B-140127, B-144759, B-151160, NOV. 14, 1963

B-140127,B-151160,B-144759: Nov 14, 1963

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 18. IT APPEARS TO BE YOUR CONTENTION THAT SPECIFICATION MIL-I 25135C (ASG) IS "GENERALLY ACKNOWLEDGED UNWORKABLE. WITH PARTICULAR REFERENCE TO THE CLOSING PARAGRAPH WHICH URGED "THAT ADMINISTRATIVE ACTION BE EXPEDITED TO DEVELOP SPECIFICATIONS THAT WILL PERMIT FULL AND FREE COMPETITION. WHICH WILL MEET VALID AIR FORCE REQUIREMENTS.'. YOU NO DOUBT WILL RECALL THAT. TO EXPLAIN TO YOU OUR LONG-STANDING POSITION THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE DEPARTMENT OR AGENCY ON WHOSE BEHALF THE PROCUREMENT IS MADE. ASSUMING THAT THE CONTRACTING OFFICER WAS JUSTIFIED IN RELYING UPON THE ADVICE HE HAD RECEIVED CONCERNING THE NONQUALIFICATION OF THE OTHER PRODUCTS.

B-140127, B-144759, B-151160, NOV. 14, 1963

TO SWITZER BROTHERS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 18, 1963, ACKNOWLEDGED ON MAY 2, PERTAINING TO THE PROCUREMENT OF FLUORESCENT PENETRANT FLAW DETECTING MATERIALS BY THE DEPARTMENT OF THE AIR FORCE, WITH PARTICULAR REFERENCE TO WHAT YOU CONSIDER AN INADEQUACY OF THE SO CALLED "C" SPECIFICATION WHICH HAS BEEN ISSUED BY THAT DEPARTMENT. IN SUBSTANCE, IT APPEARS TO BE YOUR CONTENTION THAT SPECIFICATION MIL-I 25135C (ASG) IS "GENERALLY ACKNOWLEDGED UNWORKABLE, CONTINUES TO DO ITS HARM, AND CAN BE THE CAUSE OF CATASTROPHIC EQUIPMENT FAILURE.' IN VIEW THEREOF, YOU STRONGLY URGE THAT THE USING AGENCIES BE AUTHORIZED TO PROCURE MAGNAFLUX MATERIALS SOLE SOURCE.

IN YOUR LETTER OF APRIL 18, 1963, YOU QUOTED EXCERPTS FROM OUR DECISION B -140127, DATED JANUARY 4, 1960, TO THE SECRETARY OF THE AIR FORCE, WITH PARTICULAR REFERENCE TO THE CLOSING PARAGRAPH WHICH URGED "THAT ADMINISTRATIVE ACTION BE EXPEDITED TO DEVELOP SPECIFICATIONS THAT WILL PERMIT FULL AND FREE COMPETITION, AND WHICH WILL MEET VALID AIR FORCE REQUIREMENTS.'

