B-158573, APR. 18, 1966

B-158573, APR. 18, 1966

TO UMC ELECTRONICS CO.:

IN YOUR LETTERS OF FEBRUARY 18 AND MARCH 28, 1966, YOU PROTEST THE PROPOSED AWARD OF A CONTRACT FOR TEST STANDS TO AVTRON MANUFACTURING, INC., BY THE NAVAL AIR STATION, PATUXENT RIVER, MARYLAND. THIS PROCUREMENT WAS READVERTISED PURSUANT TO INVITATION FOR BIDS (IFB) 00421- 66-B-0036.

FOUR BIDS WERE RECEIVED FOR THIS PROCUREMENT, OF WHICH YOURS WAS THE HIGHEST AND AVTRON'S THE LOWEST. THE THREE HIGH BIDS WERE NOT CONSIDERED RESPONSIVE TO THE IFB. YOUR BID WAS FOUND NONRESPONSIVE BECAUSE THE DESCRIPTIVE DATA YOU SUBMITTED SHOWED THAT THE FLOW METERS AND PUMP YOU PROPOSED TO SUPPLY WERE 275 DEGREES F AND 270 DEGREES F INSTRUMENTS, RESPECTIVELY, WHILE THE SPECIFICATION LISTS THE OPERATING TEMPERATURE OF THE OIL WHICH WOULD BE MOVED BY THE PUMPS AND PASS THROUGH THE FLOWMETERS AS 70 DEGREES F TO 300 DEGREES F.

YOU MAINTAIN THAT THE FIGURES 270 DEGREES F. AND 275 DEGREES F APPEARING IN YOUR BILL OF MATERIALS DO NOT CONSTITUTE A DEVIATION FROM THE SPECIFICATIONS FOR THE FOLLOWING REASONS:

"A) ENGINEERS, TECHNICIANS AND MOST SHOP PERSONNEL HAVING EXPERIENCE WITH TEST STANDS AND FLUIDS OF THE TYPE COVERED BY THIS IFB KNOW THAT COMPONENTS USED IN THE EQUIPMENT OFTEN REQUIRE SPECIAL SEALS FOR HIGH TEMPERATURE OIL. SUCH PEOPLE ALSO REALIZE THAT 250 DEGREES F IS THE TEMPERATURE AT WHICH A CHANGEOVER IN TYPE OF SEAL IS REQUIRED. THEY ALSO REALIZE THAT SEALS AND PACKINGS ARE THE ONLY PARTS AFFECTED. THUS IT IS CONSIDERED COMMON KNOWLEDGE THAT IF COMPONENTS WILL OPERATE SATISFACTORILY AT 270 DEGREES F OR 275 DEGREES F THEY MUST HAVE THE HIGH TEMPERATURE TYPE SEALS THAT ARE ALSO SATISFACTORY FOR USE AT 300 DEGREES F. THERE ARE OTHER TEMPERATURE STEPS WHERE FURTHER CHANGES ARE NEEDED, BUT 250 DEGREES F IS A NORMAL TRANSITION POINT AS CAN BE SEEN FROM PAGE 3 OF THE FISCHER AND PORTER SPECIFICATION 10A1/10A2700C ENCLOSED.

"B) ACTUALLY, WE HAVE TAKEN NO EXCEPTION TO THEIR SPECIFICATION. THE 275 DEGREES F AND 270 DEGREES F FIGURES ARE NOT STATED TO BE MAXIMUM TEMPERATURES. THEY COULD BE CALIBRATION POINTS OR SIMPLY INDICATIONS THAT HIGH TEMPERATURE SEALS WERE BEING USED. IF YOU WILL NOTE, ITEM TC ON PAGE 3 OF OUR BILL OF MATERIALS STATES THAT THE ACTUAL TEMPERATURE CONTROLLER ITSELF HAS A RANGE OF 70 DEGREES F TO 370 DEGREES F WHICH IS EVEN MORE THAN REQUIRED. THE FACT THAT WE WERE WELL AWARE OF THE REQUIREMENT FOR HIGH TEMPERATURE PRIOR TO THE BID IS ILLUSTRATED BY THE ENCLOSED COPY OF A QUOTE FROM KNOX, INC. FOR THE PUMP (ITEM PV) IN QUESTION. IT SHOWS VITON SEALS - GOOD FOR 400 DEGREES F PER THE FISCHER-PORTER SPECIFICATION.'

WITH RESPECT TO WHETHER YOUR BID IS RESPONSIVE, THE AGENCY REPORTS THAT ITS TECHNICAL PERSONNEL DO NOT AGREE WITH YOUR OPINION THAT IT IS COMMON KNOWLEDGE THAT COMPONENTS WHICH WILL OPERATE AT 270 DEGREES F OR 275 DEGREES F ARE ALSO SATISFACTORY FOR USE AT 300 DEGREES F. IT REPORTS THAT RATING TEMPERATURES FOR EQUIPMENT OF THIS TYPE ARE USUALLY MAXIMUM RATINGS, AND SINCE YOUR BID STATED ONLY A SINGLE TEMPERATURE OF 270 DEGREES F AND 275 DEGREES F FOR THE COMPONENTS, AND NOT A TEMPERATURE RANGE, THE AGENCY CONCLUDED THAT THE TEMPERATURES SHOWN IN YOUR BID WERE THE MAXIMUM SAFE OPERATING TEMPERATURES AND THEREFOR NOT RESPONSIVE TO THE IMPLIED REQUIREMENT IN THE IFB THAT THE SUBJECT COMPONENTS ACCOMMODATE OIL AT 300 DEGREES F.

