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B-219528, OCT 24, 1985, 85-2 CPD 457

B-219528 Oct 24, 1985
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PROTEST THAT SOLICITATION REQUIREMENT FOR HIGH SILICON CONTENT PISTON FORGING IS OVERLY RESTRICTIVE OF COMPETITION IS DENIED WHERE AGENCY ESTABLISHES PRIMA FACIE SUPPORT FOR THE REASONABLENESS OF ITS SPECIFICATIONS AND PROTESTER FAILS TO SHOW THAT THE AGENCY'S DETERMINATION OF ITS MINIMUM NEEDS HAS NO REASONABLE BASIS. WHETHER ITEMS PROVIDED UNDER CONTRACT CONFORM TO SPECIFICATIONS IS A MATTER OF CONTRACT ADMINISTRATION. WHICH IS THE RESPONSIBILITY OF THE PROCURING AGENCY AND NOT THE GAO. IS OVERLY RESTRICTIVE OF COMPETITION. THE PROTEST IS DENIED. THE PROTESTER FURTHER COMPLAINS THAT THE SOLICITATION IS ESSENTIALLY A SOLE-SOURCE PROCUREMENT BECAUSE. ARMY CONTRACT AWARDS FOR THIS ITEM HAVE BEEN MADE TO THE SAME COMPANY.

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B-219528, OCT 24, 1985, 85-2 CPD 457

BIDS - INVITATION FOR BIDS - SPECIFICATIONS - RESTRICTIVE - BURDEN OF PROVING UNDUE RESTRICTION DIGEST: 1. PROTEST THAT SOLICITATION REQUIREMENT FOR HIGH SILICON CONTENT PISTON FORGING IS OVERLY RESTRICTIVE OF COMPETITION IS DENIED WHERE AGENCY ESTABLISHES PRIMA FACIE SUPPORT FOR THE REASONABLENESS OF ITS SPECIFICATIONS AND PROTESTER FAILS TO SHOW THAT THE AGENCY'S DETERMINATION OF ITS MINIMUM NEEDS HAS NO REASONABLE BASIS. CONTRACTS - PROTESTS - CONTRACT ADMINISTRATION - NOT FOR RESOLUTION BY GAO 2. WHETHER ITEMS PROVIDED UNDER CONTRACT CONFORM TO SPECIFICATIONS IS A MATTER OF CONTRACT ADMINISTRATION, WHICH IS THE RESPONSIBILITY OF THE PROCURING AGENCY AND NOT THE GAO.

ALLIED MATERIALS AND EQUIPMENT CO., INC.:

ALLIED MATERIALS AND EQUIPMENT CO., INC. (AME), PROTESTS THAT INVITATION FOR BIDS NO. DAAE07-85-B-J855, ISSUED BY THE UNITED STATES ARMY TANK- AUTOMOTIVE COMMAND (TACOM), WARREN, MICHIGAN, FOR CYLINDER SLEEVE AND PISTON ASSEMBLIES, IS OVERLY RESTRICTIVE OF COMPETITION. THE PROTEST IS DENIED.

AME OBJECTS TO THE SOLICITATION REQUIREMENT THAT THE PISTONS BE FORGED FROM AN ALUMINUM ALLOY WHICH HAS A SILICON CONTENT OF 19 TO 22 PERCENT. THE PROTESTER STATES THAT IT HAS BEEN INFORMED BY SEVERAL MAJOR UNITED STATES PRODUCERS OF ALUMINUM FORGINGS THAT THEY CANNOT FORGE AN ITEM HAVING SUCH A HIGH SILICON CONTENT. THE PROTESTER FURTHER COMPLAINS THAT THE SOLICITATION IS ESSENTIALLY A SOLE-SOURCE PROCUREMENT BECAUSE, SINCE 1978, ARMY CONTRACT AWARDS FOR THIS ITEM HAVE BEEN MADE TO THE SAME COMPANY.

THE ARMY STATES THAT THE USE OF A HIGH SILICON CONTENT ALUMINUM ALLOY IS NECESSARY TO CORRECT DEFICIENCIES IN THE PISTONS USED IN CERTAIN HIGH PERFORMANCE MULTIFUEL TRUCK ENGINES. MORE SPECIFICALLY, THE ARMY STATES THAT IT ADOPTED THE 19- TO 22-PERCENT SILICON REQUIREMENT AFTER TESTS SHOWED THAT, BECAUSE OF ITS RESISTANCE TO WEAR, HEAT AND COMBUSTION PRODUCTS, ITS USE RESULTED IN AN EXTENSION OF PISTON LIFE FROM 10,000 MILES TO 75,000 MILES. THE ARMY STATES FURTHER THAT EFFORTS TO FIND A LESS EXPENSIVE SUBSTITUTE HAVE BEEN UNSUCCESSFUL, AND THAT USE OF A PISTON MADE OF CHEAPER, MORE ACCESSIBLE ALLOYS WOULD NOT BE COST EFFECTIVE IN VIEW OF THE DECREASED DURABILITY AND SERVICE LIFE. THE AGENCY DOES NOT DISPUTE THE PROTESTER'S CONTENTION THAT THE PISTON DOES NOT APPEAR TO BE MANUFACTURED BY A UNITED STATES PRODUCER, OR THAT, SINCE 1978, THE ITEM HAS BEEN PROVIDED, UNDER CONTRACT OR SUBCONTRACT, BY THE SAME COMPANY. THE AGENCY STATES, HOWEVER, THAT THE ITEM IS MANUFACTURED BY EUROPEAN SOURCES AND NOTES THAT, SINCE 1981, COMPETITIVE SOLICITATIONS FOR THE PISTON ASSEMBLIES HAVE RESULTED IN THE RECEIPT OF THREE TO FIVE BIDS.

