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WHERE THE CHANGE FROM DYNAMIC TESTING TO STATIC TESTING OF THE BREAKER POINT RESISTANCE WAS MADE AFTER THE AWARD OF THE CONTRACT. SUCH CHANGE WILL NOT SUSTAIN A PROTEST WHERE. THE CHANGE WAS MADE PURSUANT TO COMPETENT TECHNICAL ADVICE AND WHERE SUN WAS WILLING AND CAPABLE OF PERFORMING THE CONTRACT AS ORIGINALLY FORMULATED. TO SIMPSON ELECTRIC COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20. WHICH MATTER WAS THE SUBJECT OF OUR DECISION B-168960. OF BREAKER POINT RESISTANCE WHICH WAS THE ORIGINAL METHOD OF TESTING REQUIRED IN THE SPECIFICATION. ROCK ISLAND STATED IN PERTINENT PART: "IF SIMPSON'S STATEMENT THAT 'IT HAS NOW BEEN REPORTED THAT SUN ELECTRIC CORPORATION WAS GIVEN RELIEF ON A CRITICAL AND COSTLY REQUIREMENT OF THE AWARD.

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B-168960, DEC. 28, 1970

BID PROTEST - MODIFICATION AFTER AWARD DENIAL OF PROTEST AGAINST THE AWARD OF AN ADVERTISED CONTRACT FOR TACHOMETER SETS ISSUED BY THE ROCK ISLAND ARSENAL TO SUN ELECTRIC COMPANY, LOW BIDDER. WHERE THE CHANGE FROM DYNAMIC TESTING TO STATIC TESTING OF THE BREAKER POINT RESISTANCE WAS MADE AFTER THE AWARD OF THE CONTRACT, SUCH CHANGE WILL NOT SUSTAIN A PROTEST WHERE, AS IN THE INSTANT CASE, THE CHANGE WAS MADE PURSUANT TO COMPETENT TECHNICAL ADVICE AND WHERE SUN WAS WILLING AND CAPABLE OF PERFORMING THE CONTRACT AS ORIGINALLY FORMULATED.

TO SIMPSON ELECTRIC COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20, 1970, RENEWING YOUR PROTEST AGAINST AN AWARD OF A CONTRACT TO SUN ELECTRIC COMPANY (SUN) UNDER IFB NO. DAAF01-70-B-0265 ISSUED BY THE ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS, WHICH MATTER WAS THE SUBJECT OF OUR DECISION B-168960, MAY 26, 1970, DENYING YOUR EARLIER PROTEST OF MARCH 26, 1970.

WHILE YOU APPARENTLY DO NOT TAKE ISSUE WITH OUR EARLIER DECISION CONCERNING OUR AFFIRMANCE OF THE DEPARTMENT OF THE ARMY'S FAVORABLE DETERMINATION OF SUN'S RESPONSIBILITY, AND AWARD TO IT AS THE LOWEST BIDDER, YOU ASSERT THAT IT HAS NOW COME TO YOUR ATTENTION THAT SUN HAS BEEN GIVEN RELIEF ON A CRITICAL AND COSTLY REQUIREMENT OF THE CONTRACT, SPECIFICALLY PARAGRAPH 3.6.2.2 OF MILITARY SPECIFICATION MIL-T-45568A.

YOU CORRECTLY OBSERVE THAT BY AMENDMENT 0003 TO THE INVITATION, PARAGRAPH 3.6.2.2 OF THE APPLICABLE SPECIFICATION REQUIRED DYNAMIC TESTING, AS OPPOSED TO STATIC TESTING, OF BREAKER POINT RESISTANCE WHICH WAS THE ORIGINAL METHOD OF TESTING REQUIRED IN THE SPECIFICATION. YOU CONTEND THAT THIS FACT REMOVES ANY JUSTIFICATION FOR ROCK ISLAND ARSENAL TO ACCEPT AN ITEM FROM SUN WITHOUT THIS ESSENTIAL TESTING FEATURE. YOU ALSO QUESTION ROCK ISLAND'S CONCURRENT ACTION IN ATTEMPTING TO CHANGE THE SPECIFICATION SO AS TO REMOVE DYNAMIC TESTING.

