B-179087, JUN 5, 1974, 53 COMP GEN 909

B-179087, JUN 5, 1974, 53 COMP GEN 909

BIDS - QUALIFIED - BID NONRESPONSIVE BIDDER, WHICH BY ITS BID ON WATER PURIFICATION SYSTEM TRANSFORMED DESIGN SPECIFICATION FOR A MEMBRANE WITH REQUIRED PH RANGE OF 1-13 INTO PERFORMANCE SPECIFICATION FOR ITS ENTIRE SYSTEM AND OFFERED MEMBRANE HAVING RANGE OF ONLY PH 4.5-5.0, SHOULD HAVE BEEN DECLARED NONRESPONSIVE SINCE TRANSFORMATION OF SPECIFICATION SHOULD HAVE BEEN ACCOMPLISHED BY (1) INVITATION FOR BIDS AMENDMENT, OR (2) REJECTION OF ALL BIDS AND READVERTISEMENT. CONTRACTS - SPECIFICATIONS - CONFORMABILITY OF EQUIPMENT, ETC., OFFERED - TECHNICAL DEFICIENCIES - ACCEPTANCE - PREJUDICIAL TO OTHER BIDDERS WHERE INVITATION FOR BIDS SETS OUT MAXIMUM TIME FOR SERVICE AND MAINTENANCE FOR WATER PURIFICATION UNIT AND PROCUREMENT AGENCY DOES NOT REFUTE CONTENTION THAT SYSTEM BID BY SUCCESSFUL BIDDER COULD NOT MEET THESE SERVICE AND MAINTENANCE REQUIREMENTS BUT MERELY STATES THAT WITH POST-AWARD CHANGE IN CHEMICALS TO BE USED CONTRACTOR WILL MEET SPECIFICATION REQUIREMENT, GENERAL ACCOUNTING OFFICE CONCLUDES ACTION WAS "WAIVER" OF THE SPECIFICATION AND WAS PREJUDICIAL IN MATERIAL RESPECT TO OTHER BIDDERS. BIDS - QUALIFIED - LETTER, ETC. - CONTAINING CONDITIONS NOT IN INVITATION BID SUBMITTED WITH COVER LETTER WHICH (1) CLEARLY CONDITIONS BIDDER'S PERFORMANCE ON PRESENCE OF CERTAIN PHYSICAL SITE CONDITIONS WHICH DID NOT EXIST, AND (2) ATTEMPTS TO REDUCE BIDDER'S OBLIGATION TO MEET SPECIFICATIONS AS WRITTEN IS UNACCEPTABLE QUALIFIED BID. BIDS - PREPARATION - COSTS - RECOVERY GENERAL ACCOUNTING OFFICE IS AWARE OF NO AUTHORITY TO SUPPORT BIDDER CLAIM FOR "DAMAGES AND A REWARD FOR OUR VALUABLE SUGGESTIONS." HOWEVER, IT MAY BE, WE DO NOT DECIDE, THAT PROTESTER WOULD HAVE VALID CLAIM FOR BID PREPARATION COSTS UNDER CRITERIA OF EXCAVATION CONSTRUCTION INC. V. UNITED STATES, NO. 408-71, U.S. CT. CL., APRIL 17, 1974; KECO INDUSTRIES, INC. V, UNITED STATES, NO. 173-69, U.S. CT. CL., FEB. 20, 1974; KECO INDUSTRIES, INC. V. UNITED STATES, 192 CT. CL. 773, 428 F.2D 1233 (1970). SHOULD PROTESTER CHOOSE TO FILE SUCH CLAIM GAO WOULD BE OBLIGED TO CONSIDER IT UNDER ABOVE-NOTED CASE LAW AND MAKE DETERMINATION AT THAT TIME.

IN THE MATTER OF IONICS, INC., JUNE 5, 1974:

ON JUNE 6, 1973, INVITATION FOR BIDS (IFB) F42650-73-B-5898 WAS ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, HILL AIR FORCE BASE, UTAH. THE IFB REQUESTED BIDS ON A WATER TREATMENT PLANT, THE SPECIFICATIONS FOR WHICH INITIALLY READ IN PART:

E. EQUIPMENT DESIGN AND OPERATING FEATURES: THE WATER PURIFICATION EQUIPMENT SHALL INCORPORATE THE FOLLOWING OPERATING AND DESIGN FEATURES:

(1) ZERO CHEMICAL FEED REQUIREMENT: NO ACID, BASE, OR INHIBITING CHEMICALS SHALL BE REQUIRED TO BE FED EITHER TO THE WATER PROCESSING EQUIPMENT FEED OR TO THE EFFLUENT IN ORDER TO ATTAIN THE WATER QUALITY REQUIREMENTS OF PARAGRAPH 3 OF THIS SPECIFICATION.

BID OPENING WAS SCHEDULED FOR JUNE 20, 1973.

