B-139489, SEP. 25, 1959

B-139489, SEP. 25, 1959

TO CALFEE, FOGG, MCCHORD AND HALTER, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 20, 1959, WITH ENCLOSURE, IN WHICH YOU REQUEST, ON BEHALF OF YOUR CLIENTS, LUCAS MACHINE DIVISION OF THE NEW BRITAIN MACHINE COMPANY AND DELAWARE VALLEY MACHINERY, INC., RECONSIDERATION OF OUR DECISION OF AUGUST 3, 1959, B 139489, IN WHICH WE HELD THAT THERE HAD BEEN PRESENTED NO VALID BASIS UPON WHICH WE COULD OBJECT TO THE AWARD MADE BY THE NAVAL AIR MATERIAL CENTER, NAVAL CENTER, PHILADELPHIA, PENNSYLVANIA, UNDER INVITATION NO. IFB-156-237-59, ISSUED JANUARY 26, 1959.

THE SUBSTANCE OF YOUR REQUEST FOR RECONSIDERATION OF OUR DECISION IS THAT OUR OFFICE HAS ACCEPTED THE ADMINISTRATIVE REPORT RELATIVE TO THE MERITS OF THE MACHINE OFFERED BY YOUR CLIENTS WITHOUT CONDUCTING AN INDEPENDENT INVESTIGATION OF ITS OWN. SINCE OUR OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATION, WE DO NOT, EXCEPT WITH RESPECT TO OUR OWN RELATIVELY SMALL PROCUREMENT, ATTEMPT ANY ANALYSES AS TO THE RELATIVE MERITS OF AVAILABLE TYPES OF EQUIPMENT. WE RECOGNIZE THAT SUCH ANALYSES ARE LARGELY TECHNICAL ENGINEERING DETERMINATIONS WHICH ARE WITHIN NEITHER OUR SPECIAL AREA OF COMPETENCE NOR OUR SPHERE OF AUTHORITY. HENCE, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT.

WE HAVE HELD THAT THE QUESTION AS TO WHICH TYPE OF TECHNICAL EQUIPMENT IS TO BE PROCURED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT IS FOR DETERMINATION ON THE BASIS OF EXPERT OPINION. 33 COMP. GEN. 586, 588. FURTHERMORE, WE HAVE HELD THAT WHEN THERE EXISTS A SUBSTANTIAL DIFFERENCE OF OPINION AMONG TECHNICAL EXPERTS QUALIFIED IN THEIR PARTICULAR FIELD AS TO THE RELATIVE MERITS OF TWO PRODUCTS, THE SELECTION OF EITHER TO THE EXCLUSION OF THE OTHER IS NOT A VIOLATION OF THE STATUTORY REQUIREMENTS FOR COMPETITIVE BIDDING. 35 COMP. GEN. 174, 180.

YOU ALLEGE THAT THE SPECIFICATIONS ARE RESTRICTIVE IN THAT THEY ARE WRITTEN CLOSELY TO THE CATALOG SPECIFICATIONS OF A DEVLIEGMACHINE. ASSUMING THAT YOUR CONTENTION IN THIS REGARD IS CORRECT, WE HAVE TAKEN THE POSITION THAT WHERE UNDUE DIFFICULTY WOULD BE ENCOUNTERED IN DRAWING DETAILED SPECIFICATIONS WITHOUT REFERENCE TO THE ESSENTIAL CHARACTERISTICS OF THE PRODUCT OF ONE MANUFACTURER, THE SPECIFICATIONS INCORPORATING THOSE ESSENTIAL FEATURES CANNOT BE CONSIDERED TO BE MORE RESTRICTIVE THAN NECESSARY TO ACCOMPLISH THE INTENDED PURPOSE OF THE ADVERTISEMENT.

YOUR LETTER CONTAINS NO INFORMATION WHICH WAS NOT AVAILABLE TO AND CONSIDERED BY OUR OFFICE IN ARRIVING AT OUR PREVIOUS DECISION, AND THE RECORDS SUBMITTED BY THE DEPARTMENT OF THE NAVY INDICATE THAT THE TECHNICAL QUESTION YOU HAVE RAISED HAS ALREADY BEEN CONSIDERED AND ANSWERED IN ARRIVING AT THE SPECIFICATIONS AS DRAWN. AS INDICATED IN OUR PREVIOUS DECISION, THERE IS NO EVIDENCE OF RECORD TO INDICATE THAT THE SPECIFICATIONS DID NOT REFLECT A BONA FIDE DETERMINATION OF THE ACTUAL NEEDS OF THE GOVERNMENT, AND IT SHOULD BE NOTED THAT ONLY WHERE THE LOW BIDDER HAS OFFERED MATERIAL OR EQUIPMENT IN STRICT ACCORDANCE WITH SUCH SPECIFICATIONS IS THIS OFFICE LEGALLY JUSTIFIED IN OBJECTING TO AN AWARD TO A HIGH BIDDER.