IN ANSWER TO YOUR CONTENTIONS, ROCK ISLAND STATED IN PERTINENT PART:

"IF SIMPSON'S STATEMENT THAT 'IT HAS NOW BEEN REPORTED THAT SUN ELECTRIC CORPORATION WAS GIVEN RELIEF ON A CRITICAL AND COSTLY REQUIREMENT OF THE AWARD, SPECIFICALLY PARAGRAPH 3.6.2.2 OF SPECIFICATION MIL-T-45568A', IS INTENDED TO CONVEY THE THOUGHT THAT SUN WAS INCAPABLE OF MEETING THE REQUIREMENTS OF THE ORIGINAL CONTRACT AND CONSEQUENTLY SOUGHT A CHANGE IN SPECIFICATIONS, SUCH ALLEGATION IS DENIED IN ITS ENTIRETY. AT NO TIME DID THE GOVERNMENT POSSESS ANY INFORMATION OR EVIDENCE THAT SUN WAS NOT GOING TO MEET THE REQUIREMENTS OF THE CONTRACT. AT NO TIME DID SUN INDICATE TO THE GOVERNMENT THAT IT WAS INCAPABLE OF PRODUCING TEST SETS POSSESSING THE CAPABILITY OF DYNAMIC TESTING. TO THE CONTRARY, SUN AFFIRMATIVELY RESPONDED TO INVITATION FOR BIDS DAAF01-70-B-0265, FURTHERMORE, SUN OFFERED, ON 7 MAY 1970 *** TO FURNISH AN ITEM POSSESSING THE CAPABILITY OF BOTH DYNAMIC AND STATIC TESTING SINCE THE CONTRACTOR CONSIDERED STATIC TESTING A MORE RELIABLE PROCEDURE. SINCE THE CONTRACT REQUIRED DELIVERY OF THE FIRST ARTICLE 150 DAYS AFTER DATE OF AWARD OF CONTRACT, WHICH WAS ISSUED ON 13 MARCH 1970, (FIRST ARTICLE DUE 10 AUGUST 1970) AND SUN OFFERED BOTH CAPABILITIES PRIOR TO THIS DATE OF FIRST ARTICLE DELIVERY THE ALLEGATION PRESENTED HEREIN FALLS FROM ITS OWN LACK OF LOGIC. HOWEVER, SIMPSON'S ALLEGATION REPRESENTS A MOOT QUESTION; SUN NEVER REACHED THE POINT WHERE IT WAS ULTIMATELY REQUIRED TO SUBMIT A TEST SET POSSESSING THE DYNAMIC TESTING CAPABILITY, OR THE DYNAMIC AND STATIC TESTING CAPABILITY. FOR REASONS SET FORTH BELOW, MODIFICATION 00001 TO CONTRACT DAAF01-70-C- 0626 WAS ISSUED UPON THE INITIATIVE OF THE GOVERNMENT, ELIMINATING THE DYNAMIC TESTING CAPABILITIES OF THE ITEM REQUIRED TO BE DELIVERED UNDER THE CONTRACT AND SUBSTITUTING THEREFORE THE STATIC TESTING CAPABILITY. SUN DID NOT SEEK A CHANGE IN CONTRACT SPECIFICATIONS DUE TO AN INFERRED INCAPABILITY OF MEETING CONTRACT REQUIREMENTS.