THE DETERMINATION OF THE GOVERNMENT'S MINIMUM NEEDS, THE METHOD OF ACCOMMODATING THOSE NEEDS, AND THE TECHNICAL JUDGMENTS UPON WHICH THOSE DETERMINATIONS ARE BASED ARE PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY. HERBLANE INDUSTRIES, INC., B-215910, FEB. 8, 1985, 85-1 CPD PARA. 165. THE AGENCY IS MOST FAMILIAR WITH THE CONDITIONS UNDER WHICH THE GOODS HAVE BEEN USED IN THE PAST AND WILL BE USED IN THE FUTURE. WE THEREFORE WILL NOT QUESTION AN AGENCY'S DETERMINATION OF ITS MINIMUM NEEDS UNLESS THERE IS A CLEAR SHOWING THAT THE DETERMINATION HAS NO REASONABLE BASIS. EATON LEONARD CORP., B-215593, JAN. 17, 1985, 85-1 CPD PARA. 47. HOWEVER, WHEN A PROTESTER CHALLENGES A SPECIFICATION AS UNDULY RESTRICTIVE OF COMPETITION, IT IS INCUMBENT UPON THE AGENCY TO ESTABLISH PRIMA FACIE SUPPORT FOR ITS CONTENTION THAT THE RESTRICTIONS ARE REASONABLY RELATED TO ITS ACTUAL NEEDS. WHEN THE AGENCY HAS ESTABLISHED THIS SUPPORT, THE BURDEN IS ON THE PROTESTER TO SHOW THAT THE REQUIREMENTS COMPLAINED OF ARE ARBITRARY OR OTHERWISE UNREASONABLE. TOOLING TECHNOLOGY, INC., B-215079, AUG. 6, 1984, 84-2 CPD PARA. 155.

IN VIEW OF THE INCREASED DURABILITY OF THE HIGH SILICON ALLOY PISTON, AS REPORTED BY THE ARMY, WE CONSIDER THAT ITS EXPLANATIONS ESTABLISH PRIMA FACIE SUPPORT FOR THE REASONABLENESS OF ITS SPECIFICATION. AME HAS NOT CONTESTED THE AGENCY'S FINDINGS THAT FORM THE BASIS OF ITS STATED NEED FOR SUCH AN ITEM. SINCE THE PROTESTER HAS NOT SHOWN THE AGENCY'S SPECIFICATION REQUIREMENT TO BE ARBITRARY, WE HAVE NO BASIS UPON WHICH TO QUESTION IT.

THE PROTESTER DOES COMPLAIN THAT OF THE TWO EUROPEAN MANUFACTURERS TO WHICH IT CLAIMS THE ARMY INFORMALLY REFERRED IT AS POSSIBLE SUPPLIERS, ONE STATES THAT IT HAS NEVER SUPPLIED PISTONS TO THE CURRENT SPECIFICATION AND THE OTHER HAS NOT RESPONDED TO AME'S REQUEST FOR A QUOTATION. IN VIEW OF THE DIFFICULTY AME HAS EXPERIENCED IN LOCATING A SUPPLIER, IT SPECULATES WHETHER PISTONS MEETING THE SOLICITATION SPECIFICATIONS ARE ACTUALLY AVAILABLE AND HAS SUGGESTED THAT THE ARMY BE REQUIRED TO PROVIDE TEST REPORTS WHICH WOULD PROVE THAT PISTONS WHICH IT HAS "CURRENTLY OR RECENTLY PROCURED" IN FACT MEET ALL OF THE SPECIFICATION REQUIREMENTS. THE PROTESTER, HOWEVER, HAS MADE NO SHOWING THAT THE PISTONS RECENTLY PROCURED BY THE ARMY HAVE NOT HAD THE INCREASED DURABILITY ATTRIBUTABLE TO THE USE OF 19- TO 22-PERCENT SILICON IN ALUMINUM ALLOY. MOREOVER, WHETHER THE ITEM PROVIDED UNDER THE SOLICITATION CONFORMS TO THE SPECIFICATIONS IS A MATTER OF CONTRACT ADMINISTRATION, WHICH IS THE RESPONSIBILITY OF THE PROCURING AGENCY AND NOT OUR OFFICE. CONTROL TECHNOLOGY, INC., B-210860, 83-1 CPD PARA. 254; DOMAR INDUSTRIES, B-209861, DEC. 30, 1982, 82-2 CPD PARA. 589.

THE PROTEST IS DENIED.

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