B-168638, APR. 21, 1970

B-168638, APR. 21, 1970

CONTRACTS--SPECIFICATIONS--CONFORMABILITY OF EQUIPMENT, ETC; OFFERED- TECHNICAL DEFICIENCIES--SPECIFICATIONS PREPARED BY PRIVATE CONCERN OBJECTION BY REJECTED BIDDER THAT PRIVATE FIRM PREPARING SPECIFICATIONS FOR WATER IMPROVEMENT PROJECT UNDER CONTRACT WITH INDIAN TRIBE, FINANCED AND TECHNICALLY ASSISTED BY ECONOMIC DEVELOPMENT ADMINISTRATION AND INDIAN HEALTH SERVICE, RESPECTIVELY, HAD BEEN PARENT COMPANY OF SUCCESSFUL BIDDER AND WAS NOT IN POSITION TO IMPARTIALLY PREPARE AND EVALUATE SPECIFICATIONS IS WITHOUT MERIT SINCE EVEN HAD GOVERNMENT BEEN CONTRACT PARTY, ADMINISTRATIVE DETERMINATIONS RESPECTING TECHNICAL MATTERS ARE ACCORDED FINALITY, ABSENT CLEAR SHOWING OF IMPROPRIETY OR GROSS ERROR--HERE LACKING --AND RECORD EVIDENCED PROTESTANT FAILED TO PROVIDE SPECIFIED METHOD OF TREATMENT REQUIRED. SEE 36 COMP. GEN. 251 (1956).

TO KEYSTONE ENGINEERING & PRODUCTS COMPANY, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 11, 1969, WITH ENCLOSURES, PROTESTING THE SPECIFICATIONS PREPARED BY THE FIRM OF CORNELL, HOWLAND, HAYES & MERRYFIELD (CH2M), SEATTLE, WASHINGTON, FOR A WATER SYSTEM IMPROVEMENTS PROJECT AT NEAH BAY, WASHINGTON, ON THE MAKAH INDIAN RESERVATION. TECHNICAL ASSISTANCE IN THE MATTER WAS PROVIDED BY THE INDIAN HEALTH SERVICE, HEALTH SERVICES AND MENTAL HEALTH ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE. THE ECONOMIC DEVELOPMENT ADMINISTRATION, DEPARTMENT OF COMMERCE, IS TO PROVIDE FINANCIAL ASSISTANCE FOR THE DEVELOPMENT AND COMPLETION OF THE PROJECT.

YOUR PROTEST CONCERNS SECTION P11D OF THE SPECIFICATIONS, ENTITLED "FLOCCULATION, SEDIMENTATION, AND FILTRATION FACILITIES." YOU INDICATED THAT ONLY ONE FIRM, NEPTUNE MICRO-FLOC, INCORPORATED, HAD BEEN APPROVED AS A SUPPLIER OF THE WATER PURIFICATION UNITS INVOLVED, THAT THIS COMPANY'S QUOTED PRICE WAS $46,000 AND THAT YOUR STANDARD PRICE FOR EQUIPMENT OF EQUAL PERFORMANCE IS UNDER $30,000. YOU STATED THAT THIS IS THE SECOND TIME THAT YOU HAVE HAD OCCASION TO PROTEST TO OUR OFFICE CONCERNING INSTANCES IN WHICH NEPTUNE MICRO-FLOC, INCORPORATED, "WAS THE UNDULY FAVORED PARTY." THE PREVIOUS CASE WAS CONSIDERED IN OUR DECISION TO YOU, B-165580, MARCH 21, 1969, WHEREIN REFERENCE WAS MADE TO THE FACT THAT THE DEPARTMENT OF THE AIR FORCE ACKNOWLEDGED THAT THE PROCUREMENT WAS POORLY HANDLED BUT MAINTAINED THAT EQUIPMENT OF YOUR THEN CURRENT MANUFACTURE WAS TOO LARGE TO COMPLY WITH THE MAXIMUM SPECIFIED DIMENSION OF ANY SINGLE UNIT TO PERMIT READY PORTABILITY BY AIR.

THE RECORD SHOWS THAT CH2M SOLICITED INFORMATION FROM YOUR COMPANY IN REGARD TO WHETHER YOUR WATER PURIFICATION UNITS WOULD MEET THE REQUIREMENTS OF SECTION P11D OF THE SPECIFICATIONS FOR THE WATER SYSTEM IMPROVEMENTS PROJECT. YOU SUBMITTED DATA BY LETTER DATED NOVEMBER 14, 1969, AND YOU WERE ADVISED BY CH2M IN A LETTER DATED NOVEMBER 20, 1969, THAT YOUR SUBMITTAL WAS NOT APPROVED BECAUSE IT DID NOT MEET DESIGN CONCEPTS IN THESE RESPECTS: (1) NO EQUIPMENT HAD BEEN PROPOSED TO FORM A SETTLEABLE FLOC, AND (2) NO EQUIPMENT HAD BEEN PROPOSED FOR SEDIMENTATION OF A SETTLEABLE FLOC.

