B-156141, AUG. 2, 1965

B-156141: Aug 2, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED APRIL 16 AND CONFIRMING LETTERS DATED APRIL 29 AND JUNE 12. THE INVITATION WAS ISSUED ON DECEMBER 18. IT APPEARS THAT FOUR BIDS WERE TIMELY RECEIVED IN RESPONSE TO THE INVITATION INCLUDING A LOW BID SUBMITTED BY YOUR COMPANY WHICH RANGED FROM UNIT PRICES OF $29. THE FOUR BIDS RECEIVED WERE FORWARDED TO THE UNITED STATES NAVY MARINE ENGINEERING LABORATORY. FOR TECHNICAL EVALUATION ON THE BASIS OF THE DESCRIPTIVE LITERATURE THAT WAS REQUIRED TO BE FURNISHED WITH EACH BID. YOUR BID WAS DETERMINED TO BE NONRESPONSIVE TO THE SPECIFICATION REQUIREMENTS AND THEREFORE THE NAVY PROPOSES TO MAKE AN AWARD OF THE CONTRACT TO THE JOY MANUFACTURING COMPANY AS THE LOWEST RESPONSIVE BIDDER.

B-156141, AUG. 2, 1965

TO THE RIX COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED APRIL 16 AND CONFIRMING LETTERS DATED APRIL 29 AND JUNE 12, 1965, PROTESTING THE AWARD OF ANY CONTRACT UNDER NAVY PURCHASING OFFICE INVITATION NO. IFB600-406-65 TO ANY FIRM OTHER THAN YOUR COMPANY.

THE INVITATION WAS ISSUED ON DECEMBER 18, 1964, BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON NAVY YARD, WASHINGTON, D.C., AND SOLICITED BIDS FOR THE FURNISHING OF SEVERAL ITEMS OF CERTAIN TYPES OF AIR COMPRESSORS, INCLUDING OPTION ITEMS, ONE OF WHICH COVERED CERTAIN REPAIR PARTS. IT APPEARS THAT FOUR BIDS WERE TIMELY RECEIVED IN RESPONSE TO THE INVITATION INCLUDING A LOW BID SUBMITTED BY YOUR COMPANY WHICH RANGED FROM UNIT PRICES OF $29,398 TO $31,478 ON THE BASIC ITEMS, THE SECOND LOW BID SUBMITTED BY THE JOY MANUFACTURING COMPANY, WASHINGTON, D.C., RANGING IN UNIT PRICES ON THE BASIC ITEMS FROM $37,500 TO $39,710 AND TWO OTHER HIGHER BIDS. THE FOUR BIDS RECEIVED WERE FORWARDED TO THE UNITED STATES NAVY MARINE ENGINEERING LABORATORY, ANNAPOLIS, MARYLAND, ON FEBRUARY 1, 1965, FOR TECHNICAL EVALUATION ON THE BASIS OF THE DESCRIPTIVE LITERATURE THAT WAS REQUIRED TO BE FURNISHED WITH EACH BID. IN THIS REGARD, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE TO THE SPECIFICATION REQUIREMENTS AND THEREFORE THE NAVY PROPOSES TO MAKE AN AWARD OF THE CONTRACT TO THE JOY MANUFACTURING COMPANY AS THE LOWEST RESPONSIVE BIDDER.

IN YOUR TELEGRAM AND YOUR LETTERS DATED APRIL 29 AND JUNE 12, 1965, YOU CONTEND, IN SUPPORT OF YOUR PROTEST, THAT YOU WERE THE LOW BIDDER BY MORE THAN $9,000 PER UNIT AND THAT YOUR BID DID CONFORM TO THE SPECIFICATION REQUIREMENTS IN ALL SUBSTANTIAL RESPECTS INCLUDING THE THREE EXCEPTIONS TAKEN BY THE DEPARTMENT OF THE NAVY THAT MANUAL UNLOADING FOR THE COMPRESSOR IS NOT OFFERED, CONDENSATE DRAINAGE OR BLOW DOWN SYSTEM IS NOT SATISFACTORY AND THAT PRESSURE GAUGES ARE NOT FITTED WITH SNUBBERS. YOUR LETTER OF JUNE 12 YOU STATE THAT MANUAL UNLOADING FOR THE COMPRESSOR WAS PROVIDED BY THE INDIVIDUAL SOLENOID VALVES FOR EACH STAGE. THESE VALVES WOULD BE ENERGIZED BY A SINGLE PUSH BUTTON CONVENIENTLY LOCATED FOR THE OPERATOR TO MANUALLY PUSH TO UNLOAD ALL FOUR STAGES AT ANY TIME HE SAW FIT WHETHER THE COMPRESSOR WAS RUNNING OR STOPPED. THE SYSTEM FOR CONDENSATE DRAINAGE IS, YOU STATE, ONE REQUIRING SEPARATE PIPING OF THE SYSTEM AND NOT REQUIRING COMMON DRAINAGE. THE REQUIREMENT FOR SNUBBERS, YOU STATE, IS RECOGNIZED BUT THAT DETAIL IS NOT CUSTOMARILY SHOWN ON AN "AIR FLOW SCHEMATIC DRAWING.' YOU STATE FURTHER THAT THE SNUBBERS ARE OF INSIGNIFICANT COST AND WOULD BE SUPPLIED BY YOUR COMPANY TO MEET THE PERFORMANCE AND ENDURANCE TESTS.

COMMUNICATIONS DATED APRIL 14 AND JUNE 30, 1965, FROM THE UNITED STATES NAVY MARINE ENGINEERING LABORATORY CONTAIN THE INFORMATION THAT UPON EVALUATION OF YOUR BID ON THE BASIS OF THE DESCRIPTIVE LITERATURE FURNISHED BY YOU IT WAS FOUND THAT THE EQUIPMENT YOU OFFERED DID NOT CONFORM TO THE SPECIFICATION REQUIREMENTS. PARAGRAPH 4.7 OF THE INVITATION, AS AMENDED, PROVIDED AS FOLLOWS:

"4.7 INFORMATION TO BE FURNISHED WITH BIDS.--- IN ORDER TO PERMIT TECHNICAL EVALUATION OF THE BID PROPOSALS FOR CONFORMANCE WITH THE REQUIREMENTS, IT IS ESSENTIAL THAT THE FOLLOWING INFORMATION BE FURNISHED WITH EACH BID; FAILURE TO INCLUDE THE REQUIRED INFORMATION SHALL RENDER THE BID NONRESPONSIVE:

"A. SCHEMATIC DRAWING OF THE COOLING SYSTEM, INDICATING LOCATION AND IDENTITY OF COMPONENTS AND CONTROLS.

"B. SCHEMATIC DRAWING OF THE AIR FLOW, INDICATING LOCATION AND IDENTITY OF COMPONENTS AND CONTROLS.

"C. DRAWING OR SKETCH OF THE ASSEMBLY ARRANGEMENT INCLUDING INSTRUMENT AND CONTROL PANELS AND SKID.

"D. DRAWING OR SKETCH OF THE ENCLOSURE SHOWING ACCESS OPENINGS AND UTILITY CONNECTION POINTS.

ON PAGE 4 OF THE INVITATION UNDER "NOTICE" BIDDERS WERE REQUIRED TO FURNISH INFORMATION REGARDING PRIOR EXPERIENCE WITH LIKE OR SIMILAR COMPRESSORS. IT IS REPORTED BY THE DEPARTMENT OF THE NAVY THAT MANUAL UNLOADING IS REQUIRED BY PARAGRAPH 3.5.2.1 OF THE INVITATION AND THAT THE SYSTEM FOR CONDENSATE DRAINAGE IS DEFINED IN TERMS OF PERFORMANCE IN PARAGRAPH 3.5.8.1. WHILE THIS PARAGRAPH DOES NOT DEFINE THE DESIGN WHEREBY SAFE AND EFFICIENT CONDENSATE DRAINAGE SHALL BE ACHIEVED, MINIMAL ENGINEERING PRECEDENCE WOULD DICTATE THAT THIS IS A CRITICAL ASPECT OF THE DESIGN OF THE COMPRESSOR, BOTH IN TERMS OF SAFETY TO PERSONNEL AND EFFICIENCY OF THE COMPRESSOR. THE REQUIREMENT TO SHOW SNUBBERS IS FULLY EXPRESSED IN PARAGRAPH 4.7, SUBITEM "B," WHICH REQUIRED THE SCHEMATIC OF THE AIRFLOW TO INDICATE THE LOCATION AND IDENTITY OF COMPONENTS.