WHETHER THE TECHNICAL PERFORMANCE REQUIREMENTS ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, AND WHETHER THE DIFFERENCES BETWEEN YOUR EQUIPMENT AND THAT CALLED FOR IN THE SPECIFICATIONS ARE MATERIAL, ARE NOT ORDINARILY CONSIDERED TO BE QUESTIONS WITHIN THE JURISDICTION OF THIS OFFICE. B-149183, DATED JULY 31, 1962. ACCORDINGLY, IN OUR DECISION B-139830, DATED AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"* * * THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * *

IN THIS REGARD, WE HELD IN OUR DECISION B-143389, DATED AUGUST 26, 1960, AS FOLLOWS:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

" "IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *" "

ACCORDINGLY, WE MUST CONCUR WITH THE CONTRACTING AGENCY'S DETERMINATION THAT YOUR BID WAS NONRESPONSIVE.

YOU ALSO MAINTAIN THAT AVTRON SUBMITTED A BID WHICH WAS NOT RESPONSIVE BECAUSE ITS DESCRIPTIVE DATA WAS NOT SUFFICIENTLY DETAILED TO SATISFY AN INVITATION REQUIREMENT THAT DESCRIPTIVE LITERATURE ESTABLISH "DESIGN, MATERIALS, COMPONENTS AND PERFORMANCE CHARACTERISTICS" FOR BID EVALUATION.

WITH RESPECT TO THE IFB'S REQUIREMENT FOR DESCRIPTIVE LITERATURE, ASPR 2- 202.5/B) AND (C) PROVIDE:

"/B) POLICY. BIDDERS SHALL NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS UNLESS THE PURCHASING ACTIVITY DEEMS THAT SUCH LITERATURE IS NEEDED TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER THE PRODUCTS OFFERED MEET THE SPECIFICATION REQUIREMENTS OF THE INVITATION FOR BIDS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. IT MAY BE APPROPRIATE TO REQUIRE DESCRIPTIVE LITERATURE IN THE PROCUREMENT OF HIGHLY TECHNICAL OR SPECIALIZED EQUIPMENT, OR WHERE CONSIDERATIONS SUCH AS DESIGN OR STYLE ARE IMPORTANT IN DETERMINING ACCEPTABILITY OF THE PRODUCT.

"/C) JUSTIFICATION. THE REASONS WHY ACCEPTABLE PRODUCTS CANNOT BE PROCURED WITHOUT THE SUBMISSION OF DESCRIPTIVE LITERATURE SHALL BE SET FORTH AND FILED IN THE CONTRACT FILE, EXCEPT WHERE SUCH SUBMISSION IS REQUIRED BY THE FORMAL SPECIFICATIONS (FEDERAL, MILITARY, OR OTHER) APPLICABLE TO THE PROCUREMENT.'

WE ARE INFORMALLY ADVISED THAT THE FILE DOES NOT CONTAIN REASONS JUSTIFYING THE NEED FOR DESCRIPTIVE LITERATURE. FURTHERMORE, THE ADMINISTRATIVE AGENCY REPORTS THAT THE REQUIREMENT FOR SUCH LITERATURE WAS INSERTED IN THE IFB ONLY BECAUSE THE INVITATION FAILED TO STATE MAXIMUM SIZE LIMITATIONS GENERATED BY THE LIMITED SPACE AVAILABLE FOR INSTALLATION OF THE EQUIPMENT BEING PROCURED. THE IMPROPRIETY OF REQUIRING BIDDERS TO PROVIDE A BROAD SCOPE OF DESCRIPTIVE DATA IN LIEU OF INCLUDING A VERY STRAIGHTFORWARD REQUIREMENT IN THE SPECIFICATIONS IS RECOGNIZED, AND WE ARE ADVISED THAT IT WILL NOT BE REPEATED.

IT APPEARS FROM THE RECORD THAT AVTRON DID SUBMIT LITERATURE INTENDED TO ESTABLISH "DESIGN, MATERIALS, COMPONENTS AND PERFORMANCE CHARACTERISTICS" FOR BID EVALUATION. THE ACTIVITY STATES THAT AVTRON'S DESCRIPTIVE LITERATURE WAS ADEQUATE TO PERMIT TECHNICAL EVALUATION, AND IN VIEW OF THE LIMITED PURPOSE TO BE SERVED BY SUCH LITERATURE WE SEE NO REASON TO QUESTION THE ACTIVITY'S STATEMENT.

WE REGRET THAT YOU AND OTHER BIDDERS WERE PUT TO THE UNNECESSARY EXPENSE OF PREPARING LITERATURE RELATED TO THE "DESIGN, MATERIALS, COMPONENTS AND PERFORMANCE CHARACTERISTICS" OF THE EQUIPMENT. HOWEVER, IN VIEW OF THE FACT THAT AVTRON'S BID MUST BE HELD RESPONSIVE TO THE REQUIREMENT FOR DESCRIPTIVE LITERATURE, AND SINCE ALL OTHER BIDS WERE NONRESPONSIVE IN OTHER RESPECTS, WE ARE UNABLE TO CONCLUDE THAT THE IMPROPER REQUIREMENT FOR DESCRIPTIVE LITERATURE WOULD JUSTIFY OR REQUIRE CANCELLATION OF THE PROCUREMENT. THEREFORE, WHILE WE SHALL BRING THIS DECISION TO THE ATTENTION OF THE ADMINISTRATIVE AGENCY SO THAT STEPS MAY BE TAKEN TO AVOID SIMILAR ERRORS IN FUTURE PROCUREMENTS, WE DO NOT PROPOSE TO TAKE ANY FURTHER ACTION IN THE INSTANT PROCUREMENT.