B-170153, OCT. 8, 1970

B-170153: Oct 8, 1970

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WHERE UNDER PERFORMANCE TYPE SPECIFICATIONS ONLY ONE BIDDER RESPONDS BUT THERE IS NO SHOWING THAT SPECIFICATIONS WERE RESTRICTIVE THE SPECIFICATIONS ARE NOT SUBJECT TO OBJECTION. TO LEONARD VALVE COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10. THE SOLICITATION WAS ISSUED ON MARCH 4. INVITATIONS WERE ISSUED TO 53 POTENTIAL SOURCES OF SUPPLY. ONE OFFER WAS RECEIVED FROM THE POWERS REGULATOR COMPANY IN THE AMOUNT OF $160 PER UNIT. YOU STATE THAT THIS NEWLY DRAFTED SPECIFICATION IS UNNECESSARILY RESTRICTIVE WHICH FAVORS ONLY ONE MANUFACTURER. YOU POINT OUT THAT ONLY ONE BIDDER RESPONDED AND THAT THE PRICE OF THE ITEM WAS DOUBLED. WHEREIN YOU STATE THAT AT NO TIME WERE YOU GIVEN A REASON FOR THE NEW SPECIFICATION WHICH YOU ALLEGE WAS OBVIOUSLY WRITTEN IN CONSULTATION WITH ONLY ONE MANUFACTURER.

B-170153, OCT. 8, 1970

BID PROTEST -- SPECIFICATIONS -- RESTRICTIVE DENIAL OF PROTEST AGAINST AWARD TO ONLY BIDDER FOR INDEFINITE QUANTITY CONTRACT FOR VALUES FOR NAVY SHIPS PARTS CONTROL CENTER. WHERE UNDER PERFORMANCE TYPE SPECIFICATIONS ONLY ONE BIDDER RESPONDS BUT THERE IS NO SHOWING THAT SPECIFICATIONS WERE RESTRICTIVE THE SPECIFICATIONS ARE NOT SUBJECT TO OBJECTION.

TO LEONARD VALVE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1970, WITH ENCLOSURES, AND PRIOR CORRESPONDENCE, SETTING FORTH THE BASIS OF YOUR PROTEST UNDER SOLICITATION NO. N00104-70-B-1601 ISSUED BY THE NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA.

THE SOLICITATION WAS ISSUED ON MARCH 4, 1970, AND CONTEMPLATED THE AWARD OF AN INDEFINITE QUANTITY CONTRACT FOR A MINIMUM QUANTITY OF 355 TEMPERATURE REGULATING VALVES (MIXERS) WITH THE RIGHT TO ORDER ADDITIONAL QUANTITIES, NOT TO EXCEED 550 VALVES, IN ACCORDANCE WITH THE SPECIFICATIONS SET FORTH THEREIN. INVITATIONS WERE ISSUED TO 53 POTENTIAL SOURCES OF SUPPLY. ONE OFFER WAS RECEIVED FROM THE POWERS REGULATOR COMPANY IN THE AMOUNT OF $160 PER UNIT.

IN YOUR TELEGRAM OF JUNE 25, 1970, YOU STATE THAT THIS NEWLY DRAFTED SPECIFICATION IS UNNECESSARILY RESTRICTIVE WHICH FAVORS ONLY ONE MANUFACTURER. YOU POINT OUT THAT ONLY ONE BIDDER RESPONDED AND THAT THE PRICE OF THE ITEM WAS DOUBLED. YOU ENCLOSED COPIES OF YOUR CORRESPONDENCE WITH THE NAVY SHIPS PARTS CONTROL CENTER WITH YOUR LETTER OF JULY 10, 1970, WHEREIN YOU STATE THAT AT NO TIME WERE YOU GIVEN A REASON FOR THE NEW SPECIFICATION WHICH YOU ALLEGE WAS OBVIOUSLY WRITTEN IN CONSULTATION WITH ONLY ONE MANUFACTURER.

OTHER SIGNIFICANT OBJECTIONS MADE BY YOU ARE SET FORTH BELOW, FOLLOWED BY THE PORTIONS OF THE ADMINISTRATIVE REPORT WHICH ARE RESPONSIVE TO THE TECHNICAL QUESTIONS RAISED IN YOUR LETTER OF JANUARY 13, 1970, TO THE NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA.

