B-166241, MAY 1, 1969

B-166241, MAY 1, 1969

TO INDUSTRIAL ACOUSTICS COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1969, WITH ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR LOW BID SUBMITTED UNDER INVITATION FOR BIDS (IFB) NO. N00207-69-B-0020, ISSUED ON NOVEMBER 1, 1968, BY U.S. NAVAL AIR STATION, JACKSONVILLE, FLORIDA.

THE INVITATION REQUESTED BIDS ON TWO SOUND SUPPRESSORS FOR USE WITH A- 7A/B/D/E SERIES AIRCRAFT IN ACCORDANCE WITH SPECIFICATIONS ATTACHED THERETO. AMONG OTHER THINGS, THE SPECIFICATIONS REQUIRED: "1.12 THE A-7 AIRCRAFT, WHEN POSITIONED IN THE GOVERNMENT FURNISHED WHEEL CHOCKS, WILL HAVE DIMENSIONS AND REFERENCE LINES AS SHOWN ON THE ATTACHED SHEETS 1, 2, AND 3 OF FIGURE 3-1. ,1.13 THE EXHAUST SILENCER SHALL ALLOW FOR A TAILPIPE MOVEMENT OF PLUS OR MINUS 4 INCES WHEN THE AIRCRAFT HAS BEEN SECURED IN TO THE SUPPRESSOR TO CONFORM TO THE AIRCRAFT STATIC THREE POINT POSITION. SEE ATTACHED FIGURE 3-1, SHEET 1 NOTE (1). "2.9 ANY PARTS OF THE EXHAUST SILENCER THAT ARE USED TO ENCLOSE PORTIONS OF THE AIRCRAFT SHALL MAKE NO PHYSICAL CONTACT WITH THE AIRCRAFT WHEN IT IS BACKED INTO THE SILENCER. THE GAP BETWEEN THE AIRCRAFT AND THE SILENCER MUST BE PNEUMATICALLY SEALED WITH FAIRPRENE OR EQUAL MATERIAL AFTER THE AIRCRAFT IS POSITIONED. SEALING BETWEEN THE AIRCRAFT AND SUPPRESSOR SHALL ALLOW FOR SUCH MOVEMENT BY BEING RESILIENT AND YIELDING PLUS OR MINUS 4 INCHES TO PREVENT DAMAGE TO THE AIRCRAFT SKIN DUE TO AIRCRAFT MOVEMENT DURING RUN -UP. "2.12 MAIN GEAR WHEEL GUIDES AND A NOSE WHEEL GUIDE SHALL BE PROVIDED BY THE GOVERNMENT. THE MAIN WHEEL GUIDES SHALL BE INSTALLED DIRECTLY IN FRONT OF GOVERNMENT-FURNISHED MAIN WHEEL CHOCKS. THE SILENCER SHALL BE INSTALLED TO MATE WITH THE A-7 AIRCRAFT WHEN POSITIONED TO THE EXISTING WHEEL CHOCKS. CONSIDERATION SHALL BE GIVEN TO THE EASE OF POSITIONING THE AIRCRAFT AND THE INLET SILENCER. "2.13 CONSIDERATION SHALL BE GIVEN TO THE MOVEMENT OF THE AIRCRAFT, IN VARIOUS POWER CONFIGURATIONS OF PLUS OR MINUS 4 INCHES IN A 360 DEGREE CIRCLE. THE AIRCRAFT WILL BE RESTRAINED SOLELY BY GOVERNMENT-FURNISHED MAIN WHEEL CHOCKS.' WHILE FIGURE 3-1 MENTIONED IN PARAGRAPHS 1.12 AND 1.13 SHOWS THE AIRCRAFT'S STATIC THREE POINT POSITION TO BE 5 DEGREES 40 MINUTES, THE HEIGHT OF THE TAILPIPE CENTERLINE WHEN THE AIRCRAFT IS IN THAT POSITION IS NOT MENTIONED THEREIN OR ELSEWHERE IN THE INVITATION, ALTHOUGH IT IS REPORTED THAT ACTUAL MEASUREMENT ESTABLISHES SUCH HEIGHT AS 52 INCHES. THE INVITATION FURTHER REQUIRED THAT DESCRIPTIVE LITERATURE BE FURNISHED AS A PART OF THE BID TO ESTABLISH THE DETAILS OF THE PRODUCTS THE BIDDER PROPOSED TO FURNISH AS TO DESIGN AND PERFORMANCE CHARACTERISTICS, AND PROVIDED THAT FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMED TO THE SPECIFICATIONS AND OTHER REQUIREMENTS WOULD REQUIRE REJECTION OF THE BID.

FOUR BIDS WERE RECEIVED AND OPENED ON DECEMBER 16, 1968, AND IT APPEARED THAT YOUR COMPANY SUBMITTED THE LOWEST BID. THE BIDS WERE REFERRED TO THE NAVAL AIR REWORK FACILITY FOR TECHNICAL REVIEW AND RECOMMENDATION. JANUARY 20, 1969, THE TECHNICAL PERSONNEL OF THE FACILITY RECOMMENDED THAT YOUR LOW BID BE REJECTED AS NONRESPONSIVE TO THE SPECIFICATIONS ON THE BASIS THAT YOUR DESCRIPTIVE LITERATURE SHOWED A SUPPRESSOR DESIGN THAT REQUIRED THE AIRCRAFT TO BE ON RAMPS IN A HORIZONTAL POSITION, WHICH REQUIREMENTS DID NOT CONFORM TO THE SPECIFICATIONS. DURING YOUR TELEPHONE CALL CONCERNING THE STATUS OF YOUR BID, ON JANUARY 22, 1969, YOU WERE ADVISED THAT YOUR BID WAS NONRESPONSIVE AND WOULD BE REJECTED. YOU WERE ALSO ADVISED THAT THE DRAWING FURNISHED WITH YOUR BID SHOWED THE AIRCRAFT TAILPIPE IN A HORIZONTAL POSITION AT A CENTERLINE HEIGHT OF 72 INCHES, WHEREAS, THE SPECIFICATIONS REQUIRED THAT THE SUPPRESSOR BE DESIGNED WITH THE AIRCRAFT IN THE STATIC POSITION OF 5 DEGREES 40 MINUTES TO THE HORIZONTAL WHICH WOULD PLACE THE TAILPIPE CENTERLINE AT 52 INCHES.

BY LETTER OF JANUARY 24, 1969, TO THE CONTRACTING OFFICER, YOU PROPOSED THE USE OF A FLOATING ADAPTOR WITH YOUR SUPPRESSOR AND STATED THAT THE LETTER "WILL CONFIRM DISCUSSIONS OF THIS DATE WITH REGARD TO THE DYNAMIC MOVEMENT OF THE A-7 AIRCRAFT AND THE NEED FOR A FLOATING ADAPTOR TO COMPENSATE FOR AIRCRAFT VARIATIONS, BOTH STATIC AND DYNAMIC.' SUCH USE OF A FLOATING ADAPTOR WAS NOT MENTIONED IN YOUR BID. BY LETTER DATED FEBRUARY 4, 1969, THE CONTRACTING OFFICER AGAIN INFORMED YOU THAT YOUR BID WAS NONRESPONSIVE FOR THE REASON THAT PARAGRAPH 1.13 OF THE SPECIFICATION PLACED THE AIRCRAFT FUSELAGE, WHEN IN THE STATIC THREE POINT POSITION, AT AN ANGLE OF 5 DEGREES 40 MINUTES TO THE HORIZONTAL, AND THE TAILPIPE OF THE AIRCRAFT IN THAT POSITION HAS A TRANSITION SECTION ENTRANCE CENTERLINE HEIGHT OF 52 INCHES, WHEREAS YOU OFFERED A SUPPRESSOR WITH A TRANSITION SECTION CENTERLINE HEIGHT OF 72 INCHES. YOU WERE FURTHER ADVISED THAT SHOULD SUCH HEIGHT OF 72 INCHES BE REDUCED TO 52 INCHES AS REQUIRED BY THE SPECIFICATIONS, THERE WOULD BE INSUFFICIENT CLEARANCE BETWEEN THE AIRCRAFT RUDDER AND THE SECONDARY INTAKE. THE CONTRACTING OFFICER ALSO INFORMED YOU THAT REPRESENTATIONS MADE SUBSEQUENT TO BID OPENING COULD NOT BE CONSIDERED IN DETERMINING WHETHER YOUR BID WAS RESPONSIVE. FURTHER, THAT INASMUCH AS THE DESCRIPTIVE LITERATURE FURNISHED WITH YOUR BID FAILED TO SHOW CONFORMANCE TO THE SPECIFICATIONS YOUR BID HAD BEEN REJECTED AS PROVIDED BY THE DESCRIPTIVE LITERATURE CLAUSE, AND THAT AWARD HAD BEEN MADE TO THE NEXT LOW BIDDER, KOPPERS COMPANY, INC.

