B-165555, JAN. 24, 1969

B-165555: Jan 24, 1969

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TO RAY PROOF CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 1. THE GOVERNMENT CONSTRUCTION COST ESTIMATE WAS $1. THEY SHALL ACCURATELY POSITION IN THE FRAME TO EFFECT AN RF TIGHT SEAL WHEN PRESSURE IS APPLIED TO THE SEALING DEVICE. THE LIGHTS SHALL BE ACTUATED BY A PRESSURE SWITCH TO SHOW WHEN THE INDICATED DOOR IS IN A SEALED CONDITION. YOU CONTEND THAT THERE SHOULD NOT HAVE BEEN DELETED FROM PARAGRAPH 13B.3.1 OF THE SPECIFICATIONS THE REQUIREMENT THAT THE LOW BIDDER SUBMIT PROOF FROM AN APPROVED TESTING AGENCY THAT A SHIELDED ENCLOSURE OF EQUAL CONSTRUCTION AND SHIELDING AMBIENT. ARE RESTRICTIVE OF COMPETITION IN THAT THEY ONLY SPECIFY A DOOR MANUFACTURED BY LECTRO MAGNETICS.

B-165555, JAN. 24, 1969

TO RAY PROOF CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 1, 1968, PROTESTING AGAINST CERTAIN SPECIFICATIONS IN INVITATION FOR BIDS NO. N62473-67-C 3138 ISSUED BY THE SOUTHWEST DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, SAN DIEGO, CALIFORNIA.

THE INVITATION SOLICITED BIDS FOR THE CONSTRUCTION OF THE SOLID STATE DEVICES R-AND-D FACILITY (P-040), NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA. THE GOVERNMENT CONSTRUCTION COST ESTIMATE WAS $1,592,000. PORTION OF THE PROJECT REQUIRED THE RADIO FREQUENCY SHIELDING OF 6 ROOMS AND INCLUDED THE FURNISHING OF 6 SHIELDED DOORS HAVING AN APPROXIMATE TOTAL VALUE OF $12,500.

WITH RESPECT TO THE CONSTRUCTION OF THE SHIELDED ENCLOSURES, THE ORIGINAL SPECIFICATIONS PROVIDED AS FOLLOWS:

"13B.3.1 CONTRACTOR EXPERIENCE. AFTER OPENING OF BIDS, BUT PRIOR TO AWARD OF THIS CONTRACT, THE LOW BIDDER SHALL SUBMIT TO THE OFFICER IN CHARGE, CERTIFICATION FROM AN APPROVED TESTING AGENCY ESTABLISHING THAT THE LOW BIDDER HAS, WITHIN THE PAST TWO YEARS, SUCCESSFULLY INSTALLED A SHIELDED ENCLOSURE OF EQUAL CONSTRUCTION AND SHIELDING AMBIENT SPECIFIED HEREIN AND THAT IT HAS MAINTAINED THE MINIMUM AMBIENT REQUIREMENTS FOR A PERIOD OF ONE YEAR AFTER ACCEPTANCE. THE LOW BIDDER MAY MEET THIS EXPERIENCE REQUIREMENT BY PRESENTING EVIDENCE OF A FIRM CONTRACTUAL AGREEMENT WITH A SUBCONTRACTOR AND ESTABLISHING THAT SAID SUBCONTRACTOR MEETS THIS EXPERIENCE REQUIREMENT.

"13B.3.4.U DOORS. ALL DOORS SHALL BE SLIDING UNITS OF THE SIZE AND OPERATING DIRECTION INDICATED ON THE DRAWINGS. THEY SHALL BE MANUALLY OPERABLE FROM EITHER SIDE, WITH A MAXIMUM PULL OF 35 POUNDS IN THE UNSEALED CONDITION. THEY SHALL ACCURATELY POSITION IN THE FRAME TO EFFECT AN RF TIGHT SEAL WHEN PRESSURE IS APPLIED TO THE SEALING DEVICE. THE RF TIGHT SEAL SHALL BE ACCOMPLISHED BY A 4 INCH MINIMUM LAP OF THE SEALING SURFACE AROUND THE ENTIRE PERIPHERY AND ON BOTH FACES OF THE DOOR. IN THE SEALED POSITION THE DOOR SHALL PROVIDE THE SHIELDING EFFECTIVENESS REQUIREMENTS SPECIFIED HEREINBEFORE. THE CONTRACTOR SHALL SUBMIT CERTIFIED COPIES OF TEST REPORTS FROM AN APPROVED TESTING AND CERTIFICATION AGENCY INDICATING THE FOLLOWING:

"A.) SUCCESSFUL INSTALLATION OF A SLIDING DOOR PROVEN BY TESTING TO MEET OR EXCEED THESE HEREINBEFORE SPECIFIED SHIELDING EFFECTIVENESS REQUIREMENTS, AND

"B.) FOR A PERIOD OF ONE YEAR AFTER ACCEPTANCE THE DOOR SHALL CONTINUE TO PROVIDE THE HEREINBEFORE SPECIFIED SHIELDING EFFECTIVENESS REQUIREMENTS.

