B-169552, JUN. 19, 1970

B-169552: Jun 19, 1970

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FURTHER PROTEST OF SPECIFICATION AS BEING RESTRICTIVE IS DENIED ABSENT SHOWING THAT INTERIM SPECIFICATION. WAS UNDULY RESTRICTIVE OF COMPETITION. FACT THAT PARTICULAR BIDDER DOES NOT MEET MINIMUM REQUIREMENTS FOR SUPPLYING GOVERNMENT NEEDS IS NOT SUFFICIENT TO WARRANT SUCH CONCLUSION. PROCURING AGENCY'S EXPERTISE IS GENERALLY RELIED ON. TO VACUDYNE CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 5. YOU CONTEND THAT THE SPECIFICATIONS ARE RESTRICTIVE AND THAT ONLY ONE COMPANY'S PRODUCT IS RESPONSIVE. F04626-70-B-1359 FOR FOUR STERILIZERS WAS ORIGINALLY ADVERTISED USING A SPECIFICATION FURNISHED BY THE MEDICAL SUPPLY PERSONNEL AT TRAVIS AIR FORCE BASE HOSPITAL. IN VIEW OF THE PROTESTS THE BID OPENING DATE WAS EXTENDED TO APRIL 6.

B-169552, JUN. 19, 1970

CONTRACTS--SPECIFICATIONS--ADMINISTRATIVE DETERMINATION CONCLUSIVENESS- TECHNICAL EVALUATIONS UNDER PROTEST OF VETERANS ADMINISTRATION SPECIFICATIONS SET OUT IN SOLICITATION FOR STERILIZERS RESULTED IN MODIFICATION OF SPECIFICATION TO INCLUDE LATEST AVAILABLE FEDERAL INTERIM SPECIFICATION, FURTHER PROTEST OF SPECIFICATION AS BEING RESTRICTIVE IS DENIED ABSENT SHOWING THAT INTERIM SPECIFICATION, WAS UNDULY RESTRICTIVE OF COMPETITION, ALTHOUGH SPECIFICATION MAY BE RESTRICTIVE EVEN WHEN ADOPTED AS STANDARD MILITARY OR FEDERAL SPECIFICATION, BUT FACT THAT PARTICULAR BIDDER DOES NOT MEET MINIMUM REQUIREMENTS FOR SUPPLYING GOVERNMENT NEEDS IS NOT SUFFICIENT TO WARRANT SUCH CONCLUSION. FOR TECHNICAL DETERMINATIONS OF CONFORMABILITY TO SPECIFICATIONS, PROCURING AGENCY'S EXPERTISE IS GENERALLY RELIED ON. SEE COMP. GEN. DECS. CITED.

TO VACUDYNE CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 5, 1970, WITH ENCLOSURES, CONCERNING VETERANS ADMINISTRATION SPECIFICATIONS FOR STERILIZERS GENERALLY, AND PARTICULARLY THE SPECIFICATION SET OUT IN SOLICITATION NO. F04626-70-B-1359, ISSUED ON MARCH 2, 1970, BY THE DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, TRAVIS AIR FORCE BASE, CALIFORNIA, WITH BID OPENING DATE OF APRIL 2, 1970. YOU CONTEND THAT THE SPECIFICATIONS ARE RESTRICTIVE AND THAT ONLY ONE COMPANY'S PRODUCT IS RESPONSIVE.

SOLICITATION NO. F04626-70-B-1359 FOR FOUR STERILIZERS WAS ORIGINALLY ADVERTISED USING A SPECIFICATION FURNISHED BY THE MEDICAL SUPPLY PERSONNEL AT TRAVIS AIR FORCE BASE HOSPITAL, THE REQUESTING ACTIVITY. THE VACUDYNE CORPORATION AND CASTLE SYBRON COMPANY PROTESTED THE USE OF THE SPECIFICATION. IN VIEW OF THE PROTESTS THE BID OPENING DATE WAS EXTENDED TO APRIL 6, 1970, AND THE SPECIFICATION WAS MODIFIED TO INCLUDE THE LATEST AVAILABLE FEDERAL INTERIM SPECIFICATION, GG-S-001340 DATED DECEMBER 1969. TWO COMPANIES SUBMITTED BIDS ON THE AMENDED SOLICITATION -- AMERICAN STERILIZER COMPANY AND THE CASTLE SYBRON CORPORATION. VACUDYNE CORPORATION DID NOT SUBMIT A BID ON THE AMENDED SOLICITATION, PRESUMABLY BECAUSE THE FEDERAL INTERIM SPECIFICATION ALSO WAS CONSIDERED RESTRICTIVE. THE SUBSTITUTION OF THE FEDERAL INTERIM SPECIFICATION FOR THE ORIGINAL APPEARS TO SATISFY THE SPECIFIC POINTS RAISED IN YOUR LETTER. WE RECOGNIZE, HOWEVER, YOU ALSO QUESTION THE RESTRICTIVENESS OF THE FEDERAL INTERIM SPECIFICATION.