A. ALLEGATION: THERE IS NO VALVE WHICH SHALL "MECHANICALLY MIX STEAM AND COLD WATER" TO THE DEGREE OF ACCURACY REQUIRED. THIS MUST BE DONE AUTOMATICALLY, WHICH NORMALLY REQUIRES THE USE OF A THERMOSTATIC CONTROL WITHIN THE MIXER. FURTHERMORE, A "POSITIVE DISCHARGE SHUTOFF" IS NOT REQUIRED ON THIS TYPE OF AN APPLICATION, SINCE BOTH THE WATER AND STEAM SUPPLIED TO THE MIXER ARE MANUALLY TURNED ON AND OFF BY SEPARATE VALVES.

RESPONSE: THE NAVY HAS PREVIOUSLY PROCURED FROM POWERS REGULATOR COMPANY A VALVE WHICH MECHANICALLY CONTROLS AND SATISFACTORILY MIXES STEAM AND COLD WATER. THIS VALVE HAS BEEN IN USE FOR APPROXIMATELY 15 YEARS. THE AUTOMATIC THERMOSTATIC CONTROLLED VALVE SUGGESTED BY YOU IS NOT ACCEPTABLE BECAUSE IT WILL NOT SHUT OFF THE STEAM IF THE COLD WATER SUPPLY FAILS. POSITIVE DISCHARGE SHUTOFF IS A DESIRABLE SAFETY FEATURE.

B. ALLEGATION: THE DIMENSIONS LISTED ARE UNNECESSARILY RESTRICTIVE AND CAN ONLY BE IDENTIFIED WITH THE PRODUCT OF ONE MANUFACTURER. THE PROCUREMENT SPECIFICATION IS PROPRIETARY. IT DESCRIBES IN COMPLETE DETAIL THE VALVE OF ONE MANUFACTURER TO THE ABSOLUTE EXCLUSION OF ALL OTHERS. ADDITION, THE CLOSE TOLERANCES REQUIRED BY THE TEST PROCEDURES ARE SEVERELY AND UNNECESSARILY RESTRICTIVE. A MORE PRACTICABLE ESTABLISHED TEST PROCEDURE IS OUTLINED IN SPECIFICATION MIL V-11152B.

RESPONSE: THE PROCUREMENT SPECIFICATIONS ARE PRINCIPALLY OF A PERFORMANCE TYPE AND ARE NOT RESTRICTED TO ANY ONE MANUFACTURER'S DESIGN. COMPETITION WAS EXPECTED FROM THAT SEGMENT OF THE INDUSTRY SPECIALIZING IN THE MANUFACTURE OF STEAM AND WATER MIXING VALVES. THE SPECIFICATIONS WERE WRITTEN TO PROVIDE DIMENSIONAL LATITUDES (SEE PARAGRAPH 7 OF THE PROCUREMENT SPECIFICATIONS), OPTIONS FOR TYPES OF MATERIALS (SEE PARAGRAPHS 8 AND 9 OF THE PROCUREMENT SPECIFICATIONS), AND CLOSE BUT NOT RESTRICTIVE TOLERANCES. SINCE THE PURPOSE OF THIS VALVE IS TO MIX STEAM AND COLD WATER, IT IS NECESSARY TO INCORPORATE CERTAIN SAFETY FEATURES, INCLUDING CLOSE TOLERANCE, IN THE DESIGN. THERE IS NO PUBLISHED TEST PROCEDURE TO COVER THE VALVE. SPECIFICATION MIL-V-11152B, CITED BY YOU, IS A TEST PROCEDURE COVERING A VALVE WHICH MIXES HOT WATER WITH COLD WATER --NOT STEAM WITH COLD WATER AS REQUIRED BY THIS SOLICITATION.

C. ALLEGATION: THE WORDS "HEAT RESISTANT" SHOULD PRECEDE THE DESCRIPTION "METAL LEVER TYPE HANDLE" IN THE SPECIFICATION, AND THE AMOUNT OF ROTATION FOR THE HANDLE IS ENTIRELY UNNECESSARY.

RESPONSE: THE WORDS "HEAT RESISTANT" ADDED TO THE DESCRIPTION OF THE HANDLE ARE CONSIDERED A DESIRABLE BUT NOT A NECESSARY FEATURE. THE 330 DEGREE ROTATION OF THE HANDLE IS ONLY A MAXIMUM TRAVEL ALLOWANCE. PROVIDES INSTANT CONTROL, AND IS A DESIRABLE SAFETY FEATURE THAT CAN BE ACCOMPLISHED BY ONE MOTION.

D. ALLEGATION: THE SPECIFICATION FAILS TO MENTION THE USE INTENDED FOR THESE STEAM AND WATER MIXERS. YOU ADVISE THAT LEONARD WAS PREVIOUSLY INFORMED THAT THIS OMISSION WAS INTENTIONAL AND THAT THE NAVY WAS ATTEMPTING TO PROCURE AN ALL PURPOSE MIXER WHICH COULD BE USED FOR SHOWER BATHING. YOU BELIEVE THAT A MIXTURE OF STEAM AND WATER SHOULD NEVER BE USED FOR SHOWER BATHING.