"THE SEALING DEVICE SHALL -FAIL SAFE- UPON LOSS OF PRESSURE ALLOWING MANUAL OPERATION OF THE DOOR. A CONTROL PANEL FOR APPLICATION AND RELEASE OF THE SEALING PRESSURE SHALL BE PROVIDED ADJACENT TO AND ON EACH SIDE OF EACH DOOR OPENING. EACH CONTROL PANEL SHALL ALSO INCLUDE A PANIC RELEASE BUTTON, RED IN COLOR, 2 INCHES MINIMUM IN DIAMETER AND ENGRAVED -EMERGENCY RELEASE- IN WHITE FILLED, CLEARLY LEGIBLE LETTERS. EACH PANIC RELEASE BUTTON SHALL BE INTERLOCKED WITH ALL DOORS RESTRICTING PERSONNEL ACCESS TO THE CORRIDOR FROM ANY LABORATORY IN THE ENCLOSURE SECTION. A RED, 75 WATT MINIMUM, INDICATING LIGHT SHALL BE PROVIDED ON EACH SIDE OF EACH DOOR. THE LIGHTS SHALL BE ACTUATED BY A PRESSURE SWITCH TO SHOW WHEN THE INDICATED DOOR IS IN A SEALED CONDITION. THE CONTROL SYSTEM SHALL ALLOW MANUAL OPERATION, WITH THE MINIMUM FORCE HEREINBEFORE SPECIFIED, WITHIN 25 SECONDS UNDER NORMAL OPERATION AND 10 SECONDS UNDER PANIC OPERATION. THE ENCLOSURE DESIGN SHALL INCLUDE PROVISION FOR REMOVING EACH DOOR FOR MAINTENANCE WITHOUT DISTURBING FIXED SEALING SURFACES.'

ADDENDUM NO. 0001 DATED OCTOBER 18, 1968, DELETED FROM PARAGRAPH 13B.3.1 OF THE SPECIFICATIONS THE REQUIREMENT FOR PROOF THAT THE LOW BIDDER OR ITS SUBCONTRACTOR HAS INSTALLED A SHIELDED ENCLOSURE OF EQUAL CONSTRUCTION AND SHIELDING AMBIENT WHICH HAS MAINTAINED THE MINIMUM AMBIENT REQUIREMENTS FOR A PERIOD OF 1 YEAR AFTER ACCEPTANCE BY THE PURCHASER. ADDENDUM NO. 0001 ALSO DELETED PARAGRAPH 13B.3.4.1 OF THE SPECIFICATIONS AND SUBSTITUTED IN LIEU THEREOF A PARAGRAPH WHICH PROVIDED THAT THE DOORS FOR THE SHIELDED ENCLOSURES SHALL BE OF THE SLIDING TYPE, CLASS A, AS DESIGNATED AND MANUFACTURED BY LECTRO MAGNETICS, INC., LOS ANGELES, CALIFORNIA. THE AMENDED SPECIFICATION DID NOT PROVIDE FOR THE FURNISHING OF AN "OR EQUAL" TO THE DOOR MANUFACTURED BY LECTRO MAGNETICS, INC.

YOU CONTEND THAT THERE SHOULD NOT HAVE BEEN DELETED FROM PARAGRAPH 13B.3.1 OF THE SPECIFICATIONS THE REQUIREMENT THAT THE LOW BIDDER SUBMIT PROOF FROM AN APPROVED TESTING AGENCY THAT A SHIELDED ENCLOSURE OF EQUAL CONSTRUCTION AND SHIELDING AMBIENT, WHICH IT OR ITS SUBCONTRACTOR HAS PREVIOUSLY INSTALLED, HAS MAINTAINED THE MINIMUM AMBIENT REQUIREMENTS FOR A PERIOD OF 1 YEAR AFTER ACCEPTANCE BY THE PURCHASER. YOU STATE THAT THE 1-YEAR REQUIREMENT SHOULD BE REINSTATED AND YOU EVEN SUGGEST THAT IT BE INCREASED TO 2 OR 3 YEARS SINCE, YOU STATE, PROPERLY DESIGNED SYSTEMS SHOULD NOT DEGRADE IN 1 YEAR OR LESS.

