B-162907, B-163033, JAN. 22, 1968

B-162907, B-163033, JAN. 22, 1968

BIDS - SPECIFICATIONS - RESTRICTIVE DECISION TO BAUSCH AND LOMB DENYING PROTEST CONCERNING RESTRICTIVE SPECIFICATIONS USED IN NEGOTIATED PROCUREMENT OF LENS BY DEFENSE SUPPLY AGENCY. PROTESTING BIDDER WHO CONTENDS THAT SPECIFICATIONS FOR LENS ARE RESTRICTIVE BECAUSE THEY SPECIFY A COLOR AND SIZE MUST HAVE PROTEST DENIED SINCE RECORD DOES NOT INDICATE THAT PROTESTANT IS PRECLUDED FROM COMPETING, SPECIFICATIONS WERE DRAFTED AFTER MEETINGS WITH INTERESTED PROSPECTIVE SUPPLIERS AND REQUIREMENTS ARE JUSTIFIED.

TO BAUSCH AND LOMB:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 10 AND DECEMBER 1, 1967, PROTESTING THAT THE SPECIFICATIONS USED IN REQUESTS FOR PROPOSALS (RFP) NOS. DSA-120-68-R-0938 AND DSA-120-68-R-1367, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, DEFENSE SUPPLY AGENCY AT PHILADELPHIA, ARE RESTRICTIVE OF COMPETITION.

THE SUBJECT REQUESTS FOR PROPOSALS SOLICITED OFFERS FOR FURNISHING LENS, OPHTHALMIC, NEUTRAL ABSORPTION, SIMPLE AND COMPOUND, IN ACCORDANCE WITH SPECIFICATION MIL-L-36460, AS AMENDED BY PURCHASE DESCRIPTION NO. 3 DATED OCTOBER 2, 1967. FIVE FIRMS SUBMITTED OFFERS UNDER RFP -0938, THREE OF WHICH AGREED TO MEET THE SPECIFICATIONS IN ALL RESPECTS. TITMUS OPTICAL CO., INC., REQUESTED A DEVIATION ON SIZE AND YOU REQUESTED DEVIATIONS ON SIZE AND COLOR. FOUR OFFERS WERE RECEIVED UNDER RFP -1367 AND YOU SUBMITTED THE ONLY NONCONFORMING OFFER.

IN YOUR LETTER OF NOVEMBER 10, 1967, YOU STATE THAT OPHTHALMIC LENSES HAVE BEEN PURCHASED BY THE GOVERNMENT FROM A NUMBER OF MAJOR MANUFACTURERS CONFORMING TO MIL-L-36460 DATED DECEMBER 6, 1965, AND EARLIER SPECIFICATION MIL-G-6250B OF SEPTEMBER 22, 1953. THOSE SPECIFICATIONS SET FORTH A PARTICULAR REQUIREMENT TO THE GRAY COLOR, ALLOWING CERTAIN TOLERANCES IN THAT COLOR. YOU FURTHER STATE THAT THE AMENDMENT OF MIL-L- 36460 BY PURCHASE DESCRIPTION NO. 3 ARBITRARILY RESTRICTS THE DEFINITION OF GRAY TO A NARROWER RANGE IN THE SPECTRUM WITH NO SCIENTIFIC JUSTIFICATION. YOU ALSO STATE THAT THE AMENDMENT CHANGED THE SPECIFICATION AS TO LENS SIZE, AND THAT THE SIZE SPECIFIED IS THE PRODUCT OF ONLY ONE MANUFACTURER. YOU CONTEND THAT EITHER RESTRICTION HAS THE EFFECT OF FORECLOSING YOUR COMPANY FROM SUBMITTING A RESPONSIVE BID UNDER THE SOLICITATIONS. YOU BASE YOUR PROTEST UPON THE LANGUAGE OF ASPR 1-1201 WHICH PROVIDES THAT SPECIFICATIONS SHALL STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT, IT BEING YOUR OPINION THAT THERE IS NO REASON FOR THE STATED COLOR AND SIZE LIMITATIONS.

