B-161654, AUG. 7, 1967

B-161654: Aug 7, 1967

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WHO PROTESTS QUALITY AND TESTING REQUIREMENTS OF MILITARY SPECIFICATIONS FOR POWDERED MOLYBDENUM DISULFIDE WHICH IS PRODUCED BY ONE PRODUCER (CLIMAX MOLYBDENUM CO.). WHICH FIRM WILL NOT CERTIFY THAT THE PRODUCT MEETS THE SPECIFICATIONS. SINCE TWO QUALIFIED REPROCESSORS ARE IN POSITION TO FURNISH MATERIAL COMPLYING WITH SPECIFICATIONS AS RESULT OF TESTS OF THEIR PRODUCTS. SPECIFICATIONS ARE NOT REGARDED AS UNDULY RESTRICTIVE. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 29. YOU ALSO STATE THAT ONLY ONE COMPANY IN THE UNITED STATES PRODUCES MOLYBDENUM DISULFIDE AND ANY COMPANY BUYING FROM IT WILL. YOU FURTHER STATE THAT THE SOLE PRODUCER WILL NOT CERTIFY THAT ITS PRODUCT WILL MEET THE MILITARY SPECIFICATION.

B-161654, AUG. 7, 1967

BIDS - SPECIFICATIONS - RESTRICTIVE DECISION TO MCGEE CHEMICALS CO., INC., WHO PROTESTS QUALITY AND TESTING REQUIREMENTS OF MILITARY SPECIFICATIONS FOR POWDERED MOLYBDENUM DISULFIDE WHICH IS PRODUCED BY ONE PRODUCER (CLIMAX MOLYBDENUM CO.) WHICH FIRM WILL NOT CERTIFY THAT THE PRODUCT MEETS THE SPECIFICATIONS. SINCE TWO QUALIFIED REPROCESSORS ARE IN POSITION TO FURNISH MATERIAL COMPLYING WITH SPECIFICATIONS AS RESULT OF TESTS OF THEIR PRODUCTS, SPECIFICATIONS ARE NOT REGARDED AS UNDULY RESTRICTIVE.

TO MCGEE CHEMICALS COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 29, 1967, PROTESTING AGAINST THE QUALITY AND TESTING REQUIREMENTS OF MILITARY SPECIFICATIONS (MIL-M-7866B) ON THE GROUND THAT THEY RESTRICT COMPETITION.

THE CITED SPECIFICATION COVERS THE REQUIREMENTS FOR THE PROCUREMENT OF A LUBRICATION GRADE POWDERED MOLYBDENUM DISULFIDE (MOS2). YOU STATE THAT THE SPECIFICATION IMPOSES SEVERE QUALITY AND TESTING REQUIREMENTS AND, IN ADDITION, REQUIRES THE VENDOR TO CERTIFY THAT THE POWDER FURNISHED MEETS THE REQUIREMENTS OF THE SPECIFICATION. YOU ALSO STATE THAT ONLY ONE COMPANY IN THE UNITED STATES PRODUCES MOLYBDENUM DISULFIDE AND ANY COMPANY BUYING FROM IT WILL, OF NECESSITY, DELIVER THE SAME QUALITY PRODUCT TO THE GOVERNMENT. YOU FURTHER STATE THAT THE SOLE PRODUCER WILL NOT CERTIFY THAT ITS PRODUCT WILL MEET THE MILITARY SPECIFICATION. APPARENTLY, THIS IS SO BECAUSE MOS2 IN ITS PRISTINE STATE HAS INHERENT LIMITATIONS ON UNIFORMITY AND THEREFORE WOULD NOT ALWAYS MEET THE SPECIFICATION. YOU CONTEND THAT SINCE THE SOLE PRODUCER WILL NOT CERTIFY THAT ITS PRODUCT WILL MEET THE SPECIFICATION ALL DEALERS BUT ONE HAVE WITHDRAWN FROM THE MARKET RATHER THAN ACCEPT THE RISK OF CERTIFYING THAT THE POWDER COMPLIES WITH THE SPECIFICATION.

