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B-162036, NOV. 9, 1967

B-162036 Nov 09, 1967
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ALTHOUGH UNSUCCESSFUL BIDDER ALLEGES THAT SPECIFICATIONS CAN BE MET ONLY BY ONE MANUFACTURER AND THEREFORE ARE RESTRICTIVE ADMINISTRATIVE REPORT INDICATES THAT 3 COMPANIES BID UNDER AN EARLIER SIMILAR PROCUREMENT AND 5 COMPANIES BID ON PRESENT PROCUREMENT. WHILE IT IS DUTY OF GAO TO DETERMINE WHETHER SPECIFICATIONS ARE UNDULY RESTRICTIVE. THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS IS NOT SUFFICIENT TO WARRANT CONCLUSION THAT SPECIFICATIONS ARE RESTRICTIVE. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 9. DSA-400-67-B 8392 WAS PROPERLY REJECTED AS NONRESPONSIVE. YOU CONTEND THAT THE BASIS FOR FINDING YOUR BID NONRESPONSIVE WAS UNWARRANTED SINCE YOUR MODEL NO. 3558 REFRIGERATOR HAS THREE SHELVES AS REQUIRED AND THE ADDITIONAL HEIGHT WOULD NOT LIMIT ITS SUITABILITY FOR ANY INSTALLATION.

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B-162036, NOV. 9, 1967

BIDS - SPECIFICATIONS - RESTRICTIVE DECISION TO LAB-LINE INSTRUMENTS, INC., RE RECONSIDERATION OF DECISION OF SEPT. 19, 1967, CONCERNING REJECTION OF BID BY DEFENSE SUPPLY AGENCY. ALTHOUGH UNSUCCESSFUL BIDDER ALLEGES THAT SPECIFICATIONS CAN BE MET ONLY BY ONE MANUFACTURER AND THEREFORE ARE RESTRICTIVE ADMINISTRATIVE REPORT INDICATES THAT 3 COMPANIES BID UNDER AN EARLIER SIMILAR PROCUREMENT AND 5 COMPANIES BID ON PRESENT PROCUREMENT. WHILE IT IS DUTY OF GAO TO DETERMINE WHETHER SPECIFICATIONS ARE UNDULY RESTRICTIVE, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS IS NOT SUFFICIENT TO WARRANT CONCLUSION THAT SPECIFICATIONS ARE RESTRICTIVE. DECISION OF SEPTEMBER 19, 1967, AFFIRMED.

TO LAB-LINE INSTRUMENTS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 9, 1967, AND ENCLOSURE, REQUESTING RECONSIDERATION OF OUR DECISION OF SEPTEMBER 19, 1967, IN WHICH WE HELD THAT YOUR BID UNDER INVITATION FOR BIDS NO. DSA-400-67-B 8392 WAS PROPERLY REJECTED AS NONRESPONSIVE.

YOU CONTEND THAT THE BASIS FOR FINDING YOUR BID NONRESPONSIVE WAS UNWARRANTED SINCE YOUR MODEL NO. 3558 REFRIGERATOR HAS THREE SHELVES AS REQUIRED AND THE ADDITIONAL HEIGHT WOULD NOT LIMIT ITS SUITABILITY FOR ANY INSTALLATION. IN ADDITION, YOU CONTEND THAT THE SPECIFICATIONS AS NOW WRITTEN ARE RESTRICTIVE SINCE ONLY ONE MANUFACTURER MEETS THE DIMENSION REQUIREMENTS.

