B-170408, OCT. 20, 1970

B-170408: Oct 20, 1970

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LETTER DECISION ADVISING THAT WHILE A REVISION IN SPECIFICATIONS IS IN SOME INSTANCES A COMPELLING REASON TO CANCEL AN INVITATION. THE SOLICITATION IN THE PRESENT CASE IS UNAMBIGUOUS. CONFORMITY THEREWITH WILL SERVE THE GOVERNMENT'S NEEDS. PROTESTANT IS RESPONSIVE. SECRETARY: REFERENCE IS MADE TO LETTER DATED AUGUST 27. RECEIPT IS ALSO ACKNOWLEDGED OF LETTERS DATED SEPTEMBER 22 AND 23. THE PROCUREMENT WAS A 100-PERCENT SET- ASIDE FOR SMALL BUSINESS CONCERNS. WAS SUBMITTED BY SANDNES' SONS. IT IS REPORTED THAT ON JULY 13. WAS REQUESTED TO PERFORM A PREAWARD SURVEY OF SANDNES' SONS. WAS REVIEWED. WE WISH TO ADVISE THAT OUR STANDARD BAKING TIME IS 3 HOURS AND IT IS ON THIS BASIS THAT WE PLAN TO FURNISH THE PARTS.

B-170408, OCT. 20, 1970

BID PROTEST - CANCELLATION OF SOLICITATION AFFIRMING PROTEST BY SUCCESSFUL LOW BIDDER, SANDNES' SONS, INC., AGAINST CANCELLATION OF SOLICITATION TO SUPPLY MULTIPLE LEG SLINGS TO U.S. ARMY AVIATION SYSTEMS COMMAND. LETTER DECISION ADVISING THAT WHILE A REVISION IN SPECIFICATIONS IS IN SOME INSTANCES A COMPELLING REASON TO CANCEL AN INVITATION, THE SOLICITATION IN THE PRESENT CASE IS UNAMBIGUOUS, CONFORMITY THEREWITH WILL SERVE THE GOVERNMENT'S NEEDS, AND PROTESTANT IS RESPONSIVE; THEREFOR THE INVITATION SHOULD BE REINSTATED.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED AUGUST 27, 1970, WITH ENCLOSURES, FROM THE ACTING ASSISTANT GENERAL COUNSEL, HEADQUARTERS UNITED STATES ARMY MATERIEL COMMAND, FURNISHING A REPORT ON THE PROTEST OF SANDNES' SONS, INC., AGAINST THE ACTION OF THE UNITED STATES ARMY AVIATION SYSTEMS COMMAND, ST. LOUIS, MISSOURI, IN CANCELING SOLICITATION NO. DAAJ01-70-B- 0202(1J). RECEIPT IS ALSO ACKNOWLEDGED OF LETTERS DATED SEPTEMBER 22 AND 23, 1970, WITH ENCLOSURES, FROM THE ACTING ASSISTANT GENERAL COUNSEL AND THE ASSISTANT GENERAL COUNSEL, HEADQUARTERS UNITED STATES ARMY MATERIEL COMMAND, RESPECTIVELY.

THE SUBJECT SOLICITATION, ISSUED ON MAY 20, 1970, WITH A CLOSING DATE OF JUNE 4, 1970, CALLED FOR THE FURNISHING OF 3,218 MULTIPLE LEG SLINGS, 15,000-POUND CAPACITY, P/N 1670-EG-000-1, IN ACCORDANCE WITH USAAVSCOM PROCUREMENT PACKAGE 1670-EG-000, REV."A", AND ALL DETAILS, AND REVISIONS SHOWN ON PAGE 17 OF THE SOLICITATION. THE SOLICITATION ALSO PROVIDED FOR AN OPTION QUANTITY OF 3,218 UNITS. THE PROCUREMENT WAS A 100-PERCENT SET- ASIDE FOR SMALL BUSINESS CONCERNS.

THE LOWEST BID, IN THE AMOUNT OF $155 PER SLING, WAS SUBMITTED BY SANDNES' SONS, INC., AND THE THREE OTHER BIDS RANGED FROM $172.30 TO $179.25 PER SLING.

