B-156373, AUG. 25, 1965

B-156373, AUG. 25, 1965

TO MR. H. GEORGE SKALLER, GENERAL MANAGER, KETTLE AND SINK DIVISIONS, LEGION UTENSILS CO., INC.

REFERENCE IS MADE TO YOUR LETTERS DATED JUNE 10 AND 23, JULY 20 AND 26, 1965, REGARDING YOUR PROTEST OF THE ACTION OF THE PENSACOLA NAVAL AIR STATION, PENSACOLA, FLORIDA, IN DISQUALIFYING YOUR BID UNDER AN INVITATION DEVIATING FROM FEDERAL SPECIFICATION RR-K-195C OF SEPTEMBER 3, 1963. THIS MATTER WAS THE SUBJECT OF OUR DECISION B-156373, DATED JUNE 8, 1965, CONCERNING THE DESIRABILITY OF OPEN RIM VERSUS CLOSED BEAD TOP EDGE FOR SOUP KETTLE CONSTRUCTION.

YOU REQUEST THE NAMES AND ADDRESSES OF THE TRI-SERVICE COMMITTEE OF THE DEPARTMENT OF DEFENSE REFERRED TO IN OUR DECISION OF JUNE 8 AS HAVING AUTHORIZED A REVISION OF FEDERAL SPECIFICATION RR-K-195C, AT ISSUE IN THE CASE. YOU REQUEST, IN EFFECT, THAT THE ACTION OF THE PENSACOLA NAVAL AIR STATION NOT BE ALLOWED TO STAND AS SUCH ACTION WOULD MEAN THAT ANY FEDERAL AGENCY CAN AT ITS DISCRETION TAKE EXCEPTION TO FEDERAL SPECIFICATIONS. YOU STATE FURTHER THAT YOUR COMPANY NOW HAS AN ORDER FROM A COMPANY WHICH HAS A CONTRACT WITH PENSACOLA COMMUNICATION CENTER, FOR THE SAME ITEMS UNDER THE SAME SPECIFICATIONS AND THAT NO DISQUALIFYING SALIENT FEATURES WERE SPECIFIED IN THAT INVITATION WHICH WOULD HAVE RESTRICTED COMPETITION. IT IS YOUR STATED POSITION THAT UNTIL AMENDMENTS TO THE FEDERAL SPECIFICATIONS ARE PUBLISHED THEY SHOULD NOT BE APPLIED. YOU REQUEST TO BE REFERRED TO INSTALLATIONS USING THE OPEN RIM KETTLE CONSTRUCTION IN ORDER TO DETERMINE THE CAUSE OF SUCH ALLEGED FAILURES WHICH WERE GIVEN AS REASONS BY THE REQUISITIONING AGENCY IN REJECTING YOUR BID.

ARMED SERVICES PROCUREMENT REGULATION 1-1202 (A) PROVIDES THAT FEDERAL SPECIFICATIONS, UNLESS DETERMINED BY THE DEPARTMENT OF DEFENSE TO BE INAPPLICABLE FOR ITS USE, ARE MANDATORY FOR USE IN PROCUREMENT OF SUPPLIES COVERED THEREBY. SECTION 1-1202 (B) LISTS SEVEN EXCEPTIONS TO THAT REQUIREMENT, NONE OF WHICH APPEAR TO BE APPLICABLE TO THIS PROCUREMENT. SECTION 1-1202 (C) PROVIDES THAT WHERE A FEDERAL SPECIFICATION DOES NOT MEET THE ESSENTIAL NEEDS OF A COMMAND, ACTION MAY BE TAKEN IN ACCORDANCE WITH PROVISIONS ESTABLISHED UNDER THE DEFENSE STANDARDIZATION PROGRAM. FINALLY, SECTION 1-1202 (D) STATES THAT WHENEVER A SPECIFICATION IS FOUND TO BE INADEQUATE, IMMEDIATE ACTION SHALL BE TAKEN TO EFFECT THE ISSUANCE OF AN AMENDMENT OR A REVISION IN ACCORDANCE WITH ESTABLISHED PROCEDURES TO ALLEVIATE THE NECESSITY FOR REPEATED DEPARTURES FROM THE SPECIFICATION. DEPARTMENT OF DEFENSE DIRECTIVE 4120.3, DATED OCTOBER 15, 1954, AND TITLED ,DEFENSE STANDARDIZATION PROGRAM," PROVIDES IN PARAGRAPH VII/B/1 THAT FEDERAL SPECIFICATIONS SHALL BE IMPLEMENTED IN ACCORDANCE WITH APPROVED FEDERAL AND DEPARTMENT OF DEFENSE REGULATIONS AND PROCEDURES.

WHILE IMPLEMENTING PROCEDURES CONTAINED IN PARAGRAPH 22056-8, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, REQUIRE THE USE OF FEDERAL AND MILITARY SPECIFICATIONS WHEN APPLICABLE, PROVISION IS ALSO MADE THEREIN FOR THE PREPARATION OF DEVIATING PURCHASE REQUISITIONS WHEN IT IS DETERMINED THAT THE REQUIRED ARTICLES DO NOT FULLY CONFORM TO EXISTING SPECIFICATIONS, AND (AS IN SECTION 1-1202 (D), ASPR, ABOVE) IT IS STATED "WHEN A SPECIFICATION IS FOUND TO BE INADEQUATE, ACTION WILL BE TAKEN IN ACCORDANCE WITH ESTABLISHED PROCEDURES TO HAVE SUCH SPECIFICATION AMENDED OR REVISED IN ORDER TO ALLEVIATE THE NECESSITY OF GRANTING REPEATED DEVIATIONS THEREFROM.' THUS, IT SEEMS CLEAR THAT IN ORDER TO OBTAIN THE GOVERNMENT'S MINIMUM NEEDS IN A PARTICULAR CASE BOTH THE ARMED SERVICES PROCUREMENT REGULATION AND IMPLEMENTING PROCEDURES CONTEMPLATE THE GRANTING OF DEVIATIONS FROM FEDERAL SPECIFICATIONS AND FOR THE PREPARATION OF SPECIFICATIONS TO INCLUDE NEW AND ADDITIONAL REQUIREMENTS OR TO SPECIFY AN OPTION. ACCORDINGLY, THERE REMAINS FOR CONSIDERATION WHETHER THE USE OF SUCH AUTHORITY WAS JUSTIFIED IN THE INSTANT CASE.

YOUR POSITION REGARDING THE INVITATION AND AWARD FOR ITEM 14 WAS SIMILARLY STATED IN YOUR EARLIER COMMUNICATIONS ADDRESSED TO THE NAVAL AIR STATION, PENSACOLA, FLORIDA, AND SINCE THE ORIGINAL SPECIFICATIONS FOR THE PROCUREMENT WERE PREPARED BY THE U.S. NAVAL SUPPLY RESEARCH AND DEVELOPMENT FACILITY, NAVAL SUPPLY CENTER, BAYONNE, NEW JERSEY, THAT ACTIVITY WAS REQUESTED TO FURNISH A REPORT IN THE MATTER. THEIR REPORT, DATED MARCH 31, 1965, STATED THAT AMENDMENT NO. 3 TO THE FEDERAL SPECIFICATION RR-K-195C WAS THEN BEING PROCESSED AND THAT THIS AMENDMENT WOULD PROVIDE FOR AN OPTIONAL ROLLED RIM TOP. SPECIFICATION RR-K-195C AS WRITTEN AT THE TIME THE INVITATION WAS ISSUED ALLOWED FOR EITHER AN OPEN RIM OR A CLOSED BEAD TOP EDGE WITHOUT OPTION; THEREFORE, TO SPECIFY EITHER CONSTITUTED AN EXCEPTION TO THE SPECIFICATION. NAVAL AIR STATION, PENSACOLA, JUSTIFIES THE LIMITING OF THE TOP EDGE CONSTRUCTION TO A FULLY CLOSED BEAD ON GROUNDS OF GREATER STRENGTH MINIMIZING FORMATION OF DEPRESSIONS OR POCKETS IN THE TOP RIM IN WHICH FOOD CAN LODGE AND BECOME AN AREA IN WHICH BACTERIA FORMS AND ACCUMULATES. THESE REASONS WERE MORE FULLY SET FORTH IN LETTER OF THE CONTRACTING OFFICER TO YOU DATED FEBRUARY 2, 1965.

