B-155037, JUN. 14, 1965

B-155037, JUN. 14, 1965

TO CHAPMAN, FRIEDMAN, SHEA, CLUBB AND DUFF:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MARCH 29, 1965, AND YOUR LETTERS OF APRIL 6, 1965, AND MAY 10, 1965, REQUESTING RECONSIDERATION OF OUR DECISION OF FEBRUARY 17, 1965, TO YOUR FIRM,DENYING THE PROTEST MADE IN BEHALF OF THE AMERICAN SNOWBLAST CORPORATION AGAINST THE AWARD OF A CONTRACT FOR CERTAIN SNOWPLOWS UNDER INVITATION FOR BIDS NO. AMC/T/-11-184 -65-15 (C), ISSUED BY THE UNITED STATES ENGINEER PROCUREMENT OFFICE, CHICAGO, ILLINOIS.

THE INVITATION FOR BIDS WAS ISSUED FOR THE PROCUREMENT ON BEHALF OF THE DEPARTMENT OF THE AIR FORCE OF SEVERAL UNITS OF "TRUCK, SNOW REMOVAL EQUIPMENT.' BY AMENDMENTS TO THE INVITATION PRIOR TO FEBRUARY 17, 1965, THE TOTAL SPECIFIED QUANTITY OF 28 UNITS WAS INCREASED TO 42 UNITS, INCLUDING 19 UNITS "WITH BANK ROTARY" AND "WITH STRAIGHT BLADE UNDERBODY.' HOWEVER, IT APPEARS THAT BY AMENDMENT OF MARCH 12, 1965, THE REQUIRED QUANTITY OF UNITS WITH BANK ROTARIES AND STRAIGHT BLADE UNDERBODIES WAS INCREASED FROM 19 TO 51 UNITS.

IN THE PROTEST IN BEHALF OF THE AMERICAN SNOWBLAST CORPORATION IT WAS CONTENDED THAT THE SPECIFICATIONS FOR THE UNITS WITH BANK ROTARIES AND STRAIGHT BLADE UNDERBODIES ARE UNDULY RESTRICTIVE OF COMPETITION. FURTHER PROTEST HAS BEEN MADE AGAINST INCREASING THE SPECIFIED QUANTITY OF THOSE UNITS BY THE AMENDMENT DATED MARCH 12, 1965. IT IS CONTENDED THAT THE QUANTITY INCREASE WAS CONTRARY TO OUR RECOMMENDATION TO THE DEPARTMENT OF THE AIR FORCE IN FEBRUARY 1965 THAT THE DEPARTMENT SHOULD EXPEDITE ITS TESTING PROGRAM FOR SNOW REMOVAL EQUIPMENT AND GIVE FAVORABLE CONSIDERATION TO YOUR SUGGESTION THAT FUTURE PROCUREMENTS OF SNOW REMOVAL EQUIPMENT BE HELD IN ABEYANCE PENDING THE RESULTS OF THE PROPOSED TESTS.

OUR DECISION OF FEBRUARY 17, 1965, DISCUSSES PREVIOUS RULINGS OF OUR OFFICE IN 1959 AND 1960 CONCERNING ADVERTISED SPECIFICATIONS FOR AIR FORCE PROCUREMENTS OF SNOW REMOVAL EQUIPMENT. IN 1960 THE ROYAL CANADIAN AIR FORCE (RCAF) COMPLETED THE TESTING OF CERTAIN ROTARY BANK SNOW REMOVAL EQUIPMENT IN BEHALF OF THE UNITED STATES AIR FORCE AND CONCLUDED THAT THE EQUIPMENT WAS NOT ACCEPTABLE FOR MILITARY USE. YOU ALLEGED THAT THE EQUIPMENT CURRENTLY BEING MANUFACTURED BY THE AMERICAN SNOWBLAST CORPORATION IS DIFFERENT FROM THE EQUIPMENT TESTED IN 1960; THAT THE CORPORATION IS TODAY THE FOREMOST SUPPLIER OF AIRPORT SNOW REMOVAL MACHINES TO THE COMMERCIAL MARKET; AND THAT THE FEDERAL AVIATION AGENCY HAS SHOWN A PREFERENCE FOR THE PERFORMANCE CAPABILITIES OF THOSE MACHINES. YOU CONTENDED THAT THE AIR FORCE HAS BEEN PURCHASING AT LEAST ONE TYPE OF EQUIPMENT WHICH IS OBSOLESCENT, AND THAT THE AIR FORCE HAS OTHERWISE ADVERTISED FOR BIDS ON SNOW REMOVAL EQUIPMENT UNDER SPECIFICATIONS WHICH DO NOT REFLECT ITS MINIMUM NEEDS.

