B-172006, JUN 30, 1972

B-172006, JUN 30, 1972

BID PROTEST - ALLEGED RESTRICTIVENESS OF SPECIFICATIONS - NONRESPONSIVENESS DECISION AFFIRMING PRIOR DENIAL OF A PROTEST OF KENNEDY ELECTRIC CO; INC; AGAINST REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE GOVERNMENT PRINTING OFFICE (GPO). THE PRIOR DECISION, B-172006, NOV. 24, 1971, AFFIRMING GPO'S REJECTION OF THE BID FOR DEFICIENCIES IN ITS DESCRIPTIVE DATA, EXPRESSED NEITHER AGREEMENT NOR DISAGREEMENT WITH THE OPINIONS OF THE AGENCY'S ELECTRICAL ENGINEERING STAFF. HOWEVER, IT DID POINT OUT THAT ALLEGATIONS CONCERNING THE RESTRICTIVENESS OF TECHNICAL SPECIFICATIONS SHOULD BE PRESENTED TO THE PROCURING ACTIVITY PRIOR TO THE TIME FOR SUBMISSION OF BIDS. SEE SECTION 20.2(A), GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS. FURTHER, ALTHOUGH PROCURING AGENCIES ARE REQUIRED TO DRAW SPECIFICATIONS AS BROADLY AS POSSIBLE, CONSISTENT WITH THE GOVERNMENT'S ACTUAL NEEDS, ALLEGATIONS OF ARBITRARY OR CAPRICIOUS ACTION MAY ONLY BE RESOLVED WITHIN THE PARTICULAR CIRCUMSTANCES OF EACH INDIVIDUAL CASE.

TO SADUR, PELLAND & BRAUDE:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 29, 1971, WITH ATTACHED AFFIDAVIT, REQUESTING RECONSIDERATION OF OUR DECISION B-172006, NOVEMBER 24, 1971, IN WHICH WE DENIED YOUR PROTEST ON BEHALF OF KENNEDY ELECTRIC COMPANY, INC. (KENNEDY), AGAINST THE REJECTION BY THE GOVERNMENT PRINTING OFFICE (GPO) OF A LOW BID SUBMITTED BY KENNEDY UNDER AN INVITATION FOR BIDS ISSUED JULY 13, 1971, AND BEARING PURCHASE REQUEST NO. 12770.

YOU ASSERT THAT OUR NOVEMBER 24, 1971, DECISION PROVIDES A FOUNDATION FOR FUTURE RESTRICTIVE PROCUREMENTS BY UPHOLDING A LITERAL INTERPRETATION OF GPO'S TECHNICAL SPECIFICATION THAT IN ESSENCE WILL ELIMINATE ALL REGULAR MANUFACTURERS OF SWITCHGEAR EXCEPT GENERAL ELECTRIC COMPANY AND WESTINGHOUSE ELECTRIC COMPANY, THEREBY UNREASONABLY DEPRIVING THE GOVERNMENT OF THE BENEFITS OF COMPETITIVE BIDDING. IN SUPPORT OF YOUR CONTENTION, YOU INITIALLY ALLEGE THAT THE GPO ENGINEERS' CONCLUSIONS SUPPORTING THE SPECIFICATION SHOULD NOT BE BINDING ON THE COMPTROLLER GENERAL, SINCE THEY ARE CONTRARY TO THE UNDISPUTED FACTS AS GENERALLY KNOWN THROUGHOUT THE ELECTRICAL SWITCHGEAR INDUSTRY. YOU DISPUTE THE GPO POSITION THAT THERE IS INHERENTLY LESS RISK OF MALFUNCTION AND MORE TROUBLE-FREE EQUIPMENT COULD BE EXPECTED IF BOTH THE CIRCUIT BREAKERS AND THE BOARD ARE MADE BY THE SAME MANUFACTURER. YOU ATTACHED AN AFFIDAVIT OF THE PRESIDENT OF POWERCON CORPORATION, A RECOGNIZED TECHNICAL EXPERT, TO SUBSTANTIATE YOUR POSITION.

