B-172972, JUL 21, 1971

B-172972, JUL 21, 1971

BID PROTEST - RESTRICTIVE SPECIFICATIONS DENIAL OF PROTEST BY AMERICAN TOOL AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER AN IFB ISSUED BY THE TENNESSEE VALLEY AUTHORITY FOR VARIOUS SIZED LATHES. PROTESTANT CONTENDS THAT THE SPECIFICATIONS WERE TOO RESTRICTIVE AND LIMITED COMPETITION TO ONE MANUFACTURER. THE DRAFTING OF SPECIFICATIONS AND THE FACTUAL DETERMINATION AS TO WHETHER A PRODUCT MEETS THE SPECIFICATIONS ARE PRIMARILY WITHIN THE PROVINCE OF THE PROCURING ACTIVITY. UNLESS THERE IS A CLEAR SHOWING OF AN ABUSE OF DISCRETION, AND SUCH A SHOWING IS ABSENT HERE, THE COMP. GEN. WILL NOT QUESTION THE JUDGEMENT OF THE PROCURING ACTIVITY. FURTHER, 16 U.S.C. 831 H, SUBSECTION (B) RESTRICTS THE INFLUENCE GAO HAS OVER THE EXPENDITURE OF FUNDS BY TVA ONCE THE BOARD HAS DETERMINED THAT SUCH EXPENDITURE IS NECESSARY.

TO AMERICAN TOOL:

REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. 71C36-92663, ISSUED BY THE TENNESSEE VALLEY AUTHORITY (TVA).

THE SUBJECT INVITATION WAS ISSUED ON MARCH 1, 1971, FOR THE PROCUREMENT OF A 32 INCH, A 25 INCH AND A 10 INCH LATHE UNDER ITEMS 1, 2, AND 3, RESPECTIVELY. ON APRIL 20, 1971, TIDEWATER SUPPLY COMPANY, INCORPORATED, RECEIVED AN AWARD FOR ITEMS 1 AND 2, IN THE AMOUNT OF $87,960.50. ITEM 3 WAS AWARDED TO SOUTH BEND LATHE. ALTHOUGH R. O. DEADERICK COMPANY, INCORPORATED, SUBMITTED THE LOW RESPONSIVE BID UNDER ITEM 2 OFFERING AN AMERICAN TOOL LATHE, AWARD OF BOTH ITEMS WAS MADE TO TIDEWATER AS IT HAD OFFERED A FIVE PERCENT DISCOUNT IF AWARDED BOTH ITEMS, AND SEPARATE AWARDS WOULD HAVE RESULTED IN ADDITIONAL COSTS OF $2,819.50. DEADERICK'S BID UNDER ITEM 1, OFERING A 27 SPEED AMERICAN TOOL LATHE, WAS DETERMINED NONRESPONSIVE.

YOU CONTEND THAT THE SPECIFICATION FOR ITEM 1 IS RESTRICTIVE IN THAT IT CLOSELY PARALLELS LODGE & SHIPLEY'S MODEL NUMBER 3220 SUPERTURN LATHE. ADDITION, YOU QUESTION THE NECESSITY FOR A LATHE WITH A MINIMUM 32 SPINDLE SPEEDS, AND POINT OUT THAT THE DEPARTMENT OF DEFENSE USES 27 SPEED LATHES IN ACCORDANCE WITH MILITARY SPECIFICATION L 23257. FURTHER, YOU POINT THAT WHEREAS ITEM 1 CALLED FOR 32 SPEEDS AND 48 FEEDS, YOUR LATHE WITH 27 SPEEDS AND 60 FEEDS, EXCEEDS THE REQUIREMENTS IN COMBINATION OF SPEEDS AND FEEDS.