"THE GOVERNMENT WILL REQUIRE CONTRACT COMPLIANCE AND WILL NOT ACCEPT TEST SETS THAT DO NOT CONFORM TO CONTRACT SPECIFICATIONS. THE REQUIRED CONTRACT ITEM MUST CONTAIN THE STATIC TESTING CAPABILITY AS REQUIRED BY THE ABOVE OUTLINED SUPPLEMENTAL AGREEMENT. SIMPSON'S ALLEGATION THAT ROCK ISLAND ARSENAL WILL ACCEPT UNITS THAT DO NOT COMPLY WITH THE CONTRACT IS UNFOUNDED AND CONTAINS NO BASIS IN FACT."

CONCERNING THE ENTIRE HISTORY RELATIVE TO THE DELETED TEST PROCEDURES, IT IS REPORTED:

"THE CONTRACTING OFFICER'S DECISION TO SUBSTITUTE STATIC TESTING FOR DYNAMIC TESTING OF POINT RESISTANCE WAS BASED UPON INFORMATION PROVIDED FROM THE CUSTOMER AND ROCK ISLAND ARSENAL TOOL AND EQUIPMENT DIVISION. SINCE THIS INFORMATION (THE FACTS LEADING UP TO THIS DECISION ARE DISCUSSED BELOW) INDICATED THAT THE GOVERNMENT'S NEEDS WOULD BE MORE ADEQUATELY PROVIDED FOR BY SUCH SUBSTITUTION THE CONTRACTING OFFICER HAD NO OTHER ALTERNATIVE THAN TO ISSUE THE RECOMMENDED CHANGE. IN THE IMMEDIATE CASE, IT WAS THE CUSTOMER'S INITIAL POSITION (SUPPLY AND MAINTENANCE DIRECTORATE, HEADQUARTERS, U.S. ARMY WEAPONS COMMAND, AMSWE SM) THAT THE PROPOSED PROCUREMENT OF TEST SETS, TACHOMETER-DWELL, POSSESS THE DYNAMIC TESTING CAPABILITY. IN A COMMUNICATION ADDRESSED TO THE ROCK ISLAND ARSENAL TOOL AND EQUIPMENT DIVISION, AMSWE-SM STATED:

'ANY PROCUREMENT OR CONTRACT ACTION IMMINENT AT THIS TIME FOR CONSUMMATION SHOULD BE CHANGED TO REFLECT THE DYNAMIC REQUIREMENT INSTEAD OF THE STATIC TYPE TESTING. IT IS THE STANDARD POLICY AND PRACTICE IN THE AUTOMOTIVE REPAIR INDUSTRY TO PERFORM IGNITION TESTS, "WITH THE ENGINE RUNNING" WHICH MEANS THE TESTING EQUIPMENT MUST HAVE THE "DYNAMIC" CAPABILITY TO PROVIDE MEANINGFUL TESTS.'

"AS A CONSEQUENCE OF THE ABOVE COMMUNICATION THE DYNAMIC TESTING CAPABILITY WAS INCORPORATED INTO INVITATION FOR BIDS DAAF01-70-B-0265, AS AMENDED. HOWEVER, SUBSEQUENT TO THE ISSUANCE OF CONTRACT DAAF01-70 C-0626 TO SUN ELECTRIC CORPORATION, ROCK ISLAND ARSENAL TOOL AND EQUIPMENT DIVISION WAS NOTIFIED THAT THE STANDARD UTILIZED IN THE AUTOMOTIVE INDUSTRY RELATIVE TO TESTING POINT RESISTANCE WAS THE STATIC (ENGINE NOT RUNNING) TEST RATHER THAN THE DYNAMIC (ENGINE RUNNING) TEST. IN SUPPORT OF THIS POSITION SUN PROVIDED ROCK ISLAND ARSENAL WITH A COPY OF DELCO REMY MANUAL, #5221, PAGE 37, *** CONFIRMING THE USE OF STATIC TESTING. FURTHER SUPPORT OF THIS POSITION ROCK ISLAND ARSENAL BECAME AWARE OF DEPARTMENT OF THE ARMY TECHNICAL MANUAL TM9 2320-218-20, DATED APRIL 1963 WHICH CALLED OUT A STATIC TEST FOR THE PRIMARY CIRCUIT OF THE IGNITION SYSTEM OF THE M151 TRUCK. ARMED WITH THIS LATEST INFORMATION, ROCK ISLAND ARSENAL TOOL AND EQUIPMENT DIVISION NOTIFIED AMSWE-SM WHICH THEN CHANGED THEIR POSITION ON THE TESTING REQUIREMENT AS FOLLOWS:

'THE DYNAMIC PT RESISTANCE CAN BE DELETED PER CONVERSATION W/H. PRICE THIS DATE.'

"ACCORDINGLY, THE CONTRACTING OFFICER RECEIVED FROM THE TOOL AND EQUIPMENT DIVISION OF ROCK ISLAND ARSENAL A RECOMMENDATION THAT THE DYNAMIC TEST BE DELETED AND THE STATIC TESTING CAPABILITY BE INCORPORATED INTO THE TEST SETS. THIS ACTION WAS CONTRACTUALLY EFFECTED ON 6 JULY 1970 AND WAS EXECUTED ON THE BASIS THAT THE BEST INTERESTS OF THE GOVERNMENT WOULD BE SERVED THEREBY. THE CONTRACT MODIFICATION WAS BASED UPON A REASONED JUDGMENT BY GOVERNMENT PERSONNEL ASSIGNED THE RESPONSIBILITY FOR PROCURING AN ITEM SATISFYING THE GOVERNMENT'S MINIMUM NEEDS. THE MODIFICATION WAS ISSUED IN ACCORDANCE WITH APPLICABLE PROCUREMENT PROCEDURES AND REPRESENTED AN ADMINISTRATIVE ACT INVOLVING A VALID AND EXISTING CONTRACT. ***

"THE ROCK ISLAND ARSENAL TOOL AND EQUIPMENT DIVISION DID NOT RELY SOLELY UPON THE DELCO REMY MANUAL IN ARRIVING AT THE DETERMINATION THAT STATIC TESTING SHOULD BE THE CAPABILITY INCORPORATED INTO THE CONTRACT ITEMS. PARAGRAPH 6.1 OF SPECIFICATION MIL-T-45568A PROVIDES:

'6.1 INTENDED USE. THE TEST SET COVERED BY THIS SPECIFICATION CONSISTS OF A DWELL METER CIRCUIT AND A TACHOMETER. THE TEST SET DERIVES ITS TOTAL OPERATING POWER FROM THE VEHICLE ELECTRICAL SYSTEM. THE DWELL METER CIRCUIT OF THE UNIT IS INTENDED TO BE USED FOR MEASURING DISTRIBUTOR CAM DWELL AND FOR THE ADJUSTMENT OF BREAKER POINTS ON INTERNAL COMBUSTION ENGINES. INDICATIONS OF WORN DISTRIBUTOR SHAFT BUSHINGS, BOUNCING OF BREAKER POINTS, RESISTANCE BETWEEN BREAKER POINTS, OR IN THE WIRING AND CONNECTIONS OF THE DISTRIBUTOR PRIMARY CIRCUIT ARE ALSO FUNCTIONS OF THE INSTRUMENT. THE TACHOMETER IS USED FOR MEASURING ENGINE R.P.M. FOR CARBURETOR IDEL SETTINGS, FOR SETTING THE ENGINE GOVERNOR, AND FOR OTHER USES WHERE IT IS DESIRED TO KNOW THE ENGINE SPEED.'

