B-125314, NOV. 29, 1955

B-125314: Nov 29, 1955

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INC.: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE ACCEPTANCE BY THE DEPARTMENT OF THE ARMY. AS YOU WERE ADVISED. THE SECRETARY OF THE ARMY WAS REQUESTED TO FURNISH A COMPLETE REPORT IN THE MATTER. THE REPORT HAS BEEN RECEIVED AND IS AS FOLLOWS: "A SURVEY HAS BEEN MADE IN CONNECTION WITH COMPLAINTS FOR ALL PROJECTS LISTED BY GRESHAM AND COMPANY. THIS SURVEY INDICATES THAT ACCEPTANCE OF EQUIPMENT WAS IN ACCORDANCE WITH THE REQUIREMENTS OF THE CONSTRUCTION CONTRACTS. IN SEVERAL INSTANCES THE SURVEY INDICATES THAT APPROVAL WAS MADE WITH MINOR DEVIATIONS IN ACCESSORIES. "MINOR DEVIATIONS HAVE BEEN REPORTED AS OCCURRING IN THE TYPE OF SPRAY AND THE TIMING DEVICE. MINOR DEVIATIONS ARE DEFINED AS DIFFERENCES IN EQUIPMENT THAT WOULD HAVE NO EFFECT UPON THE COST.

B-125314, NOV. 29, 1955

TO GRESHAM AND COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE ACCEPTANCE BY THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, OF DISHWASHERS WHICH DID NOT MEET THE REQUIREMENTS OF FEDERAL SPECIFICATIONS AS A PART OF THE FIXED EQUIPMENT UNDER CERTAIN CONSTRUCTION CONTRACTS.

AS YOU WERE ADVISED, THE SECRETARY OF THE ARMY WAS REQUESTED TO FURNISH A COMPLETE REPORT IN THE MATTER. THE REPORT HAS BEEN RECEIVED AND IS AS FOLLOWS:

"A SURVEY HAS BEEN MADE IN CONNECTION WITH COMPLAINTS FOR ALL PROJECTS LISTED BY GRESHAM AND COMPANY. THIS SURVEY INDICATES THAT ACCEPTANCE OF EQUIPMENT WAS IN ACCORDANCE WITH THE REQUIREMENTS OF THE CONSTRUCTION CONTRACTS. IN SEVERAL INSTANCES THE SURVEY INDICATES THAT APPROVAL WAS MADE WITH MINOR DEVIATIONS IN ACCESSORIES.

"MINOR DEVIATIONS HAVE BEEN REPORTED AS OCCURRING IN THE TYPE OF SPRAY AND THE TIMING DEVICE. MINOR DEVIATIONS ARE DEFINED AS DIFFERENCES IN EQUIPMENT THAT WOULD HAVE NO EFFECT UPON THE COST, QUALITY, OR QUANTITY, AND THAT THEY WOULD NOT PREJUDICE THE RIGHTS OF OTHER BIDDERS OR MANUFACTURERS WHO MIGHT HAVE SUBMITTED PRICES TO A SUB CONTRACTOR. THE MINOR DEVIATION IN THE SPRAY CONSISTED OF FIXED OUTLETS WITHOUT PROVIDING FOR THE OSCILLATION OF THE RACKS. UNDER THE PERFORMANCE REQUIREMENTS THE SPRAY PATTERN WASHED ALL DISH SURFACES IN ALL PARTS OF THE RACKS WHEN THE DISHES WERE STACKED IN A NORMAL MANNER. THE CONTRACTING OFFICER CHECKED THE PERFORMANCE OF THE SPRAYS AND WAS SATISFIED THAT A THOROUGH RINSING OF DISHES WAS ACCOMPLISHED BY RECIRCULATING WASH WATER AT A HIGHER RATE IN GALLONS PER MINUTE THAN THE MINIMUM REQUIREMENTS OF THE SPECIFICATIONS.

"ANOTHER DEVIATION CITED BY GRESHAM AND COMPANY IS THE REQUIREMENT FOR A MECHANICAL TIMING DEVICE. THE CLAIM INDICATES THAT THEY ARE THE ONLY FIRM THAT CAN FURNISH SUCH A DEVICE. MANUFACTURERS OTHER THAN GRESHAM AND COMPANY HAVE FURNISHED A TIMING DEVICE THAT PERFORMS SATISFACTORILY.

