B-167791, MAR. 18, 1970

B-167791, MAR. 18, 1970

CONTRACTS--SPECIFICATIONS--CONFORMABILITY OF EQUIPMENT, ETC. OFFERED- IMPOSSIBILITY OF MEETING--INADEQUACY OF SPECIFICATIONS BIDDER'S PROTEST TO ADEQUACY AND CONTENT OF SPECIFICATIONS AND TO CANCELLATION AND READVERTISING OF ARMY PROCUREMENT IS AGAIN DENIED SINCE BIDDER'S ELIGIBILITY MUST BE DETERMINABLE FROM BID WITHOUT REFERENCE TO SUBSEQUENT OFFERS AND INTERPRETATIONS ADVANCED BY BIDDER AFTER BID OPENING WHEREAS PROTESTANT FAILED TO COMPLY WITH "BRAND NAME OR EQUAL" CLAUSE REQUIREMENT TO CLEARLY DESCRIBE, IN BID, PROPOSED MODIFICATIONS FOR CONFORMABILITY TO SPECIFICATIONS. MOREOVER, PURCHASE DESCRIPTION MAY SPECIFY PARTICULAR FEATURE IF IT IS ESSENTIAL TO GOVT.'S REQUIREMENTS WITHOUT BEING CONSIDERED UNDULY RESTRICTIVE, AND WHERE RESPONSIBLE CONCERNS MANUFACTURE ITEM MEETING GOVT.'S REQUIREMENTS, SUCH REQUIREMENTS CANNOT BE ALTERED MERELY BECAUSE OTHER RESPONSIBLE CONCERNS HAVE DESIGNED ITEMS TO EXCEED SUCH REQUIREMENTS AND HAVE PRICED THEMSELVES OUT OF COMPETITION.

TO THE AMERICAN TOOL WORKS COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 3, 1969, WITH ENCLOSURE, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 31, 1969, B-167791, TO YOU, IN WHICH WE DENIED YOUR PROTEST AGAINST THE ACTION OF THE DEPARTMENT OF THE ARMY, ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS, IN CANCELING INVITATION FOR BIDS (IFB) NO. DAAF01-69 B-0176 AND READVERTISING THE PROCUREMENT UNDER IFB NO. DAAF01-69-B 0807.

IN YOUR LETTER YOU STATE:

"ON PAGE 2 OF YOUR LETTER, YOU STATE THAT OUR BID TO IFB DAAF01-69 B-0807 WAS FOUND TO BE UNACCEPTABLE IN THE FOLLOWING AREAS.

"A. TOOL POST SIZE MINIMUM AMERICAN MODEL

REQUIREMENT 20 D-2

7/8" X 1 3/4" 5/8" X 1 1/4"

"WHILE THE STOCK D-2 LATHE NORMALLY CARRIES A 5/8" X 1 1/4" TOOL POST, WE DO VARY THIS WHEN SO REQUIRED BY THE CUSTOMER. THIS WAS TAKEN INTO ACCOUNT AND PRICED INTO THE BID.

"B. FOLLOW CAPACITY MINIMUM AMERICAN MODEL

REST, RANGE, REQUIREMENT 20 D-2

1" - 6" 1/2" - 4"

"AMERICAN WILL FURNISH AS REQUIRED, A FOLLOW REST 1" TO 6". THIS IS A SPECIAL PRICE ITEM AND IT, TOO, WAS CONSIDERED IN OUR BID.

"C. FACE PLATE MINIMUM REQUIREMENT AMERICAN MODEL

20 D-2

12" 10"

"AMERICAN RECOMMENDS A 10" SMALL FACE PLATE OR DOG-PLATE ON THIS SIZE MACHINE. WE WILL, HOWEVER, FURNISH FACE PLATES 10" TO 17" AS BUYER MAY REQUIRE.

"D. HEADSTOCK SPINDLE SIZE OF HOLE THROUGH CENTER:

MINIMUM REQUIREMENT AMERICAN MODEL

20 D-2

2 1/16" 2"

"THE SPINDLE ON THE AMERICAN IS SIZED TO PASS OR WORK A 2" BAR THROUGH THE SPINDLE. THE ACTUAL HOLE SIZE PER PRINT IS 2.015" TO 2.020". WHEN REQUIRED, IT IS A MINOR CHANGE TO BORE TO 2 1/16" OR 2.0625". THIS WAS CONSIDERED IN THE IFB AT NO PRICE DIFFERENCE.

