B-176951(1), APR 4, 1973

B-176951(1): Apr 4, 1973

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GAO AGREES WITH THE CONTRACTING AGENCY'S POSITION THAT FLATOW'S BID WAS TECHNICALLY NONRESPONSIVE TO THE SPECIFICATIONS. AN EXPERIENCE REQUIREMENT IS A MATTER OF RESPONSIBILITY AND DOES NOT RELATE TO THE RESPONSIVENESS OF A BID. SINCE THE RESPONSIVENESS OF AQUAFINE'S BID WAS DETERMINED IN GOOD FAITH BASED UPON A STANDARD THEORY AND THERE WAS NO SHOWING THAT THE CONTRACTING ACTIVITY WAS AWARE THAT IN PRACTICE A RESULT DIFFERENT THAN THAT ADVERTISED FOR MAY OCCUR. GAO WILL NOT OBJECT TO THIS AWARD. BIDS WERE OPENED ON JULY 20. WAS REJECTED AS NONRESPONSIVE TO TECHNICAL PROVISIONS 3-2 AND 3-5.1 OF THE INVITATION. THE CONTRACT WAS AWARDED ON SEPTEMBER 5. THE FLATOW BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE THE CORPS DETERMINED THAT IT OFFERED FOUR 1.

B-176951(1), APR 4, 1973

BID PROTEST - RESPONSIVENESS - EXPERIENCE REQUIREMENT - NONCONFORMING UNSOLICITED DESCRIPTIVE LITERATURE - POSSIBLE UNWANTED RESULT DECISION DENYING THE PROTEST OF ULTRAVIOLET PURIFICATION SYSTEMS, INC. (UPS) AGAINST REJECTION OF THE BID OF R.E. FLATOW & CO., INC. AND AWARD OF A CONTRACT TO THE AQUAFINE CORPORATION UNDER AN IFB ISSUED BY THE CORPS OF ENGINEERS, WALLA WALLA DISTRICT FOR A ULTRAVIOLET STERILIZER SYSTEM FOR THE DWORSHAK NATIONAL FISH HATCHERY. GAO AGREES WITH THE CONTRACTING AGENCY'S POSITION THAT FLATOW'S BID WAS TECHNICALLY NONRESPONSIVE TO THE SPECIFICATIONS. ALSO, AN EXPERIENCE REQUIREMENT IS A MATTER OF RESPONSIBILITY AND DOES NOT RELATE TO THE RESPONSIVENESS OF A BID. B-170099, JANUARY 22, 1971. MOREOVER, A BID ACCOMPANIED BY UNSOLICITED DESCRIPTIVE LITERATURE NOT CONFORMING TO AN ELEMENT OF THE SPECIFICATIONS CAN STILL BE RESPONSIVE WHERE THE COVER LETTER SUBMITTED WITH THE BID SPECIFICALLY AGREES TO COMPLY WITH THAT SPECIFICATION. SEE 48 COMP. GEN. 306 (1968). FINALLY, SINCE THE RESPONSIVENESS OF AQUAFINE'S BID WAS DETERMINED IN GOOD FAITH BASED UPON A STANDARD THEORY AND THERE WAS NO SHOWING THAT THE CONTRACTING ACTIVITY WAS AWARE THAT IN PRACTICE A RESULT DIFFERENT THAN THAT ADVERTISED FOR MAY OCCUR, GAO WILL NOT OBJECT TO THIS AWARD.

TO ULTRAVIOLET PURIFICATION SYSTEMS, INC.:

WE REFER TO YOUR LETTER OF JANUARY 12, 1973, AND PRIOR CORRESPONDENCE, PROTESTING THE REJECTION OF THE R. E. FLATOW & CO., INC., BID AND THE AWARD OF THE CONTRACT BY THE CORPS OF ENGINEERS, WALLA WALLA DISTRICT, TO THE AQUAFINE CORPORATION UNDER INVITATION FOR BIDS NO. DACW68-72-B-0099.

THE PORTION OF THE INVITATION INVOLVED HERE REQUESTED BIDS ON THE MANUFACTURE, TESTING, PAINTING AND DELIVERY TO THE DWORSHAK NATIONAL FISH HATCHERY OF A 4,000-G.P.M. ULTRAVIOLET STERILIZER SYSTEM IN STRICT ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS AND DRAWINGS. BIDS WERE OPENED ON JULY 20, 1972. THE LOW BID OF $102,520 SUBMITTED BY FLATOW, A DISTRIBUTOR FOR ULTRAVIOLET PURIFICATION SYSTEMS, INC., WAS REJECTED AS NONRESPONSIVE TO TECHNICAL PROVISIONS 3-2 AND 3-5.1 OF THE INVITATION. THE CONTRACT WAS AWARDED ON SEPTEMBER 5, 1972, TO AQUAFINE AT ITS BID PRICE OF $105,700.

