B-161836, OCT. 4, 1967

B-161836, OCT. 4, 1967

BIDS - TESTING PROCEDURES DECISION TO PALMER-SHILE CO. PROTESTING TESTING REQUIREMENTS FOR PALLET RACKS FOR NAVY BY DEFENSE SUPPLY AGENCY, RICHMOND, VA. QUESTION OF ADEQUACY OR PRACTICABILITY OF TESTING REQUIREMENTS IS MATTER PRIMARILY WITHIN COGNIZANCE OF PROCUREMENT AGENCY AND WHERE MATTER IS SUBJECT TO DIFFERENCES OF EXPERT TECHNICAL OPINIONS, COMP. GEN. WILL NOT SUBSTITUTE HIS JUDGMENT FOR THAT OF THE PROCUREMENT AGENCY IN ABSENCE OF CLEAR AND CONVINCING EVIDENCE OF ERROR OR THAT CONTRACT AWARDED WAS RESULT OF UNNECESSARILY RESTRICTIVE COMPETITION. HOWEVER, AGENCY IS REVIEWING TESTING REQUIREMENTS AND REFERRING PROTESTING BIDDER'S COMMENTS TO SPECIFICATION WRITING ACTIVITY.

TO PALMER-SHILE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 19, 1967, WITH ENCLOSURES, AND TO COPY OF YOUR LETTER DATED JULY 5, 1967, TO COMMANDER, DEFENSE GENERAL SUPPLY CENTER (DGSC), DEFENSE SUPPLY AGENCY, RICHMOND, VIRGINIA, PROTESTING AGAINST ANY AWARD UNDER INVITATION FOR BIDS NO. DSA- 400-67-B-7658.

THE INVITATION DATED MAY 4, 1967, SOLICITED BIDS FOR ONE LOT OF BOLTLESS ADJUSTABLE-TYPE PALLET RACKS TYPE II IN ACCORDANCE WITH DGSC PURCHASE DESCRIPTION 128, DATED APRIL 8, 1965. THE INVITATION SPECIFIED THAT THE COMPONENTS OF THE RACKS WOULD CONSIST OF 800 EACH 144- BY 40-INCH UPRIGHT FRAMES AND 2,500 DOUBLE-OPENING SHELF UNITS, 108 BY 40 INCHES, AND 800 EACH BACK-TO-BACK TIES. THE INVITATION FURTHER SPECIFIED THAT THE DESTINATION OF THE RACKS WAS NAVAL SUPPLY DEPOT, PHILADELPHIA, PENNSYLVANIA, AND THAT ESTIMATED SHIPPING DATA SET FORTH ON PAGE 27 OF THE INVITATION WOULD BE UTILIZED IN EVALUATING ORIGIN BIDS. BY AMENDMENT NO. 001, A SEPARATE LOT OF RACKS IN ACCORDANCE WITH THE CITED PURCHASE DESCRIPTION FOR DELIVERY TO NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA, CONSISTING OF 2,707 EACH UPRIGHT FRAMES, 138 BY 42 INCHES, 492 EACH SINGLE-OPENING SHELF UNITS, 54 BY 42 INCHES, 6,297 EACH DOUBLE- OPENING SHELF UNITS, 108 BY 42 INCHES, AND 2,561 EACH BACK-TO-BACK TIES, WAS ADDED TO THE INVITATION.

BY LETTER OF MAY 4, 1967, TO THE CONTRACTING AGENCY, YOU ACKNOWLEDGED RECEIPT OF THE INVITATION AND REQUESTED CLARIFICATION OF PARAGRAPH 4.4.1.5 OF THE PURCHASE DESCRIPTION, RELATIVE TO THE TESTING OF FRONT-TO-BACK MEMBERS. YOU ASKED TO BE ADVISED AS TO WHAT WOULD BE CONSIDERED ACCEPTABLE RELATIVE TO THE UNIFORM DISTRIBUTION OF THE LOAD ON THE FRONT- TO-BACK MEMBERS AND ALSO THAT A DEFINITION BE FURNISHED AS TO THE MEANING OF THE PHRASE USED IN PARAGRAPH .4.1.5--"BLOCKING THE PALLETS FREE FROM THE BEAM.' YOU WERE ADVISED BY AGENCY LETTER DATED MAY 18, 1967, THAT TESTING UNDER PARAGRAPH 4.4.1.5 COULD BE BY ANY METHOD THE CONTRACTOR DESIRED SO LONG AS THE LOAD WAS UNIFORMLY DISTRIBUTED ON THE MEMBER UNDER TEST. THEREAFTER, ON MAY 22, 1967, YOU PROTESTED THE TESTING OF FRONT-TO- BACK MEMBERS WHERE STEP TYPEDESIGN SHELF BEAMS WERE USED. YOU ALLEGED THAT THE METHOD OF TESTING THESE MEMBERS PERMITTED THE ENDS OF BLOCKING TO BEAR DIRECTLY OVER THE LEDGE PORTION OF THE SHELF BEAMS. BY TELEGRAM DATED MAY 26, 1967, YOUR PROTEST WAS DENIED BY THE CONTRACTING OFFICER ON THE GROUND THAT THE TESTING REQUIREMENTS OF THE SPECIFICATIONS WERE CLEAR AND UNAMBIGUOUS.