WITH RESPECT TO THE ABOVE-MENTIONED DECISION, YOU NO DOUBT WILL RECALL THAT, UPON YOUR REQUEST, WE HAD OCCASION ON JULY 3, 1962, TO EXPLAIN TO YOU OUR LONG-STANDING POSITION THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE DEPARTMENT OR AGENCY ON WHOSE BEHALF THE PROCUREMENT IS MADE. HOWEVER, WE STATED THAT IN VIEW OF THE APPARENT DIFFICULTY EXPERIENCED WITH THAT PARTICULAR SPECIFICATION, WE SUGGESTED THAT ADMINISTRATIVE ACTION BE EXPEDITED TO DEVELOP SPECIFICATIONS WHICH WOULD PERMIT FULL AND FREE COMPETITION, AND AT THE SAME TIME MEET VALID AIR FORCE REQUIREMENTS. WE ALSO STATED TO THE SECRETARY THAT AFTER HAVING REVIEWED ALL THE FACTS AND CIRCUMSTANCES IN THAT CASE, AND ASSUMING THAT THE CONTRACTING OFFICER WAS JUSTIFIED IN RELYING UPON THE ADVICE HE HAD RECEIVED CONCERNING THE NONQUALIFICATION OF THE OTHER PRODUCTS, IT WAS OUR OPINION THAT THE PROCUREMENT SHOULD HAVE BEEN WITHDRAWN FROM FORMAL ADVERTISING AND EFFECTED BY NEGOTIATION WITH MAGNAFLUX. WE REALIZED, AND SO STATED, THAT DUE TO THE TECHNICALITIES INVOLVED, AS EVIDENCED BY PAST EXPERIMENTATION AND THE NUMEROUS CONFERENCES HELD AMONG GOVERNMENT AND INDUSTRY EXPERTS, IT WAS PROBABLE THAT MANY TECHNICAL STUDIES MIGHT BE REQUIRED PRIOR TO THE FORMALIZATION OF A FINAL AND ACCEPTABLE SPECIFICATION, IF SUCH A SPECIFICATION WAS IN FACT FEASIBLE.

THE FACT THAT OUR SUGGESTIONS HAVE BEEN THE SUBJECT OF APPROPRIATE CONSIDERATION BY THE DEPARTMENT IS EVIDENCED BY ITS REPORT DATED JULY 2, 1963, TO THIS OFFICE, WHICH STATES IN PART AS FOLLOWS:

" * * * IN THE PAST, THE AIR FORCE HAS REVISED THIS SPECIFICATION TO OBTAIN FOR THE AIR FORCE, PENETRANT MATERIALS MEETING ITS MINIMUM NEEDS TO THE EXTENT POSSIBLE UNDER THE CIRCUMSTANCES. WE ARE CONTINUING IN OUR EFFORTS TO DEVELOP A MORE SATISFACTORY SPECIFICATION FOR USE BY THE AIR FORCE IN THE FUTURE PROCUREMENT OF THESE MATERIALS. QUALIFIED AIR FORCE TECHNICIANS CONSIDER THAT THE CURRENT SPECIFICATIONS USED IN THIS PROCUREMENT OBTAINS FOR THE AIR FORCE MATERIALS MEETING MILITARY REQUIREMENTS.

" * * * THIS SPECIFICATION REQUIRES THAT PENETRANT INSPECTION MATERIALS MUST BE TESTED AND APPROVED FOR INCLUSION ON THE QUALIFIED PRODUCTS LIST PRIOR TO THE TIME SET FOR OPENING OF BIDS FOR FURNISHING SUCH MATERIALS. CONTRACTS ARE ONLY AWARDED ON THE BASIS OF THE SUCCESSFUL CONTRACTOR'S PRODUCT BEING A QUALIFIED PRODUCT. IN SOME INSTANCES, MANUFACTURERS HAVE DELIVERED PRODUCTS DIFFERENT FROM THOSE ORIGINALLY QUALIFIED. SUCH SUPPLIES HAVE BEEN DROPPED FROM THE QUALIFIED PRODUCTS LIST AND THE CONTRACTOR HAS BEEN REQUIRED TO REQUALIFY THE PRODUCT OR REPLACE THE DEFECTIVE MATERIALS. WE KNOW OF NO EQUIPMENT FAILURES, AS ALLEGED BY THE CLAIMANT, THAT HAVE RESULTED FROM THE FAILURE OF INSPECTION PENETRANT MATERIALS PROCURED TO SPECIFICATION MIL-I-25135C (ASG), AS AMENDED, 25 JULY 1961.

