B-174295, APR 6, 1972

B-174295, APR 6, 1972

BID PROTEST - ALLEGEDLY RESTRICTIVE SPECIFICATIONS - ACTUAL MINIMUM NEEDS OF GOVERNMENT DECISION DENYING THE PROTEST OF WASTE KING UNIVERSAL, A PROSPECTIVE SUBCONTRACTOR, AGAINST THE USE OF RESTRICTIVE SPECIFICATIONS IN AN IFB ISSUED BY THE PROCUREMENT DIVISION, MYRTLE BEACH AFB, S. C., WHICH RESULTED IN THE AWARD OF A CONTRACT TO TRUESDALE CONSTRUCTION COMPANY, INC. ASPR 1-1201(A) REQUIRES THAT SOLICITATIONS REFLECT THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT TO INSURE MAXIMUM COMPETITION AND TO ELIMINATE ANY FEATURES WHICH MIGHT LIMIT ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCT. THE CONTRACTING OFFICER IN THE INSTANT PROCUREMENT HAS CLEARLY JUSTIFIED THE SPECIFICATIONS OF THE SUBJECT IFB AND SINCE THERE EXISTS NO EVIDENCE TO INDICATE THAT HIS DECISION WAS MADE IN AN ARBITRARY MANNER, THERE IS NO BASIS TO CONCLUDE THAT THE AWARD BY TRUESDALE TO ANOTHER SUBCONTRACTOR WAS IMPROPER. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO MR. RICHARD D. CONLEY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 17, 1971, FORWARDED TO THIS OFFICE BY SENATOR WILLIAM V. ROTH, JR., CONCERNING YOUR PROTEST ON BEHALF OF WASTE KING UNIVERSAL (WASTE KING), A PROSPECTIVE SUBCONTRACTOR, AGAINST THE USE OF THE SPECIFICATIONS FOR DISHWASHERS IN INVITATION FOR BIDS (IFB) F38606-71-B-0281, ISSUED BY THE PROCUREMENT DIVISION, MYRTLE BEACH AIR FORCE BASE (BASE), SOUTH CAROLINA.

THE SUBJECT IFB REQUIRED THE PRIME CONTRACTOR TO REMOVE AND THEN INSTALL 375 SINK-DISHWASHER COMBINATIONS INTO BASE FAMILY HOUSING. YOU CONTEND THAT DISHWASHERS MANUFACTURED BY WASTE KING WOULD HAVE BEEN USED IN THE PROJECT BY THE CONTRACTOR, TRUESDALE CONSTRUCTION COMPANY, INC. (TRUESDALE), BUT FOR THE FACT THAT SUCH DISHWASHERS DID NOT MEET THE SPECIFICATION REQUIREMENTS FOR A 115 VOLTS (CITED BY YOU AS 120 VOLTS), 60 HERTZ, MACHINE WHICH WOULD PREHEAT THE FINAL RINSE WATER FROM 120 DEGS TO 180 DEGS. YOU ALSO STATE THAT THERE IS ONLY ONE MANUFACTURER WHICH PRODUCES A UNIT MEETING THESE SPECIFICATIONS, AND IMPLY THAT THE SPECIFICATIONS WERE WRITTEN AROUND KITCHEN AID, THE PRODUCT OF HOBART MANUFACTURING COMPANY (HOBART).

THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1201(A) REQUIRES PROCUREMENT ACTIVITIES TO ENSURE THAT PLANS, DRAWINGS, SPECIFICATIONS OR PURCHASE DESCRIPTIONS FOR PROCUREMENTS SHALL STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND DESCRIBE THE SUPPLIES AND SERVICES IN A MANNER WHICH WILL ENCOURAGE MAXIMUM COMPETITION AND ELIMINATE, INSOFAR AS POSSIBLE, ANY RESTRICTIVE FEATURES WHICH MIGHT LIMIT ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCT.

YOUR ASSERTION THAT THE SPECIFICATIONS WERE RESTRICTIVE MAY BE TRUE TO THE EXTENT THAT THE SPECIFICATIONS MAY HAVE PRECLUDED WASTE KING'S SUBMISSION OF A RESPONSIVE BID WITHOUT CHANGING THEIR COMMERCIAL OR STANDARD EQUIPMENT TO COMPLY WITH THE SPECIFICATIONS. IN THIS SENSE, OF COURSE, ALL SPECIFICATIONS ARE RESTRICTIVE SINCE THE REQUIREMENTS THEY NECESSARILY ESTABLISH, WHETHER REASONABLE OR NOT, PRECLUDE THE PURCHASE OF NON-CONFORMING ITEMS. THEREFORE, WITH RESPECT TO YOUR CONTENTIONS, THE LEGAL QUESTION PRESENTED IS WHETHER OR NOT THE SPECIFICATIONS IN THE IFB WERE UNDULY RESTRICTIVE, I.E., RESTRICTIVE TO THE POINT OF PREVENTING THE PECUNIARY BENEFITS WHICH WE BELIEVE TO FLOW FROM FREE AND OPEN COMPETITION.

