B-169444, MAY 22, 1970

B-169444, MAY 22, 1970

CONTRACTS--WARRANTIES--ADMINISTRATIVE DETERMINATION TO INCLUDE BIDDER'S PROTEST AGAINST AWARD OF CONTRACT FOR MAINTENANCE AND REPAIR SERVICES ON GYRO INDICATOR SYSTEM, ON BASIS WARRANTY SHOULD HAVE BEEN INCLUDED IN INVITATION HAD AIR FORCE PROPERLY CONSIDERED CRITERIA THEREFOR IN ASPR 1-324.3 (B) IS DENIED SINCE BIDDER CANNOT BE PERMITTED TO DICTATE GOVERNMENT CONTRACT REQUIREMENTS, SUCH AS INCLUSION OF WARRANTY CLAUSE, WHEN IN CONSIDERED JUDGMENT OF PROCUREMENT ACTIVITY, INCLUSION OF SUCH CLAUSE WOULD NOT SERVE ANY USEFUL PURPOSE. MOREOVER, SINCE DRAFTING OF SPECIFICATIONS IS RESPONSIBILITY OF ADMINISTRATIVE AGENCY, SPECIFICATIONS' CONTENT WILL NOT BE OBJECTED TO, ABSENT SHOWING OF ABUSE OF ADMINISTRATIVE DISCRETION. SEE COMP. GEN. DECS. CITED.

TO ARIZONA INSTRUMENT CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 30 AND SUPPLEMENTING LETTER OF APRIL 8, 1970, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER REQUEST FOR PROPOSALS (RFP) NO. F34601-70-R-0717, ISSUED BY THE OKLAHOMA CITY AIR MATERIEL AREA (OCAMA), TINKER AIR FORCE BASE, OKLAHOMA.

THE SUBJECT RFP, ISSUED ON NOVEMBER 25, 1969, COVERED SERVICES NECESSARY TO ACCOMPLISH MAINTENANCE ACCESSORY TEST AND REPAIR ON CONDITION OF COMPONENTS OF THE VERTICAL GYRO INDICATOR PHASE I SYSTEM. THE RFP CONTEMPLATES AN INDEFINITE QUANTITY-TYPE CONTRACT WITH A STATED MINIMUM AND A STATED MAXIMUM QUANTITY. NO WARRANTY WAS REQUESTED IN THE RFP.

YOU CONTEND THAT YOU AMENDED YOUR ORIGINAL PROPOSAL "TO INCLUDE A WARRANTY OF ONE YEAR AFTER DATE OF ACCEPTANCE OF THE ITEMS INVOLVED AT NO INCREASE IN COST TO THE GOVERNMENT." YOU FURTHER CONTEND THAT A PROPER CONSIDERATION OF THE CRITERIA UNDER PARAGRAPH 1-324.3 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WOULD HAVE PERSUADED THE CONTRACTING OFFICER TO INCLUDE A WARRANTY PROVISION IN THE REQUEST FOR PROPOSALS.

IT IS REPORTED THAT THERE IS NO RECORD OF RECEIPT OF YOUR AMENDMENT BY THE CONTRACTING OFFICER. HOWEVER, SINCE A WARRANTY WAS NOT REQUIRED BY THE RFP AND THE ONE OFFERED WAS PURELY GRATUITOUS BY YOUR OWN ADMISSION, THE MATTER OF THE NONRECEIPT OF YOUR WARRANTY OFFER IS NOT SIGNIFICANT IN THE PRESENT POSTURE OF THE MATTER. IT IS FURTHER REPORTED THAT THE MATTER OF APPLYING A WARRANTY TO THIS PROPOSED PROCUREMENT WAS CONSIDERED BY OCAMA DURING THE PRESOLICITATION PLANNING STAGE AND AFTER DUE DELIBERATION A DECISION WAS MADE NOT TO USE A WARRANTY. THIS DETERMINATION WAS MADE WITHIN THE PURVIEW OF THE PROCURING ACTIVITY'S AUTHORITY AND WAS PREDICATED UPON A FINDING THAT REPAIRED COMPONENTS LOSE THEIR IDENTITY WHEN SUBSEQUENTLY INSTALLED IN GYROS. CONSEQUENTLY, IT WOULD BE DIFFICULT, IF NOT IMPOSSIBLE, TO RECORD, TRACK AND ADMINISTER ANY WARRANTY PROVISIONS. THEREFORE, THE RFP AS ISSUED CONTAINED NO WARRANTY PROVISIONS.

ASPR 1-324.2 (A) PROVIDES THAT A WARRANTY CLAUSE SHALL BE USED AFTER THE FACTORS LISTED IN ASPR 1-324.3 (B) ARE CONSIDERED. AS REPORTED BY THE PROCURING ACTIVITY, SUCH FACTORS WERE CONSIDERED AND FOUND TO BE INAPPLICABLE TO THIS PROCUREMENT.

THE DRAFTING OF SPECIFICATIONS FOR USE IN A SOLICITATION, INCLUDING THE INCLUSION OF CLAUSES OF SPECIAL OR GENERAL PURPORT, IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES AND WE WILL NOT OBJECT TO THE CONTENTS OF SPECIFICATIONS IN THE ABSENCE OF A SHOWING THAT THE ADMINISTRATIVE DISCRETION HAS BEEN ABUSED. 17 COMP. GEN. 554 (1938); 38 ID. 190 (1958). MOREOVER, THE GOVERNMENT MAY NOT BE PLACED IN A POSITION WHEREBY OFFERORS MAY DICTATE CONTRACT REQUIREMENTS, SUCH AS THE INCLUSION OF A WARRANTY CLAUSE WHEN, IN THE CONSIDERED JUDGMENT OF THE PROCUREMENT ACTIVITY, THE INCLUSION OF SUCH A CLAUSE WOULD NOT SERVE A USEFUL PURPOSE. CF. 36 COMP. GEN. 251 (1956). FOR THE FOREGOING REASONS, WE FIND NO BASIS TO OBJECT TO THE ADMINISTRATIVE DETERMINATION CONCERNING THE NONINCLUSION OF A WARRANTY CLAUSE.