B-139593, JUL. 20, 1959

B-139593: Jul 20, 1959

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EDUCATION AND WELFARE: REFERENCE IS MADE TO YOUR LETTER DATED MAY 8. IT APPEARS THAT THE AMERICAN STERILIZER COMPANY WAS THE ONLY BIDDER WHO OFFERED TO FURNISH A STERILIZER WITH A SINGLE TOP OPERATING VALUE AS REQUIRED BY THE SPECIFICATIONS. IS BASED ON THE CONTENTIONS THAT (A) THE TWO VALVE ARRANGEMENT AND ALTERNATE PRESSURE CONTROL OFFERED IN THEIR PROPOSAL ARE EQUAL TO THE SINGLE TOP OPERATED MULTI-PORT VALVE AND THE TYPE OF STEAM PRESSURE REGULATOR VALVE SPECIFIED IN THE INVITATION. THAT (B) OTHER FEDERAL AGENCIES HAVE ACCEPTED EITHER ARRANGEMENT AS EQUAL AND THAT (C) THE STERILIZER OFFERED BY THE COMPANY DID CONFORM TO THE STANDARDS ADOPTED BY THE AMERICAN SOCIETY MECHANICAL ENGINEERS' CODE.

B-139593, JUL. 20, 1959

TO THE SECRETARY OF HEALTH, EDUCATION AND WELFARE:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 8, 1959, AND ENCLOSURES, RELATIVE TO THE PROTEST OF THE SHAMPAINE ELECTRIC COMPANY, INC., TO THE AWARD OF A CONTRACT BY YOUR DEPARTMENT TO THE AMERICAN STERILIZER COMPANY UNDER INVITATION NO. 261-12-3-58.

BY INVITATION NO. 261-12-3-58, DATED NOVEMBER 18, 1958, THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, PUBLIC HEALTH SERVICE, NATIONAL INSTITUTES OF HEALTH, BETHESDA, MARYLAND, REQUESTED BIDS FOR THE FURNISHING OF A CYLINDRICAL STERILIZER. PARAGRAPH 1 OF THE DETAILED SPECIFICATIONS PROVIDED THAT ALL DETAILS OF DESIGN, CONSTRUCTION AND TESTING SHOULD CONFORM TO STANDARDS ADOPTED BY THE AMERICAN SOCIETY MECHANICAL ENGINEERS' LATEST CODE FOR UNFIRED PRESSURE VESSELS. MORE IMPORTANT, PARAGRAPH 6 OF THE SPECIFICATIONS PROVIDED THAT THE STERILIZING FUNCTIONS OF THE STERILIZER SHOULD BE CONTROLLED BY A SINGLE TOP OPERATING VALVE OF THE MULTI-PORT TYPE. IT APPEARS THAT THE AMERICAN STERILIZER COMPANY WAS THE ONLY BIDDER WHO OFFERED TO FURNISH A STERILIZER WITH A SINGLE TOP OPERATING VALUE AS REQUIRED BY THE SPECIFICATIONS. THE SHAMPAINE ELECTRIC COMPANY, INC., WHO SUBMITTED THE LOW BID, OFFERED TO FURNISH A STERILIZER WITH A TWO VALVE ARRANGEMENT.

THE PROTEST OF THE SHAMPAINE ELECTRIC COMPANY, INC., IS BASED ON THE CONTENTIONS THAT (A) THE TWO VALVE ARRANGEMENT AND ALTERNATE PRESSURE CONTROL OFFERED IN THEIR PROPOSAL ARE EQUAL TO THE SINGLE TOP OPERATED MULTI-PORT VALVE AND THE TYPE OF STEAM PRESSURE REGULATOR VALVE SPECIFIED IN THE INVITATION; THAT (B) OTHER FEDERAL AGENCIES HAVE ACCEPTED EITHER ARRANGEMENT AS EQUAL AND THAT (C) THE STERILIZER OFFERED BY THE COMPANY DID CONFORM TO THE STANDARDS ADOPTED BY THE AMERICAN SOCIETY MECHANICAL ENGINEERS' CODE.

YOU STATED IN YOUR LETTER OF MAY 8, 1959, THAT WHILE THE PROPOSAL OF THE PROTESTANT FURTHER DEVIATED FROM THICKNESSES OF CHAMBERSHELL, JACKET SHELL, AND BACK HEAD SPECIFIED IN THE INVITATION, THE STERILIZER OFFERED DID COMPLY WITH THE AMERICAN SOCIETY MECHANICAL ENGINEERS' CODE IN DESIGN, FABRICATION, INSPECTION, AND TESTING AND THAT YOUR DEPARTMENT WOULD NOT HAVE REJECTED THE COMPANY'S BID FOR THESE REASONS ALONE.

OUR OFFICE HAS CONSISTENTLY HELD THAT THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY FOR ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. COMP. GEN. 368; 33 ID. 586. THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.

THE SPECIFICATIONS IN THE INSTANT CASE MAY HAVE BEEN DRAWN AROUND THE EQUIPMENT OF A PARTICULAR MANUFACTURER; HOWEVER, YOU STATED THAT YOUR TECHNICAL RESEARCH STAFF HAS ESTABLISHED FROM ACTUAL EXPERIENCE THAT THE OPERATIONAL CHARACTERISTICS OF THE STERILIZER MANUFACTURED BY THE AMERICAN STERILIZER COMPANY HAVE, IN THEIR OPINION, DECIDED ADVANTAGES OPERATIONALLY AND MAINTENANCE-WISE OVER THE STERILIZER OFFERED BY THE PROTESTANT. FURTHER, IT IS STATED THAT THE SPECIFIED SYSTEMS ARE NOT PATENTED AND ARE THEREFORE AVAILABLE FOR USE BY ANY MANUFACTURER.

IN THE CIRCUMSTANCES, OUR OFFICE IS NOT REQUIRED TO OBJECT TO THE AWARD OF A CONTRACT TO THE AMERICAN STERILIZER COMPANY.