B-176062(2), SEP 1, 1972

B-176062(2): Sep 1, 1972

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WHILE THE DRAFTING OF SPECIFICATIONS TO MEET THE NEEDS OF THE GOVERNMENT IS PRIMARILY A PROCUREMENT ACTIVITY RESPONSIBILITY. IT IS AXIOMATIC THAT THE SPECIFICATIONS SO DRAFTED MUST REFLECT THE GOVERNMENT'S ACTUAL ESSENTIAL NEEDS. IT IS SUGGESTED THAT. BEFORE ANY FUTURE PROCUREMENTS FOR BITUMINOUS DISTRIBUTORS ARE LET. SECRETARY: ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO ROSCO MANUFACTURING COMPANY DENYING THE PROTEST AGAINST THE REJECTION OF THE BID SUBMITTED UNDER INVITATION FOR BIDS A00-3270. THE PROTEST WAS THE SUBJECT OF A REPORT DATED JULY 27. ALTHOUGH THE PROTEST IS DENIED. WE BELIEVE THAT THERE ARE CERTAIN ASPECTS OF THE PROCUREMENT WHICH REQUIRE FURTHER COMMENT. WHILE THE DRAFTING OF SPECIFICATIONS TO MEET THE NEEDS OF THE GOVERNMENT IS PRIMARILY A PROCUREMENT ACTIVITY RESPONSIBILITY.

B-176062(2), SEP 1, 1972

PROCUREMENT PRACTICES - SPECIFICATIONS - SUGGESTED MODIFICATIONS LETTER REGARDING THE DECISION OF TODAY DENYING THE PROTEST OF ROSCO MANUFACTURING COMPANY AGAINST THE REJECTION OF THEIR BID SUBMITTED UNDER AN IFB ISSUED BY THE BUREAU OF INDIAN AFFAIRS. WHILE THE DRAFTING OF SPECIFICATIONS TO MEET THE NEEDS OF THE GOVERNMENT IS PRIMARILY A PROCUREMENT ACTIVITY RESPONSIBILITY, IT IS AXIOMATIC THAT THE SPECIFICATIONS SO DRAFTED MUST REFLECT THE GOVERNMENT'S ACTUAL ESSENTIAL NEEDS. IT IS SUGGESTED THAT, BEFORE ANY FUTURE PROCUREMENTS FOR BITUMINOUS DISTRIBUTORS ARE LET, THE SPECIFICATIONS BE REVIEWED AND ACCEPTABLE ALTERNATES DESIGNATED.

TO MR. SECRETARY:

ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO ROSCO MANUFACTURING COMPANY DENYING THE PROTEST AGAINST THE REJECTION OF THE BID SUBMITTED UNDER INVITATION FOR BIDS A00-3270, ISSUED BY THE BUREAU OF INDIAN AFFAIRS (BIA). THE PROTEST WAS THE SUBJECT OF A REPORT DATED JULY 27, 1972, FROM THE DIRECTOR OF SURVEY AND REVIEW.

ALTHOUGH THE PROTEST IS DENIED, WE BELIEVE THAT THERE ARE CERTAIN ASPECTS OF THE PROCUREMENT WHICH REQUIRE FURTHER COMMENT. WHILE THE DRAFTING OF SPECIFICATIONS TO MEET THE NEEDS OF THE GOVERNMENT IS PRIMARILY A PROCUREMENT ACTIVITY RESPONSIBILITY, IT IS AXIOMATIC THAT THE SPECIFICATIONS SO DRAFTED MUST REFLECT THE GOVERNMENT'S ACTUAL ESSENTIAL NEEDS. IN THIS INSTANCE, ROSCO NOT ONLY TOOK EXCEPTION TO THE SPECIFICATION REQUIREMENTS MENTIONED IN THE ENCLOSED LETTER, BUT OBJECTED TO SPECIFICATIONS DEALING WITH DISHED HEADS, 2-INCH BLOCK RIB SPACERS, SPRAYBAR TURNUP, 18-INCH DEEP SIDESKIRTING, AND DISCHARGE STRAINER. ASSUME THAT THE LATTER EXCEPTIONS WERE CONSIDERED MINOR DEVIATIONS, SINCE ROSCO WAS NOT DECLARED TO BE NONRESPONSIVE WITH RESPECT TO THESE REQUIREMENTS. IN VIEW THEREOF AND IN ORDER THAT ALL BIDDERS MAY BE FULLY INFORMED AS TO THE GOVERNMENT'S REQUIREMENTS, WE RECOMMEND THAT FUTURE EDITIONS OF THE SPECIFICATIONS INDICATE WHICH EXCEPTIONS THERETO ARE ACCEPTABLE ALTERNATES.

IN THE SAME VEIN, WE ARE NOT CONVINCED THAT THE FENDER REQUIREMENT IN THE SPECIFICATIONS REPRESENTS THE SOLE MEANS OF SATISFYING AN ACTUAL NEED OF THE GOVERNMENT. THE PROCUREMENT ACTIVITY PREMISED THE REQUIREMENT ON DEPARTMENT OF LABOR REGULATION 1926.601(B)(13)(I) (37 FED. REG. 3517 (1972)) WHICH PROVIDES, IN GENERAL, THAT ALL RUBBER TIRED MOTOR VEHICLE EQUIPMENT BE EQUIPPED WITH FENDERS. SUBSECTION (II) OF THE SAME REGULATION PROVIDES, HOWEVER, THAT MUD FLAPS MAY BE USED IN LIEU OF FENDERS WHENEVER FENDERS ARE NOT A DESIGN FEATURE OF THE MOTOR VEHICLE EQUIPMENT. THIS SUBSECTION WAS ADDED TO THE REGULATION IN RECOGNITION OF THE FACT THAT NOT ALL MOTOR VEHICLE EQUIPMENT WAS DESIGNED FOR FENDERS WHICH WERE REQUIRED IN ORDER TO PREVENT OBJECTS FROM BEING PROPELLED FROM UNPROTECTED WHEELS. ID. AT PAGE 3513. GIVEN THE PURPOSE OF THE REGULATION AND THE ACCEPTANCE OF BOTH FENDERS OR MUD FLAPS TO ACCOMPLISH THAT PURPOSE, THE CRITICALITY OF A REQUIREMENT FOR FENDERS ONLY IS QUESTIONABLE. WE SUGGEST, THEREFORE, THAT BEFORE ANY FUTURE PROCUREMENTS FOR BITUMINOUS DISTRIBUTORS ARE LET TO COMPETITION THE EXCLUSIVE REQUIREMENT FOR FENDERS AS A PART OF THE SPECIFICATIONS BE REVIEWED TO ASCERTAIN WHETHER IT IS NECESSARY TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT.