B-173547, SEP 30, 1971

B-173547: Sep 30, 1971

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THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER A PARTICULAR PRODUCT MEETS THOSE NEEDS ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY. GAO WILL NOT OBJECT TO THE AGENCY'S EXERCISE OF DISCRETION IN THESE AREAS IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE OF ERROR OR THAT A CONTRACT AWARDED ON THE BASIS OF THE SPECIFICATIONS WOULD OTHERWISE BE ILLEGAL. IT CANNOT BE SAID THAT THE CONTRACTING OFFICER'S POSITION IS UNREASONABLE. TO WEXLER PAPER PRODUCTS: REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 3. THE IFB WAS ISSUED ON MAY 27. THE REQUIREMENTS FOR THE ITEM ARE CONTAINED IN INTERIM FEDERAL SPECIFICATIONS NO.

B-173547, SEP 30, 1971

BID PROTEST - PRODUCT SPECIFICATIONS DENIAL OF PROTEST AGAINST THE AWARD OF A CONTRACT TO THE STRAUBEL PAPER COMPANY (STRAUBEL) UNDER AN IFB ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PA. PROTESTANT CONTENDS THAT STRAUBEL'S PRODUCT DOES NOT MEET THE SPECIFICATIONS. THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER A PARTICULAR PRODUCT MEETS THOSE NEEDS ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY. GAO WILL NOT OBJECT TO THE AGENCY'S EXERCISE OF DISCRETION IN THESE AREAS IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE OF ERROR OR THAT A CONTRACT AWARDED ON THE BASIS OF THE SPECIFICATIONS WOULD OTHERWISE BE ILLEGAL. FROM THIS RECORD, IT CANNOT BE SAID THAT THE CONTRACTING OFFICER'S POSITION IS UNREASONABLE.

TO WEXLER PAPER PRODUCTS:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 3, 1971, AND PRIOR CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO THE STRAUBEL PAPER COMPANY, UNDER INVITATION FOR BIDS (IFB) NO. DSA 13H-71-B-0714, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC) PHILADELPHIA, PENNSYLVANIA.

THE IFB WAS ISSUED ON MAY 27, 1971, FOR 11,015,116 PACKAGES OF PAPER, TOILET TISSUE, TYPE II PACKET, 12 TWO PLY OR 24 SINGLE SHEETS PER PACKET, FOR INCLUSION IN A COMBAT FIELD RATION KIT. THE REQUIREMENTS FOR THE ITEM ARE CONTAINED IN INTERIM FEDERAL SPECIFICATIONS NO. UU-P 00556I DATED AUGUST 23, 1968, AND AMENDMENT NO. 1 THERETO DATED DECEMBER 15, 1969, WITH A FURTHER MODIFICATION CONTAINED IN DPSC ARTICLES 469 DATED MAY 3, 1971. THE ITEM IS SCHEDULED FOR DELIVERY IN THREE INCREMENTS DURING THE PERIODS SEPTEMBER 1-20, OCTOBER 1-20, AND NOVEMBER 1-20, 1971. THE DELIVERY REQUIREMENTS WERE BASED ON THE ASSUMPTION THAT THE GOVERNMENT WOULD MAKE AN AWARD BY JULY 9, 1971. THE DELIVERY SCHEDULE PROVIDES THAT EACH DELIVERY DATE SET FORTH THEREIN WILL BE EXTENDED BY THE NUMBER OF CALENDAR DAYS AFTER JULY 9 THAT THE CONTRACT IS IN FACT AWARDED.

BIDS FROM STRAUBEL AND YOUR FIRM WERE RECEIVED BY THE JUNE 17, 1971, OPENING DATE. NOTWITHSTANDING THE PENDENCY OF YOUR PROTEST BEFORE OUR OFFICE, AN AWARD WAS MADE ON JULY 21, 1971, TO STRAUBEL AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER BECAUSE OF AN URGENT NEED FOR THE ITEM, PURSUANT TO PARAGRAPHS 2-407.8(B)(3)(I) AND (III) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

