B-156707, JUL. 16, 1965

B-156707: Jul 16, 1965

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INC.: REFERENCE IS MADE TO YOUR LETTER OF APRIL 30. TWO CONTRACTS ALREADY HAVE BEEN AWARDED TO BENDIX AND IT IS REPORTED THAT AN AWARD OF A THIRD CONTRACT IS BEING MADE TO BENDIX. IT IS YOUR CONTENTION THAT THE PRODUCT OFFERED BY BENDIX DOES NOT CONFORM TO THE APPLICABLE SPECIFICATION. YOUR CONTENTION IN THIS MATTER IS AS FOLLOWS: "PARAGRAPH 3.4.3.1 OF SPECIFICATION MIL-T-25624 STATES THAT "THE FILLING MEDIUM SHALL BE EITHER 100 PERCENT HELIUM OR A MIXTURE OF 88 PERCENT TO 92 PERCENT NITROGEN AND THE REMAINDER HELIUM.'. IN THAT THE INSTRUMENT IS FILLED WITH OIL. THE RESULT IS THAT BENDIX OBTAINS AN UNFAIR ADVANTAGE OVER OTHER MANUFACTURERS AND THE GOVERNMENT PROCURES AN INSTRUMENT WHICH DOES NOT CONFORM TO ITS SPECIFICATIONS.

B-156707, JUL. 16, 1965

TO U.S. GAUGE, A DIVISION OF AMETEK, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1965, PROTESTING THE FAVORABLE CONSIDERATION OF BIDS SUBMITTED BY THE MONTROSE DIVISION, THE BENDIX CORPORATION, IN RESPONSE TO TWO INVITATIONS FOR BIDS AND A REQUEST FOR PROPOSALS ISSUED BY THE AERONAUTICAL SYSTEMS DIVISION, WRIGHT- PATTERSON AIR FORCE BASE, OHIO, FOR FURNISHING TYPE MH-5 TRANSMITTERS IN ACCORDANCE WITH SPECIFICATION MIL-T-25624B.

TWO CONTRACTS ALREADY HAVE BEEN AWARDED TO BENDIX AND IT IS REPORTED THAT AN AWARD OF A THIRD CONTRACT IS BEING MADE TO BENDIX. IT IS YOUR CONTENTION THAT THE PRODUCT OFFERED BY BENDIX DOES NOT CONFORM TO THE APPLICABLE SPECIFICATION. YOUR CONTENTION IN THIS MATTER IS AS FOLLOWS:

"PARAGRAPH 3.4.3.1 OF SPECIFICATION MIL-T-25624 STATES THAT "THE FILLING MEDIUM SHALL BE EITHER 100 PERCENT HELIUM OR A MIXTURE OF 88 PERCENT TO 92 PERCENT NITROGEN AND THE REMAINDER HELIUM.' THE U.S. GUAGE PRODUCT, MANUFACTURED UNDER PART NO. ST-504-N AND LISTED UNDER QPL-25624-5, FULLY CONFORMS TO THE SPECIFICATION, INCLUDING THE SPECIFIC REQUIREMENTS OF PARAGRAPH 3.4.3.1. THE BENDIX INSTRUMENT, PRODUCED UNDER PART NO. 7724-30 -C5-1, ALSO LISTED ON QPL-25624-5, DOES NOT CONFORM TO THE SPECIFICATION, IN THAT THE INSTRUMENT IS FILLED WITH OIL. AS A RESULT, PRODUCING OF OUR INSTRUMENT (ST-504-N) TO THE EXACTING REQUIREMENTS OF THE MILITARY SPECIFICATION, OF COURSE, GENERATES RELATIVELY HIGHER COSTS THAN THE BENDIX INSTRUMENT, WHICH, BECAUSE IT DOES NOT CONFORM TO THESE SPECIFICATIONS, CAN BE PRODUCED AT LOWER COSTS. THE RESULT IS THAT BENDIX OBTAINS AN UNFAIR ADVANTAGE OVER OTHER MANUFACTURERS AND THE GOVERNMENT PROCURES AN INSTRUMENT WHICH DOES NOT CONFORM TO ITS SPECIFICATIONS.

"DURING THE INITIAL STAGES OF DEVELOPMENT ON THE TYPE MH-5 TRANSMITTER IN 1958, WE DISCUSSED THE POSSIBILITY OF OIL FILLING WITH THE APPROPRIATE LABORATORY AT WRIGHT-PATTERSON AIR FORCE BASE AND WERE SPECIFICALLY ADVISED THAT AN OIL FILLING COULD NOT BE USED AND WE WERE REQUIRED TO PRODUCE AN INSTRUMENT CONFORMING TO THE SPECIFICATION. THIS, OF COURSE, WAS IN KEEPING WITH UNIFORM PRACTICE, AS NO ENGINE PRESSURE TRANSMITTER USED BY THE MILITARY SERVICES IS OIL FILLED. WE DO NOT BELIEVE THAT SPECIAL CONSIDERATION SHOULD BE EXTENDED TO THE MONTROSE DIVISION, BENDIX AVIATION CORPORATION.'

