B-169255, MAY 27, 1970
Highlights
INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF MAY 11. YOU CLEARLY FEEL THAT THE PROCUREMENT INVOLVED IN YOUR PROTEST RESULTED IN ADDITIONAL AND UNNECESSARY EXPENSES AND THAT OUR OFFICE SHOULD HAVE ACTED TO CURB THESE EXPENSES. COULD HAVE BEEN USED TO ADEQUATELY MEET THE GOVERNMENT'S NEEDS. THE FORMAL ADVERTISING STATUTES OF THE UNITED STATES AND THEIR IMPLEMENTING REGULATIONS ARE DESIGNED TO FOSTER FREE AND OPEN COMPETITION SO THAT THE GOVERNMENT'S NEEDS COULD BE MET ON THE MOST ADVANTAGEOUS TERMS AVAILABLE. ARE THE RESPONSIBILITY OF THE PROCUREMENT ACTIVITY WHICH IS COMPETENT TO MAKE TECHNICAL DETERMINATIONS. WE RECOGNIZE THAT THE DRAFTING OF SPECIFICATIONS IS A MATTER PRIMARILY FOR THE PROCUREMENT ACTIVITY AND WE WILL NOT INTERVENE IN THIS AREA ABSENT A SHOWING THAT THE SPECIFICATIONS UNDULY RESTRICT THE COMPETITION REQUIRED BY THE PROCUREMENT STATUTES AND REGULATIONS.
B-169255, MAY 27, 1970
TO PER CASE, INCORPORATED:
REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1970, INDICATING YOUR DISPLEASURE WITH OUR DECISION OF APRIL 16, 1970. WHILE YOU RAISE NO LEGAL OBJECTION TO OUR DECISION, YOU CLEARLY FEEL THAT THE PROCUREMENT INVOLVED IN YOUR PROTEST RESULTED IN ADDITIONAL AND UNNECESSARY EXPENSES AND THAT OUR OFFICE SHOULD HAVE ACTED TO CURB THESE EXPENSES.
SPECIFICALLY, YOU ALLEGE THAT SUBSTITUTE MATERIALS, COSTING LESS THAN THOSE SPECIFIED, COULD HAVE BEEN USED TO ADEQUATELY MEET THE GOVERNMENT'S NEEDS. YOU FURTHER CONTEND THAT CERTAIN CLAUSES IN THE INVITATION FOR BIDS FORCE THE CONTRACTOR TO PROCURE MATERIALS IN AN UNECONOMICAL MANNER AND SO INCREASE THE COST OF PROCUREMENT.
WHILE WE APPRECIATE YOUR FEELINGS IN THIS MATTER AND EVEN, FOR THE SAKE OF ARGUMENT, CONCEDE THE VALIDITY OF YOUR CONTENTIONS, OUR OFFICE CANNOT DICTATE THE TERMS OF AN INVITATION FOR BIDS OR THE RESULTING CONTRACT. THE FORMAL ADVERTISING STATUTES OF THE UNITED STATES AND THEIR IMPLEMENTING REGULATIONS ARE DESIGNED TO FOSTER FREE AND OPEN COMPETITION SO THAT THE GOVERNMENT'S NEEDS COULD BE MET ON THE MOST ADVANTAGEOUS TERMS AVAILABLE. TO THIS END, OUR OFFICE REVIEWS GOVERNMENT PROCUREMENTS TO INSURE THEIR CONFORMITY WITH THE APPLICABLE STATUTES AND REGULATIONS. HOWEVER, WE DO NOT UNDERTAKE TO DECIDE TECHNICAL MATTERS--SUCH AS THE RELATIVE MERTIS OF VARIOUS MATERIALS; SUCH MATTERS, WE FEEL, ARE THE RESPONSIBILITY OF THE PROCUREMENT ACTIVITY WHICH IS COMPETENT TO MAKE TECHNICAL DETERMINATIONS. MOREOVER, WE RECOGNIZE THAT THE DRAFTING OF SPECIFICATIONS IS A MATTER PRIMARILY FOR THE PROCUREMENT ACTIVITY AND WE WILL NOT INTERVENE IN THIS AREA ABSENT A SHOWING THAT THE SPECIFICATIONS UNDULY RESTRICT THE COMPETITION REQUIRED BY THE PROCUREMENT STATUTES AND REGULATIONS. NO SUCH SHOWING WAS MADE IN YOUR ORIGINAL PROTEST OR IN YOUR LETTER OF MAY 11, 1970; NOR IS ONE APPARENT FROM THE RECORD BEFORE US.
ACCORDINGLY, NO FURTHER ACTION WITH REFERENCE TO YOUR PROTEST WILL BE TAKEN BY OUR OFFICE.