YOUR BASIC CONTENTION IS THAT THE PRODUCT OFFERED BY STRAUBEL DOES NOT MEET THE SPECIFICATIONS, PARTICULARLY PARAGRAPH 3.3.2.2 OF THE INTERIM FEDERAL SPECIFICATION NO. UU-P-00556I DATED AUGUST 23, 1968. THIS PARAGRAPH, AS MODIFIED BY AMENDMENT NO. 1 AND DPSC ARTICLES 469, PROVIDES AS FOLLOWS:

"3.3.2.2 PACKET. A PACKET SHALL CONSIST OF TWENTY-FOUR SINGLE-PLY SHEETS OR TWELVE TWO-PLY SHEETS, 5 INCHES BY 4-1/2 INCHES OR - 1/4 INCH IN EITHER DIMENSION. THE PAPER SHALL BE FOLDED AND CONTAINED IN A GLUED, TAPED OR HEAT-SEALED SLEEVE MADE OF KRAFT OR SULFITE PAPER COVERING AT LEAST ONE- HALF THE LENGTH OF THE PACKETS. THE SLEEVE MAY BE CLOSED BY GLUING, TAPING, OR HEAT SEALING, PROVIDED AN EFFECTIVE SEAL IS OBTAINED AND NO OBJECTIONABLE ODOR IS PRESENT. THE DIMENSIONS OF THE FOLDED AND WRAPPED PACKET SHALL NOT BE MORE THAN 2-3/4 INCHES LONG, 1 3/8 INCHES WIDE, AND SHALL HAVE A UNIFORM THICKNESS OF NOT MORE THAN 5/8 INCH (MEASURED TO NEAREST 1/8 INCH). THE EDGES OF THE TISSUE PAPER PROTRUDING FROM THE ENDS OF THE PACKET SHALL BE FLUSH WITH A TOLERANCE OF OR - 1/16 INCH."

YOU STATE THAT THE STRAUBEL PACKET IS ENCLOSED IN A SLEEVE, AND THEN THE SLEEVE IS FOLDED AND THE WHOLE PACKAGE IS CONTAINED AGAIN IN A LATEX COATED BAND. IT IS YOUR CONTENTION THAT THERE IS NO AUTHORITY FOR THE USE OF ANY CONTAINER OTHER THAN A SLEEVE AND THAT THE STRAUBEL PACKET, THEREFORE, DOES NOT CONFORM IN THIS REGARD. YOU ALSO CONTEND THAT THE STRAUBEL PACKET FAILS TO COMPLY WITH THE SPECIFICATION REQUIREMENT FOR A UNIFORM PACKET THICKNESS OF NOT MORE THAN 5/8 INCH (MEASURED TO NEAREST 1/8 INCH) IN THAT IT VARIES FROM APPROXIMATELY 1/8 INCH AT THE FOLDED END, TO 5/8 INCH IN THE MIDDLE TO THE VERY NARROW THICKNESS OF THE LATEX FLAP AT THE OPEN END.

THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER A PARTICULAR PRODUCT OFFERED MEETS THOSE NEEDS ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY. OUR OFFICE WILL NOT OBJECT TO THE AGENCY'S EXERCISE OF DISCRETION IN THESE AREAS IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE OF ERROR OR THAT A CONTRACT AWARDED ON THE BASIS OF THE SPECIFICATIONS WOULD OTHERWISE BE ILLEGAL.

IT IS, OF COURSE, THE CONTRACTING OFFICER'S POSITION THAT STRAUBEL COMPLETELY CONFORMS TO THE SPECIFICATIONS. IN HIS VIEW, AND WE AGREE, THE BASIC PURPOSE OF PARAGRAPH 3.3.2.2, AS AMENDED, INSOFAR AS IT IS PERTINENT TO THE PROTEST, IS TO INSURE THE COMPATABILITY OF THE PACKET WITH OTHER COMPONENTS OF THE RATION KIT. THE CONTRACTING OFFICER OBSERVES THAT CONSISTENT WITH THIS PURPOSE, THE SPECIFICATION DOES NOT PROHIBIT THE ADDITIONAL PACKING OPERATION OF FOLDING THE SLEEVE AND USING A LATEX COATED BAND TO SECURE THE FOLD. MOREOVER, HE SUGGESTS THAT THE PENULTIMATE SENTENCE OF PARAGRAPH 3.3.2.2, AS AMENDED, IS A POSITIVE RECOGNITION THAT THE PACKET MAY BE FOLDED:

"THE DIMENSIONS OF THE FOLDED AND WRAPPED PACKET SHALL BE NOT MORE THAN 2 -3/4 INCHES LONG, 1-3/8 INCHES WIDE, AND SHALL HAVE A UNIFORM THICKNESS OF NOT MORE THAN 5/8 INCH (MEASURED TO NEAREST 1/8 INCH)."

