B-144629, MAR. 10, 1961

B-144629, MAR. 10, 1961

TO STEWART-WARNER CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1960, AND SUBSEQUENT CORRESPONDENCE FROM YOUR ATTORNEYS, PROTESTING THE AWARD OF A CONTRACT TO AEROIL PRODUCTS COMPANY, INC. UNDER INVITATION FOR BIDS NO. IFB-383 102-61 ISSUED BY THE AVIATION SUPPLY OFFICE (NAVY) ON AUGUST 8, 1960.

THE INVITATION SOLICITED BIDS--- TO BE OPENED SEPTEMBER 20, 1960--- FOR FURNISHING 1,389 AIRCRAFT HEATERS IN ACCORDANCE WITH SPECIFICATIONS REFERRED TO IN THE INVITATION. FOUR BIDS WERE RECEIVED, RANGING IN PRICE FROM $370 TO $456 PER HEATER. THE LOW BID WAS SUBMITTED BY AEROIL PRODUCTS COMPANY, INC. YOUR BID WAS IN THE AMOUNT OF $374 PER HEATER. AWARD WAS MADE ON OCTOBER 31, 1960, TO AEROIL.

YOUR PROTEST AGAINST THE AWARD TO AEROIL IS BASED PRIMARILY ON THE GROUND THAT YOU CONSIDER THAT THE SPECIFICATIONS WERE AMBIGUOUS. YOU CONTEND THAT IN VIEW OF OUR DECISION IN 38 COMP. GEN. 380, THE CONTRACT SHOULD BE CANCELED AND THE NEEDS OF THE GOVERNMENT SHOULD BE READVERTISED ON A DIFFERENT BASIS.

PAGE 7 OF THE INVITATION DESCRIBED THE PROCUREMENT AS "HEATER: AIRCRAFT, (CLASS 2) 200,000 BTU (36-0). FOR P2V AIRCRAFT. PART NO: * * * MFGR'S PART NUMBER TO BE INSERTED FOR REFERENCE PURPOSES ONLY.' THE PROVISIONS PERTINENT TO HEATER SPECIFICATION REQUIREMENTS OF THE INVITATION (AND ANY RESULTING CONTRACT) WERE AS FOLLOWS:

"103.1-1 SPECIFICATIONS

"THE ARTICLES TO BE FURNISHED SHALL CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS AND/OR DRAWINGS HEREINAFTER LISTED WHICH FORM A PART HEREOF:

"MILITARY SPECIFICATION MIL-H-5484 DATED 16 JANUARY 1950 WITH THE FOLLOWING EXCEPTIONS:

"A. SECTION 5 ENTITLED "PREPARATION FOR DELIVERY" SHALL NOT APPLY.

"B. THE QUALIFICATION REQUIREMENTS OF SECTION 6 ARE WAIVED. IN LIEU THEREOF, THE CONTRACTOR SHALL FURNISH "PRE-PRODUCTION SAMPLES IN ACCORDANCE WITH THE PROVISIONS OF THE CLAUSE OF THIS CONTRACT ENTITLED "PRE-PRODUCTION SAMPLES.'

"LOCKHEED AIRCRAFT CORPORATION DRAWING NUMBER 644343, CHANGE D, DATED 1 MARCH 1954.

"TO THE EXTENT OF ANY INCONSISTENCY BETWEEN MILITARY SPECIFICATION MIL-H- 5484 AND LOCKHEED AIRCRAFT CORPORATION DRAWING NUMBER 644343, LOCKHEED DRAWING NUMBER 644343 SHALL CONTROL, EXCEPT WITH RESPECT TO THE OPERATIONAL TEST REQUIREMENTS SPECIFIED ON THE DRAWING UNDER THE HEADING ,TESTS TO BE PERFORMED AT LOCKHEED.' THE "LIFE "TEST" OF THE HEATERS TO BE FURNISHED SHALL BE PERFORMED IN ACCORDANCE WITH THE REQUIREMENTS OF LOCKHEED AIRCRAFT SPECIFICATION 2-537. ALL OTHER TESTS SHALL BE IN ACCORDANCE WITH REQUIREMENTS OF MILITARY SPECIFICATION MIL-H-5484. ALL TESTS SHALL BE CONDUCTED AT THE CONTRACTOR'S PLANT OR AT A COMMERCIAL TESTING LABORATORY, ACCEPTABLE TO THE CONTRACTING OFFICER, UNDER THE SUPERVISION OF THE GOVERNMENT INSPECTOR.

