B-165258, NOV. 21, 1968

B-165258: Nov 21, 1968

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TO PLASMADYNE GIANNINI SCIENTIFIC CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10. TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. YOU BID ON ITEM 1 ONLY AND WERE THE LOW BIDDER ON THAT ITEM. DESCRIPTIVE LITERATURE WAS ATTACHED TO YOUR BID TOGETHER WITH A COVER LETTER DATED JUNE 21. WHICH CONTAINED A STATEMENT TO THE EFFECT THAT THE BID WAS BASED UPON SUPPLYING A PLASMA FLAME SPRAY SYSTEM IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-P-80109. THE COVER LETTER ALLEGED THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE. YOUR BID WAS REJECTED AS NONRESPONSIVE BECAUSE IT DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATION CONTAINED IN THE INVITATION. IT IS YOUR VIEW THAT THE MILITARY SPECIFICATION (MIL-P-80109) CITED IN YOUR BID SHOULD HAVE BEEN USED RATHER THAN THE RESTRICTIVE SPECIFICATIONS INCLUDED IN THE INVITATION.

B-165258, NOV. 21, 1968

TO PLASMADYNE GIANNINI SCIENTIFIC CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1968, PROTESTING THE AWARD OF A CONTRACT TO ANY FIRM UNDER INVITATION FOR BIDS NO. N00600-68-B- 0879, ISSUED ON JUNE 14, 1968, BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE SUBJECT INVITATION SOLICITED BIDS FOR THE PURCHASE OF A PLASMA FLAME SPRAY SYSTEM (ITEM 1), AND A PLASMA FLAME SPRAY BOOTH (ITEM 2) TO BE DELIVERED TO THE NAVAL AIR STATION, PENSACOLA, FLORIDA, IN ACCORDANCE WITH THE SPECIFICATIONS SET OUT IN THE INVITATION. TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. YOU BID ON ITEM 1 ONLY AND WERE THE LOW BIDDER ON THAT ITEM. IN YOUR BID, HOWEVER, YOU INSERTED THE WORDS "EQUIPMENT IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-P-80109;, DESCRIPTIVE LITERATURE WAS ATTACHED TO YOUR BID TOGETHER WITH A COVER LETTER DATED JUNE 21, 1968, WHICH CONTAINED A STATEMENT TO THE EFFECT THAT THE BID WAS BASED UPON SUPPLYING A PLASMA FLAME SPRAY SYSTEM IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-P-80109. IN ADDITION, THE COVER LETTER ALLEGED THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE. YOUR BID WAS REJECTED AS NONRESPONSIVE BECAUSE IT DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATION CONTAINED IN THE INVITATION. HOWEVER, IT IS YOUR VIEW THAT THE MILITARY SPECIFICATION (MIL-P-80109) CITED IN YOUR BID SHOULD HAVE BEEN USED RATHER THAN THE RESTRICTIVE SPECIFICATIONS INCLUDED IN THE INVITATION.

WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE NAVY THAT THE EQUIPMENT OFFERED BY YOU DID NOT CONFORM TO THE INVITATION SPECIFICATION REQUIREMENTS IN THE FOLLOWING RESPECTS:

"A. IT DOES NOT HAVE A SPRAY GUN CAPABLE OF SPRAYING TWO INDIVIDUAL POWDERS AT THE SAME TIME;

"B. THE POWDER FEEDER DOES NOT APPEAR TO BE PRESSURIZED AS REQUIRED, AND DOES NOT INCLUDE THE SPECIFIED INTEGRAL INSTRUMENTATION; AND

"C.THE DESCRIPTIVE LITERATURE FURNISHED WITH THE BID STATES THAT MACHINE MOUNTING OF THE GUN IS POSSIBLE; HOWEVER, THE BID DOES NOT STATE THAT THE GUN WILL BE MACHINE MOUNTED AS REQUIRED BY THE SPECIFICATIONS.'

