B-161642, AUG. 17, 1967

B-161642: Aug 17, 1967

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PROTESTS INADEQUATE AND CONFLICTING SPECIFICATIONS HAS NOT PRESENTED BASIS FOR COMPTROLLER GENERAL TO QUESTION AWARD SINCE CONTRACTING AGENCY FINDS THAT REASONABLE AND FAIR READING OF CONTRACTUAL PROVISIONS DOES NOT SHOW ANY CONFLICTS AND SINCE SPECIFICATIONS ARE MATTER FOR PROCURING AGENCY AND WHERE DIFFERENCE OF OPINION EXISTS. THE GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE PROCURING AGENCY IN ABSENCE OF EVIDENCE THAT AGENCY IS IN ERROR. VICE PRESIDENT: REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 29. YOUR FIRM WAS THE ONLY PREVIOUS SUPPLIER OF SUCH HOSE KITS AND REDC WAS THE ONLY OTHER MANUFACTURER KNOWN TO HAVE AN INTEREST AND THE NECESSARY EXPERIENCE. THE CONTRACTING AGENCY ADVISES THAT THIS PROCUREMENT WAS TO PURCHASE THREE BASIC TYPES OF HOSE KITS.

B-161642, AUG. 17, 1967

BIDS - SPECIFICATIONS - COMPLIANCE DECISION TO AIRBORNE RESEARCH AND DEVELOPMENT CO. RE PROTEST AGAINST NEGOTIATED AWARD FOR HOSE KITS FOR AVIATION SUPPLY OFFICE. UNSUCCESSFUL OFFEROR AND PREVIOUS SUPPLIER WHO, AFTER AWARD TO LOW OFFEROR, PROTESTS INADEQUATE AND CONFLICTING SPECIFICATIONS HAS NOT PRESENTED BASIS FOR COMPTROLLER GENERAL TO QUESTION AWARD SINCE CONTRACTING AGENCY FINDS THAT REASONABLE AND FAIR READING OF CONTRACTUAL PROVISIONS DOES NOT SHOW ANY CONFLICTS AND SINCE SPECIFICATIONS ARE MATTER FOR PROCURING AGENCY AND WHERE DIFFERENCE OF OPINION EXISTS, THE GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE PROCURING AGENCY IN ABSENCE OF EVIDENCE THAT AGENCY IS IN ERROR.

TO MR. J. C. WALSHE, VICE PRESIDENT:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 29, 1967, AND SUPPLEMENTAL LETTER OF JUNE 9, 1967, PROTESTING AGAINST AWARD OF A CONTRACT TO R.E. DARLING COMPANY (REDC) UNDER REQUEST FOR PROPOSALS (RFP) N00383 67-915417, ISSUED BY THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA.

THE RFP CONCERNED A COMPETITIVE SOLICITATION OF PROPOSALS FROM YOUR FIRM AND FROM REDC FOR THREE BASIC TYPE HOSE KITS. YOUR FIRM WAS THE ONLY PREVIOUS SUPPLIER OF SUCH HOSE KITS AND REDC WAS THE ONLY OTHER MANUFACTURER KNOWN TO HAVE AN INTEREST AND THE NECESSARY EXPERIENCE, WITH RELATED EQUIPMENT, TO PRODUCE THE HOSE KITS.

THE CONTRACTING AGENCY ADVISES THAT THIS PROCUREMENT WAS TO PURCHASE THREE BASIC TYPES OF HOSE KITS, EACH OF WHICH IS USED FOR DIFFERENT PURPOSES IN SUPPORT OF RIGID SEAT SURVIVAL KITS USED IN CERTAIN HIGH PERFORMANCE NAVAL AIRCRAFT. THESE HOSE KITS WERE TO MEET THE SPECIFICATIONS OF THE BUREAU OF NAVAL WEAPONS PURCHASE DESCRIPTION WS 6722, DATED JANUARY 24, 1966, AND CERTAIN OF YOUR DRAWINGS LISTED IN THE RFP WHICH ARE APPLICABLE TO A PARTICULAR HOSE KIT. YOU R DRAWINGS IN TURN CALL OUT CERTAIN MILITARY SPECIFICATIONS. WHENEVER MIL-H 81209 WAS CALLED OUT BY YOUR DRAWINGS, THE SCHEDULE OF THE RFP STATED THAT SUCH CALL OUT WAS TO BE IGNORED AND WS 6722 WAS TO BE SUBSTITUTED THEREFOR. WHEREVER MIL-H-22489 AND MIL-H-23927 WERE CALLED OUT BY YOUR DRAWINGS (THESE SPECIFICATIONS RELATE TO CERTAIN HOSE ASSEMBLIES) THE AEROSPACE CREW EQUIPMENT LABORATORY (ACEL) QUALITY ASSURANCE PROVISIONS (QAP) DRAWING NUMBER 31A1287, REVISION A, DATED AUGUST 17, 1964, TOGETHER WITH RELEVANT PARAGRAPHS OF WS 6722, WERE TO MODIFY THE REQUIREMENTS OF THESE MILITARY SPECIFICATIONS.

