B-170493, OCT. 22, 1970

B-170493: Oct 22, 1970

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WHERE RESTRICTIVE SPECIFICATION ARE REQUIRED TO FULFILL THE LEGITIMATE NEEDS OF THE REQUESTING AGENCY AND ARE NECESSARY TO INSURE THE ITEMS SATISFACTORY PERFORMANCE. SUCH RESTRICTIONS ARE NOT AN UNREASONABLE STRICTURE ON COMPETITION WHEN PRIOR PROCUREMENTS HAVE BEEN FROM SOURCES OTHER THAN THE PROTESTANT. SIMPLY BECAUSE A PARTICULAR CONCERN CAN NOT MEET MINIMUM REQUIREMENTS DOES NOT MEAN REQUESTS FOR SUCH QUOTATION ARE UNDULY RESTRICTIVE OF COMPETITION AND THE PROTEST THEREFORE MUST BE DENIED. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 27. YOUR PROTEST IS BASED UPON A CONTENTION THAT THE PURCHASE DESCRIPTION OF EACH REQUEST FOR QUOTATIONS IS DESCRIPTIVE OF ONE PRODUCT ONLY WHICH IS MANUFACTURED IN GERMANY AND HAS BEEN REPLACED BY A PRODUCT OF MORE RECENT DESIGN.

B-170493, OCT. 22, 1970

BID PROTEST - RESTRICTIVE SPECIFICATIONS DENIAL OF PROTEST AGAINST RESTRICTIVE SPECIFICATIONS WHICH RESULT IN THE NECESSITY TO PROCURE FOREIGN PRODUCTS (PENCIL REPOINTERS EQUIPPED WITH TUNGSTEN CARBIDE CUTTING BLADES) FOR USE BY CORPS OF ENGINEERS. WHERE RESTRICTIVE SPECIFICATION ARE REQUIRED TO FULFILL THE LEGITIMATE NEEDS OF THE REQUESTING AGENCY AND ARE NECESSARY TO INSURE THE ITEMS SATISFACTORY PERFORMANCE, SUCH RESTRICTIONS ARE NOT AN UNREASONABLE STRICTURE ON COMPETITION WHEN PRIOR PROCUREMENTS HAVE BEEN FROM SOURCES OTHER THAN THE PROTESTANT. SIMPLY BECAUSE A PARTICULAR CONCERN CAN NOT MEET MINIMUM REQUIREMENTS DOES NOT MEAN REQUESTS FOR SUCH QUOTATION ARE UNDULY RESTRICTIVE OF COMPETITION AND THE PROTEST THEREFORE MUST BE DENIED.

TO TRU POINT PRODUCTS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 27, 1970, WITH ENCLOSURES, AND TO SUBSEQUENT CORRESPONDENCE, RELATIVE TO YOUR PROTEST AGAINST THE SPECIFICATIONS USED IN REQUESTING QUOTATIONS ON QUANTITIES OF 204 AND 324 LEAD PENCIL REPOINTERS, FEDERAL STOCK NO. 7520-827-2067, UNDER REQUEST FOR QUOTATIONS NOS. F/178460-C AND W-19145-XG, ISSUED JULY 20, 1970, BY THE CHICAGO, ILLINOIS, AND AUBURN, WASHINGTON, REGIONAL OFFICES OF THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION.

YOUR PROTEST IS BASED UPON A CONTENTION THAT THE PURCHASE DESCRIPTION OF EACH REQUEST FOR QUOTATIONS IS DESCRIPTIVE OF ONE PRODUCT ONLY WHICH IS MANUFACTURED IN GERMANY AND HAS BEEN REPLACED BY A PRODUCT OF MORE RECENT DESIGN. YOU STATE THAT YOUR COMPANY AND ITS JOBBERS HAVE, IN THE PAST, ENJOYED SERVING THE REQUIREMENTS OF THE GENERAL SERVICES ADMINISTRATION FOR LEAD PENCIL REPOINTERS, AND THAT YOU CANNOT UNDERSTAND WHY THE ITEM DESCRIPTION WAS CHANGED TO EXCLUDE YOUR PRODUCTS. IN DISCUSSING THE FEATURES OF YOUR TRU POINT LEAD PENCIL REPOINTERS, YOU INDICATED THAT CUTTING ACTION IS OBTAINED FROM A SILICON CARBIDE ABRASIVE WHICH PROVIDES FAST CUTTING AND EASE OF OPERATION.

THE TWO REQUESTS FOR QUOTATIONS WERE ISSUED IN ACCORDANCE WITH REQUESTS OF THE FORT WORTH, TEXAS, REGIONAL OFFICE OF THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION. QUOTATIONS WERE REQUESTED FOR DELIVERY, F.O.B. GSA SUPPLY DEPOT, FORT WORTH, TEXAS, OF QUANTITIES OF LEAD PENCIL REPOINTERS, FEDERAL STOCK NO. 7520-827-2067, THE ITEM DESCRIPTION FOR WHICH IS SHOWN IN THE REQUESTS FOR QUOTATIONS TO REQUIRE A REPOINTER EQUIPPED WITH A TUNGSTEN CARBIDE CUTTING BLADE WHICH NEVER NEEDS REPLACING. ANOTHER TYPE OF LEAD PENCIL REPOINTER IS DESCRIBED IN THE ITEM DESCRIPTION FOR FEDERAL STOCK NO. 7510-105-8826.

