B-162979, FEB. 14, 1968

B-162979, FEB. 14, 1968

BIDS - SPECIFICATIONS - RESTRICTIVE DECISION TO AMERICAN INSTRUMENT CO., INC. DENYING PROTEST THAT SPECIFICATIONS ISSUED BY NAVY FOR ONE BOOSTER COMPRESSOR, PISTON TYPE, FOR SUBMARINES ARE PROPRIETARY AND RESTRICTIVE OF COMPETITION. SINCE TYPE OF EQUIPMENT REQUIRED IS NOT PATENTED FEATURE AND IS AVAILABLE FROM TWO MANUFACTURERS THE SPECIFICATIONS ARE NOT PROPRIETARY OR RESTRICTIVE. THE REQUIREMENT REFLECTED A BONA FIDE NEED OF THE GOVT. AND THEREFORE NO BASIS EXISTS FOR OBJECTION TO AWARD TO THE LOWEST RESPONSIVE BIDDER.

TO AMERICAN INSTRUMENT CO., INC.:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 22 AND DECEMBER 11, 1967, PROTESTING THAT THE SPECIFICATIONS USED IN SOLICITATION FOR BIDS NO. N00600-68-B-0025 ARE PROPRIETARY IN NATURE AND RESTRICTIVE OF COMPETITION.

THE SOLICITATION WAS ISSUED BY THE NAVY PURCHASING OFFICE (NPO), WASHINGTON, D.C., ON SEPTEMBER 26, 1967, BASED ON A REQUIREMENT OF THE NAVAL SHIPS RESEARCH AND DEVELOPMENT CENTER (NSR-AND-DC), ANNAPOLIS, MARYLAND, FOR ONE BOOSTER COMPRESSOR, PISTON TYPE. SOLICITATIONS TO BID WERE ISSUED TO 68 COMPANIES AND THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY. THE DATE FOR BID OPENING WAS SCHEDULED FOR OCTOBER 27, 1967. YOUR LETTER OF OCTOBER 9, 1967, TO NPO PROTESTED THE RESTRICTIVE CHARACTER OF THE SPECIFICATIONS AND REQUESTED THAT THE SPECIFICATIONS BE MODIFIED TO PERMIT COMPETITION. THIS LETTER WAS FORWARDED TO THE NSR-AND-DC ON OCTOBER 11, 1967, FOR TECHNICAL REVIEW AND RECOMMENDATIONS. AFTER DUE CONSIDERATION AND TECHNICAL REVIEW DURING WHICH TIME TWO EXTENSIONS OF THE BID OPENING DATE WERE MADE, NSR-AND-DC BY LETTER DATED NOVEMBER 7, 1967, DECLINED TO CHANGE THE SPECIFICATIONS DUE TO MALFUNCTIONS EXPERIENCED WITH SIMILAR EQUIPMENT PREVIOUSLY PROCURED.

TWO BIDS WERE RECEIVED AND OPENED ON NOVEMBER 16, 1967. YOUR LOW BID OFFERED A DIAPHRAGM-TYPE COMPRESSOR IN LIEU OF A PISTON TYPE AS REQUIRED BY THE SPECIFICATIONS AND WAS DETERMINED TO BE TECHNICALLY NONRESPONSIVE. WE ARE ADVISED THAT A PISTON-TYPE COMPRESSOR BOOSTER WAS SPECIFIED BECAUSE OF THE PAST HISTORY OF FAILURE OF DIAPHRAGM-TYPE COMPRESSORS IN COMPRESSING ATMOSPHERIC AIR TO 5,000 POUNDS PER SQUARE INCH (PSI). IT IS ADMINISTRATIVELY REPORTED THAT MOISTURE IN ATMOSPHERIC AIR CREATES A CONDITION AT EXTREME PRESSURE WHICH IS DETRIMENTAL TO THE DIAPHRAGMS RESULTING IN SHORT DIAPHRAGM LIFE AND POOR DEPENDABILITY.

YOUR LETTER OF DECEMBER 11, 1967, STATES THAT WHILE YOU WERE WELL AWARE THAT SERIOUS MALFUNCTIONS EXISTED IN YOUR UNITS PROCURED UNDER CONTRACT NO. N600/61533/59583 DATED DECEMBER 14, 1962, THE CONTRACT WAS FOR COMPRESSORS OF RATHER DIFFERENT DESIGN AND SPECIAL NATURE THAN THE COMPRESSOR REQUIRED TO MEET THE REQUIREMENTS OF THE PRESENT SOLICITATION. YOU STATE FURTHER THAT THE OPERATING DEFICIENCIES INVOLVED IN THE COMPRESSORS SUPPLIED ON THAT CONTRACT WERE CORRECTED, AND THAT THESE COMPRESSORS THEN OPERATED SATISFACTORILY. IT IS REPORTED THAT YOUR COMPANY DISTRIBUTES A FRENCH COMPRESSOR MANUFACTURED BY THE CORBLIN COMPANY. THIS COMPRESSOR IS MANUFACTURED IN THE METRIC SYSTEM UTILIZING THE DIAPHRAGM PRINCIPLE OF COMPRESSION. YOUR COMPANY PROVIDES MOTOR DRIVE, ELECTRICAL SWITCH GEAR, ETC., TO RENDER THE COMPRESSOR COMPATIBLE WITH AMERICAN UTILITIES. FOR THE PURPOSE OF COMPRESSING DRY GASES (SUCH AS NITROGEN, HELIUM, ARGON, ETC., AND RELATIVELY LOW PRESSURE ATMOSPHERIC AIR, E.G., DIVING AIR), THESE UNITS ARE ACCEPTABLE AND CONSTITUTE THE MAJOR PORTION OF CONTRACTS ISSUED BY THE NAVY DEPARTMENT. HOWEVER, FOR COMPRESSING ATMOSPHERIC AIR IN THE 5,000 PSI RANGE FOR CHANGING AIR FLASKS IN NUCLEAR SUBMARINES, NAVY'S EXPERIENCE WITH THE CORBLIN COMPRESSORS HAS NOT BEEN ACCEPTABLE. THE USE OF HYDRAULICALLY OPERATED, DIAPHRAGM-TYPE, HIGH PRESSURE AIR COMPRESSION (YOUR PRODUCT) RAISES THE POSSIBILITY OF A RUPTURED DIAPHRAGM WHICH WOULD CONTAMINATE THE AIR SYSTEM OF SUBMARINES.

IT IS REPORTED THAT UNDER CONTRACTS N600/61533/59583 AND N600/61533/60916, THE NAVY PROCURED A TOTAL OF EIGHT AMERICAN INSTRUMENT COMPANY DIAPHRAGM-TYPE COMPRESSORS. DIAPHRAGM FAILURES AND OTHER MALFUNCTIONS HAVE BEEN EXPERIENCED ON ALL UNITS. TWO OF THE ABOVE COMPRESSORS (SHIPPED TO THE SAN FRANCISCO BAY NAVAL SHIPYARD, MARE ISLAND SITE) BECAME COMPLETELY INOPERATIVE AND REQUIRED REPLACEMENT BY RENTAL EQUIPMENT IN ORDER TO MEET NUCLEAR SUBMARINE SCHEDULES. REPEATED ATTEMPTS MADE BY YOUR SERVICE PERSONNEL AND ENGINEERS FROM THE CORBLIN COMPANY TO CORRECT DEFICIENCIES IN THE COMPRESSORS FAILED. THESE SAME UNITS WERE LATER SURVEYED AS BEING UNFIT FOR SUBMARINE WORK AND SHIPPED TO THE ANNAPOLIS DIVISION, NSR-AND DC, WHERE COMPLETE REWORK BY EXPERIENCED NAVY ENGINEERS HAS RENDERED THE COMPRESSORS ACCEPTABLE FOR SHORT-RUN TEST WORK. THE REMAINING SIX COMPRESSORS LOCATED IN PUGET SOUND NAVAL SHIPYARD, PORTSMOUTH NAVAL SHIPYARD AND PEARL HARBOR NAVAL SHIPYARD, ALL HAVE EXPERIENCED SHORT DIAPHRAGM LIFE WITH THE RESULT THAT ALL NEW PROJECTS FOR AIR COMPRESSORS SPECIFY PISTON-TYPE EQUIPMENT. THE UNSATISFACTORY PERFORMANCE OF THIS TYPE COMPRESSORS HAS BEEN A FINANCIAL BURDEN AND A SAFETY FACTOR AND PLACED THE NAVAL SHIPYARDS IN A PRECARIOUS POSITION SUPPLYING HIGH-PRESSURE AIR TO POLARIS SUBMARINES.

