B-144324, MAR. 16, 1961

B-144324, MAR. 16, 1961

TO FWD CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 21, 1960, AND TO SUBSEQUENT CORRESPONDENCE ADDRESSED TO THE FEDERAL AVIATION AGENCY, PROTESTING AGAINST THE USE OF SPECIFICATIONS NOS. FAA-BNCA-102, AND FAA- BNCA-103, MADE A PART OF INVITATION FOR BIDS NO. 1-3182B1, COVERING THE PROCUREMENT OF A NUMBER OF FIRE FIGHTING TRUCKS. BY THE CHANGES THERETO CONTAINED IN AMENDMENT NO. 1, ISSUED UNDER DATE OF DECEMBER 14, 1960, IT APPEARS THAT CERTAIN OF THE OBJECTIONS RAISED IN YOUR INITIAL LETTER HAVE BEEN OVERCOME. HOWEVER, THE REMAINING EXCEPTIONS TAKEN WERE REITERATED IN YOUR LETTER OF DECEMBER 30, 1960, AND WILL BE CONSIDERED IN THE ORDER PRESENTED.

YOU CONTEND THAT CONSIDERATION SHOULD BE GIVEN TO THE SPECIFICATIONS RELATING TO SIMILAR EQUIPMENT IDENTIFIED AS TYPE A/S 32 P-2, WHICH HAS BEEN ADOPTED BY THE DEPARTMENT OF THE AIR FORCE, SINCE IT IS IN PRODUCTION; WILL BE FULLY PROVEN AND QUALIFIED TO MEET THE PERFORMANCE REQUIREMENTS OF FAA, AND CAN BE DELIVERED FOR LESS MONEY IN A SHORTER TIME. ALSO, WITH YOUR LETTER OF DECEMBER 30, 1960, YOU TRANSMITTED A SET OF YOUR OWN SPECIFICATIONS (S-1017, DATED DECEMBER 29, 1960), SUGGESTING THAT THEY BE SUBSTITUTED FOR THOSE DRAFTED BY THE ADMINISTRATIVE OFFICE.

WITH RESPECT TO THE UNITS PREVIOUSLY ADOPTED BY THE AIR FORCE, AND THE TRUCKS NOW BEING PROCURED, THE RECORD SHOWS THAT THE P-2 PROGRAM IS A COMBINATION DEVELOPMENT AND PRODUCTION CONTRACT, THE LATTER BEING SUBJECT TO SATISFACTORY DEVELOPMENT OF THE PILOT MODEL. WE HAVE BEEN INFORMALLY ADVISED THAT STANDARDIZATION OF PARTS FOR THE PREVIOUS FIRE FIGHTING TRUCKS AND OTHER HEAVY DUTY EQUIPMENT WAS A MAJOR CONSIDERATION OF THE AIR FORCE AND THEREFORE INFLUENCED ITS CHOICE OF SPECIFICATIONS. SINCE TIME IS OF THE ESSENCE IN THIS PROCUREMENT, THE AWARDING OF A CONTRACT CANNOT BE DEFERRED UNTIL THE NEWLY DESIGNED UNIT OF THE AIR FORCE HAS BEEN TESTED.

IN REGARD TO THE SPECIFICATIONS WHICH YOU HAVE SUBMITTED, IT IS NOTED THAT SEVERAL MATERIAL DEVIATIONS FROM THE DESIRED EQUIPMENT HAVE BEEN FOUND, SUCH AS MANUAL INSTEAD OF AUTOMATIC LOCKING AXLE DIFFERENTIALS; SINGLE REDUCTION TYPE AXLES INSTEAD OF FULL-FLOATING, DOUBLE REDUCTION AXLES; AND, INADEQUATE WATER AND FOAM CAPACITY TANKS. FOR THESE REASONS, AND OTHER LESS MATERIAL ASPECTS THEREOF, YOUR SPECIFICATIONS HAVE BEEN FOUND TO BE UNACCEPTABLE.

MUCH EMPHASIS IS PLACED UPON YOUR CONTENTION THAT AN 8 BY 8 CONFIGURATION IS SUPERIOR TO THE 4 BY 4 CHASSIS SPECIFIED IN THE INVITATION. WE ARE ADVISED THAT THE 8 BY 8 CHASSIS FOR USE ON A CRASH TRUCK OF THE SIZE HERE INVOLVED IS STILL IN THE EXPERIMENTAL CLASS, AND THEREFORE WAS DISREGARDED IN THE DRAFTING OF THE SUBJECT SPECIFICATIONS. WITH RESPECT TO THOSE CONTENTIONS, IT HAS BEEN HELD REPEATEDLY BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT THE UNITED STATES IS NOT REQUIRED TO PURCHASE EQUIPMENT OR SUPPLIES MERELY BECAUSE THEY ARE OFFERED AT A LOWER PRICE WHEN, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, THE ACTUAL NEEDS OF THE GOVERNMENT WOULD NOT BE SERVED THEREBY. AS TO THIS PROCUREMENT, WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE SPECIFICATIONS, AS AMENDED, WERE NOT BASED UPON A BONA FIDE DETERMINATION OF THE NEEDS OF THE GOVERNMENT. THE EXERCISE OF SUCH DISCRETION IS VESTED IN THE PROCUREMENT OFFICIALS INVOLVED IN EACH CASE AND, IN THE ABSENCE OF BAD FAITH, IS NOT SUBJECT TO JUDICIAL REVIEW. CLEARLY, IN THE ORDERLY CONDUCT OF ITS BUSINESS THE GOVERNMENT MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE SUCH DISCRETIONARY AUTHORITY WITH ONE OF ITS POTENTIAL SUPPLIERS.

IN YOUR LETTER OF OCTOBER 21, 1960, YOU ALLEGE THAT THE ADVERTISED SPECIFICATIONS ARE UNDULY RESTRICTIVE WITH RESPECT TO CERTAIN COMPONENTS OF THE TRUCK SUCH AS AXLES, BRAKES, WHEELS, TRANSMISSIONS, AND MOTORS. THE RECORD SHOWS THAT THE SPECIFIED REQUIREMENTS THEREOF, IN PART, EITHER HAVE BEEN RELAXED OR OTHERWISE AMENDED TO OVERCOME YOUR OBJECTIONS, AS PREVIOUSLY STATED, THE DETAILS OF WHICH ARE SET FORTH IN LETTER OF NOVEMBER 28, 1960, TO YOU FROM THE ADMINISTRATIVE OFFICE, AND WILL NOT BE REPEATED. THE REMAINING SPECIFICATIONS HAVE BEEN ADHERED TO AS REPRESENTING THE MINIMUM REQUIREMENTS ACCEPTABLE FOR THOSE COMPONENTS, MANY OF WHICH ARE OBTAINABLE ON THE OPEN MARKET.

IN THE CIRCUMSTANCES IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING EITHER THE TERMS OF THE INVITATION, AS AMENDED, OR THE REJECTION BY THE ADMINISTRATIVE OFFICE OF THE SPECIFICATIONS WHICH YOU HAVE SUBMITTED.