B-156477, APR. 29, 1965

B-156477, APR. 29, 1965

TO THE HONORABLE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO A LETTER DATED APRIL 5, 1965, NO. 6320, FROM THE ASSISTANT SECRETARY FOR RURAL DEVELOPMENT AND CONSERVATION, REQUESTING THE VIEWS OF OUR OFFICE CONCERNING THE PROTEST OF MORRIS SCALE COMPANY, PORTLAND, OREGON, THAT THE SPECIFICATIONS FOR A MOTOR TRUCK SCALE ARE UNDULY RESTRICTIVE AS SET FORTH UNDER INVITATION FOR BIDS NO. 6-65-13 ISSUED BY THE CONTRACTING OFFICER, MT. HOOD NATIONAL FOREST, ON FEBRUARY 1, 1965.

THE PERTINENT PROVISION OF THE SPECIFICATIONS PROVIDES:

"2. SCALE DETAILS: 50 TON FIVE SECTION 70 INCHES TIMES 10 INCHES CAST STRAIGHT LEVER MOTOR TRUCK SCALE * * *.

THE RECORD SHOWS THAT SHORTLY AFTER ISSUANCE OF THE INVITATION MORRIS SCALE COMPANY ORALLY PROTECTED TO THE CONTRACTING OFFICER THAT THE "CAST STRAIGHT LEVER" PROVISION RESTRICTS THE BIDDING TO A LIMITED NUMBER OF MANUFACTURERS OF CAST IRON SCALES AND REQUESTED THAT THE ABOVE PROVISION BE AMENDED TO PERMIT "WELDED STEEL" SCALES. THE CONTRACTING OFFICER REFUSED TO AMEND THE SPECIFICATIONS, AS REQUESTED, AND THE COMPANY RETURNED ITS INVITATION WITH THE STATEMENT THAT IT WAS UNABLE TO COMPLY WITH THE RESTRICTED SPECIFICATIONS AND REITERATED ITS PREVIOUS PROTEST.

IN A LETTER TO THE HONORABLE WAYNE MORSE, UNITED STATES SENATE, DATED FEBRUARY 8, 1965, THE MORRIS SCALE COMPANY EXPLAINED ITS PROTEST AS FOLLOWS:

"MY PROTEST IS BASED ON THIS WORDING WHICH IN MY OPINION RESTRICTS A PUBLIC BID TO MANUFACTURERS OF CAST IRON SCALES. WELDED STEEL SCALES ARE GENERALLY ACCEPTED AS EQUAL TO CAST IRON SCALES AND MEET A.R.E.A. (AMERICAN RAILWAY ENGINEERS ASSOCIATION) AND NATIONAL BUREAU OF STANDARDS H44 HANDBOOK ON SPECIFICATIONS, TOLERANCES AND REGULATIONS FOR COMMERCIAL WEIGHING AND MEASURING DEVICES. PROS AND CONS OF COURSE CAN BE ARGUED ON A PERSONAL PREFERENCE BASIS; HOWEVER A PUBLIC BID SHOULD NOT RESTRICT ONE OR THE OTHER AS LONG AS THEY ARE CONSIDERED EQUAL BY THE REGULATING AGENCIES ON WEIGHTS AND MEASURES. HERE I WILL REFER YOU FOR AN OPINION TO OUR OWN STATE OF OREGON, DEPARTMENT OF AGRICULTURE, WEIGHTS AND MEASURES, SALEM, OREGON, MR. WALTER B. STEELE, CHIEF DEPUTY, WHO IN ALL PROBABILITY WILL BE THE REGULATING AGENCY FOR THIS SCALE AFTER INSTALLATION.'

THREE RESPONSIVE BIDS, WHICH WERE OPENED AS SCHEDULED ON FEBRUARY 16, 1965, WERE RECEIVED FROM THE FIVE KNOWN SUPPLIERS OF MOTOR TRUCK SCALES SOLICITED.

WHILE THE RECORD DOES NOT SHOW THE ACTUAL STATEMENTS MADE TO MORRIS SCALE COMPANY BY THE CONTRACTING OFFICER AS JUSTIFICATION FOR SPECIFYING A CAST STRAIGHT LEVER SCALE, IT APPEARS THAT THE REASON MAY HAVE BEEN ADVANCED THAT SUCH PROVISION WAS FOR THE PURPOSE OF MEETING THE ACCURACY REQUIREMENTS OF THE WEIGHTS AND MEASURES DIVISION OF THE OREGON STATE DEPARTMENT OF AGRICULTURE. IN SUCH CONNECTION THE DEPUTY STATE SEALER OF THAT DIVISION ADVISED MORRIS SCALE COMPANY BY LETTER OF MARCH 19, 1965, AS FOLLOWS:

"SOMETIME AGO I DID TALK TO A U.S. FOREST SERVICE MAN BY TELEPHONE CONCERNING VEHICLE SCALES FOR THEIR USE. I DO NOT REMEMBER HIS NAME.