THE FEDERAL PROCUREMENT REGULATIONS, PARAGRAPH 1-1.305 SPECIFICATIONS, PROVIDE, IN PART, AS FOLLOWS:

"SEC. 1-1.305 SPECIFICATIONS

'SPECIFICATION.' AS USED IN THIS SEC. 1-1.305, IS A CLEAR AND ACCURATE DESCRIPTION OF THE TECHNICAL REQUIREMENTS FOR A MATERIAL, PRODUCT, OR SERVICE, INCLUDING THE PROCEDURE BY WHICH IT WILL BE DETERMINED THAT THE REQUIREMENTS HAVE BEEN MET. SPECIFICATIONS FOR ITEMS OR MATERIALS CONTAIN ALSO PERSERVATION, PACKAGING, PACKING, AND MARKING REQUIREMENTS. THE IDENTIFICATION OF CATEGORIES AND INTENDED USE OF SUCH SPECIFICATIONS ARE AS FOLLOWS:

'(A) FEDERAL. A SPECIFICATION COVERING THESE MATERIALS, PRODUCTS, OR SERVICES, USED BY OR FOR POTENTIAL USE OF TWO OR MORE FEDERAL AGENCIES (AT LEAST ONE OF WHICH IS A CIVIL AGENCY), OR NEW ITEMS OF POTENTIAL GENERAL APPLICATION, PROMULGATED BY THE GENERAL SERVICES ADMINISTRATION AND MANDATORY FOR USE BY ALL EXECUTIVE AGENCIES.

'(B) INTERIM FEDERAL. A POTENTIAL FEDERAL SPECIFICATION ISSUED IN INTERIM FORM, FOR OPTIONAL USE BY AGENCIES. INTERIM AMENDMENTS TO FEDERAL SPECIFICATIONS ARE INCLUDED IN THIS DEFINITION.'

"SEC. 1-1.305-1 MANDATORY USE OF FEDERAL SPECIFICATIONS.

FEDERAL SPECIFICATIONS SHALL BE USED BY ALL EXECUTIVE AGENCIES, INCLUDING THE DEPARTMENT OF DEFENSE, IN THE PROCUREMENT OF SUPPLIES AND SERVICES COVERED BY SUCH SPECIFICATIONS, EXCEPT AS PROVIDED IN SECS. 1 1.305-2 AND 1-1.305-3."

"SEC. 1-1.305-2 EXCEPTIONS TO MANDATORY USE OF FEDERAL SPECIFICATIONS.

FEDERAL SPECIFICATIONS NEED NOT BE USED UNDER THE FOLLOWING CIRCUMSTANCES:

(F) AN INTERIM FEDERAL SPECIFICATION IS USED BY AN AGENCY IN LIEU OF THE FEDERAL SPECIFICATION."

"SEC. 1-1.305-4 OPTIONAL USE OF INTERIM FEDERAL SPECIFICATIONS.

INTERIM FEDERAL SPECIFICATIONS ARE FOR OPTIONAL USE. ALL AGENCIES ARE URGED TO MAKE MAXIMUM USE OF INTERIM.

FEDERAL SPECIFICATIONS AND TO SUBMIT STATEMENTS OF SUGGESTED CHANGES TO THE ASSIGNED AGENCY FOR CONSIDERATION IN FURTHER DEVELOPMENT OF THE SPECIFICATIONS FOR PROMULGATION AS FEDERAL SPECIFICATIONS.

"SEC. 1-1.305-5 USE OF FEDERAL AND INTERIM FEDERAL SPECIFICATIONS IN FEDERAL CONSTRUCTION CONTRACTS.

WHEN MATERIAL, EQUIPMENT, OR SERVICES FOR WHICH A FEDERAL SPECIFICATION IS AVAILABLE ARE SPECIFIED IN CONNECTION WITH FEDERAL CONSTRUCTION, THE FEDERAL OR INTERIM FEDERAL SPECIFICATION SHALL BE MADE A PART OF THE SPECIFICATION FOR THE CONSTRUCTION CONTRACT, SUBJECT TO THE PROVISIONS IN SEC. 1-1.305.

"SEC. 1-1.305-6 MILITARY AND DEPARTMENTAL SPECIFICATIONS.

IF NO FEDERAL SPECIFICATION IS AVAILABLE, EXISTING INTERIM FEDERAL, MILITARY, AND DEPARTMENTAL SPECIFICATIONS WHICH ARE LISTED IN THE INDEX OF FEDERAL SPECIFICATIONS AND STANDARDS SHOULD BE CONSIDERED AND, WHEREVER PRACTICABLE, USED BY ANY AGENCY HAVING NEED THEREFOR, CONSISTENT WITH THE AGENCY'S PROCEDURES ESTABLISHING PRIORITY FOR USE OF SUCH SPECIFICATIONS.

SEE ALSO SECTION 101-29-201, FEDERAL PROPERTY MANAGEMENT REGULATIONS.

THE ABOVE QUOTATIONS ARE SET OUT TO INDICATE THAT THE CONTRACTING OFFICER FOLLOWED THE LITERAL PROVISIONS OF THE REGULATIONS IN HIS SOLICITATION OF THE REQUIRED STERILIZERS.

