B-156678, JUN. 30, 1965

B-156678, JUN. 30, 1965

TO AUTOCLAVE ENGINEERS, INCORPORATED:

SENATOR JOSEPH S. CLARK HAS FORWARDED FOR OUR ATTENTION A COPY OF YOUR LETTER DATED APRIL 22, 1965, ADDRESSED TO THE DEPARTMENT OF THE NAVY,UNITED STATES NAVAL OCEANOGRAPHIC OFFICE, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 62306-70-65 TO A HIGHER BIDDER, THE HEKTOR SCIENTIFIC COMPANY, INCORPORATED. AN ACCOMPANYING LETTER DATED MARCH 3, 1965, TAKING EXCEPTION TO THE SPECIFICATION, WAS HELD TO HAVE RENDERED YOUR BID IN THE AMOUNT OF $6,796 NONRESPONSIVE.

SECTION 3.6.2 OF PURCHASE DESCRIPTION NOO-PD-0711, COVERING ONE EACH OCEANOGRAPHIC TEMPERATURE-PRESSURE VESSEL, REQUIRED THE APPLICATION OF A MINIMUM THICKNESS OF CHROMIUM PLATING IN ACCORDANCE WITH FEDERAL SPECIFICATION QQ-C-320 (DECEMBER 26, 1963, EDITION), CLASS 2 ENGINEERING PLATING, TO ALL SURFACES IN CONTACT WITH WATER. PROVISION FOR APPLICATION OF AN INTERMEDIATE NICKEL COATING ON A COPPER UNDERCOATING WAS ALSO SPELLED OUT IN BOTH THE PURCHASE DESCRIPTION AND THE SPECIFICATION.

ALTHOUGH YOUR LETTER OF APRIL 22 DENIES TAKING ANY EXCEPTIONS TO THE SPECIFICATION, THE LETTER OF MARCH 3, WHICH ACCOMPANIED YOUR BID FLATLY STATED THE CHROME PLATING WOULD BE DEPOSITED DIRECTLY ON THE BASE METAL OMITTING BOTH THE COPPER UNDERCOATING AND INTERMEDIATE NICKEL COATING. LESSER IMPORTANCE IS THE FACT THAT THE INVITATION CALLED FOR PERFORMANCE OF FINAL INSPECTION AND ACCEPTANCE AT DESTINATION (SUITLAND, MARYLAND), WHEREAS YOUR BID STIPULATED "ACCEPTANCE WILL BE BASED ON SUCCESSFUL COMPLETION OF THE DEMONSTRATION TESTS AT THE MANUFACTURER'S PLANT.'

IT IS ARGUED IN YOUR LETTER THAT THE CONTRACT PRICE OF $20,000 IS EXCESSIVE IN COMPARISON WITH YOUR OFFERED PRICE. THE NAVY REPORTS THAT OF THIRTY-FOUR COMPANIES SOLICITED, ONLY THE TWO BIDS PREVIOUSLY MENTIONED WERE RECEIVED. ALTHOUGH THE NAVAL OCEANOGRAPHIC OFFICE HAD NEVER BEFORE PURCHASED THE ITEM, THE REQUIRING DIVISION HAD ESTIMATED ITS PROCUREMENT COST AT $35,000. IN VIEW OF THE WIDE DIVERGENCE IN PRICE BETWEEN THE BIDS RECEIVED, HEKTOR SCIENTIFIC COMPANY WAS REQUESTED TO, AND DID, FURNISH EVIDENCE OF THE REASONABLENESS OF ITS QUOTATION RELATIVE TO MANUFACTURING COSTS TOGETHER WITH A CERTIFICATION TO THE EFFECT THE NAVY WAS BEING OFFERED MOST FAVORED CUSTOMER TREATMENT. THE DEPARTMENT CONCLUDED THAT THE HEKTOR PRICE WAS NOT EXCESSIVE.

