B-166309, JUN. 20, 1969

B-166309: Jun 20, 1969

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INC.: REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 10. BOTH OF WHICH WERE ISSUED BY KELLY AIR FORCE BASE. THE ISSUE RAISED BY YOU UNDER BOTH OF THESE SOLICITATIONS IS DIRECTED PRIMARILY AT THE SPECIFICATION REQUIREMENT FOR "MAGNETOSTRICTIVE TRANSDUCERS. YOU CONTEND THAT THIS SPECIFICATION REQUIREMENT PRECLUDED ACCEPTANCE OF YOUR ULTRASONIC CLEANING SYSTEM WHICH UTILIZES "PIEZOELECTRIC TRANSDUCERS" AND WAS RESTRICTIVE OF COMPETITION. WE STATED IN PERTINENT PART AS FOLLOWS: "WE HAVE BEEN ADVISED BY THE ADMINISTRATIVE OFFICE THAT THE HEADQUARTERS. HAS CONDUCTED A PRELIMINARY STUDY OF THE QUESTIONS RAISED BY YOU AND HAS DETERMINED THAT REASSESSMENT OF THE SPECIFICATION DESCRIBING THE EQUIPMENT IS WARRANTED.

B-166309, JUN. 20, 1969

TO DELTA SONICS, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 10, 1968, AND FEBRUARY 26 AND APRIL 24, 1969, PROTESTING AGAINST THE USE OF CERTAIN RESTRICTIVE SPECIFICATIONS IN INVITATION FOR BIDS NO. F41608-68-B-1018 AND REQUEST FOR PROPOSALS NO. F41699-69-R-0231, BOTH OF WHICH WERE ISSUED BY KELLY AIR FORCE BASE, TEXAS.

THE ISSUE RAISED BY YOU UNDER BOTH OF THESE SOLICITATIONS IS DIRECTED PRIMARILY AT THE SPECIFICATION REQUIREMENT FOR "MAGNETOSTRICTIVE TRANSDUCERS," OR EQUAL, AS PART OF THE ULTRASONIC FILTER ELEMENT CLEANERS BEING PROCURED. YOU CONTEND THAT THIS SPECIFICATION REQUIREMENT PRECLUDED ACCEPTANCE OF YOUR ULTRASONIC CLEANING SYSTEM WHICH UTILIZES "PIEZOELECTRIC TRANSDUCERS" AND WAS RESTRICTIVE OF COMPETITION.

IN OUR LETTER OF JUNE 25, 1968, B-163897, TO YOU, CONCERNING YOUR PROTEST UNDER INVITATION FOR BIDS -1018, WE STATED IN PERTINENT PART AS FOLLOWS:

"WE HAVE BEEN ADVISED BY THE ADMINISTRATIVE OFFICE THAT THE HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, HAS CONDUCTED A PRELIMINARY STUDY OF THE QUESTIONS RAISED BY YOU AND HAS DETERMINED THAT REASSESSMENT OF THE SPECIFICATION DESCRIBING THE EQUIPMENT IS WARRANTED. THAT COMMAND HAS ESTABLISHED A PROJECT TO INVESTIGATE AND REASSESS THE GOVERNMENT'S TECHNICAL REQUIREMENTS FOR THE EQUIPMENT. THE PROJECT WILL INCLUDE EVALUATION OF YOUR ALLEGATIONS CONCERNING THE USE OF A DIFFERENT TYPE OF A HIGHER FREQUENCY IN ULTRASONIC CLEANERS. IT IS BELIEVED BY THE ADMINISTRATIVE OFFICE THAT A REVISED SPECIFICATION SETTING FORTH THE GOVERNMENT'S MINIMUMM NEEDS FOR THE TYPE OF ULTRASONIC CLEANERS MAY RESULT FROM THE PROJECT. * * *"

