B-166685, JUN. 16, 1969

B-166685, JUN. 16, 1969

TO KEWAUNEE SCIENTIFIC EQUIPMENT:

ON APRIL 14, 1969, WE WERE REQUESTED TO INVESTIGATE YOUR PROTEST AGAINST A CONTRACT AWARD TO VACUUM/ATMOSPHERES CORPORATION (VAC) ON MARCH 21, 1969, UNDER INVITATION FOR BIDS (IFB) NO. C-365643, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), LEWISRESEARCH CENTER, CLEVELAND, OHIO, FOR THE PROCUREMENT OF TWO GLOVE BOX AND GAS RECIRCULATION PURIFICATION SYSTEMS WITH RELATED MANUALS AND TEST REPORTS. ON JANUARY 23, 1969, BIDS WERE OPENED AND NOTED AS FOLLOWS:

NAME AMOUNT OF BID

KEWAUNEE SCIENTIFIC CORP. $12,640.00

DREW FABRICATORS 20,043.00

VACUUM/ATMOSPHERES CORP. 22,024.00

STAINLESS EQUIPMENT CO. 41,152.00 FOLLOWING AN EVALUATION OF YOUR BID PROCURING PERSONNEL DETERMINED THAT YOUR OFFER WAS NONRESPONSIVE TO THE REQUIREMENT STATED IN SPECIFICATION F. (1.) (B) OF THE IFB, QUOTED IN PERTINENT PART BELOW, SINCE YOU OFFERED A CIRCULATOR PUMP WITH A 3CFM CIRCULATION RATE: "F. (1.) (B.)

THE CIRCULATOR PUMP SHALL BE A POSITIVE DISPLACEMENT TYPE CAPABLE OF VARIABLE CIRCULATION RATES UP TO 40 CFM.' ADDITIONALLY, YOUR OFFER FAILED TO COMPLY WITH AN IFB SPECIFICATION REQUIRING THE GLOVE BOX OF THE ITEM TO BE WITHIN THE FOLLOWING DIMENSIONAL LIMITATIONS: 83-95 INCHES LONG, 31-35 INCHES HIGH, 24-36 INCHES (BOTTOM), 18-30 INCHES (TOP).

THE BID OF DREW FABRICATORS WAS ALSO FOUND TO BE NONRESPONSIVE AND AWARD WAS MADE TO VAC AS THE LOWEST RESPONSIVE BIDDER.

YOU CONTEND THAT YOUR PRODUCT WAS TECHNICALLY SUPERIOR TO THE ONE OFFERED BY VAC, EVEN CONSIDERING THE DEVIATIONS FROM THE SPECIFICATIONS, AS NOTED ABOVE, AND THEREFORE AN AWARD SHOULD HAVE BEEN MADE TO YOUR COMPANY AS THE LOWEST BIDDER.

IN A REPORT DATED MAY 23, 1969, NASA ADVISED US THAT THE SPECIFICATION DIMENSIONS OF THE GLOVE BOX LISTED IN THE IFB WERE NOT CRITICAL TO THE PROCURING ACTIVITY'S NEEDS AND THEREFORE YOUR FAILURE TO OFFER COMPLIANCE WITH THEM COULD HAVE BEEN WAIVED AS A MINOR IRREGULARITY. HOWEVER, THE ADMINISTRATION STILL CONSIDERS YOUR BID TO HAVE BEEN PROPERLY REJECTED BECAUSE OF FAILURE TO OFFER A CIRCULATOR PUMP CAPABLE OF A CIRCULATION RATE OF 40 CFM, WHICH IS REPORTED TO BE AN ESSENTIAL REQUIREMENT, NOTWITHSTANDING YOUR CONTENTION TO THE CONTRARY. ALTHOUGH SECTION F. (1.) (B.), QUOTED ABOVE, FAILED TO INDICATE THE PURPOSE OF THAT REQUIREMENT, NASA STATES THAT CIRCULATION RATES OF 20-40 CFM WERE REQUIRED FOR MOISTURE REMOVAL IN THE MOLECULAR SIEVE BED, WHILE A RATE OF 2-4 CFM WAS ADEQUATE FOR THE OXYGEN AND NITROGEN PURIFICATION SYSTEMS.