IT HAS BEEN REPORTED BY THE GENERAL SERVICES ADMINISTRATION THAT YOUR TRU POINT LEAD PENCIL REPOINTERS COMPLY WITH THE ITEM PURCHASE DESCRIPTION FOR FEDERAL STOCK NO. 7510-105-8826; THAT YOUR REPOINTERS ARE NOT EQUIPPED WITH TUNGSTEN CARBIDE CUTTING BLADES BUT INCLUDE SANDPAPER CONES USED FOR REPOINTING LEADS; THAT THE ITEMS IDENTIFIED BY FEDERAL STOCK NOS. 7520-827 -2067 AND 7510-105-8826 ARE MILITARY SUPPORT ITEMS; AND THAT THE GSA SUPPLY DEPOT IN FORT WORTH, TEXAS, IS THE KEY DEPOT FOR BOTH ITEMS.

LEAD PENCIL REPOINTERS CONFORMING TO THE ITEM DESCRIPTION FOR FEDERAL STOCK NO. 7520-827-2067, RATHER THAN PRODUCTS CONFORMING TO THE ITEM DESCRIPTION FOR FEDERAL STOCK NO. 7510-105-8826, WERE PROPOSED TO BE PURCHASED IN THIS CASE BECAUSE THE FORT WORTH DISTRICT OFFICE, UNITED STATES ARMY CORPS OF ENGINEERS, HAD INDICATED A NEED FOR THE PROCUREMENT OF AN IMPROVED TYPE OF LEAD PENCIL REPOINTER WHICH EMPLOY HARDENED STEEL CUTTERS TO CUT, RATHER THAN GRIND, A POINT ON THE LEAD. THE CHIEF DRAFTSMAN FOR THE FORT WORTH DISTRICT ENGINEER OFFICE FURNISHED A STATEMENT OF JUSTIFICATION FOR THE PROCUREMENT OF LEAD PENCIL REPOINTERS OF FOREIGN MANUFACTURE WHICH WERE EQUIPPED WITH CUTTING BLADES. HE STATED THAT IT WAS NECESSARY TO USE A PLASTIC TYPE LEAD INSTEAD OF A CONVENTIONAL TYPE GRAPHITE LEAD IN ORDER TO DRAFT SATISFACTORILY ON POLYESTER FILM, AND THAT LEAD PENCIL REPOINTERS PRESENTLY USED WITH GRAPHITE LEADS HAVE PROVED TO BE UNSATISFACTORY FOR USE WITH PLASTIC LEADS.

THE GENERAL SERVICES ADMINISTRATION STATES THAT THE FORT WORTH REGIONAL OFFICE ADVISES THAT REPOINTERS EQUIPPED WITH CUTTING BLADES HAVE BEEN PROCURED FROM THREE DIFFERENT CONCERNS, GEORGE MUTH, KEUFFEL & ESSER COMPANY, AND EUGENE DIETZEN. IT IS THE POSITION OF THE GENERAL SERVICES ADMINISTRATION THAT THE ITEM DESCRIPTIONS OF THE TWO REQUESTS FOR QUOTATIONS ARE NOT MORE RESTRICTIVE THAN NECESSARY AND THAT THE PRIOR PROCUREMENTS OF REPOINTERS FROM THREE SOURCES INDICATE THAT THERE IS NO UNREASONABLE RESTRICTION ON COMPETITION.

THE RECORD BEFORE US INDICATES THAT LEAD PENCIL REPOINTERS EQUIPPED WITH TUNGSTEN CARBIDE CUTTING BLADES ARE MANUFACTURED IN WEST GERMANY AND ITALY, BUT NOT IN THE UNITED STATES. HOWEVER, IT APPEARS THAT THE FORT WORTH DISTRICT OFFICE, UNITED STATES ARMY CORPS OF ENGINEERS, FURNISHED SUFFICIENT INFORMATION TO SHOW THAT THE PROCUREMENT OF THE FOREIGN MADE PRODUCTS IS NECESSARY TO FULFILL THE LEGITIMATE NEEDS OF THE CORPS OF ENGINEERS IN CONNECTION WITH THE PREPARATION OF CONTRACT DRAWING AND PLANS FOR VARIOUS CIVIL WORKS PROJECTS.

THE FACT THAT A PARTICULAR CONCERN MAY BE UNABLE TO MEET THE MINIMUM REQUIREMENT IN THIS CASE WOULD NOT NECESSARILY WARRANT A CONCLUSION THAT THE ITEM DESCRIPTION OF EACH OF THE TWO CITED REQUESTS FOR QUOTATIONS IS UNDULY RESTRICTIVE OF COMPETITION. SEE 36 COMP. GEN. 251, 252 (1956). HAS BEEN SUGGESTED BY THE GENERAL SERVICES ADMINISTRATION, IT WOULD APPEAR THAT THE ITEM DESCRIPTIONS CANNOT BE REGARDED AS BEING MORE RESTRICTIVE THAN NECESSARY, ALTHOUGH THEY MAY BE RESTRICTIVE TO THE POINT OF EXCLUDING THE CURRENT PRODUCTS OF YOUR COMPANY.

ACCORDINGLY, THE PROTEST MADE TO OUR OFFICE IN THE MATTER MUST BE, AND IS, HEREBY DENIED.