" * * * WE DO NOT AGREE THAT THE AIR FORCE SHOULD BE REQUIRED TO PROCURE THIS EQUIPMENT SOLE SOURCE FROM THE COMPLAINANT. SEVERAL LEADING FIRMS ARE USING FLUORESCENT PENETRANT MATERIALS NOT MANUFACTURED BY SWITZER BROTHERS. THEIR USE IS CONSIDERED AN INDORSEMENT OF THE PRODUCT COMPETITIVE TO SWITZER BROTHERS, INC. UNDER THE CIRCUMSTANCES, WE BELIEVE THAT TO ABANDON THIS SPECIFICATION AND PROCURE THESE MATERIALS SOLE SOURCE FROM MAGNAFLUX IS UNNECESSARY.'

ACCOMPANYING THE ABOVE LETTER FROM THE DEPARTMENT IS A REPORT DATED MAY 15, 1963, FROM THE MATERIALS ENGINEERING BRANCH OF THE AIR FORCE WHICH POINTS OUT IN SUBSTANCE AS FOLLOWS:

"A. MIL-I-25135C IS CONSIDERED WORKABLE BY THIS LABORATORY AND IS IN FACT BEING USED TO PROCURE PENETRANT MATERIALS WHICH IN THE MAIN ARE MEETING MILITARY REQUIREMENTS. IN SPITE OF MR. SWITZER'S OFT REPEATED CLAIM TO THE CONTRARY, INDUSTRY AND GOVERNMENT IN GENERAL PREFER COMPETITIVE PROCUREMENT TO MIL-I-25135C THAN TO A SPECIFICATION PROPOSED LAST YEAR BY MR. SWITZER. THE INDUSTRY, AIR FORCE AND NAVY BUWEPS FLATLY REJECTED HIS PROPOSED SPECIFICATION AS BEING UNNECESSARILY RESTRICTIVE AND DESIGNED PRIMARILY TO INSURE SOLE SOURCE FROM MAGNAFLUX.

"B. IT IS RECOGNIZED THAT THE MILITARY SPECIFICATION HAS DEFICIENCIES. THE PRINCIPAL DEFICIENCY IS CONSIDERED TO BE THE DEPENDENCE ON PROPRIETARY MATERIALS AS "STANDARDS.' UNQUESTIONABLY IT WOULD BE MORE DESIRABLE TO USE QUANTITATIVE LABORATORY MEASUREMENTS TO QUALIFY MATERIALS THAN TO COMPARE THEM TO PROPRIETARY MATERIALS WHICH RESULTS IN LESS OBJECTIVITY. THE NECESSARY TEST METHODS TO ACCOMPLISH THIS ARE STILL BEING DEVELOPED BY THE OSU AND EVALUATED BY MONSANTO CHEMICAL CORP IN AN EFFORT TO SHORTEN THE TIME BEFORE A NEW SPECIFICATION CAN BE ISSUED.

"C. MIL-I-25135C COVERS TWO KINDS OF PENETRANT MATERIALS, I.E., VISIBLE AND FLUORESCENT PENETRANTS. THE VISIBLE PENETRANTS COVERED BY THE FIRST THREE GROUPS ARE RELATED TO STANDARDS DEVELOPED BY TURCO PRODUCTS, INC. THE LAST THREE GROUPS USE MAGNAFLUX MATERIALS AS STANDARDS. MAGNAFLUX'S CLAIM TO BE THE ONLY PRODUCER OF PENETRANT STANDARDS IS NOT TRUE.

"D. MAGNAFLUX (MR. SWITZER) CLAIMS,"INDUSTRY USES OUR PRODUCTS EXCLUSIVELY.' PERHAPS THIS IS WISHFUL THINKING OR QUESTIONABLE ADVERTISING ON THEIR PART. IT MAY COME AS A SHOCK TO THEM BUT MANY LEADING COMPANIES IN INDUSTRY ARE USING SHANNON (TRACER-TECH) FLUORESCENT PENETRANT MATERIALS. EXAMPLES ARE PRATT AND WHITNEY IN HARTFORD AND MONTREAL, LOCKHEED IN SUNNYVALE, BURBANK AND ONTARIO, BOEING SEATTLE AND RENTON, DOUGLAS, ELECTRIC BOAT, NORTH AMERICAN, IBM, GE, DETREX AND MANY OTHERS. SINCE THESE CORPORATIONS HAVE A WIDE LATITUDE AS TO SOURCES OF SUPPLY, THIS IS CONSIDERED AN ENDORSEMENT OF THE MAGNAFLUX COMPETITIONS ABILITY TO PRODUCE QUALITY MATERIALS.'