SECONDLY, YOU CONTEND THAT OUR PREVIOUS DECISION, B-156680, SEPTEMBER 9, 1965, WOULD REQUIRE OUR HOLDING THAT THE SUBJECT SPECIFICATION REQUIREMENT WAS UNDULY RESTRICTIVE. IN THIS REGARD, YOU CONTEND THAT SINCE TECHNICAL EXPERTS OF THE VETERANS ADMINISTRATION HAVE HELD THAT A SIMILAR SPECIFICATION REQUIREMENT FOR LOW VOLTAGE SWITCHGEAR WENT BEYOND THE GOVERNMENT'S MINIMUM NEEDS, GPO MUST DEMONSTRATE THAT THEIR SIMILAR SPECIFICATION REQUIREMENT FOR RELIABILITY WAS GREATER THAN THOSE OF THE VETERANS ADMINISTRATION.

AS A THIRD CONTENTION, YOU STATE THAT OUR DECISION, B-170537, DECEMBER 21, 1970, WOULD AT A MINIMUM HAVE REQUIRED THE COMPTROLLER GENERAL TO SEEK INDEPENDENT TECHNICAL ADVICE FROM SOURCES OTHER THAN THE GPO ENGINEERING STAFF. AS A FOURTH ALLEGATION, YOU CLAIM THAT GPO SHOULD HAVE ISSUED A BRAND-NAME-OR-EQUAL PURCHASE DESCRIPTION INSTEAD OF THE DETAILED SPECIFICATION, THEREBY PREVENTING ANY MISUNDERSTANDING AMONG THE SWITCHBOARD MANUFACTURERS AS TO THE TOTAL PRODUCT AND COMPONENT PARTS WHICH WOULD HAVE BEEN ACCEPTABLE.

IN VIEW OF SUCH CONTENTIONS, YOU REQUEST, AT THE MINIMUM, A CLARIFICATION OF THE DECISION OF NOVEMBER 24, 1971, WHICH WILL ELIMINATE FROM FUTURE ELECTRICAL LOW VOLTAGE SWITCHGEAR PROCUREMENTS UNNECESSARY AND UNREASONABLY RESTRICTIVE SPECIFICATIONS.

WE BELIEVE AN ANALYSIS OF THE DECISION OF NOVEMBER 24 SHOULD RELIEVE YOUR CONCERN AS TO ANY MISUNDERSTANDING OF ITS IMPORT INSOFAR AS FUTURE PROCUREMENTS OF LOW VOLTAGE SWITCHBOARDS BY GOVERNMENT AGENCIES MAY BE INVOLVED. THE BASIC ISSUE RESOLVED IN THAT DECISION WAS THE PROPRIETY OF THE REJECTION OF KENNEDY'S BID. AS STATED IN GPO'S REPORT TO THIS OFFICE OF OCTOBER 18, 1971 (A COPY OF WHICH WAS FURNISHED YOUR FIRM), GPO REJECTED KENNEDY'S BID AS NONRESPONSIVE BECAUSE THE DATA SUBMITTED THEREWITH DID NOT ESTABLISH THAT THE MAJOR ELECTRICAL COMPONENTS OF THE SWITCHBOARD OFFERED WERE GENERAL ELECTRIC COMPONENTS IN THE CONFIGURATION OF GENERAL ELECTRIC PRODUCTS AND MANUFACTURED IDENTICAL WITH EXISTING SWITCHBOARDS AT GPO. THE BID WAS NOT REJECTED BECAUSE THE NONELECTRICAL FRAME OF THE SWITCHBOARD WAS NOT OF THE SAME MANUFACTURER AS THE CIRCUIT BREAKERS, OR BECAUSE KENNEDY INTENDED TO INSTALL A SWITCHBOARD ASSEMBLED BY POWERCON RATHER THAN BY GENERAL ELECTRIC.