IT IS REPORTED THAT ON JULY 13, 1970, THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, READING, PENNSYLVANIA, WAS REQUESTED TO PERFORM A PREAWARD SURVEY OF SANDNES' SONS, INC.; THAT DURING THE PROGRESS OF THE PREAWARD SURVEY, THE QUOTATION TO SANDNES FROM THE SOLE SOURCE SUPPLIER OF TWO COMPONENTS, A HAMMERLOK AND A CHAIN, WAS REVIEWED; AND THAT IN ITS QUOTATION, THE SUPPLIER, COLUMBUS-MCKINNON CHAIN DIVISION, TONAWANDA, NEW YORK, MADE THE FOLLOWING STATEMENT:

"AS MENTIONED ON THE TELEPHONE, THE GOVERNMENT PRINTS SPECIFY THAT AFTER CADMIUM PLATING, THE PARTS SHOULD BE BAKED FOR 23 HOURS. WE WISH TO ADVISE THAT OUR STANDARD BAKING TIME IS 3 HOURS AND IT IS ON THIS BASIS THAT WE PLAN TO FURNISH THE PARTS. SPECIFICATION QQ-P-416 STATES THAT BAKING SHOULD BE FOR 3 HOURS OR MORE AND THEREFORE WE DO COMPLY WITH THIS SPECIFICATION BUT NOT WITH THE 23 HOURS CALLED FOR ON THE PRINT. WE WOULD FURTHER LIKE TO ADD THAT WE HAVE FURNISHED THESE MANY, MANY TIMES TO THE GOVERNMENT IN ACCORDANCE WITH OUR BAKING TIME AND HAVE NEVER RUN INTO ANY PROBLEMS WHATSOEVER."

IT IS REPORTED THAT UPON READING THE ABOVE STATEMENT OF COLUMBUS MCKINNON, THE U.S. ARMY AVIATION SYSTEMS COMMAND QUALITY ASSURANCE SPECIALIST, WHO WAS A MEMBER OF THE PREAWARD SURVEY TEAM, NOTIFIED THE CONTRACTING OFFICER OF THE APPARENT DISCREPANCY IN BAKING TIME FROM THE ONLY APPROVED SOURCE FOR THE TWO COMPONENTS OF THE CARGO SLING. THE RECORD INDICATES THAT A CONTRACTING OFFICER'S TEAM MEETING WAS HELD ON JULY 20, 1970, FOR THE PURPOSE OF DISCUSSING COLUMBUS-MCKINNON'S STATEMENT TO THE EFFECT THAT THE HAMMERLOKS AND CHAINS HAVE ALWAYS BEEN BAKED 3 HOURS AFTER CADMIUM PLATING AND THAT THESE ITEMS HAVE NEVER BEEN BAKED 23 HOURS AS CALLED FOR IN DRAWINGS NOS. 1670-EG-016 AND 018, WHICH WERE PART OF THE PROCUREMENT PACKAGE. IT WAS DECIDED TO CANCEL THE SUBJECT SOLICITATION ON THE GROUND THAT THE PROCUREMENT PACKAGE HAD TO BE REVISED AFTER AN INVESTIGATION TO DETERMINE WHETHER A BAKING TIME OF 3 HOURS, 23 HOURS, OR ANY OTHER PERIOD OF BAKING TIME WAS REQUIRED AFTER THE CADMIUM PLATING OF THE HAMMERLOKS AND CHAINS.

THEREAFTER, ALL INTERESTED OFFERORS WERE ADVISED BY TELEGRAM DATED JULY 18, 1970, THAT THE SUBJECT SOLICITATION HAD BEEN CANCELED IN ITS ENTIRETY DUE TO A REVISION OF THE PROCUREMENT PACKAGE. THE RECORD INDICATES THAT AS AUTHORITY FOR CANCELING THE SUBJECT SOLICITATION, THE CONTRACTING OFFICER CITED THE PROVISIONS OF PARAGRAPH 2-404.1(B)(VIII) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH AUTHORIZES SUCH ACTION "FOR OTHER REASONS *** IN THE BEST INTEREST OF THE GOVERNMENT."

SANDNES PROTESTS THE ACTION OF THE PROCURING ACTIVITY IN CANCELING THE SOLICITATION ON THE GROUND THAT SUCH ACTION IS "EVIDENTLY ARBITRARY AND CAPRICIOUS" AND THAT IT DISCRIMINATES AGAINST THE CORPORATION AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER. SANDNES STATES THAT IT HAD TAKEN NO EXCEPTIONS TO THE SPECIFICATIONS IN ITS BID AND THAT TO THE BEST OF ITS KNOWLEDGE, NONE OF THE OTHER BIDDERS, WHO HAD TO BASE THEIR BIDS ON COLUMBUS-MCKINNON ASSEMBLIES, HAD TAKEN ANY EXCEPTION TO THE SPECIFICATIONS. SANDNES STATES THAT IT IS AWARE OF THE FACT THAT IT IS OBLIGATED UNDER ITS BID TO FURNISH AS PART OF THE MULTIPLE LEG SLING A HAMMERLOK AND CHAIN ASSEMBLY WHICH, AFTER CADMIUM PLATING, HAS TO BE BAKED FOR 23 HOURS.

THE ARMY AVIATION SYSTEMS COMMAND CONTENDS THAT THE CANCELLATION OF THE SUBJECT SOLICITATION WAS IN THE BEST INTERESTS OF THE GOVERNMENT. SUPPORT OF SUCH CONTENTION, THE CONTRACTING OFFICER STATES IN A SECOND SUPPLEMENT TO HIS REPORT AS FOLLOWS:

"1. USAAVSCOM PROCUREMENT PACKAGE 1670-EG-000, REV. A, REFERS TO THE SPECIFICATIONS, DRAWINGS AND STANDARDS USED TO DESCRIBE THE ITEM BEING PROCURED. A LIST OF THESE DOCUMENTS ARE FOUND ON PAGE 6 OF THE SOLICITATION. ONLY TWO OF THE DRAWINGS WERE CONSIDERED PERTINENT WHEN THE ORIGINAL ADMINISTRATIVE REPORT WAS FORWARDED ON 14 AUGUST 1970. THEY WERE DRAWINGS 1670-EG-016, HAMMERLOK AND 1670-EG-018, CHAIN, *** .

"2. ACCORDING TO USAAVSCOM ENGINEERING ELEMENTS, THE 23 HOURS BAKE TIME IS CRITICAL AND ESSENTIAL FOR SAFETY UNDER THE CIRCUMSTANCES OF THE PRESENT PROCUREMENT PACKAGE FOR CADMIUM PLATED STEEL ALLOYS WITH A HARDNESS ABOVE ROCKWELL C40. HYDROGEN CAN CAUSE DELAYED BRITTLE FAILURE IN CADMIUM PLATED HIGH STRENGTH STEELS. *** THE CONTRACTING OFFICER MET AGAIN WITH THE COGNIZANT ENGINEERS ON 3 SEPTEMBER 1970 AND THEY REAFFIRMED THEIR POSITION REGARDING CRITICALITY OF BAKING TIME.

"3. THE GOVERNMENT DOES NOT HAVE ANY REPORT OR RECORDS THAT INDICATE THE NUMBER OF SLING FAILURES. PREVIOUS EXPERIENCE AND TESTS HAVE PROVEN THAT HYDROGEN TRAPPED IN CADMIUM PLATED STEEL, WHICH HAS BEEN HEAT HARDENED TO HIGH TENSILE STRENGTH, CAN CAUSE DELAYED BRITTLE FAILURE OF THE STEEL. CERTAIN ALLOYS ARE MORE SENSITIVE TO THIS TYPE OF FAILURE.

