B-163724, MAY 6, 1968

B-163724, MAY 6, 1968

TO JULIAN A. MCDERMOTT CORPORATION:

WE REFER TO YOUR TELEGRAM OF MARCH 5, 1968, AND LETTERS OF MARCH 6 AND 27, 1968, PROTESTING THE REJECTION OF YOUR BID SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. 85-68-B FOR A QUANTITY OF BEACON LIGHTS AND LENSES.

THE SUBJECT INVITATION FOR BIDS WAS ISSUED ON JANUARY 2, 1968, BY THE UNITED STATES COAST GUARD SUPPLY CENTER, BROOKLYN, NEW YORK. BIDS WERE OPENED ON FEBRUARY 5, 1968, AS SCHEDULED. FOUR BIDS WERE RECEIVED. YOUR BID WAS THE LOWEST RECEIVED OVERALL, ALTHOUGH IT WAS NOT LOW ON THREE OF THE SIX ITEMS COMPRISING THE PROCUREMENT. SINCE THE INVITATION FOR BIDS PROVIDED THAT AWARD WAS TO BE MADE ON AN "ALL OR NONE BASIS" YOUR BID WAS REGARDED AS LOW.

THE COAST GUARD REPORTS THAT TWO OF THE FOUR BIDS WERE NONRESPONSIVE FOR FAILURE TO INCLUDE DRAWINGS AS REQUIRED BY THE FOLLOWING PROVISION OF THE INVITATION FOR BIDS: "NOTICE TO ALL BIDDERS

EACH BIDDER WILL BE REQUIRED TO SUBMIT ENGINEERING DRAWINGS AND PHOTOMETRIC AND CHROMATRICITY (SIC) TEST DATA AS PART OF THE BID. FAILURE TO DO SO WILL BE CONSIDERED NON-RESPONSIVE TO THE D.'

IT IS FURTHER REPORTED THAT YOUR BID, ALONG WITH THAT SUBMITTED BY ELASTIC STOP NUT CORPORATION OF AMERICA WAS FORWARDED TO COAST GUARD HEADQUARTERS FOR TECHNICAL EVALUATION. A TECHNICAL EVALUATION WAS MADE BY THE CIVIL ENGINEERING STAFF WHICH RESULTED IN A FINDING THAT YOUR BID FAILED TO COMPLY WITH THE TECHNICAL REQUIREMENTS OF THE INVITATION FOR BIDS. THE CONTRACTING OFFICER ACCEPTED THIS TECHNICAL EVALUATION AND DETERMINED THAT YOUR BID WAS NON-RESPONSIVE. THE BID OF ELASTIC STOP NUT WAS FOUND TO BE RESPONSIVE AND A CONTRACT WAS AWARDED TO THAT COMPANY ON FEBRUARY 28, 1968, FOR 600 LIGHTS AND 300 LENSES IN THE TOTAL AMOUNT OF $66,835; ALL DELIVERIES TO BE COMPLETED IN 90 DAYS.

THE CONTRACTING OFFICER REPORTS THAT ON FEBRUARY 28, 1968, MR. JULIAN A. MCDERMOTT OF YOUR COMPANY TELEPHONED HIM REQUESTING THE REASONS WHY YOUR COMPANY'S BID HAD NOT BEEN ACCEPTED. THE CONTRACTING OFFICER INFORMED MR. MCDERMOTT THAT THE BID WAS REJECTED AS NON RESPONSIVE FOR THE FOLLOWING REASONS (AS DETERMINED BY THE TECHNICAL EVALUATION PREVIOUSLY MENTIONED):

"/A) THE DRAWING SUBMITTED IS NOT SUFFICIENTLY DETAILED TO PERMIT A DETERMINATION AS TO WHETHER THE BIDDER MEETS THE MECHANICAL REQUIREMENTS OF REFERENCE (B) (PURCHASE DESCRIPTION NO. 183 OF NOVEMBER, 1966)

(B) THE CABLE GRIP AND PLUG REQUIRED BY PARAGRAPH 3.2.3 OF REFERENCE (B) WAS NOT INDICATED AS BEING PROVIDED.

(C) THE LENS MUST BE ATTACHED TO THE LENS RING SO THAT BOTH MAY BE SWUNG AWAY FROM THE LANTERN BASE TOGETHER WHEN THE LANTERN IS OPENED. THIS WAS NOT INDICATED ON THE DRAWING.

(D) NEITHER THE PHOTOMETRIC NOR THE CHROMATICITY DATA SUBMITTED WITH THE BID ARE CONSIDERED TO BE -TEST DATA-. THE PHOTOMETRIC DATA INDICATES THAT THE MINIMUM LENS-TO-LAMP CANDLEPOWER RATIOS FOR RED AND GREEN WILL BE 3.5 AND 2.5 WHEREAS PARAGRAPH 3.4 OF REFERENCE (B) REQUIRES MINIMUMS OF 3.6 AND 2.7 RESPECTIVELY.

(E) THE MCDERMOTT CORPORATION IS NOT KNOWN TO BE A MANUFACTURER OF OPTICAL EQUIPMENT OR TO HAVE ANY EXPERIENCE IN THE FIELD OF SIGNAL LIGHTING.'

IN YOUR LETTER OF MARCH 6, 1968, YOU ASSERT THAT THE COAST GUARD'SFINDING THAT YOUR BID IS NON-RESPONSIVE IS NOT JUSTIFIED AND THAT THE STATED DEFICIENCIES ARE EITHER MINOR OR NONEXISTENT. IN THAT CONNECTION YOU CONTEND THAT FULL WORKING DRAWINGS WERE NOT REQUIRED AND THAT YOU GAVE ALL THE NECESSARY DETAILS REQUIRED AT THE BIDDING STAGE OF THE PROCUREMENT. AS AN EXAMPLE, YOU CITE PARAGRAPH 3.2.2 OF THE PURCHASE DESCRIPTION WHICH REQUIRES THAT PROVISION BE MADE FOR THE ATTACHMENT OF THE LENS TO THE RING AND CITES DRAWING NO. 120014. HOWEVER, YOU STATE THAT DRAWING 120014 DOES NOT SHOW SUCH AN ATTACHMENT. IN YOUR OPINION THIS IS A MINOR POINT IN ANY EVENT AND YOU SAY THAT THE ATTACHMENT "WOULD BE FURNISHED IF REQUIRED ON THE PROTOTYPE LATER TO BE UBMITTED".

AS TO THE QUESTION OF CHROMATICITY OF THE LENS YOU SAY THERE SHOULD BE NO QUARREL IN THIS AREA IN VIEW OF THE FACT THAT YOU SUBMITTED WITH YOUR BID A LETTER FROM ROHM AND HAAS, THE MANUFACTURER OF THE SPECIFIED PLASTIC MOULDING POWDER, CERTIFYING AS TO COMPLIANCE WITH THE APPROPRIATE MILITARY SPECIFICATION.

BY LETTER OF MARCH 27, 1968, YOUR POSITION IS FURTHER AMPLIFIED AS FOLLOWS:

"WE ARE ALSO ENCLOSING PHOTOMETRIC TEST DATA AND CHROMATICITY DATA. THE LENS-TO-LAMP CANDLEPOWER RATIO-TAKEN THROUGH 360 DEGREE IN AZIMUTH IN THE FOCAL PLANE OF THE LANTERN EXCEEDS THE VALUES REQUIRED IN THE SPECIFICATIONS:

PLOTTED GRAPH

SPECIFICATION SUBMITTED

TYPE I CLEAR 12.5 12.5

TYPE II GREEN 2.7 2.8

TYPE III RED 3.6 3.7 USING THE SPECIFICATION AS A BASIS FOR DESIGN WE MADE NO EFFORT TO EXCEED ITS VALUES IN THE ORIGINAL TESTS. AS LONG AS WE EQUAL OR EXCEED THESE VALUES, THE REQUIREMENTS WOULD BE MET. OUR ONLY PURPOSE WAS TO ASSURE OURSELVES AND THE COAST GUARD OF THE PRACTICABILITY OF THESE DESIGNS. THERE IS NO QUESTION THAT OUR ACTUAL PRODUCTION VALUES WILL EXCEED THESE VALUES. REGARDING THE CHROMATICITY REQUIREMENTS THE LETTER OF CERTIFICATION FROM ROHM AND HAAS COMPANY WOULD SUFFICE. THE CABLE GRIP AND PLUG ARE STANDARD PARTS AND NO DETAIL IS REQUIRED ANY MORE THAN BOLT THREADS, NUTS, ETC., AT THE BIDDING STAGE. AS TO THE FASTENINGS FOR THE LENS TO THE LENS RING, WE WOULD SUPPLY THIS. IT IS A MINOR POINT BUT IT IS NOT REQUIRED ON THE COAST GUARD DRAWING USED AS A BASIS FOR BIDDING.'

AS NOTED PREVIOUSLY, THE INVITATION FOR BIDS REQUIRED THE SUBMISSION OF "ENGINEERING" DRAWINGS AND "PHOTOMETRIC AND CHROMATICITY TEST DATA" AS PART OF THE BID WITH NOTICE THAT FAILURE TO DO SO WOULD BE "CONSIDERED NON -RESPONSIVE TO THE BID". WHILE THE ABOVE PROVISION STANDING ALONE IS PROBABLY NOT SUFFICIENTLY DESCRIPTIVE OF WHAT IS REQUIRED TO SAVE THE INVITATION FOR BIDS FROM BEING DECLARED FATALLY DEFECTIVE (SEE 42 COMP. GEN. 737), OTHER PROVISIONS OF THE INVITATION FOR BIDS GIVE ADEQUATE NOTICE OF THE DETAILS NEEDED ON THE DRAWINGS TO BE SUBMITTED WITH THE BID SO THAT A FAILURE TO DO SO JUSTIFIES REJECTION OF THE BID AS NON- RESPONSIVE. FOR EXAMPLE, PURCHASE DESCRIPTION NO. 183 STATES:

"1.1 THIS PURCHASE DESCRIPTION COVERS THE GENERAL REQUIREMENTS FOR AN ELECTRIC MARINE LANTERN LESS LAMP CHANGER, FLASHER MECHANISM AND WIRING, DESIGNED FOR USE ON BUOYS AS AN AID TO MARITIME NAVIGATION.

3. REQUIREMENTS

"3.1 GENERAL. THE VARIOUS COMPONENTS DESCRIBED IN THIS PURCHASE DESCRIPTION SHALL CONSTITUTE A COMPLETE BUOY LANTERN, LESS LAMPCHANGER, FLASHER MECHANISM AND WIRING AS SHOWN ON DRAWING 120014 * * *

"3.2 DESIGN. THE LANTERN SHALL BE DESIGNED TO BE COMPATIBLE WITH THE COAST GUARD SOLID STATE FLASHER (DRAWING NO. 120006) COAST GUARD SIX-PLACE LAMPCHANGER (DRAWING NO. 107389) AND THE WALLACE TIERMAN FU 1297 LAMPCHANGER. THE EXACT DESIGN IS AT THE DISCRETION OF THE MANUFACTURER SUBJECT TO THE LIMITATIONS OF THE PURCHASE DESCRIPTION INCLUDING DRAWING NO. 120014. THE VARIOUS COMPONENTS OF THE LANTERN SHALL BE DESIGNED SO AS TO INCORPORATE THE FEATURES OUTLINED BELOW.

"3.2.1 LENS. THE LENS SHALL BE CLOSED-TOP, CIRCULAR IN CROSS SECTION AND SHALL BE MOLDED IN ONE PIECE. THE DIMENSIONS SHALL CONFORM TO THOSE SHOWN ON DRAWING NO. 120014 * * * .

"3.2.2 LENS RING. THE LENS SHALL BE ATTACHED TO A LENS RING AS SHOWN ON DRAWING NO. 120014. THE LENS RING SHALL HOLD THE LENS SECURELY IN POSITION WHEN SECURED TO THE LANTERN BASE. THE RING SHALL BE SECURED TO THE BASE BY THREE CAPTIVE, SLOTTED, HEX-HEAD SCREWS SPACED AT 120 DEGREE INTERVALS.

"3.2.3 LANTERN BASE. THE LENS RING (WITH LENS) SHALL BE ATTACHED BY HINGES TO A LANTERN BASE, SIMILAR TO THAT SHOWN IN DRAWING NO. 120014. THE BASE SHALL BE SO DESIGNED THAT IT MAY BE ATTACHED TO A SUPPORTING STRUCTURE BY FOUR BOLTS, ARRANGED AT 90 DEGREE INTERVALS ON A 7-7/8 - INCH DIAMETER PITCH CIRCLE. THE BOLT HOLES IN THE BASE SHALL BE TANGENTIALLY SLOTTED, OPEN AT ONE END AND SIZED FOR 1/2 - INCH BOLTS AS SHOWN ON DRAWING NO. 120014. THE LANTERN BASE SHALL CONTAIN TWO TAPPED 3/4 - INCH NPT HOLES AS SHOWN IN DRAWING NO. 120014. AS PROCURED, THE UPPER HOLD SHALL BE PLUGGED WITH A THREADED PLUG AND THE LOWER HOLE PROVIDED WITH A CABLE GRIP SIZED FOR 7/16 INCH DD RUBBER COVERED CABLE. BOTH THE PLUG AND CABLE GRIP SHALL BE MADE OF MATERIALS COMPATIBLE WITH THE REMAINDER OF THE LANTERN.

