B-153590, APR. 8, 1964

B-153590, APR. 8, 1964

TO HAMMETT-MERCURY-REX COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21, 1964, ADDRESSED TO THE UNITED STATES NAVY PURCHASING OFFICE, COPY OF WHICH YOU TRANSMITTED TO OUR OFFICE, ALLEGING THAT THE SPECIFICATIONS FOR A SPOT WELDER SET FORTH IN INVITATION FOR BIDS NO. 600-562-64 ARE RESTRICTIVE.

YOU ALLEGE THAT THE PHYSICAL DIMENSIONS SPECIFIED IN THE INVITATION ARE MEANINGLESS IN DEFINING ACTUAL OPERATING PERFORMANCE REQUIREMENTS, AND THAT ON THE MORE IMPORTANT FIELD OF TIMER REQUIREMENTS THE SPECIFICATIONS ARE SILENT.

THE INVITATION, WHICH COVERS THE FURNISHING OF ONE 100 KVA SPOT WELDER TO THE BOSTON NAVAL SHIPYARD, BOSTON, MASSACHUSETTS, CARRIES THE FOLLOWING STATEMENT:

"THE PURCHASE DESCRIPTION SET FORTH BELOW REFLECTS THOSE SALIENT CHARACTERISTICS WHICH ARE ESSENTIAL TO THE MINIMUM NEEDS OF THE GOVERNMENT.'

BY LETTER DATED MARCH 9, 1964, THE NAVY PURCHASING OFFICE, IN REPLY TO YOUR LETTER OF FEBRUARY 21, 1964, ADVISED YOU THAT THE PURCHASE DESCRIPTION IN THE INVITATION IS A PERFORMANCE RATHER THAN A DESIGN SPECIFICATION AND THE DIMENSIONS WERE GIVEN AS APPROXIMATE TO PROVIDE ALL BIDDERS AN EQUAL OPPORTUNITY TO BID ON ANY OR ALL MODELS WHICH WOULD MEET THE GENERAL TYPE OF SPOT WELDER DESIRED. IN THAT CONNECTION, FIVE RESPONSIVE BIDS RANGING FROM $4,839 TO $7,785 WERE RECEIVED ON THE ITEM. THE LETTER OF MARCH 9 ALSO ADVISED YOU THAT WHILE SECTION 3.3.5 OF THE GOVERNING SPECIFICATIONS DID NOT SPECIFY THE TYPE OF CONTROL DESIRED, THE NAVY PURCHASING OFFICE, WAS, NEVERTHELESS, OF THE OPINION THAT ONLY A SUITABLE CONTROL COULD MEET THE SPECIFIED REQUIREMENTS OF THAT SECTION.

THE RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE PROCUREMENT AGENCY. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS 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 A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. NOR IS THERE ANY REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT REGARD TO THE PARTICULAR NEEDS TO BE SERVED. COMP. GEN. 251, 252.

FROM THE FOREGOING, IT IS APPARENT THAT THE SPECIFICATIONS GAVE BIDDERS SUFFICIENT LATITUDE TO INSURE COMPETITION IN KEEPING WITH THE INTENT OF THE PROCUREMENT STATUTES AND REGULATIONS, AS EVIDENCED BY THE FACT THAT FIVE RESPONSIVE BIDS WERE RECEIVED UNDER THE INVITATION. ACCORDINGLY, WE SEE NO LEGAL BASIS ON WHICH WE WOULD BE WARRANTED IN FINDING THAT THE SPECIFICATIONS ARE RESTRICTIVE. WE APPRECIATE, NEVERTHELESS, YOUR INTEREST IN ACHIEVING ECONOMY IN GOVERNMENT PROCUREMENT.