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B-166513, APR. 30, 1969

B-166513 Apr 30, 1969
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YOU CLAIM THAT A REQUIREMENT IN THE IFB CONCERNING THE DESIGN OF THE BURNER USED IN THE END ITEM IS RESTRICTIVE. THE IFB STIPULATED THAT THE OXIDIZER WAS TO COMPLY WITH CERTAIN SPECIFICATIONS AND THREE DRAWINGS WHICH INCLUDED NUMEROUS DETAILS. PAGE 8 OF THE IFB CARRIED A NOTATION TO THE EFFECT THAT THE SPECIFICATIONS WERE MINIMUM STANDARDS FOR OPERATION AND PERFORMANCE OF THE EQUIPMENT. PAGE 9 STATED THAT EACH BIDDER WAS TO FURNISH ITS OWN DRAWINGS AS PART OF ITS BID AND CAUTIONED THAT FAILURE OF THE DRAWINGS TO SHOW COMPLIANCE OF THE OFFERED ITEM WITH THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THE IFB WOULD REQUIRE REJECTION OF THE BID. YOU INDICATE THAT YOU HAVE BEEN ALLOWED TO TAKE VARIOUS EXCEPTIONS TO THE SPECIFICATIONS BUT NOT TO THE REQUIREMENTS PERTAINING TO THE BURNER.

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B-166513, APR. 30, 1969

TO THERMAL RESEARCH AND ENGINEERING CORPORATION:

WE REFER TO YOUR PROTEST BY LETTER OF MARCH 20, 1969, AGAINST ANY AWARD UNDER INVITATION FOR BIDS (IFB) S4391160, ISSUED MARCH 11, 1969, BY THE BUREAU OF MINES, DEPARTMENT OF THE INTERIOR, FOR THE PROCUREMENT OF A WASTE GAS THERMAL OXIDIZER FOR THE LARAMIE PETROLEUM RESEARCH CENTER, LARAMIE, WYOMING. YOU CLAIM THAT A REQUIREMENT IN THE IFB CONCERNING THE DESIGN OF THE BURNER USED IN THE END ITEM IS RESTRICTIVE.

THE IFB STIPULATED THAT THE OXIDIZER WAS TO COMPLY WITH CERTAIN SPECIFICATIONS AND THREE DRAWINGS WHICH INCLUDED NUMEROUS DETAILS. PAGE 8 OF THE IFB CARRIED A NOTATION TO THE EFFECT THAT THE SPECIFICATIONS WERE MINIMUM STANDARDS FOR OPERATION AND PERFORMANCE OF THE EQUIPMENT. PAGE 9 STATED THAT EACH BIDDER WAS TO FURNISH ITS OWN DRAWINGS AS PART OF ITS BID AND CAUTIONED THAT FAILURE OF THE DRAWINGS TO SHOW COMPLIANCE OF THE OFFERED ITEM WITH THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THE IFB WOULD REQUIRE REJECTION OF THE BID.

BY LETTER OF MARCH 13, YOU RAISED VARIOUS QUESTIONS WITH THE USING ACTIVITY CONCERNING THE IFB REQUIREMENTS. AMONG OTHER THINGS, YOU SPECIFICALLY CHARGED THAT ONE OF THE DRAWINGS FURNISHED WITH THE IFB SHOWED DETAILS OF A BURNER MANUFACTURED BY A COMPETITOR, A TYPE OF BURNER WHICH YOU DID NOT MANUFACTURE, THEREBY PRECLUDING YOU FROM BIDDING.

IN YOUR PROTEST TO OUR OFFICE, YOU INDICATE THAT YOU HAVE BEEN ALLOWED TO TAKE VARIOUS EXCEPTIONS TO THE SPECIFICATIONS BUT NOT TO THE REQUIREMENTS PERTAINING TO THE BURNER. ACCORDINGLY, YOU CONTEND THAT THE USING ACTIVITY'S INSISTENCE ON BEING FURNISHED THE BURNER AS DESCRIBED IN THE IFB DRAWING MAKES IT IMPOSSIBLE FOR YOU TO BE COMPETITIVE AND RENDERS THE PROCUREMENT SOLE SOURCE. YOU THEREFORE PROTEST AWARD UNDER THE IFB AND URGE THAT A LESS RESTRICTIVE SPECIFICATION BE WRITTEN SO THAT ALL INTERESTED CONTRACTORS MAY HAVE A FAIR AND EQUAL OPPORTUNITY TO HAVE THEIR BIDS CONSIDERED.

ON MARCH 25, BIDS WERE OPENED AS SCHEDULED. ONE FIRM INDICATED THAT IT DID NOT DESIRE TO SUBMIT A BID. OF THE SIX FIRMS WHO BID, YOU WERE LOWEST WITH A BID OF $8,250; HOWEVER, YOU WERE NONRESPONSIVE DUE TO YOUR FAILURE TO INCLUDE DRAWINGS WITH YOUR BID. THE FIVE REMAINING BIDS RANGED FROM $10,761 TO $19,747, AND THE BUREAU OF MINES HAS ADVISED OUR OFFICE THAT EACH OF THE BIDDERS OFFERED A BURNER OF ITS OWN MANUFACTURE WHICH MET THE GOVERNMENT'S REQUIREMENTS. AS TO THE BURNER DRAWING WHICH WAS INCLUDED IN THE BID PACKAGE, THE BUREAU STATES THAT THE DRAWING ORIGINATED WITH THE BUREAU, AND IS NOT A DRAWING OF THE BURNER OF ANY PARTICULAR MANUFACTURER; THAT IT REFLECTS THE GOVERNMENT'S MINIMUM NEEDS FOR THE BURNER; AND THAT TO THE BEST OF ITS KNOWLEDGE THE TERM "THERMAL OXIDIZER" IS NOT A TRADE OR BRAND NAME.

THE DRAFTING OF SPECIFICATIONS REFLECTING THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION WHETHER ITEMS OFFERED BY BIDDERS WILL MEET SUCH NEEDS ARE PRIMARILY THE RESPONSIBILITY OF THE PARTICULAR CONTRACTING AGENCY. 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 IS EITHER 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. 33 COMP. GEN. 586; 36 ID. 251; 37 ID. 323.

ALTHOUGH YOU APPARENTLY ELECTED NOT TO RESPOND TO THE REQUIREMENTS SPECIFIED IN THE IFB FOR THE BURNER, FIVE OTHER BIDDERS OBVIOUSLY DID NOT CONSIDER SUCH REQUIREMENTS UNDULY RESTRICTIVE AS IS EVIDENCED BY THE OFFER OF EACH SUCH BIDDER OF ITS OWN MAKE OF BURNER IN COMPLIANCE WITH THE SPECIFIED REQUIREMENTS. IN THE CIRCUMSTANCES, WE ARE UNABLE TO CONCUR WITH YOUR POSITION THAT THE IFB WAS UNDULY RESTRICTIVE. ACCORDINGLY, WE ARE COMPELLED TO CONCLUDE THAT THERE IS NO EVIDENCE THAT THE IFB DID NOT PERMIT THE FULL AND FREE COMPETITION CONTEMPLATED BY THE APPLICABLE PROCUREMENT STATUTE (41 U.S.C. 253 (A) (, AND YOUR PROTEST IS THEREFORE DENIED.

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