B-173311(1), OCT 7, 1971

B-173311(1): Oct 7, 1971

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IT WAS PROPER UNDER ASPR 2 -208(A). SUCH SPECIFICATIONS WERE NOT UNDULY RESTRICTIVE WHERE THREE OTHER BIDDERS COULD MEET THE REQUIRED STANDARDS. TO BERLIN CHAPMAN: REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 15 AND LETTER DATED JUNE 21. IFB -2741 WAS ISSUED ON MAY 20. FOUR BIDS WERE OPENED ON JUNE 16. ORIGIN WAS THE LOWEST. THE BID WAS REJECTED AS NONRESPONSIVE BECAUSE IT FAILED TO ACKNOWLEDGE THE RECEIPT OF AMENDMENT 0001 TO THE INVITATION AND ALSO BECAUSE YOUR BID COVER LETTER OF JUNE 7. INDICATED THAT THE MATERIAL OFFERED WAS TO BE MANUFACTURED IN ACCORDANCE WITH THE PROCESS DELETED BY AMENDMENT 0001. IT IS REPORTED THAT BECAUSE OF THE CRITICAL NATURE OF THE REQUIREMENT. NOTICE OF AWARD WAS MAILED TO ELECTRO-FORM ON JULY 8.

B-173311(1), OCT 7, 1971

BID PROTEST - PROCUREMENT PROCEDURES - RESTRICTIVE SPECIFICATIONS DECISION DENYING PROTEST AGAINST THE ISSUANCE OF AN AMENDMENT UNDER AN IFB ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, OAKLAND, CALIF., FOR 4,400 FEET OF STAINLESS STEEL CATAPULT FINNED TUBING. BECAUSE TESTING INDICATED THE POOR QUALITY OF THE SUBJECT ITEM WHEN MANUFACTURED BY OTHER THAN AN EXPLOSIVE METHOD, IT WAS PROPER UNDER ASPR 2 -208(A), TO AMEND THE IFB RESTRICTING THE SPECIFICATIONS TO ALLOW ONLY FOR MATERIAL MANUFACTURED IN ACCORDANCE WITH THE EXPLOSIVE WELDING PROCESS. SUCH SPECIFICATIONS WERE NOT UNDULY RESTRICTIVE WHERE THREE OTHER BIDDERS COULD MEET THE REQUIRED STANDARDS.

TO BERLIN CHAPMAN:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 15 AND LETTER DATED JUNE 21, 1971, PROTESTING THE ISSUANCE OF AMENDMENT 0001 TO INVITATION FOR BIDS (IFB) N66314-71-B-2741, ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, OAKLAND, CALIFORNIA.

IFB -2741 WAS ISSUED ON MAY 20, 1971, FOR THE PROCUREMENT OF 4,400 FEET OF STAINLESS STEEL CATAPULT FINNED TUBING IN ACCORDANCE WITH TECHNICAL SPECIFICATIONS CITED THEREIN FOR SCHEDULED WORK ON THE USS RANGER (CVA-61) AT THE HUNTERS POINT NAVAL SHIPYARD, SAN FRANCISCO, CALIFORNIA.

FOUR BIDS WERE OPENED ON JUNE 16, 1971. THE BID FROM YOUR COMPANY IN THE AMOUNT OF $59,732 F.O.B. ORIGIN WAS THE LOWEST. HOWEVER, THE BID WAS REJECTED AS NONRESPONSIVE BECAUSE IT FAILED TO ACKNOWLEDGE THE RECEIPT OF AMENDMENT 0001 TO THE INVITATION AND ALSO BECAUSE YOUR BID COVER LETTER OF JUNE 7, 1971, INDICATED THAT THE MATERIAL OFFERED WAS TO BE MANUFACTURED IN ACCORDANCE WITH THE PROCESS DELETED BY AMENDMENT 0001. IT IS REPORTED THAT BECAUSE OF THE CRITICAL NATURE OF THE REQUIREMENT, THE CONTRACT REVIEW BOARD AUTHORIZED THE CONTRACTING OFFICER TO AWARD CONTRACT NO. N66314-71-C-2741 TO ELECTRO-FORM, INC., THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. NOTICE OF AWARD WAS MAILED TO ELECTRO-FORM ON JULY 8, 1971.