RESPONSE: THE VALVE UNDER PROCUREMENT WAS DESIGNED FOR USE IN MEDICAL DISPENSARIES, WARDROOM AND CHIEF PETTY OFFICER PANTRIES, AND MESS KIT STERILIZATION. THERE WAS NEVER ANY INTENTION THAT THE VALVE WAS FOR USE IN SHOWER BATHING OR ANY OTHER APPLICATION THAT WOULD INVOLVE CLOSE CONTACT OF PERSONNEL WITH THE HOT DISCHARGE.

E. ALLEGATION: BID RESULTS ARE NOW DISCLOSED, AND, AS COULD BE PREDICTED, THERE WAS ONLY ONE BIDDER--THE PRICE OF $160 PER UNIT PLUS EXTRAS. THIS REPRESENTS AN INCREASE IN COST TO THE GOVERNMENT OF AT LEAST 50 PERCENT OVER PRICES PREVIOUSLY PAID FOR STEAM AND WATER MIXERS OF THIS SIZE AND CAPACITY.

RESPONSE: THIS SOLICITATION REPRESENTS THE INITIAL PROCUREMENT OF A VALVE OF THIS SPECIFIC DESIGN AND SIZE. THE UNIT BID PRICE OF $160 FOR THE VALVE PLUS $475 FOR SECONDARY DATA ITEMS REFLECTS INVESTMENTS IN ENGINEERING, TOOLING, AND PATTERN EQUIPMENT. A SIMILAR VALVE, BUT ONE WHICH WILL NOT MEET THE TECHNICAL REQUIREMENTS SPECIFIED IN THE SOLICITATION, WAS PREVIOUSLY PROCURED FROM POWERS REGULATOR COMPANY AT A PRICE OF $111 FOR COMPARABLE QUANTITY. WHEN THE PROTEST AGAINST AWARD WAS RECEIVED, THE BID PRICE OF POWER REGULATOR WAS UNDERGOING AN EXAMINATION OF REASONABLENESS.

AS EXPLAINED IN THE CONTRACTING OFFICER'S LETTERS DATED APRIL 24 AND JUNE 12, 1970, TO YOU, THE PROCUREMENT SPECIFICATION CONTAINED IN THE ADVERTISED SOLICITATION WAS PREPARED FOR THE PURPOSE OF MAXIMIZING COMPETITION. FURTHER, IT WAS EXPECTED BY THE PROCURING AGENCY THAT ANY MANUFACTURER DESIRING TO INVEST IN ENGINEERING, TOOLING, AND FACILITIES COULD HAVE SUBMITTED A BID UNDER THE SOLICITATION.

A PRINCIPAL PURPOSE OF THE COMPETITIVE BIDDING STATUTE IS TO OBTAIN FOR THE GOVERNMENT THE BENEFITS OF FULL AND FREE COMPETITION. THIS REQUIRES THAT THE PROCUREMENT BE ADVERTISED ON AS BROAD A BASIS AS POSSIBLE CONSISTENT WITH THE LEGITIMATE NEEDS OF THE USING AGENCY. 32 COMP. GEN. 384 (1953). IT IS WELL SETTLED THAT THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THOSE NEEDS CAN BE MET BY A GIVEN PRODUCT ARE PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. 39 COMP. GEN. 570 (1960). HOWEVER, THE GOVERNMENT DOES NOT VIOLATE EITHER THE LETTER OR SPIRIT OF THE COMPETITIVE BIDDING STATUTE MERELY BECAUSE ONLY ONE FIRM CAN, OR IS WILLING, TO SUPPLY ITS NEEDS UNDER A SPECIFICATION DESIGNED TO FOSTER COMPETITION.

ON THE RECORD, WE FEEL THAT THE SPECIFICATIONS ARE NOT SUBJECT TO OBJECTION BY OUR OFFICE. THE REASONS ADVANCED BY THE NAVY IN SUPPORT OF THE COMPETITIVE CHARACTER OF THE SPECIFICATIONS ARE PERSUASIVE, AND SINCE WE DO NOT POSSESS THE TECHNICAL KNOWLEDGE TO QUESTION THE NAVY'S JUDGMENT, WE FIND NO BASIS TO DISAGREE WITH ITS POSITION IN THE MATTER.

ACCORDINGLY, YOUR PROTEST IS DENIED.