THE RFP PERMITTED AN ALTERNATE PROPOSAL WHICH WOULD OMIT FIRST ARTICLE TESTING REQUIREMENTS IF THE OFFEROR HAD FURNISHED SIMILAR OR IDENTICAL ARTICLES TO THE GOVERNMENT ON A PAST PROCUREMENT. SINCE YOUR FIRM WAS A PREVIOUS SUPPLIER, IT BID ON THE ALTERNATE. HOWEVER, REDC WAS THE LOW OFFEROR NOTWITHSTANDING THAT FIRST ARTICLE TESTING WAS INCLUDED IN ITS PROPOSAL, AND WAS AWARDED THE CONTRACT ON MAY 24, 1967.

NEITHER OFFEROR OBJECTED TO ANY OF THE TERMS OR CONDITIONS PRIOR TO AWARD. HOWEVER, BY TELEGRAMS TO THIS OFFICE AND TO THE CONTRACTING OFFICER ON MAY 29, 1967, YOU PROTESTED AGAINST THE AWARD ON THE BASIS THAT THE SPECIFICATIONS WERE INADEQUATE AND CERTAIN PROVISIONS WERE IN CONFLICT. TO SUPPORT THIS CONTENTION, YOUR SUPPLEMENTARY LETTER OF JUNE 9, 1967, SETS FORTH THE FOLLOWING ALLEGATIONS:

"THE BASIS OF OUR PROTEST IS THAT ASO IS ATTEMPTING TO PROCURE OXYGEN- COMMUNICATION HOSE ASSEMBLIES AND ASSOCIATED KITS WITH INADEQUATE AND CONFLICTING PROCUREMENT DATA. THE RFP SOLICITED PRICES ON HOSE KIT:

"ITEM 1: PART NO. ACEL 31D1287, REV. LTR.

"ITEM 2: PART NO. ACEL 31D1285, REV. LTR. B (LESS CERTAIN COMPONENTS NOT RELEVANT TO THIS PROTEST)

"ITEM 3: PART NO. ACEL 31D1286, REV. LTR.

"THE RFP FURTHER MAKES REFERENCE TO DELETING MIL-H-81209 AND SUBSTITUTING PURCHASE DESCRIPTION WS6722, VARIOUS ARDC AND ACEL DRAWINGS. IN ADDITION, SUB-PARAGRAPH (2) OF RFP PARAGRAPH 211 STATES, -ALL LISTING OF MIL-H-22489 AND MIL-H-23927 SHALL INCLUDE MODIFICATIONS LISTED ON AEROSPACE CREW EQUIPMENT LABORATORY QUALITY ASSURANCE PROVISIONS DRAWING NO. 31A1274A, REVISION A, DATED 17 AUGUST, 1964, COUPLED WITH RELATED PARAGRAPHS OF WS 6722-.

"WS 6722 CALLS OUT ARDC PART NUMBERS (DRAWINGS) FOR HOSE KITS AND INDIVIDUAL HOSE ASSEMBLIES. ARDC DRAWINGS CALL OUT CONSTRUCTION TO MIL-H- 22489 AND MIL-H-23927. FURTHER, ACEL DRAWINGS 31D1285, 31D1286 AND 31D1287 CALL OUT QUALITY ASSURANCE DRAWING 31A1274A AS A CONTRACTUAL REQUIREMENT. NONE OF THESE DOCUMENTS AGREE WITH EACH OTHER, PARTICULARLY IN THE AREA OF PERFORMANCE, INSPECTION AND TESTING. IN FACT, THERE IS SO MUCH CONFLICT THAT IT IS IMPOSSIBLE TO EVEN DEFINE THE CONTRACTUAL REQUIREMENT.

"AREAS OF CONFLICT ARE AS FOLLOWS:

"A) QUALIFICATION - IS REQUIRED BY MIL-H-22489 AND MIL-H-23927 BUT IS NOT REQUIRED BY WS6722 AND 31A1274A. 31A1274A THEN DELETES QUALIFICATION REQUIREMENTS OF MIL-H-23927 BUT DOES NOT DELETE THIS REQUIREMENT FROM MIL- H-22489. SINCE MIL-H-22489 IS A REQUIREMENT OF THE RFP AND QUALIFICATION IS NOT DELETED BY THE SCHEDULE OR BY ANY OTHER DOCUMENT, ALL BIDDERS WOULD REQUIRE QUALIFICATION PRIOR TO BID OPENING. THIS IS INACCURATE, INCONSISTENT AND IS CONFLICTING.