THE ADMINISTRATIVE OFFICE HAS REPORTED THAT THE CLIMAX MOLYBDENUM COMPANY IS THE ONLY DOMESTIC SOURCE FOR THE BASIC MOS2 WHICH IS SUPPLIED IN A PARTIALLY REFINED CONDITION. IT IS FURTHER REPORTED THAT IT HAS BEEN DETERMINED BY LABORATORY TESTS AND SERVICE EXPERIENCE THAT CLIMAX MOS2 TECHNICAL GRADE LACKS THE REQUISITE DEGREE AND UNIFORMITY OF QUALITY FOR THE SEVERAL CLASSES OF LUBRICANTS REQUIRED, APPLICATIONS FOR WHICH IN MILITARY HARDWARE ARE COMMONLY VERY DEMANDING. IT HAS BEEN SHOWN FOR EXAMPLE THAT BELOW A CERTAIN NOMINAL PARTICLE SIZE, THE CONCOMITANTLY HIGHER SURFACE TO WEIGHT RATIO PERMITS ACCELERATED OXIDATION, WHICH IN TURN LEADS TO EXCESSIVE ACID FORMATION AND CORROSION. THEREFORE, FURTHER REFINEMENT OF THE CLIMAX PRODUCT IS NECESSARY FOR ADEQUATE LIMITATION OF IMPURITIES AND TO CONTROL PARTICLE SIZE WITHIN TENABLE BOUNDS. SPECIFICATION MIL-M-7866 WAS DEVELOPED TO ATTAIN THIS END. THE "B" REVISION REQUIREMENTS WERE BASED ON THE QUALITY OF REPROCESSED MATERIAL AVAILABLE IN JULY 1965. AMENDMENT 1 TO THE SPECIFICATION WAS ISSUED RECENTLY TO PROVIDE SLIGHT RELAXATION IN PARTICLE SIZE REQUIREMENTS, DEEMED NECESSARY TO ASSURE BETTER COMPATABILITY WITH CURRENT REPROCESSING CAPABILITIES.

THE ADMINISTRATIVE AGENCY FURTHER REPORTS THAT AT THIS TIME AT LEAST TWO REPUTABLE REPROCESSORS OF MOS2 POWDER HAVE INDICATED THEY ARE IN A POSITION TO FURNISH THIS MATERIAL TO CONFORM TO MIL-M-7866B-1 AND THAT THEIR CLAIMS HAVE BEEN VERIFIED BY TESTS OF THEIR PRODUCTS AT THE AERO MATERIALS DEPARTMENT, NAVAL AIR DEVELOPMENT CENTER, JOHNSVILLE, PENNSYLVANIA.

IT HAS BEEN HELD BY OUR OFFICE IN MANY CASES THAT THE PREPARATION OF SPECIFICATIONS COVERING THE ACTUAL NEEDS OF THE GOVERNMENT IS A RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES OF THE GOVERNMENT. IN THE INSTANT MATTER, IT APPEARS THAT THE DEPARTMENT OF THE NAVY HAS EXERCISED THAT RESPONSIBILITY BY THE PREPARATION OF SPECIFICATIONS TO REQUIRE A FURTHER REFINEMENT OF THE CLIMAX PRODUCT TO LIMIT IMPURITIES AND CONTROL PARTICLE SIZE. WHILE THE LAW REQUIRING ADVERTISING FOR BIDS AND AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER, IN EACH CASE, CONTEMPLATES FAIR AND UNRESTRICTED COMPETITION, THE FACT THAT A PARTICULAR BIDDER IS UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEEDS WILL NOT BE SUFFICIENT TO WARRANT THE CONCLUSION THAT SUCH SPECIFICATIONS ARE UNDULY RESTRICTIVE. THUS, SINCE IT IS REPORTED THAT AT LEAST TWO QUALIFIED REPROCESSORS OF MOS2 POWDER ARE IN A POSITION TO FURNISH MATERIAL COMPLYING WITH THE SPECIFICATIONS WE ARE OF THE VIEW THAT THE SPECIFICATIONS ARE NOT UNDULY RESTRICTIVE IN THAT IT APPEARS THEY WERE DESIGNED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT.