B-217051, MAR 1, 1985, 85-1 CPD 258

B-217051: Mar 1, 1985

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BIDS - INVITATION FOR BIDS - SPECIFICATIONS - RESTRICTED - BURDEN OF PROVING UNDUE RESTRICTION DIGEST: A SPECIFICATION FOR COAL IS NOT UNDULY RESTRICTIVE WHERE THE AGENCY ESTABLISHES PRIMA FACIE SUPPORT FOR THE SPECIFICATION THROUGH HISTORICAL AND TEST DATA AND THE PROTESTER FAILS TO SHOW THAT THE SPECIFICATION IS UNREASONABLE. WHICH IS PROCURING THE COAL ON BEHALF OF THE AIR FORCE. 000 BTUS IS REQUIRED TO ASSURE THAT MAXIMUM. 000 BTUS IS EXCESSIVE AND THAT 13. 000 BTUS IS THE STANDARD COMMERCIAL PRACTICE IN THE COAL INDUSTRY. PIERCE ARGUES THAT BTU VALUE AND ASH CONTENT ARE NOT HEAVILY DEPENDENT ON EACH OTHER. THAT COAL WITH SLIGHTLY LOW BTU VALUE WILL NOT ALWAYS HAVE HIGH ASH CONTENT.

B-217051, MAR 1, 1985, 85-1 CPD 258

BIDS - INVITATION FOR BIDS - SPECIFICATIONS - RESTRICTED - BURDEN OF PROVING UNDUE RESTRICTION DIGEST: A SPECIFICATION FOR COAL IS NOT UNDULY RESTRICTIVE WHERE THE AGENCY ESTABLISHES PRIMA FACIE SUPPORT FOR THE SPECIFICATION THROUGH HISTORICAL AND TEST DATA AND THE PROTESTER FAILS TO SHOW THAT THE SPECIFICATION IS UNREASONABLE.

PIERCE COAL SALES INTERNATIONAL:

PIERCE COAL SALES INTERNATIONAL (PIERCE) PROTESTS THAT THE SPECIFICATION FOR ITEM 0011 IN INVITATION FOR BIDS (IFB) NO. DLA600-84 B-0049, ISSUED BY THE DEFENSE FUEL SUPPLY CENTER (DFSC), UNNECESSARILY RESTRICTS COMPETITION IN THAT THE SPECIFICATION EXCEEDS THE GOVERNMENT'S MINIMUM NEEDS. THE IFB SOUGHT 14 LINE ITEM BIDS FOR BITUMINOUS COAL WITH VARIOUS SPECIFICATIONS AND DELIVERY DESTINATIONS. ITEM 0011 REQUIRED 51,000 NET TONS OF BITUMINOUS COAL WITH A MAXIMUM ASH CONTENT OF 7 PERCENT AND A MINIMUM BTU (BRITISH THERMAL UNIT) VALUE OF 14,000, FOR DELIVERY TO WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

WE DENY THE PROTEST.

THE DISPUTE CONCERNS WHETHER THE 14,000 BTU REQUIREMENT EXCEEDS THE GOVERNMENT'S NEEDS. DFSC, WHICH IS PROCURING THE COAL ON BEHALF OF THE AIR FORCE, STATES THAT THE AIR FORCE REQUIRES A MAXIMUM ASH CONTENT OF 7 PERCENT FOR THE EQUIPMENT AT WRIGHT-PATTERSON, AND THAT 14,000 BTUS IS REQUIRED TO ASSURE THAT MAXIMUM. THE AIR FORCE DETERMINED THROUGH TESTING 45 SAMPLES OF COAL, AND CONDUCTING A LINEAR REGRESSION STUDY OF THOSE RESULTS, THAT ASH CONTENT INCREASES AS BTU VALUE DECREASES. THE DATA REVEALED THAT AT 14,000 BTUS, ASH CONTENT BELOW 7 PERCENT COULD BE EXPECTED. THE AIR FORCE MAINTAINS, THEREFORE, THAT ANY SIGNIFICANT DECREASE IN BTU VALUE WOULD RESULT IN ASH CONTENT AT UNACCEPTABLE LEVELS.

PIERCE ALLEGES THAT A MINIMUM OF 14,000 BTUS IS EXCESSIVE AND THAT 13,000 BTUS IS THE STANDARD COMMERCIAL PRACTICE IN THE COAL INDUSTRY. FURTHERMORE, PIERCE ARGUES THAT BTU VALUE AND ASH CONTENT ARE NOT HEAVILY DEPENDENT ON EACH OTHER, AND THAT COAL WITH SLIGHTLY LOW BTU VALUE WILL NOT ALWAYS HAVE HIGH ASH CONTENT; THE PROTESTER HAS SUBMITTED A STATEMENT TO THAT EFFECT PREPARED BY A MECHANICAL ENGINEER. PIERCE COMPLAINS THAT THE SPECIFIED BTU VALUE PRECLUDES IT FROM BIDDING.

