B-174272, JAN 26, 1972

B-174272, JAN 26, 1972

BID PROTEST - AMBIGUITY OF SPECIFICATIONS DECISION DENYING THE PROTEST OF OXEQUIP HEALTH INDUSTRIES AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER A NEGOTIATED SOLICITATION ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PA. SINCE PROTESTANT WAS UNABLE TO COMPLY WITH SPECIFICATIONS WHICH WERE AMENDED IN RESPONSE TO ITS OBJECTIONS, THE PROTEST IS WITHOUT LEGAL BASIS AND MUST BE DENIED.

TO OXEQUIP HEALTH INDUSTRIES:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 14, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AWARD OF CONTRACT TO ANOTHER OFFEROR UNDER NEGOTIATED SOLICITATION NO. DSA120-72-R-0245, ISSUED AUGUST 2, 1971, BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA.

THE SOLICITATION CALLED FOR 1,992 REGULATORS IN COMPLIANCE WITH MILITARY STANDARD MIL-R-36557A AS WELL AS MARSHALL SPACE FLIGHT CENTER STANDARD MSFC-SPEC-101A DEALING WITH MATERIALS IN GASEOUS OXYGEN ENVIRONMENTS.

BY LETTER OF AUGUST 13, 1971, YOU NOTIFIED THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA THAT PARAGRAPHS 3.3.1 AND 3.3.4 OF THE SPECIFICATIONS WERE INCOMPREHENSIBLE SINCE THE REGULATOR WAS TO CONTROL A CONSTANT INTERNAL WORKING PRESSURE WHILE THE BOURDON GAGE CALLED FOR IN PARAGRAPH 3.3.4 WORKS ON A VARIABLE PRESSURE BASIS. YOU ALSO MENTIONED SEVERAL OTHER AREAS THAT YOU FELT NEEDED CLARIFICATION.

PARAGRAPH 3.3.1 OF THE SPECIFICATIONS STATES IN PART:

"REGULATOR. REGULATOR SHALL BE OF THE SINGLE STAGE TYPE. REGULATOR SHALL CONTROL AN INTERNAL WORKING PRESSURE OF 50 POUNDS PER SQUARE INCH (PSI), PLUS OR MINUS 0.5 PSI, BY MEANS OF A SENSITIVE DIAPHRAGM WHICH SHALL MAINTAIN A UNIFORM DISCHARGE RATE."

PARAGRAPH 3.3.4 OF THE SPECIFICATIONS READS, IN PART:

"DELIVERY PRESSURE DEVICE (FLOWMETER). THE UNIT SHALL BE EQUIPPED WITH A SINGLE DELIVERY PRESSURE DEVICE (FLOWMETER), OF THE BOURDON TUBE LITER GAGE TYPE CALIBRATED TO INDICATE FLOW RATES OF 0 TO 15 LITERS PER MINUTE OF OXYGEN."

BY LETTER OF AUGUST 27, 1971, BOTH OXEQUIP AND THE FIRM SUBSEQUENTLY AWARDED THE CONTRACT WERE NOTIFIED THAT THE SPECIFICATIONS WERE REVISED AS FOLLOWS:

"ANY PRECISION FLOW METER OR FLOW READ-OUT DEVICE SHALL BE CONSIDERED TO SATISFY TESTING OF FLOW RATES SPECIFIED. FURTHER, PRESSURE AND FLOW RATES ARE NOT CORRELATED. THE MAXIMUM INTERNAL WORKING PRESSURE OF THE REGULATOR SHALL BE 50 P.S.I.G."

YOU WERE ALSO TOLD THAT YOUR CURRENT PROPOSAL WAS NOT ACCEPTABLE AND THAT A LIST OF MATERIALS YOU INTENDED TO USE WAS TO BE SUBMITTED.

BY LETTER DATED AUGUST 27, 1971, YOU WITHDREW YOUR LETTER OF AUGUST 13, 1971; HOWEVER, THE FOLLOWING COMMENTS WERE MADE:

"THE ITEM WE PROPOSE TO FURNISH, HOWEVER, DOES CONFORM WITH THE WRITTEN SPECIFICATIONS WITH THE FOLLOWING EXCEPTIONS:

"3.2 THE METALLIC ITEMS USED IN THE CONSTRUCTION OF THE REGULATOR COMPLY WITH THE REQUIREMENTS OF (MSFC-SPEC)-101A. THERE ARE, HOWEVER, TWO ITEMS WHICH DO NOT CONFORM. ONE IS AN '0' RING WHICH IS USED TO SEAL THE DIAPHRAGM AND PROVIDE EXCESS PRESSURE RELIEF. THIS MATERIAL IS A NEOPRENE SILICONE GUM IMPREGNATED '0' RING.

"THE SEAL IS ALSO A SPECIAL COMPOUND WITH A NEOPRENE BASE AND IT IS BETWEEN 95 AND 98 DUROMETER."

YOU ALSO RESTATED YOUR VIEWPOINT CONCERNING THE CONFLICTING REQUIREMENTS OF PARAGRAPHS 3.3.1 AND 3.3.4.