IT IS FURTHER REPORTED THAT THE EVALUATION OF YOUR OFFERING REVEALED THAT THE MANUAL UNLOADING FOR THE COMPRESSOR WAS NOT INCLUDED IN HE DESCRIPTIVE LITERATURE PROVIDED BY YOUR BID. YOUR EXPLANATION, THAT THE SOLENOID VALVES SHOWN IN THE DESCRIPTIVE LITERATURE FURNISHED WITH YOUR BID WOULD PERFORM AS THE MANUAL UNLOADING VALVES, IS UNACCEPTABLE BECAUSE THE SOLENOID VALVE WOULD DEPEND UPON INTERMEDIATE ELECTRICAL CIRCUITRY BETWEEN THE VALVE AND THE PUSH BUTTON. SUCH A SYSTEM IS FRAUGHT WITH AN INFINITE VARIETY OF POSSIBLE MALFUNCTIONS WHICH WOULD NEGATE ITS EFFECTIVENESS. PARAGRAPH 3.5.2.1 REQUIRED THE PROVISION OF BOTH AUTOMATIC AND MANUAL UNLOADING CONTROLS. THE INTENT OF THIS REQUIREMENT IS A DUAL UNLOADING CAPABILITY WHICH IS REQUIRED FOR REASONS OF SAFETY, START AND MAINTENANCE PURPOSES. AIRFLOW SCHEMATIC DRAWING NO. D481-1, SUBMITTED BY YOU, CLEARLY SHOWS A SINGLE SOLENOID OPERATED DRAIN VALVE AT EACH MOISTURE SEPARATOR. IF YOUR CONTENTION IS THAT THE SOLENOID-OPERATED DRAIN VALVE IS, IN FACT, THE MANUAL SYSTEM, THEN, IN THE OPINION OF THE MARINE ENGINEERING LABORATORY, THE DESCRIPTIVE LITERATURE SUPPLIED DOES NOT INDICATE LOCATION AND IDENTIFY THE COMPONENTS AND CONTROLS PLANNED FOR THE AUTOMATIC SYSTEM. THE FOUR SEPARATE HANDWHEEL-OPERATED VALVES REFERRED TO IN YOUR PROTEST LETTER WERE NOT DESCRIBED OR IDENTIFIED IN THE SCHEMATIC DRAWING OF THE AIRFLOW SYSTEM PROVIDED BY YOU IN RESPONSE TO THE REQUIREMENT OF PARAGRAPH 4.7.

RESPECTING CONDENSATE DRAINAGE, THE AIRFLOW SCHEMATIC DRAWING NO. D481-1 SUPPLIED BY YOU SHOWS NO PIPING DIAGRAM BEYOND THE SOLENOID OPERATED DRAIN VALVES. DISCHARGE TO ATMOSPHERE WOULD BE UNSATISFACTORY FOR REASONS OF SAFETY. IN THE ABSENCE OF SCHEMATIC INFORMATION REQUIRED BY PARAGRAPH 4.7 OF THE INVITATION THERE WAS NO BASIS UPON WHICH TO TECHNICALLY EVALUATE THE CONDENSATE DRAINAGE DESIGN YOU WERE OFFERING. ACCORDINGLY, THIS FAILURE WAS HELD TO BE A NONRESPONSIVE CONDITION OF THE BID IN ACCORDANCE WITH THE LAST CLAUSE OF PARAGRAPH 4.7. REGARDING THE SNUBBERS, THE AIRFLOW SCHEMATIC DRAWING NO. D481-1 SUPPLIED BY YOU FAILED TO INDICATE LOCATION AND IDENTIFY THE SNUBBERS OFFERED. FURTHER, IT WAS FOUND UPON THE PREAWARD SURVEY THAT YOUR COMPANY OFFICIALS WERE NOT ADEQUATELY PREPARED TO DISCUSS THE TECHNICAL CONCEPTS, HAD NOT PREVIOUSLY DESIGNED OR BUILT LIKE EQUIPMENT, AND DID NOT HAVE IN-HOUSE ENGINEERING OR PRODUCTION CAPABILITIES TO FOLLOW THROUGH IN THE EVENT YOUR COMPANY WAS TO BE AWARDED THE CONTRACT. IN THIS CONNECTION, PAGE 4 OF THE INVITATION UNDER "NOTICE" REQUIRED BIDDERS TO PROVIDE A LIST OF LIKE UNITS IN SUCCESSFUL USE. THERE WAS NO INDICATION THAT ANY UNIT OF YOUR COMPANY'S MANUFACTURE IS PUMPING ATMOSPHERIC AIR TO 5,000 P.S.I. AT 20 C.F.H. IT IS REPORTED THAT THE SHELL DEVELOPMENT CORPORATION, EMERYVILLE, CALIFORNIA, HAS A RIX 5,000-P.S.I. COMPRESSOR WHICH HAS OPERATED SATISFACTORILY IN "COMPRESSING HYDROGEN AND NITROGEN, BUT HAD NOT BEEN USED FOR AIR.' THE PROBLEMS BETWEEN BOOSTING DRY HYDROGEN AND DRY NITROGEN GASES (WHICH ARE TYPICALLY PROCURED IN FLASKS AT PRESSURES RANGING FROM 1,800 TO 2,800 P.S.I.) AND COMPRESSING AIR FROM ATMOSPHERIC PRESSURES TO 5,000 P.S.I. ARE MANY AND ARE GOVERNING IN THE CASE AT HAND. SPECIFICALLY, THE ESSENTIAL DIFFERENCES ARE THOSE EXPRESSED HEREINBEFORE WHICH FOUND YOUR COMPANY TO BE NONRESPONSIVE BECAUSE OF THE TECHNICAL OMISSIONS IN DESIGN CONCEPT EXPRESSED IN THE BID MATERIALS PROVIDED BY YOUR COMPANY IN THE SPECIFIC AREAS OF UNLOADING AND CONDENSATE DRAINAGE.