AS STATED ABOVE, THE GENERAL ACCOUNTING OFFICE HAS CONSISTENTLY ADHERED TO THE PROPOSITION THAT WHETHER SPECIFICATIONS ARE ADEQUATE FOR PROCUREMENT OF A PRODUCT WHICH WILL MEET THE NEEDS OF A DEPARTMENT OR AGENCY IS A QUESTION WHICH IS PRIMARILY WITHIN THE JURISDICTION OF THE CONTRACTING AGENCY, AND IN ANY GIVEN PROCUREMENT THIS QUESTION MAY WELL BE SUBJECT TO A DIFFERENCE OF EXPERT TECHNICAL OPINION. WHERE SUCH DIFFERENCES OF OPINION EXIST, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY OPINION IS IN ERROR AND THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATION WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE IN VIOLATION OF LAW. 17 COMP. GEN. 554.

AS EVIDENCED BY THE REPORT FROM THE DEPARTMENT OF THE AIR FORCE, PORTIONS OF WHICH HAVE BEEN QUOTED ABOVE, THERE CAN BE NO DOUBT THAT THIS HIGHLY TECHNICAL MATTER HAS BEEN GIVEN MOST SERIOUS CONSIDERATION, AS EVIDENCED BY THE NUMEROUS CONFERENCES HELD AMONG GOVERNMENT AND INDUSTRY EXPERTS, AMONG WHICH HAS BEEN YOUR CORPORATION. FROM SUCH STUDIES AND CONSULTATIONS--- WHICH REPORTEDLY HAVE NOT BEEN ABANDONED-- THERE FINALLY HAS EMERGED THE SO-CALLED "C" SPECIFICATION WHICH, IN THE OPINION OF THE CONTRACTING AGENCY, WILL MEET ITS NEEDS. AT THIS POINT, WE MIGHT ALSO STATE THAT FOLLOWING CONFERENCES IN THIS OFFICE WITH MR. SWITZER, PRESIDENT OF YOUR CORPORATION, WE AGAIN COMMUNICATED WITH OFFICIALS OF THE DEPARTMENT OF THE AIR FORCE AT WHICH TIME THEY STEADFASTLY AFFIRMED THAT THE "C" SPECIFICATION CURRENTLY IN USE ADEQUATELY MEETS THEIR PROCUREMENT REQUIREMENTS.

UNDER THESE CIRCUMSTANCES, THEREFORE, WE ARE UNABLE TO SAY THAT THE CONTRACTING AGENCY IS IN ERROR IN ITS OPINION THAT THE SPECIFICATION IS ADEQUATE, OR TO SAY THAT AN AWARD BASED UPON THE SPECIFICATION AS DRAWN WOULD BE ILLEGAL. DISAGREEMENTS OR DIFFERENCES OF OPINION BETWEEN INDIVIDUAL GOVERNMENT EMPLOYEES OR OFFICIALS, SUCH AS REFERRED TO IN YOUR LETTER OF NOVEMBER 1, MUST NECESSARILY BE RESOLVED IN ACCORDANCE WITH ESTABLISHED ADMINISTRATIVE PROCEDURES, AND THE FACT THAT THE FINAL DECISION REACHED MAY NOT REPRESENT A UNANIMOUS, OR EVEN A MAJORITY DETERMINATION CANNOT AFFECT ITS VALIDITY FOR OUR PURPOSES.

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