"E. HEADSTOCK SPINDLE CENTER TAPER:

MINIMUM REQUIREMENT AMERICAN MODEL

#5 #4

"TO CHANGE FROM A #4 MORSE TAPER TO A #5 MORSE TAPER REQUIRES ONLY THE CHANGE OF THE CENTER AND CENTER SLEEVE.

"F. TAILSTOCK SPINDLE CENTER TAPER:

MINIMUM REQUIREMENT AMERICAN MODEL

20 D-2

NO. 5 NO. 4

"THE CHANGE OF TAPER HOLE IN THE TAILSTOCK FROM MORSE TAPER NO. 4 TO MORSE TAPER NO. 5 IS A MINOR CHANGE WHICH WE EXPECTED TO MAKE ON THIS LOT OF MACHINES."

IT SHOULD BE FIRST NOTED THAT YOUR FIRM'S REFERENCE ABOVE TO IFB NO. - 0807 IS ERRONEOUS SINCE THE BID IN QUESTION WAS SUBMITTED IN RESPONSE TO IFB NO. -0176 RATHER THAN IFB -0807 BY YOUR DISTRIBUTOR, LUTHER AND PEDERSEN, INC. THE RECORD INDICATES THAT NEITHER YOUR FIRM NOR YOUR DISTRIBUTOR SUBMITTED A BID IN RESPONSE TO IFB -0807. WHILE YOU STATE THAT YOUR DISTRIBUTOR HAD PRICED INTO ITS BID CERTAIN CHANGES TO YOUR FIRM'S COMMERCIAL MODEL, YOUR DISTRIBUTOR DID NOT COMPLY WITH THE REQUIREMENTS OF THE STANDARD "BRAND NAME OR EQUAL" CLAUSE OF IFB -0176 WHICH PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"IF THE OFFEROR PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE SOLICITATION, HE SHALL (I) INCLUDE IN HIS OFFER A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS."

IT IS REPORTED THAT YOUR DISTRIBUTOR DID NOT COMPLY WITH ANY OF THE ABOVE REQUIREMENTS AND THAT BECAUSE OF SUCH FAILURE THE EVALUATION OF YOUR DISTRIBUTOR'S BID RESULTED IN THE TECHNICAL OPINION THAT IT FAILED TO MEET THE REFERENCED MINIMUM REQUIREMENTS OF THE IFB THAT WAS CANCELED. THE FACT THAT YOUR DISTRIBUTOR ADVISED THE CONTRACTING OFFICER BY TELEGRAM DATED JANUARY 31, 1969, OR AFTER BID OPENING THAT IT WOULD MEET ALL THE REQUIREMENTS OF SPECIFICATIONS IN IFB -0176 MAY NOT BE REGARDED AS A SUFFICIENT BASIS FOR DETERMINING ITS BID RESPONSIVE TO THE IFB SINCE THE ELIGIBILITY OF A BID FOR AWARD MUST BE DETERMINED FROM THE BID ITSELF WITHOUT REFERENCE TO SUBSEQUENT OFFERS AND INTERPRETATIONS ADVANCED BY THE BIDDER AFTER BID OPENING.

YOU STATE THAT THE WRITER OF THE MEMORANDUM DATED JULY 30, 1969, QUOTED IN PART ON PAGE 5 OF OUR DECISION, GIVES A SOMEWHAT GLIB EXPLANATION OF WHY A PURCHASE DESCRIPTION IN LIEU OF THE MANDATORY MILITARY SPECIFICATION MIL-L-23257A WAS USED BY THE PROCURING ACTIVITY IN IFB -0807. THE CITED MILITARY SPECIFICATION APPEARS TO BE IN ERROR SINCE YOUR ORIGINAL PROTEST RAISED THE QUESTION AS TO WHY A PERFORMANCE SPECIFICATION WAS USED RATHER THAN MILITARY SPECIFICATION MIL-L-23251A DATED APRIL 7, 1967. WHILE THE QUESTIONS YOU NOW RAISE PROVIDE NO LEGAL BASIS FOR OUR OFFICE TO TAKE ANY ACTION WITH RESPECT TO THE PROCUREMENT, WE FEEL THAT THE RESPONSES MADE TO YOUR CURRENT ALLEGATIONS BY THE PROCUREMENT ACTIVITY, RELATING AS THEY DO TO THE TECHNICAL ASPECTS OF THE PROCUREMENT, JUSTIFY THE AWARD MADE UNDER IFB -0807. ACCORDINGLY, THERE ARE QUOTED BELOW PORTIONS OF THE ADMINISTRATIVE REPORT WHICH ARE RESPONSIVE TO THE TECHNICAL QUESTIONS RAISED IN YOUR LETTER OF AUGUST 22, 1969.