ON JUNE 13, 1973, THE IFB WAS AMENDED TO DELETE PARAGRAPH (1) ABOVE. MOREOVER, THE FOLLOWING PROVISION WAS ADDED:

AN EXISTING 12,000 GALLON SULFURIC ACID STORAGE TANK IS LOCATED AT THE SITE AND MAY BE USED FOR THIS SYSTEM.

SUBSEQUENT TO THE OPENING OF BIDS, THE LOW BIDDER, OSMONICS INC., WAS REJECTED AS NONRESPONSIVE FOR ITS FAILURE TO COMPLY WITH IFB PROVISION H-1 RELATIVE TO SHIPMENT. THE SUBJECT CONTRACT WAS THEREAFTER AWARDED, ON JUNE 28, TO GULF ENERGY & ENVIRONMENTAL SYSTEMS, A DIVISION OF GULF OIL CORPORATION (GULF). GULF'S BID WAS BASED UPON THE UTILIZATION OF AN ACID FEED REVERSE OSMOSIS PROCESS.

IONICS, INCORPORATED (IONICS), PROTESTED THE AWARD TO GULF ON THE BASIS THAT GULF'S BID WAS NONRESPONSIVE TO THE FOLLOWING SPECIFICATION REQUIREMENTS: (A) PURIFICATION MEMBRANES; (B) SERVICE AND MAINTENANCE; (C) 20-YEAR MINIMUM LIFE, (D) EMISSION OF PROCESS CHEMICALS; AND (E) INCLUSION OF A FULLY AUTOMATIC CHLORINATOR. MOREOVER, IONICS CONTENDS THAT GULF QUALIFIED ITS BID WITH RESPECT TO THE REQUIREMENTS FOR (A) SIZE; (B) MAXIMUM TEMPERATURE; (C) PRODUCT WATER; AND (D) FEED WATER PRESSURE.

I. GULF'S ALLEGED FAILURE TO MEET THE REQUIREMENTS.

(A) THE PURIFICATION MEMBRANES

PARAGRAPH 4E(13) OF THE SPECIFICATION STATES THAT:

(13) THE PURIFICATION MEMBRANCES SHALL BE STABLE AND BE CAPABLE OF PROPER OPERATION FOR A TEMPERATURE RANGE OF 33 DEGS. TO 110 DEGS. F., A PH RANGE OF 1 TO 13, AND A MINIMUM PRESSURE OF 100 PSIG.

THE AIR FORCE AGREES THAT THE CELLULOSE ACETATE REVERSE OSMOSIS MEMBRANES INCLUDED IN THE GULF EQUIPMENT TO BE OFFERED UNDER ITS BID CANNOT OPERATE EFFICIENTLY AND MUST BE REPLACED WITHIN A FEW DAYS WHEN OPERATING IN THE EXTREMES OF THE PH RANGE (PH OF 1 AND PH'S OF 9 AND ABOVE (EXTREME ACIDITY AND HIGH ALKALI LEVELS, RESPECTIVELY)).

HOWEVER, THE AGENCY STATES THAT THE AUTOMATIC CONTROL DESIGNED INTO THE OFFERED GULF SYSTEM WILL REDUCE THE PH OF THE FEED WATER FROM ITS ANALYZED NORMAL OF 7.7-8.0 TO THE 4.5-5.0 REQUIRED BY THE GULF MEMBRANES BY AUTOMATICALLY FEEDING ACID INTO THE WATER WHENEVER APPROPRIATE.

IT IS APPARENT THAT GULF, WITH THE CONCURRENCE OF THE AIR FORCE, TRANSFORMED THE DESIGN SPECIFICATION IN PARAGRAPH 4E(13) FOR A GIVEN PART OF THE SYSTEM - THAT THE MEMBRANE IN QUESTION HAVE A CERTAIN CAPACITY OR RANGE (PH 1-13) - INTO A PERFORMANCE SPECIFICATION WHEREUNDER THE SYSTEM CAN ACCEPT FEED WATER WITHIN THE 1-13 PH RANGE AND STILL PRODUCE OUTPUT WATER OF ACCEPTABLE QUALITY BY UTILIZING AN AUTOMATIC ACID FEED. THE TRANSFORMATION OF THIS IFB DESIGN REQUIREMENT INTO A PERFORMANCE REQUIREMENT IS NOT IN AND OF ITSELF IMPROPER. HOWEVER, IT IS IMPROPER WHEN THE CHANGE OR TRANSFORMATION IS NOT EFFECTED BY A GOVERNMENT-ISSUED AMENDMENT TO THE IFB MADE KNOWN TO ALL POTENTIAL BIDDERS, OR, AS IS THE CASE HERE, REJECTION OF ALL BIDS AND REPROCUREMENT WHEN THE CHANGE IN SPECIFICATIONS BECOMES KNOWN ONLY AFTER OPENING. SEE B-171378, APRIL 28, 1971; 37 COMP. GEN. 524 (1958); 49 ID. 584 (1970). THUS, EVEN THOUGH WE DO NOT DISAGREE WITH THE AGENCY'S BELIEF THAT GULF CAN MEET THE WATER OUTPUT REQUIREMENTS OF THE SPECIFICATIONS THROUGH THE UTILIZATION OF ITS "PROCESS," SINCE THE SYSTEM TENDERED BY GULF DOES NOT CONTAIN THE MEMBRANE SPECIFICALLY REQUIRED BY PARAGRAPH 4E(13), GULF'S BID SHOULD HAVE BEEN DECLARED NONRESPONSIVE. ARMED SERVICES PROCUREMENT REGULATION 2-404.2.

