B-233935.3, May 25, 1989, 89-1 CPD 506
B-233935.3: May 25, 1989
The General Accounting Office will not question such a determination absent a clear showing that it was arbitrary or capricious. Agency determination to procure scaffolding components on a lot basis which includes both couplers and associated pipes rather than break out components under separate lots is unobjectionable where the decision was based on a reasonable need to ensure compatibility among the component parts and to obtain reliable test results. Which was issued on November 2. The scaffolding is used by the Naval Shipyard on or near Navy vessels in drydock. The RFP separated the requirement for scaffolding components into four lots which were to be evaluated and awarded independently.
B-233935.3, May 25, 1989, 89-1 CPD 506
PROCUREMENT - Specifications - Minimum needs standards - Determination - Administrative discretion DIGEST: 1. A contracting agency's responsibility for determining its actual needs includes determining the type and amount of testing necessary to ensure product compliance with specifications, and the General Accounting Office will not question such a determination absent a clear showing that it was arbitrary or capricious. PROCUREMENT - Competitive Negotiation - Contract awards - Multiple/aggregate awards - Propriety 2. Agency determination to procure scaffolding components on a lot basis which includes both couplers and associated pipes rather than break out components under separate lots is unobjectionable where the decision was based on a reasonable need to ensure compatibility among the component parts and to obtain reliable test results.
Constantine N. Polites & Co.:
Constantine N. Polites & Co. protests the terms of request for proposals (RFP) No. N00181-89-R-0023, issued by the Norfolk Naval Shipyard for various scaffolding components. Polites objects to the RFP requirement that offerors submit samples of various items with their offers for testings and argues also that the grouping of various line items into lots restricts competition. /1/
We deny the protest.
The RFP, which was issued on November 2, 1988, and amended seven times, provided that the couplers and pipes be manufactured in accordance with a quality assurance procedure, MIL-S-29180A. The scaffolding is used by the Naval Shipyard on or near Navy vessels in drydock. The RFP separated the requirement for scaffolding components into four lots which were to be evaluated and awarded independently. As amended, the RFP established the lots as follows:
Lot I - (items 0001-0006) 2 inch couplers and associated pipes.
Lot II - (items 0007-0013) 2 1/2 inches couplers and associated pipes.
Lot III - (item 0014) 1 5/8 inches couplers.
Lot IV - (items 0015-0017) aluminum ladders.
In addition, offerors were required to submit a sample of a specified coupler and pipe from Lots I and II. The samples were to be tested in accordance with procedures contained in military specification MIL-S- 29180A, except that tensile strength would be tested at a minimum load of 25,000 pounds instead of the 16,000 pounds required by the specification. Award was to made to the low offeror on each lot whose samples passed testing. The agency reports that three offers were received prior to the February 14, 1989, closing date and that it has awarded a contract for Lots I and III.
The protester argues first that the requirement that offerors submit samples limits competition to firms which currently produce and stock the required items. It contends that MIL-S-29180A contains adequate procedures for testing to enable the activity to determine if the offeror has met the requirements. We find this protest ground to be without merit.
A contracting agency's responsibility for determining its actual needs includes determining the type and amount of testing necessary to ensure product compliance with the specifications. Alan Scott Industries, B-228756.2, Nov. 6, 1987, 87-2 CPD Para. 460. Such a determination must not be arbitrary or capricious, however. Id. Here, the agency states that the scaffolding involves configurations of great height and width and that the safety of personnel working on or near the scaffolding is dependent on the reliability of its component parts. The agency asserts that testing samples is required to ensure that the products offered do, in fact, meet the specified requirements and thus can be expected to provide a safe and reliable scaffolding structure when assembled. The agency states that it conducts its testing by assembling the couplers and pipes in the same manner as they will be assembled in actual use.
With respect to the protester's argument that the necessary testing is incorporated by MIL-S-29180A, we note that, as indicated above, the RFP provides that the testing will be in accordance with the test procedures set forth in MIL-S-29180A, except that the test for tensile strength will be to a minimum load of 25,000 lbs. in lieu of 16,000 lbs. Therefore, the agency has determined that the couplers and pipes should be tested when assembled and under a more stringent standard than that set forth in MIL-S -2980A. In view of the safety concerns and the necessity for compatibility, we do not find that the requirement for samples is unreasonable and find no basis upon which to object to the requirement.
Polites also contends that the grouping of couplers and pipes into a single lot restricts competition. The protester argues that the solicitation as structured limits competition to offerors who are capable of supplying both the specified couplers and the required pipes. asserts that such an arrangement can particularly be a source of abuse where one or more of the items included in the lot are available from only one manufacturer.
An agency is required to specify its needs and select its procurement approach in a manner designed to promote full and open competition. See LaBarge Products, Inc., B-232201, Nov. 23, 1988, 88-2 CPD Para. 510. Restrictive provisions should only be included to the extent necessary to satisfy the agency's minimum needs. The contracting agency, which is most familiar with its needs and how to fulfill those needs, must make the determination in the first instance. Id.
Here, although the specifications for the couplers and pipes may be reasonably precise, the agency reports that for the purposes of testing, it regards the coupler and pipe as a consolidated unit. It explains that because the safety of the scaffolding must be relied on by its personnel, the method of testing and the reliability of the results become crucial in the agency's selection decision. The agency states that if couplers and pipes provided by different offerors were permitted, it would be difficult, if not impossible, to attribute any test failure to a particular offeror. Thus, to ensure compatibility and reliable test results, the agency chose not to break out couplers and pipes. The protester has not refuted the agency's needs in this regard. We note also that the only line items which the agency consolidated into a lot were those which required compatibility with other line items. By separating the solicitation into four lots, the agency apparently sought to expand competition to the greatest extent possible. We find the agency's actions to be reasonable and will not question the consolidated approach to portions of the solicitation notwithstanding the fact that it may preclude Polites' participation in those portions of the procurement.
The protest is denied.
/1/ The closing date was extended by amendment several times, and this protest was filed timely prior to the closing date for receipt of offers.