B-211665, OCT 25, 1983

B-211665: Oct 25, 1983

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DIGEST: PROTEST AGAINST DELIVERY ORDER FOR HIGHER PRICED TUNNEL WASHER UNDER FEDERAL SUPPLY SCHEDULE IS DENIED WHERE AGENCY JUSTIFICATION IS NOT SHOWN TO BE UNREASONABLE. GIRTON ALSO OFFERS AN FSS-LISTED TUNNEL WASHER WHICH IT ALLEGES IS EQUIVALENT TO THE INDUSTRIAL UNIT AT A COST SAVING OF $14. DETERMINATIONS AS TO THE NEEDS OF AN AGENCY AND WHICH PRODUCTS ON THE FSS MEET THOSE NEEDS ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY AND WITH WHICH WE WILL NOT INTERFERE UNLESS THEY CLEARLY INVOLVE BAD FAITH OR ARE NOT BASED ON SUBSTANTIAL EVIDENCE. 52 COMP.GEN. 941. IT IS REQUIRED TO PROCURE FROM THE LOWEST PRICED SUPPLIER ON THE SCHEDULE. OUR OFFICE DOES NOT BELIEVE A LEGAL OBJECTION TO THE AGENCY'S DETERMINATIONS IS WARRANTED UNLESS THOSE DETERMINATIONS ARE SHOWN TO BE TOTALLY UNREASONABLE.

B-211665, OCT 25, 1983

DIGEST: PROTEST AGAINST DELIVERY ORDER FOR HIGHER PRICED TUNNEL WASHER UNDER FEDERAL SUPPLY SCHEDULE IS DENIED WHERE AGENCY JUSTIFICATION IS NOT SHOWN TO BE UNREASONABLE.

GIRTON MANUFACTURING COMPANY:

GIRTON MANUFACTURING COMPANY (GIRTON) PROTESTS THE PROCUREMENT BY THE DEFENSE NUCLEAR AGENCY (DEFENSE) OF A POWER SPRAY TUNNEL WASHER FOR THE CLEANING OF THE CAGES OF LABORATORY ANIMALS BY DELIVERY ORDER NO. DNA004- 83-F-2331 TO INDUSTRIAL WASHING MACHINE CORP. (INDUSTRIAL) UNDER GENERAL SERVICES ADMINISTRATION FEDERAL SUPPLY SCHEDULE (FSS) CONTRACT NO. GS-00S- 41271.

WE DENY THE PROTEST.

GIRTON ALSO OFFERS AN FSS-LISTED TUNNEL WASHER WHICH IT ALLEGES IS EQUIVALENT TO THE INDUSTRIAL UNIT AT A COST SAVING OF $14,100.

FEDERAL AGENCIES WHICH PROCURE FROM A MULTIPLE-AWARD FSS MUST DO SO AT THE LOWEST PRICE CONSISTENT WITH THEIR MINIMUM NEEDS. LANIER BUSINESS PRODUCTS, INC.; MID-ATLANTIC INDUSTRIES, INC., B-187819, AUGUST 24, 1977, 77-2 CPD 143. DETERMINATIONS AS TO THE NEEDS OF AN AGENCY AND WHICH PRODUCTS ON THE FSS MEET THOSE NEEDS ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY AND WITH WHICH WE WILL NOT INTERFERE UNLESS THEY CLEARLY INVOLVE BAD FAITH OR ARE NOT BASED ON SUBSTANTIAL EVIDENCE. 52 COMP.GEN. 941, 944 (1973). THUS, ONCE THE PROCURING AGENCY DETERMINES ITS MINIMUM NEEDS, IT IS REQUIRED TO PROCURE FROM THE LOWEST PRICED SUPPLIER ON THE SCHEDULE, UNLESS IT MAKES AN APPROPRIATE JUSTIFICATION FOR PURCHASE FROM A HIGHER PRICED SUPPLIER. OUR OFFICE DOES NOT BELIEVE A LEGAL OBJECTION TO THE AGENCY'S DETERMINATIONS IS WARRANTED UNLESS THOSE DETERMINATIONS ARE SHOWN TO BE TOTALLY UNREASONABLE. DICTAPHONE CORPORATION; BUSINESS EQUIPMENT CENTER, LTD., B-192314, B-192373, NOVEMBER 14, 1978, 78-2 CPD 345.

DEFENSE STATES THAT THE PRODUCTS OF GIRTON AND OF ANOTHER MANUFACTURER WERE CONSIDERED. THE SOLE-SOURCE JUSTIFICATION IN THE RECORD SHOWS THAT THE INDUSTRIAL EQUIPMENT WAS ORDERED BECAUSE, AMONG OTHER QUALIFICATIONS, THE INDUSTRIAL WASHER: (1) HAS 10-GAUGE STAINLESS STEEL TANKS WHILE GIRTON'S STANDARD MODEL IS 12-GAUGE; (2) IS EQUIPPED WITH STRAINER SCREENS AND BASKETS WHICH FILTER THE WATER BEFORE IT ENTERS THE PUMPS TO PREVENT CLOGGING OF THE SPRAY JETS WHILE THE GIRTON AND THE OTHER PRODUCT HAVE ONLY SCREENS WHICH DO A LESS EFFICIENT JOB; (3) IS EQUIPPED WITH ADEQUATE AREAS BETWEEN THE WASH AND RINSE ZONE TO PREVENT THE CARRYOVER OF DIRTY WATER WHILE GIRTON WAS FOUND TO HAVE AN INEFFECTIVE DRAIN AREA, AND (4) HAS DIMENSIONS WHICH ARE IDEAL FOR THE EXISTING SMALL CAGE WASHER ROOM AND HAS LONGER WASH AND DRY AREAS WHILE THE SHORTER WASH AREA OF THE GIRTON AND OTHER EVALUATED WASHER WERE FOUND TO ALLOW FOR CARRYOVER OF DIRTY WATER AND INEFFECTIVE CAGE DRYING.

WHILE GIRTON ASSERTS THAT, CONTRARY TO THE DETERMINATION BY DEFENSE, THE GIRTON EQUIPMENT COULD HAVE BEEN SUPPLIED WITH THE 10-GAUGE TANKS AND THAT THE VARIOUS FILTERING SYSTEMS AND WASH AND DRY AREAS ARE AS EFFICIENT AS THOSE EMPLOYED BY INDUSTRIAL, GIRTON HAS NOT SHOWN DEFENSE'S JUSTIFICATION TO BE UNREASONABLE. GIRTON'S STANDARD MODEL ON THE FSS IS 12-GAUGE AND DOES NOT HAVE THE STRAINER BASKETS. IN EFFECT, GIRTON HAS DISAGREED WITH THE CONCLUSION OF DEFENSE AS TO THE EFFICIENCY OF THE SYSTEMS AND WE HAVE STATED THAT MERE DISAGREEMENT IS NOT SUFFICIENT TO SHOW THE JUSTIFICATION IS OBJECTIONABLE. SEE DICTAPHONE CORPORATION, B-197520, AUGUST 15, 1980, 80-2 CPD 121.

THEREFORE, WE CANNOT CONCLUDE THAT THE PURCHASE OF THE MORE EXPENSIVE EQUIPMENT WAS UNJUSTIFIED AND THE PROTEST IS DENIED.

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