SIX BIDS WERE OPENED ON JUNE 6, 1967, WHICH RANGED FROM A LOW OF $53,644.20 TO A HIGH OF $64,317 ON AN F.O.B. PHILADELPHIA, PENNSYLVANIA (DESTINATION), BASIS FOR THE FIRST LOT, FROM $46,889.02 TO $56,363 ON AN F.O.B. ORIGIN BASIS, AND FROM A LOW OF $152,865.17 TO A HIGH OF $191,272 FOR LOT NO. 2 FOR DELIVERY TO CHARLESTON, SOUTH CAROLINA (DESTINATION), FROM A LOW OF $130,050.66 TO A HIGH OF $154,990 FOR LOT NO. 2 ON AN F.O.B. ORIGIN BASIS. SEMPCO, INC., WAS THE LOW BIDDER ON BOTH LOTS. YOUR FIRM BID $58,212 FOR DELIVERY TO PHILADELPHIA AND $170,100 FOR DELIVERY TO CHARLESTON, SOUTH CAROLINA. AWARD OF THE ENTIRE QUANTITY OF RACKS ADVERTISED WAS MADE TO SEMPCO, INC., ON JUNE 30, 1967, AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER. WE FIND NO LEGAL BASIS TO QUESTION SUCH AWARD.

BY WIRE DATED JUNE 14, 1967, YOU FORMALLY PROTESTED ANY AWARD UNDER THE INVITATION AND ALLEGED THAT YOUR POSITION RESPECTING TESTING REQUIREMENTS WAS SUBSTANTIATED BY THE REPORT OF THE DETROIT TESTING LABORATORY, INC.

ESSENTIALLY, YOU QUESTION THE ADEQUACY OR PRACTICABILITY OF THE GOVERNMENT'S TESTING SPECIFICATION UNDER THIS AND SIMILAR INVITATIONS. SINCE YOUR PROTEST INVOLVES A MATTER PARTICULARLY WITHIN THE COGNIZANCE OF THE PROCUREMENT AGENCY WHICH POSSESSES THE TECHNICAL CAPABILITY TO EVALUATE THE MERITS OF YOUR POSITION RESPECTING TESTING REQUIREMENTS, WE BELIEVE THAT THE FOLLOWING STATEMENTS OF THE PROCUREMENT AGENCY DISPOSE OF YOUR PROTEST:

