B-123283, AUG. 2, 1955

B-123283: Aug 2, 1955

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PETER PLATTEN: REFERENCE IS MADE TO YOUR LETTER OF JUNE 14. A REPORT IN THE MATTER WAS OBTAINED FROM THE DEPARTMENT OF THE ARMY ON APRIL 28. ACTION IN THE CASE WAS SUSPENDED FOLLOWING THE RECEIPT OF YOUR LETTER DATED MAY 13. THE VARIOUS ADMINISTRATIVE DECISIONS DO NOT REFLECT A FULL UNDERSTANDING OF YOUR PRIMARY COMPLAINT THAT THE CONTRACT SPECIFICATIONS WERE UNDULY RESTRICTIVE OF COMPETITION. THERE WAS NO CONTRACT OBLIGATION WHICH WOULD HAVE REQUIRED THE GOVERNMENT TO USE THE EQUIPMENT SUGGESTED BY THE CONTRACTOR. IF THE CONTRACT SPECIFICATIONS WERE. RESTRICTIVE OF COMPETITION AMONG QUALIFIED CONCERNS WHICH MIGHT HAVE BEEN INTERESTED IN QUOTING PRICES TO THE CONTRACTOR. IT IS OBVIOUS THAT THE CONTRACTOR COULD NOT REASONABLY HAVE EXPECTED TO TAKE ADVANTAGE OF THAT SITUATION BY INSISTING UPON A SUBSTITUTION OF EQUIPMENT WHILE AT THE SAME TIME REFUSING TO ALLOW A REDUCTION IN THE CONTRACT PRICE EQUIVALENT TO THE AMOUNT OF THE SAVINGS INVOLVED IN THE SUBSTITUTION.

B-123283, AUG. 2, 1955

TO MR. PETER PLATTEN:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1955, AND TO PREVIOUS CORRESPONDENCE RELATING TO THE PROTEST FILED BY YOU ON BEHALF OF THE FISHER AND PORTER COMPANY AGAINST THE REFUSAL OF THE CONTRACTING OFFICER AT THE FORT WORTH DISTRICT ENGINEER OFFICE TO PERMIT THE MERRITT-CHAPMAN AND SCOTT CORPORATION TO FURNISH CHLORINATION EQUIPMENT MANUFACTURED BY THE FISHER AND PORTER COMPANY INSTEAD OF PERFORMING THE WORK OF REHABILITATING TWO EXISTING GOVERNMENT-OWNED WALLACE-TIERNAN CHLORINATOR UNITS, AS REQUIRED UNDER THE SPECIFICATIONS OF CONTRACT NO. DA-41-443-ENG- 3648, DATED MAY 26, 1954, WITH THE MERRITT-CHAPMAN AND SCOTT CORPORATION.

A REPORT IN THE MATTER WAS OBTAINED FROM THE DEPARTMENT OF THE ARMY ON APRIL 28, 1955, BUT ACTION IN THE CASE WAS SUSPENDED FOLLOWING THE RECEIPT OF YOUR LETTER DATED MAY 13, 1955, INDICATING THAT YOU HAD REQUESTED THE OFFICE OF THE CHIEF OF ENGINEERS TO RECONSIDER A DECISION TO YOU OF APRIL 27 AND TO DIRECT THE CONTRACTING OFFICER TO APPROVE THE CHANGE ORDER REQUESTED BY THE MERRITT-CHAPMAN AND SCOTT CORPORATION ON FEBRUARY 2, 1955. WITH YOUR LETTER DATED JUNE 14, 1955, YOU FORWARDED HERE A COPY OF A LETTER DATED JUNE 6, 1955, FROM THE OFFICE OF THE CHIEF OF ENGINEERS, AND A COPY OF YOUR REPLY THERETO OF JUNE 14.

WHILE YOU ADVISED THE OFFICE OF THE CHIEF OF ENGINEERS THAT ITS LETTER OF JUNE 6, 1955, HAS BEEN TAKEN AS THE FINAL DECISION OF THAT OFFICE, IT APPEARS THAT, IN YOUR OPINION, THE VARIOUS ADMINISTRATIVE DECISIONS DO NOT REFLECT A FULL UNDERSTANDING OF YOUR PRIMARY COMPLAINT THAT THE CONTRACT SPECIFICATIONS WERE UNDULY RESTRICTIVE OF COMPETITION.

