B-168278(2), MAR. 30, 1970

B-168278(2): Mar 30, 1970

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IT WOULD SEEM THAT NECESSARILY ALL SPECIFICATIONS ARE RESTRICTIVE IN SENSE THEIR REQUIREMENTS. CANNOT BE PLACED IN POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF ITEMS WHICH DO NOT. GARDNER & GRANT: REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 20 AND DECEMBER 29. ENCLOSED FOR YOUR INFORMATION IS A COPY OF OUR DECISION OF TODAY TO THE SECRETARY OF THE ARMY WHICH IS SELF-EXPLANATORY. IT WOULD SEEM THAT NECESSARILY ALL SPECIFICATIONS ARE RESTRICTIVE IN THE SENSE THAT THE REQUIREMENTS THEY ESTABLISH. THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE SUPPLIES OR EQUIPMENT MERELY BECAUSE THEY COULD BE OFFERED AT A LOWER PRICE. NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF ITEMS WHICH DO NOT.

B-168278(2), MAR. 30, 1970

CONTRACTS--SPECIFICATIONS--MINIMUM NEEDS REQUIREMENT--ABILITY TO MEET RESPECTING PROTESTANT'S VIEW THAT USE OF PURCHASE DESCRIPTION IN PROCUREMENT OF STEAM CLEANERS RESTRICTS BIDDING AND PERMITS GREAT LEEWAY TO PROCURING AGENCY IN MAKING ACCEPTABILITY DETERMINATION, IT WOULD SEEM THAT NECESSARILY ALL SPECIFICATIONS ARE RESTRICTIVE IN SENSE THEIR REQUIREMENTS---WHETHER REASONABLE OR NOT---PRECLUDE PURCHASE OF NONCONFORMING ITEMS, BUT GOVT. CANNOT BE PLACED IN POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF ITEMS WHICH DO NOT, IN PROCURING AGENCY'S CONSIDERED JUDGMENT, REASONABLY MEET AGENCY'S NEED. SEE COMP. GEN. DECS. CITED.

TO LEDWON, GARDNER & GRANT:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 20 AND DECEMBER 29, 1969, PROTESTING ON BEHALF OF CHAUSSE MANUFACTURING COMPANY, INC; RIVER ROUGE, MICHIGAN, AGAINST THE AWARD OF A CONTRACT TO THE HI-JENNY DIVISION OF HOMESTEAD INDUSTRIES UNDER INVITATION FOR BIDS NO. DAAF01 69-B-0767, ISSUED BY THE ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS. ENCLOSED FOR YOUR INFORMATION IS A COPY OF OUR DECISION OF TODAY TO THE SECRETARY OF THE ARMY WHICH IS SELF-EXPLANATORY.

WITH RESPECT TO YOUR VIEW THAT THE USE OF A PURCHASE DESCRIPTION IN THE PROCUREMENT OF STEAM CLEANERS RESULTS IN A RESTRICTION OF BIDDING AND GIVES GREAT LEEWAY TO THE PROCUREMENT FACILITY IN DETERMINING THE ACCEPTABILITY OF BIDDERS' PRODUCTS, IT WOULD SEEM THAT NECESSARILY ALL SPECIFICATIONS ARE RESTRICTIVE IN THE SENSE THAT THE REQUIREMENTS THEY ESTABLISH, WHETHER REASONABLE OR NOT, PRECLUDE THE PURCHASE OF NONCONFORMING ITEMS. HOWEVER, THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE SUPPLIES OR EQUIPMENT MERELY BECAUSE THEY COULD BE OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEED TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF ITEMS WHICH DO NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED. 36 COMP. GEN. 251, 252 (1956); B- 167791, OCTOBER 31, 1969.

WE HAVE REVIEWED THE HISTORY OF PAST PROCUREMENTS FOR STEAM CLEANERS CONTAINED IN THE ADMINISTRATIVE REPORT FURNISHED TO YOU. IN THIS RESPECT, WE BELIEVE THAT THE MERITS OF A PROTEST MUST BE JUDGED SOLELY ON THE BASIS OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE PROTESTED PROCUREMENT AND WE THEREFORE WOULD NOT DEEM IT APPROPRIATE TO CONSIDER AS DETERMINATIVE OF THE ISSUE IN THE INSTANT PROCUREMENT THE FACTS AND CIRCUMSTANCES INVOLVED IN SUCH PAST CASES. SEE 46 COMP. GEN. 606, 611 (1967), AND 48 COMP. GEN. 323, 326 (1968). SINCE YOUR OBJECTIONS TO PAST PROCUREMENTS WERE NOT FILED HERE AT THE TIME OF THOSE PROCUREMENTS, WE OFFER NO COMMENTS REGARDING THE PROPRIETY OF ADMINISTRATIVE ACTIONS TAKEN DURING 1964, 1965, 1966 AND 1968.