B-155285, APR. 14, 1965

B-155285, APR. 14, 1965

TO LEGION UTENSILS COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1965, AND ENCLOSURES, PROTESTING AGAINST THE SPECIFICATIONS IN INVITATION FOR BIDS DSA-7-65-2009 AND DSA-7-65-2080 ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), COLUMBUS, OHIO.

BOTH INVITATIONS CALL FOR BIDS ON FURNISHING STATED QUANTITIES OF DOG FEEDING PANS IN ACCORDANCE WITH FSN 3770-951-3230 AND DCSC DRAWING NO. CS- 3770-0002. POLAR WARE COMPANY WAS LOW BIDDER ON IFB DSA-7-65 2009 AND WAS AWARDED A CONTRACT PURSUANT THERETO ON FEBRUARY 12, 1965. POLAR WAS ALSO LOW BIDDER ON THE SECOND INVITATION, EXCEPT FOR ITEM 2B WHICH WAS ADDED BY AMENDMENT, FOR WHICH YOUR BID WAS LOW. HOWEVER, AWARD IS BEING HELD IN ABEYANCE PENDING DECISION OF OUR OFFICE ON YOUR PROTEST.

YOUR LETTER OF PROTEST STATES THAT THE SPECIFICATIONS FOR THE ITEM BEING PROCURED ARE "TOTALLY INADEQUATE," THAT THE "DESIGN IS BASICALLY DEFICIENT," AND THAT SAID SPECIFICATIONS WERE APPARENTLY ESTABLISHED WITHOUT CONSULTATION WITH EITHER PREVIOUS SUPPLIERS, EXPERIENCED VETERINARIANS OR CANINE HANDLERS.

IN A REPORT TO OUR OFFICE, THE PROCURING ACTIVITY HAS ANSWERED THESE CHARGES AS FOLLOWS:

"THE DESIGN FOR DOG FEEDING PAN, FSN 3770-951-3230, WAS SELECTED AS A STANDARD ITEM BY THE U.S. ARMY NATICK LABORATORIES WITH THE CONCURRENCE OF THE MILITARY SERVICES AND AFTER CONSULTATION WITH QUALIFIED VETERINARIANS AND DOG HANDLERS AT THE DOD CANINE (SENTRY DOG) TRAINING CENTER, LACKLAND AFB, SAN ANTONIO, TEXAS. MILITARY SUPPLY STANDARD, MSS 3770-1A, INDEX NO. 19, DATED 28 MAY 1964, FOR STANDARD ITEMS, DESCRIBES DOG FEEDING PAN, FSN 3770-951-3230, AS RAY ALLEN MFG COMPANY, COLORADO SPRINGS, COLORADO, PART NO. RHA 57-77 OR EQUAL (ENCL 4). MILITARY SUPPLY STANDARD MSS 3770-1A, INDEX NO. 27 FOR NON-STANDARD ITEMS STATES THAT FSN 3770-281-4201 FOR DOG FEEDING PAN IS REPLACED BY FSN 3770-951-3230. THUS THE DOG FEEDING PAN SHOWN IN THE RAY ALLEN CATALOGUE AS RAY ALLEN PART NO. RHA 57-77, FSN 3770 -281 4201 ALSO APPLIES TO THE REPLACEMENT STOCK NUMBER FSN 3770-951-3230. DRAWING CS-3770-0002 WAS PREPARED BY THIS CENTER BASED ON POLAR WARE COMPANY PART NO. 130 WHICH IS THE SAME AS RAY ALLEN PART NO. 57-77. POLAR WARE MANUFACTURES PART NO. RHA 57-77 FOR RAY ALLEN. SINCE THE PAN INVOLVED IS A RELATIVELY SIMPLE ITEM IN CONSTRUCTION, ALL PREVIOUS SUPPLIERS WERE NOT CONSULTED. IN THIS REGARD, DEFENSE STANDARDIZATION MANUAL M200A IN PARAGRAPH 2-109 REQUIRES THAT MILITARY STANDARDIZATION DOCUMENTS BE COORDINATED WITH REPRESENTATIVE SEGMENTS OF THE INDUSTRY CONCERNED TO OBTAIN INFORMATION ON THE TECHNICAL CONTENT OF THE DOCUMENT. COORDINATION WITH ALL PREVIOUS SUPPLIERS IS NOT REQUIRED.'

IN REGARD TO THE COMPLAINT IN YOUR LETTERS OF FEBRUARY 5 AND 16, 1965, THAT THE "NEW DRAWING, CS-3770-0002 IS AMBIGUOUS INASMUCH AS THE PAN ITSELF APPEARS IN AN INVERTED POSITION," THE PROCURING ACTIVITY'S REPLY IS:

"THE BOTTOM OF THE PAN IS RAISED 1/8 INCH IN THE CENTER WHICH IS A CHARACTERISTIC OF THE DESIGN OF THE PAN. SINCE THE PAN IN DRAWING CS 3770 -0002 IS IN AN INVERTED POSITION, THIS 1/8 INCH RAISE IN THE BOTTOM OF THE PAN APPEARS AT THE UPPER PART OF THE DRAWING. HOWEVER, AS PREVIOUSLY STATED ALL OF THE DIMENSIONS ARE CORRECT IN THE DRAWING AND SINCE IT IS OBVIOUS THAT THE PAN IS MERELY SHOWN UP-SIDE DOWN, IT IS NOT CONSIDERED THAT ANY AMBIGUITY EXISTS.'

IN THIS CONNECTION IT IS NOTED THAT IN YOUR LETTER OF FEBRUARY 5, 1965, TO THE PROCUREMENT OFFICE, YOU POINTED OUT THE POSSIBLE AMBIGUITY, BUT STATED THAT YOU WERE QUOTING EXACTLY IN ACCORDANCE WITH THE DRAWING.

WITH RESPECT TO THE ALLEGATION THAT THE CONSTRUCTION CALLED FOR BY THE PRESENT SPECIFICATIONS WILL RESULT IN THE DOG TIPPING OVER THE PAN, IT IS STATED:

"TIPPING OF THE PANS IS NOT A PROBLEM. THE PAN IS PLACED IN THE FEEDING AREA FOR 60 TO 120 SECONDS AND THEN REMOVED. THIS IS DONE THREE TIMES DAILY. THE PAN IS QUICKLY EMPTIED. THIS DESIGN OF PLAN WAS SELECTED BY THE U.S. ARMY NATICK LABORATORIES IN ORDER TO PROVIDE FOR EASE OF CLEANING AND STERILIZATION. THE PAN HAS A MINIMUM OF CREVICES WHICH WOULD RESULT IN WATER OR FOOD RETENTION. THIS DESIGN OF PAN IS EASY TO DRY. A HOLE HAS BEEN DRILLED IN THE EDGE OF THE PAN TO PERMIT THE PANS TO BE HUNG UP FOR DRYING. FUTURE PROCUREMENTS WILL REQUIRE THAT A HOLE BE DRILLED IN EACH PAN.'

OUR OFFICE HAS CONSISTENTLY ADHERED TO THE PRINCIPLE THAT THE ADMINISTRATIVE AGENCIES HAVE THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE RESPONSIBILITY OF DETERMINING WHETHER THE PRODUCT OFFERED MEETS THE SPECIFICATIONS. 38 COMP. GEN. 190 AND 17 COMP. GEN. 554. IN THE ABSENCE OF EVIDENCE CLEARLY INDICATING THAT THE SPECIFICATIONS AS WRITTEN DO NOT REFLECT THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, OR THAT THEY ARE OTHERWISE CONTRARY TO APPLICABLE LAW OR REGULATION, OUR OFFICE MAY NOT PROPERLY OBJECT THERETO.

ON THE PRESENT RECORD, IT IS OUR CONSIDERED OPINION THAT THE CHARGES YOU MAKE CONCERNING THE SPECIFICATIONS, IN THE LIGHT OF THE ANSWERS THERETO BY THE CONTRACTING AGENCY, DO NOT AFFORD A LEGAL BASIS FOR OUR OFFICE TO TAKE EXCEPTION TO THE SPECIFICATIONS, OR TO THE AWARD OF A CONTRACT THEREON. ACCORDINGLY, YOUR PROTEST IS DENIED.

WITH RESPECT TO YOUR QUESTION AS TO WHETHER AUTO-SKATE COMPANY, INC., WAS PERMITTED TO FURNISH PANS UNDER THE NEW DRAWING, WE ARE ADVISED THAT IT DELIVERED PANS STRICTLY IN ACCORDANCE WITH THE DRAWING -- NO. 3001--- INCLUDED IN ITS CONTRACT.