B-163597, APR. 30, 1968

B-163597: Apr 30, 1968

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INC.: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16. THE ABOVE INVITATION WAS ISSUED ON DECEMBER 11. IS A SUPPLIER OF HYDRAULIC CRANES UTILIZING THE PISTON TYPE PUMP. YOU FURTHER ALLEGE THAT THE SPECIFICATION CHANGE WAS MADE WITHOUT BENEFIT OF TESTING. YOU ALSO ALLEGE THAT THE ORIGINAL BID SPECIFICATIONS WERE RIGID IN THEIR PERFORMANCE REQUIREMENTS AND WERE OBVIOUSLY DEVELOPED BY PLAGIARIZING SPECIFICATION MIL-T-23896. IS FOR A DIFFERENT TYPE VEHICLE BUT INCLUDES CRANES OF THE TYPE REQUIRED IN THE PRESENT PROCUREMENT. YOUR RECORDS AND CORRESPONDENCE CONCERNING THESE TESTS HAVE BEEN DESTROYED. IT IS YOUR VIEW THAT ANY NEW COMPANY DESIRING TO BID SHOULD HAVE ITS EQUIPMENT SUBJECTED TO THE SAME TYPE TESTS.

B-163597, APR. 30, 1968

TO STANCO MFG. AND SALES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1968, WITH ENCLOSURES, AND YOUR LETTER OF MARCH 19, 1968, ADDRESSED TO THE UNITED STATES ARMY TANK AUTOMOTIVE COMMAND, PROTESTING AGAINST ANY AWARD UNDER INVITATION FOR BIDS NO. DAAE07-68-B-0586, ISSUED BY THE ABOVE COMMAND.

THE ABOVE INVITATION WAS ISSUED ON DECEMBER 11, 1967, AND CALLED FOR THE FURNISHING OF A NUMBER OF STAKE TRUCKS WITH HYDRAULIC ARTICULATING BOOM TYPE CRANES IN ACCORDANCE WITH SPECIFICATION MIL-T 45339H AS MODIFIED BY EXPLICIT LANGUAGE IN THE IFB. AS PART OF THE HYDRAULIC SYSTEM, THE INVITATION PROVIDED THAT,"A HYDRAULIC PUMP DRIVEN FROM A POWER TAKE-OFF CONTROLLED FROM INSIDE THE TRUCK CAB SHALL BE PROVIDED TO FURNISH POWER FOR THE CRANE. THE PUMP SHALL BE A PISTON-TYPE AND SHALL PROVIDE A WORKING PRESSURE OF NOT LESS THAN 1850 PSI.' HOWEVER, AMENDMENT ONE TO THE SOLICITATION ADDED ITEM NUMBER 0007, STAKE TRUCKS WITH HYDRAULIC CRANES, WITH A HYDRAULIC CRANE WHICH PERMITTED THE USE OF EITHER THE PISTON OR VANE TYPE PUMP. AMENDMENT NUMBER TWO MADE CERTAIN CHANGES IN THE SPECIFICATIONS, INCLUDING THE CHANGE ALLOWING USE OF VANE TYPE PUMPS IN THE HYDRAULIC SYSTEM OF THE CRANES. YOUR FIRM, WHILE NOT A BIDDER, IS A SUPPLIER OF HYDRAULIC CRANES UTILIZING THE PISTON TYPE PUMP.

IN ITS PROTEST AGAINST THE CHANGE IN SPECIFICATIONS, YOUR FIRM ALLEGES THAT THE VANE TYPE PUMPS DO NOT GIVE THE REQUIRED DEGREE OF CONTROL AND CAUSE INCREASED MAINTENANCE COSTS. YOU FURTHER ALLEGE THAT THE SPECIFICATION CHANGE WAS MADE WITHOUT BENEFIT OF TESTING, ENGINEERING BACK -UP DATA, OR FIELD MAINTENANCE DATA NECESSARY TO JUSTIFY SUCH A CHANGE. YOU ALSO ALLEGE THAT THE ORIGINAL BID SPECIFICATIONS WERE RIGID IN THEIR PERFORMANCE REQUIREMENTS AND WERE OBVIOUSLY DEVELOPED BY PLAGIARIZING SPECIFICATION MIL-T-23896, DATED OCTOBER 23, 1963, WHICH, ACCORDING TO THE ENGINEERING REPORT, IS FOR A DIFFERENT TYPE VEHICLE BUT INCLUDES CRANES OF THE TYPE REQUIRED IN THE PRESENT PROCUREMENT. YOU STATE THAT, APPROXIMATELY SEVEN YEARS AGO, YOUR FIRM VOLUNTARILY SUBMITTED ITS EQUIPMENT TO A THOROUGH AND EXTENSIVE TESTING BY THE MARINE CORPS AT QUANTICO, VIRGINIA. HOWEVER, DUE TO THE PASSAGE OF TIME AND LIMITATION ON STORAGE SPACE, YOUR RECORDS AND CORRESPONDENCE CONCERNING THESE TESTS HAVE BEEN DESTROYED. IT IS YOUR VIEW THAT ANY NEW COMPANY DESIRING TO BID SHOULD HAVE ITS EQUIPMENT SUBJECTED TO THE SAME TYPE TESTS, BEFORE ANY CHANGES TO THE SPECIFICATIONS ARE GRANTED.