"B) ENDURANCE - PARAGRAPH 3.5.1.10 OF WS6722 STATES THAT THE HOSE ASSEMBLIES SHALL SHOW NO EVIDENCE OF STRUCTURAL FAILURE, YET 31A1274A STATES THAT THE SLEEVE SHALL SHOW NO EVIDENCE OF FAILURE OR BENDING, THEREFORE THE SPECIFICATIONS ARE IN CONFLICT.

"C) ELONGATION: IS REQUIRED BY WS6722 AND MIL-H-22489, HOWEVER, THE REQUIREMENTS DIFFER. MIL-H-22489 HAS AN ELONGATION ALLOWANCE OF INCREASED LENGTH OF 5 PERCENT INITIALLY AND AFTER REMOVAL OF THE LOAD, THE PERMANENT SET MAY NOT EXCEED 1 PERCENT, WHEREAS WS6722 ALLOWS 12 PERCENT AND 2 PERCENT RESPECTIVELY. ALL OF WHICH IS IN CONFLICT WITH ITSELF.

"D) TENSILE LOAD: WS6722 REQUIRES A LOAD TO BE SUPPLIED FOR 30 SECONDS AND SETS FORTH NO TOLERANCE OR REQUIREMENT FOR PERMANENT SET. MIL-H-22489 GIVES NO TIME LIMIT FOR THE LOAD AND FURTHER ALLOWS A 2 PERCENT PERMANENT SET. ALL OF WHICH IS IN CONFLICT.

"E) STATIC LOAD:WS6722 ALLOWS A DEFLECTION OF 25 PERCENT OF ORIGINAL VALUE AND 5 PERCENT WITH THE LOAD REMOVED. MIL-H-22489 ALLOWS A VALUE OF 10 PERCENT AND 1 PERCENT RESPECTIVELY. 31A1274A MODIFIED MIL-H-22489 TO 15 PERCENT AND 5 PERCENT RESPECTIVELY. ALL OF WHICH MAKES WS6722 AND 31A1274A IN DIRECT CONFLICT WITH EACH OTHER.

"F) MINIMUM BURST: MIL-H-22489 REQUIRES A MINIMUM BURST PRESSURE TEST OF 450 PSI AND MAKES NO MENTION OF ALLOWABLE LEAKAGE RATE. WS6722 SPECIFIES A MINIMUM BURST PRESSURE OF 120 PSI AND AN ALLOWABLE LEAKAGE RATE OF 1.0 CC/MIN./PER FOOT OF HOSE. NOT ONLY IS WS6722 IN CONFLICT WITH MIL-H-22489 (AS MODIFIED BY 31A1274A) BUT IT IS ALSO IN CONFLICT WITH ITSELF. THE MINIMUM BURST PRESSURE SPECIFIED OF 120 PSI, WITH ALLOWABLE LEAKAGE OF 1.0 CC/MIN./FT., IS NOT COMPATIBLE TO THE 150 PSI REQUIREMENT WITH ALLOWABLE LEAKAGE OF 0.50 CC/MIN./FT. OF THE MEASURED LEAKAGE TEST AND ZERO LEAKAGE OF THE UNMEASURED LEAKAGE TEST. THEREFORE, IT IS IN DIRECT CONFLICT WITH PARAGRAPH 4.8.3.1 AND 4.8.3.2 OF 31A1274A SINCE THE MINIMUM BURST PRESSURE TEST OF WS6722 ALLOWS 1.0 CC/MIN./PER FOOT OR TWICE AS MUCH LEAKAGE AT A LOWER TEST PRESSURE OF 120 PSI. THEREFORE, IT IS EVIDENT THAT A HOSE ASSEMBLY IS ACCEPTABLE UNDER ONE PARAGRAPH OF THE SPECIFICATION AND UNACCEPTABLE UNDER ANOTHER PARAGRAPH WHEN CONDUCTING PRESSURE AND LEAK TESTING. ALL OF WHICH IS IN CONFLICT.

