B-160357, MAR. 31, 1967

B-160357: Mar 31, 1967

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TO HAMILTON STANDARD DIVISION: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO SCIAKY BROTHERS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH. COMPONENTS AND PERFORMANCE CHARACTERISTICS. "/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE. WERE AS FOLLOWS: CHART NRC EQUIPMENT CORPORATION $23. 500 ALL BUT YOUR BID WERE FOR THE LOW VOLTAGE MACHINE.

B-160357, MAR. 31, 1967

TO HAMILTON STANDARD DIVISION:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO SCIAKY BROTHERS, INCORPORATED, BY THE UNITED STATES SPRINGFIELD ARMORY UNDER INVITATION FOR BIDS NO. DAAF05-67-B-0006.

THE SUBJECT INVITATION, ISSUED ON SEPTEMBER 7, 1966, CALLED FOR BIDS ON AN ELECTRON, BEAM WELDING MACHINE, DESCRIBED AS FOLLOWS:

"ELECTRON BEAM WELDING MACHINE, HIGH VOLTAGE 150 KV, 40 MA, 6 KW, COMPLETELY SELF-CONTAINED IN ACCORDANCE WITH "SPECIFICATION FOR ELECTRON BEAM WELDING MACHINE," DATED 8 AUGUST 1966 AND CONSISTING OF ALL OF THE BASIC UNITS LISTED IN PARAGRAPH 1.2 ON SHEET 1.

OR

"ELECTRON BEAM WELDING MACHINE, LOW VOLTAGE 60 KV, 250 MA, 15 KW, SAME AS ABOVE"

THE INVITATION PROVIDED THAT THE CONTRACTING OFFICER COULD MAKE THE AWARD FOR EITHER THE HIGH OR LOW VOLTAGE MACHINE. THE INVITATION ALSO INCLUDED THE FOLLOWING REQUIREMENT FOR DESCRIPTIVE LITERATURE:

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, MATERIALS, COMPONENTS AND PERFORMANCE CHARACTERISTICS.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

THE FOUR BIDS RECEIVED AND OPENED ON SEPTEMBER 28, 1966, WERE AS FOLLOWS:

CHART

NRC EQUIPMENT CORPORATION $23,980

ELECTRON BEAM CORPORATION 77,500

SCIAKY BROTHERS, INCORPORATED 79,495

HAMILTON STANDARD DIVISION 92,500

ALL BUT YOUR BID WERE FOR THE LOW VOLTAGE MACHINE.

BOTH THE NRC AND ELECTRON BEAM BIDS WERE REJECTED AS NONRESPONSIVE. THE RESEARCH AND ENGINEERING DIVISION OF THE SPRINGFIELD ARMORY MADE A TECHNICAL EVALUATION OF BOTH YOUR BID AND SCIAKY'S BID AND CONCLUDED THAT "BOTH BIDS SATISFIED ALL SALIENT" SPECIFICATIONS. THEREFORE, THE PROCUREMENT DIVISION AND THE BOARD OF AWARDS RECOMMENDED AWARD TO SCIAKY AS ITS BID WAS LOWEST. AWARD WAS MADE TO SCIAKY ON OCTOBER 31, 1966.

IT IS REPORTED THAT YOU LEARNED OF THE AWARD FROM SCIAKY AND ON NOVEMBER 2, 1966, MET WITH ARMORY PERSONNEL TO PROTEST THE AWARD. AT THIS TIME IT WAS REVEALED THAT A TELEGRAM FROM YOU DATED SEPTEMBER 30 PROTESTING AWARD TO EITHER SCIAKY OR ELECTRON BEAM HAD BEEN RECEIVED BY THE CONTRACTING OFFICER ON OCTOBER 3 AND ROUTED TO THE PROCUREMENT DIVISION WHERE IT WAS APPARENTLY FILED WITHOUT ANY ACTION BEING TAKEN. THIS MISHANDLING OF YOUR TELEGRAM IS REPORTED TO HAVE RESULTED FROM THE PHASING-OUT OPERATION THEN IN PROGRESS AT THE ARMORY. AS A RESULT OF THE MEETING OF NOVEMBER 2, THE CONTRACTING OFFICER ISSUED A SUSPENSION OF WORK ORDER TO SCIAKY WHICH HAS BEEN EXTENDED TO AT LEAST MARCH 3, 1967. HE ALSO CONVENED A PANEL OF TECHNICAL EXPERTS TO REVIEW YOUR PROTEST. THIS PANEL CONCLUDED THAT THE AWARD TO SCIAKY WAS "MADE ON A SOUND BASIS AND THAT THE PLANNED UTILIZATION OF THE ELECTRON BEAM WELDING EQUIPMENT WILL NOT BE JEOPARDIZED NOR LIMITED.'

