B-150039, NOV. 13, 1962

B-150039, NOV. 13, 1962

THE EIMCO CORPORATION:

IN YOUR LETTER OF OCTOBER 2, 1962, YOU PROTESTED THE REJECTION OF YOUR BID AS NONRESPONSIVE TO THE SPECIFICATIONS IN INVITATION FOR BIDS NO. BIA- 0650-239, ISSUED BY THE BUREAU OF INDIAN AFFAIRS, UNITED STATES DEPARTMENT OF THE INTERIOR, ON AUGUST 16, 1962.

YOU STATE THAT THE BUREAU INCREASED THE REQUIREMENTS OF INTERIM FEDERAL SPECIFICATION KKK-T-00631A (GSA-FSS) IN REGARD TO THE TRACTOR LISTED THEREIN AS SIZE T-9. THE FEDERAL SPECIFICATION REQUIRED A TRACTOR OF THIS SIZE TO HAVE A MINIMUM HORSEPOWER OF 186 AND A MINIMUM WEIGHT OF 38,000 POUNDS, WHILE THE BUREAU SOLICITED BIDS ON A TRACTOR OF NOT LESS THAN 210 HORSEPOWER AND WEIGHING NOT LESS THAN 42,000 POUNDS. YOU OFFERED A TRACTOR WHICH YOU ALLEGE MEETS THE REQUIREMENT OF THE CITED FEDERAL SPECIFICATION AND ALLEGEDLY THE REQUIREMENTS OF THE BUREAU.

THE BUREAU REPORTS THAT IN ORDER TO CONSTRUCT HIGHWAYS ON INDIAN RESERVATIONS WITH ITS LIMITED SUPPLY OF VARIOUS EQUIPMENTS, IT NEEDS A TRACTOR WITH A POSITIVE DRAWBAR PULL OF 32,000 POUNDS AT 1.5 MILES PER HOUR. IT WAS DETERMINED THAT ONLY A TRACTOR WEIGHING AT LEAST 42,000 POUNDS WOULD BE ABLE TO ACCOMPLISH THIS REQUIREMENT, AND THAT THE FOUR FIRMS WHICH WERE KNOWN TO OFFER THIS SIZE TRACTOR WOULD ASSURE ADEQUATE COMPETITION. THESE DETERMINATIONS WERE LATER CONFIRMED BY (1) REFERENCE TO A SERIES OF TESTS CONDUCTED BY THE ARMY ENGINEERS AT FORT BELVOIR, VIRGINIA, WHICH SHOWED THE PULLING POWER OF YOUR TRACTOR TO BE 26,500 POUNDS AT 1.5 MILES PER HOUR, AND (2) THE FACT THAT 3 OF THE 4 FIRMS SOLICITED OFFERED COMPETITIVE BIDS.

INTERIM FEDERAL SPECIFICATIONS ARE FOR OPTIONAL USE. SEE FEDERAL PROCUREMENT REGULATION 1-1.305-4. THE RECORD REASONABLY ESTABLISHES THAT THE REQUIREMENTS OF THE AGENCY WERE IN EXCESS OF THOSE WHICH WOULD BE SATISFIED BY THE USE OF THE APPLICABLE INTERIM FEDERAL SPECIFICATION, AND THAT THE PRODUCT YOU OFFERED DID NOT MEET THESE AGENCY REQUIREMENTS. FURTHERMORE, THE RECORD REASONABLY ESTABLISHES THAT THE CHARACTERISTICS OF YOUR PRODUCT DIFFERED IN A DEMONSTRATIVE MANNER FROM THE GOVERNMENT'S REQUIREMENTS. THE DEPARTMENT OF THE INTERIOR STATES THAT THESE DIFFERENCES CAUSED YOUR MACHINE TO OPERATE IN A MANNER WHICH WAS NOT IN COMPLIANCE WITH THE SPECIFICATIONS. THE QUESTION AS TO WHETHER THE TECHNICAL PERFORMANCE REQUIREMENTS ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, AND THE QUESTION AS TO THE MATERIALITY OF THE DIFFERENCES BETWEEN YOUR MACHINE AND THE ONE CALLED FOR IN THE SPECIFICATIONS, ARE NOT ORDINARILY CONSIDERED TO BE WITHIN THE JURISDICTION OF OUR OFFICE. IN OUR DECISION B-139830, DATED AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * *

IN THIS REGARD, WE HELD IN OUR DECISION B-143389, DATED AUGUST 26, 1960, AS FOLLOWS:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

" "IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *" "

IN VIEW OF THE FACTS REPORTED IN THIS CASE, AND FOR THE REASONS SET OUT IN THE ABOVE-CITED DECISIONS, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN.