B-169934, SEP. 28, 1970

B-169934, SEP. 28, 1970

BID PROTEST - SPECIFICATIONS - ADEQUACY DENIAL OF PROTEST OF GEORGE E. VIERECK & COMPANY, INC., THIRD LOW BIDDER, AGAINST THE REVISED SPECIFICATION FOR 10" LATHES (ENGINE AND TOOLROOM) BY THE ARMY'S ROCK ISLAND ARSENAL, ROCK ISLAND, ILL. BIDDER, WHO ALLEGED THAT THE REVISED SPECIFICATIONS WOULD PRODUCE A SUBSTANDARD MACHINE THAT WOULD NOT BE SUITABLE FOR INTENDED USE, ON THE BASIS THAT THE TESTING REQUIREMENTS HAD BEEN OMITTED IN THE REVISION MAY NOT HAVE PROTEST SUSTAINED SINCE ADMINISTRATIVE AGENCIES HAVE THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATION WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT. THEREFORE ANY FURTHER OBJECTIONS TO THE SPECIFICATIONS MUST PROPERLY BE LEFT TO THE AGENCY CONCERNED.

TO GEORGE E. VIERECK & CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1970, AND SUBSEQUENT CORRESPONDENCE PROTESTING AGAINST THE ADEQUACY OF THE SPECIFICATION CONTAINED IN INVITATION FOR BIDS NO. DAAF 01-70-B-0770, ISSUED BY THE ARMY'S ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS.

THE SUBJECT INVITATION SOLICITED BIDS FOR 10" LATHES (ENGINE AND TOOLROOM) USING FEDERAL SPECIFICATION NO. 00-L-125B (125B) ISSUED AUGUST 29, 1969, BY THE DEFENSE INDUSTRIAL PLANT EQUIPMENT CENTER (DIPEC), AS PREPARING ACTIVITY FOR MACHINE TOOLS SPECIFICATIONS. OF THE FOUR BIDS RECEIVED AND OPENED ON MAY 22, 1970, THE BID OF YOUR PRINCIPAL, STANDARD MODERN TOOL COMPANY, WAS THIRD LOW.

WHILE NO OBJECTION WAS VOICED BY YOUR COMPANY, OR ANY OTHER BIDDER, PRIOR TO BID OPENING CONCERNING THE SPECIFICATION REQUIREMENTS, YOU PRESENTLY OBSERVE THAT SPECIFICATION 125B, WHICH SUPERSEDED SPECIFICATION NO. 00-L- 125A (125A), PERMITS A POTENTIAL SUPPLIER TO DELIVER TO THE GOVERNMENT A LATHE WHICH MEETS ALL CURRENT REQUIREMENTS BUT, WHICH, IN USE, HAS A CAPACITY OF "LITTLE MORE THAN A HOBBY SHOP PIECE OF EQUIPMENT." YOU HAVE INDICATED THAT YOUR INTEREST IN BRINGING THIS MATTER TO OUR ATTENTION IS "SOLELY FOR THE PROTECTION OF THE GOVERNMENT'S INDUSTRIAL MACHINE SHOPS AND ITS MOBILE UNITS IN THE FIELD WHICH RELY UPON THIS TYPE LATHE ... "

INITIALLY, THE ESSENCE OF YOUR PROTEST WAS THAT DIPEC HAD DELETED A ROUGH TURNING TEST WHICH WAS INCLUDED UNDER SAMPLING, INSPECTION, AND TEST PROCEDURES IN SPECIFICATION 125A, IN THE SUPERSEDING SPECIFICATION 125B, AND THAT SUCH DELETION WOULD PERMIT PRODUCTION OF A LATHE WHICH WOULD NOT BE SUITABLE FOR ITS INTENDED USE, AS SET FORTH IN PARAGRAPH 6.1 OF SPECIFICATION 125B. THE DELETED TEST, DESIGNED TO TEST THE DEFLECTION OF THE LATHE UNDER ABNORMAL LOADING CONDITIONS, COMPRISED TAKING A ONE- QUARTER INCH DEEP CUT FROM A TWO AND ONE-QUARTER INCH SQUARE BAR. THIS TEST CAUSED AN INTERRUPTED CUT TO BE MADE WHICH RESULTED IN AN IMPACT LOADING ON THE ENTIRE MACHINE AS EACH CORNER OF THE SQUARE BAR STRUCK THE TOOL.