"3. ALLEGATION: 'THE WRITER OF THE MEMORANDUM GIVES A SOMEWHAT GLIB EXPLANATION OF WHY THE MANDATORY MILITARY SPECIFICATION MIL-L 23257A WAS NOT USED. HE STATES THE PURCHASE DESCRIPTION SHALL SET FORTH THE ESSENTIAL CHARACTERISTICS AND FUNCTIONS OF THE ITEMS OR MATERIALS REQUIRED. MY QUESTION IS THIS, "WHAT ESSENTIAL CHARACTERISTIC DOES A BED WIDTH OF 19 1/2" GIVE A LATHE?" WIDTH OF BED ALONE DOES NOT GIVE STRENGTH. THIS IS OBTAINED BY WIDTH IN PROPORTION TO DEPTH AND WEIGHT OF BED, A DESIGN CHARACTERISTIC ON WHICH TWO ENGINEERS MAY DIFFER AS TO PROPORTIONS, BUT COME UP WITH THE SAME RESULTS.'

"RESPONSE: THE PROTESTANT HAS APPARENTLY REFERENCED THE WRONG MILITARY SPECIFICATION SINCE ITS ORIGINAL PROTEST CONCERNED MIL-L 23251A DATED 7 APRIL 1967 RATHER THAN MIL-L-23257 DATED 6 APRIL 1962. MIL-L-23251A COVERS 'LATHES, ENGINE AND TOOLROOM, 2516 AND 3220' AND STATES, IN PART, ON PAGE 17:

"'6.1 INTENDED USE. THE ENGINE LATHES ... COVERED BY THIS SPECIFICATION ... ARE SUITABLE FOR HEAVY DUTY ROUGHING AND LIGHT FINISHING OPERATIONS SUCH AS TURNING, BORING, FACING, DRILLING AND THREADING USING HIGH SPEED STEEL AND CARBIDE TOOLING.'

"ALTHOUGH THIS SPECIFICATION DOES NOT CONTAIN A MINIMUM BED WIDTH IN ITS 'TABLE I - SIZES AND CAPACITIES - 2516', SUCH A REQUIREMENT DOES EXIST IN MIL-L-23257, WHICH COVERS 'LATHES, ENGINE AND TOOL ROOM, HEAVY DUTY' WHICH STATES, IN PART, ON PAGE 11:

"'6.1 INTENDED USE. THE LATHES COVERED BY THIS SPECIFICATION ARE TO BE USED ... WHERE A HEAVY DUTY, HIGH SPEED LATHE IS REQUIRED FOR MACHINING MATERIALS TO CLOSE TOLERANCES.'

"ALTHOUGH THE LATTER REFERENCED SPECIFICATION COVERS ONLY 1610 AND 2013 HEAVY DUTY LATHES, IT PROVIDES MINIMUM BED WIDTHS FOR BOTH SIZES IN 'TABLE I SIZE AND CAPACITY', FOUND ON PAGE 3; THE MINIMUM WIDTH FOR A 1610 BEING 13 1/4 INCHES AND 16 INCHES FOR A 2013. IT IS THEREFORE OBVIOUS THAT THE DRAFTER OF THE APPLICABLE MILITARY SPECIFICATION FOR HEAVY DUTY LATHES BELIEVED BED WIDTH TO BE A VALID CRITERION. THEREFORE, SUCH A REQUIREMENT WAS UTILIZED IN PREPARING T&E PD 65, DATED 8 APRIL 1969, COVERING 'LATHE, ENGINE, HEAVY DUTY, 25 INCH SWING' WHICH STATES, IN PART, ON PAGE 12:

"'6.1 INTENDED USE. THE LATHE COVERED BY THIS PURCHASE DESCRIPTION IS INTENDED FOR HEAVY DUTY USE IN MACHINE SHOPS FOR FINE AND ROUGH METAL TURNING AND BORING, AND FOR CUTTING SCREW THREADS, FINE AND COURSE, RIGHT- HAND OR LEFT-HAND, AS SPECIFIED HEREIN.'

