATIONS MADE A PART OF THE REQUEST FOR PROPOSAL.

YOUR PROPOSAL WAS ACCOMPANIED BY LETTER DATED MAY 21, 1964, INDICATING AS YOUR BELIEF THAT THE PUMPS TO BE MANUFACTURED BY THE SUCCESSFUL OFFEROR WERE INTENDED TO BE TURNED OVER TO THE AEROJET GENERAL CORPORATION AS GOVERENMENT-FURNISHED PROPERTY FOR USE IN THE PERFORMANCE OF A CONTRACT BETWEEN THE GOVERNMENT AND AEROJET-GENERAL. YOU STATED THAT YOU WERE BIDDING ON YOUR PART NUMBER H60A0427, WHICH HAD BEEN APPROVED BY AEROJET- GENERAL, AND THAT YOUR PROPOSAL WAS CONTINGENT UPON ACCEPTANCE OF TWO REQUESTED DEVIATIONS (A AND B), FROM SPECIFICATION REQUIREMENTS. DEVIATION REQUEST A WAS BASED UPON A PROPOSED SUBSTITUTION OF INSERTS MS124695 FOR INSERTS MS124735, REQUIRED UNDER PARAGRAPH 3.3.13 OF SPECIFICATION MIL-MK 4621D, BECAUSE THE SPECIFIED INSERTS WERE TOO LONG TO FIT INTO THE PARKER PUMP. DEVIATION REQUEST B RELATED TO PARAGRAPH 3.2.1.5 OF SPECIFICATION MIL MK 4621D WHICH PROVIDES IN PART THAT "UNLESS PROTECTED AGAINST ELECTROLYTIC CORROSION, DISSIMILAR METALS SHALL NOT BE USED IN CONTACT WITH EACH OTHER.'

IN EXPLANATION OF YOUR REQUEST FOR DEVIATION B, YOU STATED THAT THE MATERIALS USED IN YOUR PUMP FOR ALL IMPORTANT PARTS ARE INDENTICAL TO THOSE STANDARIZED FOR ALL PARKER HIGH PRESSURE GEAR PUMPS; THAT ANY DISSIMILAR METALS IN CONTACT WITHIN THE PUMP ARE IN CONSTANT CONTACT WITH THE HYDRAULIC FLUID DURING USE AND STORAGE; THAT THEY ARE, THEREFORE, ADEQUATELY PROTECTED AGAINST CORROSION; AND THAT EXTERNAL PARTS ARE ALUMINUM (ANODIZED) OR STAINLESS STEEL.

IT IS STATED IN YOUR LETTER OF AUGUST 27, 1964, THAT THE REQUIREMENT FOR PREVENTION OF ELECTROLYTIC CORROSION IS FULFILLED BY THE PARKER PUMP, AND THAT THE SUCCESSFUL COMPETITOR'S PUMP CONTAINS THE SAME DISSIMILAR METALS PROTECTED AGAINST ELECTROLYSIS IN THE SAME WAY. ALSO, YOU INDICATED THAT THE NAVY HAD AGREED THAT DEVIATION REQUEST A COULD HAVE BEEN AUTHORIZED.

THE DEPARTMENT OF THE NAVY HAS REPORTED THAT YOUR PROPOSAL WAS NOT CONSIDERED RESPONSIVE BECAUSE IT WAS BASED UPON THE FURNISHING OF EQUIPMENT IDENTIFIED BY PART NUMBER INSTEAD OF AN UNQUALIFIED OFFER TO FURNISH EQUIPMENT WHICH WOULD BE IN ACCORDANCE WITH BUREAU OF WEAPONS DRAWING NO. 2132037, AND THE APPLICABLE SPECIFICATIONS; AND BECAUSE NAVY ENGINEERING PERSONNEL CONSIDERED THAT NO DEVIATION FROM THE REQUIREMENTS OF PARAGRAPH 3.2.1.5 OF SPECIFICATION MIL-MK 4621D SHOULD BE PERMITTED. IT IS THE NAVY'S POSITION THAT, IF A CONTRACT HAD BEEN AWARDED TO YOUR COMPANY, THE GOVERNMENT WOULD HAVE RELINQUISHED THE RIGHT TO REJECT DELIVERIES OF PARKER PUMPS CONFORMING TO PART NUMBER H60A427, EVEN IF SUCH EQUIPMENT DID NOT CONFORM IN ALL MATERIAL RESPECTS TO THE GOVERNMENT'S DRAWINGS AND SPECIFICATIONS, AS MODIFIED BY PERMITTED DEVIATIONS FROM SPECIFICATIONS. WITH RESPECT TO REQUESTED DEVIATION B, THE FOLLOWING COMMENTS WERE FURNISHED IN THE NAVY REPORT ON YOUR PROTEST:

"* * * PARAGRAPH 3.2.1.5 STATES "UNLESS PROTECTED AGAINST ELECTROLYTIC CORROSION, DISSIMILAR METALS SHALL NOT BE USED IN CONTACT WITH EACH OTHER. DISSIMILAR METALS ARE DEFINED IN STANDARD MS-33586.' PARKER AIRCRAFT COMPANY STATES IN ENCLOSURE (2),"THE MATERIALS USED IN OUR PUMP FOR ALL IMPORTANT PARTS ARE IDENTICAL TO THOSE STANDARDIZED FOR ALL PARKER HIGH PRESSURE GEAR PUMPS. ANY DISSIMILAR METALS IN CONTACT WITHIN THE PUMPS ARE IN CONSTANT CONTACT WITH THE HYDRAULIC FLUID DURING USE AND STORAGE.' SUCH STATEMENT MAKES IT NECESSARY FOR THE GOVERNMENT TO ENTIFY,"ALL IMPORTANT PARTS," AS WELL AS,"THOSE STANDARDIZED FOR ALL PARKER HIGH PRESSURE GEAR PUMPS," AND ALSO BE ABLE TO DETERMINE WHETHER THE DISSIMILAR METALS ARE USED IN CONTACT WITH EACH OTHER. THE PROPOSAL, AS INDICATED ABOVE, MERELY SETS FORTH THAT METALS IN CONTACT WITHIN, THE PUMPS ARE PROTECTED BY HYDRAULIC FLUIDS AS REQUIRED BY THE REFERENCED SPECIFICATIONS.

"D. BY DETERMINATION OF STANDARD MS-33586, THE EXTERNAL PARTS OF THE PARKER PUMP BEING ALUMINUM (ANODIZED) OR STAINLESS STEEL, ARE DISSIMILAR, AND IT CANNOT BE DETERMINED WHETHER THEY ARE USED IN CONTACT WITH EACH OTHER. IF THEY ARE IN CONTACT WITH EACH OTHER, THEN THEY MUST, BY THE EXPRESS TERMS OF THE REQUIRED SPECIFICATION, BE PROTECTED BY HYDRAULIC FLUID, BUT BY THE EXPRESS TERMS OF THE PARKER AIRCRAFT PROPOSAL, ARE NOT SO PROTECTED.'

THERE IS NOTHING IN YOUR COMPETITOR'S PROPOSAL TO SHOW THAT ITS OFFERED PUMP WOULD NOT MEET THE REQUIREMENTS OF PARAGRAPH 3.2.1.5 OF MILITARY SPECIFICATION MIL-MK 4621D, AND THE NAVY OBVIOUSLY MAY INSIST UPON DELIVERY OF A PUMP WHICH FULLY MEETS ALL OF THE ESSENTIAL REQUIREMENTS OF THE REQUEST FOR PROPOSAL. THERE MAY BE SOME BASIS FOR CONSIDERING THAT BY STATING THAT YOU WERE BIDDING ON A PARTICULAR PUMP IDENTIFIED BY PART NUMBER YOU WERE NOT NECESSARILY IMPLYING THAT YOU DID NOT INTEND TO COMPLY WITH MOST OF THE REQUIREMENTS OF THE REQUEST FOR PROPOSAL, SINCE, IF THAT WAS THE CASE, IT IS PROBABLE THAT YOU WOULD NOT HAVE REQUESTED SPECIFIC DEVIATIONS FROM SPECIFICATION REQUIREMENTS. HOWEVER, ONE OF THOSE REQUESTED DEVIATIONS PROVED TO BE UNACCEPTABLE TO THE DEPARTMENT OF THE NAVY AND IT HAS CONSISTENTLY BEEN OUR POSITION THAT THE RESPONSIBILITY FOR TECHNICAL EVALUATIONS OF BIDS AND PROPOSALS RESTS WITH THE CONTRACTING AGENCIES OF THE GOVERNMENT AND THAT THEIR DETERMINATIONS MUST GOVERN IN THE ABSENCE OF CLEAR EVIDENCE OF IMPROPRIETY OR ERROR. IT APPEARS THAT THE NAVY HAS FURNISHED A SUFFICIENT JUSTIFICATION FOR CONSIDERING THAT YOUR PROPOSAL WAS NOT RESPONSIVE IN A MATERIAL RESPECT AND THAT THE CONTRACT AWARD SHOULD BE MADE TO VICKERS AS THE ONLY CONCERN WHICH SUBMITTED A COMPLETELY RESPONSIVE PROPOSAL INSOFAR AS THE TECHNICAL REQUIREMENTS OF THE REQUEST FOR PROPOSAL WERE CONCERNED. THE NAVY MIGHT HAVE REQUESTED ADDITIONAL INFORMATION CONCERNING THE SUBSTANCE OF YOUR PROPOSAL BEFORE MAKING THE AWARD TO VICKERS BUT IT IS APPARENT THAT ITS FAILURE TO DO SO CANNOT BE REGARDED AS HAVING AFFECTED THE VALIDITY OF THE AWARD TO VICKERS.

ACCORDINGLY, YOUR PROTEST TO OUR OFFICE IN THE MATTER MUST BE, AND IS, HEREBY DENIED.