"THIS SPECIFICATION REPRESENTS A GENERAL SPECIFICATION COVERING THE REQUIREMENTS RELATED TO TEST SET, TACHOMETER-DWELL. THIS SPECIFICATION SETS FORTH REQUIREMENTS THAT EXCEEDED THE GOVERNMENT'S NEEDS IN THE AREA OF POINT RESISTANCE TESTING. DYNAMIC TESTING REVEALS, IN ADDITION TO DEFECTIVE POINTS, CONDITIONS RELATED TO 'DISTRIBUTOR SHAFT AND BUSHINGS, PLATE CONDITION, CAM CONDITION, LEAD CONDITION (CONDENSOR AND GROUNDS) AND OTHER VARIABLE BREAKER POINT CONDITIONS, WHICH CAN ONLY BE TESTED DYNAMICALLY, A STATIC TEST IS WORTHLESS.' (SIMPSON ELECTRIC COMPANY CORRESPONDENCE DATED 16 OCTOBER 1970, *** ROCK ISLAND ARSENAL AGREES WITH THIS STATEMENT AND ALSO CONCLUDES THAT 'STATIC TESTING' WILL NOT REVEAL THESE LISTED CONDITIONS. HOWEVER, DYNAMIC TESTING WILL ONLY INDICATE THAT ONE OR MORE OF THESE CONDITIONS EXIST, A FURTHER TEST TO ISOLATE THE CONDITION IS NEEDED. THE TEST SET - TACHOMETER DWELL WILL NOT ISOLATE THE CONDITION. ROCK ISLAND ARSENAL INTENDED TO OBTAIN A CONTRACT ITEM THAT MEASURED POINT RESISTANCE THAT INDICATED ONE DEFICIENCY, THAT DEFICIENCY BEING DEFECTIVE POINTS, (DISCUSSING THAT PORTION OF THE METER DEALING WITH POINT RESISTANCE) THIS REQUIREMENT WOULD BE MET BY UTILIZING STATIC TESTING. DYNAMIC TESTING WILL DISCLOSE DEFECTIVE POINTS, BUT SUCH TEST ALSO INDICATES OTHER DEFICIENCIES AND DOES NOT ISOLATE THE PROBLEM TO THE BREAKER POINTS. THE FOLLOWING QUOTATION IS TAKEN FROM *** ANALYSIS PREPARED BY MR. JAMES R. BOWERY, SUPERVISOR, MECHANICAL ENGINEER, ROCK ISLAND ARSENAL TOOL AND EQUIPMENT DIVISION:

'THE OBJECTIVE OF THE BREAKER POINTS RESISTANCE TEST IS TO DETERMINE THE CONDITION OF THE POINTS, NOT THE CONDITION OF THE ENTIRE PRIMARY CIRCUIT. THEREFORE A DYNAMIC TEST WOULD BE UNDESIRABLE DUE TO THE VERY REASONS THAT SIMPSON ELECTRIC COMPANY'S LETTER STATED "POINT RESISTANCE IS DEPENDENT ON SUCH CONDITIONS AS DISTRIBUTOR SHAFT AND BUSHINGS, PLATE CONDITION, CAM CONDITION, LEAD CONDITION (CONDENSER AND GROUND) AND OTHER VARIABLE BREAKER POINT CONDITIONS, WHICH CAN ONLY BE TESTED DYNAMICALLY". DYNAMIC TEST THEN WOULD NOT ISOLATE THE FAULT IN THE PRIMARY CIRCUIT TO THE BREAKER POINTS, ON THE CONTRARY IT WOULD INDICATE THAT THE POINTS FAILED WHEN IN REALITY THE FAULT LIES ELSEWHERE IN THE CIRCUIT. THIS WOULD CAUSE THE REPLACEMENT OF EVEN GOOD BREAKER POINTS AND A RETEST WOULD THEN INDICATE THE POINTS WERE NOT AT FAULT AND OTHER TESTS WOULD NEED TO BE CONDUCTED.'"