(B) SERVICE AND MAINTENANCE

PARAGRAPH 4D OF THE TECHNICAL SPECIFICATIONS STATE THAT:

THE MAXIMUM TIME OF AN ATTENDANT FOR THE SERVICE AND MAINTENANCE OF THIS WATER PURIFICATION EQUIPMENT TO OPERATE ON A CONTINUOUS BASIS SHALL BE NOT MORE THAN TWO MAN-HOURS PER DAY.

IONICS CONTENDS THAT THE GULF SYSTEM WHICH USES A NUMBER OF CHEMICALS, MOST PREDOMINANTLY SULFURIC ACID, CANNOT MEET THE ABOVE NOTED REQUIREMENT. THE BASIS FOR THE CONTENTION LIES IN THE AIR FORCE'S STATEMENT IN ITS INITIAL REPORT OF AUGUST 31, 1973, THAT: "THE ACID WILL BE USED DIRECTLY FROM CARBOYS ***." IONICS THUS ASSERTS THAT BECAUSE THE CARBOYS NEED BE CHANGED TWO OR MORE TIMES PER DAY, THIS SWITCHING TIME WHEN ADDED TO THE ALREADY EXISTING REQUIREMENTS FOR CLEANING, MONITORING AND LOGGING OF VARIABLES, AND OTHER GENERAL MAINTENANCE, WILL EXCEED THE 2 -MAN-HOUR MAXIMUM ESTABLISHED FOR MAINTENANCE.

IN RESPONSE, THE AGENCY NOW STATES IN ITS SUPPLEMENTAL REPORT OF FEBRUARY 1, 1974, THAT IT WAS AGREED IN JULY (SUBSEQUENT TO AWARD) THAT GULF WOULD USE THE 12,000-GALLON CONCENTRATED SULFURIC ACID TANK AT THE SITE FOR PRIMARY ACID STORAGE AND THAT "NO PICKING UP, MOVING, POURING, OR MANUAL TRANSFERRING OF ACID IS NECESSARY FROM CARBOYS."

AS SUCH, IT APPEARS THAT THE SULFURIC ACID OPERATION WILL NOT INCREASE THE AMOUNT OF DOWNTIME TO EXCEED THE 2-MAN-HOUR-PER-DAY MAXIMUM.

HOWEVER, AS NOTED BOTH BY IONICS AND THE AIR FORCE, THE LITERATURE SUBMITTED WITH GULF'S BID DESCRIBED THE USE OF HYDROCHLORIC ACID IN ITS PROCESS (WHICH WOULD REQUIRE THE USE OF CARBOYS). INDEED, IT APPEARS THAT GULF'S BID WAS ACCEPTED ON THIS BASIS AND IT WAS NOT UNTIL AFTER AWARD THAT THE AIR FORCE ALLOWED THE UTILIZATION OF SULFURIC ACID AND THE SULFURIC ACID TANK AT HILL AIR FORCE BASE. THUS, AS INDICATED IN THE AIR FORCE'S INITIAL SUBMISSION, AN ACID CARBOY SYSTEM WOULD HAVE BEEN REQUIRED ON THE SPECIFIC SYSTEM BID BY GULF.

WHILE IONICS RAISES THE POINT THAT A SYSTEM USING CARBOYS WOULD REQUIRE SUFFICIENT CHANGEOVER TIME SO AS TO CAUSE MAINTENANCE TO EXCEED THE 2-MAN- HOUR MAXIMUM, THE AIR FORCE RELIES ON THE FACT THAT CARBOYS WILL NOT BE USED. THE AGENCY DOES NOT, HOWEVER, REFUTE IONICS' CONTENTION THAT THE SYSTEM BID BY GULF COULD NOT MEET THE SERVICE AND MAINTENANCE REQUIREMENTS OF THE IFB. AS SUCH, IT APPEARS THAT THE AGENCY, BY ACQUIESCING IN THE POST-AWARD CHANGE OF ACID TYPE, MAY HAVE TRANSFORMED A NONRESPONSIVE BID INTO ONE CONFORMING WITH THE SOLICITATION. SINCE THIS APPARENT INITIAL "WAIVER" OF THE SPECIFICATIONS, AS EVIDENCED BY THE ACCEPTANCE OF GULF'S BID, WAS PREJUDICIAL IN A MATERIAL RESPECT TO OTHER BIDDERS, GULF'S BID SHOULD HAVE BEEN DECLARED NONRESPONSIVE IN THIS REGARD AS WELL.