THE FLATOW BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE THE CORPS DETERMINED THAT IT OFFERED FOUR 1,000-G.P.M. MODULE UNITS, EACH DIVIDED INTO TEN 100-G.P.M. STERILIZATION CHAMBERS, SO THAT WHEN ONE OF THE FOUR MODULE UNITS IS OUT OF SERVICE THE SYSTEM WOULD OPERATE AT ONLY 3,000- G.P.M. CAPACITY. IN THIS REGARD, TECHNICAL PROVISIONS 3-2 AND 3 5.1 REQUIRE THAT THE SYSTEM OFFERED BE CAPABLE OF OPERATING AT A CAPACITY OF 3,540 G.P.M. WITH ONE MODULE UNIT OUT OF SERVICE.

THE RATIONALE FOR THE FLATOW ARGUMENT OF BID RESPONSIVENESS MAY BE STATED AS FOLLOWS: THE TERM "MODULE UNIT" IS DEFINED BY TECHNICAL PROVISION 3-2 TO BE "A GROUP OF ULTRAVIOLET STERILIZATION CHAMBERS CONNECTED TO COMMON BRANCH SUPPLY AND RETURN HEADERS." EACH GROUP OF STERILIZATION CHAMBERS OFFERED BY FLATOW CONSISTS OF TWO COMMON BRANCH SUPPLY (INLET) HEADERS, TO EACH OF WHICH ARE CONNECTED FIVE CHAMBERS, AND ONE COMMON RETURN (OUTLET) HEADER, TO WHICH ALL OF THE TEN CHAMBERS ARE CONNECTED. FURTHER, THE EQUIPMENT OFFERED BY FLATOW IS DESIGNED TO ALLOW ISOLATION OF EACH INDIVIDUAL CHAMBER WITHOUT AFFECTING OPERATION OF THE REMAINING CHAMBERS. IN VIEW OF THE SPECIFICATION DEFINITION OF "MODULE UNIT" AND SINCE IT IS POSSIBLE TO SHUT OFF FIVE CHAMBERS WITHOUT SHUTTING OFF ALL TEN, IT IS CONTENDED THAT THE SYSTEM OFFERED BY FLATOW SHOULD HAVE BEEN CONSIDERED AS EIGHT 500-G.P.M. MODULE UNITS INSTEAD OF FOUR 1,000-G.P.M. MODULE UNITS. IN THAT CONNECTION, IT IS CONTENDED THAT IF A 500-G.P.M. UNIT IS REMOVED FROM SERVICE, THE SYSTEM WOULD CONTINUE TO OPERATE AT A CAPACITY IN EXCESS OF 3,540 G.P.M., DUE TO THE INCREASED FLOW THROUGH THE CHAMBERS FROM 100 G.P.M. TO 102 G.P.M. WHICH OCCURS WHEN ONE UNIT IS OUT OF SERVICE.

THE CORPS HAS INDICATED THAT EVEN IF THE FOREGOING CONTENTIONS WERE CORRECT, THE FLATOW OFFER WOULD NOT BE COMPLIANT WITH TECHNICAL PROVISION 3-5.9 REQUIRING THAT "EACH MODULE UNIT SHALL BE PROVIDED WITH A SEPARATE STEEL CABINET." INSOFAR AS FLATOW'S OFFER IS CONCERNED, ITS TWO 500- G.P.M. MODULE UNITS WOULD NOT BE HOUSED IN SEPARATE CABINETS BUT IN ONE COMMON CABINET. FURTHER, SHOULD DAMAGE OCCUR TO CERTAIN PORTIONS OF THE OUTLET HEADER, REPAIR OF THIS HEADER COULD NOT BE AFFECTED WITHOUT TAKING BOTH 500-G.P.M. UNITS TO WHICH IT IS COMMON OUT OF SERVICE. IN THE CIRCUMSTANCES DESCRIBED, THE MINIMUM OPERATING CAPACITY OF 3,540 G.P.M. WOULD NOT BE MET.

