B-150532, MAR. 1, 1963

B-150532: Mar 1, 1963

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YOU ALLEGE THAT THE SPECIFIED MATERIAL IS INADEQUATE FOR THE JOB. REPORTS THAT WHILE IT IS AWARE OF DOZENS OF PROPRIETARY MATERIALS. IT HAS OBTAINED SUCCESSFUL RESULTS ELSEWHERE IN THE 12TH NAVAL DISTRICT WITH THE STANDARD SPECIFICATION IN QUESTION AND IS SATISFIED WITH THE PRODUCT CONFORMING TO THAT SPECIFICATION. THE NEEDS OF THE GOVERNMENT AND THE DRAFTING OF SPECIFICATIONS SETTING FORTH THOSE NEEDS ARE NECESSARILY FOR DETERMINATION IN THE FIRST INSTANCE BY THE ADMINISTRATIVE PURCHASING AGENCIES. IT IS NOT WITHIN THE PROVINCE OF OUR OFFICE TO DECIDE WHAT THE NEEDS OF A PARTICULAR AGENCY MAY BE OR TO DRAFT THE APPLICABLE SPECIFICATIONS FOR THOSE NEEDS. WE STATED: "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. * * * 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.

B-150532, MAR. 1, 1963

TO TEXTURED COATINGS OF AMERICA, INC.:

IN YOUR LETTER OF DECEMBER 18, 1962, YOU OBJECT TO THE USE IN AN INVITATION FOR BIDS, FOR WATERPROOFING CAPEHART QUARTERS AT THE NAVAL AIR STATION, LEMOORE, CALIFORNIA, OF NAVDOCKS SPECIFICATION 48601/62, WHICH REQUIRED ONE FILL COAT AND TWO FINISH COATS OF POLYVINYL EMULSION PAINT AS MORE FULLY DESCRIBED IN FEDERAL STANDARD SPECIFICATION TT-P 0055A PAINT, POLYVINYL ACETATE EMULSION, EXTERIOR.' YOU ALLEGE THAT THE SPECIFIED MATERIAL IS INADEQUATE FOR THE JOB, AND THAT YOUR PROPRIETARY PRODUCT ENCOMPASSES ALL OF THE QUALITIES LACKING IN THE COATING CALLED FOR IN THE STANDARD SPECIFICATION.

THE BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, REPORTS THAT WHILE IT IS AWARE OF DOZENS OF PROPRIETARY MATERIALS, MANY WITH EXCELLENT WATERPROOFING QUALITIES, IT HAS OBTAINED SUCCESSFUL RESULTS ELSEWHERE IN THE 12TH NAVAL DISTRICT WITH THE STANDARD SPECIFICATION IN QUESTION AND IS SATISFIED WITH THE PRODUCT CONFORMING TO THAT SPECIFICATION. FURTHERMORE, UNDER THE INSTANT INVITATION, 14 FIRMS SUBMITTED BIDS FOR THE WORK.

THE NEEDS OF THE GOVERNMENT AND THE DRAFTING OF SPECIFICATIONS SETTING FORTH THOSE NEEDS ARE NECESSARILY FOR DETERMINATION IN THE FIRST INSTANCE BY THE ADMINISTRATIVE PURCHASING AGENCIES. IT IS NOT WITHIN THE PROVINCE OF OUR OFFICE TO DECIDE WHAT THE NEEDS OF A PARTICULAR AGENCY MAY BE OR TO DRAFT THE APPLICABLE SPECIFICATIONS FOR THOSE NEEDS. IN OUR DECISION B- 132609, DATED SEPTEMBER 24, 1957, INVOLVING FACTS SIMILAR TO THE ONE IN THE INSTANT CASE, WE STATED:

"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. * * * 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.