YOU ALLEGE THAT THE PART OF THE SPECIFICATIONS, AS AMENDED BY ADDENDUM NO. 0001, COVERING THE SLIDING DOORS FOR THE SHIELDED ENCLOSURES, ARE RESTRICTIVE OF COMPETITION IN THAT THEY ONLY SPECIFY A DOOR MANUFACTURED BY LECTRO MAGNETICS, INC. YOU CONTEND THAT AN "OR EQUAL" CLAUSE SHOULD HAVE BEEN INCLUDED IN THE SPECIFICATIONS SINCE YOUR FIRM AND CERTAIN OTHER MANUFACTURERS HAVE MANUFACTURED RF DOORS OF SIMILAR DESIGN AND HAVE HAD 5 OR MORE YEARS OF EXPERIENCE IN THE MANUFACTURE OF SUCH TYPE OF DOOR. YOU STATE THAT SECTION 13B OF THE SPECIFICATIONS IS A COMBINATION OF PERFORMANCE TYPE AND MATERIAL TYPE SPECIFICATIONS WITHOUT ANY DETAILS ON CONTRACT DRAWINGS. YOU RECOMMEND A CHANGE TO PERFORMANCE TYPE OF SPECIFICATIONS SINCE THIS, YOU STATE, WILL ELIMINATE ANY POSSIBLE FUTURE CONFLICTS BETWEEN MATERIALS, DETAILS AND PERFORMANCE. YOU ALSO SUGGEST THE INTRODUCTION INTO THE SPECIFICATIONS OF A GUARANTEE PARAGRAPH TO BE COVERED FOR A PERIOD OF 2 YEARS BY A GUARANTEE BOND.

IN REGARD TO PARAGRAPH 13B.3.1 OF THE SPECIFICATIONS, WE HAVE HELD THAT AWARD OF A CONTRACT MAY BE LIMITED TO THOSE BIDDERS MEETING SPECIFIED QUALITATIVE AND QUANTITATIVE EXPERIENCE REQUIREMENTS IN A SPECIALIZED FIELD WHERE BIDDING CONDITIONS SO PROVIDE AND A DETERMINATION HAS BEEN MADE THAT THE INTERESTS OF THE GOVERNMENT WOULD BE SERVED THEREBY. SEE37 COMP. GEN. 196 AND ID. 420 AND DECISIONS CITED THEREIN. HOWEVER, IN 39 COMP. GEN. 173 WE INDICATED THAT OUR OFFICE DOES NOT CONDONE THE REJECTION OF BIDS OF RESPONSIBLE BIDDERS BECAUSE AS A TECHNICAL MATTER THEY DO NOT MEET PRESCRIBED EXPERIENCE QUALIFICATIONS. IN THAT CONNECTION, IT WAS SAID AT PAGE 178 THAT "THE STATEMENT OF SUCH QUALIFICATIONS SHOULD NOT BE CONSIDERED AS HAVING THE EFFECT OF TRANSFORMING THE PURELY FACTUAL QUESTION OF RESPONSIBILITY INTO A LEGAL QUESTION OF CONFORMITY TO THE INVITATION.'

THE JUSTIFICATION FOR SPECIFYING A DOOR MANUFACTURED BY LECTRO MAGNETICS, INC., IS SET OUT IN AN INTERNAL ADMINISTRATIVE MEMORANDUM DATED OCTOBER 17, 1968, AS FOLLOWS:

"1. THE RF ATTENUATION REQUIREMENTS OVER THE FREQUENCY RANGE SPECIFIED FOR THE SUBJECT RF SHIELDED ENCLOSURE ARE DIFFICULT TO MEET. THIS IS ESPECIALLY TRUE FOR THE MAGNETIC FIELD ATTENUATION REQUIREMENTS AT THE LOWER FREQUENCY RANGES. DOORS ON RF SHIELDED ENCLOSURES HAVE PERSISTENTLY REMAINED TROUBLE POINTS ON PAST PROJECTS AND ARE USUALLY THE MOST DIFFICULT PART OF THE SHIELDED ENCLOSURE TO BRING UP TO THE REQUIRED ATTENUATION PERFORMANCE. TIME AFTER TIME DOORS HAVE EITHER FAILED TO MEET CONTRACT REQUIREMENTS AT THE TIME OF ACCEPTANCE TESTING OR HAVE DETERIORATED APPRECIABLY IN RF ATTENUATION SHORTLY AFTER ACCEPTANCE. DOORS USED IN THE PAST HAVE BEEN HINGED, SWINGING DOORS. WHERE OPENINGS HAVE BEEN LARGE ENOUGH TO REQUIRE DOUBLE DOORS, THE PROBLEMS HAVE BEEN EVEN MORE SEVERE THAN WITH SINGLE DOORS.