"THE GOVERNMENT HAS NEVER DENIED TO AMERICAN THAT "WIDTH OF BED ALONE DOES NOT GIVE STRENGTH.' HOWEVER, THE PROTESTANT ACKNOWLEDGES IN THE INSTANT ALLEGATION THAT 'WIDTH IN PROPORTION TO DEPTH AND WEIGHT OF BED' IS 'A DESIGN CHARACTERISTIC ON WHICH TWO ENGINEERS MAY DIFFER AS TO PROPORTIONS, BUT COME UP WITH THE SAME RESULTS.' * * *

"ROCK ISLAND ARSENAL TECHNICAL PERSONNEL HAVE STATED THAT THE "ARMY'S MINIMUM PERFORMANCE REQUIREMENTS ARE FOR AN END PRODUCT WHICH WILL PROVIDE RELIABILITY AND CAPABILITY TO PERFORM HEAVY DUTY USE' AND OPINED THAT 'THE FEATURE OF A 19 1/2 INCH BED WIDTH ... DOES ADD TO THE STRENGTH AND RIGIDITY OF THE LATHE AS THE BED WIDTH FOR THE MODEL 2516 LATHE WAS ESTABLISHED BY THE LATHE INDUSTRY WHO SHOW THE BED WIDTH AS ONE OF THE MAJOR CHARACTERISTICS FOR THE MODEL 2516 LATHE CATEGORY.' THE FOREGOING OPINION IS SUBSTANTIATED BY THE FACT THAT MIL-L-23257 COVERING DIFFERENT MODEL HEAVY DUTY LATHES, IN FACT, SPECIFIES MINIMUM BED WIDTH REQUIREMENTS. IT IS, THEREFORE, OBVIOUS THAT COGNIZANT GOVERNMENT TECHNICAL PERSONNEL BELIEVE THAT THE BED WIDTH REQUIREMENT IS A DESIGN FEATURE WHICH IS REQUIRED IN ORDER TO ASSURE THE GOVERNMENT OF RECEIVING AN ITEM WHICH WILL SUITABLY PERFORM ITS INTENDED FUNCTION.

"4. ALLEGATION: 'IT CAN BE ASSUMED THAT STRENGTH OF BED WAS NOT IMPORTANT BECAUSE THE WRITER OF THE PURCHASE DESCRIPTION DID NOT SEE FIT TO INCLUDE A MAXIMUM METAL-REMOVAL TEST SUCH AS IS REQUIRED BY PARAGRAPH 4.5.3.2 OF MIL-L-23257A.'

"RESPONSE: AGAIN THE PROTESTANT INTENDS TO REFER TO MIL-L-23251A SINCE MIL-L-23257 CONTAINS NO SUCH NUMBERED PARAGRAPH. MIL-L-23251A STATES, IN PARAGRAPH 4.3 ENTITLED 'QUALITY CONFORMANCE INSPECTION', IN PERTINENT PART:

"'... UNLESS OTHERWISE SPECIFIED (SEE 6.2), QUALITY CONFORMANCE INSPECTION SHALL CONSIST OF ... THE TESTS IN 4.5....'

"PARAGRAPH 6.2 STATES, IN PART:

"'T. QUALITY CONFORMANCE INSPECTION, IF DIFFERENT (SEE 4.3).'