IT FURTHER APPEARS THAT YOUR BID WAS SUBMITTED BY A LETTER ON YOUR LETTERHEAD, ON THE REVERSE SIDE OF WHICH APPEARED SEVERAL STATEMENTS OF TERMS WHICH CONFLICTED WITH THE TERMS OF THE GOVERNMENT'S INVITATION AND BID FORM. FOR EXAMPLE, ONE STATEMENT WAS "ORDERS CANNOT BE CANCELLED, SPECIFICATIONS CHANGED, OR GOODS RETURNED WITHOUT OUR PERMISSION.' THIS WAS CLEARLY CONTRARY TO GENERAL PROVISION NO. 2 - CHANGES, STANDARD FORM 32, OF THE SUBJECT IFB, QUOTED IN PERTINENT PART AS FOLLOWS: "2. CHANGES

THE CONTRACTING OFFICER MAY AT ANY TIME, BY A WRITTEN ORDER, AND WITHOUT NOTICE TO THE SURETIES, MAKE CHANGES, WITHIN THE GENERAL SCOPE OF THIS CONTRACT, IN ANY ONE OR MORE OF THE FOLLOWING: (1) DRAWINGS, DESIGNS, OR SPECIFICATIONS, WHERE THE SUPPLIES TO BE FURNISHED ARE TO BE SPECIALLY MANUFACTURED FOR THE GOVERNMENT IN ACCORDANCE THEREWITH.' IN 17 COMP. GEN. 554, AT 558 AND 559, WE SAID: "* * * TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. * * * "

UNDER APPLICABLE LAW, THEREFORE, THE CONTRACTING OFFICER COULD NOT EFFECT AN AWARD TO YOUR CONCERN BECAUSE OF NONCOMPLIANCE WITH A SPECIFICATION CONSIDERED ESSENTIAL TO THE GOVERNMENT'S NEEDS. 38 COMP. GEN. 59.

WITH RESPECT TO OTHER CONTENTIONS ADVANCED IN YOUR LETTER OF MARCH 25, 1969, TO MR. PARK OF THE LEWIS RESEARCH CENTER, THE HEAD OF THE ELECTROCHEMICALS FUNDAMENTALS SECTION OF THE ELECTROCHEMISTRY BRANCH AT THAT CENTER COMMENTS AS FOLLOWS:

A HERMETICALLY SEALED POSITIVE DISPLACEMENT PUMP WAS SPECIFIED BECAUSE IT IS A STANDARD DESIGN FOR GAS CIRCULATION WHERE LEAKAGE CANNOT BE TOLERATED. A PUMP OF THIS TYPE HAS BEEN IN USE AT THE CENTER ON A SIMILAR SYSTEM FOR MORE THAN FOUR YEARS, WITH OPERATING TIME IN EXCESS OF 30,000 HOURS, WITH NO LEAKAGE OF SEALS OR DETERIORATION OF THE PUMP.

THE GAS PURIFICATION SYSTEM WAS SPECIFIED ON THE BASIS OF STANDARD PRACTICES OF TIME-TESTED AND PROVEN RELIABILITY. THE KSE 2C-1982 INERT GAS PURIFICATION SYSTEM WAS NOT CONSIDERED TECHNICALLY NONRESPONSIVE IN ANY RESPECT EXCEPT THE FLOW RATE SPECIFIED IN CONNECTION WITH THE CIRCULATION PUMP.

NASA WAS AWARE OF THE "SECOND GENERATION" EQUIPMENT REFERRED TO BY KSE AND OF CERTAIN IMPROVEMENTS OFFERED THEREBY. HOWEVER, SINCE THIS EQUIPMENT DOES NOT PROVIDE FOR REMOVAL OF NITROGEN, IT WOULD HAVE HAD TO BE SUPPLEMENTED BY ADDITIONAL EQUIPMENT TO MEET THE NEEDS OF THIS PROCUREMENT. INQUIRIES AS TO THE PROBABLE COST OF SUCH A COMBINATION REVEALED THAT IT WOULD RUN SUBSTANTIALLY HIGHER IN PRICE THAN THE EQUIPMENT SPECIFIED IN THE IFB AND IT WAS NOT CONSIDERED THAT THE ADDITIONAL COST WOULD BE JUSTIFIED ON THE BASIS OF EXISTING NEEDS.

WHILE THE REASONS SET FORTH ABOVE COMPEL US TO DENY YOUR PROTEST, WE HAVE BEEN ADVISED BY THE PROCURING ACTIVITY THAT YOU ARE WELCOME TO VISIT LEWIS RESEARCH CENTER TO DEMONSTRATE YOUR SYSTEM'S CAPABILITIES.