IT IS THE POSITION OF THE CONTRACTING OFFICER THAT THE SPECIFICATIONS WERE NOT UNDULY RESTRICTIVE, SINCE NO MANUFACTURER OFFERS A STANDARD PRODUCT MEETING ALL OF THE REQUIREMENTS OF THE DESCRIBED DISHWASHER. THE CONTRACTING OFFICER ALSO REPORTS THAT THE REQUIREMENT FOR A 115 VOLTS, 60 HERTZ, MACHINE WAS MADE NECESSARY BECAUSE ANY OTHER VOLTAGE OR FREQUENCY WOULD HAVE REQUIRED ADDITIONAL ELECTRICAL CIRCUITRY NOT PRESENTLY AVAILABLE AT THE BASE. FURTHERMORE, THE CONTRACTING OFFICER STATES THAT THE ELECTRIC HOT WATER HEATERS IN BASE FAMILY HOUSING WERE DESIGNED TO PROVIDE A HOT WATER TEMPERATURE OF 140 DEGS AND WERE NOT PROVIDED WITH FAST RECOVERY ELEMENTS. IT IS CONTENDED THAT IF A HOT WATER HEATER THERMOSTAT IS SET AT 140 DEGS OR LESS, WHILE THE HOT WATER IS BEING USED FOR ANY PURPOSE AT THE SAME TIME THAT THE DISHWASHER IS IN USE, THE WATER TEMPERATURE FOR THE DISHWASHER WILL DROP TO 120 DEGS OR LESS. THEREFORE, THE CONTRACTING OFFICER CONCLUDES THAT TO INSURE STERILIZATION, A PREHEATER PROVIDING FINAL RINSE WATER AT AN ADEQUATE TEMPERATURE IS A NECESSARY REQUIREMENT OF THE HOUSEHOLD DISHWASHERS AT THE BASE.

THE CONTRACTING OFFICER REPORTS THAT THE FEDERAL SPECIFICATIONS CONCERNING HOUSEHOLD AND COMMERCIAL DISHWASHERS WERE REVIEWED, AND IT WAS DETERMINED THAT NEITHER WAS DIRECTLY APPLICABLE TO THE PROCUREMENT OF SINK -DISHWASHER COMBINATION UNITS. THE CONTRACTING OFFICER ADVISES THAT FEDERAL SPECIFICATION 00-D-420, "DISHWASHING MACHINE, HOUSEHOLD" REQUIRES A WATER SUPPLY TEMPERATURE NOT LESS THAN 140 DEGS, AND MAKES NO MENTION OF A RINSE WATER PREHEATER. IN CONTRAST, FEDERAL SPECIFICATION 00-D-431C, "DISHWASHING MACHINES, COMMERCIAL" REQUIRES A RINSE WATER TEMPERATURE OF 180 DEGS, ALTHOUGH THE NATIONAL SANITATION FOUNDATION INDICATED THAT THE MINIMUM RINSE WATER TEMPERATURE SHOULD BE MAINTAINED AT NOT LESS THAN 165 DEGS. IN ADDITION, THE CONTRACTING OFFICER REPORTS THAT MILITARY PUBLIC HEALTH PERSONNEL INDICATED THAT THE 140 DEGS MINIMUM TEMPERATURE AS STATED IN THE FEDERAL SPECIFICATION FOR HOUSEHOLD DISHWASHERS WAS UNDESIRABLE AND THAT RINSE WATER TEMPERATURE SHOULD EXCEED 140 DEGS FOR PROPER SANITATION.

THUS, WITHOUT ANY MANDATORY SPECIFICATION TO RELY UPON, AND BECAUSE OF THE DISFAVOR WITH THE RINSE WATER TEMPERATURE STATED IN THE FEDERAL SPECIFICATION FOR HOUSEHOLD DISHWASHERS, PLUS THE FACT THAT THE FEDERAL SPECIFICATION FOR COMMERCIAL DISHWASHERS WAS ESTABLISHED WITH KNOWLEDGE OF THE LESSER NATIONAL SANITATION FOUNDATION STANDARD, THE PROCURING AGENCY CONCLUDED THAT THE 180 DEGS TEMPERATURE SHOULD ALSO BE A REQUIREMENT FOR FAMILY HOUSING SINK-DISHWASHER COMBINATIONS.

ALTHOUGH HOBART ADVERTISES A STANDARD UNIT WHICH WILL PROVIDE FINAL RINSE WATER UP TO 180 DEGS, AND THE IFB REQUIRED RINSE WATER 120 DEGS TO 180 DEGS, WE ARE OF THE VIEW THAT THE MODIFICATION TO HOBART'S STANDARD UNIT MAY HAVE BEEN SUCH A SLIGHT MODIFICATION, THAT FOR ALL PRACTICABLE PURPOSES, THE SPECIFICATIONS IN THE IFB DESCRIBED THE PARTICULAR FEATURES OF A HOBART DISHWASHER. HOWEVER, IN VIEW OF THE REPORT BY THE CONTRACTING OFFICER, THIS OFFICE IS OF THE OPINION THAT THE SPECIFICATIONS IN THE IFB WERE NOT UNDULY RESTRICTIVE, SINCE WE CANNOT CONCLUDE THAT THE SPECIFICATIONS REQUIRING THE PREHEATER AND THE 115 VOLTS, 60 HERTZ, FACTORS WERE WRITTEN AROUND THE PRODUCT OF ONE MANUFACTURER, RATHER THAN TO REFLECT THE GOVERNMENT'S ACTUAL NEEDS.

FURTHER, IT IS A WELL ESTABLISHED PRINCIPLE THAT THE DETERMINATION OF THE GOVERNMENT'S MINIMUM OR ACTUAL NEEDS IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND WILL NOT BE DISTURBED BY THIS OFFICE IN THE ABSENCE OF EVIDENCE THAT THE AGENCY ACTED ARBITRARILY. 49 COMP. GEN. 156, 160 (1969). WE FIND NO SUCH EVIDENCE HERE.

SINCE WE ARE UNABLE TO CONCLUDE THAT THE SPECIFICATIONS WERE VIOLATIVE OF ASPR 1-1201(A), WE SEE NO VALID BASIS ON WHICH TO CONCLUDE THAT THE AWARD OF THE SUBCONTRACT TO HOBART BY TRUESDALE WAS IMPROPER.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.