B-173625, NOV 19, 1971

B-173625, NOV 19, 1971

BID PROTEST - REQUIRED SPECIFICATIONS DECISION DENYING PROTEST BY SECOND LOW BIDDER AGAINST AWARD OF A CONTRACT TO MARINE EQUIPMENT & SUPPLY CO., LOW BIDDER, UNDER AN IFB ISSUED BY THE MARKETING DIVISION FOR MEDICAL EQUIPMENT OF THE VETERANS ADMINISTRATION FOR FURNISHING AND INSTALLATION OF A DISHWASHING SYSTEM IN THE VA HOSPITAL, LONG BEACH, CALIF. SUCCESSFUL LOW BIDDER DID NOT ALTER OR TAKE EXCEPTION TO ANY OF THE TERMS, CONDITIONS, OR SPECIFICATIONS OF THE IFB, AND THE DECISION WHETHER THE PRODUCT OFFERED MEETS THE SPECIFICATIONS MUST BE BASED UPON AN EXAMINATION OF THE PRODUCT ITSELF IN RELATION TO THE SPECIFICATIONS, RATHER THAN UPON UNSUPPORTED OR SPECULATIVE ASSERTIONS BY PROTESTANT. BECAUSE NO TECHNICAL OBJECTIONS WERE TAKEN BY THE PROCUREMENT ACTIVITY AS TO MARINE'S ABILITY TO COMPLY WITH THE SPECIFICATIONS, THE PROTEST IS DENIED.

TO ADAMATION, INC.:

WE REFER TO YOUR LETTER OF JULY 12, 1971, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS M2-94-71 (IFB) ISSUED MAY 19, 1971, BY THE MARKETING DIVISION FOR MEDICAL EQUIPMENT OF THE VETERANS ADMINISTRATION (VA). THE IFB REQUESTED BIDDERS TO FURNISH AND INSTALL A DISHWASHING SYSTEM IN THE VA HOSPITAL AT LONG BEACH, CALIFORNIA. THE SYSTEM ADVERTISED INCLUDED A DISHWASHING MACHINE AND RELATED EQUIPMENT FURNISHED IN ACCORDANCE WITH VA DRAWING 001-71 OF APRIL 22, 1971, FEDERAL SPECIFICATION 00-D-1390 OF MAY 7, 1969, APPROVED DEVIATIONS OF OCTOBER 1, 1970, AND OTHER SPECIFIED OPTIONS AND EXCEPTIONS.

THE LOW BIDDER FOR INSTALLATION OF THE DISHWASHING SYSTEM WAS MARINE EQUIPMENT & SUPPLY CO. (MARINE). ITS BID ANTICIPATED THE INSTALLATION OF A DISHWASHING SYSTEM CALLED "AUTOMATION" WHICH CONSISTED OF A GENERAL ELECTRIC WASH CABINET AND A CONTINUOUS RACK CONVEYOR AND DRIVE ASSEMBLY MANUFACTURED SPECIFICALLY BY MARINE. AWARD WAS THEREAFTER MADE TO MARINE.

ADAMATION, INC. (ADAMATION), SECOND LOW BIDDER UNDER THE INVITATION, SUBMITTED THE FOLLOWING ALLEGATIONS IN ITS LETTER OF JULY 12, 1971:

"OUR PROTEST IS BASED ON THE FACT THAT 'AUTOMATION' DOES NOT, AND CANNOT MEET WITH THE BASIC REQUIREMENTS OF FEDERAL SPECIFICATION #00-D 1390, DATED MAY 7, 1969, AND APPROVED V.A. DEVIATION DATED OCTOBER 1, 1970.

"PARAGRAPH 3.3 STANDARD COMPLIANCE - 'AUTOMATION' DOES NOT MEET WITH U.L. 73, OR N.S.F. STANDARD #3, AND DOES NOT, AS OF THIS WRITING PER TELEPHONE VERIFICATION WITH BOTH AGENCIES, HAVE N.S.F. OR U.L. APPROVAL.

"THIS IS IN DIRECT CONFLICT WITH PARAGRAPHS 3.3.1, 3.3.1.1, 3.3.1.2, 3.4 AND 3.5 OF FEDERAL SPECIFICATIONS #00-D-1390.

"'AUTOMATION' USES A GENERAL ELECTRIC WASH CABINET, WHICH IN ITS PURCHASED STATE COMPLIES WITH AND HAS SAID APPROVALS; HOWEVER, THE G.E. UNIT IS ALTERED BY 'AUTOMATION' TO ACCEPT THEIR CONVEYOR TABLE AND DRIVE ASSEMBLY, WHICH INVALIDATES EXISTING APPROVALS, AND MUST BE RESUBMITTED TO BOTH U.L. AND N.S.F. FOR REEVALUATION.