"NOTE TO BIDDERS:

"ATTENTION IS CALLED TO THE FACT THAT AIRCRAFT HEATERS UNDER THIS INVITATION FOR BIDS ARE REQUIRED FOR USE WITH LOCKHEED AIRCRAFT CORPORATION AIRCRAFT MODELS P2V-4, -5F, -FD, -6, -6M, -7. THE BIDDER MUST OFFER HEATERS WHICH ARE SUITABLE FOR FIT AND PERFORMANCE IN THE ABOVE MENTIONED AIRCRAFT. ANY CONTRACT RESULTING FROM THIS INVITATION FOR BIDS WILL REQUIRE THAT HEATERS FURNISHED THEREUNDER SHALL COMPLY WITH MILITARY SPECIFICATION MIL-H-5484 AND SHALL BE SUITABLE AS TO FIT AND PERFORMANCE IN THE ABOVE MENTIONED AIRCRAFT.'

AN ANALYSIS OF THE ABOVE PROVISIONS INDICATES THAT PERFORMANCE UNDER THE CONTRACT SHALL CONFORM TO THE MILITARY SPECIFICATION MIL-H-5484 DATED JANUARY 16, 1950, WITH TWO SPECIFIC EXCEPTIONS WHICH MADE INAPPLICABLE SECTION 5 (PREPARATION FOR DELIVERY) AND THE QUALIFICATION REQUIREMENTS OF SECTION 6. THE PROVISIONS OF LOCKHEED AIRCRAFT CORPORATION DRAWING NUMBER 644343, CHANGE D, DATED MARCH 1, 1954, ALSO WERE MADE A PART OF THE REQUIREMENTS. IN CASE OF ANY INCONSISTENCY BETWEEN THE MILITARY SPECIFICATIONS AND THE LOCKHEED DRAWING THE DRAWING WAS TO GOVERN, EXCEPT WITH RESPECT TO THE OPERATIONAL TEST REQUIREMENTS SPECIFIED ON THE DRAWING UNDER THE HEADING ,TESTS TO BE PERFORMED AT LOCKHEED.' IT WILL BE NOTED THAT THE INVITATION ALSO PROVIDED THAT THE "LIFE TEST" OF THE HEATERS WAS TO BE PERFORMED IN ACCORDANCE WITH LAC SPECIFICATION 2-537 WHILE ALL OTHER TESTS WERE TO BE IN ACCORDANCE WITH THE REQUIREMENTS OF MILITARY SPECIFICATION MIL-H 5484.

THE LOCKHEED DRAWING NUMBERED 644343 CONTAINS THE FOLLOWING STATEMENTS:

"NO. 644343 IS TO BE EQUAL TO AND INTERCHANGEABLE WITH THE FOLLOWING:

"MANUFACTURER: STEWART-WARNER CORPORATION

"PART NO. 921-C-2 DWG.NO. 921-C-2

"LIFE TEST: UNIT MUST PASS 850 HOUR LIFE TEST AS PER LAC SPEC. 2 537.

"TESTS TO BE PERFORMED AT LOCKHEED:

"1. HEATER TO BE OPERATION CHECKED IN ACCORDANCE WITH LAC F.T. NO. P- 3003. HEATER SHALL BE MOUNTED IN TEST FIXTURE IN SAME POSITION AS AIRPLANE INSTALLATION SO HEATER DRAINS ARE PROPERLY ORIENTED. DURING THIS OPERATIONAL CHECK THE FUEL SUPPLY AND IGNITION SYSTEM SHALL BE TURNED OFF FOR A PERIOD NOT EXCEEDING 15 SECONDS AFTER THE FIRE IS EXTINGUISHED, THE FUEL SUPPLY SHALL BE TURNED ON, BUT THE IGNITION CIRCUIT SHALL BE LEFT OPEN. THE HEATER SHALL BE SUBJECTED TO THIS CONDITION WITH SPECIFIED RAM AIR STATIC PRESSURE OF 9.0 INCHES H20 FOR 5 MINUTES AT WHICH TIME THE IGNITION CIRCUIT SHALL BE CLOSED. THE HEATER SHALL START OPERATING WITH NO DAMAGE TO THE HEATER, FROM ANY EXPLOSIVE ACTION INCIDENT TO IGNITION.