(C) 20-YEAR MINIMUM LIFE REQUIREMENT

PARAGRAPH 4E(12) OF THE TECHNICAL SPECIFICATIONS STATES THAT: "A TWENTY- YEAR MINIMUM DESIGN LIFE SHALL BE DESIGNED INTO THE WHOLE PURIFICATION SYSTEM."

IONICS RAISES THE ARGUMENT THAT ACID SYSTEMS, SUCH AS GULF'S, HAVE NOT IN THE PAST ACHIEVED 20-YEAR LIVES EVEN WHEN UTILIZING A TANK SULFURIC ACID FEED. INDEED, SCIENTIFIC LITERATURE SUBMITTED BY THE PROTESTER SERIOUSLY QUESTIONS BOTH THE USABLE LIFE OF SUCH SYSTEMS AND ALSO THE LIFE-CYCLE COSTS OF SUCH A SYSTEM (LOW INITIAL COST BUT HIGH TOTAL COST OVER AN ENTIRE 20-YEAR PERIOD).

THE AIR FORCE, ON THE OTHER HAND, INDICATES THAT A 9-YEAR-OLD ACID UTILIZING COMPRESSOR UNIT AT HILL AIR FORCE BASE WHICH EXHIBITS CORROSIVE EFFECTS ONLY ON SOME MILD STEEL MEMBRANES, IS INDICATIVE OF THE LACK OF A CORROSIVE PROBLEM WITH ACID SYSTEMS. MOREOVER, THE AGENCY STATES THAT GULF'S EQUIPMENT NOW BEING PROVIDED, WHICH UTILIZES CORROSION-RESISTANT STAINLESS STEEL FOR STRUCTURAL MEMBERS AND POLYVINYLCHLORIDE FOR THE PIPING, WILL FURTHER REDUCE THE POSSIBILITY OF ACID CORROSION.

OUR OFFICE HAS CLOSELY EXAMINED THE 9-YEAR-OLD COMPRESSOR UNIT AND, CONTRARY TO THE AIR FORCE'S ASSERTIONS, WE HAVE FOUND MANY EXAMPLES OF HEAVILY ACID CORRODED PARTS. SPECIFICALLY, WE FOUND SERIOUS CORROSION IN THE FOLLOWING RESPECTS:

(1)THE CONCRETE UNDER THE SMALL ACID-HOLDING TANK NEAR THE UNIT;

(2) THE UNIT'S ACID-INJECTION CHAMBER IS SO HEAVILY CORRODED THAT RAGS SURROUND THE CHAMBER TO PROTECT AGAINST ACID LEAKS THROUGH THE METAL SKIN;

(3) THE HEAT EXCHANGER WHICH HAS BEEN REPLACED TWICE;

(4) PRODUCT WATER PUMP WHICH HAS BEEN REPLACED THREE TIMES; AND

(5) THE RAW WATER FEED PUMP WHICH HAS BEEN REPLACED ONCE.

THIS UNIT, CITED BY THE AIR FORCE AS AN EXAMPLE OF THE LONG-TERM LIFE CAPACITY OF ACID SYSTEMS, CERTAINLY IS NOT INDICATIVE OF A LACK OF CORROSIVE PROBLEMS WITH ACID SYSTEMS. RATHER, THE CONTRARY APPEARS TO BE THE CASE, I.E., THAT ACID SYSTEMS ARE SUBJECT TO EXTENSIVE CORROSION.

THE AIR FORCE ALSO STATES THAT CERTAINLY THE 20-YEAR DESIGN REQUIREMENT SHOULD NOT BE TAKEN TO MEAN THAT NO REPAIR OR REPLACEMENT WAS CONTEMPLATED. THE AGENCY ADVISES THAT AT THE TIME THE SPECIFICATIONS WERE WRITTEN, IT WAS CONTEMPLATED THAT THE WATER PURIFICATION MEMBRANES OF AN ELECTRODIALYSIS PROCESS (LIKE IONICS') WOULD BE REPLACED EVERY 5 TO 10 YEARS AT A COST OF $20,000 PER REPLACEMENT. REPLACEMENT OF THE MEMBRANES FOR A REVERSE OSMOSIS SYSTEM (GULF'S) WAS CONTEMPLATED EVERY 3 TO 5 YEARS AT A COST OF $10,000 PER REPLACEMENT.

BASED ON THE AIR FORCE'S FIGURES, WE HAVE PROJECTED THE FOLLOWING COSTS:

EST. EST.

