B-163829, MAY 21, 1968

B-163829: May 21, 1968

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TO SIMPSON ELECTRIC COMPANY: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE BID SAMPLE AND LIFE CYCLE TESTING REQUIREMENTS CONTAINED IN INVITATION FOR BIDS NO. THREE RESPONSIVE BIDS WERE RECEIVED ON MARCH 25. IT IS REPORTED THAT THE BID SAMPLES WERE UNDERGOING THE LIFE CYCLE TESTS PRESCRIBED IN THE INVITATION AS OF APRIL 17. IT IS YOUR BASIC CONTENTION THAT THE BID SAMPLE REQUIREMENT IS RESTRICTIVE OF COMPETITION AND CONTRARY TO THE POLICY EXPRESSED IN ARMED SERVICES PROCUREMENT REGULATION 2-202.4 AGAINST REQUIRING A BID SAMPLE UNLESS THERE ARE CERTAIN CHARACTERISTICS OF THE PRODUCT WHICH CANNOT BE DESCRIBED ADEQUATELY IN SPECIFICATIONS OR A PURCHASE DESCRIPTION. IT IS YOUR CONTENTION THAT EXCEPT FOR THOSE FIRMS WHO ARE PRESENTLY PRODUCING UNDER MILITARY CONTRACTS.

B-163829, MAY 21, 1968

TO SIMPSON ELECTRIC COMPANY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE BID SAMPLE AND LIFE CYCLE TESTING REQUIREMENTS CONTAINED IN INVITATION FOR BIDS NO. DAAF01-68- B-0320, ISSUED DECEMBER 22, 1967, BY THE ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS, TO PROCURE 3,940 IGNITION TIMING LIGHTS. ALTHOUGH YOU DID NOT SUBMIT A BID, THREE RESPONSIVE BIDS WERE RECEIVED ON MARCH 25, 1968, AND IT IS REPORTED THAT THE BID SAMPLES WERE UNDERGOING THE LIFE CYCLE TESTS PRESCRIBED IN THE INVITATION AS OF APRIL 17.

IT IS YOUR BASIC CONTENTION THAT THE BID SAMPLE REQUIREMENT IS RESTRICTIVE OF COMPETITION AND CONTRARY TO THE POLICY EXPRESSED IN ARMED SERVICES PROCUREMENT REGULATION 2-202.4 AGAINST REQUIRING A BID SAMPLE UNLESS THERE ARE CERTAIN CHARACTERISTICS OF THE PRODUCT WHICH CANNOT BE DESCRIBED ADEQUATELY IN SPECIFICATIONS OR A PURCHASE DESCRIPTION. WITH RESPECT TO THE SPECIFICATIONS BEING RESTRICTIVE, IT IS YOUR CONTENTION THAT EXCEPT FOR THOSE FIRMS WHO ARE PRESENTLY PRODUCING UNDER MILITARY CONTRACTS, NO FIRM PRODUCES A STANDARD UNIT WHICH MEETS THE SPECIFICATIONS AND THAT THE TIME ALLOWED FROM JANUARY 18, 1968, THE DATE OF AN AMENDMENT SUBSTANTIALLY MODIFYING THE SPECIFICATIONS, UNTIL MARCH 25, 1968, WAS NOT SUFFICIENT TO DESIGN AND PRODUCE A SAMPLE UNIT MEETING THE TEST REQUIREMENTS. YOU ALSO CONTEND THAT THE TERMS OF THE BID SAMPLE PROVISION ARE CONTRADICTORY IN THAT THEY PROVIDE THAT THE SAMPLE WILL BE USED AS A PRODUCTION STANDARD AND ALSO WARN THAT THE UNIT WILL BE DESTROYED DURING TESTING. FURTHER, YOU ARGUE THAT THE PROVISION FOR TESTING ONLY ONE SAMPLE IS ARBITRARY FOR ANY ONE UNIT MAY HAVE UNKNOWN DEFECTS AND, THEREFORE, TESTING THREE OR MORE UNITS WOULD BE MORE APPROPRIATE. YOU ALSO ARGUE THAT IF LIFE CYCLE TESTING IS DESIRABLE IT SHOULD BE CONDUCTED IN ACCORDANCE WITH STANDARD QUALIFIED PRODUCTS PROCEDURES. YOU ALSO QUESTION WHY A PORTION OF THIS PROCUREMENT WAS NOT SET ASIDE FOR LABOR SURPLUS AREA CONCERNS. FINALLY, YOU QUESTION THE AGENCY'S POSITION THAT THE TIME FOR SUBMITTING BIDS COULD NOT BE EXTENDED BECAUSE THERE WAS AN URGENT REQUIREMENT FOR THE ITEMS.

