B-219766, NOV 5, 1985, 85-2 CPD 526

B-219766: Nov 5, 1985

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AGENCY'S SPECIFICATIONS FOR SWEEPERS WITH SCRUBBER ATTACHMENT AND ELECTROMAGNETIC INTERFERENCE CONTROL ARE NOT UNDULY RESTRICTIVE OF COMPETITION WHERE THE AGENCY PRESENTS A REASONABLE EXPLANATION FOR ITS MINIMUM NEEDS AND THE PROTESTER FAILS TO SHOW THAT THE RESTRICTION ARE UNREASONABLE. SOLICITATION REQUIREMENT THAT OFFERED EQUIPMENT HAVE UNDERWRITER LABORATORIES INC. SEAL OF APPROVAL ATTACHED TO EACH SWEEPER UNIT IS UNDULY RESTRICTIVE OF COMPETITION AND. THE SOLICITATION IS FOR A MULTIYEAR PROCUREMENT BASED UPON A MILITARY INTERDEPARTMENTAL PURCHASE REQUEST FROM THE AIR FORCE THROUGH WARNER ROBINS AIR FORCE BASE. THE SWEEPERS ARE FOR DELIVERY TO A NUMBER OF AIR FORCE BASES. ADVANCE ASSERTS THAT THE SOLICITATION'S SPECIFICATIONS ARE RESTRICTIVE SINCE SUCH SPECIFICATIONS DO NOT REPRESENT THE GOVERNMENT'S ACTUAL MINIMUM NEEDS.

B-219766, NOV 5, 1985, 85-2 CPD 526

CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - SPECIFICATIONS - MINIMUM NEEDS - NOT OVERSTATED DIGEST: 1. AGENCY'S SPECIFICATIONS FOR SWEEPERS WITH SCRUBBER ATTACHMENT AND ELECTROMAGNETIC INTERFERENCE CONTROL ARE NOT UNDULY RESTRICTIVE OF COMPETITION WHERE THE AGENCY PRESENTS A REASONABLE EXPLANATION FOR ITS MINIMUM NEEDS AND THE PROTESTER FAILS TO SHOW THAT THE RESTRICTION ARE UNREASONABLE. CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - SPECIFICATIONS - RESTRICTIVE - CONFORMABILITY OF EQUIPMENT, ETC. OFFERED - ADMINISTRATIVE DETERMINATION 2. SOLICITATION REQUIREMENT THAT OFFERED EQUIPMENT HAVE UNDERWRITER LABORATORIES INC. SEAL OF APPROVAL ATTACHED TO EACH SWEEPER UNIT IS UNDULY RESTRICTIVE OF COMPETITION AND, THEREFORE, IMPROPER.

ADVANCE MACHINE COMPANY:

ADVANCE MACHINE COMPANY (ADVANCE) HAS PROTESTED AS UNDULY RESTRICTIVE THE SPECIFICATIONS OF REQUEST FOR PROPOSALS (RFP) NO. DLA100-85-R-7596 ISSUED BY THE DEFENSE LOGISTICS AGENCY (DLA) FOR INDUSTRIAL-TYPE SWEEPERS. THE SOLICITATION IS FOR A MULTIYEAR PROCUREMENT BASED UPON A MILITARY INTERDEPARTMENTAL PURCHASE REQUEST FROM THE AIR FORCE THROUGH WARNER ROBINS AIR FORCE BASE. THE SWEEPERS ARE FOR DELIVERY TO A NUMBER OF AIR FORCE BASES. ADVANCE ASSERTS THAT THE SOLICITATION'S SPECIFICATIONS ARE RESTRICTIVE SINCE SUCH SPECIFICATIONS DO NOT REPRESENT THE GOVERNMENT'S ACTUAL MINIMUM NEEDS.

THE PROTEST IS DENIED IN PART AND SUSTAINED IN PART.

THE RFP WAS ISSUED ON JUNE 26, 1985, BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO, FOR RIDER-OPERATED, INDUSTRIAL-TYPE ROTARY SWEEPERS. SECTION "B" OF THE RFP PROVIDES THAT THE SWEEPERS ARE TO BE IN ACCORDANCE WITH FEDERAL SPECIFICATION 00-S-870E DATED JANUARY 6, 1984, "SWEEPERS, ROTARY SELF PROPELLED, INDUSTRIAL TYPE, RIDER OPERATED" AND WITH THE "OPTIONS AND DEVIATIONS" TO THOSE SPECIFICATIONS AS SET FORTH IN SECTION "C" OF THE SOLICITATION.

ADVANCE PROTESTS THAT SEVERAL OF THE SPECIFICATIONS SET FORTH IN THE SOLICITATION'S "OPTIONS AND DEVIATIONS" TO THE FEDERAL SPECIFICATION ARE OVERLY RESTRICTIVE BECAUSE THEY DO NOT REPRESENT THE GOVERNMENT'S ACTUAL MINIMUM NEEDS. IN ADDITION, ADVANCE ASSERTS THAT THE SPECIFICATIONS ARE IMPROPERLY PROPRIETARY SINCE IN ITS VIEW, THEY ARE WRITTEN AROUND THE SWEEPER UNIT PRODUCED BY THE TENNANT COMPANY. THE RECORD SHOWS THAT THE TENNANT COMPANY SUBMITTED THE ONLY PROPOSAL IN RESPONSE TO THE SOLICITATION.

ADVANCE'S PROTEST WITH REGARD TO TWO OF THE SPECIFICATIONS IN THE SOLICITATION'S "OPTIONS AND DEVIATIONS" IS, IN FACT, ACADEMIC. ADVANCE HAS OBJECTED TO THE SPECIFICATION REQUIREMENT FOR TIRES WHICH STATES "INNER TUBE, PNEUMATIC TIRE" AND ALSO OBJECTS TO THE RELATED SPECIFICATION FOR "TIRE FLAPS" FOR "TUBE TYPE TIRES." ADVANCE CONTENDS THAT THE "NEW STATE OF THE ART" SOLID TIRES SHOULD ALSO BE DEEMED ACCEPTABLE. THE AGENCY ADVISES THAT UNDER PARAGRAPH 3.13.6.2 OF THE FEDERAL SPECIFICATIONS, NONTUBE TIRES MAY BE USED AND THAT THE SPECIFICATIONS IN QUESTION ONLY PERTAIN WHERE A TUBE TIRE IS OFFERED UNDER THE SOLICITATION. SINCE THE AGENCY INDICATES THAT ADVANCE'S NONTUBE TIRES ARE ACCEPTABLE UNDER THE SOLICITATION'S SPECIFICATIONS, WE DISMISS AS ACADEMIC ADVANCE'S PROTESTS REGARDING THE "OPTIONS AND DEVIATIONS" PERTAINING TO THE SWEEPER'S TIRES AND TIRE FLAPS. SEE ALAN SCOTT INDUSTRIES, B-217190, DEC. 18, 1984, 84-2 CPD PARA. 681.

ADVANCE ALSO CHALLENGES SEVERAL OTHER SPECIFICATIONS IN THE SOLICITATION'S "OPTIONS AND DEVIATIONS" AS UNDULY RESTRICTIVE. ADVANCE OBJECTS TO THE "OPTIONS AND DEVIATIONS" WHICH REQUIRE THE SWEEPER TO BE EQUIPPED WITH A SCRUBBER ATTACHMENT AND ALSO OBJECTS TO THE RELATED SPECIFICATION WHICH REQUIRES THE SWEEPER TO PASS THE SPECIFIED SCRUBBING TEST. ADVANCE OBJECTS TO THE REQUIREMENT THAT THE SWEEPERS HAVE SCRUBBER ATTACHMENTS ON THE BASIS THAT ALL FACILITIES AT WHICH THE SWEEPERS WILL BE USED DO NOT REQUIRE A SWEEPER WITH A SCRUBBER. ADVANCE INDICATES THAT THE SCRUBBER ATTACHMENT IS A PROPRIETARY FEATURE OF THE SWEEPER MANUFACTURED BY THE TENNANT COMPANY.

ADVANCE ALSO OBJECTS TO THE SOLICITATION'S REQUIREMENT THAT THE SWEEPERS BE EQUIPPED WITH AN ELECTROMAGNETIC INTERFERENCE CONTROL SINCE IT BELIEVES THAT THIS FEATURE IS NOT NECESSARY AT ALL FACILITIES WHERE THE SWEEPER WILL BE USED AND IS NOT NEEDED FOR ALL CLEANING APPLICATIONS. FINALLY, ADVANCE OBJECTS TO THE REQUIREMENT THAT THE SWEEPERS MEET THE SPECIFIED UNDERWRITERS LABORATORIES INC. (UL) STANDARDS ON THE BASIS THAT NEITHER ALL FACILITIES NOR ALL THE CLEANING APPLICATIONS AT THOSE FACILITIES REQUIRE SUCH UL STANDARDS.

THE AIR FORCE ADVISES THAT PRIOR TO SUBMITTING ITS REQUIREMENTS FOR A "SWEEPER/SCRUBBER," IT FORWARDED THE SPECIFICATIONS TO ALL AIR FORCE USING ACTIVITIES FOR THEIR REVIEW AND COMMENTS AND THAT THE RESPONSES INDICATE THAT IN TERMS OF OPERATIONAL MAN-HOURS, MAINTENANCE TIME, EASE OF MAINTENANCE AND FUNDS EXPENDITURE, ONE SWEEPER UNIT WITH A SCRUBBER CAPABILITY IS PREFERABLE TO TWO SEPARATE SWEEPER AND SCRUBBER UNITS. THE AIR FORCE FURTHER ADVISES THAT SINCE 1969, IT HAS HAD THE COMBINATION SWEEPER/SCRUBBER IN ITS INVENTORY AND THAT IT HAS PERFORMED EFFICIENTLY AND IS MORE COST EFFECTIVE TO OPERATE AND MAINTAIN THAN TWO SEPARATE VEHICLES-- A SWEEPER AND A SCRUBBER. THE AIR FORCE JUSTIFIES THE SOLICITATION'S REQUIREMENT FOR AN ELECTROMAGNETIC INTERFERENCE (EMI) CONTROL, STATING THAT THE SWEEPERS ARE SUBJECT TO USE IN WAREHOUSES, AIRCRAFT HANGARS, AND OTHER AREAS WHICH ARE CLOSE TO AIRCRAFT FLIGHT LINES AND RUNWAYS. THE AIR FORCE STATES THAT WHILE IT IS POSSIBLE THAT NOT ALL AREAS REQUIRE EMI SUPPRESSION, IT WOULD BE DIFFICULT TO BUY A FEW SWEEPERS WITHOUT THE PROTECTION AND LIMIT THEIR USE TO A PARTICULAR AREA. LASTLY, DLA AND THE AIR FORCE JUSTIFY THE SPECIFICATION'S REQUIREMENT THAT THE SWEEPERS MEET UL 558 OR 583 SAFETY STANDARDS ON THE BASIS THAT ALL SWEEPERS PROCURED FOR THE AIR FORCE ARE SUBJECT TO BEING OPERATED IN AREAS WHERE ORDNANCE, DIESEL FUEL, AND AIRCRAFT UNDERGOING MAINTENANCE WITH OPEN FUEL CELLS ARE PRESENT. WE NOTE THAT THE PERTINENT SPECIFICATION PROVIDES THAT ACCEPTABLE EVIDENCE OF COMPLIANCE WITH THE SAFETY STANDARDS SHALL BE A UL SEAL OF APPROVAL.

A PROTESTER CONTENDING THAT A SPECIFICATION IS UNDULY RESTRICTIVE HAS A HEAVY BURDEN OF PROOF SINCE THE CONTRACTING AGENCY HAS BROAD DISCRETION IN DETERMINING ITS MINIMUM NEEDS AND THE BEST METHOD OF ACCOMMODATING THOSE NEEDS. POTOMAC INDUSTRIAL TRUCKS, INC., B-204648, JAN. 27, 1982, 82-1 CPD PARA. 61. ACCORDINGLY, WE WILL NOT QUESTION AN AGENCY'S DETERMINATION OF ITS MINIMUM NEEDS UNLESS THERE IS A CLEAR SHOWING THAT THE DETERMINATION HAS NO REASONABLE BASIS. CHAMPION ROAD MACHINERY INTERNATIONAL CORP., B-206842, ET AL., MAR. 1, 1983, 83-1 CPD PARA. 203. MOREOVER, IF A SPECIFICATION REQUIREMENT IS REASONABLE AND NECESSARY, THE FACT THAT ONLY ONE FIRM MAY BE ABLE TO COMPLY WITH IT DOES NOT INDICATE THAT A VIOLATION OF THE COMPETITIVE PROCUREMENT REGULATIONS HAS OCCURED. SEE ROLM CORP., B-214052, SEPT. 11, 1984, 84-2 CPD PARA. 280.

WHERE, AS HERE, A PROTESTER CHALLENGES A SPECIFICATION AS UNDULY RESTRICTIVE OF COMPETITION, THE BURDEN INITIALLY IS ON THE PROCURING AGENCY TO ESTABLISH PRIMA FACIE SUPPORT FOR ITS CONTENTION THAT THE RESTRICTIONS IT IMPOSES ARE NEEDED TO MEET ITS MINIMUM NEEDS. BUT, ONCE THE AGENCY ESTABLISHES THIS PRIMA FACIE SUPPORT, THE BURDEN IS THEN ON THE PROTESTER TO SHOW THAT THE REQUIREMENTS COMPLAINED OF ARE CLEARLY UNREASONABLE. SUNBELT INDUSTRIES INC., B-214414.2, JAN. 29, 1985, 85-1 CPD PARA. 113 AT 5, 6.

AS SET FORTH ABOVE, THE AGENCY ADVISES THAT FOR REASONS OF EFFICIENCY AND COST EFFECTIVENESS, THE SOLICITATION REQUIRES THE SWEEPERS TO BE EQUIPPED WITH AN EMI CONTROL AND A SCRUBBER ATTACHMENT SINCE THE SWEEPERS ARE SUBJECT TO USE IN AREAS WHICH WILL REQUIRE THE EMI CONTROL FEATURE AND THE SCRUBBER FUNCTION. ALSO, AS STATED, THE AGENCY ADVISES THAT THE SWEEPERS ARE REQUIRED TO MEET THE SPECIFIED UL SAFETY STANDARDS SINCE THE SWEEPERS ARE USED IN AREA WHERE ORDNANCE AND FUEL MAY BE PRESENT. IN OBJECTING TO THESE REQUIREMENTS ON THE BASIS THAT THESE FEATURES WILL NOT BE NEEDED AT ALL PLACES AT ALL TIMES, ADVANCE HAS NOT MET ITS HEAVY BURDEN OF PROOF THAT THE ABOVE SPECIFICATIONS ARE CLEARLY UNREASONABLE. ACCORDINGLY, WE DENY ADVANCE'S OBJECTIONS TO THE SOLICITATION'S REQUIREMENTS THAT THE SWEEPER UNITS BE EQUIPPED WITH AN EMI CONTROL AND A SCRUBBER ATTACHMENT. HOWEVER, WHILE WE FIND THAT THE AGENCY HAS ESTABLISHED AS REASONABLE THE REQUIREMENT THAT THE SCRUBBER UNIT MEET THE SAFETY STANDARDS REPRESENTED BY UL 558 OR 583, WE BELIEVE THAT SUCH REQUIREMENT IS IMPROPER TO THE EXTENT THAT IT PROVIDES THAT ACCEPTABLE EVIDENCE OF COMPLIANCE WITH THE SAFETY STANDARDS SHALL BE A UL SEAL OF APPROVAL.

OUR OFFICE GENERALLY HAS NOT OBJECTED TO THE REQUIREMENT THAT AN ITEM CONFORM TO A SET OF STANDARDS ADOPTED BY A NATIONALLY RECOGNIZED ORGANIZATION IN THE FIELD OR A REQUIREMENT FOR INDEPENDENT LABORATORY CERTIFICATION THAT SUCH STANDARDS ARE MET. HOWEVER, WE HAVE HELD THAT A REQUIREMENT THAT THE ITEMS OFFERED BEAR A SPECIFIC LABEL DEMONSTRATING APPROVAL BY A PARTICULAR TESTING LABORATORY IS UNDULY RESTRICTIVE AND IMPROPER. SEE WORCESTER ELECTRICAL ASSOCIATES, B-193064, APR. 5, 1979, 79-1 CPD PARA. 236. WHILE SUCH A TOKEN OF APPROVAL, UNDER PROPER CIRCUMSTANCES, MAY SERVE AS EVIDENCE OF CONFORMITY, THE ABSENCE OF SUCH APPROVAL SHOULD NOT AUTOMATICALLY EXCLUDE PRODUCTS THAT MAY CONFORM EQUALLY TO THE SOLICITATION, SINCE THE GOVERNMENT, NOT THE TESTING LABORATORY, IS PRIMARILY CHARGED WITH THE DETERMINATION OF ACTUAL CONFORMANCE. ACCORDINGLY, PROSPECTIVE CONTRACTORS SHOULD BE PERMITTED TO SHOW THAT THEIR PRODUCTS CONFORM TO THE STANDARDS ESTABLISHED BY RECOGNIZED CLASSIFICATION ORGANIZATIONS THROUGH THE SUBMISSION OF INDEPENDENTLY PRODUCED EVIDENCE. ARCTIC MARINE, INC., B-182321, MAY 14, 1975, 75-1 CPD PARA. 311, AND STABBERT AND ASSOCIATES, INC., B-218427, JUNE 17, 1985, 85-1 CPD PARA. 692. SINCE WE HAVE DENIED ADVANCE'S PROTEST AS TO THE REQUIREMENTS FOR THE EMI CONTROL AND THE SCRUBBER ATTACHMENT, IT WOULD APPEAR THAT ADVANCE WAS NOT PREJUDICED BY THE ABOVE PROVISION RELATING TO THE UL STANDARDS, AND WE THEREFORE ARE NOT RECOMMENDING ANY CORRECTIVE ACTION WITH RESPECT TO THIS PROCUREMENT. HOWEVER, IN FUTURE PROCUREMENTS, THE AGENCY'S REQUIREMENT FOR SAFETY STANDARDS SHOULD BE DRAFTED TO PERMIT AN OFFEROR TO SHOW THROUGH INDEPENDENT EVIDENCE THAT ITS PRODUCT MEETS SAFETY STANDARDS EQUAL TO THAT SET FORTH IN THE SOLICITATION.

ACCORDINGLY, THE PROTEST IS DENIED IN PART AND SUSTAINED IN PART.