MINIMUM MAXIMUM

TOTAL TOTAL

REPLACEMENT COST OF COST COST

INTERVAL REPLACEMENT (20 YEARS) (20 YEARS)

REVERSE OSMOSIS 3 TO 5 YEARS* $10,000 $40,000 $ 70,000

ELECTRODIALYSIS 5 TO 10 YEARS 20,000 40,000 100,000

*(NOTE: IN OUR OPINION, THE MEMBRANE IN QUESTION IS, AS HAS BEEN SHOWN, SUSCEPTIBLE TO DAMAGE WHEN EXPOSED TO EXTREMES OF PH. THE 3- TO 5-YEAR REPLACEMENT DOES NOT, THEREFORE, TAKE INTO ACCOUNT ANY ACID LEAK OR VAPORIZATION PROBLEMS.)

WHILE IONICS ASSERTS THAT UNITS USING LARGE QUANTITIES OF ACID DO NOT GENERALLY LAST FOR 20 YEARS, CITING AS AN EXAMPLE THE 9-YEAR-OLD COMPRESSOR AT HILL AIR FORCE BASE, THE AIR FORCE DISAGREES. MOREOVER, IN THE ADDITIONAL STATEMENT OF THE CONTRACTING OFFICER DATED NOVEMBER 27, 1973, IT WAS STATED THAT:

*** DUE TO THE FACT THAT ACID WOULD HAVE BEEN REQUIRED FOR THE OPERATION OF BOTH IONICS' ELECTRODIALYSIS AS WELL AS THE GULF ROGA PLANTS, ANY CONVERSATION (DISCUSSION) OF POSSIBLE ACID LEAKS, VAPORIZATION, CORROSION OF CONCRETE, OR CORROSION OF METALS IS OF LITTLE CONSEQUENCE.

THE AIR FORCE, THEREFORE, IMPLIES THAT CORROSION IS NOT A PROBLEM BECAUSE BOTH SYSTEMS (THE IONICS' ELECTRODIALYSIS AND THE GULF REVERSE OSMOSIS) WOULD HAVE EQUALLY CORROSIVE EFFECTS. IF THIS WERE THE CASE, THEN PERHAPS BOTH BIDS WERE NONRESPONSIVE TO THE IFB'S 20-YEAR DESIGN REQUIREMENT. HOWEVER, IN REACHING ITS PREMISE, THE AGENCY HAS, IN OUR VIEW, IMPROPERLY EQUATED THE ACID UTILIZATION OF THE TWO SYSTEMS.

GULF'S EQUIPMENT REQUIRES A CONTINUOUS FEED OF ACID TO LOWER THE PH OF THE WATER TO BE TREATED TO A LEVEL WITHIN THE ACCEPTABLE RANGE OF ITS MEMBRANES. IONICS, ON THE OTHER HAND, REQUIRES ZERO CHEMICAL FEED INTO THE WATER.

IT IS APPARENT THAT THE AGENCY MISINTERPRETED A PORTION OF IONICS' DESCRIPTION OF EQUIPMENT TO BE SUPPLIED IN EQUATING THE ACID REQUIREMENTS OF THE TWO SYSTEMS.

IONICS STATED IN ITS BID THAT:

THE AQUAMITE R X-2 USES IONICS ZERO CHEMICAL FEED FEATURE IN WHICH CURRENT REVERSAL EVERY 15 MINUTES REPLACES ACID AND/OR INHIBITOR FEED FOR SOLUBILIZATION OF CALCIUM CARBONATE.

CONTRARY TO THE AIR FORCE'S POSITION, AND DEMONSTRATED BY IONICS' BID, THE ABOVE-QUOTED STATEMENT INDICATES THAT, UNLIKE THE GULF SYSTEM WHICH MUST UTILIZE THE 12,000-GALLON SULFURIC ACID TANK TO PROVIDE ACID FEED INTO THE WATER, IONICS' SYSTEM WOULD NOT INJECT ANY ACID INTO THE WATER TO BE TREATED. THIS IS EVIDENT FROM A READING OF IONICS' DESCRIPTIVE LITERATURE SUBMITTED WITH ITS BID. FOR EXAMPLE, PARAGRAPH VIII-B OF IONICS' DESCRIPTIVE LITERATURE STATES THAT: "THE UNIT WILL REQUIRE NO CONTINUOUS FEED OF EITHER ACID OR INHIBITING CHEMICALS."

NOTE: IONICS STATES THAT IF ITS EQUIPMENT REQUIRES, IT WILL BE FLUSHED (CLEANED) EVERY 6 TO 9 MONTHS WITH 10 GALLONS (120 POUNDS) OF HYDROCHLORIC ACID. MOREOVER, THE AIR FORCE DOES NOT DISPUTE THAT EXTREMELY LARGE QUANTITIES OF SULFURIC ACID WILL BE UTILIZED BY GULF. (IONICS INFORMALLY SUGGESTS 60,000 POUNDS' ANNUAL USAGE, WHILE THE AIR FORCE HAS INFORMALLY ADVISED OUR OFFICE THAT 40,000 POUNDS WILL BE USED ANNUALLY.)