WHILE IT MAY BE ARGUED THAT THE FLATOW 500-G.P.M. UNITS COULD MEET THE CORPS' DEFINITION OF A MODULE UNIT, AND EVEN THOUGH IN SOME RESPECTS THE SYSTEM OFFERED BY FLATOW IS SUPERIOR TO THAT REQUESTED BY THE CORPS, WE ARE INCLINED TO AGREE WITH THE CORPS' POSITION THAT THE FLATOW SYSTEM WAS TECHNICALLY NONRESPONSIVE TO THE SPECIFICATIONS. THOUGH FIVE CHAMBERS AND THE INLET HEADER FOR THESE CHAMBERS MAY BE REMOVED FROM SERVICE WITHOUT DISTURBING THE OPERATION OF THE REMAINING CHAMBERS WHICH HAVE THEIR OWN INLET HEADER, THE FACT THAT THE SYSTEM PROVIDES FOR ONLY ONE COMMON OUTLET HEADER FOR ALL TEN CHAMBERS WOULD PRECLUDE THE REMOVAL FROM OPERATION OF A "MODULE UNIT" AS DEFINED IN TECHNICAL PROVISION 3-2. IN THE CIRCUMSTANCES, IT IS NOT NECESSARY TO CONSIDER THE OTHER REASONS SET FORTH IN SUPPORT OF THE NONRESPONSIVENESS DETERMINATION.

YOU ALSO PROTEST THE AWARD TO AQUAFINE ON THE GROUNDS THAT ITS BID WAS NONRESPONSIVE TO THE SPECIFICATIONS FOR VARIOUS REASONS. FIRST, TECHNICAL PROVISION 3-3 REQUIRES MANUFACTURERS OF THE ULTRAVIOLET STERILIZERS TO HAVE HAD AT LEAST FIVE YEARS EXPERIENCE IN "THE MANUFACTURE OF THIS TYPE OF EQUIPMENT." BECAUSE THE AQUAFINE BID INDICATED THAT IT WOULD MODIFY A PRIOR MODEL BY LENGTHENING IT, BY INCREASING ITS DIAMETER AND BY UTILIZING A COMPLETELY NEW AND LONGER ULTRAVIOLET LAMP, YOU MAINTAIN THAT AQUAFINE WILL NOT COMPLY WITH THE FIVE-YEAR EXPERIENCE REQUIREMENT.

THE CORPS HAS ADVISED THAT THE WORDS "THIS TYPE OF EQUIPMENT" AS USED IN PROVISION 3-3 WERE INTENDED TO REFER TO THE TYPE OF STERILIZER (I.E., ULTRAVIOLET). AQUAFINE HAS HAD FIVE YEARS EXPERIENCE IN MANUFACTURING ULTRAVIOLET STERILIZERS. IN ANY EVENT, THE MATTER OF EXPERIENCE PRESENTS A QUESTION OF RESPONSIBILITY AND DOES NOT RELATE TO THE RESPONSIVENESS OF THE BID. B-170099, JANUARY 22, 1971. IN THAT CONNECTION, OUR OFFICE HAS HELD THAT THE BIDS OF RESPONSIBLE BIDDERS MAY NOT BE REJECTED FOR FAILURE TO MEET THE LITERAL REQUIREMENTS OF EXPERIENCE QUALIFICATION CLAUSES. COMP. GEN. 4, 7 (1965).

SECOND, YOU NOTE THAT TECHNICAL PROVISION 3-5.5 REQUIRES THAT NO VALVE PART IN CONTACT WITH THE WATER SHALL BE OF CADMIUM, BRASS, BRONZE, ZINC OR THEIR ALLOYS OR OTHER MATERIALS INJURIOUS TO FISH. YOU CONTEND THAT THE AQUAFINE BID DOES NOT CONFORM WITH THAT PORTION OF THE SPECIFICATION INASMUCH AS IT PROPOSES USE OF A SOLENOID CONTROL VALVE WHICH IS NORMALLY CONSTRUCTED OF MARINE BRONZE. ALTHOUGH AQUAFINE INCLUDED DESCRIPTIVE LITERATURE WITH ITS BID SHOWING THE VALVE COVER TO BE MADE OF MARINE BRONZE CONTRARY TO THE SPECIFICATION REQUIREMENT, THE COVER SHEET SUBMITTED WITH THE LITERATURE STATES, "THIS PROPOSAL CONFORMS IN EVERY RESPECT TO THE SPECIFICATIONS," AND ALSO AS SPECIFICALLY REGARDING TECHNICAL PROVISION 3-5.5, COVERING THE VALVE, THAT THE REQUIREMENTS WERE "UNDERSTOOD AND AGREED." IN THE CIRCUMSTANCES, THE AQUAFINE COVER SHEET SPECIFICALLY AGREEING TO COMPLY WITH TECHNICAL PROVISION 3-5.5 IS AN UNDERTAKING TO COAT THE VALVE WITH AN ACCEPTABLE PLATING. IN THAT CONNECTION, SEE 48 COMP. GEN. 306 (1968) WHEREIN OUR OFFICE HELD A BID ACCOMPANIED BY UNSOLICITED DESCRIPTIVE LITERATURE NOT CONFORMING TO AN ELEMENT OF THE SPECIFICATIONS TO BE RESPONSIVE BECAUSE THE COVER LETTER OFFERED TO MODIFY THE NONCONFORMING ASPECT OF THE EQUIPMENT TO MEET THE SPECIFICATIONS.

