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B-162067, OCT. 24, 1967

B-162067 Oct 24, 1967
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NO INSTANCE IS KNOWN WHERE A CONTRACTOR WAS DENIED PERMISSION TO MAKE CHANGES AND PROTESTANT WAS PERMITTED CHANGE IN ANOTHER CONTRACT FOR SAME EQUIPMENT. TO REDMANSON CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JULY 14 AND 28. YOU CONTEND THAT THE SPECIFICATIONS ARE INADEQUATE AND RESTRICTIVE AS THE CONTRACTOR MUST MEET CERTAIN PERFORMANCE REQUIREMENTS AND AT THE SAME TIME COMPLY WITH THE TRANE DRAWINGS WHICH ARE INCOMPLETE AND NOT WARRANTED TO MEET THE PERFORMANCE REQUIREMENTS. YOU CONTEND THAT PARAGRAPH 6.3 OF THE SPECIFICATIONS PRECLUDES THE CONTRACTOR FROM MAKING THE MAJOR CHANGES IN THE DRAWINGS NECESSARY TO MEET THE PERFORMANCE REQUIREMENTS AND THAT YOUR EXPERIENCE WITH A SIMILAR INVITATION INDICATES THAT NO CHANGES IN THE DRAWINGS ARE PERMITTED.

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B-162067, OCT. 24, 1967

BIDS - SPECIFICATIONS - RESTRICTIVE DECISION TO REDMANSON CORPORATION RE PROTEST TO RESTRICTIVE SPECIFICATIONS FOR AIR CONDITIONERS BY KELLY AIR FORCE BASE. PROTESTANT WHO CLAIMS THAT SPECIFICATIONS WHICH PRECLUDE CONTRACTOR FROM MAKING CHANGES IN DRAWINGS HAS EFFECT OF PREVENTING ALL BUT ONE MANUFACTURER FROM COMPLYING WITH SPECIFICATIONS HAS NOT FURNISHED ANY BASIS FOR GAO TO OBJECT SINCE LANGUAGE OF SPECIFICATIONS PERMITS CHANGES, NO INSTANCE IS KNOWN WHERE A CONTRACTOR WAS DENIED PERMISSION TO MAKE CHANGES AND PROTESTANT WAS PERMITTED CHANGE IN ANOTHER CONTRACT FOR SAME EQUIPMENT.

TO REDMANSON CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JULY 14 AND 28, 1967, PROTESTING AGAINST THE SPECIFICATIONS USED IN INVITATIONS FOR BIDS NO. F41608-67-B-2295 AND NO. F41608-68-B-0036, ISSUED BY KELLY AIR FORCE BASE, FOR AIR CONDITIONERS TO BE MANUFACTURED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-A-38347B (USAF), DATED DECEMBER 12, 1966, AND TRANE COMPANY DRAWING LIST A4524/4150 (EXT. 6), AND MILITARY SPECIFICATION MIL-A -38462A (USAF), DATED APRIL 17, 1967,AND TRANE COMPANY DRAWING D/6 A4524/4800 (EXT. 6), RESPECTIVELY.

YOU CONTEND THAT THE SPECIFICATIONS ARE INADEQUATE AND RESTRICTIVE AS THE CONTRACTOR MUST MEET CERTAIN PERFORMANCE REQUIREMENTS AND AT THE SAME TIME COMPLY WITH THE TRANE DRAWINGS WHICH ARE INCOMPLETE AND NOT WARRANTED TO MEET THE PERFORMANCE REQUIREMENTS. FURTHER, YOU CONTEND THAT PARAGRAPH 6.3 OF THE SPECIFICATIONS PRECLUDES THE CONTRACTOR FROM MAKING THE MAJOR CHANGES IN THE DRAWINGS NECESSARY TO MEET THE PERFORMANCE REQUIREMENTS AND THAT YOUR EXPERIENCE WITH A SIMILAR INVITATION INDICATES THAT NO CHANGES IN THE DRAWINGS ARE PERMITTED. AS A RESULT, YOU CONTEND THAT THE MAJOR COMPONENTS OF THE AIR CONDITIONER MUST BE PROCURED FROM TRANE WHICH, HOWEVER, WILL NOT GUARANTEE THAT THEIR COMPONENTS WILL COMPLY WITH THE SPECIFICATIONS. THEREFORE, IT IS YOUR CONTENTION THAT ALL BUT TRANE ARE EFFECTIVELY PRECLUDED FROM BIDDING ON THESE PROCUREMENTS. FINALLY, IT IS YOUR POSITION THAT THE AIR FORCE IS ATTEMPTING TO BUY AN ITEM PROPRIETARY TO TRANE WHICH SHOULD HAVE EITHER BEEN A SOLE-SOURCE NEGOTIATION OR ADVERTISED WITH PERFORMANCE SPECIFICATIONS WITHOUT REFERENCE TO THE TRANE DRAWINGS.

PARAGRAPH 6.3 OF THE SPECIFICATIONS READS, IN PERTINENT PART, AS FOLLOWS: "* * * THE DRAWINGS FURNISHED REPRESENT EFFORTS OF THE GOVERNMENT TO DEFINE THE REQUIREMENTS OF THE SPECIFICATION. WHEREVER APPROPRIATE, REVISIONS OR CHANGES TO THE DRAWINGS SHALL BE MADE TO MEET THE PERFORMANCE REQUIREMENTS OF THE SPECIFICATION. HOWEVER, CHANGES TO THE DRAWINGS THAT AFFECT THE INTERCHANGEABILITY OF PARTS, ASSEMBLIES, OR SUBASSEMBLIES SPECIFIED ON THE DRAWINGS WILL NOT BE MADE WITHOUT PRIOR APPROVAL FROM THE PROCURING ACTIVITY.'