IT IS REPORTED BY THE DEPARTMENT OF THE AIR FORCE THAT THE SPECIFICATIONS WERE DEVELOPED UNDER A TESTING PROGRAM INSTITUTED BY THE DEPARTMENT IN THE EARLY 1950'S WHEN NO COMMERCIALLY DEVELOPED SNOW REMOVAL EQUIPMENT WAS FOUND ADEQUATE TO FULFILL THE AIR FORCE'S REQUIREMENTS. THE TESTING PROGRAM WAS DISCONTINUED IN 1960 SINCE IT WAS FOUND THAT THE EQUIPMENT ALREADY DEVELOPED WAS ADEQUATE AND BECAUSE PRIVATE INDUSTRY WAS SPENDING ITS OWN FUNDS ON THE DEVELOPMENT OF SNOW REMOVAL EQUIPMENT FOR COMMERCIAL AIRPORT USE. IT WAS BELIEVED THAT THE RESULTS OF COMMERCIAL TESTS AND TESTS MADE BY OTHER GOVERNMENT AGENCIES WOULD PROVIDE THE AIR FORCE WITH A SUFFICIENT BASIS FOR EVALUATION OF NEWLY DEVELOPED EQUIPMENT. THE RESULTS OF SUCH TESTING DID NOT, HOWEVER, PROVE TO BE SIGNIFICANT AND IT WAS EVENTUALLY DECIDED TO INSTITUTE A NEW AIR FORCE TESTING PROGRAM UNDER A CONTRACT WITH THE RCAF WHICH WAS ENTERED INTO ON DECEMBER 2, 1964. UNDER THIS PROGRAM THE AIR FORCE WILL ARRANGE TO TEST EQUIPMENT LENT TO IT BY INTERESTED CONTRACTORS.

THE DEPARTMENT OF THE AIR FORCE STATED IN ITS REPORT THAT THE FAMILY OF SNOW REMOVAL EQUIPMENT PRESENTLY BEING PROCURED BY THE AIR FORCE ADEQUATELY FULFILLS ITS REQUIREMENTS AND, TO DATE, REMAINS THE ONLY EQUIPMENT WITH SUCH DEMONSTRATED CAPABILITY. IN DENYING THE PROTEST, CONSIDERATION WAS GIVEN BY OUR OFFICE TO THE BASIC PRINCIPLE THAT ADVERTISED SPECIFICATIONS SHOULD BE STATED IN SUCH TERMS AS TO PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE NEEDS OF THE CONTRACTING OR REQUISITIONING AGENCY. WE ALSO CONSIDERED THE FUNDAMENTAL RULES THAT THE DEVELOPMENT OF SPECIFICATIONS TO MEET THE NEEDS OF THE GOVERNMENT IN A PARTICULAR CASE IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY AND NOT OF OUR OFFICE; AND THAT THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT WHICH WILL NOT, IN THE CONSIDERED JUDGMENT OF THE USING AGENCY, REASONABLY MEET THE AGENCY'S NEEDS. SEE 36 COMP. GEN. 251, 252. THE OBJECTIVE TO BE ACHIEVED IS THE DRAFTING OF SPECIFICATIONS WHICH WILL NOT BE UNDULY RESTRICTIVE OF COMPETITION; NEVERTHELESS IT IS PROPER FOR GOVERNMENT AGENCIES TO ADVERTISE FOR BIDS ON THE BASIS OF OBTAINING EQUIPMENT WHICH WILL FULFILL THEIR MINIMUM NEEDS, WHETHER OR NOT THE ADVERTISED SPECIFICATIONS CAN BE MET ONLY BY A RELATIVELY SMALL NUMBER OF SUPPLIERS.