"G) TEMPERATURE: WS 6722 IS IN DIRECT CONFLICT WITH 31A1274A, MIL H-22489 AND MIL-H-23927 SINCE IT PLACES NO TOLERANCE LIMIT ON HIGH AND LOW TEMPERATURE TESTS. WS6722 STATES -65 DEGREES F. OR LOWER AND PLUS 160 DEGREES F. OR HIGHER WHICH MEANS THAT THE KITS MUST WITHSTAND UNLIMITED TEMPERATURE ENVIRONMENT. CERTAIN PARTS IN THE KITS HAVE CRITICAL TEMPERATURE LIMITATION ABOVE PLUS 160 DEGREES F. ALL OF WHICH IS IN CONFLICT.

"H) INTERCHANGEABILITY: THE INTERCHANGEABILITY REQUIREMENTS OF WS6722 AS DEFINED BY CLAUSE 211 OF THE RFP ARE INSUFFICIENT REQUIREMENTS TO ASSURE PROPER DISCONNECT INTERCHANGEABILITY. THE ARDC DRAWINGS MAKE IT MANDATORY TO CHECK INTERCHANGEABILITY BY USE OF THE MASTER MATING FIXTURES, P/N'S T355, T367, T357, AND T370. WITHOUT THE USE OF THESE MASTER MATING FIXTURES, THERE WILL BE SERIOUS INTERCHANGEABILITY PROBLEMS IN THE FLEET. THEY MAY NOT CONNECT OR THEY MAY NOT DISCONNECT AND THEREBY BECOME A SAFETY-OF-FLIGHT HAZARD.

"I) ABRASION: MIL-H-22489 AND MIL-H-23927 REQUIRE AN ABRASION TEST FOR ALL NON-STOCKINETTE COVERED HOSES. WS6722 IS IN CONFLICT WITH THESE SPECIFICATIONS AS IT REQUIRES ABRASION TEST REGARDLESS OF HOSE CONSTRUCTION.

"J) FLEXIBILITY ENDURANCE - WS6722, PARAGRAPH 4.6.1.17 IS ANOTHER CONFLICT AREA WHICH REQUIRES HOSE ASSEMBLIES 12040 AND 12096 TO BE CLOSELY COILED ABOUT A 1 1/2 INCH DIAMETER ROD AND RELEASED FOR 250 CYCLES. THE HOSE ASSEMBLY IS THEN TO BE TWISTED 90 DEGREES ON THE LONGITUDINAL AXIS OVER A TWO-FOOT SECTION AND RELEASED. THIS TEST WILL BE REPEATED USING SUCCESSIVE TWO-FOOT SECTIONS OF THE HOSE ASSEMBLY. IT IS IMPOSSIBLE TO ACCOMPLISH FOUR CYCLES SINCE P/N'S 12040 AND 12096 ARE BOTH 42 1/2 INCHES LONG. THIS TEST WOULD REQUIRE AT LEAST AN EIGHT FOOT (96 INCH) HOSE LENGTH ASSEMBLY TO COMPLY WITH THIS REQUIREMENT. THEREFORE, THIS TEST CANNOT BE CONDUCTED NOR CAN THE REQUIREMENT BE MET. ANOTHER INSTANCE OF INACCURATE, INCONSISTENT AND CONFLICTING SPECIFICATION REQUIREMENTS.

"K) IN ADDITION TO ALL OF THE ABOVE, THE DATA IS INADEQUATE INASMUCH AS THE PROCUREMENT SCHEDULE CALLS FOR DELIVERY OF ACEL PART NUMBERS. THESE ACEL PART NUMBERS (DRAWINGS) DO NOT CALL OUT ALL OF THE REQUIREMENTS TO MAKE A COMPLETE KIT AS DO AIRBORNE RESEARCH AND DEVELOPMENT CO. DRAWINGS 12076, 12098-1 AND 12094.

"/1) ACEL DRAWING 31D1287 DOES NOT CALL OUT ALL OF THE FOLLOWING COMPONENTS AS ARE REQUIRED BY ARDC P/N 12098-1.

MS 20822-4D, FITTING 1 EACH

MS 20823-4D, FITTING 1 EACH

AN 122577, WASHER 2 EACH

AN 363-440A, NUT 2 EACH

AN 515C4-6, SCREW 2 EACH

12035, DECAL 1 EACH

12037, CHANNEL ASSEMBLY 1 EACH

12042, PATCH ASSEMBLY 1 EACH

"/2) ACEL DRAWING 31D1286 DOES NOT CALL OUT THE FOLLOWING PARTS AS REQUIRED BY ARDC DRAWING 12094:

12035, DECAL 1 EACH

12037, CHANNEL ASSEMBLY 1 EACH

12042, PATCH ASSEMBLY 1 EACH

"/3) ACEL DRAWING 31D1285 DOES NOT CALL OUT P/N 12031 COVER ASSEMBLY WHICH IS REQUIRED BY ARDC DRAWING 12075-2, NOR DOES THE ACEL DRAWING REQUIRE P/N 12030 COVER ASSEMBLY AS REQUIRED BY ARDC DRAWING 12034.

