B-176708, FEB 2, 1973

B-176708: Feb 2, 1973

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ADMINISTRATIVE AGENCIES HAVE THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AS WELL AS THE RESPONSIBILITY OF DETERMINING WHETHER THE PRODUCT OFFERED MEETS THESE SPECIFICATIONS. 44 COMP. IF A SPECIFICATION LENDS ITSELF TO OPEN COMPETITION AS REQUIRED BY THE APPLICABLE STATUTES AND IF IT IS SHOWN THAT ANY RESTRICTIVE PROVISIONS THEREIN ARE NO GREATER THAN NECESSARY TO PROTECT A LEGITIMATE INTEREST OF THE GOVERNMENT. GAO WILL NOT INTERVENE. TO RAMAK INDUSTRIES INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. IS ESTIMATED BY THE GENERAL SERVICES ADMINISTRATION (GSA) THAT TWO AND ONE -HALF YEARS OF SUCCESSFUL PERFORMANCE ARE NECESSARY TO MEET THE REFERENCED REQUIREMENTS.

B-176708, FEB 2, 1973

BID PROTEST - SPECIFICATIONS - ALLEGED RESTRICTIVE PROVISIONS DECISION DENYING THE PROTEST OF RAMAK INDUSTRIES, INC., AGAINST THE AWARD OF A CONTRACT UNDER AN IFB ISSUED BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D. C., FOR LEAD ACID INDUSTRIAL BATTERIES. ADMINISTRATIVE AGENCIES HAVE THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AS WELL AS THE RESPONSIBILITY OF DETERMINING WHETHER THE PRODUCT OFFERED MEETS THESE SPECIFICATIONS. 44 COMP. GEN. 302 (1964). THEREFORE, IF A SPECIFICATION LENDS ITSELF TO OPEN COMPETITION AS REQUIRED BY THE APPLICABLE STATUTES AND IF IT IS SHOWN THAT ANY RESTRICTIVE PROVISIONS THEREIN ARE NO GREATER THAN NECESSARY TO PROTECT A LEGITIMATE INTEREST OF THE GOVERNMENT, GAO WILL NOT INTERVENE. B-151738, AUGUST 19, 1963.

TO RAMAK INDUSTRIES INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. N00600-72-B-0284, ISSUED ON MAY 12, 1972, BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D. C.

THE INSTANT SOLICITATION REQUESTED BIDS FOR FURNISHING 294 LEAD-ACID INDUSTRIAL BATTERIES FOR SHIPMENT TO VARIOUS MILITARY FACILITIES THROUGHOUT THE UNITED STATES AND OVERSEAS. SECTION F OF THE INVITATION REQUIRED THAT THE BATTERIES BE FURNISHED IN ACCORDANCE WITH FEDERAL SPECIFICATION NO. W-B-00133B (GSA-FSS), DATED AUGUST 7, 1970. THE REFERENCED SPECIFICATION REQUIRED, AMONG OTHER THINGS, A LIFE CYCLE TEST WHICH OBLIGATES THE CONTRACTOR AT PARAGRAPH 3.16.1 THEREOF, TO TEST THE CELL ASSEMBLIES BY COMPLETING 1500 CYCLES OF CHARGING AND DISCHARGING. IS ESTIMATED BY THE GENERAL SERVICES ADMINISTRATION (GSA) THAT TWO AND ONE -HALF YEARS OF SUCCESSFUL PERFORMANCE ARE NECESSARY TO MEET THE REFERENCED REQUIREMENTS.

WHEN BIDS WERE OPENED ON JUNE 26, 1972, YOUR FIRM HAD SUBMITTED THE LOWEST OF THE FOUR BIDS RECEIVED FOR LOTS V, VI AND IX. IT IS REPORTED THAT SINCE YOUR COMPANY, A SMALL BUSINESS, WAS NEW IN THE FIELD OF BATTERY MANUFACTURE, IT WAS DOUBTFUL YOU COULD COMPLY WITH THE LIFE CYCLE TESTING REQUIREMENTS OF THE SPECIFICATION. CONSEQUENTLY, IN COMPLIANCE WITH PARAGRAPH 1-705.4(C) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, BIRMINGHAM, ALABAMA, WAS REQUESTED TO PERFORM A PREAWARD SURVEY OF YOUR COMPANY'S ABILITY TO MEET THE CONTRACT REQUIREMENTS. ON JULY 25, 1972, THE PREAWARD SURVEY REPORT MADE A "NO AWARD" RECOMMENDATION, BASED PRINCIPALLY UPON RAMAK'S INABILITY TO COMPLY WITH THE LIFE CYCLE TESTING REQUIREMENTS IN TIME TO MEET THE REQUIRED DELIVERY SCHEDULE. THEREFORE, ON JULY 26, 1972, RAMAK WAS DETERMINED TO BE A NONRESPONSIBLE BIDDER AND THE MATTER WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR A CERTIFICATE OF COMPETENCY (COC) PROCEEDING IN ACCORDANCE WITH ASPR 1-705.4. HOWEVER, ON AUGUST 1, 1972, SBA ADVISED THE PROCURING ACTIVITY THAT YOUR FIRM HAD DECLINED TO APPLY FOR A COC.

YOU DO NOT DISAGREE WITH THE CONCLUSION THAT YOUR COMPANY CANNOT MEET THE LIFE CYCLE TEST REQUIREMENT. HOWEVER, YOU CONTEND THAT THE TEST REQUIREMENT IS DISCRIMINATORY TO NEW FIRMS, AND THAT IT ACCOMPLISHES NOTHING FOR THE GOVERNMENT. IN ADDITION YOU POINT OUT THAT YOUR PRODUCT CARRIES A 5-YEAR WARRANTY, WHICH EXCEEDS THE TEST REQUIREMENT. RESPONSE TO THESE CONTENTIONS THE DEPARTMENT OF THE NAVY HAS REPORTED IN PERTINENT PART:

"3. THIS LARGE, HEAVY INDUSTRIAL BATTERY BECOMES A COMPONENT OF AN INDUSTRIAL TRUCK, SUCH AS A FORK LIFT TRUCK OR A WAREHOUSE TRACTOR TRUCK. IT IS DESIGNED FOR CYCLE USE, THAT IS, TYPICALLY IT COMMENCES A WORKSHIFT IN FULLY CHARGED CONDITION, POWERS A TRUCK THROUGHOUT THE SHIFT WITHOUT ANY RECHARGING, AND IS PUT ON CHARGE FOR APPROXIMATELY EIGHT HOURS FOLLOWING THE SHIFT TO RESTORE IT TO ITS RATED CAPACITY, FULLY CHARGED. THUS THE TERM CYCLE MEANS, IN GENERAL, THAT THE BATTERY HAS GONE THROUGH A CYCLE OF DISCHARGING AND RECHARGING EACH WORKING DAY. THE USEFUL LIFE OF THE BATTERY IS ACTUALLY THE NUMBER OF SUCH CYCLES WHICH THE BATTERY CAN WITHSTAND UNTIL ITS OUTPUT, STARTING FROM A FULLY CHARGED CONDITION, NO LONGER EQUALS 80 PERCENT OR MORE OF ITS RATED CAPACITY IN AMPERE-HOURS (A- H). USEFUL LIFE IS NOT DIRECTLY RELATED TO CALENDAR LIFE, BUT TO CYCLE LIFE.

"6. LIFE CYCLE TESTING INSURES THAT A MANUFACTURER'S CELL DESIGN MEETS THE SPECIFIED PERFORMANCE WHEREAS THE WARRANTY ONLY INSURES REPLACEMENT OF DEFECTIVE EQUIPMENT. MANY OF THESE BATTERIES ARE FOR USE ABOARD SHIPS, THUS THE WARRANTY WOULD BE OF LITTLE USE IN CASE OF BATTERY FAILURE AT SEA SUCH AS IN AN UNDERWAY REPLENISHMENT IN THE MEDITERRANEAN OR IN THE TONKIN GULF WHERE THE FORKLIFT TRUCKS ARE REQUIRED TO PERFORM MANY HOURS OF UNREMITTING WORK. THESE BATTERIES ARE REQUIRED TO PROVIDE POWER FOR MOBILE EQUIPMENT, AND ALTHOUGH A WARRANTY INSURES REPLACEMENT OF DEFECTIVE BATTERIES, IT IS MORE IMPORTANT IN INSURING AGAINST TRUCK DOWN TIME TO PROCURE BATTERIES WHICH THROUGH LIFE CYCLE TESTING HAVE PROVEN TO BE LESS LIKELY TO FAIL. IT IS THE PROFESSIONAL ENGINEERING JUDGMENT OF THIS OFFICE THAT LIFE CYCLE TESTING IS THE GAGE OF RELIABILITY AND THE MEANS OF ASSURING THAT THE NAVY WILL OBTAIN THE REQUIRED BATTERY CELL LIFE IN THE BATTERIES BEING PROCURED."