"MIL-L-23257, WHILE NOT CONTAINING A TEST SPECIFICALLY ENTITLED 'METAL REMOVAL', CONTAINS A 'ROUGHING TEST' (PARAGRAPH 4.3.3.1) AND A 'FINISH TEST' (PARAGRAPH 4.3.3.2) BOTH OF WHICH REQUIRE METAL REMOVING. SIMILAR TO THE PROVISIONS SET FORTH ABOVE, THIS SPECIFICATION STATES, IN PARAGRAPH 4.2.2.1 ENTITLED 'QUALITY CONFORMANCE TESTS':

"'UNLESS OTHERWISE SPECIFIED (SEE 6.2), QUALITY CONFORMANCE TESTS SHALL CONSIST OF THE FOLLOWING:

(A) INSPECTION (4.3.1).

(B) INSPECTION OF PRESERVATION, PACKAGING, PACKING AND MARK FOR SHIPMENT AND STORAGE (4.4).'

"PARAGRAPH 6.2 STATES, IN PERTINENT PART:

"'(FF) QUALITY CONFORMANCE TESTS, IF DIFFERENT (SEE 4.2.2.1).'

"BASED ON THE FOREGOING, IT IS EVIDENT THAT A METAL-REMOVING TEST IS NOT ESSENTIAL TO THE ACQUISITION OF AN ACCEPTABLE LATHE; IN FACT, UNDER THE LATTER REFERENCED SPECIFICATION, SUCH A TEST IS NOT EVEN CONSIDERED TO BE A REQUIREMENT BUT ONLY AN OPTIONAL TEST WHICH MAY BE REQUIRED. IT IS OBVIOUS THEREFORE THAT THE OMISSION OF A METAL REMOVING TEST FROM THE REFERENCED PD IN NO WAY DEROGATES THE NECESSITY FOR A BED OF ADEQUATE STRENGTH TO PERFORM THE INTENDED FUNCTION OF THE MACHINE. ERGO, THE INSTANT ALLEGATION IS WITHOUT MERIT.

"5. ALLEGATION: 'MILITARY SPECIFICATIONS, WHILE THEY DETAIL THE ESSENTIAL CHARACTERISTICS OF A LATHE, DO NOT ATTEMPT TO DICTATE DESIGN CHARACTERISTICS. THEY DO, HOWEVER, SEPARATE THE WHEAT FROM THE CHAFF BY THE PERFORMANCE TESTS AS REQUIRED BY SECTION 4 OF THOSE SPECIFICATIONS.'

"RESPONSE: AS PREVIOUSLY POINTED OUT IN THE FOREGOING, AS WELL AS THE BASIC ADMINISTRATIVE REPORT, THE SUBJECT PD CONTAINS NO DESIGN CHARACTERISTICS OTHER THAN THOSE NORMALLY CONTAINED IN MILITARY SPECIFICATIONS FOR SIMILAR ITEMS AND, AT THAT, ONLY THOSE NECESSARY TO ASSURE THAT THE GOVERNMENT RECEIVES ITEMS SUITABLE FOR THEIR INTENDED PURPOSE. MOREOVER, LIKE THE REFERENCED MILITARY SPECIFICATIONS, SUBJECT PD CONTAINS PERFORMANCE TEST REQUIREMENTS (PARAGRAPH 4.5.3) BY WHICH TO 'SEPARATE THE WHEAT FROM THE CHAFF'.

"6. ALLEGATION: 'WHILE ASPR 1-1202 PROVIDES THAT MANDATORY SPECIFICATIONS NEED NOT BE USED WHEN IT IS DETERMINED THAT SPECIFICATIONS DO NOT MEET THE PARTICULAR OR ESSENTIAL NEEDS OF A BUREAU, SERVICE, OR COMMAND, IT FURTHER STATES IN (D) "WHENEVER A SPECIFICATION IS FOUND TO BE INADEQUATE, IMMEDIATE ACTION SHALL BE TAKEN TO EFFECT THE ISSUANCE OF AN AMENDMENT OR A REVISION IN ACCORDANCE WITH ESTABLISHED PROCEDURES, TO OBVIATE THE NECESSITY FOR REPEATED DEPARTURES FROM THE SPECIFICATIONS." TO THIS DATE DIPEC HAS NOT BEEN CONTACTED BY ROCK ISLAND FOR PURPOSE OF AMENDING THE SPECIFICATION, ALTHOUGH THEY HAVE, ON A NUMBER OF OCCASIONS PURCHASED TO MONARCH OR EQUAL SPECIFICATIONS.'

"RESPONSE: FEDERAL STOCK NUMBER (FSN): 3416-449-7192 IS APPLICABLE TO THE ITEM SOLICITED UNDER CANCELED IFB -0176 AND IFB 0807 WHICH ULTIMATELY RESULTED IN CONTRACT NO. -0383. A REVIEW OF ROCK ISLAND ARSENAL PROCUREMENT RECORDS REVEALS THAT THE ONLY PREVIOUS PROCUREMENT OF SUBJECT ITEM WAS IN 1950, PRIOR TO THE INCEPTION OF EITHER OF THE REFERENCED MILITARY SPECIFICATIONS. IN VIEW THEREOF, IT IS OBVIOUS THAT AMERICAN IS REFERRING TO THE PROCUREMENT OF ITEMS OTHER THAN SUBJECT ITEM WHEN IT STATES THAT ROCK ISLAND ARSENAL HAS 'ON A NUMBER OF OCCASIONS PURCHASED TO MONARCH OR EQUAL SPECIFICATIONS'. HOWEVER, THE APPLICABILITY OF A PARTICULAR SPECIFICATION MUST BE CONSIDERED FOR EACH ITEM PURCHASED AND THE INAPPLICABILITY OF ONE SPECIFICATION TO TWO DIFFERENT ITEMS, RESULTING IN TWO DIFFERENT DEVIATIONS THEREFROM, DOES NOT CONSTITUTE 'REPEATED DEPARTURES FROM THE SPECIFICATION' WITHIN THE PURVIEW OF ASPR 1-1202 (D). BASED ON THE FOREGOING, IT IS APPARENT THAT THERE HAS BEEN NO VIOLATION OF ASPR 1-1202; THEREFORE, THE INSTANT ALLEGATION IS WITHOUT MERIT. "7. ALLEGATION: 'IT IS UNDERSTANDABLE THAT THERE ARE TIMES WHEN SPECIFIC REQUIREMENTS ARE NECESSARY FOR A PARTICULAR JOB. WE ARE AT A LOSS, THOUGH, TO SEE HOW MACHINES GOING TO A NUMBER OF DESTINATIONS, SOME OF THESE BEING DEPOTS AND SOME TO FOREIGN GOVERNMENTS, CAN HAVE SPECIAL REQUIREMENTS WHICH ARE KNOWN TO THE BUYER. WE FIND THIS EXPLANATION A BIT HARD TO ACCEPT. WE ARE NOT TRYING TO DICTATE TO THE GOVERNMENT WHICH SPECIFICATIONS WILL BE USED IN PROCUREMENTS.'

"RESPONSE: * * * IT APPEARS THAT THE PROTESTANT FAILS TO RECOGNIZE THAT THE PROCUREMENT PERSONNEL (WHETHER THE CONTRACTING OFFICER OR THE PROCUREMENT AGENT) DO NOT DETERMINE THE 'MINIMUM NEEDS' OR (SPECIAL REQUIREMENTS) OF THE USER BUT MERELY ACT AS A CONDUIT TO INDUSTRY OF THOSE REQUIREMENTS, AS SPECIFIED BY THE PARTICULAR USER. IN SO DOING, MANY DIFFERENT USERS, WHO HAVE REQUIREMENTS SUBSTANTIALLY THE SAME, CAN BE SATISFIED SIMULTANEOUSLY BY COMBINING THEIR RESPECTIVE INDIVIDUAL REQUIREMENTS INTO A SINGLE PROCUREMENT ACTION; THEREBY CONSERVING ADMINISTRATIVE AND PROCUREMENT LEAD TIME AND EXPENSE.

"9. ALLEGATION: 'THE ACTION OF ROCK ISLAND ARSENAL IN DICTATING WHICH MODELS OF LATHE SHALL BE BID MIGHT BE COMPARED TO GSA'S ISSUANCE FOR AN IFB FOR SEDANS STATING THAT BIDS ON FORD 500, CHRYSLER IMPERIAL, AND LINCOLN CONTINENTAL ONLY WOULD BE ACCEPTABLE. THE ONLY TRUE MEASURE OF ANY MACHINE IS ITS CAPABILITIES, NOT ITS DESIGN CHARACTERISTICS.'