IT IS REPORTED THAT THE CONTRACTING OFFICER DID NOT UNDERSTAND EITHER YOUR LETTER OF JANUARY 24 OR YOUR PREVIOUS DISCUSSIONS AS CONSTITUTING A PROTEST PRIOR TO AWARD OF A CONTRACT SO AS TO REQUIRE THE PROCEDURES SET OUT IN PARAGRAPH 2-407.9 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). AFTER REVIEWING YOUR LETTER OF JANUARY 24 AND THE REPORTS OF YOUR DISCUSSIONS WITH THE CONTRACTING PERSONNEL, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER WAS CLEARLY ON NOTICE THAT YOU WERE MAKING A FORMAL PROTEST TO AN AWARD OF THE CONTRACT TO THE NEXT LOW BIDDER.

YOUR PROTEST IS BASED MAINLY ON THE CONTENTION THAT THE CONTRACTING OFFICER'S CONCLUSION THAT YOUR BID WAS NONRESPONSIVE WAS NOT BASED ON THE SPECIFICATIONS OR ON YOUR FAILURE TO ADHERE TO THE SAME, BUT ON THE INTERPRETATION OF THE SPECIFICATIONS BY THE ENGINEERS INVOLVED IN THE EVALUATION. YOU REFER TO THE REQUIREMENT THAT THE AIRCRAFT MUST BE IN AN ANGLE OF 5 DEGREES 40 MINUTES TO THE HORIZONTAL, AND CLAIM THAT THE SPECIFICATIONS DO NOT INDICATE WHETHER THIS IS AN OPERATING CONDITION. YOU FURTHER ALLEGE THAT NOWHERE IN THE SPECIFICATIONS OR DRAWING WAS IT INDICATED THAT THE ENTRANCE CENTERLINE HEIGHT OF THE TAILPIPE WAS 52 INCHES, AND THAT SUCH DISTANCE MUST BE COMPUTED EITHER BY MEASURINGUNSCALED DRAWINGS OF THE PLANE OR MEASURING THE PLANE AT THE SITE.

AS STATED ABOVE, THE DESCRIPTIVE LITERATURE REQUIREMENT OF THE INVITATION PROVIDED THAT THE FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE SOUND SUPPRESSORS CONFORM TO THE SPECIFICATIONS "WILL REQUIRE REJECTION OF THE BID.' PARAGRAPH 2-404.2 (A) OF ASPR REQUIRES REJECTION OF ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION. BASED ON THE TECHNICAL EVALUATION OF THE LITERATURE SUBMITTED WITH YOUR BID, IT WAS DETERMINED THAT THE SOUND SUPPRESSOR OFFERED BY YOU DEVIATED MATERIALLY FROM THE SPECIFICATIONS IN THAT YOUR BID PROPOSED THE USE OF RAMPS UNDER THE MAIN WHEELS OF THE AIRCRAFT TO ELEVATE THE TAILPIPE TO A HORIZONTAL POSITION AND TO THE CENTERLINE HEIGHT OF 72 INCHES ABOVE GROUND LEVEL WHICH WAS REQUIRED FOR MATING THE TAILPIPE WITH THE TRANSITION SECTION OF THE SUPPRESSOR DEPICTED IN YOUR BID. ADDITIONALLY, IT IS REPORTED THAT RAMPS WOULD CREATE A SAFETY HAZARD AND MAKE POSITIONING OF THE PLANE MORE DIFFICULT. WE AGREE WITH THE ADMINISTRATIVE POSITION THAT THE SPECIFICATION OF 72 INCHES FOR THE CENTERLINE OF THE TRANSITION SECTION OF YOUR SUPPRESSOR AND THE ATTENDANT REQUIREMENT FOR ELEVATING THE TAILPIPE TO THAT HEIGHT THROUGH THE USE OF RAMPS, MUST BE REGARDED AS MATERIAL DEVIATIONS WHICH COULD NOT BE WAIVED AND REQUIRED REJECTION OF YOUR BID UNDER THE DESCRIPTIVE LITERATURE PROVISIONS OF THE INVITATION AND ASPR 2-404.2 (A). IT IS ALSO WELL SETTLED THAT DISCUSSIONS OF MATTERS INTRODUCED AFTER BID OPENING, SUCH AS YOUR PROPOSED USE OF A FLOATING ADAPTOR, COULD NOT ALTER THE NONRESPONSIVENESS OF YOUR BID. 40 COMP. GEN. 132.

