B-179704, APR 12, 1974

B-179704: Apr 12, 1974

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BIDS WERE PROPERLY REJECTED FOR FAILURE TO MEET SOLICITATION REQUIREMENT FOR DELIVERY OF MILK WITHIN 72 HOURS OF PASTEURIZATION. DAFA03-74-B-0004 AND DAFA03-74-B-0011 WERE ISSUED BY THE PROCUREMENT DIVISION. ITS MILK IS PASTEURIZED AT AN "ULTRA-HIGH" TEMPERATURE OF 280 DEGS F. WHICH IS CONSIDERABLY ABOVE NORMAL PASTEURIZATION TEMPERATURE. THE MILK IS THEN "INCUBATED" FOR A PERIOD OF 96 HOURS FOR "BACTERIOLOGICAL COUNT AND CHECKING. IT IS PRODUCING A MILK OF HIGHER QUALITY THAN MILK WHICH IS PASTEURIZED BY THE ORDINARY METHOD AND WHICH MEETS THE REQUIREMENT OF SECTION 3.4. TOLD HIM THAT THE MILK PRODUCT SUPPLIED BY STERILE FOOD WOULD MEET THE QUALITY REQUIREMENT OF FEDERAL SPECIFICATION C-M-1678 HE FELT THAT: "***THE REQUIREMENTS OF PARAGRAPH 3.4 AGE OF PRODUCTS ARE VALID AND SHOULD NOT BE WAIVED AS REQUESTED BY STERILE FOOD PRODUCTS.

B-179704, APR 12, 1974

BIDS WERE PROPERLY REJECTED FOR FAILURE TO MEET SOLICITATION REQUIREMENT FOR DELIVERY OF MILK WITHIN 72 HOURS OF PASTEURIZATION. HOWEVER, PROCURING ACTIVITY SHOULD GIVE CONSIDERATION TO CHANGING SUCH REQUIREMENT IN VIEW OF EVIDENCE FROM GOVERNMENT LABORATORY THAT IT MAY BE UNDULY RESTRICTIVE.

TO STERILE FOOD PRODUCTS, INC.:

ON AUGUST 8, 1973, INVITATION FOR BIDS (IFB) NOS. DAFA03-74-B-0004 AND DAFA03-74-B-0011 WERE ISSUED BY THE PROCUREMENT DIVISION, FORT RICHARDSON, ALASKA, FOR MILK AND DAIRY PRODUCTS TO BE SUPPLIED FOR A 6 MONTH PERIOD TO UNITED STATES ARMY ALASKA (USARAL) AND ALASKAN AIR COMMAND (AAC) INSTALLATIONS, SOUTH AND NORTH OF THE ALASKA RANGE, RESPECTIVELY. SECTION F-1(A) OF THE IFB STATED THAT THE MILK SUPPLIED SHOULD COMPLY WITH FEDERAL SPECIFICATION NUMBER C-M-1678, FEBRUARY 29, 1972.

IN A LETTER DATED SEPTEMBER 6, 1973, TO THE PROCUREMENT OFFICE, FORT RICHARDSON, ALASKA, COUNSEL FOR STERILE FOOD PRODUCTS, INCORPORATED (STERILE FOOD), REQUESTED AN INTERPRETATION OF OR AN EXCEPTION TO FEDERAL SPECIFICATION C-M-1678, SPECIFICALLY SECTION 3.4, WHICH, AS AMENDED, READS:

"3.4 AGE OF PRODUCT. THE FINISHED PRODUCT, EXCEPT TYPE IV, SHALL BE DELIVERED WITHIN 72 HOURS AFTER DATE OF PASTEURIZATION."

STERILE FOOD REQUESTED A WAIVER OF THIS REQUIREMENT BECAUSE IT WOULD BE UNABLE TO MEET THE 72-HOUR TIME LIMIT DUE TO ITS METHOD OF PASTEURIZATION. ACCORDING TO OFFICIALS FROM STERILE FOOD, ITS MILK IS PASTEURIZED AT AN "ULTRA-HIGH" TEMPERATURE OF 280 DEGS F., WHICH IS CONSIDERABLY ABOVE NORMAL PASTEURIZATION TEMPERATURE. THE MILK IS THEN "INCUBATED" FOR A PERIOD OF 96 HOURS FOR "BACTERIOLOGICAL COUNT AND CHECKING. ACCORDING TO STERILE FOOD, THIS METHOD OF PASTEURIZATION, AND THE PACKAGING OF THE MILK IN ASEPTICALLY LINED MILK CARTONS, RESULTS IN MILK AND MILK PRODUCTS HAVING A MUCH LONGER SHELF LIFE, BOTH REFRIGERATED AND UNREFRIGERATED, THAN MILK PASTEURIZED BY THE ORDINARY METHOD. STERILE FOOD GUARANTEES A SHELF LIFE OF 12 WEEKS BEFORE THE MILK SPOILS, A CONSIDERABLY LONGER PERIOD OF TIME THAN MILK PASTEURIZED BY THE ORDINARY METHOD. THE PROTESTER CLAIMS THAT SINCE ITS MILK HAS A ZERO BACTERIAL COUNT AFTER PASTEURIZATION, UNLIKE MILK PASTEURIZED BY THE ORDINARY METHOD, IT IS PRODUCING A MILK OF HIGHER QUALITY THAN MILK WHICH IS PASTEURIZED BY THE ORDINARY METHOD AND WHICH MEETS THE REQUIREMENT OF SECTION 3.4. STERILE FOOD WOULD SHIP THE MILK FROM WASHINGTON TO ALASKA BY BARGE, WHICH TAKES APPROXIMATELY 5 OR 6 DAYS. THEREFORE, IT WOULD NEED APPROXIMATELY 9 DAYS FROM THE TIME OF PASTEURIZATION TO GET THE MILK TO THE ARMY INSTALLATIONS IN ALASKA.

IN A MEMORANDUM DATED SEPTEMBER 12, 1973, TO THE CHIEF, PROCUREMENT DIVISION, COLONEL WILLIAM W. ROSSER, USARAL VETERINARIAN, STATED THAT EVEN THOUGH MR. GLICKSTEIN OF THE UNITED STATES ARMY NATICK LABORATORIES, NATICK, MASSACHUSETTS, TOLD HIM THAT THE MILK PRODUCT SUPPLIED BY STERILE FOOD WOULD MEET THE QUALITY REQUIREMENT OF FEDERAL SPECIFICATION C-M-1678 HE FELT THAT:

"***THE REQUIREMENTS OF PARAGRAPH 3.4 AGE OF PRODUCTS ARE VALID AND SHOULD NOT BE WAIVED AS REQUESTED BY STERILE FOOD PRODUCTS, INC. WHILE IT IS RECOGNIZED THAT THE METHOD OF PASTEURIZATION USED BY STERILE FOOD PRODUCTS APPARENTLY RESULTS IN AN EXTENDED SHELF LIFE, IN MY OPINION, THIS IN ITSELF IS NOT SUFFICIENT REASON TO WAIVE THIS REQUIREMENT."

IN A LETTER DATED SEPTEMBER 13, 1973, THE CONTRACTING OFFICER ADVISED STERILE FOOD THAT ITS REQUEST FOR AN EXCEPTION TO FEDERAL SPECIFICATION C- M-1678 WAS DENIED. SUBSEQUENTLY, ALL BIDS WERE REJECTED AND CONTRACTS NEGOTIATED FOR A 90-DAY PERIOD PENDING RESOLUTION OF THE PROTEST.

ON SEPTEMBER 15, 1973, COUNSEL FOR STERILE FOOD FILED A PROTEST PRIOR TO AWARD WITH THIS OFFICE, CLAIMING THAT THE REQUIREMENT FOR DELIVERY OF MILK WITHIN 72 HOURS OF PASTEURIZATION EXCLUDES MILK PRODUCED BY STERILE FOOD AND IS UNDULY RESTRICTIVE OF COMPETITION.

IT IS THE ADMINISTRATIVE POSITION THAT THE USE OF THE SUBJECT SPECIFICATION WAS MANDATORY UNDER ARMED SERVICES PROCUREMENT REGULATION 1- 1202, AND, THEREFORE, THE CONTRACTING OFFICER PROPERLY DECLINED TO WAIVE ITS APPLICABILITY WITH RESPECT TO STERILE FOOD. FURTHERMORE, IN A MEMORANDUM DATED NOVEMBER 2, 1973, TO THE ASSISTANT SECRETARY OF DEFENSE (I&L), THE PROCUREMENT LAW DIVISION OF THE OFFICE OF THE JUDGE ADVOCATE GENERAL REPORTS THAT THE MATTER IS MOOT WITH RESPECT TO FURTHER PROCUREMENTS AS THE SPECIFICATION HAS BEEN AMENDED TO ALLOW PRODUCTS SUCH AS THAT OFFERED BY STERILE FOOD.

WE AGREE WITH THE ADMINISTRATIVE POSITION THAT UNDER THE CITED REGULATION THE CONTRACTING OFFICER PROPERLY DECLINED TO WAIVE THE SPECIFICATION; THEREFORE, THE AWARDS SHOULD NOT BE DISTURBED.

HOWEVER, WE ARE INFORMED THAT UPON RESOLICITATION OF THE REQUIREMENTS IN JANUARY 1974 THE SAME SPECIFICATION WAS USED AND THE BID OF STERILE FOOD AGAIN WAS DECLARED NONRESPONSIVE. WE UNDERSTAND THAT CONTRACTS WERE AWARDED ON FEBRUARY 1, 1974, TO MATANUSKA MAID AND MEADOWMOOR. THEREFORE, IT DOES NOT APPEAR THAT THE MATTER IS MOOT.

IT CONSISTENTLY HAS BEEN HELD BY THIS OFFICE THAT THE DRAFTING OF SPECIFICATIONS TO MEET THE GOVERNMENT'S MINIMUM NEEDS, AS WELL AS THE DETERMINATION OF WHETHER ITEMS OFFERED MEET THE SPECIFICATIONS, IS PROPERLY THE FUNCTION OF THE PROCURING AGENCY, AND OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE PROCURING AGENCY UNLESS SUCH DETERMINATION IS ARBITRARY OR CLEARLY ERRONEOUS. SEE 52 COMP. GEN. 393, 399 (1972); 49 COMP. GEN. 195 (1969). HOWEVER, WE HAVE HELD THAT SPECIFICATION MAY BE FOUND RESTRICTIVE OF COMPETITION EVEN THOUGH IT HAS BEEN ADOPTED AS A STANDARD MILITARY OR FEDERAL SPECIFICATION. 47 COMP. GEN. 12 (1967); B-177353(1), APRIL 4, 1973.

IN THIS CONNECTION, THERE IS EVIDENCE THAT THE MILK SUPPLIED BY STERILE FOOD, BECAUSE OF THE HIGH TEMPERATURE PASTEURIZATION AND THE ASEPTICALLY LINED MILK CARTONS, MEETS OR EXCEEDS THE QUALITY REQUIREMENTS WHICH FEDERAL SPECIFICATION C-M-1678 IS DESIGNED TO INSURE AND HAS A LONGER THAN CUSTOMARY SHELF LIFE.

IN THE CIRCUMSTANCES, THE 72-HOUR DELIVERY REQUIREMENT MAY REPRESENT AN UNDUE RESTRICTION ON COMPETITION. WE ARE THEREFORE RECOMMENDING THAT THE PROCURING ACTIVITY GIVE CONSIDERATION TO AMENDING THE SPECIFICATION PRIOR TO ANY FURTHER PROCUREMENTS SO AS TO OBTAIN MAXIMUM COMPETITION CONSISTENT WITH THE GOVERNMENT'S NEEDS.