YOU PROTESTED THIS DECISION, CONTENDING THAT YOUR PROPOSED REACTOR FORMS A SETTLEABLE FLOC AND THAT IT ALSO ACCOMPLISHES SEDIMENTATION. YOU STATED THAT YOUR EQUIPMENT WAS GUARANTEED TO MEET PERFORMANCE SPECIFICATIONS AND THAT THIS WOULD SEEM TO BE THE PRIMARY CONSIDERATION. YOU SUGGESTED, IN EFFECT, THAT CH2M COULD NOT HAVE BEEN IMPARTIAL IN THE MATTER BECAUSE IT WAS YOUR UNDERSTANDING THAT NEPTUNE MICRO-FLOC, INCORPORATED, IS A FORMER SUBSIDIARY OF CH2M. ALTHOUGH THERE APPEARS TO BE A DIFFERENCE BETWEEN THE RATED CAPACITIES OF YOUR EQUIPMENT AND THAT PRODUCED BY NEPTUNE MICRO- FLOC, INCORPORATED, YOU CONTEND THAT YOUR EQUIPMENT SHOULD HAVE BEEN CONSIDERED EQUAL TO THE MICRO-FLOC EQUIPMENT EVEN IF YOUR PLANT WOULD HAVE HAD TO BACKWASH AS MANY AS FOUR TIMES DAILY IN ORDER TO EQUAL THE CAPACITY OF A MICRO-FLOC PLANT OPERATING WITH A TWICE A DAY BACKWASH FREQUENCY.

IT HAS BEEN REPORTED BY THE ECONOMIC DEVELOPMENT AGENCY, DEPARTMENT OF COMMERCE, THAT THE WATER SUPPLY FOR THIS PROJECT CONSISTS OF SURFACE RUNOFF FROM AN UNMANAGED WATER SHED ON THE WESTERN SLOPE OF THE OLYMPIC MOUNTAINS. EXPERIENCE INDICATES THAT SEASONABLY HEAVY RUNOFF CAN BE EXPECTED TO CAUSE HIGHLY TURBID WATERS UNDER THESE CONDITIONS. FURTHER, LEACHING OF VEGETABLE MATTER CAN CAUSE DISCOLORATION OF THE WATER. CURRENT APPROVED PRACTICE FOR TREATMENT OF RAW WATER OF THIS EXPECTED QUALITY INCLUDES FLOCCULATION AND SEDIMENTATION PRIOR TO FILTRATION.

IT IS ALSO REPORTED THAT YOUR ORIGINAL SUBMISSION SPECIFICALLY EXCLUDED THE FORMATION OF A SETTLEABLE FLOC AS REQUIRED BY SECTION P11D OF THE SPECIFICATIONS FOR THE PROJECT. IN YOUR REVISED SUBMISSION, YOU STATED THAT A FLOC IS FORMED AND WILL SETTLE IN A SETTLING BASIN, BUT NO SETTLING BASIN IS INDICATED IN YOUR DESIGN. RESEARCH INDICATES THAT THERE ARE SEVERAL MANUFACTURERS OF THE SPECIFIED TYPE OF EQUIPMENT IN ADDITION TO NEPTUNE MICRO-FLOC, INCORPORATED, INCLUDING YOUR COMPANY. THE SPECIFICATION REFERS TO THE MANUFACTURER, NEPTUNE MICRO-FLOC, INCORPORATED, AS A STANDARD OF PERFORMANCE AND WORKMANSHIP, BUT OTHER MANUFACTURERS, INCLUDING YOUR COMPANY, COULD HAVE BEEN APPROVED HAD THEY SUBMITTED PROPOSALS FOR EQUIPMENT PROVIDING THE SPECIFIED METHOD OF TREATMENT.

