B-216740, APR 15, 1985, 85-1 CPD 428
Highlights
SINCE THERE IS NO STATUTE OR REGULATION REQUIRING A PROCURING AGENCY TO PROVIDE OFFERORS WITH SAMPLES OF PRODUCTS THAT ARE CONSIDERED ACCEPTABLE. IS UNDULY RESTRICTIVE. UNITED ALSO CONTENDS THAT THE APPLICABLE DRAWING IS INADEQUATELY REFERENCED AND DOES NOT DEFINE DIMENSIONS. THIS RESULTED IN AN AMENDMENT TO THE SOLICITATION IN WHICH THE APPLICABLE DRAWING WAS REVISED. A PROTESTER'S GENERAL ALLEGATIONS ARE NOT SUPPORTED BY ANY EVIDENCE. THERE IS NO STATUTE OR REGULATION REQUIRING PROCURING AGENCIES TO PROVIDE OFFERORS WITH SAMPLES OF PRODUCTS THAT ARE CONSIDERED ACCEPTABLE. UNITED'S PROTEST ON THIS BASIS IS WITHOUT LEGAL MERIT. UNITED'S PROTEST IS DENIED.
B-216740, APR 15, 1985, 85-1 CPD 428
CONTRACTS - PROTESTS - ALLEGATIONS - UNSUBSTANTIATED DIGEST: 1. WHEN AGENCY, BY AMENDING SOLICITATION, ATTEMPTS TO RESPOND TO A PROTESTER'S ALLEGATIONS CONCERNING UNDULY RESTRICTIVE AND/OR INADEQUATE SPECIFICATIONS AND THE PROTESTER DOES NOT POINT OUT ANY SPECIFIC PROBLEMS THAT THE AGENCY HAS FAILED TO CORRECT, BUT MERELY REITERATES ITS ORIGINAL, GENERALLY WORDED PROTEST, THE PROTESTER HAS NOT MET ITS BURDEN OF PROOF. CONTRACTS - PROTESTS - ALLEGATIONS - NOT PREJUDICIAL 2. SINCE THERE IS NO STATUTE OR REGULATION REQUIRING A PROCURING AGENCY TO PROVIDE OFFERORS WITH SAMPLES OF PRODUCTS THAT ARE CONSIDERED ACCEPTABLE, GAO FINDS A PROTEST BASED ON A REFUSAL TO DO SO WITHOUT LEGAL MERIT.
UNITED INSTRUMENT CORPORATION:
UNITED INSTRUMENT CORPORATION PROTESTS THE SPECIFICATIONS USED BY THE DEFENSE LOGISTIC'S AGENCY'S DEFENSE PERSONNEL SUPPORT CENTER (DLA) IN REQUEST FOR PROPOSALS NO. DLA120-84-R-3380. THE SOLICITATION INVITED OFFERS FOR MEDICAL FORCEPS TO BE PRODUCED IN ACCORD WITH MILITARY SPECIFICATIONS NO. MIL-F-36796, DATED SEPTEMBER 14, 1971. UNITED CONTENDS THAT THE MILITARY SPECIFICATIONS, AS IMPLEMENTED BY THE CHANGES IN DIMENSIONS AND TOLERANCES LISTED IN SECTION "C" OF THE RFP, IS UNDULY RESTRICTIVE. UNITED ALSO CONTENDS THAT THE APPLICABLE DRAWING IS INADEQUATELY REFERENCED AND DOES NOT DEFINE DIMENSIONS, ANGLES, AND RADII IN SUFFICIENT DETAIL TO ALLOW FOR PRODUCTION OF REQUIRED DIES. UNITED ALSO STATES THAT ITS REQUEST TO THE AGENCY FOR SAMPLES OF FORCEPS CONFORMING TO THE SPECIFICATION HAS IMPROPERLY BEEN REFUSED.
WE DENY THE PROTEST.
DLA REPORTS THAT IN RESPONSE TO UNITED'S PROTEST, THE CONTRACTING OFFICER REQUESTED THE TECHNICAL OPERATIONS DIVISION TO REVIEW THE SPECIFICATIONS AND DRAWING FOR POSSIBLE INADEQUACIES. THIS RESULTED IN AN AMENDMENT TO THE SOLICITATION IN WHICH THE APPLICABLE DRAWING WAS REVISED. ACCORDING TO DLA, UNITED SUBSEQUENTLY NOTIFIED THE PURCHASING AGENT THAT THE REVISION ADDRESSED THE BASIC ISSUE THAT PROMPTED ITS PROTEST TO OUR OFFICE. UNITED DOES NOT DENY THIS STATEMENT OR POINT OUT ANY SPECIFIC PROBLEMS THAT IT BELIEVE'S DLA'S AMENDMENT FAILED TO CORRECT. RATHER, IN ITS COMMENTS ON THE AGENCY REPORT, THE FIRM MERELY REITERATES ITS ORIGINAL, GENERALLY WORDED PROTEST.
WHERE, AS HERE, A PROTESTER'S GENERAL ALLEGATIONS ARE NOT SUPPORTED BY ANY EVIDENCE, THE PROTESTER HAS FAILED TO MEET ITS BURDEN OF AFFIRMATIVELY PROVING ITS CASE. CONTACT INTERNATIONAL, INC., B-207602, MAY 31, 1983, 83-1 CPD PARA. 573; SAFE EXPORT CORP., B-205122, MAR. 19, 1982, 82-1 CPD PARA. 258. WE THEREFORE DENY THE PROTEST ON THIS BASIS.
AS FOR DLA'S ALLEGEDLY IMPROPER FAILURE TO MAKE SAMPLES OF FORCEPS (APPARENTLY THOSE SUPPLIED BY UNITED'S COMPETITORS) AVAILABLE TO UNITED, THERE IS NO STATUTE OR REGULATION REQUIRING PROCURING AGENCIES TO PROVIDE OFFERORS WITH SAMPLES OF PRODUCTS THAT ARE CONSIDERED ACCEPTABLE. RATHER, PROCUREMENTS MUST BE ACCOMPLISHED BY USE OF SPECIFICATIONS AND/OR OTHER PURCHASE DESCRIPTIONS THAT STATE THE GOVERNMENT'S ACTUAL MINIMUM NEEDS AND ENCOURAGE MAXIMUM PRACTICABLE COMPETITION. SEE GENERALLY FEDERAL ACQUISITION REGULATION, 48 C.F.R. PART 10 (1984). UNITED'S PROTEST ON THIS BASIS IS WITHOUT LEGAL MERIT.
UNITED'S PROTEST IS DENIED.