B-128196, DEC. 6, 1957

B-128196, DEC. 6, 1957

TO MAGNE-PLASTIC CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1957, WITH ENCLOSURES, PROTESTING THAT THE SPECIFICATIONS IN CONNECTION WITH RFQ 40-604-58-525 ISSUED SEPTEMBER 5, 1957, BY THE MEMPHIS AIR FORCE DEPOT APPEAR TO HAVE TAKEN INTO ACCOUNT YOUR CONTENTIONS WITH REGARD TO AN EARLIER SOLICITATION ALTHOUGH THOSE CONTENTIONS AT THE TIME THEY WERE MADE WERE REJECTED. THE SOLICITATION OF SEPTEMBER 5, 1957, REQUESTED PROPOSALS FOR PLANT LAY-OUT EQUIPMENT AND RELATED SERVICES COVERING APPROXIMATELY 14,000,000 SQUARE FEET OF COVERED AND UNCOVERED AREA IN A NUMBER OF AIR FORCE INSTALLATIONS IN THE UNITED STATES.

THE EARLIER SOLICITATION COVERING SUBSTANTIALLY THE SAME WORK WHICH WAS ISSUED JUNE 1, 1956, REQUIRED THAT PROPOSALS BE SUBMITTED BY JUNE 15, 1956. BY LETTER TO OUR OFFICE OF JUNE 27, 1956, WITH ENCLOSURE, YOU PROTESTED THAT YOU WERE UNABLE TO SUBMIT A QUOTATION BECAUSE OF DETAILED RESTRICTIVE SPECIFICATIONS, SKETCHY QUANTITY APPROXIMATIONS,AMBIGUITIES CREATING UNFORESEEABLE RISKS, AND SHORT PREPARATION TIME. WE CONCLUDED IN OUR LETTER, B-128196, AUGUST 23, 1956, THAT "* * * THE COMPLAINT OF THE MAGNE-PLASTIC CORPORATION IS WITHOUT SUFFICIENT BASIS TO JUSTIFY OUR OFFICE IN RAISING ANY OBJECTION TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.'

YOU NOW CONTEND THAT NOTWITHSTANDING OUR PRIOR CONCLUSION, THE CURRENT SOLICITATION "SEEMS TO TAKE INTO ACCOUNT MANY OF OUR CLAIMS OF A YEAR AGO AFTER SAID CLAIMS WERE COMPLETELY REJECTED.' THE IMPLICATION IS THAT THE "CLAIMS" PREVIOUSLY ASSERTED BY YOU WERE, IN FACT, SUBSTANTIAL AND CHANGES EFFECTED IN THE CURRENT SOLICITATION INDICATE A RECOGNITION OF THAT FACT BY THE DEPARTMENT OF THE AIR FORCE.

YOUR ALLEGATIONS THAT THE EARLIER SPECIFICATIONS WERE "UNSOUND AND IMPRACTICAL" WERE QUITE GENERAL AS YOU APPEAR TO CONCEDE IN YOUR LETTER OF JULY 7, 1956, WHEREIN YOU STATE THAT YOU WOULD PROVIDE DETAILS TO SUPPORT YOUR ALLEGATIONS ONLY "UNDER THE PROPER CIRCUMSTANCES.' SINCE, TO OUR KNOWLEDGE, SUCH DETAILS HAVE NEVER BEEN FURNISHED, WE MUST CONCLUDE THAT YOU DO NOT CONSIDER THAT THE PROPER CIRCUMSTANCES HAVE EVER ARISEN.

YOUR OBJECTIONS TO THE EARLIER SOLICITATION STATED IN A NUMBER OF LETTERS INCLUDED THE FOLLOWING:

1. THE REQUEST GAVE NO INDICATION OF THE NUMBER OF TEMPLETS WHICH WOULD BE REQUIRED EVEN THOUGH THE TEMPLETS COULD REPRESENT UP TO 90 PERCENT OF THE TOTAL COST.

2. TOTAL AREA WAS NOT BROKEN DOWN BY TYPE OF SPACE.

3. USE OF ACETATE CALLED FOR BY THE SPECIFICATIONS WOULD BE UNSATISFACTORY BECAUSE OF THE INSTABILITY OF THE MATERIAL UNDER SOME CONDITIONS.

4. THE WIDE LINE REQUIRED BY THE SPECIFICATIONS WOULD TEND TO OBLITERATE MUCH OF THE IDENTIFYING INFORMATION.

5. THE CONTRACT PERIOD OF 12 MONTHS WAS TOO SHORT FOR PERFORMANCE OF THE WORK.

6. THE TWO-WEEK PERIOD BETWEEN DISTRIBUTION OF THE SOLICITATIONS AND DEADLINE FOR SUBMISSION OF PROPOSALS WAS TOO SHORT FOR ADEQUATE PREPARATION.

7. THE MAXIMUM PERMISSIBLE THICKNESS OF MATERIALS WAS ALLEGED TO BE RESTRICTIVE.

A REPORT FURNISHED AT OUR REQUEST BY THE DEPARTMENT OF THE AIR FORCE INDICATES THAT THE CURRENT REQUEST FOR PROPOSALS, RFQ 40-604-58-525, WILL RESULT IN A CONTRACT SUBSTANTIALLY THE SAME AS THAT ENTERED INTO LAST YEAR. ONE MAJOR DIFFERENCE IS THAT LAST YEAR'S SOLICITATION ASKED FOR A PRICE PER SQUARE FOOT OVERALL, WHILE THE CURRENT REQUEST PROVIDES FOR INDICATING PRICES PER SQUARE FOOT BY (1) COVERED AREAS INCLUDING UTILITY OVERLAYS AND UNDERLAYS, (2) UNCOVERED AREAS INCLUDING AIRCRAFT PROCESSING AND HANGERS, AND (3) COVERED AREAS WITHOUT UTILITY OVERLAYS AND UNDERLAYS. IN ADDITION, THE CURRENT SOLICITATION ASKS FOR A SEPARATE QUOTATION ON A PER MILE BASIS FOR TRAVEL BY CONTRACTOR PERSONNEL. THE REPORT STATES THAT THE PRICE BREAKDOWN IN THE CURRENT SOLICITATION WAS ADOPTED TO PROVIDE A FIRMER BASIS FOR SUBSEQUENT NEGOTIATION.

IN ADDITION, THE REPORT STATES:

"MAGNE-PLASTIC INFERENTIALLY SUGGESTS THAT THE NEW PRICING ARRANGEMENT WAS PROMPTED BY ITS REJECTED PROTEST OF 1957. THIS IS NOT THE CASE. THE BREAKDOWN INTO THE THREE CATEGORIES OF SQUARE FOOTAGE WAS INCORPORATED IN LAST YEAR'S CONTRACT (ALTHOUGH NOT IN LAST YEAR'S REQUEST FOR QUOTATIONS) TO PROVIDE FOR MORE PRECISE PRICING. THE TRANSPORTATION ITEM, WHICH WAS NOT IN LAST YEAR'S CONTRACT, WAS ADOPTED BY THE AIR FORCE ON ITS OWN INITIATIVE TO ELIMINATE A MAJOR CONTINGENCY FROM THE FIXED PRICE PER SQUARE FOOT QUOTATIONS. THERE IS NOTHING IN MAGNE-PLASTIC'S PROTESTS OF LAST YEAR WHICH RECOMMENDS THESE CHANNELS.'

THE REPORT FURTHER STATES THAT MOST OF THE CHANGES IN THE CURRENT REQUEST FOR PROPOSALS WERE INCORPORATED IN THE CONTRACT LET AS A RESULT OF THE PRIOR SOLICITATIONS AND RESULTED FROM NEGOTIATIONS LEADING TO THE CONTRACT. THESE CHANGES INCLUDED ELIMINATION OF THE DEPOT IN SPAIN FROM THE LIST OF BASES TO BE COVERED, SIMPLIFICATION OF COLORING REQUIREMENTS FOR TEMPLETS, AND DELETION OF THE REQUIREMENT FOR ACETATE TEMPLETS AND LAY -OUT MATS. THE REPORT FURTHER STATES THAT SIMPLIFICIATION OF THE VERBIAGE REQUIREMENT FOR EACH TEMPLET WAS ACCOMPLISHED UNDER A CHANGE ORDER TO THE CURRENT CONTRACT AND THAT THE CHANGE FROM THE FORMER REQUIREMENT THAT LAY- OUT MATS ,BE SCORED" TO THE CURRENT REQUIREMENT THAT MATS "BE LINED" WAS INTENDED TO RELAX THE REQUIREMENT IN ORDER TO PERMIT GREATER COMPETITION.

FROM THE FOREGOING, IT IS CLEAR THAT WHILE CHANGES HAVE BEEN MADE IN THE SPECIFICATIONS FOR THE CURRENT SOLICITATION, SOME OF THE MAJOR ITEMS TO WHICH YOU OBJECTED REMAIN UNCHANGED. THESE INCLUDE MAXIMUM THICKNESS OF MATS AND TEMPLETS, THE DURATION OF THE CONTRACT AND LACK OF DEFINITE INFORMATION AS TO THE NUMBER OF TEMPLETS REQUIRED. IN ANY CASE, WHETHER OR NOT YOUR SUGGESTIONS WERE IN FACT ADOPTED WOULD NOT AFFECT THE VALIDITY OF OUR EARLIER DECISION. OUR ONLY FUNCTION IN THIS MATTER IS TO DETERMINE WHETHER GOVERNMENT FUNDS ARE OBLIGATED IN ACCORDANCE WITH APPLICABLE LAW AND REGULATIONS AND FOR THE PURPOSES FOR WHICH THE APPROPRIATION WAS MADE. IT IS APPARENT THAT THE THICKNESS LIMITATION REFERRED TO ABOVE WHICH YOU REGARD AS RESTRICTIVE WOULD ALONE PRECLUDE THE USE OF OUR SYSTEM UNDER THE CURRENT SPECIFICATIONS. WE DO NOT REGARD THE SPECIFICATIONS AS SO RESTRICTIVE AS TO WARRANT A CONCLUSION THAT A SOLICITATION BASED ON SUCH SPECIFICATIONS WOULD VIOLATE ANY STATUTE OR REGULATION, SINCE THE MERE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE TO MEET SPECIFICATIONS DRAWN TO MEET THE LEGITIMATE NEEDS OF AN AGENCY DOES NOT JUSTIFY THE CONCLUSION THAT SPECIFICATIONS ARE SO RESTRICTIVE AS TO PRECLUDE THE FREE AND OPEN COMPETITION REQUIRED BY STATUTES GOVERNING PUBLIC PROCUREMENT. SEE 33 COMP. GEN. 586. REPRODUCTION OF LAYOUTS REQUIRED UNDER THE SYSTEM FOR WHICH THE PROCUREMENT WAS INITIATED COULD BE ACCOMPLISHED WITH YOUR PRODUCT ONLY BY ACQUISITION OF ADDITIONAL EQUIPMENT AND BY USING ADDITIONAL STEPS IN THE REPRODUCTION PROCESS. WE DO NOT THINK THAT THE PUBLIC PROCUREMENT STATUTES REQUIRE THAT THE SPECIFICATIONS BE CHANGED SO THAT YOUR PRODUCT COULD QUALIFY UNDER SUCH CIRCUMSTANCES.

YOU ALSO CONTEND THAT THE CURRENT SPECIFICATIONS ARE IMPOSSIBLE OF FULFILLMENT. THIS GENERAL STATEMENT PROVIDES INSUFFICIENT INFORMATION UPON WHICH TO OFFER COMMENT. IT MAY BE STATED, HOWEVER, THAT THE FACT THAT NINE APPARENTLY RESPONSIVE BIDS WERE SUBMITTED AS THE RESULT OF THE CURRENT SOLICITATION WOULD SEEM TO BELIE YOUR CONTENTION.

YOUR BASIC PURPOSE IN THIS MATTER APPEARS TO BE TO OBTAIN AN IMPARTIAL FORM IN WHICH TO DEMONSTRATE THE DESIRABILITY OF YOUR PRODUCT IN ACCOMPLISHING THE AIR FORCE OBJECTIVE. SINCE THE DEVELOPMENT OF SPECIFICATIONS IS A RESPONSIBILITY OF THE PROCURING AGENCY AND NOT OF OUR OFFICE, A DEMONSTRATION OF THE ADVANTAGES OF YOUR SYSTEM TO REPRESENTATIVES OF OUR OFFICE WOULD SERVE NO USEFUL PURPOSE.