MR. RONALD POPKIN, CHIEF, SANITATION FACILITIES CONSTRUCTION BRANCH, INDIAN HEALTH SERVICE, IS REPORTED AS HAVING MADE THE FOLLOWING STATEMENTS IN REGARD TO YOUR PROTEST:

"SETTLING IS A COMMONLY USED PROCESS IN THE WATERWORKS INDUSTRY. WHERE TURBID WATERS ARE EXPECTED AND/OR IN THE ABSENCE OF INVESTIGATIONS THAT INDICATE IT TO BE UNNECESSARY, SETTLING IS GENERALLY PROVIDED AS A TREATMENT PROCESS. TURBID WATERS ARE EXPECTED AT NEAH BAY AND THOROUGH INVESTIGATIONS HAVE NOT BEEN CONDUCTED. I DO NOT FEEL THAT CORNELL, HOWLAND, HAYES & MERRYFIELD OR THE INDIAN HEALTH SERVICE IS IN A POSITION TO DECIDE THAT A PROCESS GENERALLY USED IN THE PRODUCTION OF WATER CAN BE OMITTED.

"* * * KEYSTONE ENGINEERING WAS NOT ABLE TO PRODUCE OPERATING DATA THAT WOULD CAUSE ME TO CONTEST THE RECOMMENDATION OF THE PROFESSIONAL ENGINEERING FIRM OF CORNELL, HOWLAND, HAYES & MERRYFIELD."

WITH RESPECT TO YOUR STATEMENTS INDICATING THAT AN AFFILIATION EXISTED BETWEEN CH2M AND NEPTUNE MICRO-FLOC, INCORPORATED, THE REPORT OF THE ECONOMIC DEVELOPMENT ADMINISTRATION STATES THAT CH2M REPRESENTED THAT IT HAS NO FINANCIAL INTEREST IN NEPTUNE MICRO-FLOC, INCORPORATED, AND THAT, ALTHOUGH MR. ARCHIE RICE, PRESIDENT OF THE LATTER COMPANY, IS A DIRECTOR OF CH2M, MR. RICE REPORTEDLY HAS NO FINANCIAL INTEREST IN CH2M.

THE ECONOMIC DEVELOPMENT ADMINISTRATION FOUND NO EVIDENCE OF UNDUE FAVORITISM TO NEPTUNE MICRO-FLOC, INCORPORATED, AND ADVISED THAT IT IS NOT IN A POSITION TO QUESTION THE PROFESSIONAL JUDGMENT OF CH2M OR OF MR. POPKIN AS TO THE REQUIRED METHOD OF TREATMENT TO PROVIDE POTABLE WATER FROM A RAW WATER SUPPLY OF THE TYPE INVOLVED. ALSO, OUR ATTENTION WAS INVITED TO THE FACT THAT THE ECONOMIC DEVELOPMENT ADMINISTRATION IS MERELY PROVIDING FINANCIAL ASSISTANCE, AND THE CONTRACT OR CONTRACTS AWARDED FOR THE COMPLETION OF THE PARTICULAR PROJECT ARE TO BE BETWEEN THE MAKAH INDIAN TRIBE AND THE CONTRACTORS WHO WILL CONSTRUCT THE FACILITIES FOR THE TRIBE.

EVEN IN THE CASE OF PROCUREMENT BY THE UNITED STATES, WE HAVE STATED THAT THE CONTRACTING AGENCIES OF THE GOVERNMENT HAVE THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS. WE HAVE STATED, FURTHER, THAT THE GOVERNMENT IS NOT REQUIRED TO PURCHASE EQUIPMENT WITHOUT INTELLIGENT REFERENCE TO THE NEEDS TO BE SERVED OR TO BE PLACED IN A 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 NEEDS. SEE 36 COMP. GEN. 251 (1956).

IT APPEARS THAT THE REQUIREMENTS OF SECTION P11D OF THE SPECIFICATIONS PREPARED BY CH2M WERE NOT MORE RESTRICTIVE THAN NECESSARY AND THAT NEPTUNE MICRO-FLOC, INCORPORATED, WAS NOT AN "UNDULY FAVORED PARTY." ALSO, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE REFUSAL TO APPROVE YOUR WATER PURIFICATIONS EQUIPMENT WAS ARBITRARY OR NOT BASED UPON REASONABLE GROUNDS. WE HAVE CONSISTENTLY TAKEN THE POSITION THAT ADMINISTRATIVE DETERMINATIONS IN SUCH MATTERS SHOULD BE ACCORDED FINALITY IN THE ABSENCE OF A CLEAR SHOWING OF IMPROPRIETY OR GROSS ERROR, AND WE WOULD NOT BE WARRANTED IN CONSIDERING THAT THE REJECTION OF YOUR PROPOSED EQUIPMENT WAS IMPROPER EVEN IF THE GOVERNMENT WERE TO BE A PARTY TO THE CONTRACT OR CONTRACTS FOR THE COMPLETION OF THE WATER SYSTEM IMPROVEMENTS PROJECT AT NEAH BAY, WASHINGTON.

ACCORDINGLY, YOUR PROTEST TO OUR OFFICE IN THE MATTER IS DENIED.