WE CONCLUDED THAT THE SPECIFICATIONS IN THIS CASE COULD NOT BE REGARDED AS UNDULY RESTRICTIVE OF COMPETITION BECAUSE OF THE LACK OF CLEAR AND CONVINCING EVIDENCE TO SHOW THAT THE DETERMINATION OF THE DEPARTMENT OF THE AIR FORCE WAS ARBITRARY OR NOT CAPABLE OF OBJECTIVE SUPPORT. THE INTERESTED PARTY HAS THE BURDEN OF ESTABLISHING THAT HIS EQUIPMENT MEETS THE PROCURING AGENCY'S ACTUAL NEEDS, BUT WHERE, AS HERE, THE GOVERNMENT HAS UNDERTAKEN A TESTING PROGRAM TO EVALUATE COMMERCIALLY AVAILABLE EQUIPMENT IN THE INTEREST OF INCREASING COMPETITION, EVERY EFFORT SHOULD BE MADE TO PERMIT ALL INTERESTED MANUFACTURERS TO QUALIFY THEIR EQUIPMENT FOR FUTURE PROCUREMENTS.

YOU CONTENDED IN YOUR LETTER OF APRIL 6, 1965, THAT THE ASSUMPTION THAT THE ADVERTISED PROCUREMENT UNDER INVITATION FOR BIDS NO. AMC/T/-11 184-65- 15 (C) IS FOR A QUALIFIED PRODUCT IS IN ERROR AND IN VIOLATION OF LAW. YOU ALSO CONTENDED THAT THE SPECIFICATIONS DO NOT DESCRIBE THE MINIMUM NEEDS OF THE AIR FORCE, AND THAT THE CONTEMPLATED TESTS TO BE PERFORMED BY THE RCAF DO NOT PROVIDE A PROPER OPPORTUNITY FOR AMERICAN SNOWBLAST TO QUALIFY. YOU CONTENDED FURTHER THAT THE ADMINISTRATIVE DECISION TO INCREASE THE SPECIFIED QUANTITIES OF THE INVITATION "DOES NOT CURE THE FACT THAT THE AIR FORCE IS SEEKING TO MAKE AN ADDITIONAL PROCUREMENT WITHOUT WAITING FOR THE RESULTS OF THE UPCOMING RCAF TESTS.'

YOU STATED THAT, DESPITE THE WARM ACCEPTANCE OF THE AMERICAN SNOWBLAST PLOW AND THE EXISTENCE OF THE WALTER MOTOR TRUCK COMPANY PLOW, THE AIR FORCE CONTINUES TO USE ESSENTIALLY A 1958 SPECIFICATION WHICH CALLS FOR AN OSHKOSH MOTOR TRUCK, INC. -SICARD INDUSTRIES PLOW; AND THAT THIS SPECIFICATION, WITHOUT EVEN AN "OR EQUAL" PROVISION, PRECLUDES ALL COMPETITION AND DOES NOT ALLOW FOR THE FURNISHING OF ANY OTHER EQUIPMENT.

IT WAS NOT OUR INTENTION, NOR DOES IT APPEAR TO HAVE BEEN THE INTENTION OF THE DEPARTMENT OF THE AIR FORCE, TO CHARACTERIZE INVITATION FOR BIDS NO. AMC/T/-11-184-65-15 (C) AS A QUALIFIED PRODUCTS PROCUREMENT WITHIN THE MEANING OF ASPR 1-1103, 1-1105, AND 1 1107. IT WAS INTENDED SOLELY TO INDICATE THAT THE SPECIFICATIONS FOR SNOW REMOVAL EQUIPMENT WOULD NOT BE CHANGED UNLESS, UPON FURTHER STUDY AND EXAMINATION OF VARIOUS TYPES OF EQUIPMENT, IT WAS DETERMINED THAT IT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DO SO. THERE HAS BEEN AS OF THE PRESENT TIME NO ATTEMPT BY THE DEPARTMENT OF THE AIR FORCE TO ESTABLISH A QUALIFIED PRODUCTS LIST FOR THIS TYPE OF EQUIPMENT.