"4. PRIOR TO PROCURING THE BREAKOUT DATA FROM AEROQUIP, THE GOVERNMENT PROCURED SLINGS BY PART NUMBERS ONLY, THUS ACCEPTING WHATEVER AEROQUIP'S PART NUMBER SPECIFIED. ONE REASON FOR PURCHASING DATA FOR THE AEROQUIP SLING WAS BASED ON A CONCEPT OF USING THESE SLINGS AS A REPARABLE ITEM OF ARMY SUPPLY SO WEBBING COMPONENTS COULD BE REPLACED AND THE HARDWARE THEREAFTER USED FOR LONGER PERIODS INSTEAD OF THE METHOD NOW EMPLOYED, WHICH IS DISCARDING THE ENTIRE SLING WHEN WEBBING COMPONENTS NEED REPLACEMENT. BECAUSE OF PLANNING FOR REPARABLE ITEMS, THE POSSIBLE DELAYED BRITTLE FAILURE CAUSED BY HYDROGEN EMBRITTLEMENT OF THE HARDWARE BECOMES AN IMPORTANT FACTOR IN THE GOVERNMENT'S TECHNICAL REQUIREMENTS. SINCE HYDROGEN EMBRITTLEMENT SHORTENS THE USEFUL LIFE OF METAL COMPONENTS, HYDROGEN MUST BE REMOVED BY ADEQUATE BAKING. THE 23 HOURS BAKING PERIOD IS A TIME SPAN KNOWN TO BE OF SUFFICIENT LENGTH TO ASSURE SUFFICIENT HYDROGEN ESCAPE FROM CADMIUM PLATED STEEL, HEAT HARDENED TO HIGH STRENGTH INDICATED BY A HARDNESS INDICATION TO RC 40 OR HIGHER.

"5. STUDY AND DISCUSSION BY THE RESPONSIBLE ENGINEERING ELEMENTS OF THE US ARMY AVIATION SYSTEMS COMMAND AND COORDINATION WITH COMMERCIAL AND OTHER GOVERNMENTAL AGENCIES INDICATE THE LIKELIHOOD OF EMPLOYING OTHER PROCEDURES FOR PREVENTING HYDROGEN EMBRITTLEMENT. THESE ALTERNATES ARE BEING EXPLORED AND INCLUDE:

(1) CHANGE OF LENGTH OF TIME INTERVAL BETWEEN PLATING AND BAKING.

(2) DETERMINATION OF A STANDARD TYPE STEEL TO BE USED.

(3) UTILIZATION OF RC HARDNESS RANGE TO HELP DETERMINE REQUIRED LENGTH OF BAKE TIME.

"6. CONSIDERING THE ALTERNATES LISTED IN THE PREVIOUS PARAGRAPH, ENGINEERING EFFORT IS BEING EXPENDED TO DEVELOP A REVISED PROCUREMENT PACKAGE FORECAST FOR COMPLETION IN OCTOBER 1970.

"7. IN THE JUDGMENT OF THE CONTRACTING OFFICER, CONSIDERING ENGINEERING ADVICE, IT WAS BELIEVED TO BE CLEARLY IN THE BEST INTEREST OF THE GOVERNMENT TO CANCEL THE PROCUREMENT OF THIS AIR DELIVERY ITEM. ANOTHER SOLICITATION FOR THE 15,000 POUNDS, MULTIPLE LEG SLING, P/N 1670-EG-000-1, WILL NOT BE ISSUED UNTIL A CLEAR AND ACCURATE DESCRIPTION OF ALL TECHNICAL REQUIREMENTS CAN BE PROVED. SANDNES' SONS INC. WILL BE SOLICITED WHEN THE REVISED PROCUREMENT PACKAGE IS READY."