WITH RESPECT TO YOUR SECOND CONTENTION, THE RECORD INDICATES THAT THIS MATTER WAS FIRST RAISED AT A MEETING HELD ON JULY 2,, 1971, AT THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC) IN PHILADELPHIA. A STRAUBEL PACKET WAS OFFERED AT THAT TIME IN SUPPORT OF YOUR CONTENTION. AT THE REQUEST OF A REPRESENTATIVE OF YOUR FIRM, MR. HILL, THE REPRESENTATIVE OF U.S. ARMY NATICK LABORATORIES, MEASURED THE PACKET AND REPORTED THAT IT MEASURED 4/8 INCH AT THE OPEN END AND IN THE MIDDLE. THERE WAS NO SHOWING, NOR HAVE YOU SUBSEQUENTLY CONTENDED, THAT THE STRAUBEL PACKET EXCEEDED THE 5/8 INCH (MEASURED TO NEAREST 1/8 INCH) LIMIT ON PACKET THICKNESS. THE CONTRACTING OFFICER'S VIEW ON THIS QUESTION IS THAT THE REQUIREMENT FOR UNIFORM THICKNESS IS MET IF THE PACKAGE IS READILY COMPRESSIBLE TO SUCH UNIFORM THICKNESS WHEN IT IS PACKAGED AS A COMPONENT WITH OTHER COMPONENTS OF THE ASSEMBLY.

WHILE WE DO NOT DISCOUNT THE TECHNICAL MERIT IN YOUR ARGUMENTS, WE CANNOT SAY THAT THE CONTRACTING OFFICER'S POSITION IS UNREASONABLE, PARTICULARLY IN VIEW OF THE PURPOSE OF PARAGRAPH 3.3.2.2. IT IS ALSO SIGNIFICANT TO NOTE THE CONTRACTING OFFICER'S ADVICE THAT IN JANUARY OF 1967, THE NATICK LABORATORIES, THE DRAFTER OF THE SPECIFICATIONS, INDICATED APPROVAL OF THE METHOD EMPLOYED BY STRAUBEL IN MEETING THE DIMENSION REQUIREMENT, AND, AS YOU ARE AWARE, STRAUBEL HAS FURNISHED PACKETS FOLDED IN THIS MANNER UNDER PRIOR CONTRACTS. IN THIS CONNECTION, WE UNDERSTAND THAT STRAUBEL'S PRODUCT CONFORMS WITH ALL THE SPECIFICATIONS AND THAT IT WAS NOT THE INTENT OF THE DRAFTERS OF THE SPECIFICATIONS TO PRECLUDE FOLDING OF THE PACKET AFTER THE TISSUE HAS BEEN PLACED IN THE SLEEVE.

FURTHER, THE RECORD INDICATES THAT A PREAWARD SURVEY CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), IN MILWAUKEE, CONSIDERED THE QUESTION OF STRAUBEL'S ABILITY TO PRODUCE THE PACKET IN ACCORDANCE WITH SPECIFICATIONS. THE PREAWARD SURVEY STATES THAT THE METHOD OF PACKET CONSTRUCTION TO BE USED BY STRAUBEL CONFORMS TO PARAGRAPH 3.3.2.2 OF SPECIFICATION UU-P-00556 AS SPECIFIED IN THE BID PACKAGE.

IN VIEW OF THE FOREGOING, WE CAN INTERPOSE NO LEGAL OBJECTION TO THE CONTRACTING OFFICER'S DETERMINATION THAT THE STRAUBEL PRODUCT CONFORMS TO THE SPECIFICATION. SEE B-170975, DECEMBER 30, 1970.