ALTHOUGH YOU REITERATED YOUR PREVIOUS CONTENTION THAT THE SPECIFICATIONS DO NOT DESCRIBE THE MINIMUM NEEDS OF THE AIR FORCE, WE REMAIN OF THE OPINION THAT, IN THE ABSENCE OF CONCLUSIVE EVIDENCE THAT THE DEPARTMENTAL DETERMINATION WAS ARBITRARY, WE WOULD NOT BE JUSTIFIED IN TAKING EXCEPTION THERETO. IT IS TRUE THAT THE KNOWN PRESENCE OF UNNECESSARY REQUIREMENTS IN ADVERTISED SPECIFICATIONS WHICH RESULT IN RESTRICTING COMPETITION WOULD BE ILLEGAL. HOWEVER, IT HAS NOT BEEN DEMONSTRATED THAT THERE ARE, IN FACT, ANY SO-CALLED UNNECESSARY REQUIREMENTS IN THE SPECIFICATIONS MADE A PART OF THE ADVERTISEMENT HERE INVOLVED. WHEN AND IF IT SHOULD BE DETERMINED UNDER THE RECENTLY INSTITUTED TESTING PROGRAM THAT THE SPECIFICATIONS CONTAIN UNNECESSARY REQUIREMENTS, THEY WILL BE ELIMINATED FROM FUTURE PROCUREMENTS OF SNOW REMOVAL EQUIPMENT FOR THE AIR FORCE.

AS TO THE CONTEMPLATED TESTS BY THE RCAF UNDER THE CONTRACT WITH THE UNITED STATES AIR FORCE, AMERICAN SNOWBLAST WILL UNDOUBTEDLY BE GIVEN THE SAME CONSIDERATION AS OTHER MANUFACTURERS WHO BELIEVE THAT THEIR EQUIPMENT IS EQUAL OR SUPERIOR TO THE EQUIPMENT PREVIOUSLY PURCHASED AND FOUND BY THE AIR FORCE TO BE ACCEPTABLE FOR MILITARY USE. SO FAR AS CONCERNS YOUR CONTENTION THAT THE PROVISION OF THE RCAF CONTRACT FOR TESTING COMMERCIAL EQUIPMENT "UNDER CONDITIONS EITHER PARALLELING OR EXCEEDING THOSE USED WHEN TESTING EQUIPMENTS EXISTING WITHIN THE AIR FORCE INVENTORY" IS CLEARLY ILLEGAL, IT SHOULD BE NOTED THAT THE TESTING PROGRAM IS DESIGNED TO EVALUATE COMMERCIALLY AVAILABLE EQUIPMENT AND TO SUGGEST POSSIBLE IMPROVEMENTS IN EQUIPMENT OR METHODS FOR AIRFIELD ICE AND SNOW REMOVAL OPERATIONS.

THE SAME TEST CONDITIONS SHOULD PREVAIL IN THE TESTS OF ALL TYPES OF EQUIPMENT LENT TO THE GOVERNMENT BY INTERESTED CONCERNS. IN THIS CONNECTION, IT SHOULD BE NOTED THAT WHILE THE RCAF CONTRACT PROVIDES FOR THE RENTAL OF COMMERCIAL EQUIPMENT, WE HAVE BEEN INFORMALLY ADVISED THAT THE PAYMENT OF RENTAL CHARGES WILL NOT BE AUTHORIZED AND ALL SUPPLIERS WILL BE TREATED EQUALLY IN THIS REGARD. ALSO, WE DO NOT AGREE THAT CONSIDERATION SHOULD NOT BE GIVEN TO THE CAPABILITY OF THE OSHKOSH-SICARD EQUIPMENT FOR THE PERFORMANCE OF ORDINARY ROAD WORK, AS WELL AS FOR THE REMOVAL OF SNOW FORM AIRPORT RUNWAYS.

HOWEVER, THE DEPARTMENT OF THE AIR FORCE HAS RECOGNIZED A NEED FOR CLARIFICATION OF THE WORK STATEMENT IN THE RCAF CONTRACT AND WE ARE ADVISED THAT THE WORK STATEMENT WILL BE AMENDED TO CLARIFY THE FACT THAT THE EQUIPMENT WILL BE TESTED TO DETERMINE WHETHER IT MEETS OR EXCEEDS AIR FORCE REQUIREMENTS.