THUS, IT CLEARLY APPEARS FROM THE ADMINISTRATIVE REPORT THAT THE CONTRACTING OFFICER'S CONCLUSION, THAT THE QUESTIONED CHANGES IN THE SPECIFICATION WERE NECESSARY AND IN THE GOVERNMENT'S INTEREST, WAS BASED UPON THE ADVICE AND JUDGMENT OF THE AGENCY'S TECHNICAL PERSONNEL. UNDER SUCH CIRCUMSTANCES, AND SINCE THE DETERMINATIONS DO NOT APPEAR TO BE ARBITRARY OR CAPRICIOUS, OR WITHOUT SUBSTANTIAL BASIS IN FACT, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCURING ACTIVITY. COMP. GEN. 587, 589 (1939); 35 COMP. GEN. 174, 179 (1955).

THESE REPORTED FACTS ALSO FURNISH NO SUFFICIENT BASIS FOR QUESTIONING THE LEGALITY OF THE CONTRACT AS AWARDED. AT THE TIME THE INVITATION WAS ISSUED AND AWARD MADE THE CONTRACTING OFFICER BELIEVED THAT THE NEEDS OF THE GOVERNMENT REQUIRED THE SPECIFIED DYNAMIC TESTING. ALL RESPONSIVE BIDS WERE BASED ON THAT REQUIREMENT. THEREFORE, THERE WAS NO ABUSE OF AUTHORITY ON THE PART OF THE CONTRACTING OFFICER IN ACCEPTING THE LOWEST BID CONFORMING TO THE INVITATION, AND THE RULE THAT AN AWARD UNDER AN ADVERTISED PROCUREMENT MUST BE MADE UPON THE SAME SPECIFICATIONS THAT WERE OFFERED TO ALL BIDDERS WAS MET.

THIS CASE IS ILLUSTRATIVE OF THE FACT THAT SITUATIONS WILL OFTEN ARISE SUBSEQUENT TO THE AWARD OF A GOVERNMENT CONTRACT NECESSITATING CHANGES OR MODIFICATIONS IN THE TERMS OF THE AGREEMENT. THAT IS NOT TO SAY, HOWEVER, THAT THE CONTRACTING PARTIES MAY EMPLOY A CHANGE IN THE TERMS OF THE CONTRACT SO AS TO INTERFERE WITH OR DEFEAT THE PURPOSE OF COMPETITIVE BIDDING (19 COMP. GEN. 662 (1940)), AS WOULD BE THE CASE IF THE CHANGE WAS UNDERTAKEN SOLELY FOR THE PURPOSE OF ENABLING THE CONTRACTOR TO AVOID MORE STRINGENT OR COSTLY DEMANDS OF THE CONTRACT. IN THE PRESENT CASE, THE FACTS SHOW THAT THE CHANGE WAS ADMINISTRATIVELY CONSIDERED NECESSARY BECAUSE OF THE DETERMINATION AFTER AWARD THAT STATIC TESTING WAS THE PREFERABLE METHOD TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT. WE DO NOT THEREFORE CONSIDER THE CHANGE UNDERTAKEN IN THESE CIRCUMSTANCES TO BE IMPROPER OR VIOLATIVE OF THE PUBLIC BIDDING STATUTES. WHETHER THE GOVERNMENT IS ENTITLED TO AN EQUITABLE ADJUSTMENT IN THE CONTRACT PRICE BY REASON OF THE CHANGE IN SPECIFICATIONS IS A MATTER WHICH DOES NOT AFFECT THE VALIDITY OF THE AWARD ITSELF, BUT IS A FACTOR PROPERLY FOR CONSIDERATION IN THE AUDITS OF THE CONTRACT.

WITH REGARD TO THE OBJECTIONS YOU RAISE CONCERNING THE CHANGING OF MILITARY SPECIFICATION MIL-T-45568A, 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." 169934, SEPTEMBER 28, 1970.

ALSO, AS STATED IN B-167661, 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 JUDGMENT 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 PROPOSED CHANGE IN THE MILITARY SPECIFICATION IS PROPERLY FOR THE ADMINISTRATIVE AGENCIES CONCERNED.

IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.

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