WHILE IT APPEARS, AS YOU CONTEND, THAT THE INVITATION DID NOT SPECIFICALLY STATE THAT THE 5 DEGREES 40 MINUTES ATTITUDE OF THE PLANE SHOWN IN FIGURE 3-1 WOULD BE THE POSITION OF THE PLANE WHEN OPERATING WITH THE SOUND SUPPRESSOR, OR THAT THE TAILPIPE WOULD BE AT A HEIGHT OF 52 INCHES DURING SUCH OPERATIONS, IT IS CLEAR THAT THE INVITATION DID NOT PROVIDE FOR THE USE OF RAMPS UNDER THE MAIN WHEELS, OR FOR OPERATION IN A HORIZONTAL POSITION, OR FOR ELEVATION OF THE TAILPIPE BY EXTERNAL MEANS TO A CENTERLINE DISTANCE FROM THE GROUND OF 72 INCHES AS PROPOSED IN YOUR BID. FURTHER, WE BELIEVE THAT THE 5 DEGREES 40 MINUTES STATIC THREE POINT ATTITUDE IS REASONABLY ESTABLISHED AS THE OPERATING POSITION OF THE AIRCRAFT BY THE ABOVE QUOTED PROVISIONS OF THE INVITATION WHICH SHOW THAT THE PLANE IS TO BE BACKED INTO THE SUPPRESSOR, WITHOUT PHYSICAL CONTACT THEREWITH, TO THE POSITION ESTABLISHED BY THE EXISTING WHEEL CHOCKS, AND SECURED TO THE SUPPRESSOR TO CONFORM TO THE STATIC THREE POINT POSITION SHOWN IN FIGURE 3-1. ALTHOUGH WE AGREE WITH YOUR CONTENTION THAT THE INVITATION SHOULD HAVE SPECIFICALLY SHOWN THE CENTERLINE HEIGHT OF THE TAILPIPE FOR MATING WITH THE SUPPRESSOR (AND WE ARE THEREFORE CALLING THIS MATTER TO THE ATTENTION OF THE SECRETARY OF THE NAVY), WE NOTE, HOWEVER, THAT YOU COULD HAVE OBTAINED SUCH INFORMATION EITHER BY A CALL TO THE PERSON DESIGNATED IN THE INVITATION OR DURING YOUR VISIT TO THE SITE. ALTHOUGH MEASURING THE AIRCRAFT IN THE FIELD WAS NOT A REQUIREMENT, PARAGRAPH 2.1 OF THE SPECIFICATION STATED THAT THE AIRCRAFT MAY BE OBSERVED BY PROSPECTIVE BIDDERS. IT WAS ALSO THE BIDDERS' RESPONSIBILITY TO SEEK AN EXPLANATION OR CLARIFICATION OF ANY QUESTIONS WHICH INVOLVED AN INTERPRETATION OF THE SPECIFICATION ACCORDING TO PARAGRAPH 3 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS.