B-158299, JUN. 6, 1966

B-158299: Jun 6, 1966

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TO TRYLON INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF APRIL 22. WILL FAIL WHEN SUBJECTED TO CERTAIN COMBINATIONS OF WIND. TO CAPTAIN STAFFORD OF THE UNITED STATES NAVY PURCHASING OFFICE CONTAINING THIS CONTENTION WAS NOT REFERRED TO EXPLICITLY. WE DID HAVE IT IN OUR FILE FOR CONSIDERATION AND THE ISSUE WAS DISCUSSED ON PAGE THREE OF OUR DECISION. APPENDIX A OF THE PURCHASE DESCRIPTION SPECIFIED THAT THE BIDDER NEED ONLY DEMONSTRATE HIS ANTENNA COULD WITHSTAND STATED ENVIRONMENTAL FORCES WHICH WERE TO BE CALCULATED SEPARATELY. FOR AS LONG AS SAID BID WAS RESPONSIVE TO THE PARTICULARIZED SPECIFICATION CONTAINED WITHIN THE PURCHASE DESCRIPTION. WHERE IT IS STATED: "IF THE APPARENT INCONSISTENCY IS BETWEEN A CLAUSE THAT IS GENERAL AND BROADLY INCLUSIVE IN CHARACTER AND ONE THAT IS MORE LIMITED AND SPECIFIC IN ITS COVERAGE.

B-158299, JUN. 6, 1966

TO TRYLON INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 22, 1966, IN WHICH YOU STATE THAT OUR DECISION B-158299 OF APRIL 19, 1966, WHICH REJECTED AS NONRESPONSIVE YOUR BID UNDER INVITATION FOR BIDS NO. 600-1004-65, ISSUED ON JUNE 25, 1965, BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON NAVY YARD, WASHINGTON, D.C. APPARENTLY DID NOT CONSIDER YOUR CONTENTION THAT THE ANTENNA OFFERED BY THE SUCCESSFUL BIDDER, GRANGER ASSOCIATES, WILL FAIL WHEN SUBJECTED TO CERTAIN COMBINATIONS OF WIND, ICE, AND SEISMIC CONDITIONS AS REQUIRED IN THE SPECIFICATIONS. IN FACT, ALTHOUGH YOUR LETTER OF JANUARY 28, 1966, TO CAPTAIN STAFFORD OF THE UNITED STATES NAVY PURCHASING OFFICE CONTAINING THIS CONTENTION WAS NOT REFERRED TO EXPLICITLY, WE DID HAVE IT IN OUR FILE FOR CONSIDERATION AND THE ISSUE WAS DISCUSSED ON PAGE THREE OF OUR DECISION.

WE FOUND THAT THE SPECIFICATION DID NOT REQUIRE THAT BIDS MUST SHOW THAT THE OFFERED ANTENNA COULD WITHSTAND THE COMBINED, CUMULATIVE EFFECT OF THE ENVIRONMENTAL FORCES, IN ORDER TO BE RESPONSIVE, FOR, AS WE INDICATED EARLIER, APPENDIX A OF THE PURCHASE DESCRIPTION SPECIFIED THAT THE BIDDER NEED ONLY DEMONSTRATE HIS ANTENNA COULD WITHSTAND STATED ENVIRONMENTAL FORCES WHICH WERE TO BE CALCULATED SEPARATELY. THE FACT THE SAME PURCHASE DESCRIPTION REFERENCED A BUREAU OF YARDS AND DOCKS PUBLICATION, NAVDOCKS DM-2, DESIGN MANUAL, STRUCTURAL ENGINEERING, WHICH STATED THAT ENVIRONMENTAL FORCES SHOULD BE COMBINED WHEN CALCULATING THE STRESS ON GUYS AND ANCHOR CABLES DOES NOT RENDER THE GRANGER ASSOCIATES' BID NONRESPONSIVE, FOR AS LONG AS SAID BID WAS RESPONSIVE TO THE PARTICULARIZED SPECIFICATION CONTAINED WITHIN THE PURCHASE DESCRIPTION, IT DOES NOT MATTER THAT THE ITEM COULD NOT MEET A DIFFERING STANDARD CONTAINED IN A REFERENCED PUBLICATION OF GENERAL APPLICATION. THIS FOLLOWS FROM THE PRINCIPLE OF LAW THAT IN CASE OF CONFLICT, THE MORE SPECIFIC TAKES PRECEDENCE OVER THE GENERAL. SEE 3 CORBIN ON CONTRACTS, SECTION 547, 1960 EDITION, WHERE IT IS STATED:

"IF THE APPARENT INCONSISTENCY IS BETWEEN A CLAUSE THAT IS GENERAL AND BROADLY INCLUSIVE IN CHARACTER AND ONE THAT IS MORE LIMITED AND SPECIFIC IN ITS COVERAGE, THE LATTER SHOULD GENERALLY BE HELD TO OPERATE AS A MODIFICATION AND PRO TANTO NULLIFICATION OF THE FORMER.'