"3. TO THE BEST OF OUR KNOWLEDGE, ONLY ONE MANUFACTURER, LECTRO MAGNETICS, INC. (LMI) HAS A PROVEN ABILITY TO MANUFACTURE A DOOR FOR THE SIZE OPENINGS INVOLVED THAT CAN MEET THE RF ATTENUATION AND FREQUENCY RANGE REQUIREMENTS OF THE SUBJECT PROJECT. THE OPENINGS IN THIS RF ENCLOSURE ARE LARGE ENOUGH TO REQUIRE DOUBLE DOORS IF HINGED, SWINGING DOORS ARE USED. THE LMI DOOR CONSISTS OF A SINGLE SLIDING PANEL. * * *" FURTHER, IT IS REPORTED THAT THE LECTRO DOOR WAS SPECIFIED SINCE IT WAS THE ONLY KNOWN DOOR THAT HAS MET THE RF SHIELDING REQUIREMENTS FOR THE SIZE OPENINGS INVOLVED. IN REGARD TO THE EXPERIENCE OF ELECTRO MAGNETICS, INC., IN MANUFACTURING THE REQUIRED TYPE OF SLIDING DOOR, IT IS UNDERSTOOD INFORMALLY THAT SUCH CORPORATION WAS IN BUSINESS FOR A PERIOD IN EXCESS OF 1 YEAR AT THE TIME THE INVITATION WAS ISSUED. IT IS ALSO UNDERSTOOD INFORMALLY THAT THE SLIDING DOOR MANUFACTURED BY LECTRO MAGNETICS, INC., IS THE ONLY DOOR WHICH HAS BEEN CERTIFIED BY THE NATIONAL BUREAU OF STANDARDS AS HAVING MET THE RF ATTENUATION REQUIREMENTS OF THE SUBJECT SPECIFICATIONS. ALSO, IT IS REPORTED THAT SLIDING DOORS OF THE TYPE REQUIRED BY THE SPECIFICATIONS HAVE BEEN INSTALLED BY LECTRO MAGNETICS, INC., AT SEVERAL GOVERNMENT AND PRIVATE INSTALLATIONS AND THAT SUCH DOORS ARE OPERATING SATISFACTORILY.

WHILE PARAGRAPH 1-1206 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REQUIRES GENERALLY THAT PURCHASE DESCRIPTIONS SHOULD NOT UNNECESSARILY RESTRICT COMPETITION, AND THAT "OR EQUAL" LANGUAGE SHOULD GENERALLY BE USED IN THOSE CASES WHERE IT IS NECESSARY TO USE A PURCHASE DESCRIPTION RATHER THAN DETAILED SPECIFICATIONS, ASPR 1-1206.1 (B) PROVIDES THAT "THE WORDS -OR EQUAL- SHOULD NOT BE ADDED WHEN IT HAS BEEN DETERMINED * * * THAT ONLY A PARTICULAR PRODUCT MEETS THE ESSENTIAL REQUIREMENTS OF THE GOVERNMENT.' SINCE IT HAS BEEN DETERMINED THAT THE SLIDING DOOR MANUFACTURED BY LECTRO MAGNETICS, INC., IS THE ONLY DOOR WHICH WOULD FULFILL THE GOVERNMENT'S NEEDS, THE OMISSION OF "OR EQUAL" IN THE SPECIFICATION DOES NOT APPEAR IMPROPER. AS INDICATED IN THE JUSTIFICATION MEMORANDUM, THE RF ATTENUATION REQUIREMENTS OVER THE FREQUENCY RANGE SPECIFIED FOR THE SUBJECT RF SHIELDED ENCLOSURE ARE DIFFICULT TO MEET. IN THIS CONNECTION, WE HAVE BEEN INFORMALLY ADVISED THAT THE PROCURING ACTIVITY FOUND IT NECESSARY TO TERMINATE A CONTRACT AWARDED TO A COMPANY OTHER THAN LECTRO MAGNETICS, INC., BECAUSE THE DOOR MANUFACTURED BY THAT COMPANY FAILED TO MEET THE RF ATTENTUATION REQUIREMENTS OF THE SPECIFICATIONS.

THE NAVAL FACILITIES ENGINEERING COMMAND HAS REVIEWED THE SUGGESTIONS MADE FOR LONGER EXPERIENCE REQUIREMENTS, A PERFORMANCE TYPE SPECIFICATION, AND FOR A BOND GUARANTEE AND HAS CONCLUDED THAT THE SPECIFICATIONS AS PRESENTLY CONSTITUTED ARE ADEQUATE AND IN THE BEST INTEREST OF THE GOVERNMENT. IT IS THE PROVINCE OF ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, NOT OF THIS OFFICE, TO DETERMINE THE NEEDS OF THE GOVERNMENT AND TO DRAFT SPECIFICATIONS REFLECTING THOSE NEEDS. 17 COMP. GEN. 554, 556. ACCORDINGLY, OUR OFFICE WILL NOT DISTURB THE ADMINISTRATIVE DETERMINATION IN THIS CASE.