"3.4 CANDLEPOWER AND LIGHT TRANSMISSION * * * THE AVERAGE LENS-TO LAMP- CANDLEPOWER RATIO TAKEN THROUGH 360 DEGREE IN AZIMUTH IN THE FOCAL PLANE OF THE LANTERN SHALL NOT BE LESS THAN THE FIGURE SHOWN IN TABLE I.

TABLE I

LENS TYPE RATIO

TYPE I - CLEAR 12.5

TYPE II - GREEN 2.7

TYPE III - RED 3.6"

DRAWING NO. 120014, A COPY OF WHICH WAS FURNISHED OUR OFFICE AS A PART OF THE COAST GUARD'S REPORT ON YOUR PROTEST, DEPICTS THE BUOY LANTERN IN FOUR DIAGRAMS WHICH CONTAIN VARIOUS MINIMUM, MAXIMUM AND APPROXIMATE DIMENSIONS. THE FOUR DIAGRAMS INDICATE THE VARIOUS FEATURES OF THE LANTERN IN GENERAL OUTLINE SUCH AS BIRD SPIKE, LENS, LENS RING, DIRECTION AND CLEARANCE OF LENS, HINGE PIN, ETC., AND NEAR THE BOTTOM OF THE DRAWING APPEAR THE FOLLOWING "NOTES": "1. PIPE PLUG IN UPPER HOLE AND CABLE GRIP IN LOWER HOLE 2. DETAILS OF DESIGN TO SUIT MANUFACTURER 3. MATERIAL:SEE PURCHASE DESCRIPTION.'

THE DRAWING SUBMITTED WITH YOUR BID IS ENTITLED "PRELIMINARY ENGINEERING ASSEMBLY DRAWINGS" AND CONTAINED THE LEGEND "DO NOT USE FOR PRODUCTION". AN EXAMINATION OF THIS DRAWING DOES NOT REVEAL THAT A CABLE GRIP AND PLUG WILL BE FURNISHED AND, IN VIEW OF THE SPECIFIC REQUIREMENT OF 3.2.3 OF THE PURCHASE DESCRIPTION, WE CANNOT CONCLUDE THAT THESE ITEMS WERE "MINOR" POINTS SUCH AS "BOLT THREADS, NUTS, ETC.' EVEN MORE SIGNIFICANT, HOWEVER, IS THE FACT THAT YOUR DRAWING CONTAINS LITTLE DETAIL TO DESCRIBE EXACTLY WHAT YOU PROPOSED TO FURNISH. FOR EXAMPLE, THE DIMENSIONS GIVEN IN YOUR DRAWING FOR VARIOUS HEIGHTS, WIDTHS AND DIAMETERS OF THE BUOY LANTERN ARE STATED IN TERMS OF "MINIMUM" ,"MAXIMUM" AND "APPROXIMATE" FIGURES AND MERELY REITERATE, FOR THE MOST PART, THE MINIMUM, MAXIMUM AND APPROXIMATE DIMENSIONS SET FORTH IN DRAWING NO. 120014. IN OUR OPINION THE INVITATION FOR BIDS, BY CALLING FOR "ENGINEERING" DRAWINGS AND NOTIFYING BIDDERS THAT THE EXACT DESIGN IS AT THE DISCRETION OF THE MANUFACTURER SUBJECT TO THE LIMITATIONS OF THE PURCHASE DESCRIPTION AND DRAWING NO. 120014, REASONABLY PUT BIDDERS ON NOTICE THAT THEY WERE REQUIRED TO SUBMIT A DRAWING WHICH WOULD DESCRIBE THE LANTERN TO BE FURNISHED IN SUFFICIENT DETAIL TO ENABLE THE CONTRACTING OFFICER TO DETERMINE EXACTLY WHAT IT IS THAT YOU WERE OFFERING TO FURNISH. CERTAINLY, IT IS NOT UNREASONABLE TO ASSUME THAT THE COAST GUARD WANTED MORE IN TERMS OF DIMENSIONAL INFORMATION THAN WHAT WAS SHOWN ON ITS OWN DRAWING WHICH, WE HAVE BEEN ADVISED INFORMALLY, WAS PURPOSELY DRAWN WITH MINIMUM, MAXIMUM AND APPROXIMATE DIMENSIONS IN ORDER TO OBTAIN GREATER COMPETITION. ON THE BASIS OF THE FOREGOING CONSIDERATIONS WE AGREE WITH THE CONTRACTING OFFICER'S CONCLUSION THAT THE DRAWING YOU SUBMITTED IS NOT SUFFICIENTLY DETAILED TO PERMIT A DETERMINATION AS TO WHETHER THE PURCHASE DESCRIPTION REQUIREMENTS WOULD BE MET. IT IS TO BE NOTED THAT THE DRAWINGS SUBMITTED BY THE SUCCESSFUL BIDDER WERE NOT DEFICIENT IN ANY OF THESE RESPECTS.