IN ANSWER TO YOUR INITIAL CONTENTION, DIPEC STATED IN PERTINENT PART, THAT:

"DIPEC'S STUDY OF THE PROPOSALS (TO AMEND SPECIFICATION 00-L-125A) INDICATED THAT A COMPLETE REVISION TO THE SPECIFICATION WOULD BROADEN ITS SCOPE AND ALLOW CUSTOMERS THE OPTION OF PURCHASING AN ENGINE LATHE OR TOOL ROOM LATHE, AS REQUIRED, THUS TENDING TO BROADEN THE SPECTRUM OF COMPETITION. OUR ENGINEERING PERSONNEL ALSO DECIDED THAT THE OBJECTIONABLE SQUARE BAR TURNING TEST SHOULD BE REVISED TO BE COMPATIBLE WITH CHANGES MADE IN OTHER LATHE SPECIFICATIONS WHICH REQUIRED TURNING TESTS IN ACCORDANCE WITH AMERICAN NATIONAL STANDARDS INSTITUTE (ANSI) STANDARD B5.16, ACCURACY OF ENGINE AND TOOL ROOM LATHES.

"THE GEORGE E. VIERECK & CO., INC., CONTENTION THAT THE "B" REVISION OF FEDERAL SPECIFICATION 00-L-125 WILL RESULT IN THE GOVERNMENT PROCURING LATHES OF INFERIOR CAPACITY AND QUALITY IS NOT CONCURRED IN BY THIS CENTER. THE BASIC REQUIREMENTS WERE NOT CHANGED FROM THE "A" REVISION, BUT WERE EXPANDED TO MAKE IT A MORE USEFUL PROCUREMENT DOCUMENT AND OFFER A POTENTIAL FOR BROADER COMPETITION AMONG MANUFACTURERS OF THESE LATHES. THE QUALITY OF LATHES DELIVERABLE UNDER THE "B" REVISION WILL BE THE SAME AS PROCURED UNDER THE "A" REVISION. THE CURRENT DOCUMENT HAS BEEN AVAILABLE FOR USE FOR APPROXIMATELY ONE YEAR WITHOUT COMPLAINT FROM PROCUREMENT OFFICES."

BY SEPARATE LETTER OF JULY 10, 1970, THE DEPARTMENT OF THE ARMY, THROUGH ITS CHIEF OF ENGINEERING DIVISION, RESEARCH, DEVELOPMENT AND ENGINEERING DIRECTORATE, ADVISED YOUR FIRM:

"WEAPONS COMMAND FINDS THAT THE REQUIREMENTS AND TESTS COVERED BY THE SPECIFICATION ARE ADEQUATE FOR PROCUREMENT AND IS NOT PLANNING, AT THIS TIME, TO INITIATE ANY CHANGE IN THE DOCUMENT."

AFTER REVIEWING THE ABOVE QUOTED COMMENTS FROM DIPEC, YOU ADVISED THAT THEY INFERRED PERFORMANCE TESTS WOULD STILL BE REQUIRED UNDER SPECIFICATION 125B, AND YOU QUESTIONED THE CORRECTNESS OF SUCH AN INFERENCE AS FOLLOWS:

" *** TO DETERMINE THE PERFORMANCE OF ANY LATHE IT IS PARAMOUNT THAT THE LATHE'S CAPABILITY TO CUT METAL MUST BE DEMONSTRATED. NOWHERE IN THE 'B' REVISION IS THERE A REQUIREMENT THAT THE LATHE BE SUBMITTED TO A METAL STOCK REMOVAL CUTTING TEST, AS REQUIRED BY THE 'A' SPECIFICATION. IT IS UNDERSTANDABLE THAT THE SEVERE TEST REQUIRED BY THE 'A' SPECIFICATION SHOULD BE MODIFIED, BUT THIS DOES NOT EXCUSE THE GOVERNMENT FROM NOT REQUIRING AT LEAST SOME CUTTING TEST IN THE 'B' REVISION.

"THIS COMPANY CONCURS IN THE INDUSTRY POSITION THAT THE SQUARE BAR METAL CUTTING TEST SHOULD BE MODIFIED; HOWEVER, THIS COMPANY STRENUOUSLY OBJECTS, ON BEHALF OF THE PUBLIC INTEREST, THAT THE STOCK REMOVAL TEST BE WHOLLY ELIMINATED."

"WHEN YOUR OFFICE EVALUATES THE FOREGOING OBSERVATIONS, IT SHOULD HAVE IN MIND THE INTENDED USE TO WHICH THESE LATHES ARE TO BE PUT. THIS USE IS SET FORTH IN THE 'B' SPECIFICATION, AT PARAGRAPH 6.1, AND READS AS FOLLOWS:

THE LATHES COVERED BY THIS SPECIFICATION ARE INTENDED FOR USE IN GENERAL MACHINE SHOPS AND TOOLROOMS AND MOBILE UNITS FOR TURNING, FACING, THREADING AND BORING OPERATIONS WITHIN THE CAPACITY AND ACCURACY LIMITATIONS OF THE TYPE LATHE SPECIFIED.

"IF THE INTENDED USE IS AS SET FORTH ABOVE, THEN THE GENERAL ACCOUNTING OFFICE MUST INSIST THAT SPECIFICATION 'B' CONTAIN A PERFORMANCE TEST WHICH WILL REQUIRE THE LATHES TO REMOVE A SPECIFIED AMOUNT OF METAL WITHIN A TIME FRAME RELATED TO THE MOTOR HORSEPOWER." RESPONDING TO THIS NEW ASSERTION DIPEC STATED IN PART]

"THE SQUARE BAR TEST IN FEDERAL SPECIFICATION 00-L-125A DID NOT CONSTITUTE A METAL REMOVAL TEST IN THE SAME CONTEXT AS THE METAL REMOVAL TEST IN THE ABOVE MILITARY SPECIFICATION, (MILITARY SPECIFICATIONS REFERENCED BY YOU, WHICH DID REQUIRE A METAL STOCK REMOVAL) BUT WAS DESIGNED TO TEST THE DEFLECTION OF THE LATHE UNDER AN ABNORMAL LOADING CONDITION. FEDERAL SPECIFICATION 00-L-125 HAS NEVER HAD, IN ANY OF ITS PUBLISHED EDITIONS, A TEST WHICH WOULD REQUIRE THE LATHES TO REMOVE A SPECIFIED AMOUNT OF METAL WITHIN A TIME FRAME RELATED TO THE MOTOR HORSEPOWER.

" *** IT HAS BEEN OUR POLICY TO PROVIDE METAL REMOVAL TESTS RELATED TO MOTOR HORSEPOWER FOR LATHES WHEN WE HAVE CONSIDERED IT NECESSARY BASED UPON THE LATHE CONFIGURATION AND ITS NORMAL USE. THE LATHES COVERED BY THIS SPECIFICATION ARE NORMALLY USED FOR THE MANUFACTURE AND REPAIR OF SMALL ITEMS WHERE ACCURACY IS THE PRIMARY CONSIDERATION. THE LATHES COVERED BY THE EXHIBITS WITH REFERENCE 1.D., ARE LARGER AND OF A COMPLETELY DIFFERENT CONFIGURATION AND DESIGNED FOR MUCH HEAVIER DUTY USES THAN THE LATHES COVERED IN FEDERAL SPECIFICATION 00-L-125B. EVEN THE LIGHT DUTY 13 AND 15 INCH LATHES IN MIL-L-23249B REQUIRE THREE TO FIVE TIMES THE HORSEPOWER OF THE LARGEST LATHE COVERED IN FEDERAL SPECIFICATION 00-L-125B, AND THE OTHER EXHIBITS REQUIRE UP TO 15 TIMES THE HORSEPOWER. THERE IS NO VALID COMPARISON TO BE MADE BETWEEN THE SMALL BENCH LATHES COVERED BY FEDERAL SPECIFICATION 00-L-125B AND THE LARGER LATHES COVERED BY THE MILITARY SPECIFICATIONS FORWARDED AS EXHIBITS. NEITHER THE MILITARY SERVICES NOR OURSELVES HAVE SEEN ANY NECESSITY FOR THIS TYPE OF METAL REMOVAL TEST ON THE 10" BELT DRIVEN BENCH LATHES COVERED BY THIS SPECIFICATION.

"IN THE CASE IN QUESTION, WE AGREE THAT A METAL REMOVAL TEST IS USUALLY REQUIRED ON LARGE LATHES, AND MOST SPECIFICATIONS FOR SUCH MACHINES INCLUDE THESE TESTS. IN OUR OPINION, A METAL REMOVAL TEST FOR A LOW HORSEPOWER, BELT DRIVEN LATHE OF THE TYPES COVERED BY FEDERAL SPECIFICATION 00-L-125B IS MEANINGLESS AND WOULD SIMPLY IMPOSE ADDITIONAL COST. IF THE GEORGE E. VIERECK & CO., INC., WILL SUBMIT SPECIFIC RECOMMENDATIONS FOR TESTS AND JUSTIFICATION WITHIN THE CONTEXT AND APPLICABLE TO THE MACHINES COVERED BY FEDERAL SPECIFICATION 00-L 125B, WE WILL GIVE THEM CAREFUL CONSIDERATION AND IF APPLICABLE, WILL FORMALLY COORDINATE THE PROPOSALS WITH THE MILITARY DEPARTMENTS TO DETERMINE THEIR REQUIREMENTS IN THIS AREA."

THIS OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE ADMINISTRATIVE AGENCIES HAVE THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE RESPONSIBILITY OF DETERMINING WHETHER THE PRODUCT MEETS THE SPECIFICATIONS. 44 COMP. GEN. 302, 304 (1964); 38 COMP. GEN. 190 (1950); 35 COMP. GEN. 174 (1955). WE ALSO RECOGNIZE THAT GOVERNMENT PROCUREMENT OFFICIALS WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH EQUIPMENT WILL BE USED AND WITH PAST RESULTS OBTAINED IN THE USE OF SIMILAR EQUIPMENT ARE GENERALLY IN THE BEST POSITIONS TO KNOW THE GOVERNMENT'S NEEDS AND BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. IN THE INSTANT CASE IT IS THE CONSIDERED OPINION OF DIPEC TECHNICAL PERSONNEL THAT LATHES WHICH MEET THE REQUIREMENTS OF THE SPECIFICATION AS REVISED WILL ALSO BE ADEQUATE FOR THEIR INTENDED USE. WHILE THERE MIGHT WELL BE SOME BASIS FOR A DIFFERENCE OF TECHNICAL OPINION CONCERNING DIPEC'S POSITION THAT THE NEEDS OF THE GOVERNMENT HAVE NOT BEEN UNDERSTATED BECAUSE A METAL STOCK REMOVAL TEST WAS NOT REQUIRED TO ASSURE THE PROCUREMENT OF A SATISFACTORY 10" LATHE, THIS DETERMINATION APPEARS TO INVOLVE A TECHNICAL EXPERTISE NOT AVAILABLE TO US. IN SUCH CIRCUMSTANCES, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR OWN JUDGEMENT FOR THAT OF THE TECHNICAL PERSONNEL EMPLOYED BY THE GOVERNMENT TO DECIDE SUCH MATTERS, UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THEIR JUDGEMENT IS IN ERROR. 40 COMP. GEN. 294, 297 (1960). SUCH DOES NOT APPEAR TO BE THE CASE HERE.

AS STATED IN B-167661(1)(2), MAY 5, 1970,

"WE BELIEVE THAT THIS POLICY REPRESENTS THE ONLY PRACTICAL APPROACH OPEN TO OUR OFFICE IN DISPOSING OF SUCH CONTENTIONS MADE BY UNSUCCESSFUL OFFERORS IN THE FACE OF CONTRARY EVIDENCE FROM THE PROCUREMENT AGENCY. THE ARGUMENTS AGAINST OUR OFFICE ESTABLISHING AND MAINTAINING AN ENGINEERING CAPABILITY COMPETENT TO REVIEW SUCH ADMINISTRATIVE DETERMINATIONS WOULD RESULT IN AN ANOMALOUS SITUATION WHEREIN OUR OFFICE WOULD BE SUBSTITUTING ITS JUDGEMENT FOR THAT OF THE OFFICIALS WHO WERE EMPLOYED FOR THAT SPECIFIC PURPOSE BY THE PROCURING AGENCY, WITH A CONSEQUENT DIFFUSION OF PROCUREMENT RESPONSIBILITY AND EXTENDED AND POSSIBLY UNREASONABLE DELAYS IN EFFECTING NEEDED PROCUREMENTS."

OUR OFFICE HAS NO JURISDICTION TO REQUIRE A CONTRACTING AGENCY TO CHANGE ITS SPECIFICATIONS UNLESS SUCH SPECIFICATIONS CONSTITUTE VIOLATIONS OF LEGAL OR REGULATORY REQUIREMENTS. WE CANNOT, AS A MATTER OF LAW, STATE THAT THE FAILURE TO INCLUDE EITHER OF THE REFERENCED TESTS IN THE INSTANT SPECIFICATION WAS ERRONEOUS. NEITHER CAN WE ASSUME THAT THE RESPONSIBLE AGENTS OF THE GOVERNMENT WILL FAIL TO INSIST THAT THE NEW SPECIFICATION REQUIREMENTS ARE MET BY THE CONTRACTOR.

WE THEREFORE BELIEVE THAT ANY FURTHER CONSIDERATION OF YOUR OBSERVATIONS AND OBJECTIONS TO THE SPECIFICATION MUST PROPERLY BE LEFT FOR THE ADMINISTRATIVE AGENCIES CONCERNED, ONE OF WHICH (DIPEC) HAS ALREADY OFFERED TO CAREFULLY CONSIDER ANY RECOMMENDATIONS FOR TESTS YOU MAY CARE TO MAKE.

ON THE PRESENT RECORD, IT IS OUR CONSIDERED OPINION THAT THE CHARGES YOU HAVE MADE CONCERNING THE CHANGE IN THE SPECIFICATIONS, IN THE LIGHT OF THE ANSWERS THERETO BY THE ADMINISTRATIVE AGENCY, DO NOT AFFORD A LEGAL BASIS FOR OUR OFFICE TO TAKE EXCEPTION TO THE REVISED SPECIFICATIONS, OR TO THE AWARD OF A CONTRACT BASED UPON COMPLIANCE WITH SUCH SPECIFICATIONS.

YOUR PROTEST MUST THEREFORE BE DENIED.