THE PROPRIETY OF THE ACTUAL BASIS ON WHICH KENNEDY'S BID WAS REJECTED WAS CONSIDERED BY THIS OFFICE TO BE THE PRIMARY FACTOR FOR RESOLUTION, AND WE CONCURRED WITH THE BASIS ON WHICH GPO REJECTED KENNEDY'S BID IN THE ANTEPENULTIMATE PARAGRAPH OF OUR DECISION OF NOVEMBER 24. WHILE WE RELATED IN OUR DECISION THE JUDGMENT EXPRESSED BY GPO'S ELECTRICAL ENGINEERING STAFF THAT THERE WOULD BE LESS RISK OF MALFUNCTION, AND MORE TROUBLE-FREE EQUIPMENT COULD BE EXPECTED IF BOTH THE CIRCUIT BREAKERS AND THE BOARD WERE MADE BY THE SAME MANUFACTURER, THE DECISION DID NOT EXPRESS EITHER AGREEMENT OR DISAGREEMENT WITH THAT POSITION. NEITHER DOES THE DECISION HOLD THAT IT WOULD HAVE BEEN APPROPRIATE FOR GPO TO HAVE REJECTED KENNEDY'S BID SOLELY ON THE BASIS THAT THE BOARD OFFERED WOULD HAVE BEEN ASSEMBLED BY A FIRM OTHER THAN THE MANUFACTURER OF THE COMPONENTS OF THE BOARD. THESE POINTS WERE REGARDED AS BEING ACADEMIC SINCE KENNEDY'S BID WAS CONSIDERED TO HAVE BEEN PROPERLY REJECTED FOR DEFICIENCIES IN ITS DESCRIPTIVE DATA. HOWEVER, THE DECISION DID POINT OUT THAT ALLEGATIONS CONCERNING THE RESTRICTIVENESS OF A SOLICITATION'S SPECIFICATIONS SHOULD BE PRESENTED TO THE PROCURING AGENCY PRIOR TO THE TIME FOR SUBMISSION OF BIDS. SUCH ACTION IS NOW REQUIRED BY SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, COPY ENCLOSED.

WHILE WE APPRECIATE YOUR CONCERN AS TO THE POSSIBILITY THAT AN AGENCY MIGHT ISSUE A SOLICITATION WHICH WOULD PRECLUDE THE INSTALLATION OF A SWITCHBOARD ASSEMBLED BY KENNEDY'S SUPPLIER (POWERCON), THE QUESTION OF WHETHER A SOLICITATION IS UNDULY RESTRICTIVE OF COMPETITION MUST NECESSARILY BE DECIDED UNDER THE PARTICULAR CIRCUMSTANCES PERTAINING TO THAT INDIVIDUAL PROCUREMENT. THE PROCUREMENT STATUTES REQUIRE THAT SPECIFICATIONS BE DRAWN SO AS TO PERMIT THE GREATEST AMOUNT OF COMPETITION POSSIBLE CONSISTENT WITH THE NEEDS OF THE GOVERNMENT. THIS IS AN AFFIRMATIVE RESPONSIBILITY OF THE PROCURING ACTIVITY WHICH MAY NOT BE EVADED BY ARBITRARY OR CAPRICIOUS ACTIONS, AND WHEN COMPETITION IS MATERIALLY RESTRICTED BY PRECLUDING THE USE OF PRODUCTS OF CERTAIN MANUFACTURERS THE AGENCY MUST BE ABLE TO SHOW A SUBSTANTIAL BASIS FOR ITS ACTION. IN CASES WHERE THE ITEMS BEING PROCURED ARE OF A TYPE WHICH HAS BEEN GENERALLY PRODUCED BY THE MANUFACTURING CONCERNS INVOLVED, AS WE UNDERSTAND THE SWITCHBOARDS IN QUESTION TO BE, WE TEND TO AGREE WITH THE VIEW INDICATED IN THE AFFIDAVIT OF THE PRESIDENT OF POWERCON THAT THE SUBJECTIVE JUDGMENT OF ENGINEERING PERSONNEL OF THE PROCURING ACTIVITY AS TO THE RELIABILITY OF A MANUFACTURER'S PRODUCT CAN BE OFFSET BY THE FACTUAL HISTORY OF THAT PRODUCT'S ACTUAL PERFORMANCE IN COMPARISON WITH THE PERFORMANCE HISTORIES OF THOSE PRODUCTS OF OTHER MANUFACTURERS.

IN VIEW OF THE FOREGOING, A SPECIFIC RESPONSE TO EACH OF THE ALLEGATIONS SET OUT IN YOUR REQUEST FOR RECONSIDERATION AND ENUMERATED ABOVE APPEARS TO BE UNNECESSARY.

WE TRUST THIS SATISFIES THE PURPOSE OF YOUR LETTER OF DECEMBER 29 CONCERNING THE SUBJECT DECISION OF NOVEMBER 24, 1971, WHICH IS AFFIRMED.