WITH RESPECT TO YOUR CONTENTION THAT THE "BAND" USED BY STRAUBEL IS COATED WITH A RUBBER BASED ADHESIVE WHICH MAY IMPART AN OBJECTIONABLE ODOR TO SOME COMPONENT OF THE ACCESSORY PACKET CONTRARY TO THE REQUIREMENTS OF THE SPECIFICATION, THE RECORD INDICATES AS FOLLOWS. STRAUBEL PAPER COMPANY STATES THAT THE TAPE IT IS USING IS THE SAME PRODUCT USED IN PREVIOUS CONTRACTS AND THIS TAPE HAS SUCCESSFULLY PASSED ALL INSPECTION EXAMINATIONS AND TESTS. STRAUBEL HAS BEEN INFORMED BY THE U.S. ENVELOPE COMPANY, ITS SUPPLIER, THAT THIS TAPE IS USED BY MANY COMPANIES IN THE FOOD LINE.

THE CONTRACTING OFFICER ADVISES THAT NEITHER THE OFFICE OF THE PROCURING CONTRACTING OFFICER NOR THE TECHNICAL QUALITY ASSURANCE OFFICE HAS RECEIVED ANY REPORTS OF NONCONFORMANCE OF STRAUBEL'S PRODUCT WITH RESPECT TO TEARS OR ANY UNSERVICEABILITY. FURTHER, THE CONTRACTING OFFICER STATES THAT HE IS UNAWARE OF ANY DIFFICULTIES EXPERIENCED BY THE ASSEMBLERS IN USING THE STRAUBEL PRODUCT NOR DO THE PROCUREMENT FILES REFLECT ANY EVIDENCE THAT SUCH PACKETS HAVE BEEN FOUND HARD-TO-HANDLE BY THE ASSEMBLY CONTRACTORS.

FINALLY, THE RECORD DOES NOT SUPPORT YOUR CONTENTION THAT THERE WAS NO NECESSITY FOR MAKING AN AWARD PRIOR TO RESOLUTION OF THE PROTEST. EVEN IF STRAUBEL COULD HAVE PRODUCED THE PACKETS REQUIRED FOR THE FIRST INCREMENT OF THE DELIVERY IN 2-1/2 WEEKS, AS YOU CONTEND, THE GOVERNMENT COULD NOT HAVE REQUIRED STRAUBEL TO DELIVER WITHIN THIS PERIOD IN VIEW OF THE PROVISIONS IN THE DELIVERY SCHEDULE. THE CONTRACTING OFFICER HAS ADVISED THAT THE PREAWARD SURVEY CONDUCTED BY GOVERNMENT PERSONNEL OF STRAUBEL'S CAPABILITY TO PERFORM INDICATES THAT THE SUPPLIERS OF THE PAPER AND LATEX TAPE REQUIRE A 3 WEEK AND 3 TO 4 WEEK PERIOD LEAD TIME, RESPECTIVELY. ANY ATTEMPTED CHANGE IN THE DELIVERY PERIOD OF THE PRIME CONTRACT WOULD HAVE, IN TURN, AFFECTED SUBCONTRACTORS. HE FURTHER STATES THAT AT THE TIME HE MADE HIS DETERMINATION, THE GOVERNMENT HAD ONLY 8 DAYS' ASSEMBLY PRODUCTION ON HAND. IN ORDER FOR THE GOVERNMENT TO MEET ITS OBLIGATIONS UNDER THE TERMS OF THE ASSEMBLY CONTRACTS, THE TISSUE HAD TO BE AVAILABLE TO THE ASSEMBLY CONTRACTOR AND ANY DELAY IN DELIVERY OF ANY COMPONENT MAY HAVE SUBJECTED THE GOVERNMENT TO ADDITIONAL COST WHICH MAY HAVE BEEN INCURRED BY THE TWO ASSEMBLY CONTRACTORS BY REASON OF UNTIMELY DELIVERY OF THE GOVERNMENT-FURNISHED PROPERTY. SUCH DELAY WOULD IN TURN RESULT IN LATE DELIVERIES OF THE RATIONS.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED. HOWEVER, IN VIEW OF THE COMPLAINTS YOU HAVE RAISED REGARDING THE INTERPRETATION OF THE SPECIFICATIONS, WE ARE BY LETTER OF TODAY TO THE DEFENSE SUPPLY AGENCY SUGGESTING THAT THE LANGUAGE OF ANY FUTURE SOLICITATIONS FOR THIS ITEM BE REVISED SO AS TO MORE CLEARLY REFLECT THE AGENCY'S NEEDS.