"L) THE RFP SCHEDULE IDENTIFIES THE ITEMS TO BE PROCURED AS ACEL P/N'S 31D1285, 31D1286 AND 31D1287. A REVIEW OF THESE DRAWINGS WILL SHOW THAT THEY ALL CARRY THE SAME NOTE 1 WHICH STATES, -ONLY THE ITEMS LISTED ON THIS DRAWING AND IDENTIFIED BY VENDOR'S NAME, ADDRESS AND PART NUMBER HAVE BEEN TESTED AND APPROVED BY ACEL. A SUBSTITUTE ITEM IS NOT TO BE USED WITHOUT PRIOR TESTING AND APPROVAL BY ACEL-. THE ONLY APPROVED VENDOR ON THESE DRAWINGS IS AIRBORNE RESEARCH AND DEVELOPMENT CORP., CODE 01547. THEREFORE, THE PROCUREMENT ACTION AND AWARD IS, AGAIN, IN CONFLICT WITH ITSELF, BY AWARDING TO A SOURCE (1) NOT TESTED BY ACEL, (2) NOT PREVIOUSLY APPROVED BY ACEL, (3) TO ONE WHO HAS NOT SUBMITTED A SUBSTITUTE ITEM FOR PRIOR TESTING AND APPROVAL BY ACEL.

"WE HAVE ESTABLISHED BEYOND ANY CONCEIVABLE DOUBT THAT THE TECHNICAL DATA CALLED OUT UNDER THE RFP IS INADEQUATE, INCONSISTENT AND IS IN COMPLETE CONFLICT WITH ITSELF. WE HAVE ESTABLISHED THAT IT IS IMPOSSIBLE TO DEFINE BY THESE DATA EXACTLY WHAT IS REQUIRED TO BE DELIVERED AND IT IS IMPOSSIBLE TO EXACTLY DEFINE THE TESTING REQUIREMENTS.'

IN RECOMMENDING DENIAL OF YOUR PROTEST, THE CONTRACTING AGENCY HAS SUBMITTED THE FOLLOWING ANSWERS TO YOUR ALLEGATIONS:

"PARAGRAPH A) QUALIFICATION

"THE PRIMARY SPECIFICATION IN THIS PROCUREMENT IS WS6722, DATED 24 JANUARY 1966, WHICH IS A REQUIREMENT FOR HOSE KITS. THERE IS NO QUALIFIED PRODUCTS REQUIREMENT FOR THESE HOSE KITS. IT IS TRUE THAT MIL-H-22489 AND MIL-H-23927, WHICH ARE THE BASIC SPECIFICATIONS FOR HOSES, DO, BY THEMSELVES, CONTEMPLATE THAT THERE BE A QPL (QUALIFIED PRODUCTS LIST). THE RFP DOES DELETE SUCH QUALIFICATION REQUIREMENTS FOR MIL-H-23927 BUT DOES NOT FOR MIL-H-22489. THE CONTRACTING OFFICER HAS DETERMINED THAT NO SUCH QPL EXISTS FOR EITHER OF THESE TWO SPECIFICATIONS AND, THEREFORE, NO ONE, INCLUDING ARDC AND REDC, HAVE PRODUCTS WHICH APPEAR ON SUCH LIST FOR THESE PARTICULAR HOSES. IT WAS THE INTENTION OF THE GOVERNMENT TO ALSO DELETE THE QUALIFIED PRODUCTS REQUIREMENT FOR THIS HOSE KIT AS IT RELATED TO MIL-H-22489 FOR THE HOSE. HOWEVER, THE CONTRACTING OFFICER DOES NOT BELIEVE THAT SUCH AN OMISSION IS A MATERIAL ONE. INASMUCH AS BOTH COMPANIES MADE THEIR PROPOSALS ON THE SAME BASIS, I.E., NEITHER APPEARING ON THE QPL, AND SINCE THE CONTRACTING OFFICER DID NOT CONSIDER THE PRESENCE OR ABSENCE ON A QPL AS AN EVALUATION FACTOR, THERE HAS BEEN NO PREJUDICE TO EITHER OFFEROR. FURTHERMORE, BECAUSE OF THE EMERGENCY NATURE OF THIS PROCUREMENT, NO OTHER SOURCES WOULD HAVE BEEN SOLICITED.