FROM THE FOREGOING, IT IS REASONABLE TO CONCLUDE THAT THE AGENCY IMPROPERLY EQUATED THE RESPECTIVE SYSTEMS WITH REGARD TO ACID UTILIZATION AND, IN DOING SO, HAS MINIMIZED THE EFFECTS OF ACID CORROSION ON THE LIFE EXPECTANCY OF THE GULF UNIT. AS SUCH, WE DOUBT THAT THE CONTRACTING OFFICER SHOULD HAVE ACCEPTED GULF'S BID. (D) EMISSION OF PROCESS CHEMICALS

PARAGRAPH 4E(15) OF THE TECHNICAL SPECIFICATIONS STATES THAT:

NO PROCESS CHEMICALS SHALL BE EMITTED FROM THE PURIFICATION EQUIPMENT EITHER DURING NORMAL OPERATION OR DURING CLEANING THAT SHALL BE CORROSIVE TO STANDARD SEWER MATERIALS, CONCRETE, OR BRASS; OR SHALL INHIBIT NORMAL SEWAGE TREATMENT IN A MODERN SEWAGE TREATMENT PLANT OR IN A SEWAGE LAGOON. A CATCH TANK SHALL BE PROVIDED FOR ANY SUCH CHEMICAL INCLUDING EFFLUENTS WITH A PH GREATER THAN 10.0 OR LESS THAN 4.0. WHILE IONICS ARGUES THAT GULF'S EQUIPMENT DOES NOT MEET THIS REQUIREMENT, THE AIR FORCE INDICATES THAT THE REJECT WATER OF THE GULF SYSTEM WILL HAVE A PH OF ABOUT 5.0 (DUE TO THE PRESENCE OF SULFURIC ACID), BUT THE ELIMINATION OF CARBON DIOXIDE AT 640 MM PRESSURE FROM THE BICARBONATE PRESENT IN THE WATER WILL RAISE THE PH LEVEL TO A POINT WHERE IT IS NOT EXPECTED TO BE A PROBLEM. WE SEE NO BASIS TO DISAGREE WITH THE AIR FORCE ON THIS MATTER.

(E) INCLUSION OF A FULLY AUTOMATIC CHLORINATOR

PARAGRAPH 4E(17) OF THE TECHNICAL SPECIFICATIONS PROVIDES THAT: "A HIGH QUALITY, FULLY AUTOMATIC CHLORINATOR FOR PRODUCT WATER SHALL BE INCLUDED."

IONICS CONTENDS THAT THE GULF EQUIPMENT WHICH ADDS CHLORINE TO THE FEED WATER WILL NOT MEET THE CHLORINE LEVEL REQUIREMENTS FOR THE PRODUCT WATER. IT STATES THAT SINCE THE FEED WATER CONTAINING THE CHLORINE IS SEPARATED FROM THE PRODUCT WATER, ONLY SOME OF THE CHLORINE WILL DIFFUSE THROUGH THE MEMBRANE. THE AIR FORCE INDICATES THAT THE FACT THAT THE GULF CHLORINATOR WORKS ON FEED WATER RATHER THAN PRODUCT WATER IS INSIGNIFICANT FOR THE PRODUCT WATER WILL CONTAIN A CHLORINE RESIDUAL. INDEED, GULF STATES THAT IONICS' ABOVE-PARAPHRASED STATEMENT "INDICATES SOME MISUNDERSTANDING ABOUT CHLORINE DIFFUSION." MOREOVER, IT INDICATES THAT THE CHLORINE PLACED IN THE FEED WATER HAS BOTH THE REQUISITE SOLUBILITY AND DIFFUSION RATE (RELATIVE TO THE MEMBRANE) TO INSURE THE ADEQUACY OF THE CHLORINE LEVEL IN THE PRODUCT WATER.

IN VIEW OF THE ABOVE, WE SEE NO REASON TO DISAGREE WITH THE AIR FORCE POSITION AS TO THIS CONTENTION.

II. GULF'S ALLEGED QUALIFICATION OF ITS BID

IN A JUNE 18, 1973, LETTER ACCOMPANYING ITS BID, GULF STATED THAT:

GESCO (GULF) ACCEPTS THE TECHNICAL SPECIFICATIONS OF THE IFB, SUBJECT TO THE FOLLOWING CLARIFICATIONS AND EXCEPTIONS:

1. THE RELATIONSHIP OF THE RAW WATER STORAGE TANK TO THE BUILDING IN WHICH THE WATER TREATMENT PLANT IS TO BE LOCATED IS NOT DESCRIBED IN THE IFB. FEEDWATER IS TO BE SUPPLIED TO THE REVERSE OSMOSIS UNIT AT A MINIMUM PRESSURE OF 10 PSI.

