B-132419, JUL. 31, 1957

B-132419, JUL. 31, 1957

TO L. S. BEIER AND ASSOCIATES:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 28, 1957, ADVISING THAT PLASTIC LIFE RINGS, MANUFACTURED BY YOUR COMPANY AND APPROVED BY THE UNITED STATES COAST GUARD, WERE REJECTED BY THE CORPS OF ENGINEERS UNDER IFB NO. CIVENG- 46-022-57-44 IN JANUARY 1957, AND SUBSEQUENTLY BY THE DEPARTMENT OF THE NAVY, FOR FAILURE TO MEET SPECIFICATIONS APPLICABLE TO DEPARTMENT OF DEFENSE PROCUREMENT OF SUCH ARTICLES. SINCE YOU DO NOT ALLEGE THAT YOUR RINGS DID IN FACT MEET THE SPECIFICATIONS AS DRAWN, WE DO NOT UNDERSTAND THAT YOU ARE REQUESTING ANY ACTION WITH RESPECT TO THE CONTRACTS WHICH WERE AWARDED, BUT RATHER THAT YOUR COMPLAINT IS DIRECTED TO THE NATURE OF SPECIFICATIONS.

THE DRAFTING OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY A RESPONSIBILITY OF THE PROCURING AGENCY, AND THIS OFFICE WILL NOT QUESTION SPECIFICATIONS AS DRAWN, IN THE ABSENCE OF EVIDENCE THAT THE AGENCY'S MINIMUM NEEDS COULD BE ADEQUATELY MET UNDER BROADER SPECIFICATIONS, OR THAT THE SPECIFICATIONS AS DRAWN UNDULY LIMIT COMPETITION. WHILE WE NOTE THAT THE PLASTIC RING BUOYS MANUFACTURED BY YOUR COMPANY WERE APPROVED BY THE UNITED STATES COAST GUARD UNDER REQUIREMENTS WHICH INCORPORATE DEPARTMENT OF DEFENSE SPECIFICATIONS (MIL-R -0016847) APPLICABLE TO SUCH ARTICLES, WE HAVE INFORMALLY ADVISED BY THE COAST GUARD THAT YOUR PRODUCT WAS APPROVED BY THE COAST GUARD AS AN ACCEPTABLE EXCEPTION TO SUCH SPECIFICATIONS UNDER THE PROVISIONS OF 46 C.F.R. 160.050-3, WHICH PROVIDES FOR ACCEPTANCE OF ALTERNATE ARRANGEMENTS MEETING PERFORMANCE REQUIREMENTS. THE PRODUCT YOU OFFERED WAS IN THE NATURE OF NAUTICAL LIFE-SAVING EQUIPMENT AND YOU HAVE ADVISED THAT ITS REJECTION WAS BASED SOLELY ON FAILURE TO MEET THE FIRE RETARDANT QUALITIES REQUIRED BY THE DEFENSE DEPARTMENTS. IN ADDITION WE HAVE BEEN ADVISED THAT SEVERAL MANUFACTURERS ARE CURRENTLY PRODUCING, AND OFFERING TO THE GOVERNMENT, PRODUCTS WHICH DO MEET SUCH SPECIFICATIONS. UNDER THE CIRCUMSTANCES, THERE DOES NOT APPEAR TO BE ANY VALID REASON FOR THIS OFFICE TO QUESTION THE PROPRIETY OF THE REJECTION ACTION TAKEN WITH RESPECT TO YOUR PRODUCT BY EITHER THE CORPS OF ENGINEERS OR THE DEPARTMENT OF THE NAVY, NOR WOULD WE BE JUSTIFIED IN QUESTIONING THE RIGHT OF THESE AGENCIES TO REQUIRE ITEMS HAVING CHARACTERISTICS OR QUALITIES SUPERIOR TO THESE COMPLYING WITH MINIMUM COMMERCIAL REQUIREMENTS.

YOUR LETTER ALSO ADVISES THAT CERTAIN PLASTIC RING BUOYS PROCURED BY THE DEPARTMENTS OF THE ARMY AND NAVY DID NOT COMPLY WITH DIMENSIONS SET OUT IN THE ADVERTISED SPECIFICATIONS. WE ARE FURTHER ADVISED, HOWEVER, THAT MINIMUM TOLERANCES HAVE BEEN ESTABLISHED, AND IT IS TO BE PRESUMED THAT THE ADMINISTRATIVE DUTIES OF INSPECTION AND ENFORCEMENT OF CONTRACT REQUIREMENTS WILL BE PROPERLY CARRIED OUT.