B-161974, SEP. 14, 1967

B-161974: Sep 14, 1967

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BIDDER WHO HAD LOW BID REJECTED AS NONRESPONSIVE BUT WHO PROTESTS PROCUREMENT FOR WELL DRILL AND ACCESSORIES ON BASIS OF RESTRICTIVE SPECIFICATIONS MUST HAVE PROTEST DENIED SINCE PROCURING AGENCY REPORTED THAT ANY MANUFACTURER OF DRILLING RIGS COULD ASSEMBLE DRILL REQUIRED AND THAT AGENCY DID NOT IN ANY WAY LIMIT AWARD TO ONE MANUFACTURER. TO WALKER-NEER COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 29. THE INVITATION FOR BIDS WAS ISSUED FOR A WELL DRILL WITH TOOLS AND ACCESSORIES. AN AMENDMENT WAS ISSUED ON JUNE 2. THE WALKER-NEER BID WAS REJECTED FOR NOT MEETING THE SPECIFICATIONS. AWARD WAS MADE TO THE STARDRILL COMPANY. THE PRIMARY CONTENTION IS THAT THE SPECIFICATIONS WERE SO RESTRICTIVE THAT ALL BUT ONE MANUFACTURER WOULD BE UNABLE TO PRODUCE THE REQUIRED DRILL WITHOUT TAKING ANY EXCEPTIONS.

B-161974, SEP. 14, 1967

BIDS - SPECIFICATIONS - RESTRICTIVE DECISION TO LOW BIDDER WALKER-NEER COMPANY RE PROTEST TO AWARD TO STARDRILL CO. FOR WELL DRILL WITH TOOLS AND ACCESSORIES BY DEPT. OF AGRICULTURE. BIDDER WHO HAD LOW BID REJECTED AS NONRESPONSIVE BUT WHO PROTESTS PROCUREMENT FOR WELL DRILL AND ACCESSORIES ON BASIS OF RESTRICTIVE SPECIFICATIONS MUST HAVE PROTEST DENIED SINCE PROCURING AGENCY REPORTED THAT ANY MANUFACTURER OF DRILLING RIGS COULD ASSEMBLE DRILL REQUIRED AND THAT AGENCY DID NOT IN ANY WAY LIMIT AWARD TO ONE MANUFACTURER.

TO WALKER-NEER COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1967, PROTESTING THE AWARD OF A CONTRACT BY THE AGRICULTURAL RESEARCH SERVICE, DEPARTMENT OF AGRICULTURE, BOISE, IDAHO, UNDER INVITATION FOR BIDS NO. 256-N-ARS 67.

ON MAY 26, 1967, THE INVITATION FOR BIDS WAS ISSUED FOR A WELL DRILL WITH TOOLS AND ACCESSORIES. IN AN EFFORT TO RELAX CERTAIN REQUIREMENTS OF THE INVITATION THAT THE AGENCY DETERMINED MIGHT BE TOO RESTRICTIVE AND TO CLARIFY OTHER AREAS, AN AMENDMENT WAS ISSUED ON JUNE 2, 1967. ALTHOUGH LOWER IN PRICE, THE WALKER-NEER BID WAS REJECTED FOR NOT MEETING THE SPECIFICATIONS, AND AWARD WAS MADE TO THE STARDRILL COMPANY.

THE PRIMARY CONTENTION IS THAT THE SPECIFICATIONS WERE SO RESTRICTIVE THAT ALL BUT ONE MANUFACTURER WOULD BE UNABLE TO PRODUCE THE REQUIRED DRILL WITHOUT TAKING ANY EXCEPTIONS. YOU ALSO CLAIM THAT YOUR PRODUCT CONSTITUTED "EQUAL OR BETTER EQUIPMENT" AND WOULD HAVE BEEN SELECTED HAD NOT THE SPECIFICATIONS BEEN UNDULY RESTRICTIVE.

THE AGENCY IN ITS REPORT TO OUR OFFICE CHALLENGED THE ABOVE STATEMENTS AND ASSERTED THAT NOT ONLY WERE THE ABOVE SPECIFICATIONS NECESSARY FOR THE PROJECT BUT ALSO THAT THEY WERE GENERAL IN NATURE. IT WAS REPORTED THAT "* * * ANYONE WHO MANUFACTURES DRILLING RIGS COULD OBTAIN THE NECESSARY HARDWARE AND MATERIAL INCLUDING THE ENGINE AND ASSEMBLE A DRILLING RIG AS SPECIFIED IN OUR SOLICITATION.' HOWEVER, THE AGENCY DID CONSIDER YOUR EXCEPTIONS AND CONCLUDED THAT FOR THE INTENDED USE YOUR PRODUCT WAS NOT OF EQUAL OR BETTER QUALITY THAN THE MODEL THAT WAS SELECTED.

THE DRAFTING OF SPECIFICATIONS FOR MATERIALS OR SERVICES TO BE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES AND A DETERMINATION AS TO THEIR NEEDS WILL NOT ORDINARILY BE QUESTIONED UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE. IN THE PERFORMANCE OF THIS RESPONSIBILITY THE DRAFTING OF THE PROPER SPECIFICATIONS MUST PERMIT THE BROADEST FIELD OF COMPETITION MEETING THE NEEDS OF THE AGENCY. SEE 38 COMP. GEN. 610, 611. THUS, AN AGENCY SHOULD NOT SPECIFY DESIGN FEATURES WHICH REQUIRE THE USE OF A PARTICULAR MANUFACTURER'S PRODUCT WHERE THE PRODUCTS OF OTHER MANUFACTURERS WOULD SERVE AS WELL. 39 COMP. GEN. 101.

THE TERMS, CONDITIONS OR SPECIFICATIONS WHICH ARE TO BE INCLUDED IN AN INVITATION FOR BIDS WILL NORMALLY NOT BE QUESTIONED BY THIS OFFICE UNLESS UNDULY RESTRICTIVE. THE FACT THAT A BIDDER MAY BE UNWILLING OR UNABLE TO MEET CERTAIN REQUIREMENTS OF ADVERTISED SPECIFICATIONS WHICH HAVE BEEN DETERMINED NECESSARY TO MEET THE GOVERNMENT'S NEEDS, IS NOT SUFFICIENT TO WARRANT THE CONCLUSION THAT SUCH SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION. IN THIS REGARD WE STATED IN 36 COMP. GEN. 251, 252:

"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 AGENCY DETERMINATION TO REJECT THE BID OF THE PROTESTANT AND PURCHASE A HIGHER PRICED MODEL, WHICH, IN ITS ESTIMATION, WAS MORE SUITABLE, WAS REACHED ONLY AFTER CONSIDERABLE DISCUSSION AND REVIEW OF THE AGENCY'S ACTUAL NEEDS. IT DOES NOT APPEAR THAT THE AGENCY IN ANY WAY LIMITED THE AWARD OF THE CONTRACT TO ONE MANUFACTURER. FOR THE REASONS THUS STATED, WE DO NOT FIND THE SPECIFICATIONS RESTRICTIVE IN THIS CASE, AND ADMITTEDLY THE WALKER-NEER BID WAS NOT RESPONSIVE TO THOSE SPECIFICATIONS. WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN DISTURBING THE ACTION TAKEN; CONSEQUENTLY, THE PROTEST MUST BE DENIED.