"2. AFTER TEST 1 ABOVE IS COMPLETED, APPLY 5 PSI AIR PRESSURE TO COMBUSTION AIR INLET WITH EXHAUST OUTLET AND FUEL PRESSURE INLET PORTS CLOSED. CLOSE OFF AIR SOURCE. PRESSURE IN CHAMBER SHALL NOT DROP BELOW 4.8 PSI IN 10 MINUTES.'

WITH RESPECT TO YOUR CONTENTION THAT THE SPECIFICATION REQUIREMENTS CALLED FOR A HEATER EQUAL IN EVERY WAY TO THE STEWART-WARNER EQUIPMENT (MODEL 921-C-2), IT IS OUR VIEW THAT THIS INTERPRETATION OF THE REQUIREMENTS WOULD COMPLETELY IGNORE THE SPECIFIC PROVISIONS OF THE INVITATION WITH REGARD TO THE EXCEPTIONS TO DRAWING NO. 644343 IN THAT THE "TESTS TO BE PERFORMED AT LOCKHEED" WERE TO BE ELIMINATED THEREFROM AND THE LIFE TEST SPECIFIED IN LOCKHEED AIRCRAFT SPECIFICATION 2-537 WAS TO BE USED. ALL OTHER TESTS WERE TO BE IN ACCORDANCE WITH THE REQUIREMENTS OF MILITARY SPECIFICATION MIL-H-5484. PARAGRAPH 5.0291 OF LAC 2-537 SPECIFICALLY PROVIDES THAT THE COMBUSTION CHAMBER SHALL BE LEAKPROOF WHEN TESTED AT 5 POUNDS PER SQUARE INCH. ALTHOUGH THE STEWART-WARNER MODEL 921 -C-2 MAY BE CONSTRUCTED SO AS TO RESULT IN A COMBUSTION CHAMBER THAT IS LEAKPROOF AT 10 POUNDS PER SQUARE INCH, THIS FACT ONLY INDICATES THAT THE STEWART-WARNER HEATER EXCEEDS THE TEST REQUIREMENT. IT IS CONTENDED BY YOU THAT YOU BID ON THIS ALLEGED HEAVIER CONSTRUCTION AND THAT IF YOU FELT THAT A HEATER MEETING THIS "LOWER TEST" REQUIREMENT WAS ACCEPTABLE YOUR BID WOULD HAVE BEEN LOWER THAN THE BID OF AEROIL. IN VIEW OF THE SPECIFIC EXCEPTION IN THE INVITATION IN REGARD TO TESTS, THE EXCEPTION MUST BE REGARDED AS CONTROLLING.

IN REGARD TO WHETHER OUR DECISION IN 38 COMP. GEN. 380 IS CONTROLLING IN THIS MATTER, IT IS NOTED THAT THE SPECIFICATIONS THERE INVOLVED WERE SILENT ON MOST OF THE NINE POINTS OF DIFFERENCE FROM THE "MODEL OR EQUAL" NAMED (A COMMERCIAL PRODUCT) AND THEREFORE THE NAMING OF AN "OR EQUAL" MODEL SUPPLEMENTED THE SPECIFICATIONS. IN THIS CASE THE TEST REQUIREMENT WAS MADE A SPECIFIC EXCEPTION BY THE TERMS OF THE INVITATION. AND WHILE YOU ALLEGE THAT SIMPLY BUILDING A HEATER TO PASS THE TEST REQUIREMENTS WOULD NOT RESULT IN A HEATER WITH THE REQUIRED PERFORMANCE STANDARD, THE ATTENTION OF THE BIDDERS WAS INVITED BY THE "NOTE TO BIDDERS" QUOTED HEREINABOVE THAT THE BIDDERS MUST OFFER HEATERS WHICH ARE SUITABLE FOR FIT AND PERFORMANCE IN THE AIRCRAFT MENTIONED THEREIN.

