B-169196, MAY 22, 1970

B-169196: May 22, 1970

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PROTEST THAT SPECIFICATIONS WERE RESTRICTIVE TO ONE MANUFACTURER'S PRODUCT IS DENIED SINCE TECHNICAL REVIEW WAS CONDUCTED RESULTING IN AMENDMENT CHANGING SOME BUT NOT ALL OF ALLEGED RESTRICTIVE AREAS BUT LATER AMENDMENT ESTABLISHED MINIMUM CONSOLE HEIGHT WHICH SHOULD RESOLVE OBJECTION RAISED BY PROTEST. SINCE DRAFTING OF SPECIFICATIONS TO MEET NEEDS OF GOVERNMENT IS RESPONSIBILITY OF PROCURING ACTIVITY. GAO WILL NOT QUESTION TECHNICAL CONCLUSIONS OF PROCURING ACTIVITY ABSENT CLEAR SHOWING OF FRAUD. ABUSE OF AUTHORITY OR ARBITRARY ACTION NONE OF WHICH IS HERE EVIDENT. TO MB ELECTRONICS: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 25. ARE RESTRICTIVE. THE IFB WAS ISSUED BY THE NAVAL AIR ENGINEERING CENTER (NAEC) AND COVERED THE PROCUREMENT OF A SINUSOIDAL VIBRATION TESTING SYSTEM AND RELATED DATA.

B-169196, MAY 22, 1970

CONTRACTS--SPECIFICATIONS RESTRICTIVE--ABILITY TO MEET REQUIREMENTS UNDER INVITATION FOR SINUSOIDAL VIBRATION TESTING SYSTEM, PROTEST THAT SPECIFICATIONS WERE RESTRICTIVE TO ONE MANUFACTURER'S PRODUCT IS DENIED SINCE TECHNICAL REVIEW WAS CONDUCTED RESULTING IN AMENDMENT CHANGING SOME BUT NOT ALL OF ALLEGED RESTRICTIVE AREAS BUT LATER AMENDMENT ESTABLISHED MINIMUM CONSOLE HEIGHT WHICH SHOULD RESOLVE OBJECTION RAISED BY PROTEST. SINCE DRAFTING OF SPECIFICATIONS TO MEET NEEDS OF GOVERNMENT IS RESPONSIBILITY OF PROCURING ACTIVITY, GAO WILL NOT QUESTION TECHNICAL CONCLUSIONS OF PROCURING ACTIVITY ABSENT CLEAR SHOWING OF FRAUD, ABUSE OF AUTHORITY OR ARBITRARY ACTION NONE OF WHICH IS HERE EVIDENT. SEE COMP. GEN. DECS. CITED.

TO MB ELECTRONICS:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 25, 1970, WITH ENCLOSURES, ALLEGING THAT CERTAIN SPECIFICATIONS OF INVITATION FOR BIDS (IFB) NO. N00156-70-B-0342, ARE RESTRICTIVE.

THE IFB WAS ISSUED BY THE NAVAL AIR ENGINEERING CENTER (NAEC) AND COVERED THE PROCUREMENT OF A SINUSOIDAL VIBRATION TESTING SYSTEM AND RELATED DATA. BY LETTER OF FEBRUARY 2, 1970, MB ELECTRONICS (MB) COMPLAINED TO THE CONTRACTING OFFICER THAT CERTAIN ENUMERATED SPECIFICATIONS WERE RESTRICTIVE TO ONE MANUFACTURER'S PRODUCT. AS A RESULT OF THIS COMPLAINT, A TECHNICAL REVIEW WAS CONDUCTED AND ON FEBRUARY 13, 1970, AMENDMENT 0001 WAS ISSUED WHICH CHANGED SOME, BUT NOT ALL, OF AREAS WHICH MB HAD ALLEGED WERE RESTRICTIVE. TECHNICAL COMMENTS ON ALL AREAS RAISED BY IT WERE PROVIDED TO MB BY LETTER OF THE SAME DATE. ON FEBRUARY 24, 1970, MB NOTIFIED THE CONTRACTING OFFICER THAT IT STILL BELIEVED THAT SPECIFICATION PARAGRAPHS 4.2.3B, 4.2.3C, 4.2.3E AND 4.2.4 WERE RESTRICTIVE. A TECHNICAL REVIEW WAS CONDUCTED AND COMMENTS MADE WITH RESPECT TO EACH OF THE CONTENTIONS ASSERTED BY MB. THESE COMMENTS, HOWEVER, WERE NEVER SENT TO MB AS IT HAD, IN THE MEANTIME, FILED A PROTEST WITH OUR OFFICE. A COPY OF THESE COMMENTS ARE ENCLOSED FOR YOUR INFORMATION.

WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE RESTRICTIVE OF COMPETITION, WE HAVE CONSISTENTLY RECOGNIZED THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE AGENCY MAKING THE PROCUREMENT. 17 COMP. GEN. 554 (1938). A REVIEW OF THE RECORD WITH REGARD TO SPECIFICATIONS 4.2.3B, 4.2.3C AND 4.2.3E DOES NOT CONVINCE US THAT THE REQUIREMENTS THEREIN ARE RESTRICTIVE OF COMPETITION. ADMITTEDLY, OUR LIMITED TECHNICAL EXPERTISE WEIGHS HEAVILY IN FAVOR OF THE AGENCY DRAFTING THE SPECIFICATIONS. BEYOND THIS, HOWEVER, THE PROCURING ACTIVITY'S EXPLANATIONS FOR THE VARIOUS REQUIREMENTS APPEAR REASONABLE AND THERE IS NO INDICATION THAT MB COULD NOT MEET THE SPECIFICATIONS IF IT SO DESIRED; ONLY AN IMPRESSION THAT IT MAY BE UNWILLING TO DO SO. THE FACT THAT A PARTICULAR BIDDER IS UNABLE OR UNWILLING TO MEET THE GOVERNMENT'S NEEDS IS NOT, OF COURSE, SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE RESTRICTIVE. 30 COMP. GEN. 368 (1951); 36 ID. 251 (1956); 33 ID. 586 (1954).

WITH RESPECT TO SPECIFICATION 4.2.4, YOU CONTEND IN A LETTER OF FEBRUARY 24, 1970, THAT:

"* * * TO SPECIFY A CONSOLE WIDTH OF AT LEAST 60 INCHES IS JUST AS RESTRICTIVE AND ARBITRARY BECAUSE IT DOESN'T SAY HOW MUCH FREE ROOM IS REQUIRED FOR INSTRUMENTATION TO BE ADDED. MB'S CONSOLE MAY PROVIDE MORE FREE SPACE IN LESS THAN 60 INCHES WIDTH THAN THE MANUFACTURER AROUND WHOM THIS SPECIFICATION WAS WRITTEN. * * *"

THE NAVAL WEAPONS INDUSTRIAL SUPPORT OFFICE'S (NAVWISO) POSITION WAS THAT THE SPECIFICATION WAS NOT RESTRICTIVE. WHILE ADMITTING THAT A PRECISE DEFINITION OF SPACE REQUIREMENTS FOR ADDITIONAL INSTRUMENTATION WAS NOT KNOWN, NAVWISO ADVISED:

"* * * THE REQUIREMENT FOR A 60 INCH WIDE CONSOLE IS BASED ON A TECHNICAL APPROXIMATION BY THE CONSIGNEE ON THE NATURE AND QUANTITY OF INSTRUMENTATION THAT WILL BE NEEDED AND ON THE FACT THAT A 19 INCH RACK PANEL IS STANDARD FOR ELECTRONIC INSTRUMENTATION."

ON APRIL 23, 1970, YOUR VIEWS IN THIS REGARD WERE CLARIFIED IN A LETTER TO OUR OFFICE WHICH, IN PERTINENT PART, STATED:

"THE COMPONENTS TO BE HOUSED IN THIS CONTROL CONSOLE VARY IN HEIGHT FROM ONE MANUFACTURER OR ITEM TO ANOTHER. WHEN THIS DIMENSION IS SPECIFIED AS 3 BAYS WIDE OR AT LEAST 60 INCHES WIDE THIS IN NO WAY INDICATES THE AMOUNT OF FREE SPACE HEIGHT REQUIRED TO ADD ADDITIONAL INSTRUMENTATION AT A LATER DATE."