2. A 10-BY-10-FOOT DOOR AT THE END OF THE BUILDING IS REQUIRED FOR INSTALLATION OF THE REVERSE OSMOSIS UNIT.

4. AT 50 DEGS. F, PRODUCT WATER QUALITY WILL MEET SPECIFICATIONS, BUT IT WILL VARY AT OTHER TEMPERATURES.

5. GESCO SUGGESTS THAT THE MAXIMUM OPERATING TEMPERATURE BE 85 DEGS.

THIS LETTER IS CONSIDERED TO BE A PART OF THE BID. 48 COMP. GEN. 93 (1968); 52 ID. 967 (1973).

WITH REGARD TO THE SIZE DOOR REQUIRED BY GULF (NO. 2, ABOVE), THE AIR FORCE ADMITS THAT ITS BUILDING HAS A DOOR 7 BY 7 FEET AND NOT THE 10 BY 10 FEET INDICATED AS A REQUIREMENT IN GULF'S BID. MOREOVER, THE AGENCY INFORMALLY STATES THAT ALTHOUGH GULF HAD NOT CONDUCTED A PREBID SITE SURVEY, AND IRRESPECTIVE OF GULF'S STATEMENT IN ITS JUNE 18 LETTER, ITS EQUIPMENT WAS ABLE TO BE INSTALLED THROUGH THE 7-BY-7-FOOT DOOR, APPARENTLY BY DISASSEMBLING AND REASSEMBLING THE UNIT.

THE QUESTION IS, HOWEVER, WHAT GULF HAD BOUND ITSELF TO DO UNDER ITS BID. UNDER THE BID SUBMITTED GULF INDICATED THAT A 10-BY-10 FOOT DOOR WAS REQUIRED FOR INSTALLATION. THE REASONABLE CONSTRUCTION OF THIS STATEMENT CLEARLY CONDITIONS PERFORMANCE ON THE PRESENCE OF A CERTAIN PHYSICAL CIRCUMSTANCE WHICH DID NOT EXIST. SEE B-180362, FEBRUARY 14, 1974. THIS QUALIFICATION OF THE BID, BEING A MATERIAL DEVIATION, RENDERED ITS BID NONRESPONSIVE.

WITH REGARD TO GULF'S STATEMENTS IN ITS JUNE 18 LETTER ABOUT (4) WATER QUALITY MEETING THE SPECIFICATION AT 50 DEGS. F., BUT VARYING AT OTHER TEMPERATURES, AND (5) SUGGESTING THAT THE MAXIMUM OPERATING TEMPERATURE BE 85 DEGS. F., GULF ADDS THE FOLLOWING COMMENTS WHICH APPARENTLY HAVE BEEN ACCEPTED BY THE AGENCY:

THE DESIGN POINT FOR THE GULF SYSTEM IS 50 DEGS. F, AND VARIATION FROM THIS TEMPERATURE DOES MAKE A SLIGHT DIFFERENCE IN OPERATING PRESSURES AND THEREBY MAKING SOME DIFFERENCES IN PRODUCT QUALITY. ***

FURTHER -

THE GULF REVERSE OSMOSIS MEMBRANES HAVE OPERATED SUCCESSFULLY AT TEMPERATURES ABOVE 100 DEGS. F. REVIEW OF THE SITE SHOWS THAT THE WELL TEMPERATURE IS A CONSISTENT 50 DEGS. F ALL YEAR. THE WATER IN THE STORAGE TANK THAT IS AT AMBIENT TEMPERATURE CAN BE HANDLED BY THE EQUIPMENT.

PARAGRAPH 4E(13) OF THE TECHNICAL SPECIFICATIONS REQUIRES THAT THE PURIFICATION MEMBRANES BE CAPABLE OF PROPER OPERATION FOR A TEMPERATURE RANGE OF 33 DEGS. TO 110 DEGS. F. GULF READILY ADMITS THAT PRODUCT QUALITY IS AFFECTED BY DEVIATIONS FROM THE 50 DEGS. F. LEVEL. MORE SPECIFICALLY, HOWEVER, THE MOST REASONABLE CONSTRUCTION OF GULF'S JUNE 18 STATEMENT RELATIVE TO MAXIMUM OPERATING TEMPERATURE OF 85 DEGS. IS ONE WHEREBY GULF SOUGHT TO DECREASE THE OPERATIONAL RANGE REQUIRED OF ITS EQUIPMENT BY 25 DEGS. (FROM 110 DEGS. TO 85 DEGS.). SUCH A "CLARIFICATION OR EXCEPTION" SHOULD HAVE BEEN REQUESTED PRIOR TO BID OPENING SO THAT, IF ACCEPTABLE, THE AIR FORCE COULD HAVE AMENDED THE IFB SO AS TO MORE CLOSELY REFLECT THE AGENCY'S LATER APPARENT ACTUAL NEEDS. HOWEVER, SINCE GULF CHOSE RATHER TO "CLARIFY" THE SPECIFICATIONS IN PART BY REDUCING ITS OBLIGATION TO MEET THEM AS WRITTEN, ON THIS BASIS AS WELL GULF IMPROPERLY QUALIFIED ITS BID. B 180362, SUPRA.