IN YOUR LETTER OF DECEMBER 9, 1960, YOU POINTED OUT OTHER FEATURES OF YOUR MODEL 921-C-2 WHICH ALLEGEDLY ARE NOT SPECIFICALLY REQUIRED BY, OR ARE INCONSISTENT WITH, THE LOCKHEED DRAWING, THE LIFE TEST PROVISIONS OF LAC 2-537 OR THE MILITARY SPECIFICATION MIL-H-5484. IN REGARD TO THESE FEATURES THE ADMINISTRATIVE OFFICE FURNISHES THE FOLLOWING INFORMATION:

"/C) WHILE EACH PRODUCTION UNIT OF THE STEWART-WARNER PART MAY RECEIVE THREE SEPARATE OPERATIONAL BURN TESTS AS ALLEGED BY STEWART WARNER TO ASSURE ADEQUACY OF COMBUSTION CHAMBER CONSTRUCTION, THE MILITARY SPECIFICATION REQUIRES IN PARAGRAPH 4.4.1 THAT EACH PRODUCTION UNIT SHALL BE SUBJECTED TO COMBUSTION CHAMBER LEAKAGE AND OPERATIONAL TESTS. THE OPERATIONAL TESTS REQUIRE "BURNING" OF THE HEATER (SEE PARAGRAPH 4.3.2.3 OF MILITARY SPECIFICATION MIL-H-5484 AS ONE EXAMPLE THEREOF). AS IN (A) AND (B) ABOVE, THERE ARE, THEREFORE, SPECIFIC REQUIREMENTS COVERING THE BURNING CAPABILITIES OF THE PART TO BE FURNISHED.

"/D) AGAIN, ALTHOUGH THE STEWART-WARNER PART MAY NOT REQUIRE ANY CLEANING DURING AN 850 HOUR LIFE TEST AS ALLEGED, THE SPECIFIC REQUIREMENT AS INDICATED BY STEWART-WARNER IN (D) ALLEGATION OF PARAGRAPH 4.054 IS THAT FUEL BURNERS CAPABLE OF OPERATING CONTINUOUSLY FOR NOT LESS THAN 200 HOURS WITHOUT CLEANING BE FURNISHED, WHICH REQUIREMENT CONTROLS.

"/E) THE LOCKHEED DRAWING REQUIRES THE FURNISHING OF A SPECIFIC SPARK PLUG, EX68102-PW VENTILATED PLUG, OR ITS EQUAL. THE LOCKHEED LIFE TEST SPECIFICATION AS INDICATED BY STEWART-WARNER IN (E) ALLEGATION, REQUIRES THAT THE SPARK PLUG MAY BE REMOVED NOT MORE THAN FOUR TIMES IN THE 850 HOURS FOR SERVICING. THE FACT THAT THE 921-C-2 SPARK PLUG REQUIRES NO CLEANING DURING AN 850 HOUR TEST ONLY INDICATES THAT STEWART-WARNER WOULD FURNISH SOMETHING MORE THAN IS REQUIRED BY THE CONTROLLING SPECIFICATION.

"/F) THE SPECIFICATIONS PROVIDE THAT TO THE EXTENT OF ANY INCONSISTENCY BETWEEN THE MILITARY SPECIFICATION AND THE LOCKHEED DRAWING, THE LOCKHEED DRAWING PREVAILS. THE MILITARY SPECIFICATION REQUIRES AT PARAGRAPH 3.6.2 THAT "THE ELECTRIC POWER REQUIRED FOR STARTING THE HEATER SHALL NOT EXCEED 350 WATTS . . . .' THE LOCKHEED DRAWING REQUIRES THE USE OF A SPECIFIC PLUG, EX68102-PW VENTILATOR PLUG, OR ITS EQUAL, WHICH ASSURES THAT THE POWER CONSUMPTION WILL BE APPROXIMATELY 35 WATTS (WHICH WATTAGE IS COMPARABLE TO THE WATTAGE REQUIRED BY THE STEWART-WARNER PART). THE REQUIREMENTS OF THE LOCKHEED DRAWING CONTROL. THEREFORE, THE CONTRACT REQUIREMENTS CALL FOR THE SAME FEATURE THAT STEWART-WARNER FURNISHES.