THE MATTER IN CONTENTION CONCERNS A TECHNICAL EVALUATION AS TO WHETHER THE PRODUCT OFFERED BY BENDIX COMPLIES WITH THE APPLICABLE SPECIFICATION. THE TECHNICAL PERSONNEL OF THE DEPARTMENT OF THE AIR FORCE CONSIDERED THIS MATTER AND THE FINDING OF SUCH PERSONNEL IS SUMMARIZED IN THE DEPARTMENT'S REPORT OF JULY 2, 1965, IN PERTINENT PART AS FOLLOWS:

"3. "FILLING MEDIUM," AS USED IN PARAGRAPH 3.4.3.1 OF THE SPECIFICATIONS, IS CONFINED TO SUBSTANCES WITH THE SOLE FUNCTION OF OCCUPYING SPACE. INTERPRET "FILLING MEDIUM" AS INCLUDING ANYTHING PHYSICALLY WITHIN THE HERMETICALLY SEALED CASE, AS U.S. GAUGE SUGGESTS, WOULD BE CONTRARY TO PAST PROCUREMENTS OF BENDIX'S "OIL" TRANSMITTER UNDER SPECIFICATIONS INCLUDING 3.4.3.1. MOREOVER, SUCH AN INTERPRETATION WOULD BE UNDULY RESTRICTIVE IN THAT IT WOULD MAKE ONE OF TWO KNOWN BIDDERS (BENDIX) NOT RESPONSIVE FOR REASONS UNCONNECTED WITH THE PERFORMANCE OF THE END ITEM REQUIRED BY THE GOVERNMENT. UNDER THE ABOVE DEFINITION, MONTROSE DIVISION, BENDIX AVIATION CORPORATION, WAS RESPONSIVE TO THE SPECIFICATIONS IN THE RFP. THE OIL USED BY BENDIX IS AN INTEGRAL PART OF THE DAMPING SYSTEM IN THE INSTRUMENT AND THUS IS NOT "FILLING MEDIUM; " THIS SUBSTANTIVE FUNCTION OF THE BENDIX OIL HAS BEEN RECOGNIZED BY THE AIR FORCE FOR SOME TIME SINCE THE OVERHAUL INSTRUCTION MANUAL (TECHNICAL ORDER 5P5-3-32-13) FOR THE BENDIX-MONTROSE MH-5 OIL PRESSURE TRANSMITTER AND SYNCHRO UNDER PARAGRAPH 2-21H PROVIDES FOR THE EXACT AMOUNTS OF OIL AND GAS (HELIUM) TO BE USED IN SERVICING THE BENDIX INSTRUMENT. SINCE THE REMAINDER OF THE CAVITY IN THE HERMETICALLY SEALED CASE IS FILLED WITH HELIUM, ALL BENDIX "FILLING MEDIUM" MEETS THE REQUIREMENTS OF 3.4.3.1.

"4. THE COGNIZANT ENGINEERING GROUP AT ASD REPORTS THAT THE RECORDS DO NOT SHOW WHERE U.S. GAUGE PERSONNEL WERE EVER INFORMED OFFICIALLY OR UNOFFICIALLY THAT SILICONE FLUID (OR OIL) COULD NOT BE USED IN THE MH-5 TRANSMITTER AS A DAMPING FLUID. AIR FORCE PERSONNEL WHO WERE COGNIZANT OF THE MH-5 TRANSMITTER IN THE 1958 PERIOD WERE CONTACTED REGARDING THIS MATTER. THEY HAVE NO KNOWLEDGE OF EVER HAVING TOLD U.S. GUAGE PERSONNEL THAT SILICONE FLUID COULD NOT BE USED AS A DAMPING FLUID IN THEIR VERSION OF THE MG-5 TRANSMITTER.'

OUR OFFICE DOES NOT EMPLOY TECHNICAL PERSONNEL AND MUST NECESSARILY RELY ON THE DETERMINATION OF SUCH PERSONNEL IN THE EMPLOY OF THE DEPARTMENT OF THE AIR FORCE AS TO WHETHER A PRODUCT COMPLIES WITH A PARTICULAR SPECIFICATION IN THE ABSENCE OF ANY CLEAR SHOWING THAT SUCH A DETERMINATION IS ARBITRARY OR ERRONEOUS. WE DO NOT FEEL THAT THEIR DETERMINATION IN THIS MATTER WAS CLEARLY ERRONEOUS OR ARBITRARY AND YOUR PROTEST IS THEREFORE DENIED.