WE CONSISTENTLY HAVE TAKEN THE POSITION THAT IT IS 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 OR SERVICES MEET THOSE SPECIFICATIONS. FURTHERMORE, WHETHER SPECIFICATIONS ARE ADEQUATE TO MEET THE NEEDS OF AN AGENCY IS A QUESTION WHICH IS PRIMARILY WITHIN THE JURISDICTION OF SUCH AGENCY; AND IN ANY GIVEN PROCUREMENT THIS QUESTION MAY WELL BE SUBJECT TO A DIFFERENCE OF OPINION. WHERE SUCH DIFFERENCE OF OPINION EXISTS, HOWEVER, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY OPINION IS IN ERROR AND THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATIONS WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE A VIOLATION OF LAW. 17 COMP. GEN. 554; 40 COMP. GEN. 294. IN ADDITION, THE DECISIONS OF THIS OFFICE, WITHOUT EXCEPTION, ARE TO THE EFFECT THAT THE UNITED STATES IS NOT TO BE PLACED IN THE POSITION OF HAVING A BIDDER DICTATE AS TO ITS REQUIREMENTS. 16 COMP. GEN. 38.

AS STATED IN THE CONTRACTING OFFICER'S LETTER OF FEBRUARY 2, REFERRED TO ABOVE, IT IS NOT UNDERSTOOD WHY YOU CONTEND THAT THE REQUIREMENT FOR A FULLY CLOSED BEAD FAVORS ONE MANUFACTURER'S PRODUCT. YOUR SALES LITERATURE IS SAID TO STATE: "CLOSED BEAD THOUGH NOT RECOMMENDED WILL BE FURNISHED ON SPECIAL ORDERS.' ALSO, IT IS REPORTED THAT YOU BID AND FURNISHED A KETTLE WITH A FULLY CLOSED BEAD UNDER NAVY INVITATION NO. 204- 35-64 WHICH INDICATES THAT THE REQUIREMENT DOES NOT LIMIT COMPETITION TO ONE MANUFACTURER'S PRODUCT. THE ONLY CONCEDED ADVANTAGE, IN THE ADMINISTRATIVE VIEW, IN BUYING A KETTLE WITH A HALF-ROUND OPEN RADIUS AT THE TOP EDGE IS THAT SUCH A KETTLE WOULD BE LESS EXPENSIVE THAN ONE WITH A FULLY CLOSED BEAD. THE COST FACTOR WAS CONSIDERED PRIOR TO ISSUANCE OF INVITATION NO. 204-18 65. A PROCURING ACTIVITY IS NOT REQUIRED TO PURCHASE EQUIPMENT NOT FULFILLING THE PARTICULAR NEEDS SOLELY BECAUSE IT CAN BE PURCHASED AT A LOWER PRICE. 36 COMP. GEN. 251, 252. WHILE THE LAW REQUIRING ADVERTISING FOR BIDS AND AWARDS OF CONTRACTS TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER CONTEMPLATES FAIR AND UNRESTRICTED COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE NEEDS WILL NOT BE SUFFICIENT TO WARRANT THE CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. SEE 30 COMP. GEN. 368.

ACCORDINGLY, SINCE THERE IS NOTHING IN THE RECORD INDICATING BAD FAITH ON THE PART OF THE ADMINISTRATIVE AGENCY OR THAT IT WAS MOTIVATED BY ANY DESIRE OTHER THAN TO OBTAIN FOR THE GOVERNMENT FOOD KETTLES WHICH WOULD BEST MEET THE NEEDS OF THE GOVERNMENT, IT MUST BE CONCLUDED THAT THERE IS NO PROPER LEGAL BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.

REGARDING YOUR INQUIRY AS TO THE IDENTIFICATION OF THE DEPARTMENT OF DEFENSE TRI-SERVICE COMMITTEE WHICH WOULD REVISE APPLICABLE FEDERAL SPECIFICATIONS WE ARE ADVISED BY THE DEPARTMENT OF THE NAVY THAT THESE COMMITTEES ARE VARIOUS, DEPENDING UPON THE COMMODITY INVOLVED. THE APPLICABLE FACILITY IN THIS INSTANCE HAS BEEN THE U.S. NAVAL RESEARCH AND DEVELOPMENT FACILITY, NAVAL SUPPLY CENTER, BAYONNE, NEW JERSEY. IT IS SUGGESTED THAT YOU CONTACT THAT OFFICE FOR THE DESIRED INFORMATION.