B-132609, SEP. 24, 1957

B-132609: Sep 24, 1957

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ESQUIRE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 16. UNDER THE TERMS OF THE INVITATION THE RECAPPING AND REPAIRING WERE TO BE IN ACCORDANCE WITH FEDERAL SPECIFICATION ZZ-T 441. THE BASIS OF THE PROTEST WAS THE SAME AS SET FORTH IN YOUR LETTER TO THIS OFFICE. ANSWERED THIS PROTEST IN DETAIL AND THERE IS NO NEED TO REPEAT THE REASONS HERE. IT APPEARS THAT THE PRIMARY BASIS OF YOUR PROTEST IS THE FAILURE OR REFUSAL OF THE DEPARTMENT OF THE NAVY TO DRAW ITS SPECIFICATIONS AROUND A "SPECIAL SERVICE TOP CAP" ALLEGEDLY DEVELOPED BY GUAM TIRE AND RUBBER COMPANY TO BEST MEET THE NEEDS OF THE ARMED SERVICES ACTIVITIES ON GUAM. APPARENTLY THE COMPANY'S SPECIAL TYPE OF TOP CAP IS MORE EXPENSIVE THAN THE TOP CAP REQUIRED UNDER FEDERAL SPECIFICATION ZZ-T 441.

B-132609, SEP. 24, 1957

TO ALLAN D. BONAPART, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 16, 1957, PROTESTING ON BEHALF OF GUAM TIRE AND RUBBER COMPANY, INC., AGAINST THE REQUIREMENTS OF INVITATION NO. 61119-IFB-3-57, ISSUED MAY 17, 1957, BY THE U.S. NAVAL SUPPLY DEPOT, GUAM, MARIANNA ISLANDS.

IN RESPONSE TO OUR REQUEST, THE DEPARTMENT OF THE NAVY FURNISHED A COPY OF THE INVITATION FOR BIDS AND A REPORT OF THE FACTS IN THE MATTER. THE INVITATION REQUESTED BIDS FOR RECAPPING AND REPAIRING TIRES, INCLUDING REPAIR OF TUBES AND VALVE REPLACEMENTS, DURING THE FISCAL YEAR 1958. UNDER THE TERMS OF THE INVITATION THE RECAPPING AND REPAIRING WERE TO BE IN ACCORDANCE WITH FEDERAL SPECIFICATION ZZ-T 441, DATED 31 MARCH 1952.

GUAM TIRE AND RUBBER COMPANY DID NOT SUBMIT A BID IN RESPONSE TO THE INVITATION, BUT BY LETTER DATED JUNE 10, 1957, PROTESTED AGAINST THE REQUIREMENTS OF THE SPECIFICATIONS. THE BASIS OF THE PROTEST WAS THE SAME AS SET FORTH IN YOUR LETTER TO THIS OFFICE. THE COMMANDING OFFICER IN LETTER DATED JUNE 25, 1957, ANSWERED THIS PROTEST IN DETAIL AND THERE IS NO NEED TO REPEAT THE REASONS HERE.

IT APPEARS THAT THE PRIMARY BASIS OF YOUR PROTEST IS THE FAILURE OR REFUSAL OF THE DEPARTMENT OF THE NAVY TO DRAW ITS SPECIFICATIONS AROUND A "SPECIAL SERVICE TOP CAP" ALLEGEDLY DEVELOPED BY GUAM TIRE AND RUBBER COMPANY TO BEST MEET THE NEEDS OF THE ARMED SERVICES ACTIVITIES ON GUAM. APPARENTLY THE COMPANY'S SPECIAL TYPE OF TOP CAP IS MORE EXPENSIVE THAN THE TOP CAP REQUIRED UNDER FEDERAL SPECIFICATION ZZ-T 441, BUT IS LESS EXPENSIVE THAN THE FULL RECAPPING.

IT IS REPORTED THAT PRIOR TO 1956 GUAM TIRE AND RUBBER COMPANY HAD BEEN THE SOLE SOURCE FOR RECAPPING AND RETREADING OF TIRES FOR THE ARMED SERVICES ON GUAM, AND THAT FOR THE FISCAL YEAR 1957 REQUIREMENTS ANOTHER COMPANY ENTERED THE FIELD AND WAS THE SUCCESSFUL BIDDER. GUAM TIRE AND RUBBER COMPANY PROTESTED AN AWARD TO THE LOW BIDDER ON THE BASIS THAT IT WAS RENDERING A BETTER SERVICE THAN REQUIRED; THAT THE OTHER BIDDER COULD NOT TOOL UP IN TIME TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE CONTRACT, AND THAT IT COULD NOT PERFORM AT THE PRICES BID. THE PROTEST WAS DENIED. IT IS REPORTED THAT THE OTHER BIDDER PERFORMED THE CONTRACT ON SCHEDULE AND DELIVERED A VERY SATISFACTORY PRODUCT.

IT CONSISTENTLY HAS BEEN HELD THAT IT IS THE PRIMARY RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY TO PREPARE SPECIFICATIONS IN ACCORDANCE WITH THE NEEDS OF THE GOVERNMENT. IT IS REPORTED THAT THE PRINCIPAL USING ACTIVITIES HAVE REQUESTED FULL RECAPPING OF MUD AND SNOW AND ON AND OFF THE ROAD DESIGNS AS PROVIDED IN THE FEDERAL SPECIFICATION. THE VERY PURPOSE OF FEDERAL SPECIFICATIONS IS TO ASSURE THAT THE GOVERNMENT WILL OBTAIN A QUALITY PRODUCT WHICH WILL MEET ITS MINIMUM NEEDS AND AFFORD ALL BIDDERS AN OPPORTUNITY TO FULFILL SUCH NEEDS. THE FACT THAT THE SPECIAL SERVICE TOP CAP DEVELOPED BY GUAM TIRE AND RUBBER COMPANY MAY NOT BE ABLE TO COMPETE WITH OTHER TYPES OF RECAPPING, DUE TO THE FACT THAT IT APPARENTLY IS SUPERIOR TO SOME AND INFERIOR TO OTHERS, WOULD NOT BE A SUFFICIENT BASIS TO DISREGARD THE REQUIREMENTS OF THE FEDERAL SPECIFICATIONS. AS STATED IN THE COMMANDING OFFICER'S LETTER OF JUNE 25, TO THE COMPANY, IF THEIR SPECIAL SERVICE TOP CAP MET THE REQUIREMENTS OF THE SPECIFICATIONS THEY WERE IN NO WAY PRECLUDED FROM SUBMITTING A BID AND THE GOVERNMENT WAS UNDER NO OBLIGATION TO REQUEST BIDS ON A PARTICULAR TOP CAP NOR WAS THE COMPANY PREJUDICED BY ITS FAILURE TO DO SO.

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO LEGAL BASIS UPON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.