IT IS FURTHER REPORTED THAT THE MILITARY SPECIFICATION TO WHICH YOU REFER WAS NOT USED BECAUSE IT WAS NOT CONSIDERED SUFFICIENTLY DEFINITIVE TO INSURE THAT THE EQUIPMENT FURNISHED WOULD MEET THE MINIMUM ESSENTIAL REQUIREMENTS OF THE GOVERNMENT. RATHER, IT WAS DETERMINED TO USE A PURCHASE DESCRIPTION SETTING FORTH THE MINIMUM ESSENTIAL REQUIREMENTS RATHER THAN TO EXTENSIVELY MODIFY THE MILITARY SPECIFICATION. THE NAVY REPORTS THAT THE INADEQUACY OF MIL-P-80109 IS EVIDENCED BY THE FACT THAT IT IS BEING SUPERSEDED BY MIL-P-80109A WHICH WAS RELEASED FOR PRINTING AND DISTRIBUTION ON OCTOBER 21, 1968, OR SUBSEQUENT TO THE ISSUANCE OF THE INVITATION. IN ADDITION, IT IS STATED THAT THE SPECIFICATIONS INCORPORATED IN THE INVITATION ARE IN ACCORDANCE WITH THE REVISION TO THE MILITARY SPECIFICATION AND THAT THE REVISED MILITARY SPECIFICATION WOULD HAVE BEEN USED FOR THIS PROCUREMENT HAD IT BEEN AVAILABLE WHEN THE INVITATION WAS ISSUED. THE NAVY ALSO STATES THAT THE PURCHASE DESCRIPTION USED IS NOT CONSIDERED TO BE RESTRICTIVE AND DID NOT SET FORTH MINOR DESIGN DETAILS OR SPECIFY FEATURES PECULIAR TO A PARTICULAR MAKE OF EQUIPMENT AS YOU ALLEGE. RATHER, IT STATED THE ESSENTIAL CHARACTERISTICS AND FUNCTIONS OF THE EQUIPMENT NEEDED BY THE PROCUREMENT AGENCY AS REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.1. THAT REGULATION PROVIDES IN PERTINENT PART WITH RESPECT TO THE DESCRIPTION OF GOODS AND SERVICES TO BE PURCHASED UNDER COMPETITIVE BIDDING PROCEDURES:

"/A) A PURCHASE DESCRIPTION MAY BE USED IN LIEU OF A SPECIFICATION WHEN AUTHORIZED BY 1-1202 (B) AND, SUBJECT TO THE RESTRICTION ON REPETITIVE USE IN 1-1202 (B) (VII), WHERE NO APPLICABLE SPECIFICATION EXISTS. A PURCHASE DESCRIPTION SHOULD SET FORTH THE ESSENTIAL CHARACTERISTICS AND FUNCTIONS OF THE ITEMS OR MATERIALS REQUIRED. PURCHASE DESCRIPTIONS SHALL NOT BE WRITTEN SO AS TO SPECIFY A PRODUCT, OR A PARTICULAR FEATURE OF A PRODUCT, PECULIAR TO ONE MANUFACTURER AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT MANUFACTURED BY ANOTHER COMPANY, UNLESS IT IS DETERMINED THAT THE PARTICULAR FEATURE IS ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THE PARTICULAR FEATURE WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM. * * *"

WHILE ASPR 1-1202 (A) PROVIDES THAT COORDINATED MILITARY SPECIFICATIONS ARE MANDATORY FOR USE BY THE DEPARTMENT OF DEFENSE IN THE PROCUREMENT OF SUPPLIES COVERED BY THAT PARTICULAR SPECIFICATION, SUBSECTION (C) OF THAT REGULATION PROVIDES THAT SUCH SPECIFICATION NEED NOT BE USED WHEN IT IS DETERMINED, AS HERE, THAT THE SPECIFICATION DOES NOT MEET THE PARTICULAR OR ESSENTIAL NEEDS OF THE AGENCY.

IN VIEW THEREOF, AND SINCE YOU QUALIFIED YOUR BID IN A MATERIAL RESPECT WHICH WAS FATAL TO ITS CONSIDERATION (43 COMP. GEN. 209), WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE TO THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION. ACCORDINGLY, YOUR PROTEST IS DENIED.