THE ADMINISTRATIVE OFFICE REPORTS THAT ITS FIRST CENTRAL PROCUREMENT OF THE LENSES WAS MADE IN MAY 1966 AND THAT CONTRACTS WERE AWARDED TO SHURON- CONTINENTAL AND YOUR FIRM. AFTER THE LENSES WERE RECEIVED, IT WAS DETERMINED THAT THEY WERE NOT COMPATIBLE BECAUSE OF COLOR ALTHOUGH BOTH LENSES COMPLIED WITH THE SPECIFICATIONS. CONSEQUENTLY, THE MILITARY SERVICES REFUSED TO USE THE LENSES INTERCHANGEABLY IN THE SAME FRAME. THIS PROBLEM WAS DISCUSSED AT A MEETING HELD ON JULY 20, 1967, AT THE DEFENSE MEDICAL MATERIEL BOARD IN WASHINGTON ATTENDED BY REPRESENTATIVES OF PITTSBURGH PLATE GLASS, CORNING GLASS WORKS AND YOUR COMPANY. AT THE MEETING, THE GOVERNMENT PROPOSED TO RESTRICT THE SPECIFICATION REQUIREMENTS TO LENSES THAT WOULD BE VISUALLY COMPATIBLE FOR COLOR. VIEW THEREOF, A SET OF CHROMATICITY COORDINATES WAS PREPARED, OUTLINING AN AREA WHICH WOULD ASSURE COLOR COMPATIBILITY WITHIN THE COLOR RANGE DESIRED. PITTSBURGH PLATE GLASS AND CORNING GLASS WORKS WERE MARKETING GLASS WITHIN THE LIMITATIONS PROPOSED AND ADVISED THE DEFENSE MEDICAL MATERIEL BOARD THAT THE GOVERNMENT'S REQUIREMENTS COULD BE MET BY THEIR COMPANIES. YOUR FIRM, HOWEVER, OFFERED A COUNTERPROPOSAL INVOLVING THE USE OF AN ENTIRELY DIFFERENT SET OF CHROMATICITY COORDINATES. THE ADMINISTRATIVE OFFICE REJECTED YOUR PROPOSAL BECAUSE ADOPTION OF YOUR COORDINATES WOULD HAVE MADE YOUR COMPANY THE ONLY KNOWN MANUFACTURER OF A GLASS MEETING THE SPECIFICATIONS FOR COLOR. ALSO, PITTSBURGH PLATE AND CORNING GLASS WORKS COULD SUPPLY GLASS TO ALL LENS MANUFACTURERS INCLUDING YOUR COMPANY. FURTHERMORE, IT WAS DETERMINED THAT, IF YOU SO DESIRED, YOU COULD MANUFACTURE THE REQUIRED GLASS IN YOUR OWN FACILITIES. WHILE THE ADMINISTRATIVE OFFICE AGREES THAT IT IS GENERALLY TRUE THAT THERE IS NO SCIENTIFIC JUSTIFICATION FOR THE LIMITATION OF THE COLOR AREA, IT STATES THAT THERE IS AMPLE JUSTIFICATION FROM A LOGISTICAL STANDPOINT. IT POINTS OUT THAT UNDER ANY SPECIFICATION WHICH COULD RESULT IN COLOR INCOMPATIBILITY, THE GOVERNMENT WOULD BE REQUIRED TO STOCK THE ENTIRE RANGE OF PRESCRIPTIONS FROM EACH SUCCESSFUL OFFEROR IN ORDER TO INSURE COMPATIBILITY AT THE USER LEVEL. IT REPORTS THAT THE PROBLEMS ENCOUNTERED IN THE BRIEF EXPERIENCE WITH ONLY TWO SUCCESSFUL OFFERORS INDICATE THAT THIS WOULD NOT BE A WISE CHOICE, EITHER FROM A LOGISTICAL OR AN ECONOMIC STANDPOINT.

REGARDING THE SIZE OF THE LENS CALLED FOR BY THE SPECIFICATION, IT IS ADMINISTRATIVELY REPORTED THAT THE SIZE WAS ESTABLISHED BECAUSE THE LENSES ARE USED NOT ONLY IN STANDARD PLASTIC FRAMES (MAXIMUM DIAMETER 48 MM.), BUT ALSO IN THE LARGER METAL FLYING GOGGLE FRAME (MAXIMUM DIAMETER 52 MM.). THE EXTRA GLASS IS NEEDED TO PERMIT DECENTRATION OF THE OPTICAL CENTER OF THE LENS, THAT IS, TO LINE UP THE OPTICAL CENTER OF THE LENS WITH THE PUPIL OF THE EYE. MOST GOGGLE LENSES MUST BE DECENTERED 4 MM. EACH. MANY ARE DECENTERED 5 AND 6 MM. SINCE ALL DECENTERED GLASS IS EDGED OFF FROM ONE SIDE OF THE BLANK OPTIC CENTER, ONLY 50 PERCENT OF THE DIFFERENCE IN SIZE BETWEEN THE LENS BLANK AND THE FINISHED LENS SIZE CAN BE USED FOR DECENTRATION. THE ADMINISTRATIVE OFFICE STATES THAT UNDER THIS FORMULA YOUR LENS (58 MM. X 60 MM.) ALLOWS FOR ONLY 3 MM. OF DECENTRATION (50 PERCENT OF THE DIFFERENCE BETWEEN 58 MM. AND 52 MM.). HENCE, YOUR LENS SIZE IS NOT ADEQUATE FOR MANY CASES IN FABRICATION OF PRESCRIPTION FLYING GOGGLES, ALTHOUGH IT WOULD BE ADEQUATE FOR MOST OF THE PLASTIC FRAMES. IT IS REPORTED THAT IT WOULD NOT BE IN THE INTEREST OF THE GOVERNMENT FROM EITHER A LOGISTICAL OR AN ECONOMICAL STANDPOINT TO ESTABLISH TWO STOCK LISTINGS FOR LENS SIZES IN ORDER TO ACCOMMODATE THE PLASTIC FRAMES AND THE GOGGLES SEPARATELY.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY FOR ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554; 40 ID. 294, 297. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368; 33 ID. 586. THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE ANY ARTICLE 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 ARTICLES WHICH DO NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.

THE RECORD BEFORE OUR OFFICE IS NOT INDICATIVE THAT THE SPECIFICATIONS WERE DRAFTED TO PRECLUDE YOUR COMPANY FROM COMPETING FOR THE GOVERNMENT BUSINESS. CONVERSELY, THE FACT THAT THE GOVERNMENT'S NEEDS WERE DISCUSSED IN MEETINGS WITH INTERESTED PROSPECTIVE SUPPLIERS BEFORE THE SPECIFICATIONS WERE DRAFTED INDICATES THAT A BONA FIDE DETERMINATION OF THE MINIMUM NEEDS OF THE GOVERNMENT WAS MADE AND THAT THE SPECIFICATIONS WERE ISSUED ONLY AFTER A CAREFUL STUDY OF THE NEED TO BE MET IN THE LIGHT OF PAST EXPERIENCE. IT IS OUR OPINION, THEREFORE, THAT THE SPECIFICATIONS DO NOT CONTAIN REQUIREMENTS WHICH FORECLOSE YOUR COMPANY FROM FREELY COMPETING FOR THE GOVERNMENT BUSINESS.