IT IS FURTHER REPORTED THAT YOUR ALLEGATION THAT A DIFFERENT DESIGN IS INVOLVED IN THE CURRENT PROCUREMENT THAN THAT REQUIRED BY PRIOR CONTRACTS WHICH HAD SERIOUS MALFUNCTIONS IS DISPUTED SINCE (A) THE THIRD STAGE (DIAPHRAGM STAGE) OF THE COMPRESSORS PREVIOUSLY FURNISHED BY YOUR COMPANY ACCEPTED INPUT AIR FROM THE FIRST AND SECOND STAGE OF THE COMPRESSING SYSTEM; AND SINCE (B) THE COMPRESSOR SPECIFIED IN THE CURRENT PROCUREMENT WILL ACCEPT INPUT AIR FROM AN EXISTING SHIPYARD COMPRESSOR AND THAT FOR THE PURPOSE OF COMPARISON IN METHOD OF COMPRESSING AIR THE TWO UNITS ARE LIKE EQUIPMENT.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368; 33 ID. 586. THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.

THE NONRESTRICTIVE CHARACTER OF THE SPECIFICATION IS INDICATED BY THE FACT THAT SIMILAR PISTON-TYPE GAS BOOSTER EQUIPMENT IS OFFERED BY SPRAGUE ENGINEERING, DIVISION OF TELEDYNE, GARDENA, CALIFORNIA, AND BY FUTURE CRAFT CORPORATION, CITY OF INDUSTRY, CALIFORNIA, AND IS AVAILABLE TO ALL PURCHASERS. IT IS FURTHER REPORTED THAT THE BASIC DESIGN OF THE REQUIRED EQUIPMENT IS NOT A PATENTED FEATURE AND PISTON TYPE EQUIPMENT IS AVAILABLE FROM HASKEL ENGINEERING AND SUPPLY COMPANY AND SPRAGUE ENGINEERING COMPANY. FURTHER, WE ARE ADVISED THAT NONLUBRICATED, PISTON-TYPE COMPRESSION IS NOT A BROAD FIELD AND IS RELATIVELY NEW IN THE "STATE OF THE ART"; THEREFORE, IT IS EXPECTED THAT COMPETITIVE BIDDING WILL BE LIMITED UNTIL ADDITIONAL MANUFACTURERS BEGIN MANUFACTURING THIS TYPE OF EQUIPMENT. THEREFORE, YOUR DESIGNATION OF THE SPECIFICATION AS PROPRIETARY IS NOT FACTUALLY CORRECT SINCE THE DESIRED EQUIPMENT IS NOT MADE AND MARKETED BY ONLY ONE COMPANY HAVING THE EXCLUSIVE RIGHT TO MANUFACTURE AND SELL IT. WE DO NOT FIND THAT THE SPECIFICATION IS RESTRICTIVE SINCE THE REQUIREMENT FOR PISTON-TYPE EQUIPMENT AND POWER DRIVE SET FORTH IN PARAGRAPHS 3.1, 3.3.1 AND 3.3.2, WHICH IS THE BASIS FOR YOUR PROTEST, MAY BE MET BY ANY BIDDER DESIRING TO DO SO. THE REQUIREMENTS PRESCRIBED BY THE SOLICITATION FOR BIDS REFLECTED A BONA FIDE DETERMINATION OF THE MINIMUM NEEDS OF THE GOVERNMENT, ADOPTED AFTER A CAREFUL STUDY OF THE NEED TO BE MET IN THE LIGHT OF THE PAST EXPERIENCE OF THE NAVY.

ACCORDINGLY, ON THE RECORD, NO BASIS EXISTS UPON WHICH OUR OFFICE MAY PROPERLY OBJECT TO AN AWARD TO THE LOWEST RESPONSIVE BIDDER. YOUR PROTEST IS THEREFORE DENIED.