THIRD, YOU REFER TO TECHNICAL PROVISION 3-5.8 WHICH STATES THAT EACH STERILIZATION CHAMBER SHALL HAVE AN ACCURATELY CALIBRATED ULTRAVIOLET INTENSITY METER PROPERLY FILTERED AND CALIBRATED TO RESTRICT ITS SENSITIVITY TO THE DISINFECTION SPECTRUM. YOU NOTE THAT THE PROPOSED AQUAFINE SYSTEM CONSISTS OF A SHORTWAVE ULTRAVIOLET FILTER WHICH IS PHOSPHOR COATED. YOU ALLEGE THAT THE SENSITIVITY OF THE AQUAFINE PHOTOCELL IS NOT WITHIN THE ULTRAVIOLET DISINFECTING SPECTRUM BUT IS A VISIBLE LIGHT SENSING DEVICE WHICH REACTS TO THE VISIBLE LIGHT CREATED BY ULTRAVIOLET EXCITATION OF THE PHOSPHOR. THIS DEVICE, YOU STATE, DOES NOT MEET THE SPECIFICATION REQUIREMENTS. THE CORPS HAS ADVISED THAT A METERING DEVICE MAY MONITOR ULTRAVIOLET RADIATION IN A NUMBER OF WAYS. CAN BE BY DIRECT SENSING OF THE RADIATION INTENSITY, AS APPARENTLY IS DONE BY THE ULTRAVIOLET SYSTEM, OR BY OTHER MEANS. THE SPECIFICATIONS, IT IS NOTED, DO NOT SPECIFY ANY PARTICULAR METHOD FOR PERFORMING THIS FUNCTION. RATHER, PROVISION 3-5.8 REQUIRES ONLY THAT A "STERILIZATION CHAMBER SHALL BE PROVIDED WITH *** A REMOTELY MOUNTED, ACCURATELY CALIBRATED, ULTRAVIOLET INTENSITY METER PROPERLY FILTERED AND CALIBRATED TO RESTRICT ITS SENSITIVITY TO THE DISINFECTION SPECTRUM ***" WHICH WOULD BE ABLE TO "READ ULTRAVIOLET INTENSITY THROUGH A SPECIAL CLEANABLE QUARTZ INSPECTION WINDOW" WITHOUT BEING "IN DIRECT CONTACT WITH THE WATER." THIS, THE CORPS HAS CONCLUDED, IS WHAT THE AQUAFINE SYSTEM WILL ACCOMPLISH. FROM OUR REVIEW, WE AGREE WITH THE DETERMINATION OF THE CORPS IN THESE RESPECTS AND ALSO WITH ITS FINDING THAT THE AQUAFINE ULTRAVIOLET FILTER WITH THE PHOSPHOR COATING IS SENSITIVE TO AND WILL PASS THE RADIATION IN THE DISINFECTION RANGE, BUT WILL RESTRICT RADIATION IN THE OTHER RANGES.

NEXT, YOU QUESTION THE CONFORMANCE OF THE AQUAFINE SYSTEM WITH THE REQUIREMENT IN TECHNICAL PROVISION 3-5.6 THAT THE INDIVIDUAL PIPING CONNECTIONS SHALL BE OF A SIZE WHICH WILL PROVIDE A MAXIMUM VELOCITY OF EIGHT FEET PER SECOND ASSUMING A FRICTION LOSS CONSTANT OF 100. AQUAFINE'S BID STATED THAT ITS PURIFICATION CHAMBER HAS A FLOW RATE OF 85 G.P.M. AND THAT THE INLET AND OUTLET PIPING SIZES ARE TWO INCHES. YOU NOTE THAT THE VELOCITY OF A TWO-INCH PIPE WITH A C VALUE OF 100 AT A FLOW RATE OF 85 G.P.M. IS EQUAL TO 9.03 FEET PER SECOND, WHICH IS IN EXCESS OF THE MAXIMUM EIGHT FEET PER SECOND PERMITTED BY THE SPECIFICATIONS. THE CORPS ADVISES AS TO THIS CONTENTION THAT THE PIPING USED IN YOUR COMPUTATION WAS NOT THAT INDICATED IN THE AQUAFINE BID OR THAT TO BE USED. WE FIND NO REASON TO QUESTION THE CORPS VIEW THAT AN INSIDE DIAMETER OF 2.083 INCHES IS NEEDED TO STAY BELOW THE SPECIFIED MAXIMUM VELOCITY OF EIGHT FEET PER SECOND AT A FLOW OF 85 G.P.M., AND THAT A TWO- INCH, SCHEDULE 40 PIPE, COULD, IF PROPERLY APPLIED, MEET THE REQUIRED 2.083-INCH INSIDE DIAMETER.

