B-161608, AUG. 23, 1967

B-161608, AUG. 23, 1967

BIDS - SPECIFICATIONS - ADEQUACY DECISION TO INTERLAKE STEEL CORPORATION CONCERNING PROTEST AGAINST ADVERTISED RATHER THAN NEGOTIATED PROCUREMENT OF BARBED TAPE BY DEFENSE CONSTRUCTION SUPPLY CENTER AFTER CANCELLATION OF ORIGINAL INVITATION. BIDDER WHO REQUESTED NUMEROUS SPECIFICATION CHANGES WHICH WERE MADE AND WHO PROTESTS ADVERTISED RATHER THAN NEGOTIATED PROCUREMENT MUST HAVE PROTEST DENIED SINCE ADEQUANCY OF SPECIFICATIONS IS PRIMARILY MATTER FOR ADMINISTRATIVE AGENCY AND GAO WILL NOT SUBSTITUTE ITS JUDGMENT IN ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT CONTRACTING OFFICIALS ARE IN ERROR. SINCE NO OTHER BIDDERS COMPLAINED OF SPECIFICATIONS DETERMINATION OF ADEQUACY MUST BE UPHELD THAT ITEMS ARE COVERED BY PATENTS DOES NOT PRECLUDE USE OF ADVERTISING.

TO MR. J. J. MEDER, MANAGER, GOVERNMENT MARKETING:

YOUR LETTER OF MAY 22, 1967, PROTESTS AGAINST ANY AWARD UNDER INVITATION FOR BIDS NO. DSA-700-67-B-4316, AS AMENDED, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO. SPECIFICALLY, YOUR LETTER REQUESTS THAT THE INVITATION BE CANCELED AND THAT THE SUPPLIES CALLED FOR THEREIN BE PROCURED BY NEGOTIATION WITH YOUR COMPANY ON THE GROUND THAT YOUR COMPANY ALONE HAS ACCESS TO PROPRIETARY INFORMATION NECESSARY FOR SUCCESSFUL PRODUCTION OF THE ITEMS REQUESTED IN THE INVITATION. YOUR SUPPLEMENTAL TELEGRAM DATED JUNE 15, 1967, PROTESTS ON THE SAME GROUNDS AGAINST THE ISSUANCE OF INVITATION NO. DSA 700-67-B-5833 ISSUED IN REPLACEMENT OF THE ORIGINAL INVITATION WHICH WAS CANCELED FOR REASONS NOT RELATED TO YOUR PROTEST. BIDS UNDER THE NEW INVITATION WERE OPENED ON JUNE 30, 1967, AND PRESUMABLY AN AWARD HAS SINCE BEEN MADE.

THE SUBJECT PROCUREMENT IS FOR BARBED TAPE DISPENSERS TO BE MANUFACTURED IN ACCORDANCE WITH MIL-D-52490, BARBED CONCERTINA TAPE TO BE MANUFACTURED IN ACCORDANCE WITH MIL-C-52489, AS AMENDED, AND BARBED TAPE TO BE MANUFACTURED IN ACCORDANCE WITH MIL-B-52488, AS AMENDED. THE ORIGINAL INVITATION REQUIRED DELIVERIES WHICH VARIED, DEPENDING ON THE SPECIFIC ITEM, FROM 180 TO 210 DAYS FROM THE DATE OF AWARD, WHILE THE REPLACEMENT INVITATION REQUIRED DELIVERY OF ALL ITEMS WITHIN 210 DAYS FROM THE DATE OF AWARD. YOUR BID UNDER THE ORIGINAL INVITATION WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO CONFORM TO THIS DELIVERY SCHEDULE.

YOUR LETTER OF MAY 22, 1967, LISTS SEVERAL PURPORTED DEFICIENCIES IN THE BIDS SUBMITTED UNDER THE ORIGINAL INVITATION BY OTHER BIDDERS. SINCE THAT INVITATION WAS CANCELED, WE SEE NO NEED TO COMMENT ON THAT PORTION OF YOUR PROTEST.

YOUR LETTER ALSO POINTS OUT THAT THE ORIGINAL INVITATION WAS AMENDED SEVEN TIMES BEFORE BID OPENING AND THAT FOUR OF THE AMENDMENTS CONTAINED TECHNICAL CHANGES. YOU STATE THAT ADDITIONAL TECHNICAL CHANGES WERE REQUESTED BY YOUR COMPANY BUT WERE NOT GRANTED AND YOU CONTEND THAT THESE ADDITIONAL CHANGES ARE NECESSARY IN ORDER TO ASSURE THAT THE PRODUCT BEING PROCURED WILL PERFORM ,AS INTENDED AND REQUIRED.' YOU MAINTAIN THAT YOUR COMPANY ALONE HAS "FULL ACCESS TO PROPRIETARY INFORMATION REGARDING PRODUCTION TECHNIQUES AND REQUIRED PROPERTIES OF RAW MATERIALS" BECAUSE YOUR COMPANY HAS AN EXCLUSIVE SUBLICENSE TO PRODUCE THE PATENTED ITEMS CALLED FOR IN THE INVITATION.

