B-135492, APR. 7, 1958

B-135492, APR. 7, 1958

TO PIONEER WAGON WORKS:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1958, PROTESTING OUR SETTLEMENT OF FEBRUARY 10, 1958, DISALLOWING YOUR CLAIM FOR REFUND OF $169 COLLECTED FROM YOU ON ACCOUNT OF EXCESS COST INCURRED BY THE GOVERNMENT UPON YOUR FAILURE TO FURNISH SWING SEATS UNDER CONTRACT NO. 14-10-028-1122 DATED NOVEMBER 6, 1956.

THE SWING SEATS WHICH YOU WERE OBLIGATED TO DELIVER UNDER YOUR CONTRACT WERE DESCRIBED AS FOLLOWS:

"RUBBER SWING SEAT, WITHOUT CHAIN, APPROX. 1 1/2 INCHES THICK, 6 1/2 INCHES WIDE AND 19 1/2 INCHES LONG. SIMILAR OR EQUAL TO AMERICAN PLAYGROUND DEVICE COMPANY NO. RSS.'

YOU DID NOT PROCEED WITH DELIVERY OF THE SEATS UPON THE AWARD OF THE CONTRACT BUT SUBMITTED FOR APPROVAL A SAMPLE SEAT DESCRIBED BY YOU AS A STEEL BOARD SWING WITH NEOPRENE COVERING. YOU WERE ADVISED THAT THE SAMPLE SEAT WAS NOT IN ACCORDANCE WITH THE SPECIFICATIONS AND WERE ADVISED TO FURNISH SWING SEATS IN STRICT ACCORDANCE WITH THE SPECIFICATIONS WHICH YOU FAILED TO DO.

YOU MAINTAIN THAT THE SAMPLE SWING SEAT SUPPLIED BY YOU WAS RESPONSIVE TO THE SPECIFICATIONS ALTHOUGH IT WAS A STEEL FRAME WITH PLASTIC COVERING IN CONTRADISTINCTION TO THE RUBBER-COVERED WOODEN TYPE FRAME UTILIZED IN AMERICAN PLAYGROUND RSS CONSTRUCTION. THE BELT SEAT SAMPLE PROFFERED BY YOU, AS AN ALTERNATIVE, LIKEWISE WAS REJECTED AS NOT BEING IN ACCORDANCE WITH THE SPECIFICATIONS.

THERE IS NOTHING IN THE RECORD TO SUGGEST ARBITRARY ACTION ON THE PART OF THE GOVERNMENT PROCUREMENT OFFICERS RELATIVE TO REJECTING THE SAMPLES SUBMITTED BY YOU. IT APPEARS FROM YOUR LETTER OF JANUARY 25, 1957, THAT YOU HAD BEEN PRODUCING A WOOD BOARD SWING SEAT, PRESUMABLY MEETING SPECIFICATIONS, BUT THAT YOU OFFERED YOUR STEEL BOARD SEAT WITH NEOPRENE COVERING BECAUSE YOU BELIEVED IT TO BE A BETTER PRODUCT. IN CONNECTION WITH THE RELATIVE MERITS OF TWO PRODUCTS, THE SELECTION OF ONE TO THE EXCLUSION OF ANOTHER, IN THE ABSENCE OF FRAUD OR FAVORITISM AMOUNTING THE FRAUD, IS A MATTER OUTSIDE THE AMBIT OF OUR CONSIDERATION. IT IS THE FUNCTION OF THE PROCURING AGENCIES TO DETERMINE WHAT TYPE OF SUPPLIES WILL BEST MEET THEIR NEEDS, AND IT IS NOT FOR OUR OFFICE TO DETERMINE THE NEEDS OF THE GOVERNMENT OR TO COMPEL GOVERNMENT PROCUREMENT OFFICERS TO SPECIFY ONE PRODUCT OVER ANOTHER. SEE 36 COMP. GEN. 251. MOREOVER YOUR INFERENCE THAT THE SAMPLES OFFERED BY YOU DID NOT CONFORM TO THE PERSONAL NOTIONS OF THE PARK MAINTENANCE SUPERINTENDENT MAY NOT BE ACCEPTED AS RELIEVING YOU OF THE EXCESS COSTS SINCE THE PRIMARY QUESTION IS WHETHER THE SWING SEATS MET THE SPECIFICATIONS. AS INDICATED ABOVE, THE PRESENT RECORD SUPPORTS THE ADMINISTRATIVE DETERMINATION THAT THE SAMPLE SWING SEAT OFFERED BY YOU FAILED TO MEET THE CONTRACT SPECIFICATIONS.