IN ORDER TO CLEAR UP ANY MISUNDERSTANDING A CONFERENCE CALL WAS MADE ON SEPTEMBER 2, 1971, TO DISCUSS THE VARIOUS ASPECTS OF OXEQUIP'S LETTER OF AUGUST 27, 1971. WITH RESPECT TO PARAGRAPHS 3.3.1 AND 3.3.4 OF THE SPECIFICATIONS, OXEQUIP WAS ADVISED TO DELETE THE FIRST TWO SENTENCES OF PARAGRAPH 3.3.1 AND SUBSTITUTE:

"REGULATOR SHALL BE OF THE SINGLE STAGE TYPE WHICH SHALL MAINTAIN A UNIFORM DISCHARGE RATE BY MEANS OF A SENSITIVE DIAPHRAGM."

THE CHANGE HAS THE EFFECT OF CORRECTING THE ORIGINAL SPECIFICATIONS IN ORDER TO MAKE PERFORMANCE POSSIBLE. ADJUSTMENTS WERE MADE IN THE ALLOWABLE WEIGHT, THE INCLUSION OF MACHINED MATERIAL AND A CHANGE IN THE MARKINGS ON THE FLOWMETER. ALSO, OXEQUIP WAS TOLD THAT THE NEOPRENE COMPOUNDS IT INTENDED TO USE WERE NOT ACCEPTABLE.

ON SEPTEMBER 7, 1971, YOUR AGENT CONTACTED THE CONTRACTING OFFICER BY TELEPHONE AND ADVISED HIM THAT OXEQUIP COULD NOT FURNISH THE ITEM EVEN THOUGH THE SPECIFICATIONS HAD BEEN REVISED. THIS AGENT WAS CONTACTED ON SEPTEMBER 10, 1971, AND WAS READ A MEMORANDUM COVERING THE CONFERENCE CALL OF SEPTEMBER 2, 1971. ONCE AGAIN, YOUR AGENT STATED THAT OXEQUIP COULD NOT COMPLY WITH THE SPECIFICATIONS AS AMENDED, AFTER WHICH HE WAS TOLD THAT OXEQUIP'S PROPOSAL COULD NOT BE CONSIDERED ACCEPTABLE. ON SEPTEMBER 17, 1971, THE CONTRACT WAS AWARDED TO LIF-O GEN WHICH HAD TAKEN NO EXCEPTION TO THE SPECIFICATIONS.

IN YOUR LETTER OF OCTOBER 14, 1971, YOU CONTEND THAT THE SPECIFICATIONS ARE AMBIGUOUS, MAKING PERFORMANCE IMPOSSIBLE, AND THAT IT WOULD BE UNFAIR TO OXEQUIP TO AWARD A CONTRACT INCORPORATING THE ORIGINAL SPECIFICATIONS SINCE IT WILL BE NECESSARY TO GRANT WAIVERS.

THE CONTRACT WAS AWARDED PURSUANT TO NEGOTIATION. NEGOTIATION IS A FLEXIBLE PROCESS WHICH, UNLIKE FORMAL ADVERTISING, PERMITS CHANGES IN THE TECHNICAL REQUIREMENTS OF THE SOLICITATION AS WELL AS THE TERMS AND CONDITIONS OF PROPOSALS AFTER THE CLOSING DATE. A CONFERENCE WAS HELD WITH YOUR AGENT AND THE AMBIGUITY CREATED BY THE CONFLICTING REQUIREMENTS OF PARAGRAPHS 3.3.1 AND 3.3.4 OF THE ORIGINAL SPECIFICATIONS WAS REMEDIED AS DISCUSSED ABOVE. THE SPECIFICATIONS WERE ALSO AMENDED TO ALLOW A MACHINED BODY AND AN ALTERNATE TO THE SOAPY WATER TEST OF PARAGRAPH 4.4.2 WAS AUTHORIZED. THAT AGENT, HOWEVER, INDICATED THAT YOUR FIRM WOULD NOT MEET THE REVISED SPECIFICATIONS.

IN CONTRAST, LIF-O-GEN AGREED TO PERFORM IN ACCORDANCE WITH THE REVISED REQUIREMENTS. DUE TO AN OVERSIGHT, THE SPECIFICATIONS IN THE EXECUTED CONTRACT DID NOT REFLECT THE REVISIONS DISCUSSED ABOVE. HOWEVER, SINCE BOTH OXEQUIP AND LIF-O-GEN HAD BEEN ADVISED OF THE CHANGES IN THE SPECIFICATIONS PRIOR TO AWARD, AN AMENDMENT TO LIF-O GEN'S CONTRACT TO REFLECT THE MODIFICATIONS MADE DURING THE NEGOTIATION PROCESS WOULD NOT BE PREJUDICIAL TO OXEQUIP.

IN CONCLUSION, THE SPECIFICATIONS WERE AMENDED TO MEET YOUR OBJECTIONS AND THAT AWARD WAS MADE TO LIF-O-GEN BASED ON YOUR AGENT'S STATEMENT THAT OXEQUIP COULD NOT COMPLY WITH THE AMENDED SPECIFICATIONS.

ACCORDINGLY, WE FIND NO BASIS TO SUSTAIN YOUR PROTEST.