FINALLY, YOU CONTEND THAT THE SYSTEM AQUAFINE IS OFFERING DOES NOT CONFORM WITH THE SPECIFIED ULTRAVIOLET INTENSITY AND DOSAGE BECAUSE THE ULTRAVIOLET LAMP SELECTED DOES NOT CONFORM TO TECHNICAL PROVISION 3 5.4. THERE IT IS PROVIDED THAT THE ULTRAVIOLET DOSAGE SHOULD BE NO LESS THAN 33,000 MWS PER SQUARE CENTIMETER AT THE END OF THE DEFINED LAMP LIFE. THIS PROVISION ALSO STATES THAT THE FLOW RATE SHALL NOT EXCEED 0.15 G.P.M. PER EFFECTIVE LINEAL INCH OF LAMP EXPOSED TO THE WATER. YOU CONTEND THAT THE DETERMINATION OF THE FLOW RATE BASED UPON THE LENGTH OF LAMP WAS CALCULATED UPON THE PERFORMANCE OF THE G36T6 ULTRAVIOLET LAMP WHICH IS DESCRIBED IN TECHNICAL PROVISION 3-5.3 AS HAVING A MINIMUM ULTRAVIOLET OUTPUT OF 120 MW PER SQUARE CENTIMETER AT A DISTANCE OF ONE METER. THE AQUAFINE BID SHOWS THAT AQUAFINE INTENDS TO USE A G64T6 ULTRAVIOLET LIGHT WHICH HAS AN OUTPUT OF 3.40 WATTS PER SQUARE FOOT AT TWO INCHES, WHICH IS 30 PERCENT LESS THAN THE 4.85 OUTPUT OF THE G36T6 LAMP. SINCE THE G64T6 HAS 30 PERCENT LESS GERMICIDAL OUTPUT, THE ULTRAVIOLET DOSAGE OBTAINED FROM THE SYSTEM WILL BE ALSO 30 PERCENT LESS THAN THAT REQUIRED BY THE SPECIFICATIONS. YOU NOTE THAT, IN ADDITION TO THE SELECTION OF AN INCORRECT ULTRAVIOLET LAMP, AQUAFINE PROVIDED TOTALLY INCORRECT CALCULATIONS FOR ITS DETERMINATION OF ULTRAVIOLET DOSAGE AND FURTHER COMPOUNDED THE ERROR BY PROVIDING MISLEADING INFORMATION AS TO THE ACTUAL DISTANCE FROM THE ULTRAVIOLET LAMP TO THE POINT WHERE THEY ARE MEASURING ULTRAVIOLET INTENSITY.

REGARDING THE ULTRAVIOLET LIGHT REQUIREMENT, THE CONTRACTING ACTIVITY ACTED IN GOOD FAITH IN RELYING UPON A STANDARD FORMULA TO ARRIVE AT ITS DETERMINATION THAT THE LAMPS WILL PROVIDE THE SPECIFICATION DOSAGE. YOU INDICATE THAT ACTUAL EXPERIENCE HAS SHOWN THAT THE GOVERNMENT'S EVALUATION OF THE AQUAFINE BID MAY RESULT IN PERFORMANCE OTHER THAN AS ADVERTISED. SINCE THE RESPONSIVENESS OF THE BID WAS DETERMINED IN GOOD FAITH BASED UPON A STANDARD THEORY AND THERE IS NO SHOWING THAT THE CONTRACTING ACTIVITY WAS AWARE THAT IN PRACTICE A DIFFERENT RESULT MAY OCCUR, OUR OFFICE WILL NOT OBJECT TO THE AWARD. HOWEVER, WE ARE RECOMMENDING TO THE SECRETARY OF THE ARMY THAT THE CONTRACTING ACTIVITY CAREFULLY MONITOR PERFORMANCE OF THE CONTRACT BY AQUAFINE TO INSURE THAT A PRODUCT FULLY COMPLYING WITH THE SPECIFICATIONS IS DELIVERED.

ACCORDINGLY, THE PROTEST IS DENIED.