IT IS TVA'S POSITION THAT THE SPECIFICATIONS WERE NOT SO RESTRICTIVE AS TO FAVOR A PARTICULAR BRAND OF LATHES. IN THIS CONNECTION, TVA POINTS OUT THAT AT LEAST THREE MANUFACTURERS, LE BLOND, INCORPORATED, LODGE & SHIPLEY, AND MONARCH MACHINE TOOL COMPANY, OFFER LATHES MEETING THE SPECIFICATIONS OF ITEM 1, AND AT LEAST FIVE MANUFACTURERS, LODGE & SHIPLEY, AMERICAN TOOL, LE BLOND, INCORPORATED, LEHMAN MACHINE COMPANY, AND MONARCH, OFFER LATHES MEETING THE REQUIREMENTS OF ITEM 2. AS TO THE REQUIREMENT FOR 32 SPEEDS, TVA STATES THAT SINCE THE LATHES ARE TO BE USED FOR MAINTENANCE OPERATIONS AT ITS SEQUOYAH NUCLEAR PLANT THEY MUST BE FLEXIBLE FOR THE MULTITUDE OF JOBS, INCLUDING LARGE AND SMALL WORKPIECES OF VARYING MATERIALS, AND THE LARGE NUMBER OF SPEEDS IS PARTICULARLY DESIRABLE TO ACCOMPLISH THE WIDE RANGE OF WORK. IT IS TVA'S POSITION THAT THE GREATER COMBINATION OF SPEEDS AND FEEDS OF YOUR LATHE DOES NOT COMPENSATE FOR THE SMALLER NUMBER OF SPEEDS AS THE NUMBER OF SPEEDS DETERMINES THE ADAPTABILITY OF THE LATHE FOR HANDLING THE VARIOUS SIZES AND COMPOSITIONS OF WORKPIECES.

THE DRAFTING OF SPECIFICATIONS TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT, AND THE FACTUAL DETERMINATION WHETHER A PRODUCT OFFERED THEREUNDER MEETS THE SPECIFICATIONS, ARE MATTERS PRIMARILY WITHIN THE PROVINCE OF THE PROCURING ACTIVITY. 49 COMP. GEN. 195, 198 (1969). THE ABSENCE OF A CLEAR SHOWING OF ABUSE OF THE ADMINISTRATIVE DISCRETION PERMITTED, IT WOULD NOT BE PROPER FOR OUR OFFICE TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCURING ACTIVITY CONCERNED. WE FIND NO SUCH ABUSE IN THE PRESENT CASE.

ALSO FOR CONSIDERATION IS THE FACT THAT THE TENNESSEE VALLEY AUTHORITY IS A GOVERNMENT CORPORATION WHOSE PURCHASING AND CONTRACTING AUTHORITY IS SET FORTH IN SUBSECTION (B) OF SECTION 831 H, TITLE 16, U.S.C. WHICH PROVIDES IN PART AS FOLLOWS:

" *** PROVIDED, THAT, SUBJECT ONLY TO THE PROVISIONS OF THIS CHAPTER, THE CORPORATION IS AUTHORIZED TO MAKE SUCH EXPENDITURES AND TO ENTER INTO SUCH CONTRACTS, AGREEMENTS AND ARRANGEMENTS, UPON SUCH TERMS AND CONDITIONS AND IN SUCH MANNER AS IT MAY DEEM NECESSARY, INCLUDING THE FINAL SETTLEMENT OF ALL CLAIMS AND LITIGATION BY OR AGAINST THE CORPORATION; AND, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW GOVERNING THE EXPENDITURE OF PUBLIC FUNDS, THE GENERAL ACCOUNTING OFFICE *** SHALL NOT DISALLOW CREDIT FOR, NOR WITHHOLD FUNDS BECAUSE OF, ANY EXPENDITURE WHICH THE BOARD SHALL DETERMINE TO HAVE BEEN NECESSARY TO CARRY OUT THE PROVISIONS OF SAID CHAPTER."

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR OUR OFFICE TO DISTURB THE AWARDS MADE UNDER THE SUBJECT INVITATION.