THE BASIS OF YOUR PROTEST IS THE CONTENTION THAT THE DESCRIPTIVE LITERATURE SUBMITTED WITH SCIAKY'S BID CONTAINED SEVERAL EXCEPTIONS OR DEVIATIONS TO THE SPECIFICATIONS AND WAS THEREFORE NONRESPONSIVE AND SHOULD HAVE BEEN REJECTED. YOU HAVE LISTED THE SPECIFICATIONS CONCERNED, SCIAKY'S EXCEPTION OR DEVIATION THERETO, AND CONTEND THAT SUCH EXCEPTIONS OR DEVIATIONS AFFECT PRICE OR QUALITY. YOU ALSO OBJECT TO THE FAILURE OF THE PROCURING ACTIVITY TO FOLLOW THE PROCEDURE FOR HANDLING PROTESTS RECEIVED PRIOR TO AWARD AS PRESCRIBED IN ASPR 2 407.9.

AS STATED HERETOFORE, A PANEL OF TECHNICAL EXPERTS CONVENED BY THE CONTRACTING OFFICER CONSIDERED THE POINTS OF TECHNICAL NONCOMPLIANCE WITH THE SPECIFICATIONS FORMING THE BASIS OF YOUR PROTEST. THE PANEL'S REPORT INCLUDES THE FOLLOWING STATEMENT OF ITS POSITION ON THE FOUR SPECIFICATIONS IT CONSIDERED MOST SIGNIFICANT:

"A. SPEC. ITEM 3.10.6 - GUN FILAMENT SUPPLY RIPPLE

ALTHOUGH THE ARMORY SPECIFICATION IS A MORE STRINGENT REQUIREMENT THAN THE AIAA SPECIFICATION, CONTACTS WITH THE INDUSTRY THROUGHOUT THE PLANNING STAGES INDICATED THAT THE 1 PERCENT RMS RIPPLE WAS ACHIEVABLE WITHIN THE CURRENT STATE-OF-THE-ART. IT IS ALSO THE OPINION OF THIS REVIEW GROUP THAT EXERCISE OF THE RIGHT OF THE ARMORY TO ACCEPT SCIAKY'S PROPOSAL OF 1.2 PERCENT RMS IS ENTIRELY ACCEPTABLE BASED UPON TECHNICAL ANALYSIS OF CHARACTERISTICS OF THE SCIAKY PROPOSED LOW VOLTAGE, SPACE CHARGE ELECTRON GUN SYSTEM DESIGN. FOR THIS REASON, THIS GROUP HAS DETERMINED THAT NO TECHNICAL PENALTY WILL BE PAID NOR WILL ANY SIGNIFICANT LIMITATION BE PLACED ON THE UTILIZATION OF THE SYSTEM THROUGH ACCEPTANCE OF THE ADDITIONAL 0.2 PERCENT RMS RIPPLE.

"B. SPEC. ITEM 3.10.5.2 - POWER SUPPLY STABILITY

AGAIN, ALTHOUGH THE ARMORY REQUIREMENT IS MORE STRINGENT THAN THE AIAA REQUIREMENT, INDUSTRY CONTACTS SIMILARLY INDICATED CAPABILITY TO MEET THE ARMORY REQUIREMENT. IT IS NOW RECOGNIZED THAT THE ARMORY SPECIFICATION FOR POWER SUPPLY STABILITY SHOULD HAVE STATED AN INCREMENT OF TIME. HOWEVER, A TECHNICAL ANALYSIS OF SCIAKY'S CIRCUITRY DESIGN INDICATES THAT THIS DESIGN WILL MEET THE ARMORY REQUIREMENTS FOR STABILITY (INCLUDING A 4 HOUR PERIOD) AND WILL NOT IMPAIR THE PLANNED UTILIZATION OF THE SYSTEM.

"C. SPEC. ITEM 3.3 - MINIMUM WORKING HEIGHT

THIS REVIEW GROUP HAS REVIEWED AGAIN THE DRAWINGS SUBMITTED BY SCIAKY (AND) HAS CONFIRMED THAT SCIAKY BROS., INC. DESIGN FULFILLS THE 16 INCH MINIMUM WORKING HEIGHT REQUIREMENT. THE THOUGHT HAS BEEN RAISED THAT IN PREPARING THIS POINT OF PROTEST THAT PERHAPS HAMILTON STANDARD PERSONNEL ,MISREAD" SCIAKY DRAWINGS.

"D. SPEC. ITEM 4.3.2 - RATE OF PRESSURE RISE

IN THIS CASE, THE ARMORY REQUIREMENT IS IDENTICAL WITH AIAA STANDARD. THIS REVIEW GROUP HAS ANALYZED THE REQUIREMENT, SCIAKY'S PROPOSAL AND HAMILTON STANDARD PROTEST COMMENTS AND HAS REACHED THE CONCLUSION THAT THE SCIAKY PROPOSAL IS ACCEPTABLE AND IS NOT DETRIMENTAL TO THE PERFORMANCE OF THE SYSTEM. IT IS EMPHASIZED THAT THE HAMILTON STANDARD COMMENTS ARE OUT OF CONTEXT WITH PARTICULAR REGARD TO THE CONDITIONS OF THE TESTS, I.E., TOLERANCE; 1 BY .01, TORR PER HOUR OR LESS, STARTING AT 1 BY .001 TORR WITH CLEAN, DRY, EMPTY OUTGASSED SYSTEMS.'

THE ADMINISTRATIVE REPORT INCLUDES THE FOLLOWING ADDITIONAL EXPLANATION OF ITS POSITION WITH REGARD TO SPECIFICATION 3.10.6, GUN FILAMENT SUPPLY RIPPLE:

THE APPARENT NONRESPONSIVENESS OF THE SCIAKY BID RESTS PRIMARILY ON THE NUMERICAL VALUE OF 1 PERCENT MAXIMUM RMS VALUE FOR THE ELECTRON GUN FILAMENT SUPPLY RIPPLE REQUIRED BY THE SPECIFICATION. SCIAKY PROPOSED A 1.2 PERCENT MAXIMUM BASED ON AN INTERPOLATED VALUE OBTAINED FROM A TEXT BOOK FAIRED CURVE. HOWEVER, BY ACTUAL CALCULATION OF THE RIPPLE FACTOR BASED ON THE COMPONENTS OF THE PROPOSED ELECTRICAL CIRCUITS, SCIAKY DERIVES A VALUE OF 1.036 PERCENT RIPPLE WITH A PROBABLE OPERATING RMS VALUE WITHIN THE 1 PERCENT LIMITING RANGE (TAB J, SUPPLEMENT NO. 1). THESE CALCULATIONS ARE SUPPORTED BY DR. ALVA C. TODD'S ANALYSIS (TAB L). THIS RECOMPUTED RIPPLE FACTOR IS SOMEWHAT LESS THAN THE 1.2 PERCENT ESTIMATE OF SCIAKY IN ITS BID, AND, AS INDICATED BY DR. TODD, WOULD PRODUCE NO MEASURABLE DIFFERENCE IN THE PERFORMANCE OF THE ELECTRON BEAM WELDER. IT IS SIGNIFICANT THAT THE NATIONAL AEROSPACE STANDARD, 976, ON WHICH THE SPRINGFIELD ARMORY SPECIFICATION IS BASED, PERMITS A MAXIMUM OF 3 PERCENT RIPPLE. AT THIS LEVEL, WHICH HAS BEEN IN GENERAL USE IN MACHINES USED BY INDUSTRY, PERFORMANCE OF THE MACHINES HAS BEEN ENTIRELY SATISFACTORY.

"INASMUCH AS THE ELECTRON BEAM WELDER CONVERTS ELECTRICAL ENERGY TO HEAT AT THE POINT OF WELD, AN ANALYSIS OF TEMPERATURE VARIATION DUE TO FLUCTUATION OF THE GUN FILAMENT SUPPLY WAS MADE BY SCIAKY (TAB V, SUPPLEMENT NO. 2). THE TEMPERATURE INCREASE OF THE FILAMENT DUE TO THE 1.2 PERCENT RIPPLE AS RELATED TO THE 1 PERCENT RIPPLE WAS FOUND TO BE .0003 DEGREES KELVIN. THIS IS AN INSIGNIFICANT INCREMENT IN THE TEMPERATURE OF THE SCIAKY FILAMENT WHICH OPERATES AT AN AVERAGE VALUE OF 2600 DEGREES KELVIN. THIS IS A FURTHER INDICATION THAT, AT WELD HEAT TEMPERATURES, THE EFFECT OF RIPPLE IS NEGLIGIBLE.'

DR. ALVA C. TODD'S ANALYSIS REFERRED TO IN THE ABOVE QUOTATION GOES FURTHER THAN INDICATING A ,PROBABLE OPERATING RMS VALUE WITHIN THE 1 PERCENT LIMITING RANGE.' HE CONCLUDES, BASED UPON EXTENSIVE CALCULATIONS, THAT IF THE 5,000 MICROFARAD CAPACITOR EMPLOYED IN SCIAKY'S PROPOSED CIRCUIT IS SELECTED TO HAVE A VERY LOW SERIES RESISTANCE THEN THE OUTPUT VOLTAGE OF THE FILAMENT POWER SUPPLY WILL BE WELL BELOW THE SPECIFIED 1 PERCENT RMS RIPPLE FACTOR.