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 THE ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF THIS 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 NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 33 COMP. GEN. 586. THIS OFFICE HAS SANCTIONED THE REQUIREMENT FOR BID SAMPLES WHERE THE PURPOSE IS TO ENABLE THE GOVERNMENT TO DETERMINE WHETHER THE PRODUCT PROPOSED TO BE SUPPLIED BY THE BIDDER WILL MEET THE GOVERNMENT'S PARTICULAR NEEDS AND SUCH DETERMINATION CANNOT BE ADEQUATELY MADE FROM A WRITTEN PROPOSAL. COMP. GEN. 406; B-154599, SEPTEMBER 16, 964; B-154887, DECEMBER 11, 1964. OUR OFFICE HAS ALSO RECOGNIZED THAT THE INTEREST OF THE GOVERNMENT CAN BE SERVED BETTER BY CONSIDERING THE "TOTAL COST" ASSOCIATED WITH THE PROPERTY DURING ITS LIFE AS OPPOSED TO CONSIDERATION OF "ACQUISITION COST" ONLY. 151177, JUNE 17, 1963, AND DECISIONS CITED.

AN EXAMINATION OF THE HISTORY OF THIS PROCUREMENT REVEALS THAT FOR SOME TIME THE POLICY BRANCH OF THE ARMY MATERIEL COMMAND AND THE WEAPONS COMMAND HAD BEEN ATTEMPTING TO SELECT AN ITEM SUITABLE FOR A LIFE CYCLE COST TYPE PROCUREMENT. FINALLY, ON MARCH 8, 1967, THE WEAPONS COMMAND LIFE CYCLE COSTING TASK GROUP SELECTED THE TIMING LIGHT AS AN ITEM FITTING INTO A LIFE CYCLE COSTING CONCEPT. ON MARCH 30, 1967, THE DIRECTOR, PROCUREMENT AND PRODUCTION, USAWECOM, ISSUED A DIRECTIVE TO THE COMMANDING OFFICER, ROCK ISLAND ARSENAL, FOR PROCUREMENT OF THE TIMING LIGHTS UNDER LIFE CYCLE COSTING PROCEDURES. THIS DIRECTIVE INCLUDED A DETERMINATION THAT A REQUIREMENT FOR BID SAMPLES WAS WARRANTED FOR EVALUATION OF SERVICE LIFE AND RECOMMENDED THE PROCUREMENT BE EFFECTED WITHOUT SMALL BUSINESS OR LABOR SURPLUS SET-ASIDES TO OBTAIN THE BEST POSSIBLE COMPETITION FROM BOTH SMALL AND LARGE BUSINESS. THE DIRECTIVE ALSO INCLUDED INFORMATION THAT THERE THEN EXISTED A REQUIREMENT FOR 3,198 TIMING LIGHTS.

WE BELIEVE THESE CIRCUMSTANCES JUSTIFY THE REQUIREMENT FOR A BID SAMPLE SINCE THE SERVICE LIFE SPAN OF A TIMING LIGHT COULD NOT BE DETERMINED FROM A STATEMENT OF SPECIFICATIONS AND EXAMINATION OF TECHNICAL PROPOSALS WITHOUT ACTUAL TESTING. IN ADDITION, WE FIND NO PROVISION IN ASPR 2-202.4 (B) WHICH WOULD SPECIFICALLY PRECLUDE THE REQUIREMENT FOR A BID SAMPLE TO DETERMINE WHETHER THE TIMING LIGHT PROPOSED WOULD MEET THE MINIMUM SERVICE LIFE OF FIVE YEARS SPECIFIED IN THE INVITATION. THAT THE REQUIREMENT FOR A BID SAMPLE WAS NOT UNDULY RESTRICTIVE AND THAT THE TIME PERMITTED FOR SUBMISSION WAS NOT TOO SHORT, IS EVIDENCED BY THE FACT THAT THREE RESPONSIVE BIDS WERE SUBMITTED. IN THIS REGARD, THE CONTRACTING OFFICER REPORTS THAT POSSIBLY MORE TIME WAS NEEDED IN YOUR CASE AS YOU INTENDED TO PROPOSE A TIMING LIGHT BASED UPON AN UNPROVEN DESIGN EMBODYING A SOLID STATE CONCEPT WHEREAS THE RESPONSIVE BIDDERS USED A STANDARD VIBRATOR ELECTRONIC TUBE TYPE CONCEPT. HOWEVER, HE STATES THAT HE WAS UNABLE TO EXTEND BID OPENING BEYOND THE TWO WEEKS GIVEN WHEN THE INVITATION WAS AMENDED TO ALLOW YOU TO USE THE SOLID STATE DESIGN BECAUSE THE PROCUREMENT HAD BEEN DELAYED FROM THE TIME IT WAS FIRST AUTHORIZED IN MARCH 1967 UNTIL DECEMBER 1967 BECAUSE OF THE UNAVAILABILITY OF FUNDS AND, IN THE MEANTIME, A CONSIDERABLE NUMBER OF BACK ORDERS HAD ACCUMULATED.