IN RESPONSE, NAVWISO STATED:

"2. IN A VERTICAL UPRIGHT CONSOLE OF THE TYPE WHICH WOULD NORMALLY BE FURNISHED TO SATISFY THE REQUIREMENTS OF PARAGRAPH 4.2.4, THE HEIGHT OF THE CONSOLE IS LIMITED BY THE PARAMETERS OF ACCESSIBILITY AND SAFETY TO A RANGE OF APPROXIMATELY 73" TO 81". INSTRUMENTATION PLACED IN A CONSOLE AT HEIGHTS MUCH OVER 81" IS INACCESSIBLE TO THE REACH OF THE AVERAGE MAN AND WOULD FURTHER PRESENT THE HAZARD OF TOPPLING THE CONSOLE IF AN ATTEMPT AT REMOVAL WERE MADE. IN THIS RESPECT, IT IS NOTED THAT ADVERTISED LITERATURE OF THE THREE PROSPECTIVE BIDDERS, LING ELECTRONICS, MB ELECTRONICS AND UNHOLTZ-DICKIE OFFER CONSOLES WHICH VARY IN HEIGHT FROM 73" TO 81".

"3. IT IS, THEREFORE, APPARENT THAT, CONTRARY TO THE CONTENTION OF MB ELECTRONICS, THE AMOUNT OF FREE SPACE THAT WOULD BE AVAILABLE TO ADD ADDITIONAL INSTRUMENTATION AT A LATER DATE IS NOT A FUNCTION OF CONSOLE HEIGHT, BUT IS RATHER PRIMARILY DEPENDENT ON CONSOLE WIDTH, WHICH HAS BEEN SPECIFIED AS AT LEAST 60" WIDE IN NAVWISO SPECIFICATION 70-751, AS AMENDED IN 0001 DTD. 70 FEB 13 TO THE IFB."

IT SEEMS CLEAR FROM THIS LATEST RESPONSE THAT SPECIFICATION 4.2.4 WAS DRAFTED ON THE ASSUMPTION THAT PROSPECTIVE BIDDERS WOULD SUPPLY CONSOLES OF BETWEEN 73 AND 81 INCHES IN HEIGHT AND THAT SUCH CONSOLES WOULD ADEQUATELY MEET THE NAVY'S MINIMUM REQUIREMENTS PROVIDED THEY WERE ALSO 60 INCHES IN WIDTH. WE NEED NOT CONSIDER THE VALIDITY OF THE ABOVE ASSUMPTION SINCE NAEC HAS REMOVED ALL DOUBT AS TO WHAT IS REQUIRED BY AMENDING THE SPECIFICATION SO AS TO ESTABLISH A MINIMUM CONSOLE HEIGHT. THE AMENDMENT ISSUED ON MAY 14, 1970, DELETES THE SECOND SENTENCE OF PARAGRAPH 4.2.4 AND SUBSTITUTES THE FOLLOWING LANGUAGE:

"THE CONSOLE SHALL BE MOUNTED ON CASTERS AND BE AT LEAST 60 INCHES WIDE AND NOT LESS THAN 73 INCHES HIGH TO PERMIT THE INCLUSION OF ADDITIONAL INSTRUMENTATION BY THE CONSIGNEE AT A LATER DATE."

THE MATTER OF HOW MUCH AREA MUST BE ALLOWED FOR PRESENT AND FUTURE NEEDS IS, WE BELIEVE, A MATTER OF TECHNICAL JUDGMENT. WE HAVE ALREADY INDICATED THAT THE DRAFTING OF SPECIFICATIONS TO MEET THE NEEDS OF THE GOVERNMENT IS THE RESPONSIBILITY OF THE PROCURING ACTIVITY. MOREOVER, WHERE THE DETERMINATION OF THOSE NEEDS REQUIRES THE JUDGMENT OF TECHNICAL PERSONNEL, WE WILL NOT QUESTION THE TECHNICAL CONCLUSIONS OF THE PROCURING ACTIVITY UNLESS THERE IS A CLEAR SHOWING OF FRAUD, ABUSE OF AUTHORITY OR ARBITRARY ACTION, NONE OF WHICH IS EVIDENCED HERE. B 167180, AUGUST 11, 1969. BELIEVE, HOWEVER, THAT THE AMENDMENT, QUOTED ABOVE, SHOULD RESOLVE THE OBJECTIONS RAISED IN YOUR PROTEST.