B-160590, FEB. 2, 1967

B-160590, FEB. 2, 1967

TO DELAWARE FOOD PRODUCTS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1966, TO THE DEFENSE SUPPLY AGENCY, AS SUPPLEMENTED BY CORRESPONDENCE FROM YOUR ATTORNEYS, PROTESTING AGAINST THE MAKING OF ANY AWARD UNDER INVITATION FOR BIDS (IFB) NO. DSA-130-7-B-258A1, ISSUED NOVEMBER 14, 1966, BY THE DEFENSE SUPPLY AGENCY, SUBSISTENCE REGIONAL HEADQUARTERS, DEFENSE PERSONNEL SUPPORT CENTER (DPSC), CHICAGO, ILLINOIS.

THE IFB SOLICITED BIDS TO SUPPLY A QUANTITY OF SYNTHETIC DRY VINEGAR CONFORMING TO MILITARY SPECIFICATION MIL-V-35017A, AS AMENDED. BIDS WERE OPENED ON DECEMBER 14, 1966, AND THE LOW BID WAS SUBMITTED BY DUMONT, INC., ENGLEWOOD, NEW JERSEY. AWARD HAS BEEN WITHHELD FROM DUMONT PENDING CONSIDERATION OF YOUR PROTEST.

YOUR PROTEST IS MADE ON SEVERAL GROUNDS WHICH RELATE PRINCIPALLY TO THE ADEQUACY OF THE SPECIFICATIONS AND THE PROPRIETY OF THE DEPARTMENT'S ACTION IN REFUSING TO FURTHER AMEND THE SPECIFICATION FOR THIS PRODUCT. ESSENTIALLY, THREE INADEQUACIES IN THE SPECIFICATION ARE ALLEGED TO PRECLUDE FAIR COMPETITIVE BIDDING IN THIS PROCUREMENT ON A BASIS WHICH WILL INSURE THAT THE GOVERNMENT GETS WHAT IT REQUIRES. THEY ARE (1) THE ABSENCE OF A SPECIFIC TEST TO DETERMINE THE GLACIAL ACETIC ACID CONTENT OF THE FINISHED PRODUCT, (2) THE IMPOSSIBILITY OF OBTAINING THE COLOR DESIRED FOR THE RECONSTITUTED PRODUCT BY THE METHOD SET FORTH IN THE SPECIFICATION, AND (3) THE ABSENCE IN THE IFB OF A REQUIREMENT FOR A BID SAMPLE.

CONCERNING YOUR OBJECTION TO THE ABSENCE OF A TEST TO DETERMINE THE GLACIAL ACETIC ACID CONTENT OF THE FINISHED PRODUCT, THE FOLLOWING IS STATED IN YOUR LETTER DATED DECEMBER 13, 1966, TO THE DPSC:

"IF THE AWARD IS MADE WITHOUT AMENDING THE SPECIFICATIONS, IT IS OUR OPINION:

"1. THE INTERESTS OF THE GOVERNMENT ARE NOT

ADEQUATELY PROTECTED.

"THIS POINT IS SIGNIFICANT SINCE IT IS THE ADDITION OF THE CORRECT AMOUNT OF GLACIAL ACETIC ACID WHICH GIVES THE PRODUCT ITS PROPER VINEGAR CHARACTERISTICS. IN ADDITION, INCORPORATING THE CORRECT AMOUNT OF ACETIC ACID, A LIQUID, IS THE MOST DIFFICULT PHASE OF THE MANUFACTURING PROCESS. WITHOUT THE PROPER AMOUNT OF ACETIC ACID, THE PRODUCT IS MUCH SIMPLER AND FAR LESS EXPENSIVE TO PRODUCE SINCE IT NO LONGER REQUIRES THE COMPLEX AND DIFFICULT HANDLING TECHNIQUES.

"UNDER THE PRESENT SPECIFICATIONS, AND THE MANDATORY CONTRACTOR SELF- INSPECTION PROCEDURES PRESCRIBED, THE GOVERNMENT'S ONLY PROTECTION WOULD BE PARAGRAPH 4.3.2 WHICH SIMPLY REQUIRES ,RECORD OF COMPOSITION OF MIX OF END ITEM SHALL BE MAINTAINED BY CHECK-OFF OR OTHER SIMILAR METHOD.' ENFORCEMENT OF COMPLIANCE TO THE SPECIFICATION UNDER THIS PARAGRAPH IS FAR MORE DIFFICULT AND LESS DEPENDABLE THAN THE REQUIREMENT WE SUGGEST IS NECESSARY; A SIMPLE, INEXPENSIVE AND AVAILABLE TEST FOR DETERMINING THE PRESENCE OF ACETIC ACID.

"IT IS POSSIBLE THAT AN UNSCRUPULOUS SUPPLIER MAY EITHER FALSIFY HIS RECORDS OR JUST DISCARD THAT AMOUNT OF ACETIC ACID WHICH CAUSES THE PRODUCTION DIFFICULTIES. TO SUBSTITUTE THE SLIGHTLY MORE EXPENSIVE MALIC ACID FOR ACETIC ACID WOULD RESULT IN A GREAT SAVINGS FOR THE CONTRACTOR SINCE THE PRODUCT ITSELF BECOMES FAR LESS EXPENSIVE TO MANUFACTURE.'

A LETTER DATED JANUARY 17, 1967, FROM YOUR ATTORNEYS FURTHER ALLEGES THAT WHILE THE GENERAL RULE MAY BE THAT THE GOVERNMENT WOULD NOT BE PRECLUDED FROM APPLYING A SPECIFIC TEST FOR GLACIAL ACETIC ACID EVEN IF NONE IS CALLED FOR IN THE SPECIFICATION, IN THIS CASE THE RULE MAY NOT BE FOR APPLICATION. THE REASON FOR THE POSSIBLE EXCEPTION IN THIS CASE IS STATED AS FOLLOWS:

"* * * IN THIS CONNECTION WE NOTE THAT THIS PROCUREMENT IS SUBJECT TO DSSC ARTICLES 500, EFFECTIVE JANUARY 5, 1965, SECTION 2, AND DPSC GENERAL ARTICLES 76A, EFFECTIVE JULY 15, 1966, SECTION 1, WHICH STATE THAT ALTHOUGH THE GOVERNMENT RESERVES THE RIGHT TO VERIFY THE CONTRACTOR'S CERTIFICATION THAT THE PRODUCT CONFORMS TO THE SPECIFICATIONS, THIS VERIFICATION INSPECTION ,NORMALLY WILL NOT EXCEED THE AMOUNT OF INSPECTION SET FORTH IN THIS CONTRACT FOR PERFORMANCE BY THE CONTRACTOR.' AS WE HAVE NOTED, NO INSPECTION OR TEST FOR GLACIAL ACETIC ACID CONTENT IS SET FORTH IN THE CONTRACT. MOREOVER, THE GOVERNMENT DOES NOT UNDERTAKE TO APPLY ANY SUCH TESTS OR EVEN TO PERFORM THOROUGH IN-PROCESS INSPECTION; IT MERELY NOTES THAT IT MIGHT BE ABLE TO DO SO.'

WITH REGARD TO THE QUESTION WHETHER THE GOVERNMENT COULD UNDERTAKE TO TEST FOR GLACIAL ACETIC ACID WE NOTE THAT THE IFB ARTICLE 76A CITED BY YOUR ATTORNEYS FURTHER PROVIDES IN SECTION 1E HAT:

"NOTWITHSTANDING THE FOREGOING PROVISIONS, THE GOVERNMENT RESERVES:

"/2) THE RIGHT TO EXAMINE AND TEST SUPPLIES AND MATERIALS TENDERED UNDER THIS CONTRACT PRIOR TO ACCEPTANCE OR SHIPMENT.'

FURTHERMORE, GENERAL PROVISION NO. 5, INSPECTION, STANDARD FORM 32 OF THE IFB PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"5. INSPECTION

"/A) ALL SUPPLIES (WHICH TERM THROUGHOUT THIS CLAUSE INCLUDES WITHOUT LIMITATION RAW MATERIALS, COMPONENTS, INTERMEDIATE ASSEMBLIES, AND END PRODUCTS) SHALL BE SUBJECT TO INSPECTION AND TEST BY THE GOVERNMENT, TO THE EXTENT PRACTICABLE, AT ALL TIMES AND PLACES INCLUDING THE PERIOD OF MANUFACTURE, AND IN ANY EVENT PRIOR TO ACCEPTANCE.'

IN VIEW OF THE ABOVE QUOTED PROVISIONS IT IS OUR OPINION THAT THE GOVERNMENT WOULD NOT BE BARRED FROM TESTING THE ARTICLE FOR GLACIAL ACETIC ACID CONTENT EVEN THOUGH THE IFB STATES THAT NORMALLY THE GOVERNMENT'S VERIFICATION INSPECTION WILL NOT EXCEED THE AMOUNT OF INSPECTION REQUIRED BY THE CONTRACTOR, AND EVEN THOUGH THE SPECIFICATION DOES NOT STATE A TEST THEREFOR.

IN CROWN COAT FRONT COMPANY, INC. V. UNITED STATES, 154 CT.CL. 613, IT WAS HELD THAT UNDER A GOVERNMENT CONTRACT REQUIRING THE USE OF A MILDEW INHIBITOR IN THE PROCUREMENT ITEM, BUT NOT INCLUDING A TEST REQUIREMENT, THE GOVERNMENT NEVERTHELESS WAS JUSTIFIED IN MAKING REASONABLE AND NECESSARY TESTS TO VERIFY THAT THE MILDEW INHIBITOR HAD BEEN USED, IT BEING MEANINGLESS TO PRESCRIBE A REQUIREMENT AND AT THE SAME TIME TO PRECLUDE THE MAKING OF NECESSARY TESTS TO ASSURE COMPLIANCE THEREWITH. APPLYING THE SAME PRINCIPLE TO THE INSTANT CASE, IT IS OUR VIEW THAT THE REQUIREMENTS OF PART 3 OF THE SPECIFICATIONS, WHICH INCLUDES AN EXACT FORMULA FOR THE MIX (ARTICLE 3.2), AS WELL AS REASONABLY DETAILED REQUIREMENTS FOR THE END PRODUCT (3.3), JUSTIFY ANY REASONABLE AND NECESSARY TESTS TO ASSURE COMPLIANCE WITH SUCH REQUIREMENTS. FURTHERMORE, THE NECESSITY OR ADVISABILITY OF PRESCRIBING A SPECIFIC TEST IS A MATTER FOR TECHNICAL CONSIDERATION BY THE COGNIZANT GOVERNMENT OFFICE CHARGED WITH THE RESPONSIBILITY FOR MAKING SUCH DECISIONS. B-156606, JULY 21, 1965. IN THIS REGARD THE U.S. ARMY NATICK LABORATORIES TAKES THE FOLLOWING POSITION:

"2. THESE LABORATORIES ADHERE TO THE POSITION PREVIOUSLY STATED IN ABOVE REFERENCED INDORSEMENT TO THE EFFECT THAT A TEST FOR THE AMOUNT OF ACETIC ACID HAS NOT BEEN DEMONSTRATED TO BE NECESSARY IN ORDER TO OBTAIN A SATISFACTORY PRODUCT UNDER THE SUBJECT SPECIFICATION. * * * THE PROTEST OF DELAWARE FOOD PRODUCTS IS BASED ON THE PREMISE THAT AN UNSCRUPULOUS VENDOR MAY FALSIFY HIS RECORDS AND DISCARD THE ACETIC ACID AND THEREBY DECEIVE THE GOVERNMENT AND THAT THEREFORE THE INTERESTS OF THE GOVERNMENT ARE NOT ADEQUATELY PROTECTED. IT IS SUBMITTED THAT THIS SPECIFICATION IS NO DIFFERENT THAN HUNDREDS OF OTHERS USED FOR PROCUREMENT PURPOSES IN THIS RESPECT IN THAT AN UNSCRUPULOUS VENDOR MAY HAVE THE OPPORTUNITY TO DEFRAUD THE GOVERNMENT IF IT SO DESIRES. IN THE HISTORY OF THE PROCUREMENT OF INSTANT DRY VINEGAR, ACCEPTABLE PRODUCTS HAVE BEEN FURNISHED TO THE GOVERNMENT UNDER EVERY CONTRACT. AS A FURTHER PRECAUTIONARY SAFEGUARD, IN PROCESS INSPECTION COULD BE INSTITUTED TO ASSURE THAT THE SUPPLIER UTILIZED THE REQUIRED AMOUNT OF GLACIAL ACETIC ACID.'

IN THE ABSENCE OF ANY CLEAR SHOWING THAT THERE IS NO SUBSTANTIAL BASIS FOR THE TECHNICAL DETERMINATION THAT A SPECIFIC TEST IS NOT NECESSARY, WE FIND NO LEGAL BASIS TO OBJECT TO THE ABSENCE OF SUCH A REQUIREMENT.

THE SECOND OBJECTION RAISED RELATES TO AN ALLEGED AMBIGUITY IN, AND UNWORKABLENESS OF, THE COLOR REQUIREMENT FOR THE RECONSTITUTED VINEGAR WHICH APPEARS IN THE IFB AS FOLLOWS:

"COLOR - DELETE "MEDIUM AMBER" AND INSERT "NOT LIGHTER THAN FEDERAL STANDARD 595 COLOR CHIP 22203 (C.I.E. XO. 5167 Y 0.3690 AND YO 0.1906) NOR DARKER THAN COLOR CHIP 22144 (C.I.E. X 0.5148, YO 0.3603, AND YO 0.1330) WHEN VIEWED THROUGH A 12 CM. DEPTH AGAINST A WHITE BACKGROUND.'

ANOTHER PERTINENT CHANGE APPEARING IN THE IFB IS:

"PAR. 3.2 - CARAMEL COLORING - DELETE "1/8 POUND" AND INSERT "AS REQUIRED.'"

YOUR ATTORNEYS STATE YOUR OBJECTIONS AS FOLLOWS:

"DELAWARE'S SECOND OBJECTION RELATES TO THE COLOR REQUIREMENT. IT IS IMPOSSIBLE TO ASCERTAIN THE COLOR OF THE PRODUCT BY THE METHOD SET FORTH IN THE SPECIFICATION AMENDMENT APPEARING AT PAGE 5 OF THE INVITATION. THE COLOR OF A LIQUID (THE RECONSTITUTED PRODUCT) SIMPLY CANNOT BE TESTED BY COMPARING THE LIQUID TO OPAQUE COLOR CHIPS. INSTEAD, A COMPARISON SHOULD BE MADE WITH SAMPLES OF LIQUID COLOR SOLUTIONS, SUCH AS BY MEANS OF A LOVIBOND TINTOMETER. IT IS ALSO NOT TRUE THAT THE COLOR REQUIREMENT IS NOT CONSIDERED CRITICAL. THE COLOR OF THE FINISHED PRODUCT IS ONE INDEX OF WHETHER THE PRODUCT WAS PROPERLY MANUFACTURED. MOREOVER, THE COLOR OF ANY FOOD PRODUCT IS IMPORTANT TO ITS USER ACCEPTANCE.

"DR. WESCOTT, OF NATICK LABORATORIES, AT A MEETING IN DECEMBER 1966, ORALLY ADMITTED TO MR. AMES THAT THE COLOR TEST IS DEFICIENT AND THAT THE AMENDMENT IS IN ERROR. HE ALSO STATED, IN RESPONSE TO THE COMMANDING GENERAL'S QUESTION, THAT DPSC HEADQUARTERS, AFTER OBSERVING THE TESTING PROCEDURES AT DELAWARE'S PLANT, HAD ADVISED HIM OF DEFICIENCIES IN THE TEST. DR. WESCOTT STATED FURTHER THAT HE HAD NOT YET HAD TIME TO DEVELOP A NEW TEST FOR COLOR. ALTHOUGH WE UNDERSTAND THAT THE COMPTROLLER GENERAL DOES NOT CONDUCT HEARINGS ON PROTESTS, WE THINK IT ESSENTIAL THAT THIS MATTER BE AGAIN TAKEN UP WITH NATICK LABORATORIES BEFORE A DECISION IS CHED.'

THE U.S. ARMY NATICK LABORATORY TAKES THE FOLLOWING OFFICIAL POSITION:

"THE SECOND POINT THAT DELAWARE FOOD PRODUCTS MAKES IS THAT A BIDDER ASSUMES AN INORDINATE RISK THAT HIS PRODUCT MAY BE REJECTED FOR FAILURE TO MEET THE COLOR REQUIREMENT. AS HAS BEEN PREVIOUSLY STATED, THE COLOR REQUIREMENT FOR INSTANT DRY VINEGAR IS NOT CONSIDERED CRITICAL AND A WIDE TOLERANCE IS ALLOWED. THE METHOD SPECIFIED IS WIDELY USED FOR COLOR STANDARDIZATION OF FOOD ITEMS AS WELL AS MANY OTHER COMMODITIES. WHILE THIS TEST IS NOT AS SCIENTIFICALLY SOPHISTICATED AS A SPECTROPHOTOMETRIC TEST, IT IS CONSIDERED ADEQUATE FOR THIS PRODUCT AND THERE HAVE BEEN NO INSTANCES OF REJECTION OF PRODUCT FOR OFF-COLOR, AND THESE LABORATORIES DO NOT CONCUR THAT THIS REQUIREMENT PRESENTS A LARGE RISK TO A SUPPLIER.'

