B-138444, MARCH 13, 1959, 38 COMP. GEN. 610

B-138444: Mar 13, 1959

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - EQUIPMENT MODIFICATION FOR BROADER COMPETITION WHEN AFTER SPECIFICATIONS FOR A PARTICULAR TYPE OF ITEM TO MEET THE NEEDS OF AN AGENCY ARE ISSUED. A BIDDER OFFERS A DIFFERENT TYPE ITEM WHICH IS ALLEGED TO MEET OR EXCEED THE TEST REQUIREMENTS OF THE SPECIFICATION. THE CURRENT SPECIFICATIONS BASED ON THE AGENCY NEEDS ARE NOT CONSIDERED TO BE SO RESTRICTIVE AS TO REQUIRE READVERTISEMENT OF THE PROCUREMENT. 1959: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14. THE INVITATION WAS ISSUED NOVEMBER 19. IT WAS DETERMINED THAT YOUR BID WAS LOW. SINCE YOUR BID WAS PREDICATED UPON FURNISHING AN INSULATED. IT WAS REJECTED AS NONRESPONSIVE TO THE INVITATION.

B-138444, MARCH 13, 1959, 38 COMP. GEN. 610

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - EQUIPMENT MODIFICATION FOR BROADER COMPETITION WHEN AFTER SPECIFICATIONS FOR A PARTICULAR TYPE OF ITEM TO MEET THE NEEDS OF AN AGENCY ARE ISSUED, A BIDDER OFFERS A DIFFERENT TYPE ITEM WHICH IS ALLEGED TO MEET OR EXCEED THE TEST REQUIREMENTS OF THE SPECIFICATION, THE KNOWLEDGE OF THE ALLEGED IMPROVEMENT TO MEET THE AGENCY'S NEEDS COULD NOT BE IMPUTED TO THE PROCUREMENT OFFICIALS AND IT WOULD BE IMPRACTICABLE, AND PERHAPS DETRIMENTAL, TO DELAY THE PROCUREMENT UNTIL THE NECESSARY TESTING OF THE IMPROVED ITEM COULD BE EVALUATED; THEREFORE, THE CURRENT SPECIFICATIONS BASED ON THE AGENCY NEEDS ARE NOT CONSIDERED TO BE SO RESTRICTIVE AS TO REQUIRE READVERTISEMENT OF THE PROCUREMENT.

TO THE LYONS-ALPHA PRODUCTS CO., INC., MARCH 13, 1959:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14, 1959, WITH ENCLOSURES, PROTESTING THE RESTRICTIVE NATURE OF THE SPECIFICATIONS APPLICABLE TO ITEM NO. 3 OF INVITATION FOR BIDS NO. QM-33-031-59-267.

THE INVITATION WAS ISSUED NOVEMBER 19, 1958, BY THE QUARTERMASTER PURCHASING AGENCY, COLUMBUS, OHIO. ITEM NO. 3 SOLICITED BIDS FOR:

JUG, VACUUM, 3-1GALLON CAPACITY * * * IN ACCORDANCE WITH MILITARY SPECIFICATIONS MIL-J-17363D ( NAVY) DATED 19 APRIL 1957, WITH DEVIATIONS AS INDICATED HEREIN.

AT BID OPENING ON DECEMBER 19, 1958, IT WAS DETERMINED THAT YOUR BID WAS LOW. HOWEVER, SINCE YOUR BID WAS PREDICATED UPON FURNISHING AN INSULATED, AS OPPOSED TO A VACUUM, TYPE JUG, IT WAS REJECTED AS NONRESPONSIVE TO THE INVITATION. THIS DETERMINATION TO REJECT YOUR BID WAS, UNDER THE CIRCUMSTANCES, REQUIRED BY THE CLEAR LANGUAGE OF 10 U.S.C. 2305 (B) WHICH PROVIDES IN PART:

* * * AWARDS SHALL BE MADE WITH REASONABLE PROMPTNESS BY GIVING WRITTEN NOTICE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION * * * ( ITALICS SUPPLIED.)

IN YOUR LETTER, IT IS CONTENDED THAT THE SPECIFICATION IS UNDULY RESTRICTIVE OF COMPETITION. YOU ALLEGE THAT THE INSULATED JUG YOU OFFERED MEETS OR EXCEEDS THE TEST REQUIREMENTS OF THE SPECIFICATION AND YOU SUBMIT THE CONCLUSIONS OF AN INDEPENDENT TESTING LABORATORY IN SUBSTANTIATION OF YOUR POSITION. YOU FURTHER POINT OUT THAT THE FOLLOWING SPECIFICATIONS IN USE WITHIN THE FEDERAL GOVERNMENT FOR PROCUREMENT PURPOSES FOR SOME YEARS INCLUDE STANDARDS FOR BOTH VACUUM AND INSULATED TYPE JUGS:MIL-C-3164A, MIL -J-24718 AND RR-B-596. YOU ALSO NOTE THAT THE LAST OF THESE HAS BEEN IN EXISTENCE SINCE MAY 21, 1938. ACCORDINGLY, YOU REQUEST THAT THE INVITATION BE CANCELED AND REPLACED BY ONE AUTHORIZING BIDS ON EITHER TYPE OF JUG.

A LETTER OF JANUARY 30, 1959, FROM THE COMMANDING OFFICER, GENERAL STORES SUPPLY OFFICE, TO THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, CONTAINS THE FOLLOWING STATEMENT CONCERNING THE USE OF THE JUGS, THE HISTORY OF THE SPECIFICATION AND THE POSSIBILITY OF ITS REVISION:

3. THE VACUUM JUG COVERED BY THIS SPECIFICATION IS USED TO SERVE HOT COFFEE AND OTHER HOT OR COLD BEVERAGES DURING CONDITION WATCHES AND LANDING PARTY OPERATIONS. THE MAJOR REQUIREMENTS IN ADDITION TO THERMAL EFFICIENCY, THEREFORE ARE DURABILITY AND CAPABILITY OF IMMERSION.

4. DURING THE PERIOD FROM 1942 TO 1951, THE ONLY JUG MEETING THESE REQUIREMENTS WAS A VACUUM JUG MANUFACTURED BY VACUUM CAN COMPANY. THEREFORE, THESE WERE PROCURED BY THE BUREAU OF SHIPS ON REQUISITION AS NEEDED. IN 1952, THE FIRST SPECIFICATION WAS ISSUED AND COVERED ONLY VACUUM JUGS BECAUSE, AT THAT TIME, INSULATED JUGS WERE NOT SATISFACTORY INSOFAR AS IMMERSION AND THERMAL REQUIREMENTS WERE CONCERNED. INSULATED JUGS HAVE NORMALLY CARRIED LABELS CAUTIONING AGAINST IMMERSION, AND WHEN EVALUATED BY THE BUREAU OF SHIPS, THE INSULATION WAS FOUND TO HAVE SETTLED WITH USE TO THE EXTENT THAT THE THERMAL EFFICIENCY WAS IMPAIRED. DISCUSSIONS WITH REPRESENTATIVES OF LYONS ALPHA PRODUCTS COMPANY, INC. FOLLOWING SUBJECT PROTEST GAVE THE FIRST INDICATION THAT INSULATED JUGS MIGHT MEET THE IMMERSION AND THERMAL EFFICIENCY REQUIREMENTS AND THEREFORE BE CONSIDERED AS ACCEPTABLE.

5. A PROJECT HAS BEEN INITIATED AT THE NAVAL RESEARCH AND DEVELOPMENT FACILITY, BAYONNE, NEW JERSEY TO EVALUATE THERMAL JUGS, UTILIZING BOTH VACUUM AND OTHER TYPES OF INSULATION, TO DETERMINE WHETHER MIL-J 17363D ( NAVY) SHOULD BE REVISED TO INCLUDE THE LATTER. THIS EVALUATION WILL INCLUDE ALL FACTORS AFFECTING THE ACCEPTABILITY OF THE JUGS FOR THEIR INTENDED USE. THESE FACTORS WILL INCLUDE RETENTION OF THERMAL EFFICIENCY UNDER ALL CONDITIONS; REPAIRABILITY AND DURABILITY.

6. A REVISION OF THE SPECIFICATION, IF THE EVALUATION INDICATES THE ADVISABILITY OF REVISION, WOULD REQUIRE MORE THAN JUST CHANGING A WORD OR TWO AS INDICATED IN THE PROTEST. IT WOULD INVOLVE DEVELOPING DETAILS FOR THE ADDITIONAL TYPES AND ACCEPTANCE TESTS FOR THEM. THE REVISION WOULD THEN HAVE TO BE APPROVED BY OTHER SERVICES USING THE SPECIFICATION. THUS AN APPRECIABLE TIME WOULD ELAPSE BEFORE A PROCUREMENT COULD BE INITIATED UNDER A REVISION.

7. BASED ON THE PRESENT RATE OF ISSUE AND THE QUANTITY AVAILABLE TO SATISFY FUTURE DEMANDS, THE STOCKS OF THESE JUGS WILL BE EXHAUSTED BY AUGUST 1959. DELIVERY OF THE JUGS ON IFB QM-33-031-59-267 COULD PROBABLY BE OBTAINED IN JULY 1959 IF THE PROCUREMENT ACTION COULD PROCEED WITHOUT FURTHER DELAY. IF, HOWEVER, PROCUREMENT IS DELAYED UNTIL A DECISION IS MADE ON THE SPECIFICATION, DELIVERY PROBABLY COULD NOT BE EXPECTED BEFORE NOVEMBER 1959.

THE PROCUREMENT REQUIREMENTS OF THE GOVERNMENT ARE FOR DETERMINATION IN THE FIRST INSTANCE BY THE ADMINISTRATIVE AGENCY CONCERNED. 17 COMP. GEN. 554. HOWEVER, ADVERTISED SPECIFICATIONS SHOULD BE STATED IN SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE MINIMUM NEEDS OF THE AGENCY. 32 COMP. GEN. 384, 21 COMP. GEN. 171.

SPECIFICATIONS PREPARED WITHIN THE DEPARTMENT OF DEFENSE AND THE GENERAL SERVICES ADMINISTRATION REPRESENT A SIGNIFICANT EFFORT FROM THE VIEWPOINT OF TIME AND MANPOWER TO PREESTABLISH ACCEPTABLE MINIMUM STANDARDS OF QUALITY AND PERFORMANCE CONSISTENT WITH THE PRINCIPLES STATED IN THE FOREGOING PARAGRAPH. IMPROVEMENTS ARE CONTINUALLY BEING MADE IN ALL TYPES OF PRODUCTS NECESSITATING A REGULAR RE-EXAMINATION OF SPECIFICATIONS TO REFLECT SUCH IMPROVEMENTS. BECAUSE OF THE MYRIAD SPECIFICATIONS IN EXISTENCE COVERING A GREAT VARIETY OF PRODUCTS, AN ADMINISTRATIVE DELAY MUST PERFORCE INTERVENE BETWEEN THE DEVELOPMENT OF THE NEW OR IMPROVED PRODUCT AND THE MODIFICATION OF THE SPECIFICATION. IN SITUATIONS SUCH AS HERE INVOLVED WHERE, SO FAR AS AVAILABLE EVIDENCE INDICATES, KNOWLEDGE OF THE ALLEGED IMPROVEMENT IN INSULATED JUGS TO THE REQUIREMENTS OF THE NAVY COULD NOT BE IMPUTED TO THE PROCURING OFFICIALS UNTIL WELL AFTER ISSUANCE OF THE INVITATION, IT WOULD BE IMPRACTICAL TO DELAY THE PROCUREMENT PENDING THE NECESSARY TESTING TO DETERMINE WHETHER IN FACT THE REQUIREMENTS OF THE GOVERNMENT COULD BE MET ON THE BASIS OF MORE BROADLY STATED SPECIFICATIONS. SHOULD SUCH PROCEDURE BE ADOPTED, GOVERNMENT PROCUREMENT MIGHT WELL BE DELAYED TO THE DETRIMENT OF ESSENTIAL PROGRAMS. CF. 34 COMP. GEN. 122.

IN SUBSCRIBING TO THE FOREGOING, WE DO NOT OVERLOOK THE STATEMENTS IN YOUR LETTER, PREVIOUSLY NOTED, TO THE EFFECT THAT SPECIFICATIONS RECOGNIZING BOTH VACUUM AND INSULATED TYPE JUGS HAVE BEEN IN EXISTENCE FOR SOME TIME. IT DOES NOT FOLLOW, HOWEVER, THAT THE TWO TYPES OF JUGS HAVE BEEN REGARDED AS INTERCHANGEABLE SO FAR AS CONCERNS THE KIND OF USE CONTEMPLATED FOR THE SUPPLIES INVOLVED IN THE CURRENT PROCUREMENT. THIS CONNECTION WE NOTE THAT THE DURABILITY AND BUOYANCY TESTS PRESCRIBED AT PARAGRAPHS 4.5.4 AND 4.5.5, RESPECTIVELY, IN MIL-J-17363D ARE DISSIMILAR TO THE TESTS TO BE PERFORMED UNDER THE SPECIFICATIONS PROVIDING FOR BOTH VACUUM AND INSULATED JUGS.

AS INDICATED ABOVE, INSULATED JUGS ARE NOW BEING TESTED TO DETERMINE WHETHER THEY WILL MEET THE REQUIREMENTS OF THE USING AGENCY. IF IT IS ESTABLISHED THAT INSULATED JUGS ARE SUITABLE FOR THE PURPOSE, THE TERMS OF THE SPECIFICATION PRESUMABLY WILL BE BROADENED IN RECOGNITION THTEREOF; FAILURE TO DO SO UNDER THE ASSUMED CIRCUMSTANCES WELL MIGHT REQUIRE THE CONCLUSION WITH REGARD TO FUTURE PROCUREMENTS OF THIS TYPE THAT THE SPECIFICATION IS RESTRICTIVE. AS TO THE CURRENT PROCUREMENT, HOWEVER, WE DO NOT BELIEVE WE WOULD BE JUSTIFIED IN DETERMINING THE SPECIFICATIONS TO BE SO RESTRICTIVE AS TO REQUIRE READVERTISING.