AS TO WHETHER THE INTERIM FEDERAL SPECIFICATION HERE CONCERNED IS RESTRICTIVE, AN UNDERSTANDING OF THE NATURE OF ITS DEVELOPMENT IS NECESSARY.

THE PREAMBLE TO INTERIM FEDERAL SPECIFICATION GG-S-001340 (VA-MED) DECEMBER 15, 1969, STATES AS FOLLOWS: "THIS INTERIM FEDERAL SPECIFICATION WAS DEVELOPED BY THE VETERANS ADMINISTRATION, DEPARTMENT OF MEDICINE AND SURGERY (134), 810 VERMONT AVENUE, N. W; WASHINGTON, D. C. 20420, BASED UPON CURRENTLY AVAILABLE TECHNICAL INFORMATION. IT IS RECOMMENDED THAT FEDERAL AGENCIES USE IT IN PROCUREMENT AND FORWARD RECOMMENDATIONS FOR CHANGES TO THE PREPARING ACTIVITY AT THE ADDRESS SHOWN ABOVE. THE GENERAL SERVICES ADMINISTRATION HAS AUTHORIZED THE USE OF THIS INTERIM FEDERAL SPECIFICATION AS A VALID EXCEPTION (IN PARTS) TO FEDERAL SPECIFICATION GG- S-751A, DATED NOVEMBER 9, 1940 AND INTERIM FEDERAL SPECIFICATION GG-S- 00751C, DATED AUGUST 17, 1964."

WHILE THE GENERAL SERVICES ADMINISTRATION IS THE ULTIMATE AUTHORITY FOR THE ISSUANCE OF A FEDERAL SPECIFICATION, THE BASIC DEVELOPMENT OF THE INTERIM SPECIFICATION, WHERE THE ITEM IS OF A SPECIFIED NATURE AS HERE, IS DELEGATED TO AN AGENCY KNOWLEDGEABLE IN THE AREA, IN THIS INSTANCE THE VETERANS ADMINISTRATION. THE DEVELOPMENT OF A NEW SPECIFICATION, OR UP- DATING AN EXISTING SPECIFICATION, IS NOT A PERFUNCTORY MATTER. CONSIDERATION MUST BE GIVEN TO THE BASIC REQUIREMENTS OF OTHER POSSIBLE USING AGENCIES, THE CURRENT STATE OF THE ART, AND TECHNOLOGICAL ADVANCES MADE IN THE AREA SINCE THE ISSUANCE OF THE FEDERAL SPECIFICATION OR THE LATEST INTERIM SPECIFICATION. THE SPECIFICATION MUST BE WRITTEN TO OBTAIN SUCH FULL AND FREE COMPETITION AS IS CONSISTENT WITH THE NEEDS OF THE GOVERNMENT. IMPLICIT IN THIS DEVELOPMENT IS THE EXAMINATION AND INVESTIGATION INTO AVAILABLE PRODUCTS.

THE ISSUANCE OF AN INTERIM FEDERAL SPECIFICATION IS NOT THE FINAL ACT. IT IS A FIRST STEP ON THE LADDER LEADING TO A FEDERAL SPECIFICATION WHOSE USE IS MANDATORY. IT IS SUBJECT TO AMENDMENT AT ANY TIME TO MEET CURRENT CONDITIONS. COMMENTS FROM INDUSTRY AND INDIVIDUAL MANUFACTURERS ARE INVITED. ANY FEATURES OF THE INTERIM SPECIFICATION YOU CONSIDER RESTRICTIVE SHOULD BE CALLED TO THE ATTENTION OF THE VETERANS ADMINISTRATION BUREAU OF MEDICINE AND SURGERY.

THE ESTABLISHMENT OF SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER PRODUCTS OFFERED MEET THESE SPECIFICATIONS ARE PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED. 38 COMP. GEN. 71, 75 (1958) AND 36 COMP. GEN. 251, 252 (1956). FOR TECHNICAL DETERMINATION OF THIS NATURE WE GENERALLY RELY ON THE JUDGMENT AND EXPERTISE OF THE ENGINEERING PERSONNEL OF THE PROCURING AGENCY. WHILE OUR OFFICE WILL DETERMINE WHETHER A SPECIFICATION AS WRITTEN IS 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 NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATION IS UNDULY RESTRICTIVE. HOWEVER, IT SHOULD BE NOTED THAT A SPECIFICATION MAY BE FOUND RESTRICTIVE EVEN THOUGH IT HAS BEEN ADOPTED AS A STANDARD MILITARY OR FEDERAL SPECIFICATION. SEE 47 COMP. GEN. 12 (1967).

IN THE ABSENCE OF ANY SHOWING THAT THE FEDERAL INTERIM SPECIFICATION EMPLOYED IN THE AIR FORCE PROCUREMENT IS UNDULY RESTRICTIVE OF COMPETITION, WE FIND NO BASIS TO OBJECT TO THE PROPOSED AWARD.