OF COURSE, AS CONCLUDED BY THE CONTRACTING OFFICER, THERE WAS NO CONTRACT OBLIGATION WHICH WOULD HAVE REQUIRED THE GOVERNMENT TO USE THE EQUIPMENT SUGGESTED BY THE CONTRACTOR. IF THE CONTRACT SPECIFICATIONS WERE, IN FACT, RESTRICTIVE OF COMPETITION AMONG QUALIFIED CONCERNS WHICH MIGHT HAVE BEEN INTERESTED IN QUOTING PRICES TO THE CONTRACTOR, IT IS OBVIOUS THAT THE CONTRACTOR COULD NOT REASONABLY HAVE EXPECTED TO TAKE ADVANTAGE OF THAT SITUATION BY INSISTING UPON A SUBSTITUTION OF EQUIPMENT WHILE AT THE SAME TIME REFUSING TO ALLOW A REDUCTION IN THE CONTRACT PRICE EQUIVALENT TO THE AMOUNT OF THE SAVINGS INVOLVED IN THE SUBSTITUTION.

THE PREPARATION OF SPECIFICATIONS FOR THE PROCUREMENT OF NEEDED SUPPLIES OR SERVICES IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING ADMINISTRATIVE AGENCY. WHILE IT IS THE DUTY OF THE RESPONSIBLE OFFICIALS TO REQUIRE NOTHING MORE THAN NECESSARY TO MEET THE ACTUAL REASONABLE NEEDS OF THE GOVERNMENT, AND NOT TO IMPOSE, ON THE BASIS OF MERE PERSONAL PREFERENCE OR FAVOR, REQUIREMENTS HAVING NO REASONABLE RELATIONSHIP TO THE NEEDS TO BE FILLED BUT TENDING MERELY TO LIMIT THE POTENTIAL AREA OF COMPETITION, THERE IS NECESSARILY A CONSIDERABLE SCOPE FOR THE EXERCISE OF A SOUND ADMINISTRATIVE DISCRETION. IN THE ABSENCE OF CLEAR INDICATION OF ABUSE OF THAT DISCRETION, WE DO NOT UNDERTAKE TO INTERFERE WITH THE ADMINISTRATIVE ACTION, AND IN THE CIRCUMSTANCES OF THIS CASE WE FIND NO SUCH INDICATION.

THE ADOPTION OF THE CONTRACT SPECIFICATIONS AS WRITTEN BY THE PRIVATE ARCHITECTURAL AND ENGINEERING FIRM EMPLOYED BY THE GOVERNMENT DOES NOT APPEAR TO HAVE BEEN UNREASONABLE, SINCE, AS A GENERAL RULE, THE REPAIR OF AN ITEM OF EQUIPMENT IS LESS COSTLY THAN THE PURCHASE OF A NEW ITEM AND THERE IS NO SUGGESTION THAT IT WAS KNOWN WHEN THE SPECIFICATIONS WERE DRAWN THAT NEW EQUIPMENT MIGHT BE CHEAPER. FURTHERMORE, A MANUFACTURER OF AN ARTICLE ORDINARILY WOULD BE ONE OF THE BEST SOURCES, IF NOT THE SOLE COURSE, FOR OBTAINING EXTENSIVE REPAIRS OR REBUILDING OF THE ARTICLE, AND WE CANNOT SAY THAT THERE COULD BE NO REASONABLE JUSTIFICATION FOR REQUIRING SUCH REPAIR OR REBUILDING TO BE DONE BY THE MANUFACTURER. FINALLY, THE OPINION OF THE ARCHITECT-ENGINEER, ACCEPTED BY THE ADMINISTRATIVE OFFICIALS, THAT THE PERFORMANCE RECORD OF YOUR EQUIPMENT WAS OF INSUFFICIENT DURATION TO COMPLETELY ESTABLISH ITS DEPENDABILITY, IS A MATTER OF TECHNICAL JUDGMENT AS TO WHICH WE WOULD BE MOST RELUCTANT TO QUESTION THE ADMINISTRATIVE CONCLUSION, ESPECIALLY AS IT DIRECTLY CONCERNS THE SAFETY OF THE WATER SUPPLY FOR A SIZEABLE ARMY POST AND A CONSIDERABLE CIVILIAN POPULATION AS WELL. FOR THE SAME REASON, YOUR OFFER OF AN ABSOLUTE REPLACEMENT GUARANTY FOR FIVE YEARS MAY NOT BE REGARDED AS ADEQUATE JUSTIFICATION FOR ACCEPTANCE OF THE PROPOSED SUBSTITUTION.

FOR THE REASONS STATED, WE CONCLUDE THAT NO ACTION IN THE MATTER BY THIS OFFICE IS REQUIRED.