"GRESHAM AND COMPANY'S COMPLAINT IS BASED ON A STRICT INTERPRETATION OF FEDERAL SPECIFICATIONS BUT NOT ON CONTRACT SPECIFICATIONS AS WRITTEN FOR INDIVIDUAL PROCUREMENT ACTIONS. UNDER AUTHORITY AND PROCEDURES PRESCRIBED IN ARMY PROCUREMENT PROCEDURES, THE CHIEF OF ENGINEERS IS AUTHORIZED TO MODIFY THE LANGUAGE OF THE FEDERAL SPECIFICATIONS ON INDIVIDUAL PROCUREMENT ACTIONS TO PRECLUDE ISSUING A RESTRICTIVE INVITATION TO BID, TO INSURE THE WIDEST COMPETITION POSSIBLE AND TO INSURE DELIVERY WITHIN TIME LIMITATIONS SET FORTH IN THE CONTRACT. PARAGRAPH 41.6.12A (2), ORDERS AND REGULATIONS, CORPS OF ENGINEERS STATES "SPECIFICATIONS WILL BE SO WRITTEN AS NOT TO RESTRICT COMPETITION. THEY SHOULD EXPRESS REQUIREMENTS AS TO PERFORMANCE AND SERVICE RATHER THAN MECHANICAL CONSTRUCTION (SEE "DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES," VOLUME V, PAGES 771, 776 AND 898).' BASED ON THE FOREGOING, CONTRACTING OFFICERS OF THE CORPS OF ENGINEERS WERE AUTHORIZED TO MODIFY REQUIREMENTS OF THE FEDERAL SPECIFICATIONS WHEN DEEMED ADVISABLE TO PERMIT WIDER COMPETITION. THIS WAS ACCOMPLISHED BY WAIVING QUESTIONABLE MECHANICAL REQUIREMENTS AND MAINTAINING ALL REQUIREMENTS THAT COVERED PERFORMANCE AND SERVICE CONDITIONS. IN THIS CONNECTION, INTERIM FEDERAL SPECIFICATION OO-M 31D,"DISHWASHING MACHINES AND DISH RACKS," HAS BEEN SUPERSEDED BY INTERIM FEDERAL SPECIFICATION OO-D-00431, JULY 2, 1954, (GSA -FSS ,DISHWASHING MACHINES) (INDUSTRIAL).' THE CURRENT SPECIFICATION STILL REQUIRES A SPECIAL MACHINE BUT THE RESTRICTIVE MECHANICAL ELEMENTS WHICH WERE THE BASIS OF GRESHAM'S COMPLAINT HAVE BEEN ELIMINATED.

"THE STATEMENT THAT THE ACTION OF THE CORPS OF ENGINEERS VIOLATES PUBLIC LAW 436, 82ND CONGRESS, IS UNFOUNDED. IN THE FIRST PLACE THERE APPEARS TO BE NO NEED TO STANDARDIZE DISHWASHING EQUIPMENT; SECONDLY, CONGRESS HAS NEVER INDICATED A DESIRE TO STANDARDIZE COMMERCIAL EQUIPMENT TO THE POINT OF RESTRICTING COMPETITION. PUBLIC LAW 436, 82ND CONGRESS, COMMONLY KNOWN AS THE ,DEFENSE CATALOGING AND STANDARDIZATION ACT" HAS TWO PRIMARY PURPOSES. FIRST IT PROVIDES FOR DEVELOPMENT OF A SINGLE CATALOG SYSTEM, SECOND, FOR A RELATED SUPPLY STANDARDIZATION PROGRAM.'

IT THUS APPEARS THAT THE DISHWASHERS INVOLVED WERE SUBSTANTIALLY IN ACCORDANCE WITH THE SPECIFICATIONS SET FORTH IN THE CONTRACTS FOR THE PARTICULAR PROJECTS AND THAT, THEREFORE, THERE IS NO LEGAL BASIS UPON WHICH WE COULD OBJECT TO THE ADMINISTRATIVE ACTION TAKEN IN ACCEPTING THE DISHWASHERS.