B-159868, APR. 18, 1968

B-159868, APR. 18, 1968

TO CENTRAL WEST INTERNATIONAL CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 5, 1968, WITH RESPECT TO REQUEST FOR PROPOSALS (RFP) NO. DAJA-68-R-0300, ISSUED BY THE UNITED STATES ARMY PROCUREMENT CENTER, FRANKFURT, GERMANY, FOR THE PROCUREMENT OF DOMESTIC COAL FOR USE AT EUROPEAN BASES.

YOU PROTEST AGAINST THE REQUIREMENT IN THE MINE DESCRIPTION FORMS, ATTACHED TO THE RFP, TO DESCRIBE MINES RATHER THAN BREAKERS. IN THIS REGARD, YOU POINT TO THE RFP CLAUSE WHEREIN THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OFFER WHICH SUBMITS MINE DESCRIPTION FORMS DESCRIBING A BREAKER NOT A MINE. YOU CONTEND THAT THE CLAUSE IS AMBIGUOUS BECAUSE, WHILE RAW COAL FROM A SPECIFIC MINE GENERALLY WILL NOT MEET THE SIZE AND QUALITY REQUIREMENTS OF THE SPECIFICATIONS BEFORE PROCESSING BY A BREAKER, IN MANY CASES IT WILL MEET SPECIFICATIONS AFTER SUCH PROCESSING. YOU THEREFORE ARGUE THAT THE IMPORTANT CONSIDERATION IS WHETHER OR NOT THE BREAKER CAN PROCESS RAW COAL TO MEET THE SPECIFICATION TOLERANCES, AND THAT THE MINE DESCRIPTION FORMS THEREFORE SHOULD DESCRIBE BREAKERS RATHER THAN MINES, AS HAS BEEN DONE IN THE PAST. ADDITIONALLY, YOUR PROTEST CONCERNS THE SPECIFICATION REQUIREMENTS THEMSELVES, WHICH YOU CONTEND ARE UNREALISTIC AND WHICH RELATE TO THE PRACTICE OF TESTING COAL FOR DELIVERY UNDER THE CONTRACT IN EUROPE RATHER THAN AT THE PORT OF LOADING IN THE UNITED STATES. YOU ALSO PROTEST AGAINST THE PRACTICE OF ACCEPTING QUANTITY DISCOUNTS FROM THE LARGER SUPPLIERS.

WITH RESPECT TO THE MINE DESCRIPTION FORMS AND THE EUROPEAN TESTING, THE DEPARTMENT OF THE ARMY IN A REPORT TO OUR OFFICE DATED MARCH 15, 1968, COMMENTED AS FOLLOWS:

"AS A RESULT OF THIS PROTEST CONCERNING MINE DESCRIPTION FORMS, WE HAVE DETERMINED THAT CERTAIN ELEMENTS OF THE ARMY WERE UNDER THE MISTAKEN IMPRESSION THAT THE BUREAU OF MINES INSPECTED AND APPROVED CERTAIN MINES DESCRIBED ON THESE FORMS AS BEING A POTENTIALLY ACCEPTABLE SOURCE OF COAL WHICH COULD MEET THE SPECIFICATIONS. SINCE IT HAS NOW BEEN DETERMINED THAT THE BUREAU OF MINES DOES NOT IN FACT PERFORM THIS FUNCTION, THE OBJECTIONABLE PORTION OF SP-3D IN THE FY 69 SOLICITATION WILL BE DELETED.

"WITH RESPECT TO THE PROTESTANT'S REQUEST THAT CONSIDERATION BE GIVEN TO SAMPLING AND TESTING AT THE PORT OF LOADING, EXPERIENCE HAS SUBSTANTIATED THE AMERICAN SOCIETY OF TESTING AND MATERIALS (ASTM) CONCLUSION THAT -TOP SAMPLING- OF RAIL CARS IS THE LEAST RELIABLE METHOD OF TESTING. OUR EXPERIENCE HAS SHOWN THAT COAL SAMPLED AND TESTED IN EUROPE AVERAGES AS MUCH AS 1 PERCENT HIGHER ASH CONTENT WHEN HOLD SAMPLING IS USED. THEREFORE, -TOP SAMPLING- AT THE PORT OF LOADING IS NOT SUFFICIENTLY RELIABLE FOR PURPOSES OF ACCEPTANCE.'

WE ASSUME THAT THE ARMY'S ANSWER CONCERNING THE MINE DESCRIPTION FORMS ADEQUATELY DISPOSES OF THAT PORTION OF YOUR PROTEST. ON THE QUESTION OF TESTING, WE MUST CONCLUDE THAT THE ARMY'S CURRENT PRACTICE IS NOT SUBJECT TO QUESTION BY OUR OFFICE. MATTERS OF CONTRACT ADMINISTRATION, SUCH AS IS INVOLVED HERE, ARE PECULIARLY WITHIN THE DISCRETION OF THE PROCURING AGENCY AND OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE PROCURING AGENCY ABSENT CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY'S ACTIONS ARE ARBITRARY, CAPRICIOUS, OR WITHOUT SUBSTANTIAL BASIS IN FACT. WE ARE NOT CONVINCED THAT SUCH EVIDENCE EXISTS HERE.

THE OTHER POINTS RAISED IN YOUR PROTEST ARE DISCUSSED IN OUR DECISION OF TODAY TO THE SECRETARY OF THE ARMY, A COPY OF WHICH IS ENCLOSED, ON THE PROTEST OF INDEPENDENT MINERS AND ASSOCIATES CONCERNING THIS PROCUREMENT.