CONCERNING THE QUANTITY INCREASES IN THE INVITATION FOR BIDS, WE WERE ADVISED BY THE DEPARTMENT OF THE AIR FORCE AFTER ITS RECEIPT OF A COPY OF OUR DECISION OF FEBRUARY 17, 1965, THAT THE ARMY WAS REQUESTED IN AUGUST 1964 TO AMEND THE INVITATION TO PROVIDE FOR BIDDING ON THE INCREASED QUANTITIES INVOLVED, AND WE AGREED THAT, SINCE THE REQUIREMENT FOR THE PROPOSED QUANTITY INCREASED EXISTED SINCE AUGUST 1964, IT SHOULD NOT BE REGARDED AS A "FUTURE PROCUREMENT" WITHIN THE MEANING OF OUR RECOMMENDATION FOR WITHHOLDING ADDITIONAL PROCUREMENT ACTIONS UNTIL THE RCAF TESTS WERE COMPLETED.

IN THE LETTER OF MAY 10, 1965, YOU INDICATED THAT YOUR CLIENT WAS ADVISED ON MAY 3, 1965, THAT THE CONTRACT AWARD UNDER THE AMENDED INVITATION FOR BIDS WAS MADE TO OSHKOSH MOTOR TRUCK, INCORPORATED. IT WAS ARGUED THAT THE CONTRACT IS IN VIOLATION OF CERTAIN OF THE PROVISIONS OF SECTION 2305 OF TITLE 10, U.S.C. AS IMPLEMENTED BY ASPR 1-300.1 AND 1-1201. THE BASIC ISSUE IS WHETHER THERE WAS COMPLIANCE WITH THE STATUTORY PROVISION THAT "THE SPECIFICATIONS AND INVITATIONS FOR BIDS SHALL PERMIT SUCH FREE AND FULL COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY AND SERVICES NEEDED BY THE AGENCY CONCERNED.' THIS PROVISION OF LAW WAS FULLY CONSIDERED IN OUR DECISION OF FEBRUARY 17, 1965, AND IN THE PRIOR CASES REFERRED TO IN THAT DECISION; AND IT IS OUR OPINION THAT NEITHER THE STATUTE NOR THE IMPLEMENTING REGULATIONS WERE VIOLATED IN CONNECTION WITH THE DETERMINATION BY THE DEPARTMENT OF THE AIR FORCE THAT BIDS SHOULD BE REQUESTED ON THE BASIS OF OBTAINING A TYPE OF EQUIPMENT WHICH WAS KNOWN TO BE ADEQUATE FOR THE FULFILLMENT OF ITS THEN EXISTING NEEDS IN CARRYING OUT THE TACTICAL AND STRATEGIC MISSIONS OF THE AIR FORCE. IT IS YOUR POSITION THAT THE COMPETITION REQUIRED BY LAW COULD HAVE BEEN PROCURED BY "TWG- STEPPING" THE PROCUREMENT BUT IT IS OUR VIEW THAT THE AIR FORCE HAS PROVIDED SUFFICIENT JUSTIFICATION FOR THE ACTION TAKEN IN THE MATTER.

CONTRARY TO YOUR REPEATED CONTENTION THAT THE AIR FORCE HAS NOT DESCRIBED ITS MINIMUM NEEDS, IT IS EVIDENT THAT THE DEPARTMENT HAS COMPLIED WITH ANY REQUIREMENT IN THAT REGARD BY SETTING FORTH THAT THE FAMILY OF SNOW REMOVAL EQUIPMENT PRESENTLY BEING PROCURED BY THE AIR FORCE "ADEQUATELY FULFILLS OUR REQUIREMENTS, AND, TO DATE, REMAINS THE ONLY EQUIPMENT WITH SUCH DEMONSTRATED CAPABILITY.'

ACCORDINGLY, THE DECISION DENYING THE PROTEST MADE IN BEHALF OF THE AMERICAN SNOWBLAST CORPORATION IS HEREBY AFFIRMED.

YOUR LETTER OF MAY 10, 1965, CONTAINS RECOMMENDATIONS FOR FURTHER REVISIONS TO THE CONTRACT WITH THE RCAF FOR TESTING OF SNOW REMOVAL EQUIPMENT AND A REQUEST THAT OUR OFFICE RECOMMEND TO THE DEPARTMENT OF THE AIR FORCE THAT THE CONTRACT BE AMENDED IN THE MANNER SUGGESTED. WE NOTE THAT A COPY OF THE LETTER WAS TRANSMITTED TO THE DEPARTMENT AND WE ARE SUGGESTING THAT THE DEPARTMENT GIVE CAREFUL CONSIDERATION TO YOUR COMMENTS AND RECOMMENDATIONS IN THE MATTER.