"I WANT TO TAKE EXCEPTION TO A STATEMENT IN THE ABOVE-MENTIONED LETTER. MR. HENDES STATED ,INDICATIONS ARE THAT ONLY CAST IRON SCALES MEET THE ACCURACY REQUIREMENTS OF THIS AGENCY" (OREGON STATE DEPARTMENT OF AGRICULTURE, WEIGHTS AND MEASURES).

"WE HAVE NEVER MADE A STATEMENT OF THIS KIND AT ANY TIME. BOTH CAST IRON LEVERS AND FABRICATED STEEL LEVERS ARE IN USE IN OREGON AND ARE APPROVED.

"OREGON HAS OFFICIALLY ADOPTED THE NATIONAL BUREAU OF STANDARDS HANDBOOK NO. 44 FOR THE SPECIFICATIONS AND TOLERANCES ON SCALES. BOTH CAST IRON LEVERS AND FABRICATED STEEL LEVERS MEET ALL OF THESE SPECIFICATIONS.'

IN THE ASSISTANT SECRETARY'S LETTER OF APRIL 5 IT IS STATED THAT CAST LEVERS WERE SPECIFIED FOR THE FOLLOWING REASON:

"CAST LEVERS HAVE FAR GREATER RESISTENCE TO RUSTING AND CORROSION THAN DO FABRICATED STEEL LEVERS. THIS IS HIGHLY IMPORTANT IN THIS CASE BECAUSE THE SCALE WILL BE INSTALLED NEAR A RIVER IN AN AREA OF HEAVY ANNUAL RAINFALL WHERE THE SCALE MECHANISM WILL BE SUBJECTED TO ALMOST CONTINUOUS HEAVY MOISTURE CONDITIONS. THE CLACKAMAS RIVER ROAD IS ACKNOWLEDGED TO BE ONE OF THE MOST, IF NOT THE MOST, HEAVILY USED LOGGING HIGHWAYS IN THE UNITED STATES. IT IS ESTIMATED THAT DURING THE PEAK OF THE LOGGING SEASON OVER 100 TRUCKS PER DAY WILL BE USING THE SCALE.

"ALTHOUGH BOTH CAST AND WELDED LEVERS MEET THE ACCURACY REQUIREMENTS OF HANDBOOK H-44, WE SPECIFIED CAST LEVERS BECAUSE WE WERE ASSURED BY TECHNICIANS SPECIALIZING IN THIS WORK THAT CAST LEVERS WOULD REQUIRE LESS MAINTENANCE.

"THE REQUESTS OF THE MORRIS SCALE COMPANY THAT THE SPECIFICATIONS BE CHANGED TO INCLUDE WELDED STEEL SCALES WERE DENIED, NOT ON THE BASIS OF PERSONAL PREFERENCE AS MR. MORRIS IMPLIES IN HIS LETTER TO SENATOR MORSE, BUT BECAUSE WE HAD BEEN ADVISED BY TWO EMPLOYEES OF THE STATE OF OREGON HIGHWAY DEPARTMENT, ONE OF WHOM HAS BEEN INSTALLING AND MAINTAINING TRUCK SCALES FOR ALMOST 20 YEARS, THAT CAST LEVERS DID NOT RUST AS MUCH AS STEEL LEVERS. THIS WAS OUR SOLE REASON FOR SPECIFYING CAST LEVERS.'

IT IS ALSO STATED IN THE LETTER THAT SINCE THE AMERICAN RAILWAY ENGINEERING ASSOCIATION SPECIFICATIONS (WHICH PROVIDE FOR USE OF BOTH CASTINGS AND STEEL SHAPES FOR LEVERS) FOLLOWED IN FEDERAL SPECIFICATION AAA-S-79 DO NOT APPLY TO FIVE SECTION MOTOR TRUCK SCALES, BUT ONLY TO SCALES OF NOT MORE THAN FOUR SECTIONS, IT WAS NECESSARY TO DEVIATE FROM THE FEDERAL SPECIFICATION.

THE A.R.E.A. SPECIFICATIONS DEFINE REQUIREMENTS FOR A FOUR SECTION MOTOR TRUCK SCALE OF 50 TONS CAPACITY WITH PLATFORMS 10 FEET WIDE AND 45, 50, OR 60 FEET IN LENGTH. SUCH A SCALE IS STATED TO BE CONSTRUCTED WITH ONE PAIR OF MAIN LEVER LOAD PIVOTS SUPPORTING THE WEIGHBRIDGE AT EACH OF FOUR SECTIONS WHICH ARE APPROXIMATELY EQUIDISTANT. SINCE IT APPEARS THAT THE BASIC DIFFERENCE BETWEEN THE ABOVE FOUR SECTION SCALE AND THE FIVE SECTION SCALE REQUIRED BY THE SPECIFIED 70 FEET PLATFORM LENGTH PERTAINS ONLY TO THE REQUIREMENT OF AN ADDITIONAL SECTION AND PAIR OF MAIN LEVER LOAD PIVOTS TO HANDLE THE INCREASED LENGTH, WE DO NOT PERCEIVE HOW SUCH FACTOR AFFECTS THE VALIDITY OF THE SPECIFICATIONS INSOFAR AS TYPES OF MATERIALS ARE CONCERNED. IN THIS CONNECTION IT IS NOTED THAT THE SPECIFICATIONS OF THE SUBJECT IFB PERTAINING TO CONSTRUCTION OF THE SCALE PLATFORMS PERMIT STEEL WEIGHBRIDGE GIRDERS, FLOORBEAMS AND RELATED PARTS. WITH REFERENCE TO THE PRESERVATION OF STEEL PARTS UNDER PARTICULAR CONDITIONS AND INTENDED USE, THE A.R.E.A. SPECIFICATIONS PROVIDE ON PAGE 14-5-109 FOR THE VENTILATION OF SCALE PITS AND TREATMENT OF SURFACES AS FOLLOWS:

"3. VENTILATION

"ALL SCALE PITS SHALL BE VENTILATED TO MEET THE NEEDS OF EACH PARTICULAR CASE, THE OBJECT BEING TO MINIMIZE THE AMOUNT OF MOISTURE IN THE AIR IN THE PIT AND SO TO RETARD RUSTING OF SCALE PARTS AND STRUCTURAL STEEL.

"MM. PROTECTION FROM CORROSION

"THE FINISH AND TREATMENT OF ALL SURFACES SHALL BE SUCH AS TO INSURE GOOD APPEARANCE AND SATISFACTORY RESISTENCE TO CORROSION. THE SURFACE TREATMENT SHALL BE DURABLE AND APPROPRIATE FOR THE INTENDED USES.'

WHILE THE PREPARATION OF SPECIFICATIONS STATING THE MINIMUM NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY CONCERNED, THE PUBLIC ADVERTISING STATUTES HAVE CONSISTENTLY BEEN HELD TO REQUIRE THAT EVERY EFFORT SHOULD BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE NEEDS REASONABLY REQUIRED, NOT THE MAXIMUM DESIRED. SEE 32 COMP. GEN. 384 AND 41 ID. 348.

IN THE DRAFTING OF SPECIFICATIONS CAUTION SHOULD BE EXERCISED WHEN DEVIATING FROM GENERAL REQUIREMENTS OF ESTABLISHED SPECIFICATIONS WHICH ARE REASONABLY ADAPTABLE TO THE PROCUREMENT AT HAND. TO REDUCE COMPETITION EVEN IN A SMALL DEGREE BY ADDING TO THE SPECIFICATIONS RESTRICTIVE FEATURES NOT EMBODIED IN A STANDARD FEDERAL OR MILITARY SPECIFICATION PRESCRIBED FOR USE IN PROCUREMENT OF LIKE OR SIMILAR ITEMS IS A SERIOUS MATTER, AND SUCH ACTION SHOULD BE CONSIDERED AS REPRESENTATION THAT EACH OF SUCH FEATURES HAVE BEEN DETERMINED BY RESPONSIBLE AUTHORITY TO BE NECESSARY TO MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT IN THE PARTICULAR PROCUREMENT. SEE OUR DECISION B 153404, JULY 23, 1964, TO THE SECRETARY OF THE NAVY, COPY ENCLOSED.

IN THE PRESENT CASE IT APPEARS THAT BIDS WERE LIMITED TO A SCALE WITH CAST LEVERS SOLELY BECAUSE CERTAIN FIELD PERSONNEL HAD BEEN TOLD BY TWO MAINTENANCE EMPLOYEES OF THE OREGON STATE HIGHWAY DEPARTMENT THAT SUCH LEVERS DID NOT RUST AS MUCH AS STEEL LEVERS. IT IS AT LEAST QUESTIONABLE THAT THOSE STATEMENTS SUFFICE AS A REASONABLE TECHNICAL EVALUATION OF THE EFFECT OF SUCH RUSTING ON THE EFFICIENT PERFORMANCE OF THE SCALE OR THE ACTUAL ADDITIONAL EXPENSE WHICH COULD BE EXPECTED IN PROPER MAINTENANCE SO AS TO JUSTIFY ANY LIMITING OF THE FIELD OF COMPETITION. FURTHER QUESTION AS TO THE MATERIAL EFFECT OF SUCH CORROSION IS PRESENTED BY THE STATEMENTS OF MARCH 19 BY THE OREGON DEPUTY STATE SEALER THAT BOTH CAST IRON LEVERS AND FABRICATED STEEL LEVERS ARE IN USE IN OREGON AND MEET THAT STATE'S REQUIREMENTS.