DRAWINGS NOS. 1670-EG-016 AND -018, WHICH WERE PART OF THE PROCUREMENT PACKAGE, SPECIFY THAT THE FINISH OF THE HAMMERLOK AND CHAIN SHALL BE CADMIUM PLATED IN ACCORDANCE WITH FEDERAL SPECIFICATION QQ-P 416 AND THAT SUCH COMPONENTS SHALL HAVE A BAKE OUT AT 375 DEGS OR - 25 DEGS F. FOR 23 HOURS AFTER PLATING. HOWEVER, PARAGRAPH 3.3.6 OF SPECIFICATION QQ-P-416 PROVIDES THAT ALL STEEL PARTS HAVING A HARDNESS OF ROCKWELL C40 AND HIGHER SHALL BE BAKED AT 375 DEGS OR - 25 DEGS F. FOR 3 HOURS OR MORE AFTER PLATING. IN THIS CONNECTION, THE CONTRACTING OFFICER STATES IN HIS BASIC REPORT THAT HE IS OF THE OPINION THAT THERE IS NO AMBIGUITY IN THE PROCUREMENT PACKAGE SINCE THE DRAWINGS CLEARLY CALL FOR 23 HOURS OF BAKE OUT AND THAT SPECIFICATION QQ-P-416 IS ONLY USED TO SHOW THE TYPE OF FINISH TO BE APPLIED TO THE COMPONENTS. WE AGREE WITH THE CONTRACTING OFFICER, BUT FOR A DIFFERENT REASON. THE SPECIFICATION REQUIREMENT FOR BAKE OUT TIME IS "THREE HOURS OR MORE." HENCE, BAKE OUT TIMES IN EXCESS OF 3 HOURS ARE CONTEMPLATED BY THE SPECIFICATION. WE THEREFORE ARE OF THE VIEW THAT THE 23-HOUR BAKE OUT TIME STATED ON THE DRAWINGS IS A PERMISSIVE EXTENSION OF THE 3-HOUR TIME PROVIDED IN THE SPECIFICATIONS. HENCE, WE CONCLUDE THAT THE DRAWINGS ARE IN CONFORMANCE WITH THE SPECIFICATIONS WHICH REQUIRE AT LEAST 3 HOURS OR MORE BAKING TIME.

BY LETTER DATED OCTOBER 5, 1970, SANDNES ADVISED OUR OFFICE THAT COLUMBUS -MCKINNON, THE ONLY APPROVED SOURCE FOR THE HAMMERLOK AND CHAIN ASSEMBLY, HAS AGREED TO A BAKE OUT TIME OF 23 HOURS AFTER CADMIUM PLATING OF THE COMPONENTS. IN THIS CONNECTION, SANDNES HAS SUBMITTED A COPY OF A QUOTATION DATED JANUARY 20, 1970, RECEIVED FROM ITS SUPPLIER, COLUMBUS- MCKINNON, IN WHICH THE SUPPLIER STATED THAT HE WOULD CADMIUM PLATE THE HAMMERLOK AND CHAIN IN ACCORDANCE WITH DRAWINGS 1670-EG-016 AND -018. SANDNES HAS REAFFIRMED ITS PREVIOUS STATEMENT THAT IF AWARDED A CONTRACT NO CLAIM FOR ADDITIONAL COMPENSATION WILL BE MADE IN CONNECTION WITH THE 23-HOUR BAKING TIME. SINCE WE CONCLUDE THAT SOLICITATION -0202(1J) WAS UNAMBIGUOUS AS TO BAKING TIME AND THAT SANDNES IS OTHERWISE RESPONSIVE TO THE ADVERTISED SPECIFICATIONS, NO "COMPELLING REASON" EXISTS TO REJECT ALL BIDS AND CANCEL THE SOLICITATION PURSUANT TO ASPR 2-404.1. IN THIS REGARD, WE HOLD IN 49 COMP. GEN. 211, 215 (1969), THAT:

"WHILE OUR OFFICE HAS RECOGNIZED IN THE DECISIONS CITED ABOVE THAT THE ADMINISTRATIVE AUTHORITY TO REJECT ALL BIDS AND READVERTISE IS EXTREMELY BROAD AND THAT ORDINARILY WE WILL NOT QUESTION SUCH ACTION, IT IS OUR VIEW THAT THE REJECTION OF ALL BIDS AND THE READVERTISEMENT OF THE PROCUREMENT WAS NOT BASED ON A 'COMPELLING REASON.' ALTHOUGH A REVISION IN SPECIFICATIONS IS, IN SOME INSTANCES, A 'COMPELLING REASON' TO CANCEL AN INVITATION, IT WOULD SEEM THAT CANCELLATION ON THAT GROUND SHOULD BE LIMITED TO INSTANCES IN WHICH AN AWARD UNDER THE ORIGINAL SPECIFICATIONS WOULD NOT SERVE THE GOVERNMENT'S ACTUAL NEEDS."

ACCORDINGLY, THE SOLICITATION SHOULD BE REINSTATED FOR THE PURPOSES OF AN APPROPRIATE AWARD THEREUNDER.