THEREFORE, WHEN GRANGER ASSOCIATES COMPLIED WITH APPENDIX A OF THE PURCHASE DESCRIPTION, A SPECIFICATION DRAFTED EXPLICITLY FOR THIS PARTICULAR ANTENNA, IT WAS RESPONSIVE DESPITE THE FACT THAT IT DID NOT COMPLY WITH A VARYING SPECIFICATION APPLICABLE GENERALLY TO GUYS AND ANCHOR CABLES CONTAINED IN A REFERENCED MANUAL.

THE CONTRACTING OFFICER IS OF THE OPINION THAT IT IS NOT NECESSARY FOR THE SUBJECT ANTENNAS TO BE ABLE TO WITHSTAND THE TOTAL OF THE COMBINED LOADING STRESSES, FOR HE SAID IN ENCLOSURE 6 OF HIS REPORT:

"A COMBINATION OF THE THREE FORCES, WHILE NOT IMPOSSIBLE, WOULD BE RARE AND IS NOT IN ACCORD WITH SERVICE CONDITIONS. * * *.'

IT IS A LONG STANDING POLICY OF OUR OFFICE TO PERMIT THE PROCURING AGENCY TO DETERMINE THE SPECIFICATIONS AND STANDARDS OF THE ARTICLES IT PURCHASES, FOR IN 16 COMP. GEN. 38, 41, WE SAID:

"IT IS HARDLY OPEN TO QUESTION THAT THE GOVERNMENT ENGINEERS AND FIELD OFFICERS FAMILIAR WITH THE CONDITIONS UNDER WHICH EQUIPMENT IS TO BE USED AND WITH RESULTS PREVIOUSLY OBTAINED IN THE USE OF SIMILAR EQUIPMENT ARE, OR SHOULD BE, BETTER QUALIFIED TO DETERMINE WHAT IS NEEDED THAN ANY REPRESENTATIVE OF A PARTICULAR MANUFACTURER WHOSE ONLY INTEREST IS TO SELL HIS PRODUCT TO THE GOVERNMENT. THE DECISIONS OF THIS OFFICE ARE, WITHOUT EXCEPTION, TO THE EFFECT THAT THE UNITED STATES IS NOT TO BE PLACED IN THE POSITION OF HAVING A BIDDER DICTATE AS TO ITS REQUIREMENTS, OR DEMAND THAT HIS PRODUCT BE ACCEPTED WITHOUT REGARD TO ACTUAL CONDITIONS. * * *.'

IN 35 COMP. GEN. 174, 179-180, WE DISCUSSED THE BROAD DISCRETIONARY POWER VESTED IN CONTRACTING OFFICERS TO DETERMINE THE LEGITIMATE NEEDS OF THE GOVERNMENT AND FOUND THAT SUCH POWERS WERE LIMITED ONLY BY "A SHOWING OF FAVORITISM, BAD FAITH OR A COMPLETE DISREGARD OF THE FACTS. * * " IT DOES NOT APPEAR THAT THE NAVY'S STANDARD FOR DETERMINING WIND, ICE, AND SEISMIC LOADING UNDER THIS INVITATION IS ARBITRARY, FOR IT IS, AS STATED ABOVE, BASED ON ACTUAL SERVICE CONDITIONS. SINCE THE CONTRACTING OFFICER INFORMS US THAT THE CALCULATIONS UPON WHICH YOU BASED YOUR CONTENTION ASSUME A COMBINATION OF ENVIRONMENTAL STRESSES WHICH ARE UNLIKELY TO OCCUR IN ACTUAL USAGE, WE MUST ACCEPT HIS DECISION NOT TO INCLUDE THE CUMULATIVE STRESSES AS A CONSIDERATION IN THE SPECIFICATIONS.

MOREOVER, WE HAVE CONSISTENTLY REFUSED TO INTERFERE WITH THE TECHNICAL JUDGMENTS OF THE ACQUIRING ACTIVITY SINCE OUR OFFICE HAS NEITHER AN ENGINEERING STAFF NOR THE FACILITIES TO EVALUATE HIGHLY COMPLEX SCIENTIFIC MATTERS OF THIS NATURE. SEE B-149207 OF SEPTEMBER 12, 1962. UNDER THE CIRCUMSTANCES NO FURTHER ACTION ON YOUR PROTEST BY THIS OFFICE IS CONTEMPLATED.