IT IS CLEAR FROM THIS LANGUAGE THAT, WITH THE LIMITATION STATED THEREIN WITH RESPECT TO INTERCHANGEABILITY, CHANGES IN THE DRAWINGS ARE CONTEMPLATED AND PERMITTED. FURTHERMORE, THE AIR FORCE REPORTS THAT NO INSTANCE IS KNOWN WHERE YOU WERE DENIED PERMISSION TO MAKE DRAWING CHANGES. TO ILLUSTRATE THAT CHANGES IN SITUATIONS OF THIS KIND ARE PERMITTED WHERE SUFFICIENT REASON EXISTS, THE AIR FORCE POINTS OUT THAT UNDER CONTRACT NO. F41608-67-C-3506, DATED NOVEMBER 4, 1966, FOR AIR CONDITIONERS, TYPE A/E32C-9, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL -A-27712D AND KECO INDUSTRIES DRAWING LIST J65000, YOU WERE PERMITTED TO SUBSTITUTE A DYNA CORPORATION MOTOR FOR ONE MANUFACTURED BY LOUIS ALLIS COMPANY, WHICH WAS NOT AVAILABLE.

THE AIR FORCE DENIES THAT THE AIR CONDITIONERS BEING PROCURED ARE PROPRIETARY TO TRANE AND POINTS OUT THAT THERE ARE THREE MANUFACTURERS PRODUCING AIR CONDITIONERS SIMILAR TO THOSE CALLED FOR UNDER THE SUBJECT IFB AND THAT THEY ARE BEING PRODUCED FROM TRANE DRAWINGS OR GOVERNMENT DRAWINGS DEVELOPED FROM TRANE DRAWINGS. IT IS ALSO THE AIR FORCE'S POSITION THAT USE OF THE DRAWINGS IN CONJUNCTION WITH THE PERFORMANCE SPECIFICATIONS PROVIDES A BASIS FOR A MANUFACTURER TO PRODUCE THE REQUIRED AIR CONDITIONERS IN A SHORTER PERIOD OF TIME WITH LESS EFFORT AND EXPENSE THAN WOULD BE THE CASE IF HE HAD TO ORIGINATE HIS OWN DRAWINGS. IT IS ALSO REPORTED THAT THIS METHOD OF PROCUREMENT HAS BEEN SUCCESSFULLY USED IN THE PAST AND HAS RESULTED IN THE PROCUREMENT OF EQUIPMENT MEETING THE MINIMUM REQUIREMENTS OF THE AIR FORCE AT REASONABLE COMPETITIVE PRICES. AN AIR CONDITIONER IDENTICAL TO THAT CALLED FOR UNDER INVITATION FOR BIDS NO. F41608-67-B-2295 IS BEING PROCURED FROM KECO UNDER CONTRACT NO. F41608 -67-C-5966, WHICH WAS FORMALLY ADVERTISED UNDER THE SAME SPECIFICATIONS AS USED HERE.

BIDS WERE RECEIVED FROM TRANE AND KECO UNDER INVITATION FOR BIDS NO. F41608-67-B-2295, AND TRANE WAS LOW. HOWEVER, THE INVITATION WAS CANCELLED AND THE REQUIREMENT WILL BE READVERTISED. THE DECISION TO CANCEL WAS NOT INFLUENCED BY YOUR PROTEST, BUT RATHER RESULTED FROM A DETERMINATION TO REVISE THE SPECIFICATIONS TO INCREASE THE MAXIMUM ALLOWABLE WEIGHT AND POWER CONSUMPTION AND REDUCE THE MAXIMUM REQUIRED COOLING CAPACITY, WHICH ARE REPORTED TO BE SUBSTANTIVE CHANGES INSOFAR AS COST IS CONCERNED. THE SAME TWO COMPANIES, TRANE AND KECO, SUBMITTED BIDS UNDER INVITATION FOR BIDS NO. F41608-68-B-0036 AND KECO IS LOW. AWARD UNDER THIS INVITATION FOR BIDS IS BEING HELD IN ABEYANCE PENDING OUR DECISION.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THESE SPECIFICATIONS IS PRIMARILY THAT OF THE ADMINISTRATIVE AGENCY CONCERNED. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF OUR 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 NEEDS IS NOT SUFFICIENT TO WARRANT THE CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 36 COMP. GEN. 251. THE RECORD BEFORE OUR OFFICE CONTAINS NO EVIDENCE THAT THE SPECIFICATIONS PRECLUDED ALL BUT THE TRANE COMPANY FROM MEETING THE REQUIREMENTS SET OUT THEREIN. TO THE CONTRARY, IT IS REPORTED THAT AT LEAST ONE OTHER FIRM HAS BID UNDER THE SPECIFICATIONS HERE INVOLVED AND THAT THERE ARE THREE MANUFACTURERS PRODUCING AIR CONDITIONERS SIMILAR TO THOSE CALLED FOR IN THESE PROCUREMENTS.

ACCORDINGLY, THERE IS NO BASIS UPON WHICH OUR OFFICE MAY PROPERLY OBJECT TO THE SPECIFICATIONS USED IN THE SUBJECT INVITATIONS.

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