"PARAGRAPH B) ENDURANCE

"THE CONTRACTING OFFICER DOES NOT AGREE THAT THERE IS A CONFLICT BETWEEN PARAGRAPH 3.5.1.10 OF WS 6722 WHICH RELATES TO THE ENDURANCE REQUIREMENTS OF THE HOSE ASSEMBLY AND THE PROVISIONS OF PARAGRAPH 3.4.1/D) OF ACEL DRAWING 31A1274A WHICH RELATE TO THE ENDURANCE OF THE SLEEVE AS WELL AS THE HOSE. PARAGRAPH 3.5.1.10 OF WS 6722 STATES THAT THE HOSE ASSEMBLY SHALL SHOW NO EVIDENCE OF STRUCTURAL FAILURE. PARAGRAPH 3.4.1/D) OF ACEL DRAWING 31A1274A STATES THAT "THERE SHALL BE NO EVIDENCE OF STRUCTURAL FAILURE OF THE HOSE AS A RESULT OF THIS TEST.' IT ALSO STATES "THE SLEEVE SHALL SHOW NO EVIDENCE OF FAILURE OR BENDING.' THESE PROVISIONS ARE ENTIRELY CONSISTENT WITH ONE ANOTHER. "PARAGRAPH C) ELONGATION

"WHILE IT IS TRUE THAT THE REQUIREMENTS OF WS 6722 AND MIL-H-22489 DIFFER IN THE RESPECT STATED IN ARDC'S LETTER, PARAGRAPH 2 OF PAGE 9 OF THE SCHEDULE OF THE RFP STATES THAT WHEREVER MIL-H-22489 OR MIL-H 23927 ARE LISTED, THEY SHALL BE MODIFIED BY THE QUALITY ASSURANCE PROVISIONS OF DRAWING 31A1274 AND THE RELATED PARAGRAPHS OF WS 6722. IT WOULD THEREFORE SEEM CLEAR THAT THE PROVISIONS OF WS 6722 TAKE PRECEDENCE, AND THE LESS STRINGENT REQUIREMENT OF AN ELONGATION ALLOWANCE OF 12 PERCENT AND 2 PERCENT AS CONTEMPLATED BY THE CONTRACT WAS THE INTENDED REQUIREMENT.

"PARAGRAPH D) TENSILE LOAD

"THE CONTRACTING OFFICER DOES NOT AGREE THAT THERE IS A CONFLICT BETWEEN THE PROVISIONS OF WS 6722 AND MIL-H-22489 AS ALLEGED BY ARDC IN ITS LETTER. SINCE ALL PROVISIONS OF THE CONTRACT SHOULD BE READ CONSISTENTLY, THE ONLY REASONABLE INTERPRETATION OF THESE PROVISIONS IS THAT THE TENSILE LOAD SHOULD BE APPLIED FOR A PERIOD OF 30 SECONDS AND THAT A 2 PERCENT PERMANENT SET IS PERMISSIBLE.

"PARAGRAPH E STATIC LOAD

"WHILE IT IS TRUE THAT THE STATIC LOAD REQUIREMENTS DIFFER BETWEEN THE REQUIREMENTS OF WS 6722 AND ACEL DRAWING 31A1274A, A FAIR READING OF THE RFP SHOWS THAT IN THE EVENT OF A CONFLICT, WS 6722 WOULD BE THE DOCUMENT WHICH IS GIVEN PRECEDENCE. THE VERY FIRST PARAGRAPH APPEARING ON PAGE 8 STATES THAT -BUREAU OF NAVAL WEAPONS PURCHASE DESCRIPTION WS 6722 DATED 24 JANUARY 1966 EXCEPT AS HERETOFORE MODIFIED ...- SHALL BE THE SPECIFICATION. IN ADDITION, OF THOSE SPECIFICATIONS INVOLVED, THE SPECIFICATION BEARING THE LATEST DATE IS WS 6722, DATED 24 JANUARY 1966. MOREOVER, THE INTENDED REQUIREMENT OF WS 6722 IS THE LEAST STRINGENT OF ALL THE REQUIREMENTS AND IS ACCEPTABLE TO THE GOVERNMENT.