ALTHOUGH YOUR LITERATURE DEPICTS THREE SHELVES, THE TECHNICAL EVALUATION REPORT OF YOUR PRODUCT STATES THAT ONLY TWO SHELVES ARE METAL AS REQUIRED BY PARAGRAPH 3.6.1.7 AND TABLE I OF THE SPECIFICATIONS. IN ADDITION TO THE AREAS OF NONCOMPLIANCE WITH THE SPECIFICATIONS ALREADY NOTED, EVALUATION OF YOUR LITERATURE AND INFORMATION FURNISHED BY SRA WHEN BIDDING YOUR PRODUCT INDICATES SEVERAL OTHER AREAS OF NONCOMPLIANCE. FOR EXAMPLE, WE QUOTE A FEW EXCERPTS FROM THE EVALUATION REPORT:

"PARA 3.4.4 AND 3.6.1.8. TWO ALUMINUM ALLOY TRAYS WITH GRIDS OF CORROSION RESISTING METAL AND A TOTAL CAPACITY OF 2.8 LBS. ARE REQUIRED. EACH TRAY TO BE FURNISHED WITH A QUICK RELEASE MECHANISM FOR EJECTION OF THE ICE CUBES. SRA INC., LETTER INDICATES TWO TRAYS OF ALUMINUM ALLOY BUT WITH PLASTIC GRIDS AND CAPACITY OF ONLY 1-3/4 LBS. THE BIDDER WAS SILENT ON REQUIREMENT FOR THE QUICK RELEASE MECHANISM. SUPPORTS OR SHELVES ARE REQUIRED FOR THE ICE TRAYS. SRA INC, LETTER ADVISES THESE ARE NOT FURNISHED WITH THIS REFRIGERATOR.'

"PARA 3.6.1.5.2 LAB LINE BULLETIN IS SILENT ON BREAKER STRIPS, HOWEVER, SRA INC. LETTER ADVISES THE BREAKER STRIPS FURNISHED WILL NOT MEET THE TEST REQUIREMENTS CITED IN PARA 4.4.12.'

"PARA 3.6.1.2 LAB LINE BULLETIN SILENT. SRA INC., LETTER STATES THAT THE INNER SURFACES OF THE CABINET (OUTER SHELL) DO NOT HAVE AN APPLICATION OF VINYL, EPOXY OR ZINC CHROMATE PRIMER AS REQUIRED BY THE PURCHASE DESCRIPTION. LETTER NOT DEFINITE REGARDING TEMPERATURE DIFFERENCE REQUIREMENT.'

"PARA 3.6.2 LAB LINE'S BULLETIN SILENT. SRA INC., ADVISES THEY DO NOT MEET REQUIREMENT FOR THE CORD AND PLUG. A THREE WIRE CORD WITH A THREE PRONG PLUG TO PROVIDE FOR GROUNDING THE REFRIGERATOR IS SPECIFIED. THE BIDDER OFFERS A TWO WIRE CORD AND TWO PRONG PLUG. THE GROUNDING FEATURE IS A SAFETY REQUIREMENT AND MUST BE FURNISHED.' THE REPORT ALSO INDICATES SEVERAL OTHER AREAS OF QUESTIONABLE COMPLIANCE.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THESE SPECIFICATIONS IS PRIMARILY THAT OF THE ADMINISTRATIVE AGENCY CONCERNED. 17 COMP. GEN. 554. IN THE INSTANT CASE, IT IS OUR OPINION THAT THE TECHNICAL EVALUATION REPORT CLEARLY SUPPORTS THE ADMINISTRATIVE DETERMINATION THAT YOUR BID DID NOT COMPLY WITH THE SPECIFICATIONS.

ALTHOUGH YOU ALLEGE THE SPECIFICATIONS ARE RESTRICTIVE AND CAN BE MET BY ONLY ONE MANUFACTURER, YOU SUBMIT NO EVIDENCE TO SUBSTANTIATE THIS CHARGE. IN THIS CONNECTION, IT IS REPORTED THAT AT LEAST THREE COMPANIES BID UNDER THE EARLIER INVITATION AND THERE WERE FIVE BIDDERS FOR THE SUBJECT PROCUREMENT. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEEDS IS NOT SUFFICIENT TO WARRANT THE CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 36 COMP. GEN. 251. THE RECORD BEFORE OUR OFFICE CONTAINS NO EVIDENCE THAT THE SPECIFICATIONS PRECLUDED ALL BUT ONE COMPANY FROM MEETING THE REQUIREMENTS SET OUT THEREIN.

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