OUR OFFICE CONSISTENTLY HAS HELD THAT THE DETERMINATION AS TO WHETHER A PARTICULAR PRODUCT OFFERED BY A BIDDER COMPLIES WITH SPECIFICATION REQUIREMENTS IS PRIMARILY A FUNCTION OF THE DEPARTMENT OR AGENCY CHARGED WITH THE ADMINISTRATION OF THE CONTRACT--- IN THIS INSTANCE THE DEPARTMENT OF THE NAVY. SUCH A DETERMINATION MUST, OF NECESSITY, BE BASED UPON FACTUAL INFORMATION AVAILABLE TO THE DEPARTMENT OR AGENCY PRIOR TO AWARD AND, IN THE ABSENCE OF A SHOWING OF BAD FAITH OR THE LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION, OUR OFFICE WILL NOT OBJECT TO THE CONCLUSION REACHED. THE DETERMINATION THAT THE EQUIPMENT OFFERED BY YOU FAILED TO MEET SPECIFICATION REQUIREMENTS WAS MADE ONLY AFTER A CAREFUL EVALUATION OF EVERY ASPECT OF YOUR BID. MOREOVER, THE EVALUATION WAS BASED ON THE DESCRIPTIVE LITERATURE REQUIRED TO BE FURNISHED WITH YOUR BID AND WAS PERFORMED BY QUALIFIED TECHNICAL PERSONNEL OF THE UNITED STATES NAVY MARINE ENGINEERING LABORATORY WHO OBVIOUSLY WERE COMPLETELY FAMILIAR WITH THE EQUIPMENT BEING PROCURED AS WELL AS WITH THE USE OR FUNCTION CONTEMPLATED FOR IT. THIS BEING THE CASE, AND SINCE THE RECORD BEFORE US FAILS TO SHOW THAT THE DETERMINATION WAS ARBITRARY OR CAPRICIOUS, OR WAS WITHOUT SUBSTANTIAL BASIS, NO MERIT MAY BE ACCORDED YOUR CONTENTIONS THAT THE THREE BASIC EXCEPTIONS TAKEN BY THE NAVY WERE NOT MATERIAL AND, THEREFORE, THAT YOUR BID SHOULD BE CONSIDERED AS CONFORMING TO THE SPECIFICATION REQUIREMENTS IN ALL SUBSTANTIAL RESPECTS.

ACCORDINGLY, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY WITH RESPECT TO THE BID SUBMITTED BY YOU IN RESPONSE TO INVITATION NO. IFB600-406-65, DATED DECEMBER 18, 1964.