WITH REGARD TO YOUR ARGUMENT THAT A PORTION OF THE PROCUREMENT SHOULD HAVE BEEN SET ASIDE FOR LABOR SURPLUS AREA CONCERNS, WE HAVE ALREADY NOTED THAT THE DIRECTIVE INITIATING THIS PROCUREMENT RECOMMENDED AGAINST A LABOR SURPLUS AREA OR SMALL BUSINESS SET-ASIDE BECAUSE OF THE LIFE CYCLE COST CONCEPT BEING TESTED. THE EXPRESSED POLICY OF THE DEPARTMENT OF DEFENSE IS TO AID LABOR SURPLUS AREAS BY PLACING CONTRACTS WITH LABOR SURPLUS AREA CONCERNS "TO THE EXTENT CONSISTENT WITH PROCUREMENT OBJECTIVES * * *" ASPR 1-202. WE BELIEVE IT IS REASONABLE TO CONCLUDE THAT THE OBJECTIVES OF THIS PROCUREMENT MAY NOT BE CONSISTENT WITH THE GENERAL POLICY TO AID LABOR SURPLUS AREAS. MOREOVER, THE FILE INDICATES THAT THERE WAS SOME QUESTION WHETHER THE PROCUREMENT WAS SUSCEPTIBLE TO DIVISION INTO TWO OR MORE ECONOMIC PRODUCTION RUNS OR REASONABLE LOTS. ASPR 1-804.1.

IT IS THE ADMINISTRATIVE POSITION THAT THE QUALIFIED PRODUCTS PROCEDURE WOULD NOT SATISFY THE PROCUREMENT OBJECTIVES SINCE ONLY THE MINIMUM REQUIREMENTS OF THE GOVERNMENT WOULD BE ESTABLISHED, WHILE THE LIFE CYCLE COST CONCEPT ENVISIONS THE OVERALL LIFE OF THE ITEM AND, THEREFORE, MINIMUM REQUIREMENTS MAY BE EXCEEDED BUT RESULT IN THE BEST OVERALL COST TO THE GOVERNMENT. WITH RESPECT TO YOUR ARGUMENT THAT MORE THAN ONE SAMPLE SHOULD HAVE BEEN REQUIRED FOR TESTING, THE AGENCY REPORTS THAT THE NUMBER OF SAMPLES WHICH CAN FEASIBLY BE SUBJECTED TO EXTENSIVE TESTS IS LIMITED BY THE TIME, PERSONNEL AND MONEY AVAILABLE FOR SUCH PURPOSE. TO YOUR ARGUMENT THAT THE TERMS OF THE BID SAMPLE PROVISION ARE CONTRADICTORY, THE CONTRACTING OFFICER POINTS OUT THAT WHILE THE SAMPLE MIGHT BE DAMAGED IN TESTING IT WILL, EVEN IN ITS DAMAGED CONDITION, BE A PRODUCTION STANDARD, BECAUSE THE GOVERNMENT WILL KNOW WHAT MATERIALS WERE USED AND WILL REQUIRE THE SAME QUALITY IN ALL PRODUCTION RUNS. FURTHERMORE, TEST DATA, PHOTOGRAPHS AND THE SAMPLE WILL BE USED AS CHECK ON PRODUCTION.

BASED UPON THE FOREGOING, IT IS OUR VIEW THAT THE PROCEDURE EMPLOYED IN THIS PROCUREMENT WAS IN THE BEST INTEREST OF THE GOVERNMENT AND THERE IS NO BASIS UPON WHICH OUR OFFICE MAY PROPERLY OBJECT THERETO.