WITH REGARD TO YOUR ALLEGATIONS CONCERNING SPECIFICATIONS 2.2, 5.2.7 AND 5.2.8, THE PANEL CONCLUDED THAT THE CODES AND STANDARDS PROPOSED BY SCIAKY WERE ACCEPTABLE AS THEY ARE EQUAL TO OR MORE STRINGENT THAN THOSE SPECIFIED.

YOU ALSO CONTEND THAT SCIAKY DID NOT COMPLY WITH SPECIFICATION 3.18.4 WHICH REQUIRES FCC CERTIFICATION OF THE ENTIRE SYSTEM. UNDER THIS SPECIFICATION SCIAKY STATED THAT "ADEQUATE SHIELDING WILL BE PROVIDED TO BLOCK OBJECTIONABLE RADIO INTERFERENCE FROM ELECTRICAL TRANSIENTS. HOWEVER, FCC CERTIFICATION MUST BE ACCOMPLISHED AFTER INSTALLATION ON SITE AND, THEREFORE, IS NOT INCLUDED IN THIS SPECIFICATION OR PROPOSAL.' THIS LANGUAGE IMPORTS A CLEAR INTENTION TO COMPLY WITH THE SPECIFICATION AND LIMITS ITS RESPONSIBILITY THEREUNDER ONLY TO THE EXTENT THAT CERTIFICATION DEPENDS UPON INSTALLATION. SINCE SCIAKY'S OBLIGATION UNDER THE CONTRACT DOES NOT INCLUDE INSTALLATION, IT IS OUR OPINION THAT THIS IS NOT AN EXCEPTION TO THE REQUIREMENT.

THE DRAFTING OF SPECIFICATIONS STATING THE NEEDS OF THE GOVERNMENT AND THE FACTUAL DETERMINATION AS TO WHETHER THE ITEM OFFERED BY A BIDDER CONFORMS TO THOSE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY CONCERNED. 38 COMP. GEN. 190. IN DECIDING THE CONFORMITY OF THE ITEM OFFERED, THE CONTRACTING OFFICER MAY WAIVE MINOR DEVIATIONS NOT AFFECTING PRICE, QUALITY OR QUANTITY. 37 COMP. GEN. 763, 765. AS STATED IN 30 COMP. GEN. 179, 181:

"THE QUESTION AS TO WHETHER DEVIATIONS FROM THE REQUIREMENTS OF ADVERTISED SPECIFICATIONS MIGHT BE WAIVED AFTER THE OPENING DATE HAS BEEN BEFORE THIS OFFICE MANY TIMES; AND IT HAS BEEN CONSISTENTLY HELD THAT SUCH DEVIATIONS MAY BE WAIVED PROVIDED THEY DO NOT GO TO THE SUBSTANCE OF THE BID OR WORK AN INJUSTICE TO OTHER BIDDERS. IN OTHER WORDS, THE PRIMARY QUESTION FOR DETERMINATION IN THIS AND SIMILAR CASES IS WHETHER THE DEVIATION PROPOSED TO BE WAIVED GOES TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY, OR QUALITY OF THE ARTICLES OFFERED AND THEREFORE IS PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS OR IS MERELY A MATTER OF FORM OR SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE SPECIFICATIONS SUCH AS WOULD NOT AFFECT EITHER THE PRICE, QUALITY, OR QUANTITY OF THE ARTICLES OFFERED.'

IN THE PROCUREMENT OF HIGHLY TECHNICAL, SPECIALIZED OR COMPLEX EQUIPMENT, SINCE OUR OFFICE LACKS THE REQUISITE TECHNICAL EXPERTISE, WE MUST RELY ON THE TECHNICAL OPINION OF THE PROCURING ACTIVITY IN THE RESOLUTION OF FACTUAL DISPUTES AS TO WHETHER EXCEPTIONS TO OR DEVIATIONS FROM SPECIFICATIONS ARE OF SUBSTANCE OR ARE MERELY SOME IMMATERIAL VARIANCE FROM THE EXACT REQUIREMENTS, UNLESS THERE IS SUBSTANTIAL EVIDENCE TO THE CONTRARY. SINCE IT IS THE JUDGMENT OF THE TECHNICAL PERSONNEL OF THE PROCURING ACTIVITY THAT SCIAKY'S OFFER CONFORMS TO THE SPECIFICATIONS IN ALL MATERIAL RESPECTS, AND SINCE THEIR REPORT REASONABLY SUPPORTS THIS POSITION, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE AWARD THAT HAS BEEN MADE.

ALTHOUGH YOUR PROTEST WAS NOT HANDLED AS PRESCRIBED IN ASPR 2 407.9, AS YOU STATE, THIS HAS NOT RESULTED IN ANY PREJUDICE TO YOU AS OUR DECISION HEREIN IS IN NO WAY INFLUENCED BY THE FACT THAT AN AWARD HAD BEEN MADE.