ACCORDING TO THE ADMINISTRATIVE REPORT, THE VANE PUMP IS USED IN MANY AND VARIED APPLICATIONS THROUGHOUT INDUSTRY AND HAS PROVEN ITSELF IN THE COMMERCIAL MARKET. THUS, IT CANNOT BE CONSIDERED A NEW PRODUCT WHICH WOULD REQUIRE ADDITIONAL TESTING. THE REPORT FURTHER STATES THAT THE PURPOSE OF THE PRESENT PROCUREMENT INVOLVES NO SPECIAL MILITARY REQUIREMENTS, BUT CAN BE SATISFIED BY STANDARD COMMERCIAL EQUIPMENT EMPLOYING EITHER THE PISTON OR VANE TYPE PUMP. CONCERNING YOUR STATEMENT THAT THE ORIGINAL BID SPECIFICATIONS FOR THE PRESENT PROCUREMENT WERE DEVELOPED BY PLAGIARIZING SPECIFICATION MIL-T-23896, THE REPORT DENIES THAT MIL-T-23896 PLAYED ANY PART IN THE WRITING OF THE REQUIREMENTS FOR THE PROCUREMENT OF THE VEHICLES UNDER PRESENT PROCUREMENT. HOWEVER, IT IS NOTED THAT, CONTRARY TO YOUR ALLEGATIONS, PARAGRAPH 3.4. 4.3 (B) OF MIL-T -23896 STATES THAT "THE PUMP SHALL BE OF THE POSITIVE DISPLACEMENT TYPE OR VANE TYPE.'

THIS OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE ADMINISTRATIVE AGENCIES HAVE THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE RESPONSIBILITY OF DETERMINING WHETHER THE PRODUCT OFFERED MEETS THE SPECIFICATIONS. COMP. GEN. 302, 304; 38 COMP. GEN. 190; 35 COMP. GEN. 174, 179 AND 17 COMP. GEN. 554. ASSUMING THE TRUTH OF YOUR STATEMENT THAT THE MARINE CORPS SUBJECTED YOUR EQUIPMENT TO CERTAIN TESTS, THERE IS NO EVIDENCE THAT SUCH TESTS WERE MANDATORY, AND IN ANY EVENT IT IS THE OPINION OF THE TECHNICAL PERSONNEL CHARGED WITH THE RESPONSIBILITY OF DETERMINING THE NEEDS OF THE GOVERNMENT IN THIS FIELD THAT NO SUCH TESTING IS NECESSARY FOR COMMERCIAL TYPE EQUIPMENT OF THE KIND HERE INVOLVED. THEREFORE, TO INSIST THAT OTHER BIDDERS SUBJECT THEIR EQUIPMENT TO SUCH TESTS WOULD BE PLACING THE UNITED STATES IN A POSITION OF HAVING A BIDDER DICTATE ITS REQUIREMENTS, WHICH THIS OFFICE, WITHOUT EXCEPTION, HAS REFUSED TO DO. SEE 16 COMP. GEN. 38; B-156373, AUGUST 25, 1965; AND B-148922, SEPTEMBER 4, 1962. THUS IN THE ABSENCE OF EVIDENCE CLEARLY INDICATING THAT THE SPECIFICATIONS AS WRITTEN DO NOT REFLECT THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, OR THAT THEY ARE OTHERWISE CONTRARY TO APPLICABLE LAW OR REGULATION, OUR OFFICE MAY NOT PROPERLY OBJECT THERETO.

CONCERNING YOUR STATEMENT THAT ADEQUATE COMPETITION FOR THE CRANE ALREADY EXISTS AND A CHANGE IN THE SPECIFICATIONS WILL NOT INCREASE COMPETITION, IT IS REPORTED THAT PERMITTING USE OF THE VANE TYPE PUMP HAS RESULTED IN AT LEAST ONE ADDITIONAL COMPETITOR, NATIONAL CRANE COMPANY, WHICH IS SCHEDULED TO BE THE CRANE SUPPLIER TO THE LOW BIDDER, INTERNATIONAL HARVESTER COMPANY.

ON THE PRESENT RECORD, IT IS OUR CONSIDERED OPINION THAT THE CHARGES YOU MAKE CONCERNING THE CHANGE IN THE SPECIFICATIONS, IN THE LIGHT OF THE ANSWERS THERETO BY THE CONTRACTING AGENCY, DO NOT AFFORD A LEGAL BASIS FOR OUR OFFICE TO TAKE EXCEPTION TO THE SPECIFICATIONS, OR TO THE AWARD OF A CONTRACT THEREON. YOUR PROTEST IS THEREFORE DENIED.