B-176062(1), SEP 1, 1972

B-176062(1): Sep 1, 1972

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ALTHOUGH THE NATIONAL FIRE CODE MAY NOT HAVE BEEN REFERENCED AS SUCH IN THE SPECIFICATIONS. THE REQUIREMENTS OF THE CODE WERE STATED IN THE SPECIFICATIONS AS SAFETY MEASURES AND PROTESTANT THEREFORE SHOULD HAVE BID TO THE STATED REQUIREMENTS OF THE INVITATION. TO ROSCO MANUFACTURING COMPANY: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10. PROTESTING AGAINST THE DETERMINATION BY THE BUREAU OF INDIAN AFFAIRS (BIA) THAT YOUR BID SUBMITTED UNDER INVITATION FOR BIDS AOO -3270 WAS NONRESPONSIVE. THE CONTRACTING OFFICER HAS REQUESTED THE CONTRACTOR TO WHOM AN AWARD WAS MADE TO HOLD PERFORMANCE IN ABEYANCE PENDING OUR DECISION ON THE PROTEST. TWO BIDS WERE RECEIVED. SINCE THE EXCEPTIONS TAKEN BY ROSCO TO THE INSIDE CLOSING VALVE AND BUMPER REQUIREMENTS ARE ALONE SUFFICIENT TO SUPPORT THE DETERMINATION OF NONRESPONSIVENESS.

B-176062(1), SEP 1, 1972

BID PROTEST - DESIGN SPECIFICATIONS - RESPONSIVENESS - UNTIMELY PROTEST DENIAL OF PROTEST BY ROSCO MANUFACTURING COMPANY AGAINST THE REJECTION OF THEIR BID AS NONRESPONSIVE TO AN IFB ISSUED BY THE BUREAU OF INDIAN AFFAIRS FOR A BITUMINOUS OIL DISTRIBUTOR. ALTHOUGH THE NATIONAL FIRE CODE MAY NOT HAVE BEEN REFERENCED AS SUCH IN THE SPECIFICATIONS, THE REQUIREMENTS OF THE CODE WERE STATED IN THE SPECIFICATIONS AS SAFETY MEASURES AND PROTESTANT THEREFORE SHOULD HAVE BID TO THE STATED REQUIREMENTS OF THE INVITATION. FPR 1-2.404-2(A). ALSO, PROTESTS AGAINST THE SPECIFICATIONS SHOULD BE FILED PRIOR TO BID OPENING.

TO ROSCO MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE DETERMINATION BY THE BUREAU OF INDIAN AFFAIRS (BIA) THAT YOUR BID SUBMITTED UNDER INVITATION FOR BIDS AOO -3270 WAS NONRESPONSIVE. THE CONTRACTING OFFICER HAS REQUESTED THE CONTRACTOR TO WHOM AN AWARD WAS MADE TO HOLD PERFORMANCE IN ABEYANCE PENDING OUR DECISION ON THE PROTEST.

THE INVITATION SOLICITED BIDS FOR A BITUMINOUS ROAD OIL DISTRIBUTOR. TWO BIDS WERE RECEIVED. ROSCO BID $11,996 AND THE OTHER BIDDER BID $14,523. IN A LETTER ATTACHED TO AND STATED TO BE A PART OF THE BID, ROSCO STATED SEVERAL EXCEPTIONS TO THE SPECIFICATIONS. THE PROCUREMENT ACTIVITY DETERMINED THE BID TO BE NONRESPONSIVE BECAUSE OF THE EXCEPTIONS TO THE REQUIREMENTS FOR BAFFLE PLATES (SURGE), INSIDE CLOSING VALVE, FENDERS, AND REAR BUMPER.

WE NEED NOT DISCUSS ALL THE BASES FOR THE DETERMINATION OF NONRESPONSIVENESS, SINCE THE EXCEPTIONS TAKEN BY ROSCO TO THE INSIDE CLOSING VALVE AND BUMPER REQUIREMENTS ARE ALONE SUFFICIENT TO SUPPORT THE DETERMINATION OF NONRESPONSIVENESS.