IN THIS CONNECTION WE HAVE RECEIVED INFORMAL ADVICE FROM THE NATIONAL BUREAU OF STANDARDS THAT, ALTHOUGH IT IS A WELL-KNOWN FACT THAT UNPROTECTED STEEL IS MORE SUBJECT TO CORROSION AND RUSTS THROUGH QUICKER THAN CAST IRON, IF THE STEEL LEVERS ARE PROTECTED BY PROPER PAINT OR PRESERVATIVE, AND ARE GIVEN ADEQUATE HOUSING AND VENTILATION, NO SUBSTANTIAL MAINTENANCE PROBLEMS CONCERNING SUCH LEVERS COULD BE EXPECTED EVEN IN EXCEPTIONALLY DAMP AREAS. WE WERE ALSO ADVISED THAT IN A WEIGHING OPERATION IT IS ESSENTIAL THAT THE LOAD BE PROPERLY TRANSMITTED TO THE LEVERS. IT APPEARS THAT STEEL WILL BE USED IN THE WEIGHBRIDGE GIRDERS, FLOORBEAMS AND RELATED PARTS OF THE SCALE PLATFORM (EXCEPT DECK) TRANSMITTING THE LOAD TO THE LEVERS. SUCH ITEMS WOULD APPEAR TO BE SUBJECT TO THE SAME CORROSIVE CONDITIONS AS WOULD THE LEVERS, THEREBY REQUIRING PERIODIC INSPECTION AND MAINTENANCE, AND THERE IS NO SHOWING THAT THE DETERIORATION OF STEEL LEVERS CAN BE EXPECTED TO EXCEED THAT OF THE OTHER ESSENTIAL STEEL PARTS.

THIS OFFICE, HAVING NEITHER A SCIENTIFIC NOR ENGINEERING STAFF, HAS NO WAY OF DETERMINING, EXCEPT THROUGH TECHNICALLY INFORMED PERSONNEL OF THE ADMINISTRATIVE AGENCIES, WHETHER PARTICULAR FEATURES OF A MANUFACTURED PRODUCT SUCH AS THAT HERE INVOLVED ARE REASONABLY NECESSARY FOR THE MINIMUM NEEDS TO BE FILLED. HOWEVER, IN THE LIGHT OF THE LESS RESTRICTED REQUIREMENTS OF THE A.R.E.A. SPECIFICATIONS WHICH WERE ADOPTED BY FEDERAL SPECIFICATION NO. AAA-S-79, AND INASMUCH AS THE INFORMATION OF RECORD DOES NOT ESTABLISH THAT STEEL LEVERS WITH SURFACES ADEQUATELY PROTECTED TO MEET THE PARTICULAR CONDITIONS UNDER WHICH THE SCALES MUST OPERATE WILL NOT, WITH ONLY THE ROUTINE INSPECTION AND MAINTENANCE GENERALLY AFFORDED OTHER PARTS OF THE SCALES, ADEQUATELY SERVE THE NEEDS OF THE SERVICE, WE CANNOT CONCLUDE THAT THE SPECIFICATIONS ARE NOT UNDULY RESTRICTIVE, OR THAT THEY PERMIT FULL AND FREE COMPETITION AS REQUIRED UNDER 41 U.S.C. 253 (A). ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD WE MUST CONCLUDE THAT, NO AWARD SHOULD BE MADE UNDER THE INVITATION.

WE SUGGEST THAT, IN ANY READVERTISEMENT OF THIS PROCUREMENT, THE EXISTING STANDARD SPECIFICATIONS FOR MOTOR TRUCK SCALES BE FOLLOWED TO THE EXTENT PRACTICABLE, WITH THE ADDITION OF PROVISIONS PRESCRIBING SUCH EXTRA TREATMENT OF METALLIC SURFACES AS MAY BE CONSIDERED NECESSARY TO OVERCOME THE EFFECT OF SUCH UNUSUAL CONDITIONS AS ARE STATED TO EXIST AT THE INSTALLATION SITE.