B-169067 (1), MAY 28, 1970

B-169067 (1), MAY 28, 1970

CONTRACTS--SPECIFICATIONS--ADMINISTRATIVE DETERMINATION CONCLUSIVENESS- BRAND NAME OR EQUAL NECESSITY FIRM, NONPARTICIPANT IN PROCUREMENT, THAT PROTESTS ALLEGEDLY RESTRICTIVE SPECIFICATIONS UNDER AIR FORCE INVITATION FOR PAINT SPRAY SYSTEM, WITH BRAND NAME OR EQUAL SPECIFICATIONS INCORPORATING 2-PISTON PUMP, OFFERS NO BASIS FOR OBJECTION SINCE AIR FORCE REPORTS BRAND NAME OR EQUAL SPECIFICATIONS INCORPORATING 2-PISTON PUMP ARE NECESSARY TO MEET GOVERNMENT'S NEEDS--THAT 1-PISTON PUMP WOULD PROVE INADEQUATE; MOREOVER, DRAFTING OF SPECIFICATIONS TO MEET GOVERNMENT'S MINIMUM NEEDS IS PRIMARILY FUNCTION OF ADMINISTRATIVE AGENCY AS THAT AGENCY IS UNIQUELY KNOWLEDGEABLE AS TO WHAT WILL SERVE GOVERNMENT'S MINIMUM NEEDS. GAO, LACKING ENGINEERING EXPERTISE, WILL NOT DISTURB ADMINISTRATIVE DETERMINATION.

TO SPEE-FLO MANUFACTURING CORPORATION:

YOUR LETTER OF FEBRUARY 3, 1970, TO THE CHIEF OF PATENT SECTION, DEPARTMENT OF JUSTICE, PROTESTING ALLEGEDLY RESTRICTIVE SPECIFICATIONS UNDER DEPARTMENT OF THE AIR FORCE INVITATION FOR BIDS NO. F09650-70-B 0609 AND DEPARTMENT OF THE NAVY INVITATION FOR BIDS NO. N60162-70-B 0035 HAS BEEN REFERRED TO OUR OFFICE FOR CONSIDERATION. AWARDS WERE MADE UNDER BOTH INVITATIONS TO DIVISIONS OF THE NORDSON CORPORATION AND WE ARE ADVISED THAT THE RESULTING CONTRACTS IN BOTH INSTANCES HAVE BEEN FULLY PERFORMED.

BY LETTERS DATED APRIL 14 AND APRIL 16, 1970, THE TWO AGENCIES CONCERNED HAVE FURNISHED US WITH REPORTS DEALING WITH YOUR PROTEST. THE NAVY REPORT STATES THAT UPON REVIEW OF ITS INVITATION, IT WAS DETERMINED THAT THE SPECIFICATIONS FOR PAINT SPRAY SYSTEMS WERE, IN FACT, RESTRICTIVE IN THAT THEY PARAPHRASED THE MANUFACTURER'S SPECIFICATIONS FOR A NORDSON- MIDWESTERN COMPANY UNIT. A REVISED PURCHASE DESCRIPTION WAS PREPARED WHICH, IN THE OPINION OF THE DEPARTMENT OF THE NAVY, IS NONRESTRICTIVE. COPY OF THAT PURCHASE DESCRIPTION IS ENCLOSED FOR YOUR INFORMATION.

THE AIR FORCE REPORT, HOWEVER, TAKES THE POSITION THAT BRAND NAME OR EQUAL SPECIFICATIONS INCORPORATING A 2-PISTON DOUBLE ACTION PUMP, ALLEGED BY YOU TO BE RESTRICTIVE, ARE NECESSARY IN ORDER TO MEET THE GOVERNMENT'S NEEDS. THE AIR FORCE REPORT STATES THAT OF THE SIX SOURCES SOLICITED, INCLUDING YOUR COMPANY, ONLY THREE BIDS WERE RECEIVED AND ONLY ONE OF THOSE BIDS--THAT OF THE BINKS MANUFACTURING COMPANY--OFFERED OTHER THAN THE BRAND NAME ITEM. THE BINKS BID WAS REJECTED AS NONRESPONSIVE ON THE GROUND THAT A SINGLE-PISTON PUMP AS OFFERED BY BINKS DID NOT SUFFICIENTLY REDUCE "THE PULSATION EFFECT COMMON TO SINGLE PISTON PUMPS" AND ON THE FURTHER GROUND THAT THE OUTPUT OF THE BINKS PUMP WAS LESS THAN THAT OF THE BRAND NAME PUMP.

WHILE THE AIR FORCE HAD LIMITED INFORMATION ON THE SPEE-FLO SYSTEM IN VIEW OF THE FACT THAT SPEE-FLO SUBMITTED NO BID IN RESPONSE TO THE SUBJECT INVITATION, IT WAS ASSUMED THAT THE SPEE-FLO SYSTEM WAS SUBSTANTIALLY SIMILAR TO THAT OFFERED BY BINKS. IN ACCORDANCE WITH THAT ASSUMPTION, A MEMORANDUM DATED DECEMBER 8, 1969, ENTITLED "ADDITIONAL JUSTIFICATION FOR NORDSON AIRLESS SPRAY PAINTING EQUIPMENT," ORIGINALLY PREPARED IN JUSTIFICATION OF THE REJECTION OF THE BINKS BID, HAS BEEN SUBMITTED AS EVIDENCE THAT 2-PISTON PUMPS ARE REQUIRED TO MEET THE NEEDS OF THE AIR FORCE AND THAT ANY 1-PISTON PUMP WOULD PROVE INADEQUATE. THE PERTINENT PORTIONS OF THAT MEMORANDUM ARE SET OUT BELOW:

"1. WRMEA (AIRCRAFT ENGINEERING BRANCH) RECOMMENDS THAT NORDSON AIRLESS SPRAY PAINTING UNITS BE PROCURED IN PREFERENCE TO BINKS' UNITS.

"2. THIS CONCLUSION IS BASED ON THE FOLLOWING JUSTIFICATION:

"A. THE NORDSON AIRLESS PUMP IS A TWO PISTON DOUBLE ACTING PUMP WHICH WAS SPECIFICALLY DESIGNED TO REDUCE THE PAINT PULSATION EFFECT COMMON TO AIRLESS PAINT PUMPS. THE PUMP PROPOSED BY BINKS' IS A SINGLE PISTON PUMP WHICH DEPENDS TO A LARGE DEGREE ON THE ELASTICITY OF THE SPRAY HOSE TO REDUCE PAINT PULSATIONS RATHER THAN DESIGNING THE PUMP TO REDUCE PULSATIONS. IT HAS BEEN FOUND, UNDER SHOP CONDITIONS, THAT DESIGNING THE PUMP TO REDUCE PULSATIONS IS SUPERIOR TO DEPENDING ON THE ELASTICITY OF THE HOSE TO REDUCE PULSATIONS. THE ELIMINATION OF PAINT PULSATIONS GREATLY IMPROVES THE QUALITY OF THE PAINT FILM AND REDUCES REWORK.

"B. IN ADDITION TO BEING OF INFERIOR DESIGN, USING THE SPRAY HOSE AS A METHOD OF REDUCING PAINT PULSATIONS CREATES A SAFETY HAZARD. THE CONTINUOUS FLEXING OF THE HOSE PRODUCES A CONDITION WHICH COULD ALLOW PRESSURIZED PAINT TO ESCAPE CREATING A SAFETY HAZARD. THE NORDSON DESIGNED PUMP GREATLY REDUCES THE POSSIBILITY OF SUCH A CONDITION EXISTING DUE TO THE PULSATIONS BEING ELIMINATED BY THE PUMP DESIGN RATHER THAN IN THE SPRAY HOSE.

"C. THE OUTPUT OF THE NORDSON PUMP IS ONE (1) GALLON PER MINUTE AND THAT OF THE BINKS' PUMP IS THREE-FOURTHS (3/4) GALLONS PER MINUTE. THUS, UNDER CURRENT STANDARDS, A TIME SAVING OF 45 MINUTES PER EACH C 141 AIRCRAFT WILL BE REALIZED. THIS TIME SAVING WILL BE REALIZED BY UTILIZING THE GREATER PAINT SPRAYING CAPACITY OF THE NORDSON PUMP. IT IS ANTICIPATED THAT THE ENTIRE C-141 FLEET IS TO BE PAINTED USING THIS EQUIPMENT.

"D. THE DOLLY MOUNTING OF THE NORDSON AIRLESS SPRAY SYSTEM IS MORE STABLE AND MORE PORTABLE THAN THE 'U' CART MOUNTING OF THE BINKS' SYSTEM. THE NORDSON SYSTEM IS MOUNTED ON A TWO WHEELED DOLLY WHICH CAN BE MOVED WITH A MINIMUM OF EFFORT AND IS EXTREMELY STABLE. THE BINKS' SYSTEM IS MOUNTED ON AN UPRIGHT 'U' STAND WHICH MUST BE 'BROKEN OVER' OR TILTED TO BE MOVED AND IS LESS STABLE THAN THE NORDSON DOLLY MOUNTED SYSTEM.

"3. IT IS THE OPINION OF ENGINEERING THAT THE NORDSON AIRLESS SPRAY PAINTING EQUIPMENT IS SUPERIOR TO THE BINKS' EQUIPMENT BECAUSE THE NORDSON PUMP IS OF A BETTER DESIGN, IS SAFER, AND HAS A LARGER CAPACITY AND THE MOUNTING OF THE NORDSON SYSTEM IS MORE STABLE AND EASILY MOVED."

GENERALLY, THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS PRIMARILY A FUNCTION OF THE ADMINISTRATIVE AGENCY AS THAT AGENCY IS UNIQUELY KNOWLEDGEABLE AS TO WHAT WILL SERVE THE GOVERNMENT'S MINIMUM NEEDS IN A GIVEN INSTANCE. BECAUSE OF THIS RESERVATION OF DISCRETION IN THE ADMINISTRATIVE AGENCY AND FURTHER BECAUSE OUR OFFICE LACKS THE ENGINEERING EXPERTISE NECESSARY FOR THE RESOLUTION OF TECHNICAL FACTUAL DISPUTES, WE WILL NOT DISTURB DETERMINATIONS THAT CERTAIN SPECIFICATIONS ARE REQUIRED TO MEET THE GOVERNMENT'S MINIMUM NEEDS UNLESS SUCH DETERMINATIONS CONSTITUTE A CLEAR ABUSE OF ADMINISTRATIVE DISCRETION. IN THIS CASE, WE CANNOT SAY THAT THE DETERMINATION BY THE AIR FORCE THAT A 2-PISTON PUMP IS REQUIRED REPRESENTS SUCH A CLEAR ABUSE OF DISCRETION AND, THEREFORE, WE MAY NOT TAKE ANY POSITIVE AFFIRMATIVE ACTION IN THE MATTER.

HOWEVER, BY LETTER OF TODAY TO THE SECRETARY OF THE AIR FORCE, WE ARE POINTING OUT THAT THE DEPARTMENT OF THE NAVY HAS DETERMINED THAT A LESS RESTRICTIVE SPECIFICATION WILL SUIT ITS MINIMUM NEEDS AND SUGGESTING THAT CONSIDERATION BE GIVEN TO RELAXING THE 2-PISTON REQUIREMENT IF IT IS DETERMINED THAT THE PROBLEM OF PUMP PULSATION CAN BE SATISFACTORILY SOLVED BY USE OF A SINGLE-PISTON PUMP SUCH AS THAT PRODUCED BY YOUR FIRM.