"PALMER-SHILE'S BASIC CONTENTION APPEARS TO BE THAT TESTS ON FRONT TO- BACK MEMBERS FURNISHED BY FIRMS OFFERING PALLET RACKS WITH STEP SHELF DESIGN BEAMS WERE NOT TESTED IN A MANNER RESULTING IN TRUE TEST OF THE LOAD CARRYING CAPACITY OF THE MEMBER, THAT THIS METHOD OF TESTING WAS PROMULGATED TO THE INDUSTRY BY REPRESENTATIVES OF THIS CENTER, AND THAT SUCH ERRONEOUS METHOD OF TESTING RESULTED IN ITS COMPETITORS HAVING AN UNFAIR ADVANTAGE, THUS ENABLING THEM TO SUBMIT LOWER PRICES TO THE PREJUDICE OF PALMER-SHILE. IT SHOULD BE NOTED THAT NO CONTENTION IS MADE THAT THE TESTING METHOD, AS WRITTEN, IS AMBIGUOUS OR NOT UNDERSTOOD BY PALMER-SHILE AND OTHER PROSPECTIVE BIDDERS. THE DIRECTORATE OF TECHNICAL OPERATIONS OF THIS CENTER HAS DENIED INSISTING ON ANY PARTICULAR METHOD OF TESTING OTHER THAN THE APPLICATION OF A UNIFORMLY DISTRIBUTED LOAD AND NO INTERPRETATION OF THIS REQUIREMENT WHICH WOULD PERMIT THE TESTING TO BE CONDUCTED AS ALLEGED BY PALMER-SHILE HAS BEEN ISSUED BY THE DIRECTORATE OF TECHNICAL OPERATIONS OR THE CONTRACTING OFFICER. EVEN IF THE PALMER-SHILE REPRESENTATIVES WERE LED TO BELIEVE THAT TESTING OF FRONT-TO-BACK MEMBERS ON RACKS UTILIZING STEP SHELF BEAMS WERE CONDUCTED AS ALLEGED BY PALMER- SHILE, THE SINGLE INSTANCE OF THE TESTING OF PALMER-SHILE RACKS AT DEFENSE CONSTRUCTION SUPPLY CENTER DOES NOT CONSTITUTE PROMULGATION OF SUCH AN INTERPRETATION TO INDUSTRY. WHILE PALMER-SHILE DOES NOT UTILIZE STEP SHELF TYPE DESIGN BEAMS, IT WOULD APPEAR THAT ADVANCE KNOWLEDGE OF THE ALLEGED INADEQUATE TESTING WOULD BE TO PALMER SHILE'S ADVANTAGE RATHER THAN OF ITS COMPETITORS. IN SUMMARY, THE TESTING REQUIREMENT AS WRITTEN IS ADEQUATE, CLEAR, AND UNAMBIGUOUS, AND PALMER-SHILE HAS NOT ESTABLISHED THAT AN ERRONEOUS INTERPRETATION OF THE REQUIREMENT HAS BEEN PROMULGATED OR ISSUED TO ITS DETRIMENT.'

THIS OFFICE HAS CONSISTENTLY ADHERED TO THE PROPOSITION THAT WHETHER SPECIFICATIONS ARE ADEQUATE TO MEET THE NEEDS OF THE PROCUREMENT AGENCY IS A QUESTION WHICH IS PRIMARILY WITHIN THE JURISDICTION OF THE AGENCY, AND THAT IN ANY GIVEN PROCUREMENT THIS QUESTION MAY WELL BE SUBJECT TO A DIFFERENCE OF EXPERT TECHNICAL OPINION. WHERE SUCH DIFFERENCES OF OPINION EXIST, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE OF ERROR OR THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATION WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE IN VIOLATION OF LAW. 17 COMP. GEN. 554; 40 ID. 294, 297.

ACCORDINGLY, AND ON THE RECORD BEFORE US, YOUR PROTEST IS DENIED.

HOWEVER, IN VIEW OF THE REPRESENTATIONS MADE TO THE DEFENSE GENERAL SUPPLY CENTER, WE HAVE BEEN ADVISED BY THE DEFENSE SUPPLY AGENCY THAT STEPS WILL BE TAKEN TO INSURE THAT NEITHER OF THE METHODS SHOWN IN FIGURES 1 AND 2 OF THE LETTER FROM THE DETROIT TESTING LABORATORY IS USED IN THE TESTING OF THE FRONT-TO-BACK MEMBERS OF RACKS PROVIDED UNDER THIS OR SIMILAR CURRENT CONTRACTS. WE ARE FURTHER ADVISED THAT IF A METHOD OTHER THAN THAT SHOWN IN FIGURE 3 IS USED, THE METHOD WILL BE AN ADEQUATE TEST OF THE LOAD-BEARING CAPACITY OF THESE MEMBERS. ALSO, WITH REFERENCE TO THE TEST REQUIREMENTS FOR THE FRONT-TO-BACK MEMBERS, WE ARE ADVISED THAT ALTHOUGH THE PROCUREMENT AGENCY REGARDS THESE REQUIREMENTS AS ADEQUATE AS PRESENTLY WRITTEN, CORRESPONDENCE FROM YOUR COMPANY WILL BE REFERRED TO THE SPECIFICATION WRITING ACTIVITY FOR CONSIDERATION AS TO WHETHER A SPECIFIC TEST METHOD SHOULD BE PRESCRIBED.