THIS OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE ADMINISTRATIVE AGENCIES HAVE THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE RESPONSIBILITY OF DETERMINING WHETHER THE PRODUCT OFFERED MEETS THESE SPECIFICATIONS. COMP. GEN. 302 (1964); 38 COMP. GEN. 190 (1958). WHEN A SPECIFICATION LENDS ITSELF TO OPEN COMPETITION AS REQUIRED BY APPLICABLE STATUTES, AND IT IS SHOWN, AS HERE, THAT ANY RESTRICTIVE PROVISIONS THEREIN ARE NO GREATER THAN NECESSARY TO PROTECT A LEGITIMATE INTEREST OF THE GOVERNMENT, OUR OFFICE WILL NOT INTERVENE. B-151738, AUGUST 19, 1963; B-157881, DECEMBER 29, 1965.

IN VIEW OF THE PRESENT RECORD WE FIND NO BASIS FOR CONCLUDING THAT THE RESTRICTIVE CYCLE TEST OF THE INSTANT SPECIFICATION WAS NOT TO PROTECT A LEGITIMATE INTEREST OF THE GOVERNMENT, OR THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS NOT BASED ON SUBSTANTIAL EVIDENCE.

BY TELEGRAM DATED JANUARY 10, 1973, YOU CONTEND THAT SINCE SPECIFICATION NO. W-B-00133B WAS PUBLISHED ON AUGUST 7, 1970, NO FIRM COULD COMPLY WITH THE LIFE CYCLE TESTING REQUIREMENTS. THE LAST SENTENCE OF PARAGRAPH 4.1 OF THE REFERENCED SPECIFICATION PROVIDES:

"*** WHERE IT IS IMPRACTICABLE TO COMPLETE ANY TEST ON BATTERIES TAKEN FROM CURRENT PRODUCTION PRIOR TO DELIVERY TO THE GOVERNMENT, SUCH AS PERFORMANCE TEST 4.5.4 OR 4.5.5, THE SUPPLIER SHALL MAKE AVAILABLE HIS RECORDS OF TESTS ON SUCH PRODUCTION PRECEDING THE LOT ***, AS NECESSARY TO ESTABLISH PROOF THAT BATTERIES OF LIKE DESIGN MANUFACTURED UNDER SUBSTANTIALLY IDENTICAL OR ESSENTIALLY EQUIVALENT CONDITIONS, HAVE MET THE REQUIREMENTS OF THIS SPECIFICATION."

SINCE THE FOREGOING PERMITS A SUPPLIER TO USE HIS RECORDS OF TESTS ON PRODUCTION PRECEDING THE MANUFACTURE OF THE BATTERIES TO BE FURNISHED WHEN IT IS IMPRACTICABLE TO CARRY OUT THE SPECIFIED TESTING PRIOR TO DELIVERY, WE SEE NO VALID BASIS FOR YOUR CONTENTION THAT NO SUPPLIER WOULD BE ABLE TO COMPLY WITH THE LIFE CYCLE TESTING REQUIREMENTS.

IN A LETTER DATED DECEMBER 29, 1972, YOU FURNISHED A COPY OF A LETTER DATED DECEMBER 19, 1972, FROM GSA WHEREIN IT WAS INDICATED THAT ONE OF ITS PROCUREMENTS WAS BEING CANCELLED BECAUSE OF CERTAIN INADEQUACIES IN W-B- 00133B. THIS FACTOR HAS NO BEARING ON THE INSTANT PROTEST SINCE WE HAVE BEEN INFORMALLY ADVISED BY GSA THAT SUCH INADEQUACIES HAD NO REFERENCE TO THE LIFE CYCLE TEST REQUIREMENTS.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.