B-181555, JAN 16, 1975

B-181555, JAN 16, 1975

SPECIFICATION REQUIREMENTS FOR THE INCLUSION OF A DISCONNECT SWITCH ON A MACHINE FOR THE MACHINE TO BE FLOOR MOUNTED ARE NOT SUBJECT TO QUESTION WHERE THE REQUIREMENT FOR THE SWITCH WAS BASED ON SAFETY CONSIDERATIONS AND THE REQUIREMENT FOR FLOOR MOUNTING WAS DICTATED BY THE PHYSICAL LIMITATIONS OF THE BUILDING CONTAINING THE MACHINE.

SHRINK-O-MATIC, INC.:

ON JUNE 4, 1974, THE DEPARTMENT OF THE AIR FORCE ISSUED INVITATION FOR BIDS (IFB) F49642-74-00308, INVITING BIDS FOR A PALLET SHRINK BELL OVEN, AND OTHER ITEMS NOT THE SUBJECT OF THIS PROTEST. TWO AMENDMENTS WERE SUBSEQUENTLY ISSUED IN RESPONSE TO PROTESTS THAT THE SPECIFICATIONS FOR THE SHRINK OVEN WERE RESTRICTIVE. BOTH AMENDMENTS REDUCED OR ELIMINATED REQUIREMENTS CONTAINED IN THE ORIGINAL SPECIFICATIONS AND HAD THE EFFECT OF ELIMINATING ALL PROTESTS EXCEPT THAT OF SHRINK-O-MATIC, INC. (SHRINK). SHRINK CONTENDS THAT THE SPECIFICATIONS REMAIN RESTRICTIVE DUE TO "THE INCLUSION OF MANY DESCRIPTIVE SPECIFICATIONS, PARTICULARLY PERTAINING TO HEAT ELEMENTS USED." ALTHOUGH SHRINK HAS REQUESTED AND HAS BEEN AFFORDED NUMEROUS OPPORTUNITIES TO ELABORATE THE GROUNDS OF ITS PROTEST AND TO REBUT THE ADMINISTRATIVE POSITION OF THE AIR FORCE, IT HAS NEVER ATTEMPTED TO DO EITHER.

IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT SUBSEQUENT TO THE ISSUANCE OF THE TWO SPECIFICATION MODIFYING AMENDMENTS, THE ONLY TWO REQUIREMENTS THAT REMAIN UNDER PROTEST ARE THE INCLUSION OF A DISCONNECT SWITCH AND THAT THE UNIT BE FLOOR MOUNTED. THE AIR FORCE ADVISES THAT THE ALTERNATIVE TO A FLOOR MOUNTED MODEL IS ONE SUSPENDED OR MOUNTED ON THE CEILING. IN PREPARING THE SPECIFICATIONS CONSIDERATION WAS GIVEN ONLY TO FLOOR INSTALLATION BECAUSE OF THE PRESENCE OF AN OVERHEAD SPRINKLER SYSTEM AND THE FACT THAT THERE WAS ONLY AN OVERHEAD AREA OF 8' X 8' WITHIN WHICH TO INSTALL A UNIT WITH APPROXIMATE DIMENSIONS OF 6' X 6' X 7' WEIGHING 1900 POUNDS. THE USING ORGANIZATION CONSULTED THE GENERAL SERVICES ADMINISTRATION (GSA), THE BUILDING MANAGER, REGARDING THE POSSIBILITY OF INSTALLING THE MACHINE ON THE CEILING. GSA ADVISED THAT BECAUSE OF THE AGE OF THE BUILDING AND THE ABSENCE OF BUILDING PLANS NO FIRM DECISION COULD BE GIVEN REGARDING THE CAPABILITY OF THE CEILING TO SUPPORT THE MACHINE WITHOUT FIRST PERFORMING AN ENGINEERING SURVEY. THEREFORE, THE TYPE OF INSTALLATION REQUIRED WAS DICTATED IN PART BY THE PHYSICAL LIMITATIONS OF THE AIR FORCE BUILDING.

IT IS REPORTED THAT THE REQUIREMENT FOR A DISCONNECT SWITCH WAS BASED SOLELY ON SAFETY CONSIDERATIONS. THE AREA IN WHICH THE MACHINE IS TO BE PLACED IS SUSCEPTIBLE TO MOISTURE COLLECTION WHICH MAKES THE OPERATION OF A MACHINE OF SUCH HIGH VOLTAGE EXTREMELY HAZARDOUS UNLESS ALL REASONABLE SAFETY PRECAUTIONS ARE TAKEN. DISCUSSIONS BETWEEN AIR FORCE AND GSA PERSONNEL ON SITE REVEALED THAT GSA WOULD REQUIRE THE AIR FORCE TO INSTALL SUCH A SWITCH IF THE EQUIPMENT DID NOT CONTAIN ONE. ACCORDINGLY, THE AIR FORCE CONCLUDED THAT THE FURNISHING OF A MACHINE WITH A SWITCH WAS REASONABLE AND A NECESSARY SAFETY REQUIREMENT.

IN OUR RECENT DECISION IN THE MATTER OF PARTICLE DATA, INC.; COULTER ELECTRONICS, INC., B-179762, B-178718, MAY 15, 1974, WE STATED THAT:

"THE PROCUREMENT OFFICIALS INVOLVED WITH THIS SOLICITATION HAVE DETERMINED WHAT THEY BELIEVE TO BE THE REQUIREMENTS THAT ARE SUFFICIENT TO MEET THE GOVERNMENT'S MINIMUM NEEDS. IN THIS REGARD, OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE PREPARATION AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY, TO BE QUESTIONED BY OUR OFFICE ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 53 COMP. GEN. (B-180434, APRIL 12, 1974); 38 COMP. GEN. 190 (1958); 37 ID., 757 (1958), 17 ID., 554 (1938); B-176420, JANUARY 4, 1973. RECOGNIZE THAT GOVERNMENT PROCUREMENT OFFICIALS, WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES OR EQUIPMENT HAVE BEEN USED IN THE PAST ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S ACTUAL NEEDS AND ARE BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. THUS, WE HAVE HELD THAT THE GOVERNMENT CANNOT BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WOULD HAVE THE EFFECT OF REQUIRING SPECIFICATIONS NOT MEETING THE CONSIDERED NEEDS OF THE PROCUREMENT AGENCY."

ON THE BASIS OF THE PRESENT RECORD, WE CANNOT SAY THAT THERE IS NO REASONABLE BASIS FOR THE FLOOR MOUNTING AND SAFETY SWITCH REQUIREMENTS. THEREFORE, WE BELIEVE THAT THE PROCURING ACTIVITY PROPERLY EXERCISED ITS DISCRETION IN DRAFTING THE REVISED SPECIFICATIONS AND WE WILL NOT QUESTION THIS DETERMINATION OF ITS NEEDS.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.