B-162196, SEPT. 19, 1968

B-162196, SEPT. 19, 1968

TO BRUNSWICK CORPORATION:

WE REFER TO YOUR LETTER OF MARCH 11, 1968, IN WHICH YOU PROTEST AGAINST CERTAIN CHANGES WHICH THE DEPARTMENT OF THE NAVY HAS RECENTLY MADE IN THE DRAWINGS AND SPECIFICATIONS FOR NITROGEN RECEIVERS USED IN THE LAU-7/A LAUNCHER SYSTEM. THE BASIS OF YOUR PROTEST IS THAT THE REQUIREMENT FOR ALL-METALLIC CONSTRUCTION OF THE RECEIVERS HAS ELIMINATED FROM CONSIDERATION THE RUBBER-LINED NITROGEN RECEIVER WHICH YOU DEVELOPED SPECIFICALLY FOR THE NAVY AND SUBSEQUENTLY MANUFACTURED IN QUANTITY UNDER A PRODUCTION CONTRACT WITH THE DEPARTMENT.

IN OUR DECISION B-162196, AUGUST 15, 1968, RELATING TO A SEPARATE PROTEST BY YOU IN YOUR LETTER OF MARCH 11 AGAINST AN AWARD TO VARO, INC. (VARO) OF A 1967 CONTRACT FOR THE PRODUCTION OF STAINLESS STEEL LINED ALL-METAL RECEIVERS, WE INFORMED YOU THAT WE HAD UNDER CONSIDERATION A PROTEST BY CORBIN MANUFACTURING CO., INC. (CORBIN) INVOLVING THE DRAWINGS AND SPECIFICATION CHANGES IN QUESTION. ON THE PREMISE THAT OUR DECISION TO CORBIN WOULD ANSWER THE QUESTION RAISED BY YOU, WE STATED THAT WE WOULD FORWARD A COPY OF THE DECISION TO YOU WHEN ISSUED. HOWEVER, CORBIN HAS WITHDRAWN ITS PROTEST, AND WE THEREFORE WILL NOT RENDER A DECISION TO CORBIN IN THE MATTER.

IN REPORTS DATED MAY 24 AND JULY 25, 1968, WHICH OUR OFFICE HAS RECEIVED FROM THE DEPARTMENT OF THE NAVY, THE NAVAL AIR SYSTEMS COMMAND (NASC), WHICH IS RESPONSIBLE FOR THE DESIGN OF THE NITROGEN RECEIVERS, HAS MADE THE FOLLOWING PERTINENT STATEMENTS CONCERNING THE CURRENT DESIGN FOR THE RECEIVERS:

"THE NITROGEN RECEIVER FOR THE LAU/7A GUIDED MISSILE LAUNCHER HAS UNDERGONE A PROCESS OF DESIGN CHANGE AND IMPROVEMENTS OVER THE ORIGINAL ALL METAL RECEIVER MANUFACTURED BY TAVCO, INC. AND PEERLESS MANUFACTURING COMPANY TO THE PRESENT CONFIGURATION. THE BRUNSWICK CORPORATION RECEIVER WAS A SUBSTANTIAL IMPROVEMENT OVER THE ALL METAL RECEIVER IN THAT IT PROVIDED GREATER SAFETY DUE TO ITS FIBERGLASS OVERLAY. HOWEVER, THE RUBBER LINER OF THE BRUNSWICK RECEIVER WAS SUSCEPTIBLE TO POSSIBLE DETERIORATION OVER LONG PERIODS OF TIME WHICH COULD CAUSE LEAKAGE. THE CORBIN RECEIVER WAS CONSIDERED AN IMPROVEMENT OVER THE BRUNSWICK RECEIVER IN THAT ONLY THE SEALS WERE NONMETALLIC THEREBY GREATLY REDUCING, BUT NOT ELIMINATING THE POSSIBILITY OF LEAKAGE DUE TO DETERIORATION OF THE SEALS. THE PRESENT SPECIFIED DESIGN, NAVAIR DRAWING NO. 58A164D555, REVISION B, IS CONSIDERED AN IMPROVEMENT OVER THE CORBIN RECEIVER IN THAT ITS LINER HAS AN ALL METAL, WELDED CONSTRUCTION WHICH ELIMINATES THE POTENTIAL PROBLEM OF DETERIORATION OF NONMETALLIC COMPONENTS. THIS DESIGN CONSTITUTES THE MINIMUM NEEDS OF THE GOVERNMENT FOR NITROGEN RECEIVERS IN THAT IT INSURES THAT THE RECEIVERS WILL LAST FOR MANY YEARS OF USE UNDER STRINGENT ENVIRONMENTAL CONDITIONS.' "* * * THE CHANGE IN DESIGN WAS BASED UPON THE ENGINEERING JUDGMENT OF THE TECHNICAL PERSONNEL OF THE NAVAL AIR SYSTEMS COMMAND AND NOT UPON ANY TESTS OR DEFICIENCY REPORTS. THIS ENGINEERING JUDGMENT WAS BASED UPON THE FOLLOWING FACTS:

"/A) NON-METALLIC SEALS TEND TO DRY OUT WITH AGE.

"/B) NON-METALLIC MATERIALS ARE SUBJECT TO RADICAL CHANGES DUE TO ENVIRONMENT SUCH AS LOSS OF PLASTICIZERS WHICH LEAVE THE SEAL BRITTLE AND UNABLE TO RETAIN RECEIVER PRESSURE.

"/C) NON-METALLIC MATERIALS ARE SUBJECT TO DEPOLYMERIZATION CAUSING THE SEAL TO BECOME FLUID OR STICKY WITH RESULTANT INABILITY TO RETAIN PRESSURE.

"/D) NON-METALLIC MATERIALS TEND TO TAKE A PERMANENT SET. THIS CAUSES A GAS LEAKAGE WHEN THE RECEIVER IS SUBJECT TO EXPANSION AND CONTRACTION DUE TO TEMPERATURE CHANGES. "THE ABOVE UNDESIRABLE FEATURES OF NON-METALLIC SEALS WILL ONLY BE REVEALED BY THE PASSAGE OF TIME, WHETHER IN USE OR STORAGE, AND ARE NOT REVEALED BY THE CURRENT NITROGEN RECEIVER TEST SPECIFICATION, MIL-R-81202/WP). THE LIFE TEST REQUIREMENTS OF THIS SPECIFICATION HAVE NOT BEEN REVISED IN THAT THE NAVAL AIR SYSTEMS COMMAND HAS NOT DEVELOPED TESTS TO REVEAL THE CHARACTERISTICS SET FORTH ABOVE OF NON-METALLIC MATERIALS. THE BASIS FOR THE SUBJECT CHANGE IN DESIGN IS THE SAME AS THAT FOR THE PREVIOUS CHANGE IN DESIGN FROM THE NITROGEN RECEIVER WITH A RUBBER LINER MANUFACTURED BY BRUNSWICK CORPORATION TO THE CORBIN RECEIVER. HOWEVER, THE UNDESIRABLE FEATURES OF NON-METALLIC MATERIALS WERE MORE PROMINENT IN THE CASE OF THE RUBBER LINER. * * * BY ADOPTING THE ALL METAL, WELDED CONSTRUCTION DESIGN, THE NAVAL AIR SYSTEMS COMMAND POSSESSES A DESIGN WHICH NOT ONLY ELIMINATES A POTENTIAL FAILURE WHICH COULD BE CAUSED BY THE USE OF NON-METALLIC SEALS, BUT ALSO A DESIGN WHICH IS SUSCEPTIBLE TO COMPETITIVE PROCUREMENT.'

AS THE CONTRACTING AGENCY, THE DEPARTMENT OF THE NAVY BEARS THE PRIMARY RESPONSIBILITY FOR DETERMINING THE GOVERNMENT'S MINIMUM NEEDS, FOR DRAFTING THE SPECIFICATIONS TO REFLECT SUCH NEEDS, AND FOR DETERMINING WHETHER ITEMS OFFERED MEET SUCH NEEDS, AND ABSENT EVIDENCE OF BAD FAITH OR LACK OF ANY REASONABLE FACTUAL SUPPORT OUR OFFICE WILL NOT QUESTION THE DEPARTMENT'S DETERMINATIONS IN SUCH AREAS.

IN THE LIGHT OF THE STATEMENTS BY NASC, WE ARE UNABLE TO CONCLUDE THAT THE CHANGES IN QUESTION WERE WITHOUT A SUBSTANTIAL BASIS AND THEREFORE A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION. IN THE CIRCUMSTANCES, WE SEE NO LEGAL BASIS FOR OBJECTION TO THE CHANGES.