A USING ACTIVITY HAS PRIMARY RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS AND THE BEST METHOD OF ACCOMMODATING THEM, SINCE THE AGENCY IS MOST FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES OR SERVICES HAVE BEEN USED IN THE PAST AND HOW THEY ARE TO BE USED IN THE FUTURE. SUNBELT INDUSTRIES, INC., B-214414.2, JAN. 29, 1985, 85-1 CPD PARA. ---. THEREFORE, IN CONSIDERING A CHALLENGE TO A SPECIFICATION AS UNDULY RESTRICTIVE, WE WILL NOT DISTURB THE AGENCY'S DETERMINATION THAT THE SPECIFICATION IS NECESSARY TO MEET ITS MINIMUM NEEDS UNLESS IT IS SHOWN TO BE UNREASONABLE. TOM SHAW, INC., B-214191, AUG. 27, 1984, 84-2 CPD PARA. 227.

DFSC CLEARLY HAS ESTABLISHED SUPPORT FOR THE SPECIFICATION. IN ADDITION TO THE TEST DATA REFERRED TO ABOVE, THE AIR FORCE ENGINEERING AND SERVICES COMMAND TESTED LOWER BTU VALUE COAL AT WRIGHT-PATTERSON 4 YEARS AGO AND EXPERIENCED THE FOLLOWING PROBLEMS: REDUCED PERFORMANCE, INCREASED ASH HANDLING AND DISPOSAL COSTS, INCREASED MAINTENANCE COSTS, AND INCREASED TRANSPORTATION COSTS. THE RECORD THUS INCLUDES SUFFICIENT SUPPORT FOR THE SPECIFICATION SO AS TO REQUIRE THE PROTESTER TO DEMONSTRATE ITS UNREASONABLENESS.

PIERCE ARGUES THAT THE BTU VALUE OF COAL IS MORE DEPENDENT UPON HYDROGEN CONTENT THAN ASH CONTENT AND, THEREFORE, DFSC SHOULD HAVE WRITTEN THE SPECIFICATION IN TERMS OF HYDROGEN CONTENT. THE AIR FORCE, HOWEVER, HAS DEMONSTRATED A LINEAR RELATIONSHIP BETWEEN BTU VALUE AND ASH CONTENT-- IN FACT, THE STATEMENT OF THE PROTESTER'S EXPERT ADMITS THAT SUCH A RELATIONSHIP EXISTS. WE THUS ARE FACED WITH, AT MOST, A TECHNICAL DISPUTE. SINCE PIERCE MERELY DISAGREES WITH THE AIR FORCE AND HAS NOT SHOWN THAT THE AGENCY'S TECHNICAL CONCLUSIONS ARE UNREASONABLE, THIS MATTER PROVIDES NO LEGAL BASIS FOR OUR OFFICE TO QUESTION THE AGENCY'S DETERMINATION OF ITS NEEDS. ALL-PRO TURF, INC., B-214339, JULY 16, 1984, 84-2 CPD PARA. 49. FURTHERMORE, WE NOTE THAT EVEN THE SAMPLES OF COAL WHOSE CHARACTERISTICS ARE CITED BY THE PROTESTER IN SUPPORT OF ITS POSITION THAT COAL WITH SLIGHTLY LOW BTU VALUE WILL NOT ALWAYS HAVE HIGH ASH CONTENT REVEAL AN INCREASE IN ASH CONTENT WITH A DECREASE IN BTU VALUE.

PIERCE HAS OFFERED NO SUPPORTING INFORMATION OR DOCUMENTATION FOR THE CONTENTION THAT 14,000 BTU EXCEEDS COMMERCIAL PRACTICE. A BARE ALLEGATION BY THE PROTESTER, UNSUPPORTED BY EVIDENCE, IS INSUFFICIENT TO SATISFY ITS BURDEN OF PROOF. SYSTEMS ENGINEERING ASSOCIATES CORP., B-208439, JAN. 31, 1983, 83-1 CPD PARA. 97.

SINCE PIERCE HAS NOT SHOWN THE AIR FORCE'S DECISION, "BASED ON HISTORICAL AND TEST DATA, TO INCLUDE THE SPECIFICATION IN ISSUE TO BE UNREASONABLE, THE PROTEST IS DENIED.