"PARAGRAPH F) MINIMUM BURST

"THE CONTRACTING OFFICER DOES NOT AGREE WITH THE ALLEGATIONS SET FORTH IN THIS PARAGRAPH OF ARDC'S LETTER OF PROTEST. WHILE THERE WAS AN ERROR MADE IN PARAGRAPHS 3.5.1.12 AND 4.6.1.13 OF WS 6722 IN SETTING FORTH THE MINIMUM BURST REQUIREMENT OF 120 PSI, SUCH A VALUE IS, IN THE OPINION OF THE CONTRACTING OFFICER SO OBVIOUS AN ERROR, IN LIGHT OF THE MINIMUM LEAKAGE REQUIREMENTS OF 150 PSI, THAT THE OFFERORS SHOULD HAVE KNOWN THERE WAS AN ERROR. THE 450 PSI REQUIREMENT CALLED OUT BY MIL-H-22489 IS THE CORRECT MINIMUM BURST PRESSURE. QPL-22489-7 DATED 12 JANUARY 1967 IS ATTACHED HERETO AS ENCLOSURE 8 WHICH DEMONSTRATES THE EXTENSIVE EXPERIENCE ARDC AND REDC HAVE IN THE MANUFACTURE OF VARIOUS HOSES.

"PARAGRAPH G) TEMPERATURE

"THE ALLEGATIONS IN THIS PARAGRAPH OF ARDC'S LETTER IS A DISTORTION OF THE MEANING OF THE WORDS IN PARAGRAPHS 4.6.1.14.1 AND 4.6.1.14.2 OF SPECIFICATION WS 6722. THESE PARAGRAPHS RELATE TO SPECIFIC TEST PROCEDURES. A READING OF PARAGRAPH 4.6.1.14.1 CLEARLY INDICATES THAT THE INTENTION OF THIS LANGUAGE IS THAT THE TEMPERATURE SHOULD BE 160 DEGREES F AND NOT SOME INDEFINITE TEMPERATURE HIGHER THAN 160 DEGREES F. THE LANGUAGE CONSISTENTLY SPEAKS OF MAINTAINING 160 DEGREES F TEMPERATURE. THE REQUIREMENT OF MAINTAINING 160 DEGREES F TEMPERATURE IS MENTIONED THREE TIMES IN PARAGRAPH 4.6.1.14.1. SINCE THE SAME PROCEDURE APPLIES TO PARAGRAPH 4.6.1.14.2, THE SAME CONCLUSIONS ARE APPLICABLE TO THIS PARAGRAPH.

"PARAGRAPH H) INTERCHANGEABILITY

"THE CONTRACTING OFFICER DOES NOT AGREE WITH THE ALLEGATIONS SET FORTH IN PARAGRAPH H OF ARDC'S LETTER. ADEQUATE MASTER MATING FIXTURE DRAWINGS ARE CALLED OUT IN CLAUSE 211 OF THE RFP ON PAGES 11, 13, AND 15 THEREOF UNDER THE HEADING OF -ARDC SPECIAL TOOLS-. THE CONTRACTING OFFICER HAS BEEN ADVISED THAT THESE SPECIFICATIONS ARE COMPLETE AND ADEQUATE FOR MANUFACTURING OF THE SPECIAL TOOLS IN QUESTION AND THUS THE INTERCHANGEABILITY REQUIREMENTS ARE ADEQUATELY SET FORTH.

"PARAGRAPH I) ABRASION

"THE CONTRACTING OFFICER DOES NOT AGREE WITH THE ALLEGATIONS SET FORTH IN PARAGRAPH I OF ARDC'S LETTER. THERE IS NO CONFLICT BETWEEN MIL-H-22489, MIL-H-23927, AND WS 6722. THE REQUIREMENTS OF WS 6722 PROVIDE FOR A REQUIREMENT ADDITIONAL TO THOSE REQUIRED BY MIL-H-22489 AND MIL-H-23927. THE CONTEMPLATION AND INTENTION OF THE GOVERNMENT IN THIS CONNECTION IS THAT AN ABRASION TEST BE REQUIRED REGARDLESS OF WHETHER THE HOSES ARE STOCKINETTE COVERED.

"PARAGRAPH J) FLEXIBILITY ENDURANCE

"THE CONTRACTING OFFICER DOES NOT AGREE WITH THE STATEMENT SET FORTH BY ARDC IN PARAGRAPH J OF ITS LETTER. ARDC BASES ITS ARGUMENT ON THE UNFOUNDED ASSUMPTION THAT THERE ARE FOUR CYCLES REQUIRED IN ANY TEST OF THE HOSES IN QUESTION. THERE IS NO SUCH SPECIFICATION NOR INTENTION THAT THE TEST BE IN FOUR CYCLES. THE OBVIOUS AND CLEAR INTENTION OF PARAGRAPH 4.6.1.17 OF WS 6722 IS THAT, TO THE EXTENT THAT ANY HOSE IN QUESTION HAS A TWO FOOT SECTION OR ANY PORTION THEREOF, SUCH TWO FOOT SECTION OR PORTION THEREOF WILL BE SUBJECTED TO THE SPECIFIED TESTS 250 TIMES.

