B-160444, JAN. 30, 1967

B-160444, JAN. 30, 1967

TO JAMES E. TURNQUIST COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29, 1966, PROTESTING AGAINST THE AWARD OF CONTRACT NO. N62467-67-C-0040 TO SU JAK ENTERPRISES, INCORPORATED, FOR THE CONSTRUCTION OF AN ELECTRO ACOUSTIC FACILITY AT THE NAVAL TRAINING DEVICE CENTER, UNITED STATES AIR FORCE BASE, ORLANDO, FLORIDA.

THE INVITATION WITH SPECIFICATION NO. 79773/66 WAS ISSUED ON AUGUST 10, 1966, BY THE NAVAL FACILITIES ENGINEERING COMMAND. PARAGRAPH 13A.8.3 OF THE SPECIFICATION PROVIDED AS FOLLOWS:

"13A.8.3 QUALIFICATION.---ONLY THOSE MANUFACTURERS WHOSE ASSEMBLED PRODUCTS MEET THE QUALIFICATION REQUIREMENTS OF SPECIFICATION MIL-C 81016 FOR TYPE I AND TYPE II CHAMBERS AND WHOSE COMPANY NAME IS LISTED IN THE QUALIFIED PRODUCTS LIST FOR THIS SPECIFICATION WILL BE ACCEPTABLE.'

SEVEN BIDS WERE RECEIVED AND OPENED ON SEPTEMBER 13, 1966, IN RESPONSE TO THE INVITATION. YOUR FIRM WAS THE LOW BIDDER IN THE AMOUNT OF $41,300. THE NEXT LOW BIDDER WAS SU-JAK ENTERPRISES, INCORPORATED, IN THE AMOUNT OF $48,950. THE GOVERNMENT ESTIMATE WAS $64,000. BECAUSE YOUR BID WAS CONSIDERABLY LOWER THAN THE OTHER BIDS AND THE GOVERNMENT ESTIMATE THE GOVERNMENT BY LETTER DATED SEPTEMBER 14, 1966, REQUESTED YOUR FIRM TO REVIEW THE BID TO DETERMINE WHETHER ANY ERROR HAD BEEN MADE AND, IF NOT, TO CONFIRM THE PRICE OF $41,300. IN LETTER DATED SEPTEMBER 17, 1966, YOU CONFIRMED THE BID AND STATED THAT YOU INTENDED TO USE THE MATERIALS OF THE RINK COMPANY, INASMUCH AS THE RINK COMPANY IS ON THE QUALIFIED PRODUCTS LIST (QPL 81016-1) FOR SPECIFICATION MIL-C-81016/WEPS) AS REQUIRED BY THE ABOVE-QUOTED PARAGRAPH 13A.8.3 OF THE SPECIFICATIONS. A SUBSEQUENT LETTER OF TRANSMITTAL DATED SEPTEMBER 19, 1966, WAS FURNISHED BY YOU SUBMITTING FOR GOVERNMENT APPROVAL SUTTLE EQUIPMENT CORPORATION PRODUCTS AS DESCRIBED BY A SUTTLE CORPORATION BROCHURE. IT IS REPORTED THAT THESE LETTERS WERE ANSWERED ON SEPTEMBER 23, 1966, STATING THAT, INASMUCH AS NEITHER THE RINK COMPANY NOR THE SUTTLE CORPORATION WAS ON THE QPL 81016-1, THE PRODUCTS FURNISHED BY THESE COMPANIES COULD NOT BE APPROVED AND YOU WERE AGAIN REQUESTED TO VERIFY YOUR BID. ON OCTOBER 3, 1966, THE GOVERNMENT ADVISED YOU THAT THE INDUSTRIAL ACOUSTICS COMPANY WAS THE ONLY COMPANY LISTED ON THE QPL 81016-1 AND, IF YOUR PRICE WAS NOT BASED ON FURNISHING THAT FIRM'S PRODUCT, YOUR BID APPEARED TO BE IN ERROR. ON OCTOBER 15, 1966, YOU REQUESTED THAT YOU BE PERMITTED TO WITHDRAW YOUR BID BECAUSE YOU WOULD NOT BE ABLE TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS. THE GOVERNMENT PERMITTED YOU TO WITHDRAW THE BID ON THE BASIS OF YOUR MISTAKEN BELIEF THAT YOUR PROPOSED SUPPLIER OF MATERIAL WAS ON THE QUALIFIED PRODUCTS LIST AND THE CONTRACT WAS AWARDED TO SU-JAK ENTERPRISES FOR $48,950.

IN YOUR LETTER OF NOVEMBER 29, 1966, YOU ALLEGE THAT THE GOVERNMENT IGNORED YOUR REQUEST TO DISREGARD YOUR LETTER OF OCTOBER 15, 1966,WITHDRAWING YOUR BID. ALSO, YOU CONTEND THAT THE PROVISIONS OF PARAGRAPH 13A.8.3 OF THE SPECIFICATIONS WERE NOT ONLY RESTRICTIVE BUT WERE UNNECESSARY FOR THE TYPE OF WORK INVOLVED. YOU FURTHER CONTEND THAT SINCE THE SUTTLE EQUIPMENT CORPORATION HAS BEEN A SUPPLIER OF MOST OF THE ITEMS ON THE QUALIFIED PRODUCTS LIST FOR A PERIOD OF 3 OR MORE YEARS ITS PRODUCTS WERE NOT FAIRLY CONSIDERED. YOU ALSO ALLEGE THAT THE CONTRACTING AGENCY REFUSED TO TEST CERTAIN ITEMS OF THE SUTTLE CORPORATION IN ORDER FOR IT TO QUALIFY ITS PRODUCTS.

REGARDING YOUR ALLEGATION THAT THE GOVERNMENT IGNORED YOUR REQUEST TO DISREGARD YOUR OCTOBER 15 LETTER WITHDRAWING YOUR BID, THE ADMINISTRATIVE AGENCY REPORTS THAT IT NEVER RECEIVED ANY COMMUNICATION TO THAT EFFECT. IN THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY WE, OF COURSE, MUST ACCEPT THE ADMINISTRATIVE REPORT REGARDING THE FACTS OF THE MATTER. 16 COMP. GEN. 325. FURTHERMORE, IT DOES NOT APPEAR THAT YOU WERE PREJUDICED BECAUSE THE GOVERNMENT CONSIDERED YOUR BID AS WITHDRAWN. YOUR BID AS SUBMITTED WAS CLEARLY NONRESPONSIVE BECAUSE YOU ADVISED THAT YOU WERE NOT CONTEMPLATING FURNISHING MATERIALS FROM A SUPPLIER WHOSE PRODUCTS WERE ON THE QUALIFIED PRODUCTS LIST. CONSEQUENTLY, HAD YOUR BID REMAINED OPEN THE CONTRACT COULD NOT HAVE BEEN AWARDED TO YOU.

WE DO NOT AGREE WITH YOUR CONTENTION THAT THE REQUIREMENT THAT MATERIALS FOR THE CONTRACT MUST BE OBTAINED FROM THE QUALIFIED PRODUCTS LIST WAS RESTRICTIVE AND UNNECESSARY. THE ADMINISTRATIVE REPORT STATES THAT AFTER MEASURING THE NOISE LEVELS TO BE ENCOUNTERED INSIDE THE FACILITY TO BE CONSTRUCTED IT WAS DETERMINED THAT THE TYPE OF PREFABRICATED STRUCTURES SPECIFIED BY MILITARY SPECIFICATION MIL-C 81016 FOR DOUBLE-WALL, 10-MAN AUDIOMETRIC TESTING CHAMBERS WOULD BE MOST NEARLY APPLICABLE TO THE GOVERNMENT'S REQUIREMENTS IN TERMS OF NOISE ATTENUATION, IN STRUCTURE SIZE, AND IN OTHER REQUIREMENTS. HENCE, IT WAS CONCLUDED THAT TO SUPPORT ADEQUATELY THE GOVERNMENT'S RESEARCH AND DEVELOPMENT REQUIREMENTS, THE MATERIALS ACQUIRED FOR THE CONTRACT MUST BE FROM THE QUALIFIED PRODUCTS LIST. WE HAVE HELD THAT, ALTHOUGH THE QUALIFIED PRODUCTS LIST INVOLVES AN ELEMENT OF RESTRICTION ON FULL AND FREE COMPETITION, THE ESTABLISHMENT OF SUCH LISTS AND THEIR UTILIZATION ARE WITHIN THE PROPER BOUNDS OF THE DISCRETION CONFERRED BY LAW UPON THE PROCURING AGENCIES. 36 COMP. GEN. 809.

WITH RESPECT TO THE TESTING OF THE PRODUCTS OF SUTTLE IT IS ADMINISTRATIVELY REPORTED THAT SUTTLE HAS BEEN ATTEMPTING FOR A PERIOD OF OVER 2 YEARS TO GET ITS PRODUCTS ON THE QUALIFIED PRODUCTS LIST. WHILE THAT FIRM HAS BEEN SUCCESSFUL IN PASSING THE REQUIRED TESTS FOR SMALLER, LESS CRITICAL CHAMBERS, ITS 10-MAN CHAMBER (APPROXIMATELY ONE HALF THE VOLUME OF THE FACILITY TO BE CONSTRUCTED) AGAIN FAILED TO MEET THE NOISE REDUCTION REQUIREMENT AS LATE AS OCTOBER 1966. IT IS POINTED OUT THAT IN THE LOWER END OF THE FREQUENCY SPECTRUM, SUTTLE'S PRODUCT FAILS BY A CONSIDERABLE MARGIN AND THAT THIS PORTION OF THE SPECTRUM HAS BEEN FOUND TO BE THE MOST CRITICAL FOR THE FACILITY. CONSIDERING THESE FACTS WE CANNOT AGREE WITH YOUR CONTENTION THAT THE PRODUCTS OF SUTTLE WERE NOT FAIRLY CONSIDERED OR THAT IT WAS NOT AFFORDED AMPLE OPPORTUNITY TO HAVE ITS PRODUCTS TESTED.

IN VIEW OF THE FACTS REPORTED BY THE ADMINISTRATIVE OFFICE CLEARLY INDICATING THAT QUALIFIED PRODUCTS LIST PRODUCTS FOR THE PROJECT INVOLVED ARE CONSIDERED TO BE ESSENTIAL FOR THE SUCCESSFUL OPERATION AND RESEARCH AT THE NAVAL TRAINING DEVICE CENTER, WE PERCEIVE NO LEGAL BASIS FOR HOLDING THAT THE CONTRACT AWARDED TO SU-JAK ENTERPRISES, INCORPORATED, IS INVALID.