"/G) STEWART-WARNER CORRECTLY INDICATES THAT LOCKHEED DRAWING 644343 REQUIRES AN APPROXIMATE WEIGHT OF 28 LBS. FOR THE HEATER. THIS SPECIFIC REQUIREMENT CONTROLS REGARDLESS OF WHAT THE MAXIMUM WEIGHT OF THE STEWART- WARNER 921-C-2 IS. THE REASONABLE AMOUNT OF LBS. MORE OR LESS (APPROXIMATE) THAN 28 LBS. WILL BE DETERMINED BY ASCERTAINING WHETHER THE HEATER FURNISHED COMPLYS WITH ALL SPECIFICATION REQUIREMENTS AND IS SUITABLE FOR FIT AND PERFORMANCE IN THE NAMED AIRCRAFT. THE FACT THAT STEWART-WARNER USES MATERIAL OF MAXIMUM STRENGTH AND LIFE WITH MINIMUM WEIGHT IS NOT CONTROLLING AS A REQUIREMENT. WHERE LESS EXPENSIVE MATERIAL IS USED AND IT DOES NOT CAUSE DEVIATIONS IN COMPLIANCE WITH THE SPECIFICATION IN OTHER RESPECTS AND ALLOWS THE HEATER TO BE SUITABLE FOR FIT AND PERFORMANCE IN THE AIRCRAFT THEN, A REASONABLE AMOUNT OF ADDITIONAL WEIGHT (MORE THAN 28) WILL NOT BE OBJECTIONABLE UNDER THE CONTRACT.'

THE OPINION OF THE ADMINISTRATIVE OFFICE IN REGARD TO THESE FEATURES IS PREDICATED UPON THE SPECIFIC PROVISIONS OF PARAGRAPH 103-1.1 OF THE SPECIFICATIONS QUOTED HEREINABOVE. IN THE MEMORANDUM OF JANUARY 31, 1961, SUBMITTED BY YOUR ATTORNEYS IT IS AGAIN POINTED OUT THAT THE TESTS REQUIRED BY THE INSTANT INVITATION MERELY SET A MINIMUM STANDARD OF PERFORMANCE FOR HEATERS AND DO NOT MEET THE REQUIRED STANDARD OF PERFORMANCE REQUIRED FOR HEATERS FOR USE IN THE AIRCRAFT FOR WHICH THEY ARE INTENDED. HOWEVER, AS POINTED OUT ABOVE UNDER THE "NOTE TO BIDDERS," THE HEATERS MUST BE SUITABLE FOR PERFORMANCE IN THE MENTIONED AIRCRAFT. WITH FURTHER REFERENCE TO THIS "NOTE TO BIDDERS," THERE WAS TRANSMITTED WITH THE MEMORANDUM OF JANUARY 31,"EXHIBIT C,"ATTACHED TO YOUR LETTER OF SEPTEMBER 26, 1960, TO THE CONTRACTING OFFICE IN WHICH IT IS POINTED OUT THAT THIS NOTE WAS PROMPTED BY THE FACT THAT PROSPECTIVE BIDDERS COULD NOT BUILD AN IDENTICAL COPY OF YOUR MODEL 921-C-2 SINCE THIS MODEL IS A PROPRIETARY ITEM AND THAT THE DRAWINGS THEREFOR ARE OWNED AND CONTROLLED BY YOU. THIS STATEMENT IS SOMEWHAT AT VARIANCE WITH THE INFERENCE IN YOUR CONTENTIONS THAT PROSPECTIVE BIDDERS WERE OR SHOULD HAVE BEEN AWARE OF THE CONSTRUCTION OF YOUR HEATER MODEL 921-C-2 BY REASON OF THE AVAILABILITY OF DRAWINGS FOR YOUR HEATER MODEL 921-C-2 WHICH PRESUMABLY SHOW THE CONSTRUCTION DETAILS.

IN VIEW OF THE FOREGOING, OUR OFFICE FINDS NO PROPER BASIS FOR CANCELING THE CONTRACT MADE TO AEROIL UNDER THE INSTANT INVITATION.