YOU FURTHER CONTEND THAT THE METHOD OF CHROMIUM PLATING CONTEMPLATED IN YOUR BID IS "FAR SUPERIOR TO THE OBSOLETED METHOD OF DEPOSITING AN INTERMEDIATE NICKEL COATING ON A COPPER INNER COAT, AS INDICATED IN PARAGRAPH 3.6.2 OF YOUR NOO-PD-0711 DATED 19 JANUARY, 1965.' AFTER RECEIPT OF YOUR BID THE NAVY UNDERTOOK A TECHNICAL REEVALUATION OF THE CHROMIUM PLATING PROCEDURES SPECIFIED IN NOO-PD-0711 IN COORDINATION WITH PLATING EXPERTS OF THE NATIONAL BUREAU OF STANDARDS AND REAFFIRMED ITS OPINION THAT THE INTERMEDIATE DEPOSITING METHOD WAS MORE SUITABLE FOR THE PARTICULAR PURPOSE TO BE SERVED THAN THE INTERRUPTED CHROMIUM PLATING PROCEDURE. THE ADDED CORROSION PROTECTION AFFORDED BY THE NICKEL COATING WAS THOUGHT TO BE INDISPENSABLE TO THE ACTUAL NEEDS OF THE GOVERNMENT IN THIS CASE. CF. PARAGRAPH6.1.2 OF FEDERAL SPECIFICATION QQ-C-320. A NAVAL OCEANOGRAPHIC OFFICE INTERNAL MEMORANDUM DATED MAY 20, 1965, IN THE RECORD BEFORE US, SETS FORTH THE FOLLOWING APPRAISAL OF THE CHROMIUM PLATING METHOD PROPOSED BY YOUR COMPANY:

"THE INTERRUPTED CHROMIUM PLATING PROCEDURE PROPOSED BY AUTOCLAVE ENGINEERS, INC., HAS NOT BEEN PROVED AS A RECOGNIZED TECHNIQUE FOR PRESSURE VESSELS OF THE TYPE REQUIRED BY NAVOCEANO AND SHOULD, THEREFORE, NOT BE USED AS A PLATING METHOD FOR PRESSURE VESSELS TO BE REGULARLY EMPLOYED IN A TEST AND EVALUATION FACILITY.'

SINCE THE INTERMEDIATE DEPOSITING METHOD SPELLED OUT IN THE PURCHASE DESCRIPTION, IN THE JUDGMENT OF ADMINISTRATIVE OFFICIALS RESPONSIBLE FOR THE DRAFTING OF SPECIFICATIONS EXPRESSING THE ACTUAL NEEDS OF THE GOVERNMENT APPEARS REASONABLY NECESSARY TO THE PROPER ACCOMPLISHMENT OF THE NAVY'S TECHNICAL PURPOSES IN EMBARKING UPON THE PROCUREMENT, OUR OFFICE WOULD NOT BE JUSTIFIED IN DISTURBING THE AWARD. SEE 17 COMP. GEN. 554, 557. A BIDDER'S FAILURE TO COMPLY WITH A MATERIAL REQUIREMENT OF THE ADVERTISED SPECIFICATIONS RENDERS HIS BID NONRESPONSIVE. UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461, 464 (1940); 40 COMP. GEN. 679; 30 ID. 179; 20 ID. 4. A NONRESPONSIVE BID IS A COUNTEROFFER WHICH MAY NOT BE CONSIDERED FOR AWARD. PRESTEX, INC. V. UNITED STATES, 320 F.2D 367 (1963); NOCE V. EDWARD E. MORGAN COMPANY, 106 F.2D 746 (1939); UNITED STATES V. TRI-STATE METAL PRODUCTS, INC., 151 F.SUPP. 455 (1957); C. E. CARSON COMPANY V. UNITED STATES, 97 C.CLS. 135 (1942); 40 COMP. GEN. 458. SEE ALSO SECTION 3 (B) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 23, 10 U.S.C. 2305 (C) REQUIRING THE AWARD OF MILITARY CONTRACTS UPON THE BASIS OF BIDS CONFORMING TO THE TERMS OF THE INVITATION, IMPLEMENTED AT ARMED SERVICES PROCUREMENT REGULATION 2-103/IV) AND 2-407.1.

FOR THE REASONS OUTLINED ABOVE, OUR OFFICE WOULD NOT BE AUTHORIZED TO QUESTION THE AWARD OF CONTRACT NO. N 62306-1714 TO HEKTOR SCIENTIFIC COMPANY, INCORPORATED.