"FURTHER, 'AUTOMATION' HAS NEVER BUILT OR SUPPLIED CONVEYORS, OR A BLOWER SYSTEM AS REQUIRED BY SUBJECT I.F.B. AND, CONSEQUENTLY THESE ITEMS DO NOT HAVE THE NECESSARY APPROVALS.

"I.F.B. #M2-94-71, REQUIRES DELIVERY WITHIN 90 DAYS OF THE DATE OF AWARD, AND ACCORDING TO N.S.F. AND U.L. THERE IS NO WAY IN WHICH THE NECESSARY APPROVALS CAN BE OBTAINED WITHIN THIS PERIOD OF TIME DUE TO THE EXTENSIVE TESTING THAT IS REQUIRED."

MARINE DID NOT ALTER OR TAKE EXCEPTION TO ANY OF THE TERMS, CONDITIONS OR SPECIFICATIONS OF THE IFB. FURTHERMORE, THE ADMINISTRATIVE REPORT ON THIS PROCUREMENT TO OUR OFFICE INCLUDES CORRESPONDENCE RECORDING A TOUR BY OFFICIALS OF THE VA OF MARINE'S PLANT AND THEIR INSPECTION OF SIMILAR DISHWASHING SYSTEMS INSTALLED BY MARINE. IN THIS CORRESPONDENCE, VA OFFICIALS CONFIRMED THAT MARINE COULD PERFORM THE PROJECT ACCORDING TO THE TERMS OF THE IFB.

OUR OFFICE HAS HELD ON MANY OCCASIONS THAT DRAFTING OF PROPER SPECIFICATIONS REFLECTING THE NEEDS OF THE GOVERNMENT AND DETERMINING WHETHER ARTICLES OFFERED BY BIDDERS MEET SUCH SPECIFICATIONS ARE MATTERS AS TO WHICH THE CONTRACTING AGENCY HAS PRIMARY RESPONSIBILITY. 48 COMP. GEN. 306, 308 (1968); 38 COMP. GEN. 190 (1958). FURTHERMORE, UNLESS THE BIDDER HAS QUALIFIED HIS BID IN SOME MANNER WHICH WOULD RESTRICT THE GOVERNMENT'S RIGHT TO REQUIRE COMPLIANCE WITH THE SPECIFICATIONS, THE DECISION WHETHER THE PRODUCT OFFERED MEETS SPECIFICATIONS IS BASED UPON AN EXAMINATION OF THE PRODUCT ITSELF IN RELATION TO THE SPECIFICATIONS, RATHER THAN UPON UNSUPPORTED OR SPECULATIVE ASSERTATIONS AS TO A BIDDER'S ABILITY TO MEET THE SPECIFICATIONS. 48 COMP. GEN., SUPRA; 38 COMP. GEN. 71, 75 (1958).

WHILE THE FEDERAL SPECIFICATION SECTIONS TO WHICH YOU REFER REQUIRE COMPLIANCE WITH U.L. 73 AND N.S.F. STANDARD NO. 3, AS YOU CONTEND, EVIDENCE OF SUCH COMPLIANCE IS NOT REQUIRED BY THE TERMS OF THE SPECIFICATION UNTIL PRIOR TO APPROVAL OF THE FIRST ARTICLE, IF SUCH IS REQUIRED, OR PRIOR TO THE APPROVAL OF THE FIRST SHIPMENT IF FIRST ARTICLE APPROVAL IS NOT REQUIRED. INASMUCH AS MARINE TOOK NO EXCEPTION TO THE IFB REQUIREMENTS, IT IS BOUND UNDER THE TERMS OF ITS CONTRACT TO FULLY COMPLY WITH ALL SPECIFICATION REQUIREMENTS. THEREFORE, IN VIEW OF THE FACT THAT NO TECHNICAL OBJECTIONS WERE TAKEN BY THE PROCUREMENT OFFICE AS TO THE ABILITY OF MARINE TO COMPLY WITH THE SPECIFICATIONS, YOUR PROTEST IS DENIED.

FURTHERMORE, WE HAVE RECENTLY BEEN INFORMED BY THE VA THAT INSTALLATION OF THE EQUIPMENT HAS BEEN COMPLETED AND THAT THE NECESSARY APPROVALS HAVE BEEN GRANTED.