B-168725, FEB. 27, 1970

B-168725, FEB. 27, 1970

TO OCEAN ELECTRIC CORPORATION:

YOUR LETTER DATED DECEMBER 15, 1969, WITH ENCLOSURES, FORWARDED TO OUR OFFICE BY A CONGRESSIONAL SOURCE, PROTESTS THAT CERTAIN SPECIFICATIONS UNDER CONTRACT NO. N62470-69-C-0713, AWARDED TO YOUR COMPANY BY THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, ARE PROPRIETARY IN NATURE.

THE SUBJECT PROCUREMENT INCLUDES THE MODIFICATION OF EXISTING ELECTRONIC SUPERVISORY CONTROL EQUIPMENT USED IN THE OPERATION OF THE ELECTRICAL DISTRIBUTION SYSTEM AT THE NAVAL SHIPYARD, WHICH EQUIPMENT WAS MANUFACTURED BY WESTINGHOUSE ELECTRIC CORPORATION. BECAUSE IT IS NECESSARY THAT ANY MODIFICATIONS OR ADDITIONS TO THE EXISTING EQUIPMENT BE COMPATIBLE WITH THE EXISTING EQUIPMENT, THE SPECIFICATIONS REQUIRE GENERALLY THAT EQUIPMENT TO BE ADDED BE THE PRODUCT OF A SINGLE MANUFACTURER MEETING PRESCRIBED EXPERIENCE REQUIREMENTS AND THAT THE NEW EQUIPMENT BE INSTALLED IN ACCORDANCE WITH THE MANUFACTURER'S DRAWINGS. THE SPECIFICATIONS DO NOT, HOWEVER, LIMIT THE ACCEPTABILITY OF THE MANUFACTURER OF THE NEW EQUIPMENT TO ANY SINGLE FIRM.

IT IS YOUR CONTENTION THAT THESE SPECIFICATION PROVISIONS RESTRICT THE ACCEPTABILITY OF MANUFACTURERS OF THE REQUIRED EQUIPMENT TO WESTINGHOUSE ONLY, AND THAT THEY ARE THEREFORE "PROPRIETARY" TO WESTINGHOUSE. YOU FURTHER CONTEND THAT THE QUOTATION TO YOUR FIRM BY WESTINGHOUSE FOR THE REQUIRED ADDITIONAL EQUIPMENT DID NOT SHOW THE COST OF THE SUPERVISORY CONTROL EQUIPMENT ORIGINALLY SUPPLIED BY WESTINGHOUSE. YOU STATE THAT IF WESTINGHOUSE HAD FURNISHED A COST BREAKDOWN, OTHER MANUFACTURERS WOULD CONSTITUTE POSSIBLE SOURCES OF SUPPLY FOR COMPONENTS. FURTHER, YOU OBSERVE THAT THE LUMP-SUM QUOTATION SUBMITTED TO YOUR FIRM BY WESTINGHOUSE MADE ESTIMATES OF REQUIRED INSTALLATION LABOR BY YOUR FIRM VIRTUALLY IMPOSSIBLE. YOU ACCORDINGLY MAINTAIN THAT WESTINGHOUSE SHOP DRAWINGS FOR THE EQUIPMENT IN QUESTION SHOULD HAVE BEEN FURNISHED UNDER THE SOLICITATION LEADING TO THE INSTANT CONTRACT SO THAT OTHER MANUFACTURERS COULD HAVE BEEN SOLICITED FOR THE SUPPLY OF COMPONENT PARTS OF THE SYSTEM.

IN A REPORT TO OUR OFFICE IN THIS MATTER DATED FEBRUARY 4, 1970, WE HAVE BEEN INFORMED BY THE NAVAL FACILITIES ENGINEERING COMMAND THAT WESTINGHOUSE IS NOT THE ONLY ACCEPTABLE EQUIPMENT MANUFACTURER AND POINTS OUT THAT GENERAL ELECTRIC COMPANY ALSO SUBMITTED QUOTES TO PRIME OFFERORS FOR THE SUPPLY OF THE REQUIRED EQUIPMENT IN THIS INSTANCE. ALSO, WE ARE INFORMED THAT WESTINGHOUSE HAS ADVISED THE NAVY THAT A BREAKDOWN OF THE COST OF COMPONENT PARTS OF THE EQUIPMENT IN QUESTION WOULD HAVE BEEN FURNISHED YOUR COMPANY UPON REQUEST AND THAT WHILE THE TOTAL WESTINGHOUSE EQUIPMENT PRICE WAS SOME $227,000, THE PORTION OF THAT PRICE REPRESENTING SUPERVISORY CONTROL EQUIPMENT, THE SPECIFICATION AREA OF WHICH YOU COMPLAIN, WAS ONLY $10,000. FINALLY, THE NAVY STATES THAT THE FURNISHING OF SHOP DRAWINGS OF THE WESTINGHOUSE SUPERVISORY CONTROL EQUIPMENT WOULD NOT BE FEASIBLE BECAUSE SUCH ACTION WOULD EFFECTIVELY PRECLUDE THE FURNISHING OF EQUIPMENT OTHER THAN THAT MANUFACTURED BY WESTINGHOUSE, THUS RENDERING THE EQUIPMENT SPECIFICATIONS TOTALLY "PROPRIETARY" TO WESTINGHOUSE.

THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER ITEMS SUPPLIED MEET THOSE SPECIFICATIONS ARE PRIMARILY MATTERS OF ADMINISTRATIVE DISCRETION AND ARE NOT SUBJECT TO QUESTION BY OUR OFFICE IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY. SEE 47 COMP. GEN. 701 (1968); 38 ID. 190 (1958). ON THE RECORD, WE MUST CONCLUDE THAT THE REASONS STATED ABOVE PROVIDE SUFFICIENT JUSTIFICATION FOR THE USE OF THE SPECIFICATIONS AS PRESENTLY DRAFTED, AND THAT NO ACTION BY OUR OFFICE IN THE MATTER IS REQUIRED.