THE PROCUREMENT ACTIVITY HAS INDICATED THAT THE INSIDE CLOSING VALVE REQUIREMENT WAS INCLUDED IN THE SPECIFICATION IN AN ATTEMPT TO MINIMIZE POSSIBLE FIRE DAMAGE TO THE VALVE AS SUGGESTED IN "NATIONAL FIRE CODE NO. 385-1971 - RECOMMENDED REGULATORY STANDARD FOR TANK VEHICLES FOR FLAMMABLE AND COMBUSTIBLE LIQUIDS." THE BUMPER REQUIREMENT ALSO WAS PROVIDED PURSUANT TO THE RECOMMENDATION OF THE CODE AND WAS FOR THE PURPOSE OF PROTECTING THE VEHICLE AND EXTERNAL PIPING FROM REAR END COLLISIONS.

ROSCO CONTENDS THAT THE NATIONAL FIRE CODE IS IRRELEVANT TO ITS PROTEST SINCE IT IS NOT MENTIONED IN THE SPECIFICATIONS NOR IS IT REQUIRED, AS A MANUFACTURER OF THE TYPE OF VEHICLE INVOLVED HERE, TO COMPLY WITH THE CODE RECOMMENDATIONS. MOREOVER, WITH RESPECT TO THE NEED FOR A BUMPER, ROSCO ASSERTS THAT ITS VEHICLE HAS A 5-INCH CHANNEL SUBFRAME EXTENDING TO THE REARMOST SECTION OF THE OPERATOR'S PLATFORM. THIS, IT MAINTAINS, IS ADEQUATE PROTECTION FROM REAR END COLLISIONS OF THE TANK AND THE SPRAYING APPARATUS WHICH IS CLOSE TO THE REAR WHEELS IN A PROTECTED POSITION.

ALTHOUGH THE CODE MAY NOT HAVE BEEN REFERENCED AS SUCH IN THE SPECIFICATIONS, THE REQUIREMENTS OF THE CODE WERE STATED IN THE SPECIFICATIONS AS SAFETY MEASURES AND ROSCO THEREFORE SHOULD HAVE BID TO THE STATED REQUIREMENTS OF THE INVITATION. SECTION 1-2.404-2(A) OF THE FEDERAL PROCUREMENT REGULATIONS STATES:

"ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE, OR PERMISSIBLE ALTERNATES THERETO, SHALL BE REJECTED AS NONRESPONSIVE."

CONSEQUENTLY, WE WILL RAISE NO LEGAL OBJECTION TO THE REJECTION OF THE ROSCO BID.

WE, OF COURSE, CAN APPRECIATE YOUR FEELINGS THAT YOUR EQUIPMENT AND WORKMANSHIP ARE OF THE HIGHEST QUALITY AND YOUR RELUCTANCE TO PERMIT THE BIA TO IMPOSE DESIGN CRITERIA ON YOUR FIRM. CONVERSELY, WE HAVE RECOGNIZED THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE AGENCY MAKING THE PROCUREMENT AND THE INABILITY OR UNWILLINGNESS OF A BIDDER TO MEET THOSE NEEDS IS NOT SUFFICIENT TO WARRANT THE CONCLUSION THAT SPECIFICATIONS ARE RESTRICTIVE. SEE B-169196, MAY 22, 1970. MOREOVER, OUR OFFICE HAS HELD THAT PROTESTS AGAINST THE SPECIFICATIONS OF AN IFB MUST BE FILED PRIOR TO THE OPENING OF BIDS. B-173879, OCTOBER 1, 1971. SEE, ALSO, SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS WHICH STATES THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING SHALL BE FILED PRIOR TO THE BID OPENING.

ACCORDINGLY, THE PROTEST IS DENIED. WE ARE, HOWEVER, ENCLOSING A COPY OF OUR LETTER OF TODAY TO THE SECRETARY OF THE INTERIOR, WHICH MAY BE OF INTEREST TO YOU.