THEREAFTER, BY LETTER OF DECEMBER 10, 1968, YOU RAISED CERTAIN QUESTIONS DEALING WITH TECHNICAL ASPECTS OF THE USE OF MAGNETOSTRICTIVE AND PIEZOELECTRIC TRANSDUCERS IN THE PROCUREMENT OF ULTRASONIC CLEANING EQUIPMENT. THE AIR FORCE REPLY TO THESE QUESTIONS SUPPORTED THE ACTION TAKEN BY THE PROCUREMENT OFFICE BASED ON CONSIDERABLE, THOUGH NOT CONCLUSIVE, EVIDENCE THAT MAGNETOSTRICTIVE TRANSDUCERS WILL BETTER WITHSTAND RUGGED TREATMENT. CONSEQUENTLY, IT WAS NOT CONSIDERED THAT THE PROCUREMENT OFFICE HAD ACTED UNJUSTIFIABLY IN SPECIFYING THE MAGNETOSTRICTIVE TRANSDUCER. MOREOVER, IT REPORTED THAT PROJECT 68-2, EVALUATING THE TRANSDUCER REQUIREMENTS HERE INVOLVED, RESULTED IN THE CONCLUSION THAT DELETING THE SPECIFIC MAGNETOSTRICTIVE TRANSDUCER REQUIREMENT WOULD PLACE THESE PROCUREMENTS IN A DEVELOPMENT STATUS AND WOULD NOT BE ECONOMICAL TO THE AIR FORCE MAINTENANCE PRODUCTION REQUIREMENT. WITH RESPECT TO THE AIR FORCE'S PROJECT STUDY OF THE TECHNICAL ASPECTS OF THIS TYPE OF PROCUREMENT, WE FURNISHED YOU A COPY OF AN "ULTRASONIC CLEANING STUDY" PREPARED BY THE SOUTHWEST RESEARCH INSTITUTE. WHILE THERE APPARENTLY IS NO INDISPUTABLE ENGINEERING PROOF CONCERNING THE MERITS OF THE TWO TYPES OF TRANSDUCERS, THE PREPONDERANCE OF INFORMATION FAVORS THE MAGNETOSTRICTIVE TRANSDUCER FOR COMMERCIAL AND INDUSTRIAL USES. HOWEVER, THE AIR FORCE STATES THAT IT WILL CONTINUE TO CONSIDER PIEZOELECTRIC-TYPE CLEANERS, WHERE APPROPRIATE.

SUBSEQUENTLY, REQUEST FOR PROPOSALS -0231 WAS ISSUED ON FEBRUARY 24, 1969, BY THE SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS, SOLICITING OFFERS FOR ONE SONIC ENERGY CLEANING SYSTEM, BENDIX PART NO. SEC1825, OR EQUAL, WITH DESCRIPTIVE FEATURES LISTED. AMONG THE DESCRIPTIVE FEATURES LISTED WERE THE MAGNETOSTRICTIVE-TYPE TRANSDUCERS TO WHICH YOU HAD TAKEN OBJECTION IN THE PRIOR SOLICITATION. IN YOUR LETTER OF FEBRUARY 26, 1969, YOU CONTEND THAT, WHILE THE REQUEST FOR PROPOSALS SPECIFIES BENDIX PART NO. SEC1825, OR EQUAL, NO FIRM OTHER THAN BENDIX CAN MEET THE STATED REQUIREMENTS. YOU EXPRESS YOUR CONTENTION AS FOLLOWS:"WHILE IT SPECIFIES -OR EQUAL,- ONE OR MORE OF THE FOLLOWING ITEMS EXCLUDES EVERYONE IN THE INDUSTRY FROM BIDDING ON IT. "/1) FREQUENCY 21KC NO PLUS OR MINUS TOLERANCE GIVEN. "/2) 10 MAGNETOSTRICTIVE TRANSDUCERS WITH EXACT SIZE CALLED OUT. "/3)1/4 INCH THICK BOTTOM. "/4) EXACT CABINET DIMENSIONS CALLED OUT WITH NO TOLERANCE.'