YOU PROTEST THE ISSUANCE OF AMENDMENT 0001 TO IFB -2741 BECAUSE THE AMENDMENT DELETED THAT PORTION OF THE SPECIFICATIONS PERMITTING THE MANUFACTURING PROCESS WHICH YOUR FIRM HAS UTILIZED IN THE FABRICATION OF FINNED TUBING USED IN THE CATAPULT WARM-UP SYSTEM ON AIRCRAFT CARRIERS. YOU STATE THAT PRIOR TO THE ISSUANCE OF IFB -2741 AND PURSUANT TO THE REQUEST OF THE PUGET SOUND NAVAL SHIPYARD YOU SUBMITTED SAMPLES OF THE FINNED TUBING TO THE SHIPYARD FOR TESTING; THAT THE TEST RESULTS FROM THE SHIPYARD WERE FAVORABLE; AND THAT WHEN IFB -2741 WAS ISSUED, YOUR FIRM SUBMITTED A BID IN RESPONSE THERETO.

YOU STATE THAT ON JUNE 9, 1971, THE DATE ON WHICH BIDS WERE ORIGINALLY SCHEDULED TO BE OPENED UNDER IFB -2741, YOUR SAN FRANCISCO AREA SALES REPRESENTATIVE ADVISED YOUR FIRM BY TELEGRAM AS FOLLOWS: "REGRET TO ADVISE COM NAV AIR PAC, IN SAN DIEGO, ISSUED ADDENDUM TO SPEC. 6-3-71, DELETING WELDED FIN ATTACHMENT ALTERNATE, AND ALLOWING ONLY EXPLOSIVE FORMING ATTACHMENT, THEREBY ELIMINATING PERFEX FROM BIDDING."

AFTER RECEIPT OF THE FOREGOING INFORMATION, YOU CONTACTED A GOVERNMENT REPRESENTATIVE AT THE NORTH ISLAND NAVAL AIR BASE, SAN DIEGO, CALIFORNIA, AND INQUIRED AS TO THE REASON FOR ISSUING AMENDMENT 0001 WHICH ELIMINATED THE SW TYPE OF TUBING FROM CONSIDERATION. YOU STATE THAT YOU WERE INFORMED BY THE REPRESENTATIVE THAT BECAUSE OF THE POOR RESULTS THAT THE NAVY HAS EXPERIENCED WITH MANY TYPES OF FINNED TUBES, IT HAD DECIDED TO USE ONLY THAT TYPE OF TUBE PRODUCING THE BEST RESULTS, NAMELY, THAT TYPE OF TUBE WHICH IS FABRICATED BY EXPLOSIVELY EXPANDING THE TUBE INTO THE FIN. THE GOVERNMENT REPRESENTATIVE STATED, AS YOU MAINTAIN, THAT HE DID NOT BECOME AWARE OF THE TEST RESULTS ON THE SAMPLE TUBING SUBMITTED BY YOUR FIRM UNTIL SIX DAYS AFTER THE ADDENDUM WAS ISSUED.

AMENDMENT 0001 WAS ISSUED IN CONSONANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-208(A) AS FOLLOWS:

"(A) IF AFTER ISSUANCE OF AN INVITATION FOR BIDS, BUT BEFORE THE TIME FOR BID OPENING, IT BECOMES NECESSARY TO MAKE CHANGES IN QUANTITY, SPECIFICATIONS, DELIVERY SCHEDULES, OPENING DATES, ETC., OR TO CORRECT A DEFECTIVE OR AMBIGUOUS INVITATION, SUCH CHANGES SHALL BE ACCOMPLISHED BY ISSUANCE OF AN AMENDMENT TO THE INVITATION FOR BIDS, USING STANDARD FORM 30 (SEE 16-101), WHETHER OR NOT A PRE-BID CONFERENCE IS HELD. THE AMENDMENT SHALL BE SENT TO EVERYONE TO WHOM INVITATIONS HAVE BEEN FURNISHED AND SHALL BE DISPLAYED IN THE BID ROOM."

IT IS REPORTED THAT IFB -2741, AS AMENDED, IS A READVERTISEMENT OF IFB NO. N66314-71-B-2049; THAT IFB -2049 REQUIRED THAT SPACING OF FINS AND BOND OF FINS TO TUBING SHALL BE A TIGHT MECHANICAL LOCK PRODUCED BY AN EXPLOSIVE FORMING PROCESS; THAT AFTER OPENING OF BIDS UNDER IFB 2049 BUT BEFORE AWARD, THE PROCURING ACTIVITY DECIDED TO CANCEL IFB 2049 SO THAT THE SPECIFICATIONS COULD BE REVISED SO AS TO INCLUDE AN ALTERNATE METHOD OF JOINING THE FINS TO THE TUBING, A METHOD WHICH IT APPEARS YOUR FIRM HAS UTILIZED. THEREAFTER, IFB -2741 WAS ISSUED REQUIRING THE JOINING OF THE FINS TO THE TUBING BY AN EXPLOSIVE METHOD AND, ALSO, PROVIDING FOR AN ALTERNATE METHOD WHICH YOUR FIRM HAS UTILIZED. WHEN COM NAV AIR PAC, THE OPERATOR OF PACIFIC-BASED AIRCRAFT CARRIERS, INSISTED THAT "MATERIAL EQUIVALENT TO THE ORIGINAL SOLICITATION, IFB -2049, WITH THE ADDITION OF HIGH FREQUENCY WELDING AND COLLARS OR SHOULDERS WHERE THE FINS ATTACH" BE PROCURED, THE PROCURING ACTIVITY ISSUED AMENDMENT 0001 TO ASSURE THAT THE EXPRESSED NEEDS OF THE USING ACTIVITY WOULD BE MET.

AS TO THE PROPRIETY OF RESTRICTING THE FABRICATION OF THE FINNED TUBING TO THE EXPLOSIVE FORMING PROCESS, OUR OFFICE HAS LONG HELD THAT THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT IS PRIMARILY WITHIN THE PROVINCE OF THE PROCURING AGENCY. 49 COMP. GEN. 156, 160 (1969). FURTHER, WE HAVE STATED THAT THE MERE FACT THAT ONE BIDDER IS UNABLE TO MEET THE GOVERNMENT'S SPECIFICATIONS IS NOT DETERMINATIVE OF THE QUESTION WHETHER A PARTICULAR SPECIFICATION IS RESTRICTIVE. 49 COMP. GEN. 857, 862 (1970). NOR DOES THE FACT THAT SUCH A BIDDER OFFERS LOWER PRICED EQUIPMENT REQUIRE THE GOVERNMENT TO PURCHASE SUCH ITEMS, FOR THE GOVERNMENT MAY NOT BE PLACED IN A POSITION WHEREBY BIDDERS MAY DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEEDS. 36 COMP. GEN. 251, 252 (1956).

SINCE THE RECORD INDICATES THAT AT LEAST THREE BIDDERS ARE IN A POSITION TO SUPPLY FINNED TUBING WHICH MEETS THE SPECIFICATIONS IN IFB 2741, AS AMENDED, WE ARE OF THE VIEW THAT SUCH SPECIFICATIONS ARE NOT UNDULY RESTRICTIVE. SEE B-167059, OCTOBER 22, 1969; B-164222, SEPTEMBER 23, 1968; B-161654, AUGUST 7, 1967.

ACCORDINGLY, THE PROTEST IS DENIED.