THIS ALSO IS A MATTER WHICH IS PRIMARILY THE FUNCTION AND RESPONSIBILITY OF THE AGENCY CONCERNED, AND IN A SITUATION WHERE DIFFERENCES OF OPINION EXIST AS TO THE ADEQUACY OF SPECIFICATIONS TO PERMIT THE MANUFACTURE OF A PRODUCT WHICH WILL MEET THE NEEDS OF THE PROCURING AGENCY, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY IS IN ERROR. B-155710, APRIL 15, 1965. IN VIEW OF THE POSITION TAKEN BY THE NATICK LABORATORIES AND CONSIDERING THE RECORD PRESENTED, WE CANNOT SAY THAT THE AGENCY'S POSITION ON THE MATTER IS ERRONEOUS.

WITH RESPECT TO YOUR CONTENTION THAT BIDDERS SHOULD BE REQUIRED TO SUBMIT SAMPLES WITH THEIR BIDS, THE AGENCY REPORTS:

"WITH RESPECT TO THE PROTESTER'S REQUEST THAT A "PRE-AWARD" (BID) SAMPLE BE REQUIRED, SINCE THE CHARACTERISTICS OF THE PRODUCT CAN BE AND ARE DESCRIBED ADEQUATELY IN THE SPECIFICATION, AS AMENDED, SUCH REQUIREMENT, AS NOTED BY NATICK LABORATORIES, WOULD BE CONTRARY TO ASPR POLICY (ASPR 2- 202.4 (B) ( AND THE POSITION OF THE COMPTROLLER GENERAL. (37 COMP. GEN. 845, 40 COMP. GEN. 462)"

ARMED SERVICES PROCUREMENT REGULATION 2-202.4 (B), STATES IN PERTINENT PART, AS FOLLOWS:

"/B) POLICY. BIDDERS SHALL NOT BE REQUIRED TO FURNISH A BID SAMPLE OF A PRODUCT THEY PROPOSE TO FURNISH UNLESS THERE ARE CERTAIN CHARACTERISTICS OF THE PRODUCT WHICH CANNOT BE DESCRIBED ADEQUATELY IN THE APPLICABLE SPECIFICATION OR PURCHASE DESCRIPTION, THUS NECESSITATING THE SUBMISSION OF A SAMPLE TO ASSURE PROCUREMENT OF AN ACCEPTABLE PRODUCT.'

ALTHOUGH THIS OFFICE HAS SANCTIONED THE REQUIREMENT FOR BID SAMPLES WHERE THE PURPOSE IS TO ENABLE THE GOVERNMENT TO DETERMINE WITH EXACTNESS THE PRODUCT PROPOSED TO BE SUPPLIED BY THE BIDDER, WE HAVE HELD THAT SAMPLES SHOULD ONLY BE REQUESTED WHEN THE INTERESTS OF THE GOVERNMENT CLEARLY REQUIRE THEM. 46 COMP. GEN. ----,B-159871, NOVEMBER 17, 1966, AND 37 COMP. GEN. 845. WHILE IT APPEARS THAT SAMPLES WERE REQUIRED IN SOME OF THE EARLIER PROCUREMENTS OF THIS ITEM, IT IS CLEAR THAT SETTLED GOVERNMENT POLICY FAVORS THE ELIMINATION OF SUCH REQUIREMENTS, AND SINCE THE AGENCY HAS DETERMINED THAT THE CHARACTERISTICS OF THE PRODUCT SOUGHT TO BE PROCURED IN THIS CASE ARE ADEQUATELY DESCRIBED IN THE SPECIFICATION, WE DO NOT BELIEVE THAT THE FAILURE TO REQUIRE A SAMPLE CAN BE CONSIDERED BY US AS A PROPER BASIS TO OBJECT TO AWARD OF A CONTRACT ON THE ADVERTISED SPECIFICATIONS.