THE REPORT SUBMITTED TO OUR OFFICE BY THE DEFENSE SUPPLY AGENCY (DSA) LISTS 10 SPECIFICATION CHANGES REQUESTED BY YOUR COMPANY IN A LETTER DATED MARCH 28, 1967. THE REPORT STATES THAT ALL OF THE SPECIFICATION CHANGES WITH THE EXCEPTION OF A CHANGE IN THE ELONGATION REQUIREMENTS AND A CHANGE IN PACKING REQUIREMENTS WERE SUBSTANTIALLY GRANTED, AND THAT THE CHANGE IN ELONGATION REQUIREMENTS WAS SUBSEQUENTLY MADE BY AMENDMENT TO THE NEW INVITATION. THE REQUESTED CHANGE IN PACKING REQUIREMENTS WAS NOT GRANTED BECAUSE THE EXISTING PACKING REQUIREMENTS WERE CONSIDERED TO BE "NECESSARY TO ASSURE SAFE TRANSPORTATION TO THE ULTIMATE USER.'

WITH REGARD TO YOUR CONTENTION THAT ONLY INTERLAKE HAS ACCESS TO PROPRIETARY INFORMATION NECESSARY FOR SUCCESSFUL PRODUCTION OF THE ITEMS CALLED FOR IN THE INVITATION, THE ADMINISTRATIVE REPORT STATES AS FOLLOWS:

"THE THREE SPECIFICATIONS ARE PERFORMANCE TYPE SPECIFICATIONS, WHICH WERE PROMULGATED BY THE ENGINEER RESEARCH AND DEVELOPMENT COMMAND, FT. BELVOIR, VIRGINIA. BASED ON KNOWLEDGE CURRENTLY AVAILABLE, THEY ARE ADEQUATE FOR AND WERE INTENDED FOR COMPETITIVE PROCUREMENT. * * * THE FACT THAT EACH OF THE ITEMS ARE COVERED BY A U.S. PATENT DOES NOT PRECLUDE THE GOVERNMENT FROM EFFECTING THE PROCUREMENT THEREOF BY THE FORMAL ADVERTISING PROCEDURE (SEE 38 CG 276).'

THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS PRIMARILY A FUNCTION OF THE ADMINISTRATIVE AGENCY AS THAT AGENCY IS UNIQUELY KNOWLEDGEABLE AS TO WHAT WILL SERVE THE GOVERNMENT'S MINIMUM NEEDS IN A GIVEN INSTANCE. IN CASES WHERE A DIFFERENCE OF OPINION EXISTS AS TO THE ADEQUACY OF SPECIFICATIONS, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICIALS IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE CONTRACTING OFFICIALS ARE IN ERROR. 40 COMP. GEN. 294, 297; B-155710, APRIL 15, 1965.

IN THE PRESENT CASE, THE CONTRACTING OFFICER GRANTED THOSE CHANGES REQUESTED BY YOU WHICH HE FELT, AFTER CONSULTATION WITH ENGINEERING PERSONNEL, WERE WARRANTED. FURTHER, THE CONTRACTING OFFICER DETERMINED THAT THE SPECIFICATIONS AS AMENDED WERE ADEQUATE FOR COMPETITIVE PROCUREMENT. ALSO, IT IS NOTED THAT NO OTHER BIDDERS COMPLAINED THAT THE SPECIFICATIONS WERE INADEQUATE. ON THE BASIS OF THE PRESENT RECORD, WE CANNOT CONCLUDE THAT THE DETERMINATIONS OF THE CONTRACTING OFFICER WERE ERRONEOUS. FINALLY, AS POINTED OUT IN THE ADMINISTRATIVE REPORT, THE FACT THAT THE ITEMS BEING PROCURED ARE COVERED BY PATENTS DOES NOT PRECLUDE THE USE OF FORMAL ADVERTISING BECAUSE OF POSSIBLE PATENT INFRINGEMENT WHICH MAY RESULT FROM AN AWARD. SEE 38 COMP. GEN. 276, AND ARMED SERVICES PROCUREMENT REGULATION 2-407.8.