"RESPONSE: ASPR 1-1206.1 (A) PROVIDES, IN PART:

"'... PURCHASE DESCRIPTIONS SHALL NOT BE WRITTEN SO AS TO SPECIFY ... A PARTICULAR FEATURE OF A PRODUCT ... UNLESS IT IS DETERMINED THAT THE PARTICULAR FEATURE IS ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS ....'

"THIS PROVISION ACKNOWLEDGES THAT DESIGN CHARACTERISTICS MAY, IN FACT, AFFECT PERFORMANCE CAPABILITY AND, IN SUCH INSTANCES, THE GOVERNMENT MAY SPECIFY CERTAIN DESIGN CHARACTERISTICS TO ASSURE THAT IT RECEIVES AN ITEM SUITABLE FOR ITS INTENDED PURPOSES. THE FOREGOING PARAGRAPHS CLEARLY EVIDENCE THAT THIS IS PRECISELY WHAT THE GOVERNMENT HAS DONE IN THE INSTANT PROCUREMENT.

"11. ALLEGATION: 'WE ASK ONLY FOR A FAIR AND UNBIASED OPPORTUNITY TO BID, AND THAT OUR PRODUCT NOT BE PREJUDGED BY ANY INDIVIDUAL ACCORDING TO HIS PERSONAL WHIMS OR FOR PERSONAL REASONS.'

"RESPONSE: NO INDIVIDUAL, OR GROUP OF INDIVIDUALS, HAS PREJUDGED ANY PRODUCT OF AMERICAN TOOL WORKS COMPANY 'ACCORDING TO HIS PERSONAL WHIMS OR FOR PERSONAL REASONS.' THE GOVERNMENT HAS PROPERLY PREPARED A PURCHASE DESCRIPTION WHICH ACCURATELY SPECIFIES THE MINIMUM NEEDS OF THE GOVERNMENT. IN CONJUNCTION THEREWITH, ROCK ISLAND ARSENAL TECHNICAL PERSONNEL HAVE EXPRESSED THE TECHNICAL OPINION THAT AMERICAN'S MODEL 20 D- 2 DOES NOT COMPLY WITH SUCH REQUIREMENTS. BY AMERICAN'S OWN ADMISSION, THEY BUILD 'A MACHINE HAVING A BED WIDTH OF GREATER THAN 19 1/2"' BUT FEEL THAT THEY 'WOULD BE WASTING (THEIR) TIME TO BID A 17,000 LB; 40 H.P. MACHINE AGAINST A 12,000 LB. 20 H.P. MACHINE.' IN REPLY THERETO, THE CONTRACTING OFFICER STATED, IN PART:

"'... WHERE RESPONSIBLE CONCERNS MANUFACTURE AN ITEM MEETING THE GOVERNMENT'S REQUIREMENTS, SUCH REQUIREMENTS CANNOT BE ALTERED MERELY BECAUSE OTHER RESPONSIBLE CONCERNS HAVE DESIGNED THEIR ITEMS TO EXCEED SUCH REQUIREMENTS AND HAVE THEREFORE PRICED THEMSELVES OUT OF COMPETITION.'

"IT IS THEREFORE OBVIOUS THAT THE PROTESTANT WAS NOT PRECLUDED FROM SUBMITTING A BID PURSUANT TO SUBJECT REQUIREMENTS AND HAD THEY DONE SO AND BEEN DETERMINED TO BE THE LOW RESPONSIVE, RESPONSIBLE BIDDER, THEY WOULD HAVE RECEIVED AN AWARD.'"

WE FIND NO BASIS TO DISAGREE WITH THE POSITIONS ADVANCED BY THE PROCUREMENT ACTIVITY; AND SINCE THERE IS INVOLVED HERE PRIMARILY A MATTER RELATING TO THE ADEQUACY OR CONTENT OF THE SPECIFICATIONS, THERE IS APPLICABLE THE WELL-ESTABLISHED RULE OF OUR OFFICE AS STATED IN 36 COMP. GEN. 251, 252 (1956):

"THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY FOR ADMINSTRATIVE AGENCIES. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF THIS OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368; 33 ID. 586. THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE 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 NEED."

ACCORDINGLY, OUR DECISION OF OCTOBER 31, 1969, IS AFFIRMED.