B-145477, MAY 25, 1961

B-145477, MAY 25, 1961

TO MR. EUGENE DREXLER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 3, 1961, PROTESTING ON BEHALF OF LIECO, INCORPORATED, AN AWARD UNDER INVITATION FOR BIDS NO. SC- 36-039-61-899-A1, ISSUED BY THE U.S. ARMY SIGNAL SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION, ISSUED ON FEBRUARY 21, 1961, REQUESTED BIDS FOR FURNISHING A QUANTITY OF DUMMY LOADS, ELECTRICAL, WAVEGUIDE, DA-146/U AND DA-159/U, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-D-3954A WITH AMENDMENT NO. 1 DATED AUGUST 5, 1960, AND SUPPLEMENT NO. 1 DATED OCTOBER 28, 1959.

MILITARY SPECIFICATION MIL-D-3954A IS A COORDINATED SPECIFICATION APPROVED BY THE DEPARTMENT OF DEFENSE UNDER THE AUTHORITY OF 10 U.S.C. 2451, AND ITS USE IS MANDATORY BY THE DEPARTMENTS OF THE ARMY, THE NAVY AND THE AIR FORCE. PARAGRAPH 3.2 OF THE SPECIFICATION REQUIRES THAT THE DUMMY LOADS BEING PROCURED BE "QUALIFIED PRODUCT LIST" ITEMS AND PARAGRAPH 6.3 PROVIDES THAT:

"6.3 QUALIFICATION. WITH RESPECT TO PRODUCTS REQUIRING QUALIFICATION, AWARDS WILL BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE TIME SET FOR OPENING OF BIDS, BEEN TESTED AND APPROVED FOR INCLUSION IN THE APPLICABLE QUALIFIED PRODUCTS LIST WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE. THE ATTENTION OF THE SUPPLIERS IS CALLED TO THIS REQUIREMENT, AND MANUFACTURERS ARE URGED TO ARRANGE TO HAVE THE PRODUCTS THAT THEY PROPOSE TO OFFER TO THE FEDERAL GOVERNMENT, TESTED FOR QUALIFICATION, IN ORDER THAT THEY MAY BE ELIGIBLE TO BE AWARDED CONTRACTS OR ORDERS FOR THE PRODUCTS COVERED BY THIS SPECIFICATION. THE ACTIVITY RESPONSIBLE FOR THE QUALIFIED PRODUCTS LIST IS BUREAU OF SHIPS; HOWEVER, INFORMATION PERTAINING TO QUALIFICATION OF PRODUCTS MAY BE OBTAINED FROM THE ARMED SERVICES ELECTRO-STANDARDS AGENCY (ASESA), FORT MONMOUTH, N.J.'

BY LETTER DATED MARCH 3, 1961, ADDRESSED TO THE COMMANDING OFFICER, U.S. ARMY SIGNAL SUPPLY AGENCY, LIECO, INCORPORATED, OBJECTED TO THE SPECIFICATIONS ON THE GROUNDS THAT THEY WERE UNDULY RESTRICTIVE. THE CORPORATION WAD ADVISED BY THE CONTRACTING OFFICER THAT HE WAS BOUND BY PARAGRAPH 1-1202 (A) (II) OF THE ARMED SERVICES PROCUREMENT REGULATION TO USE THE SPECIFICATION FOR A PROCUREMENT REFERENCE FOR THE SUPPLIES. THE CORPORATION WAS FURTHER ADVISED THAT SINCE THEIR LETTER DEALT WITH TECHNICAL REQUIREMENTS OF MIL-D-3954A IT WAS BEING FORWARDED TO THE U.S. ARMY SIGNAL MATERIEL SUPPORT AGENCY, FORT MONMOUTH, NEW JERSEY, WITH A REQUEST THAT THE MATTER BE INVESTIGATED JOINTLY WITH THE ARMED SERVICES ELECTRO STANDARDS AGENCY.

