B-200443, B-200444 L/M, AUG 21, 1981, OFFICE OF GENERAL COUNSEL

B-200443, B-200444 L/M, AUG 21, 1981, OFFICE OF GENERAL COUNSEL

DIGEST: BURDEN IS ON PROTESTER COMPLAINING THAT SPECIFICATIONS UNDULY RESTRICT COMPETITION TO SHOW THAT CONTRACTING AGENCY'S IMPOSITION OF THE RESTRICTIONS IS UNREASONABLE.

S.A.F.E. EXPORT CORPORATION:

ATTENTION: E. J. P. TIERNEY

WE REFER TO YOUR PROTESTS ALLEGING IMPROPRIETIES IN TWO SOLICITATIONS, REQUEST FOR PROPOSALS (RFP) F61521-80-R-0273 AND REQUEST FOR QUOTATIONS (RFQ) F61521-80-Q-7709, ISSUED BY THE DEPARTMENT OF THE AIR FORCE FOR THE INSTALLATION OF SMOKE DETECTION SYSTEMS IN U. S. MILITARY FAMILY HOUSING UNITS IN WEST GERMANY. YOU ALLEGED THAT SMOKE DETECTOR SPECIFICATIONS IN THE TWO SOLICITATIONS UNDULY RESTRICTED COMPETITION BECAUSE THEY DID NOT CONFORM TO THE STANDARDS ENUMERATED IN A UNITED STATES ARMY (EUROPE) (USAREUR) POLICY LETTER. ADDITIONALLY, WITH REGARD TO THE RFP, YOU OBJECTED TO SOLICITATION REFERENCES TO GERMAN REGULATIONS AND INDUSTRIAL STANDARDS, REFERRED TO AS DEUTSCHE INDUSTRY NORMS (DINS). YOU CONTENDED THAT THE GERMAN REGULATIONS AND DINS DO NOT APPLY TO A UNITED STATES COMPANY.

THE AIR FORCE ADVISES THAT IN RESPONSE TO YOUR ALLEGATIONS THAT THE RFP AND RFQ SPECIFICATIONS DID NOT CONFORM TO USAREUR STANDARDS, THE AGENCY REVIEWED THE SPECIFICATIONS IN BOTH SOLICITATIONS, CONSULTED ENGINEERS REPRESENTING THE DEPARTMENT OF THE ARMY AND, CONSEQUENTLY, ISSUED AMENDMENTS TO BOTH SOLICITATIONS BRINGING THEM INTO CONFORMANCE WITH THE REQUIREMENTS OF THE USAREUR POLICY LETTER. THE AIR FORCE STATES THAT THE ARMY ENGINEERS CERTIFIED THAT THE AMENDED SOLICITATIONS CONFORMED TO THE POLICY LETTER SPECIFICATIONS.

THE AIR FORCE FURTHER ADVISES THAT YOU ACKNOWLEDGED THESE AMENDMENTS, AND INDICATED THAT YOU CONSIDERED THE PROTESTS PARTIALLY SETTLED AND THAT YOU WOULD BE WITHDRAWING THEM. YOU THEN SUBMITTED OFFERS UNDER BOTH SOLICITATIONS AND TOOK PART IN NEGOTIATIONS. BECAUSE OF THE STATED INTENT TO WITHDRAW THE PROTESTS, AND YOUR PARTICIPATION IN NEGOTIATIONS WITHOUT REASSERTING PREVIOUS OBJECTIONS, THE AIR FORCE CONSIDERED THE PROTESTS EITHER TO BE WITHDRAWN OR RESOLVED AND, AT THE CONCLUSION OF NEGOTIATIONS, AWARDS WERE MADE TO FIRMS OTHER THAN SAFE.

EVIDENTLY, YOU SUBSEQUENTLY INFORMED THE AIR FORCE THAT YOU CONSIDERED THE PROTESTS TO BE UNRESOLVED. SPECIFICALLY, YOU CONTENDED THAT ALTHOUGH THE SOLICITATION AMENDMENTS CORRECTED PHOTOELECTRIC SMOKE DETECTOR SPECIFICATIONS, THE SPECIFICATIONS AS AMENDED STILL DID NOT COMPLY WITH THE USAREUR POLICY LETTER WITH REGARD TO INTEGRATED SMOKE DETECTION AND SIGNAL HORN REQUIREMENTS. YOU ALSO NOTED THAT REFERENCES TO GERMAN REGULATIONS AND DINS HAD NOT BEEN REMOVED FROM THE SOLICITATIONS.

AS YOU KNOW, THE BURDEN IS ON THE PROTESTER COMPLAINING THAT SPECIFICATIONS UNDULY RESTRICT COMPETITION TO SHOW THAT THE PROCURING AGENCY'S IMPOSITION OF THE RESTRICTIONS IS NOT REASONABLY RELATED TO THE AGENCY'S NEEDS. CONSTANTINE N. POLITES & CO., B-189214, DECEMBER 27, 1978, 78-2 CPD 437. THIS IS SO BECAUSE THE GOVERNMENT'S CONTRACTING AGENCIES GENERALLY ARE IN THE BEST POSITION TO KNOW THEIR ACTUAL NEEDS. SEE PARTICLE DATA, INC.; COULTER ELECTRONICS, INC., B-179762, B-178718, MAY 15, 1974, 74-1 CPD 257.

THE BASIS FOR YOUR ARGUMENT THAT THE SMOKE DETECTOR SPECIFICATIONS WERE UNDULY RESTRICTIVE IS THAT THE SPECIFICATIONS DID NOT FULLY COMPLY WITH THE USAREUR POLICY LETTER. IN VIEW OF THE AIR FORCE'S EFFORTS AS DESCRIBED, HOWEVER, AS WELL AS BASED ON YOUR PARTICIPATION IN THE PROCUREMENTS IN ISSUE, IT APPEARS THAT THE SPECIFICATIONS AT THE LEAST WERE IN SUBSTANTIAL COMPLIANCE. IN ANY CASE, IT IS EVIDENT FROM THE PROCUREMENT PRINCIPLE STATED ABOVE THAT WHETHER THE SPECIFICATIONS COMPLIED WITH THE POLICY LETTER IS NOT DISPOSITIVE OF WHETHER THEY UNDULY RESTRICTED COMPETITION. RATHER, YOU MUST SHOW THAT THE AIR FORCE'S STATEMENT OF ITS NEEDS WAS UNREASONABLY LIMITED. YOUR MERE ASSERTION THAT THE SPECIFICATIONS DID NOT FULLY COMPLY WITH A USAREUR POLICY LETTER DOES NOT SUSTAIN YOUR BURDEN IN THAT RESPECT.

REGARDING YOUR GENERAL OBJECTIONS TO THE SOLICITATION'S REFERENCES TO GERMAN REGULATIONS AND DINS, THE AIR FORCE REPORTS THAT THESE OBJECTIONS ARE INCONSISTENT WITH THE REQUEST THAT THE SPECIFICATIONS COMPLY WITH THE USAREUR POLICY LETTER, BECAUSE THE POLICY LETTER ITSELF CONTAINS REFERENCES TO THESE GERMAN INDUSTRIAL STANDARDS. IN ANY EVENT, WE DO NOT SEE HOW THE GERMAN STANDARDS PRECLUDE A CONTRACTING OFFICER FROM SECURING UNITED STATES PRODUCTS. FURTHER, SINCE THEY APPARENTLY REQUIRE COMPLIANCE WITH A SET OF SAFETY OR MANUFACTURING STANDARDS ADOPTED BY A RECOGNIZED ORGANIZATION, WE CAN SEE NO REASON TO OBJECT TO THEIR INCLUSION IN THE SOLICITATION. SEE WORCESTER ELECTRICAL ASSOCIATES, B-193064, APRIL 5, 1979, 79-1 CPD 236.