OUR VIEW OF THIS CASE, AS ABOVE OUTLINED, MAKES AN EXTENDED DISCUSSION OF CHROMATICITY AND MINIMUM LENS-TO-LAMP-CANDLEPOWER RATIO UNNECESSARY. NOTE, HOWEVER, THAT THE GRAPH SUBMITTED WITH YOUR BID AS "TEST DATA" TO SHOW PHOTOMETRIC VALUES DOES APPEAR TO INDICATE A VALUE OF ONLY 2.5 OR 2.6 FOR GREEN. THE VALUE FOR RED APPEARS TO BE 3.7 AS YOU CONTEND. IN ANY EVENT, THE 2.5 OR 2.6 VALUE FOR GREEN DOES NOT MEET THE 2.7 VALUE REQUIRED BY THE PURCHASE DESCRIPTION WHICH ALONE WOULD APPEAR TO REQUIRE A DETERMINATION OF NON-RESPONSIVENESS. MOREOVER, WE DO NOT THINK THAT THE CHROMATICITY DATA SUBMITTED BY YOU CONSISTING OF A MERE STATEMENT IN A LETTER FROM ROHM AND HAAS COMPANY THAT ITS MOLDING POWDER COLORS MEET THE REQUIREMENTS OF MIL C-25050A (ASG) GRADE A, AVIATION RED AND AVIATION GREEN CONSTITUTES "TEST" DATA AS REQUIRED BY THE INVITATION FOR BIDS. OUR OPINION, TEST DATA, AT THE VERY LEAST, CONSISTS OF SOMETHING MORE THAN A STATEMENT FROM A PROPOSED SUPPLIER THAT ITS PRODUCT MOLDING POWDER COLORS WILL MEET APPLICABLE SPECIFICATIONS WHEN MOLDED IN CERTAIN SPECIFIED THICKNESSES. WE DO AGREE WITH YOUR CONTENTION THAT DRAWING NO. 120014 DOES NOT SHOW THE ATTACHMENT OF THE LENS TO THE RING AND ALSO WITH YOUR ASSERTION THAT THE FACT THAT YOU WERE UNKNOWN TO THE CONTRACTING OFFICER IS INAPPROPRIATE AND DOES NOT JUSTIFY THE REJECTION OF YOUR BID. IN THIS LATTER REGARD, IT HARDLY NEEDS EMPHASIZING THAT DETERMINATIONS OF RESPONSIBILITY MUST REST ON SUBSTANTIAL AND ADEQUATE GROUNDS AND WHETHER A PARTICULAR FIRM IS KNOWN OR UNKNOWN TO A CONTRACTING OFFICER IS NOT AN APPROPRIATE ELEMENT FOR CONSIDERATION IN MAKING SUCH A DETERMINATION. HOWEVER, SINCE YOUR BID WAS PROPERLY REJECTED ON ADEQUATE GROUNDS OF NON RESPONSIVENESS, THE LENS RING ATTACHMENT QUESTION AND THE CONTRACTING OFFICER'S UNFAMILIARITY WITH YOUR FIRM WAS NOT MATERIAL IN THIS PARTICULAR CASE.