B-160444, APR. 20, 1967

B-160444, APR. 20, 1967

TO JAMES E. TURNQUIST COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 9, 1967, REQUESTING RECONSIDERATION OF OUR DECISION OF JANUARY 30, 1967, DENYING YOUR PROTEST AGAINST THE AWARD OF CONTRACT NO. N62467-67-C-0040 TO SU-JAK ENTERPRISES, INCORPORATED, FOR THE CONSTRUCTION OF AN ELECTRO-ACOUSTIC FACILITY AT THE NAVAL TRAINING DEVICE CENTER, UNITED STATES AIR FORCE BASE, ORLANDO, FLORIDA.

IN YOUR LETTER OF FEBRUARY 9, YOU CONTEND THAT THE PRODUCT LISTED ON THE QUALIFIED PRODUCTS LIST FOR SPECIFICATION MIL-C-81016 IS NOT BEING USED ON THE PROJECT AND THAT THE PRODUCTS OF SUTTLE EQUIPMENT CORPORATION ARE MORE THAN ADEQUATE FOR THE FACILITY BEING CONSTRUCTED. YOU CONTEND AGAIN THAT YOU WITHDREW YOUR LETTER OF OCTOBER 15, 1966, WHICH REQUESTED PERMISSION TO HAVE YOUR BID DISREGARDED.

IN RESPONSE TO OUR REQUEST FOR FURTHER INFORMATION REGARDING YOUR PROTEST, THE DEPARTMENT OF THE NAVY HAS ADVISED US AS FOLLOWS:

"WITH REGARD TO THOSE ALLEGATIONS CONTENDING THAT A PRODUCT ON THE QUALIFIED PRODUCTS LIST IS NOT BEING USED, OUR REPORT OF 16 JANUARY STATED THAT THE MATERIALS FURNISHED WERE PURCHASED FROM THE INDUSTRIAL ACOUSTICS COMPANY BY SU-JAK ENTERPRISES, INCORPORATED AND SUCH MATERIALS WERE PRODUCTS WHICH MET THE QUALIFICATION STANDARDS OF MIL-C 81016. THE LARGEST FACILITY LISTED ON QPL-81016-1 IS A CHAMBER DESIGNED FOR TEN MEN. THE CHAMBER REQUIRED BY THE CONTRACT SPECIFICATION IS APPROXIMATELY TWICE THIS SIZE IN FLOOR SPACE AND VOLUME AND ACCOMMODATES TWENTY MEN. PROJECT SPECIFICATION NO. 79773/66 DID NOT REQUIRE THE PURCHASE OF ONE OR MORE OF THE EXACT TYPE OF TESTING CHAMBERS LISTED IN QPL-81016-1. SECTION 13A. OF THE CONTRACT SPECIFICATIONS, SOUND ISOLATION CONSTRUCTION, SETS FORTH THE SPECIFIC REQUIREMENTS FOR THE CONSTRUCTION OF ELECTRO-ACOUSTIC FACILITY. THESE ASSEMBLY AND CONSTRUCTION DETAILS ARE NOT IN ALL RESPECTS IDENTICAL TO THE ASSEMBLY AND CONSTRUCTION DETAILS OF SPECIFICATION MIL-C- 81016. IN ORDER TO CONSTRUCT A MODULE TWICE THE SIZE OF A TYPE II TEN MAN MODULE, MINOR CONSTRUCTION DIFFERENCES WERE NECESSARY.

"PARAGRAPH 13A.8.3 STATES,"ONLY THOSE MANUFACTURERS WHOSE ASSEMBLED PRODUCTS MEET THE QUALIFICATION REQUIREMENTS OF SPECIFICATION MIL-C 81016 FOR TYPE I AND TYPE II CHAMBERS...' AS REPORTED IN PARAGRAPH 5 ENCLOSURE (15) OF OUR LETTER OF 16 JANUARY 1967,"A COMPARISON OF THE NOISE LEVEL SPECTRUM TO BE ENCOUNTERED, AS SET FORTH IN NAVFAC SPECIFICATION NO. 79773/66, REFERENCE (C), WITH THE MINIMUM ALLOWABLE NOISE REDUCTION FROM ALL SOURCES AS SET FORTH IN MIL-C-81016 WILL ESTABLISH THAT THE REQUIRED ATTENUATION IS MOST DIFFICULT TO ACHIEVE IN THE LOWER END OF THE SOUND SPECTRUM; AND THAT STRICT ADHERENCE TO THE STANDARDS ESTABLISHED BY MIL-C- 81016 IS ABSOLUTELY NECESSARY IN ORDER TO MAINTAIN A REASONABLE ASSURANCE OF ACHIEVING THE NECESSARY ATTENUATION IN A LARGER STRUCTURE.' IN ORDER TO SUCCESSFULLY MEET THE NOISE LEVEL SPECTRUM OUTSIDE OF THE MODULE, THE AMBIENT NOISE LEVEL INSIDE THE MODULE MUST NOT EXCEED CERTAIN LIMITS. (THE OUTSIDE NOISE LEVEL SPECTRUM TO BE ENCOUNTERED AND THE INSIDE NOISE LEVELS WHICH MAY NOT BE EXCEEDED ARE CONTAINED IN PARAGRAPH 13A.3.3.1 NOISE LEVELS.) THEREFORE, IN ORDER TO ACHIEVE THE NECESSARY ATTENUATION THE CONTRACT SPECIFICATIONS AND DRAWINGS REQUIRED AN INSTALLATION OF THE VARIOUS COMPONENTS OF THE STANDARD TYPE I AND TYPE II AUDIOMETRIC TESTING CHAMBERS EXPANDED TO A ROOM APPROXIMATELY TWICE THE SIZE OF A STANDARD TYPE II TEN MAN ROOM.

"WE CONSIDER THESE REQUIREMENTS TO BE A LEGITIMATE AND PROPER USE OF QPL- 81016-1 AND ITS ACCOMPANYING SPECIFICATION. ASPR 1-1101 (B) DEFINES "QUALIFIED PRODUCTS" AS THOSE WHICH HAVE BEEN SUBJECTED TO EXAMINATION AND TESTS AND HAVE BEEN FOUND TO SATISFY ALL REQUIREMENTS OF THE APPLICABLE SPECIFICATIONS. EVEN THOUGH THE CONTRACT SPECIFICATIONS DID NOT CALL FOR A SPECIFIC TYPE CHAMBER, QUALIFICATION APPROVAL OF THE PRODUCT ITSELF ESTABLISHED QUALIFICATION OF ITS COMPONENT PARTS. COMPTROLLER GENERAL B- 151643 (AUGUST 7, 1963). FURTHER, ASPR 1-1103 SETS FORTH THE CRITERIA FOR JUSTIFICATION FOR INCLUSION OF QUALIFICATION REQUIREMENTS. THAT SECTION STATES, IN PART,

"... A QUALIFICATION REQUIREMENT MAY BE INCLUDED IN A SPECIFICATION WHEN ONE OR MORE OF THE FOLLOWING CONDITIONS EXIST:

(IV) THE INTEREST OF THE GOVERNMENT REQUIRES ASSURANCE, PRIOR TO AWARD, THAT THE PRODUCT IS SATISFACTORY FOR ITS INTENDED USE.'

"THE SUBSTITUTION OF MATERIALS NOT PRE-QUALIFIED WOULD SERIOUSLY DISRUPT THE RESEARCH AND DEVELOPMENT WORK LEADING TO THE CREATING OF TRAINING DEVICES FOR THE NAVY DEPARTMENT.'

ALTHOUGH IT IS APPARENT FROM THE REPORT THAT AN IDENTICAL TYPE OF TESTING CHAMBER LISTED IN THE QUALIFIED PRODUCTS LIST IS NOT BEING PURCHASED, IT APPEARS THAT COMPONENTS OF THE TYPE I AND TYPE II TESTING CHAMBERS WHICH MET THE QUALIFICATION STANDARDS OF MIL-C-81016 ARE BEING USED. INDICATED BY THE NAVY, WE HAVE HELD THAT THE APPROVAL OF THE PRODUCT ITSELF ESTABLISHES QUALIFICATION OF ITS COMPONENT PARTS. IN VIEW THEREOF, AND SINCE THE NAVY DETERMINED THAT THE INTEREST OF THE GOVERNMENT REQUIRED THE USE OF PREQUALIFIED PRODUCTS, WE CANNOT CONCLUDE THAT THE REFUSAL BY THE NAVY TO PERMIT THE USE OF A PRODUCT OR ITS COMPONENTS WHICH HAVE NOT MET THE QUALIFICATION STANDARDS WAS LEGALLY IMPROPER.

REGARDING YOUR CONTENTION CONCERNING THE WITHDRAWAL OF THE LETTER OF OCTOBER 15, 1966, THE NAVY REPORTS THAT IT NEVER RECEIVED ANY COMMUNICATION TO DISREGARD SUCH LETTER. AS YOU WERE PREVIOUSLY ADVISED, WE NECESSARILY MUST ACCEPT THE ADMINISTRATIVE VERSION IN THE ABSENCE OF EVIDENCE CLEARLY SHOWING IT TO BE ERRONEOUS. 40 COMP. GEN. 178, 180. SUCH EVIDENCE HAS BEEN FURNISHED.

ACCORDINGLY, WE FIND NO LEGAL BASIS TO HOLD THAT THE CONTRACT AWARDED TO THE SU-JAK ENTERPRISES, INCORPORATED, WAS CONTRARY TO LAW OR REGULATION.