IN YOUR LETTER OF APRIL 3, 1961, IT IS ALLEGED THAT THE SPECIFICATIONS ARE TOO RESTRICTIVE FOR FORMAL ADVERTISING AND THAT THE INVITATION SHOULD BE CANCELLED AND READVERTISED WITH LESS RESTRICTIVE SPECIFICATIONS IN ORDER THAT THE BROADEST POSSIBLE COMPETITION COULD BE OBTAINED FROM COMPETENT SUPPLIERS.

WITH RESPECT TO THE ALLEGED RESTRICTIVE REQUIREMENTS OF MIL-D-3954A A REPORT BY HEADQUARTERS, U.S. ARMY SIGNAL MATERIEL SUPPORT AGENCY, FORT MONMOUTH, NEW JERSEY, IS AS FOLLOWS:

"2. INCLOSURE 2 TO BASIC LETTER RAISES QUESTIONS ON CERTAIN PARAGRAPHS OF MIL-D-3954A WHICH THE LIECO CORPORATION STATES ARE NOT IN CONFORMANCE WITH SPECIFIC PARAGRAPHS OF THE ARMED SERVICES PROCUREMENT REGULATIONS. ACCORDINGLY, THIS AGENCY AFTER APPROPRIATE COORDINATION WITH ORDNANCE CORPS (THE ACTIVITY DESIGNATED TO TEST WAVEGUIDE DUMMY LOADS FOR DEPARTMENT OF THE ARMY) AND BUREAU OF SHIPS (THE PREPARING ACTIVITY OF MIL -D-3954A), SUBMITS THE FOLLOWING INFORMATION:

"A. SPECIFICATION MIL-D-3954A IS THE REVISED VERSION OF MIL-D-3954 DATED 2 AUGUST 1955 WHICH WAS A COORDINATED MILITARY SPECIFICATION ENCOMPASSING IN ONE PROCUREMENT DOCUMENT TWO AIR FORCE SPECIFICATIONS (MIL-D-4300 (USAF) AND MIL-D-4628 (USAF) ( COVERING TWO DUMMY LOADS (DA-20/U AND DA- 18/U RESPECTIVELY) AND SIX OTHER INDIVIDUAL DUMMY LOADS (DA-19/U, -21/U, - 22/U, -23/U, -24/U, AND -25/U ( USED BY OTHER MILITARY SERVICES.

"B. BECAUSE OF THE VARIETY OF INDIVIDUAL WAVEGUIDE DUMMY LOADS THAT COEXISTED WITH THOSE INDICATED ABOVE, AND THE IMPELLING DESIRE TO STANDARDIZE AND THUS EFFECT REDUCTION IN NUMBERS, THE SERVICES UNDERTOOK A JOINT STUDY WHICH WAS AUTHORIZED BY THE JOINT TEST EQUIPMENT SUBPANEL OF THE JOINT COMMUNICATIONS ELECTRONICS COMMITTEE, AND ASSIGNED FRANKFORD ARSENAL OF ORDNANCE CORPS TO GUIDE THE SELECTION OF WAVEGUIDE DUMMY LOADS FOR STANDARDIZATION.

"C. WHEREAS MIL-D-3954 INCLUDED 8 WAVEGUIDE DUMMY LOADS, THE CURRENT REVISION INCLUDES 9, AND THE SELECTION OF THESE 9 RESULTED FROM THE ABOVE REFERENCED STUDY WHICH REVEALED THAT THEY COULD REPLACE APPROXIMATELY 100 INDIVIDUAL DUMMY LOADS AS FAR AS MECHANICAL AND ELECTRICAL CHARACTERISTICS ARE CONCERNED. THE 9 DUMMY LOADS CURRENTLY INCLUDED IN MIL-D-3954A CAN TRULY BE SAID TO BE IMPROVEMENTS OF THE PREVIOUS 8 UNDER THE SUPERSEDED SPECIFICATION. THE INCREASE BY 1 WAS EFFECTED TO COVER THE RANGES OF EQUIPMENT NOW IN USE.

"D. THE SPECIFICATION DOES NOT IN A SINGLE INSTANCE REFER TO ANY PROPRIETARY DUMMY LOADS, AND ANY RESTRICTION ON SIZES OR SHAPES WAS DETERMINED SOLELY FROM CONSIDERATIONS OF REPLACEMENT IN OLD AND ACCOMMODATION IN NEW EQUIPMENTS.

"E. THE CONTENTION OF LIECO THAT THE SPECIFICATION CONTAINS REQUIREMENTS THAT HAVE NO BEARING ON THE ITEM CANNOT BE CONSIDERED VALID, SINCE THE MOISTURE ABSORPTION AND TEMPERATURE REQUIREMENTS REPRESENT THOSE OPERATING CHARACTERISTICS WHICH LABORATORY TESTS AND FIELD CONDITIONS HAVE INDICATED AS NECESSARY FOR EVALUATION OF RELIABLE WAVEGUIDE DUMMY LOADS. FURTHER, IT IS NOTED THAT INCLUSION OF REQUIREMENTS SUCH AS MOISTURE ABSORPTION AND SPECIFIC OPERATING TEMPERATURES FOR ANY OF THE COMPONENT PARTS OF THE DUMMY LOAD IS NOT UNIQUE, SINCE OTHER MILITARY SPECIFICATIONS NOW INVOKE MATERIAL, TEMPERATURE, AND FINISHING REQUIREMENTS OF SUBSIDIARY SPECIFICATIONS. IN THIS SPECIFIC CASE NO MILITARY SPECIFICATION EXISTS TO COVER THE LOSSY MATERIAL USED IN THE MANUFACTURE OF WAVEGUIDE DUMMY LOADS, THEREFORE, IN LIEU OF SUCH SUBSIDIARY SPECIFICATION REFERENCE, PERFORMANCE REQUIREMENTS IN THE FORM OF MOISTURE ABSORPTION AND HIGH TEMPERATURE REQUIREMENTS WERE SPECIFIED.

"F. IN REGARD TO LIECO'S ALLEGATIONS THAT THE SPECIFICATION REQUIREMENT VALUES ARE UNREALISTIC, IT MUST BE BORNE IN MIND THAT APPROPRIATE DOD MANUALS FORBID THE INCLUSION OF SPECIFICATION REQUIREMENTS AND TESTS THAT ARE BEYOND THE CURRENT STATE OF THE ART. CONVERSELY, REQUIREMENTS ARE INCLUDED THAT MAY REFLECT IMPROVEMENTS IN ITEMS THAT ONLY A LIMITED NUMBER OF MANUFACTURERS CAN PRODUCE. WHEN THE LATTER CASE OBTAINS, THE MILITARY SERVICES IN THEIR QUEST FOR THE MOST RELIABLE ITEMS HAVE NO OTHER CHOICE THAN TO INCLUDE THOSE REQUIREMENTS THAT HAVE BEEN PROVED THROUGH USE OF THE ITEMS UNDER FIELD OR SIMULATED FIELD CONDITIONS.'

THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT IS THE PRIMARY RESPONSIBILITY OF THE PROCUREMENT AGENCY. 17 COMP. GEN. 554, 19 ID. 587. PURSUANT TO 10 U.S.C. 2451 THE SECRETARY OF DEFENSE IS DIRECTED TO DEVELOP SINGLE SPECIFICATIONS, ELIMINATING OVERLAPPING AND DUPLICATE SPECIFICATIONS, AND REDUCING THE NUMBER OF KINDS OF ITEMS THAT ARE GENERALLY SIMILAR. IN VIEW THEREOF, AND SINCE IT APPEARS THAT THE SPECIFICATION INVOLVED WAS ADOPTED AFTER A CAREFUL STUDY OF THE NEEDS TO BE MET, THERE IS NO BASIS UPON WHICH WE COULD QUESTION AN AWARD UNDER THE INSTANT INVITATION.