B-178603, APR 11, 1974
Highlights
NO REMEDIAL ACTION IS POSSIBLE AS CONTRACT HAS BEEN PERFORMED. THE IFB REQUIRED THAT THE ASPHALT DISTRIBUTOR HAVE AN INSIDE TANK CLOSING VALVE. ROSCO FILED A PROTEST WITH THIS OFFICE ALLEGING THAT THE REQUIREMENT FOR AN INSIDE CLOSING VALVE WAS UNNECESSARY TO MEET THE GOVERNMENT'S MINIMUM NEEDS AND THAT THE REQUIREMENT WAS THEREFORE UNDULY RESTRICTIVE. A CONTRACT WAS AWARDED TO E.D. CONCLUDING ON THE BASIS OF THE EVIDENCE OF RECORD THAT THE FOREST SERVICE HAD ESTABLISHED THAT THE SPECIFICATION FOR AN INSIDE CLOSING VALVE REFLECTED THE GOVERNMENT'S MINIMUM NEEDS AND WAS NOT UNDULY RESTRICTIVE. A CONFERENCE WAS HELD ON FEBRUARY 6. WAS ATTENDED BY REPRESENTATIVES OF ROSCO. WHICH WAS NOT CONSIDERED IN CONNECTION WITH OUR PRIOR DECISION.
B-178603, APR 11, 1974
ALTHOUGH INFORMATION PROVIDED IN CONNECTION WITH REQUEST FOR RECONSIDERATION OF PRIOR DECISION TENDS TO SUPPORT PROTESTER'S CONTENTION THAT ITS PRODUCT DID IN FACT MEET AGENCY'S MINIMUM REQUIREMENTS, NO REMEDIAL ACTION IS POSSIBLE AS CONTRACT HAS BEEN PERFORMED. HOWEVER, AGENCY HAS PURCHASED PROTESTER'S MACHINE FOR PERFORMANCE EVALUATION AND CURRENT SOLICITATION FOR EQUIPMENT DOES NOT INCLUDE RESTRICTIVE REQUIREMENT INVOLVED IN PRIOR DECISION.
TO ROSCO MANUFACTURING CO.:
THE ROSCO MANUFACTURING COMPANY (ROSCO) REQUESTS RECONSIDERATION OF A DECISION OF OCTOBER 11, 1973, B-178603, WHICH INVOLVED THE PROCUREMENT OF AN ASPHALT DISTRIBUTOR BY THE FOREST SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE. THE FOREST SERVICE ISSUED INVITATION FOR BIDS (IFB) 3-73-33 ON JUNE 4, 1973, AND, AS AMENDED, THE IFB REQUIRED THAT THE ASPHALT DISTRIBUTOR HAVE AN INSIDE TANK CLOSING VALVE. THE ROSCO EQUIPMENT HAS AN OUTSIDE CLOSING VALVE. ROSCO FILED A PROTEST WITH THIS OFFICE ALLEGING THAT THE REQUIREMENT FOR AN INSIDE CLOSING VALVE WAS UNNECESSARY TO MEET THE GOVERNMENT'S MINIMUM NEEDS AND THAT THE REQUIREMENT WAS THEREFORE UNDULY RESTRICTIVE. PRIOR TO RESOLUTION OF THIS PROTEST, ON JUNE 28, 1973, A CONTRACT WAS AWARDED TO E.D. ETNYRE AND COMPANY ON THE BASIS OF URGENCY.
ON OCTOBER 11, 1973, THIS OFFICE RENDERED A DECISION, CONCLUDING ON THE BASIS OF THE EVIDENCE OF RECORD THAT THE FOREST SERVICE HAD ESTABLISHED THAT THE SPECIFICATION FOR AN INSIDE CLOSING VALVE REFLECTED THE GOVERNMENT'S MINIMUM NEEDS AND WAS NOT UNDULY RESTRICTIVE. THEREFORE, WE DENIED THE PROTEST.
BY LETTER OF OCTOBER 31, 1973, ROSCO REQUESTED THAT WE RECONSIDER OUR DECISION, AND, TO THIS END, A CONFERENCE WAS HELD ON FEBRUARY 6, 1974, AND WAS ATTENDED BY REPRESENTATIVES OF ROSCO, ETNYRE, THE FOREST SERVICE, AND THE GENERAL ACCOUNTING OFFICE. BASED UPON INFORMATION DEVELOPED DURING THIS CONFERENCE, AS SUPPLEMENTED BY OTHER DOCUMENTATION, WHICH WAS NOT CONSIDERED IN CONNECTION WITH OUR PRIOR DECISION, IT IS OUR VIEW THAT ROSCO HAS PRESENTED SUBSTANTIAL SUPPORT FOR ITS CONTENTION THAT ITS OUTSIDE CLOSING VALVE WOULD HAVE MET THE MINIMUM NEEDS OF THE FOREST SERVICE FOR THE SUBJECT PROCUREMENT. FURTHERMORE, THIS CONCLUSION IS SUPPORTED BY A GAO CONSULTING ENGINEER. THEREFORE, BASED UPON CONSIDERATION OF INFORMATION NOT AVAILABLE AT THE TIME OF OUR INITIAL DECISION, IT APPEARS THAT THE REQUIREMENT WAS UNDULY RESTRICTIVE. NEVERTHELESS, SINCE PERFORMANCE OF THE CONTRACT WHICH WAS THE SUBJECT OF OUR DECISION HAS NOW BEEN COMPLETED, NO REMEDIAL ACTION IN THIS REGARD IS POSSIBLE.
HOWEVER, SUBSEQUENT TO THE ABOVE CONFERENCE, THE FOREST SERVICE CONFERRED SEPARATELY WITH BOTH ROSCO AND ETNYRE. AS A RESULT, THE FOREST SERVICE REPORTS THAT IT HAS ACQUIRED A ROSCO MACHINE WHICH IS BEING USED TO EVALUATE PERFORMANCE. FURTHERMORE, IT IS REPORTED THAT THE PROCUREMENT OF AN ASPHALT DISTRIBUTOR IS NOW IN PROGRESS AND THE CURRENT SOLICITATION DOES NOT INCLUDE A REQUIREMENT FOR AN INSIDE CLOSING VALVE.
IN THESE CIRCUMSTANCES, IT DOES NOT APPEAR THAT ANY FURTHER ACTION BY OUR OFFICE AT THIS TIME IS REQUIRED.