"PARAGRAPH K) ADEQUACY OF DATA

"THE CONTRACTING OFFICER DOES NOT AGREE AS TO THE ALLEGATIONS SET FORTH IN PARAGRAPH K OF ARDC'S LETTER THAT THE DATA SET FORTH IN THE RFP IS INADEQUATE. CONTRARY TO THE STATEMENTS MADE BY ARDC, ALL OF THE COMPONENTS LISTED AS NOT HAVING BEEN CALLED OUT BY THE RFP WERE, IN FACT, CALLED OUT IN THE RFP. THE FOLLOWING IS A LIST OF THE PAGE NUMBERS WHERE SUCH ALLEGED OMISSIONS DO APPEAR IN THE RFP:

"ACEL DRAWING 31D1287

MS 20822-4D, FITTING)

MS 20823-4D, FITTING) DRAWING LM 12098-1,

AN 122577, WASHER ( CALLED OUT ON

AN 363-40A, NUT ( PAGE 10 OF THE RFP

AN 515C4-6, SCREW (

12035, DECAL (

12037, CHANNEL ASSEMBLY) PAGE 10 OF THE RFP

12042, PATCH ASSEMBLY (

"ACEL DRAWING 31D1286

12035, DECAL (

12037, CHANNEL ASSEMBLY) PAGE 14 OF THE RFP

12042, PATCH ASSEMBLY (

"ACEL DRAWING 31D1285

12031, COVER)

12030, COVER) PAGE 12 OF THE RFP

"PARAGRAPH L) NOTE 1 ACEL DRAWINGS

"THE STATEMENT -ONLY THE ITEMS LISTED ON THIS DRAWING AND IDENTIFIED BY VENDOR'S NAME, ADDRESS, AND PART NUMBER HAVE BEEN TESTED AND APPROVED BY ACEL. A SUBSTITUTE ITEM IS NOT TO BE USED WITHOUT PRIOR TESTING AND APPROVAL BY ACEL- - IS NOT INCONSISTENT WITH THE PROCUREMENT METHOD ESTABLISHED UNDER THIS RFP INASMUCH AS FIRST ARTICLE TESTING IS REQUIRED UNDER THE TERMS AND CONDITIONS THEREOF.'

IT IS THE OPINION OF THE CONTRACTING AGENCY THE FOREGOING ESTABLISHES THAT A REASONABLE AND FAIR READING OF THE CONTRACTUAL PROVISIONS DOES NOT RESULT IN THE CONFLICTS SET FORTH IN YOUR LETTER OF JUNE 9, 1967, AND THAT YOUR ALLEGATIONS ARE EITHER INVALID OR, IF VALID, OF LITTLE CONSEQUENCE. FURTHER, WE ARE ADVISED THAT REDC AGREES WITH THE INTERPRETATIONS OF THE CONTRACTING OFFICER AS SET OUT ABOVE, IS PRESENTLY PERFORMING THE CONTRACT SATISFACTORILY, AND ANTICIPATES NO DIFFICULTIES.

IT IS WELL ESTABLISHED THAT THE DRAFTING OF PROCUREMENT SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT, AS WELL AS THE DETERMINATION WHETHER THE BIDS RECEIVED OFFER A PRODUCT MEETING SPECIFICATION REQUIREMENTS, IS PRIMARILY THE FUNCTION AND RESPONSIBILITY OF THE AGENCY CONCERNED. COMP. GEN. 294, 297; 44 COMP. GEN. 302, 305; 38 COMP. GEN. 190. CONSEQUENTLY, IN SITUATIONS WHERE DIFFERENCES OF OPINION EXIST AS TO WHETHER SPECIFICATIONS ARE ADEQUATE TO PERMIT THE MANUFACTURE OF A PRODUCT WHICH WILL MEET THE NEEDS OF THE PROCURING AGENCY, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY IS IN ERROR. WE FIND NO SUCH EVIDENCE IN THE PRESENT RECORD.

ADDITIONALLY, IT WOULD APPEAR THAT THE PROPER TIME FOR YOUR COMPANY TO HAVE QUESTIONED THE ADEQUACY OR PROPRIETY OF THE SPECIFICATIONS WOULD HAVE BEEN PRIOR TO SUBMISSION OF A PROPOSAL, AND IN ANY EVENT PRIOR TO BEING ADVISED THAT A CONTRACT HAD BEEN AWARDED. B-151155, MAY 24, 1963; B- 151355, JUNE 25, 1963; B-156025, MAY 24, 1965; B 156825, JULY 26, 1965; B- 158289, MARCH 17, 1966.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS FOR QUESTIONING THE AWARD TO R.E. DARLING COMPANY.