B-152934, JUN. 19, 1964

B-152934, JUN. 19, 1964

TO C AND M INDUSTRIAL ASSOCIATES, INC.:

YOUR LETTER OF MARCH 26, 1964, PROTESTS THE SPECIFICATIONS OF DEPARTMENT OF THE INTERIOR INVITATION FOR BIDS NO. 892 ISSUED MARCH 24, 1964, BY THE NATIONAL PARK SERVICE, GRANT TETON NATIONAL PARK, MOOSE, WYOMING.

THE INVITATION CALLED FOR BIDS ON A MOTORIZED ROAD GRADER, DIESEL POWERED, 4-WHEEL DRIVE, 4-WHEEL STEER, TO BE USED BY THE NATIONAL PARK SERVICE FOR ROAD BUILDING, SNOW REMOVAL, AND MAINTENANCE OF NARROW WINDING MOUNTAIN ROADS, WITH SHARP CURVATURES, AND HEAVY GRADIENTS AT ELEVATIONS OVER 6,000 FEET ABOVE SEA LEVEL AND AT TEMPERATURES RANGING FROM 50 DEGREES BELOW ZERO TO 100 DEGREES FAHRENHEIT ABOVE ZERO. THIS INVITATION WAS A READVERTISEMENT OF INVITATION NO. 887 WHICH WAS ALSO PROTESTED BY YOUR COMPANY AND WHICH PROTEST WAS THE SUBJECT OF OUR DECISION B-152934, DATED FEBRUARY 10, 1964. THAT DECISION UPHELD YOUR PROTEST BY DIRECTING CANCELLATION OF THE AWARD AND THE READVERTISEMENT OF THE PROCUREMENT "UNDER DEFINITE SPECIFICATIONS WHICH WILL PARTICULARLY SET FORTH THE MINIMUM NEEDS OF THE GOVERNMENT AND WHICH WILL ALLOW ALL INTERESTED BIDDERS TO COMPETE EQUALLY.'

THE ADMINISTRATIVE REPORT SHOWS THAT IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATIONS 1-1.305 AND 1-1.11, THE FEDERAL SPECIFICATIONS AND THE RELATED FEDERAL QUALIFIED PRODUCTS LIST WERE INCORPORATED IN THE READVERTISEMENT. THE BASIS OF YOUR PROTEST IS STATED TO BE, IN ESSENCE, THAT THE INCLUSION OF THE FEDERAL SPECIFICATIONS AND THE FEDERAL QUALIFIED PRODUCTS LIST REQUIREMENT PRECLUDES YOUR BIDDING ON INVITATION NO. 892. YOU CONTEND THAT THESE TWO ITEMS SHOULD BE CHANGED TO ALLOW YOU TO BID, OR, THAT THIS PROCUREMENT SHOULD BE JUSTIFIED BY THE USING AGENCY AS A SOLE SOURCE PROCUREMENT AND NEGOTIATED AS SUCH WITH YOUR COMPETITOR.

FEDERAL PROCUREMENT REGULATIONS 1-1.305-1 MAKES MANDATORY THE USE OF FEDERAL SPECIFICATIONS BY ALL EXECUTIVE AGENCIES, INCLUDING THE DEPARTMENT OF DEFENSE, IN THE PROCUREMENT OF SUPPLIES AND SERVICES COVERED BY SUCH SPECIFICATIONS, WITH CERTAIN EXCEPTIONS NOT PERTINENT HERE. INCORPORATING IN THE ADVERTISEMENT THE REQUIREMENTS FOR BIDDERS TO BE CERTIFIED AS ELIGIBLE FOR LISTING ON FEDERAL QUALIFIED PRODUCTS LIST QPL- 00-G-00630A, THE ADMINISTRATIVE OFFICE WAS ATTEMPTING TO DEFINE WITH MORE PARTICULARITY, AS SUGGESTED BY OUR EARLIER DECISION, THOSE SPECIFICATIONS SETTING FORTH THE MINIMUM NEEDS OF THE GOVERNMENT.

WE HAVE HELD THAT A PROCUREMENT RESTRICTING ACCEPTABLE BIDS TO A QUALIFIED PRODUCT WHICH WAS PLACED ON THE QUALIFIED PRODUCTS LIST, AFTER ALL MANUFACTURERS KNOWN TO BE INTERESTED WERE CIRCULARIZED AND AFTER THE ARTICLE WAS INCLUDED IN PUBLISHED PROCUREMENT SPECIFICATIONS, DOES NOT RENDER AN AWARD ILLEGAL BECAUSE SOME OF THE BIDDERS WERE NOT ABLE TO QUALIFY THEIR PRODUCTS IN TIME FOR THE AWARD. SEE 36 COMP. GEN. 809. FURTHER, WE CONSISTENTLY HAVE HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE AGENCY ON WHOSE BEHALF THE PROCUREMENT IS MADE. IT ALSO HAS BEEN HELD THAT THE ADVERTISING STATUTES REQUIRE EVERY EFFORT TO BE MADE TO DRAW SPECIFICATIONS IN SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE GOVERNMENT'S ACTUAL NEEDS. WHERE DIFFERENCE OF OPINION EXISTS AS TO THE GOVERNMENT'S NEEDS THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE USING AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY'S OPINION IS IN ERROR AND THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATIONS WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE A VIOLATION OF LAW. SEE 17 COMP. GEN. 554. THE REVISED SPECIFICATIONS CANNOT BE REGARDED AS BEING UNDULY RESTRICTIVE OF COMPETITION SOLELY ON THE GROUND THAT ONE OR MORE OF THE ORIGINAL BIDDERS MAY BE IN A BETTER POSITION THAN OTHERS TO SUBMIT BIDS WHICH WILL COMPLY WITH THE NEW SPECIFICATIONS. IS NOTED THAT UNDER THE STATED REQUIREMENTS OF THE FIRST INVITATION YOUR PRODUCT FAILED TO MEET THE SPECIFICATIONS AS TO THE OPERABLE RANGE OF THE MOLDBOARD; THE 6-SPEED TRANSMISSION REQUIREMENT AND THE 4-CYCLE MODEL ENGINE REQUIREMENT, WHEREAS, UNDER THE MINIMUM NEEDS REQUIREMENT OF THE SECOND INVITATION ENCOMPASSING THE FEDERAL SPECIFICATIONS, IT APPEARS THAT YOUR PRODUCT WOULD HAVE MET THE REQUIREMENTS OF THE SPECIFICATIONS ON ALL THESE PHASES EXCEPT THE 6-SPEED TRANSMISSION REQUIREMENT. HENCE, THE INCLUSION OF THE FEDERAL SPECIFICATION IN THE INSTANT INVITATION HAS DECREASED THE NUMBER OF QUALIFYING REQUIREMENTS WHICH YOUR PRODUCT MUST MEET. SINCE FEDERAL SPECIFICATION OO-G-00630A REFERRED TO HEREIN HAS BEEN IN EFFECT SINCE 1960, IT FURTHER APPEARS THAT YOUR PRINCIPAL HAS HAD AMPLE TIME TO QUALIFY ITS PRODUCT. AS STATED IN 36 COMP. GEN. 251, THE GOVERNMENT IS NOT TO BE PLACED IN A 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.

ACCORDINGLY, BASED UPON THE PRESENT RECORD, WE MUST CONCLUDE THAT THE USE OF FEDERAL SPECIFICATIONS AND THE FEDERAL QUALIFIED PRODUCTS LIST FOR THE INVOLVED PROCUREMENT APPEARS LEGALLY PROPER AND YOUR PROTEST IS DENIED.

YOUR REFERENCES TO THE POSSIBLE APPLICATION OF THE REGULATIONS PERTAINING TO SOLE SOURCE PROCUREMENTS HAS BEEN CONSIDERED AND WE THINK IT MIGHT BE A MORE SOUND PROCUREMENT POLICY FOR AN AGENCY TO PROCURE A QUALIFIED PRODUCT BY MEANS OF NEGOTIATION IN THE FIRST PLACE WHERE, AS IN THIS CASE, ONLY ONE CONCERN IS SHOWN TO HAVE QUALIFIED AS A MANUFACTURER OF THE PRODUCT AT THE TIME THE INVITATION IS BEING PREPARED, PARTICULARLY WHERE NOT ENOUGH TIME IS TO BE ALLOWED BETWEEN THE DATE THE INVITATION IS TO BE ISSUED AND THE DATE BIDS ARE TO BE OPENED WITHIN WHICH TO ENABLE OTHER POTENTIAL SUPPLIERS TO OBTAIN QUALIFICATION OF THEIR PRODUCT.

A COPY OF THIS LETTER IS BEING FURNISHED TO THE SECRETARY OF THE INTERIOR.