CONTRARY TO YOUR CONTENTION, A READING OF THE SPECIFICATIONS INDICATES THAT PRACTICALLY ALL DIMENSIONS YOU CITE WERE LABELED WITH "APPROXIMATE," RATHER THAN "EXACT," DIMENSIONS. THEREFORE, IT CANNOT BE SAID THAT ONLY BENDIX COULD MEET THE SPECIFICATION REQUIREMENTS. IN ANY EVENT, HOWEVER, BY AMENDMENT NO. -M02, DATED MARCH 19, 1969, THE PROCUREMENT OFFICE EXTENDED THE OPENING DATE TO APRIL 11 AND MODIFIED THE SPECIFICATIONS AS FOLLOWS: "A. FREQUENCY - 21 KC PLUS OR MINUS ONE (1) KC. "B. TRANSDUCERS - TEN (10) MAGNETOSTRICTIVE TRANSDUCERS BONDED TO THE BOTTOM OF THE TANK WITH SILVER BRAZE. (SIZE ELIMINATED) "C. CLEANING TANK BOTTOM - 1/4 INCH (0.250) PLUS OR MINUS 0.003 INCH. "D. CABINET DIMENSIONS:

(1) WIDTH - 29.0 INCHES PLUS OR MINUS 3.0 INCHES

(2)DEPTH - 34.0 INCHES PLUS OR MINUS 2.0 INCHES

(3) HEIGHT - 33.0 INCHES PLUS OR MINUS 0.5 INCH (44 INCHES PLUS OR MINUS 0.5 INCH INCLUDING CONTROL PANEL).'

IT IS REPORTED THAT THESE REVISED SPECIFICATIONS ARE BASED ON EXTENSIVE ENGINEERING EXPERIENCE WITH SONIC ENERGY CLEANERS AND ARE NOT INTENDED TO RESTRICT THIS REQUEST FOR PROPOSALS TO ONE MANUFACTURER. FOR EXAMPLE, FREQUENCIES JUST ABOVE THE AUDIBLE RANGE, SUCH AS 21 KC., ARE DESIRABLE BECAUSE OF THEIR BETTER CLEANING ACTION, EVEN THOUGH HIGHER FREQUENCY CLEANING UNITS ARE LESS EXPENSIVE TO BUILD. SIMILARLY, IN CLEANING AIRCRAFT FILTERS IT IS VERY DESIRABLE TO HAVE AN EVEN DISTRIBUTION OF SONIC ENERGY THROUGHOUT THE TANK, A CONDITION WHICH REQUIRES AS MANY TRANSDUCERS AS IS ECONOMICALLY FEASIBLE. THE THICKNESS OF THE CLEANING TANK BOTTOM REPRESENTS A BALANCE BETWEEN THE NEEDS OF A 21-KC. DRIVE TRAIN, OF WHICH THE TANK BOTTOM IS A PART, AND THE DESIRE TO HAVE A THICK BOTTOM TO RESIST THE INEVITABLE EROSION. THE SPECIFIED CABINET DIMENSIONS REFLECT THE NEED FOR A CONVENIENT HEIGHT FOR LOADING AND UNLOADING AND THE NEED FOR CABINETS WHICH WILL NOT PROTRUDE INTO THE AISLES OF CLEANING WORKROOMS.

THE FOREGOING ADMINISTRATIVE ACTION IN REVISING SPECIFICATIONS WOULD SEEM TO SATISFY MANY OF YOUR TECHNICAL OBJECTIONS TO THE PRIOR SPECIFICATION REQUIREMENTS. HOWEVER, IN YOUR LETTERS OF APRIL 24, 1969, YOU STILL CONTEND THAT THE SPECIFICATIONS ARE RESTRICTIVE AND WRITTEN AROUND THE BENDIX SYSTEM, THUS NOT ENABLING OTHER MANUFACTURERS TO BID ON THE SYSTEM. WHILE THE BRAND NAME ,BENDIX NO. SEC1825 OR EQUAL" WAS DESIGNATED IN THE SPECIFICATION HEADING, THE RECORD SHOWS THAT MANUFACTURERS, OTHER THAN BENDIX, CAN FURNISH THE SPECIFICATION REQUIREMENTS INCLUDING UTILIZING MAGNETOSTRICTIVE TRANSDUCERS IN THEIR CLEANER SYSTEMS.

