B-142300, APR. 19, 1960

B-142300, APR. 19, 1960

TO WAUKESHA MOTOR COMPANY:

WE REFER AGAIN TO YOUR TELEGRAM OF MARCH 16, 1960, AND TO YOUR LETTER OF THE SAME DATE, PROTESTING THE REJECTION OF YOUR BID SUBMITTED PURSUANT TO INVITATION NO. 0-3324B1, FOR 400-450 KW ENGINE GENERATOR SETS, ISSUED BY THE FEDERAL AVIATION AGENCY ON JANUARY 18, 1960.

BIDS WERE OPENED ON FEBRUARY 11, 1960. ON MARCH 14 YOU RECEIVED A TELEGRAM FROM THE FAA ASKING IF YOU WERE A MEMBER OF DEMA (DIESEL ENGINE MANUFACTURERS ASSOCIATION). YOU REPLIED BY TELEGRAM OF MARCH 16 THAT YOUR AFFILIATION WAS WITH THE INTERNAL COMBUSTION ENGINE INSTITUTE BECAUSE YOU MANUFACTURE BOTH DIESEL AND GAS ENGINES AND THAT YOUR DIESEL ENGINES, INCLUDING THOSE OFFERED UNDER THE INVITATION IN QUESTION, CONFORM TO DEMA SPECIFICATIONS. THE TELEGRAM FURTHER STATES YOUR ASSUMPTION THAT YOU MAY BE CONSIDERED NONRESPONSIVE BECAUSE OF YOUR LACK OF DEMA MEMBERSHIP SINCE PARAGRAPH 3 OF THE APPLICABLE SPECIFICATIONS PROVIDES IN PART THAT THE PRODUCT OFFERED SHALL BE THAT OF A BIDDER "WHO IS A MEMBER OF DIESEL ENGINE MANUFACTURERS ASSOCIATION.'

WE HAVE BEEN ADVISED BY LETTER OF MARCH 25, 1960, FROM THE FAA, THAT NO AWARD WAS MADE UNDER INVITATION NO. 0-3324B1 BECAUSE IT WAS FOUND THAT 550 KW GENERATORS COULD BE PROCURED UNDER ANOTHER INVITATION TO SATISFY THE INTENDED USE, AT A LOWER COST THAN YOUR BID WHEN THE REPLACEABLE PARTS LIST REQUIREMENT IS CONSIDERED. THUS, IT APPEARS THAT THE INVITATION WAS WITHDRAWN FOR REASONS TOTALLY UNRELATED TO DEMA MEMBERSHIP.

THE PROCUREMENT IN THIS CASE WAS ADVERTISED PURSUANT TO 41 U.S.C. 253. SUBSECTION (B) OF THE PROVISION STATES THAT ALL BIDS MAY BE REJECTED WHEN THE AGENCY HEAD DETERMINES SUCH ACTION TO BE IN THE PUBLIC INTEREST. THAT AUTHORITY IS DELEGABLE TO SUBORDINATE OFFICERS UNDER 41 U.S.C. 257. THE SATISFACTION OF THE GOVERNMENT'S NEEDS UNDER ANOTHER INVITATION, AT A LOWER COST, WOULD APPEAR TO BE SUFFICIENTLY IN THE INTEREST OF THE GOVERNMENT TO JUSTIFY THE ACTION TAKEN.

WITH RESPECT TO THE REQUIREMENT IN THE SPECIFICATIONS QUOTED ABOVE, THAT THE MANUFACTURER OF THE ENGINES OFFERED BE A MEMBER OF DEMA, WE REFER YOU TO OUR DECISION PUBLISHED AT 33 COMP. GEN. 573 IN WHICH WE HELD THAT A REQUIREMENT THAT SUPPLIES OFFERED PURSUANT TO AN INVITATION BEAR THE SEAL OR LABEL OF ANY GIVEN PRIVATE TESTING ORGANIZATION MUST, IN NORMAL CIRCUMSTANCES, BE REGARDED AS SO RESTRICTIVE OF COMPETITION AS TO VIOLATE THE LAWS GOVERNING ADVERTISED PROCUREMENTS. SEE ALSO B-141670, FEBRUARY 8, 1960(39 COMP. GEN. 563). WE HAVE BEEN ADVISED THAT THE DEMA MEMBERSHIP REQUIREMENT HAS BEEN DELETED BY THE FAA FROM SUBSEQUENT PROCUREMENTS AND REPLACED BY A REQUIREMENT THAT THE MANUFACTURER SHALL COMPLY WITH THE STANDARDS AND PRACTICES OF THE DIESEL ENGINE MANUFACTURERS ASSOCIATION. WITH RESPECT TO THE MODIFICATION, IT SHOULD BE NOTED THAT SUCH REQUIREMENT IS PROPER WHERE IT ADEQUATELY REFLECTS THE ACTUAL NEEDS OF THE GOVERNMENT AND THERE ARE NOT AVAILABLE STANDARDS OR SPECIFICATIONS PRESCRIBED BY PROPER GOVERNMENTAL AUTHORITY. 33 COMP. GEN. 573.

IN VIEW OF THE FOREGOING, IT DOES NOT APPEAR THAT ANY ACTION ON OUR PART WITH RESPECT TO INVITATION NO. 0-3324B1 WOULD BE WARRANTED. HOWEVER, WE THANK YOU FOR BRINGING THE MATTER TO OUR ATTENTION.