AS TO GULF'S FURTHER STATEMENT IN ITS LETTER OF JUNE 18 (1) THAT A MINIMUM FEED WATER PRESSURE OF 10 P.S.I. IS NEEDED, IONICS ASSERTS THAT THE MAXIMUM PRESSURE AVAILABLE EVEN FROM THE FILLED HOLDING TANK AT THE SITE WILL BE ONLY 7 P.S.I. THIS FACT IS NOT DISPUTED EITHER BY THE AIR FORCE OR GULF ALTHOUGH THE LATTER DOES COMMENT THAT "THE GULF SYSTEM CAN BE OPERATED SATISFACTORILY AT FEEDWATER PRESSURES BELOW 10 PSIG."

THE ABILITY OF GULF TO ACCOMPLISH THE PURIFICATION OF FEED WATER AT LESS THAN 10 P.S.I. IS IRRELEVANT SINCE, BY STIPULATING THAT FEED WATER IS TO BE SUPPLIED BY THE GOVERNMENT, AT A MINIMUM PRESSURE OF 10 P.S.I., GULF IS PROTECTING ITSELF AGAINST THE CONTINGENCY OF FAILURE TO ACCOMPLISH THIS TASK BECAUSE OF LIMITED WATER PRESSURE. IN ANY CASE, WHERE THE REASONABLE CONSTRUCTION OF THE BID TAKEN AS A WHOLE ATTEMPTS TO DIMINISH A BIDDER'S RISK OF FAILURE TO PERFORM A CONTRACT BELOW THAT LEVEL OF RISK CONTEMPLATED BY THE EXPRESS LANGUAGE OF THE IFB, THE BID MUST BE CONSIDERED QUALIFIED AND, HENCE, NONRESPONSIVE.

IN VIEW OF ALL OF THE ABOVE, IONICS' PROTEST IS SUSTAINED. HOWEVER, OUR OFFICE HAS BEEN INFORMED BY ALL PARTIES CONCERNED THAT PERFORMANCE OF THE INSTANT CONTRACT HAS LONG SINCE PASSED BEYOND THE POINT WHERE WE WOULD BE ABLE TO RECOMMEND CORRECTIVE ACTION.

BASED ON THE FACTS WHICH LED TO AN IMPROPER AWARD PLUS DELAYS BY THE AGENCY IN RESPONDING TO GAO REQUESTS FOR REPORTS (2 MONTHS FOR INITIAL REPORT; 4 MONTHS FOR SUPPLEMENTAL REPORT), IONICS ASSERTS THAT "*** THE AGENCY HAS BEEN ABLE TO CIRCUMVENT ADMINISTRATIVE JUSTICE WITH A 'FAIT ACCOMPLI' ***." THE PROTESTER, THEREFORE, CONTENDS THAT "*** AN APPROPRIATE REMEDY WOULD BE THE AWARD TO IONICS OF MONETARY COMPENSATION - A COMBINATION OF DAMAGES AND A REWARD FOR OUR VALUABLE SUGGESTIONS - *** (RELATIVE TO THE $100,000 SAVINGS ALLEGED TO BE GENERATED OVER THE NEXT 20 YEARS WITH RESPECT TO SUGGESTING A CHANGE IN THE GULF SYSTEM FROM HYDROCHLORIC ACID TO SULFURIC)."

UNDER THE FACTS PRESENTED, WE ARE AWARE OF NO AUTHORITY WHICH WOULD SUPPORT RECOVERY OF "DAMAGES AND A REWARD FOR VALUABLE SUGGESTIONS," AS WE UNDERSTAND IONICS' USE OF THE CLAIM FOR COMPENSATION. HOWEVER, IT MAY BE, WE DO NOT DECIDE, THAT IONICS WOULD HAVE A VALID CLAIM FOR BID PREPARATION COSTS UNDER THE CRITERIA OF EXCAVATION CONSTRUCTION, INC. V. UNITED STATES, NO. 408-71, UNITED STATES COURT OF CLAIMS, APRIL 17, 1974; KECO INDUSTRIES, INC.V. UNITED STATES, NO. 173-69, UNITED STATES COURT OF CLAIMS, FEBRUARY 20, 1974; AND KECO INDUSTRIES, INC. V. UNITED STATES, 192 CT. CL. 773, 428 F.2D 1233 (1970). SHOULD IONICS CHOOSE TO FILE SUCH A CLAIM GAO WOULD BE OBLIGED TO CONSIDER IT UNDER THE ABOVE NOTED CASE LAW AND MAKE OUR DETERMINATION AT THAT TIME.