PARAGRAPH 1-1206.4 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES AS FOLLOWS:

"/A) BIDS OFFERING PRODUCTS WHICH DIFFER FROM BRAND NAME PRODUCTS REFERENCED IN A -BRAND NAME OR EQUAL- PURCHASE DESCRIPTION SHALL BE CONSIDERED FOR AWARD WHERE THE CONTRACTING OFFICER DETERMINES IN ACCORDANCE WITH THE TERMS OF THE CLAUSE IN 1-1206.3 (B) THAT THE OFFERED PRODUCTS ARE EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCTS REFERENCED. BIDS SHALL NOT BE REJECTED BECAUSE OF MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.'

WHILE A "BRAND NAME" DESIGNATION IS INTENDED TO BE DESCRIPTIVE AND MUST BE SO INTERPRETED, SPECIFICATIONS CALLING OUT ESSENTIAL CHARACTERISTICS TO MEET THE NEEDS OF THE GOVERNMENT MUST BE STRICTLY MET. ASPR 1-1206.2 (B). SEE, ALSO, 45 COMP. GEN. 312, 316. THE PROCURING AGENCY FULLY CONSIDERED THE RELATIVE MERITS OF THE TWO TYPES OF TRANSDUCERS (PIEZOELECTRIC AND MAGNETOSTRICTIVE) AND STILL FAVORS THE MAGNETOSTRICTIVE TYPE, AT LEAST FOR THE PURPOSES OF THIS PROCUREMENT.

THE DRAFTING OF SPECIFICATIONS FOR MATERIALS OR SERVICES TO BE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE. 17 COMP. GEN. 554; 38 ID. 190. AS TO THIS PROCUREMENT, WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE SPECIFICATIONS WERE NOT BASED UPON A BONA FIDE DETERMINATION OF THE NEEDS OF THE DEPARTMENT OF THE AIR FORCE. THE EXERCISE OF SUCH DETERMINATION IS VESTED IN THE PROCUREMENT OFFICIALS INVOLVED IN EACH CASE AND SUBJECT TO OBJECTION BY OUR OFFICE. CLEARLY, IN THE ORDERLY CONDUCT OF ITS BUSINESS THE GOVERNMENT MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE SUCH DISCRETIONARY AUTHORITY WITH ONE OF ITS POTENTIAL SUPPLIERS OR BE PLACED IN A POSITION OF PERMITTING BIDDERS TO DICTATE SPECIFICATIONS TAILORED TO THEIR PRODUCTS. ALSO, THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED. COMP. GEN. 251. THE FACT THAT A PARTICULAR FIRM MAY BE UNABLE OR UNWILLING TO MEET THE REQUIREMENTS OF A SOLICITATION IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. COMP. GEN. 368.

YOUR CONTENTIONS HAVE REFERENCE TO THE TECHNICAL AND ENGINEERING ASPECTS OF SONIC ENERGY CLEANERS AND THE RELATIVE MERITS OF THE TRANSDUCERS UTILIZED IN SUCH CLEANERS. IN THIS REGARD, IN OUR DDECISION B-139830, AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * * *" ALSO, IN DECISION B-143389, AUGUST 26, 1960, WE STATED THAT:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

"-IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * * .'

IN VIEW OF THE INFORMATION SUBMITTED BY THE CONTRACTING AGENCY DEMONSTRATING THAT THERE EXISTED A BONA FIDE NEED FOR THE SPECIFICATION REQUIREMENTS STATED, WE FIND NO BASIS TO OBJECT TO THE ADMINISTRATIVE POSITION IN THIS MATTER.