B-181227, DEC 10, 1974

B-181227, DEC 10, 1974

1. PROSPECTIVE CONTRACTORS' PROTESTS THAT SPECIFICATIONS ARE UNREASONABLE AND UNATTAINABLE ARE DENIED SINCE PREPARATION AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT MINIMUM NEEDS OF GOVERNMENT ARE MATTERS PRIMARILY WITHIN JURISDICTION OF PRCURING ACTIVITY, SUBJECT TO QUESTION ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. FACT THAT PARTICULAR OFFEROR MAY BE UNABLE OR UNWILLING TO MEET MINIMUM REQUIREMENTS OF SOLICITATION IS NOT SUFFICIENT TO WARRANT CONCLUSION THAT SPECIFICATIONS ARE UNDULY RESTRICTIVE WHERE AGENCY PROVIDES FACTUAL SUPPORT FOR REQUIREMENT AND COMPETITION IS OBTAINED. 2. REJECTION OF TECHNICAL PROPOSALS AS UNACCEPTABLE UNDER TWO-STEP PROCUREMENT FOR FAILURE TO PROVIDE SPECIFIED PERFORMANCE DATA WAS PROPER UNDER ASPR 2-503.1(E), WHICH PROVIDES THAT PROPOSAL FAILING TO CONFORM TO ESSENTIAL SPECIFICATION SHALL BE CONSIDERED NONRESPONSIVE AND UNACCEPTABLE. 3. OFFEROR'S PROTEST OF REJECTION OF ITS TECHNICAL PROPOSAL FOR FAILURE TO SUBMIT REQUIRED PERFORMANCE DATA ON GROUND THAT SOLICITATION CONTAINED FIRST ARTICLE DEMONSTRATION TESTS WHICH COULD ESTABLISH CONFORMANCE OF PROPOSED EQUIPMENT WITH SPECIFICATIONS IS WITHOUT MERIT SINCE FIRST ARTICLE TESTING PROVISISONS COME INTO EFFECT AFTER CONTRACT HAS BEEN AWARDED TO OFFEROR COMPLYING WITH ALL STATED ESSENTIAL REQUIRMENTS OF SOLICITATION AND PROVIDE NO BASIS FOR WAIVING DATA REQUIRED FOR EVALUATION.

GALION MANUFACTURING COMPANY; KOEHRING ROAD DIVISION; DYNAPAC MANUFACTURING, INC.:

ON JANUARY 15, 1974, THE DEFENSE SUPPLY AGENCY'S DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), COLUMBUS, OHIO, ISSUED REQUEST FOR TECNICAL PROPOSALS (RFTP) NO. 74-0007 TO PROCURE THE ARMY'S TWO YEAR REQUIREMENTS FOR SELF-PROPELLED HIGH IMPACT VIBRATORY ROLLERS. AMONG THE PERFORMANCE REQUIREMENTS THAT THE EQUIPMENT HAD TO SATISFY WAS PARAGRAPH 2.2A OF THE SOLICITATION'S ITEM DESCRIPTION WHICH STATED THAT THE ROLLER SHALL BE "CAPABLE OF COMPACTING AT LEAST 1500 COMPACTED CUBIC YARDS PER HOUR OF SOIL ***." IN ORDER TO INSURE THAT THE PROPOSED EQUIPMENT WOUULD SATISFY THE PROCURING ACTIVITY'S REQUIREMENTS, THE RFTP, AT PARAGRAPH 2.18.2, REQUIRED THAT OFFERORS FURNISH ACTUAL DATA TO PROVE THAT ITS OFFERED ROLLER WOULD COMPACT A SPECIFIED SOIL TYPE TO A PARTICULAR DENSITY AT THE STATED COMPACTION RATE.

BY THE CLOSING DATE SET FOR RECEIPT OF TECHNICAL PROPOSALS, APRIL 3, 1974, EIGHT PROPOSALS WERE RECEIVED, ONLY TWO OF WHICH WERE FOUND TECHNICALLY ACCEPTABLE. THE OFFERORS WERE ADVISED OF THE ACCEPTABILITY OR NON-ACCEPTABILITY OF THEIR RESPECTIVE TECHNICAL PROPOSALS BY LETTERS DATED APRIL 29, 1974. THE RECORD INDICATES THAT THE PROPOSALS OF THE UNSUCCESSFUL OFFERORS WERE DETERMINED TECHNICALLY UNACCEPTABLE FOR FAILURE TO SUBMIT SUFFICIENT DATA IN ACCORDANCE WITH THE SOLICITATION TO SATISFY THE PROCURING ACTIVITY THAT THEIR OFFERED EQUIPMENT MET THE SPECIFICATION REQUIREMENT FOR COMPACTING 1500 CUBIC YARDS PER HOUR.

GALION MANUFACTURING COMPANY (GALION) PROTESTED TO OUR OFFICE THAT THE 1500 CUBIC YARDS PER HOUR COMPACTION REQUIREMENT WAS UNREASONABLE IN THAT ONLY TWO OF THE PROPOSALS RECEIVED IN RESPONSE TO THE SOLICITATION WERE FOUND TECHNICALLY ACCEPTABLE. GALION REFERRED TO ITS PREVIOUS OBJECTIONS TO THE REQUIRED COMPACTION RATE WHICH IT RAISED AT THE FEBRUARY 12, 1974 PRE-PROPOSAL CONFERENCE AND IN ITS TECHNICAL PROPOSAL WHICH IT CONTENDS WERE IGNORED BY THE DCSC. GALION CONTENDS THAT THE SPECIFIED 1500 CUBIC YARDS PER HOUR RATE IS NOT WITHIN THE CAPABILITIES OF VIBRATORY ROLLERS AS THEY ARE DESIGNED AND MANUFACTURED TO DATE AND THAT THE SPECIFICATIONS OF THE INSTANT PROCUREMENT WERE PREPARED BY INDIVIDUALS NOT PROPERLY EDUCATED IN THE FIELD OR SOIL MECHANICS.

KOEHRING COMPANY-ROAD DIVISION (KOEHRING), PROTESTED DCSC'S REJECTION OF ITS TECHNICAL PROPOSAL ON THE GROUND THAT WHILE ITS PROPOSED EQUIPMENT ONLY OFFERED A COMPACTION RATE OF 400 COMPACTED CUBIC YARDS PER HOUR, THE REQUIRED 1500 RATE WAS UNREASONABLE AND UNATTAINABLE AND NOT A VALID BASIS FOR REJECTION. KOWHRING ALSO PROTESTED REJECTION OF ITS TECHNICAL PROPOSAL UNDER RFTP-74-0008. HOWEVER, THIS PROTEST WAS SUBSEQUENTLY WITHDRAWN AND WILL NOT BE FURTHER CONSIDERED.

FINALLY, A THIRD PROTEST WAS FILED WITH OUR OFFICE BY DYNAPAC MANUFACTURING COMPANY, INCORPORATED (DYNAPAC). DYNAPAC QUESTIONS THE VALIDITY OF THE REJECTION BASED UPON ITS FAILURE TO SUBMIT DATA ESTABLISHING COMPLIANCE WITH THE 1500 CUBIC YARDS PER HOUR COMPACTION RATE REQUIRED BY THE SOLICITATION WHEN, IN ANY EVENT, APPENDIX II OF THE SOLICITATION REQUIRED AN OFFEROR TO DEMONSTRATE BY A PERFORMANCE FIELD TEST THE ABILITY OF ITS EQUIPMENT TO SATISFY THE COMPACTION REQUIREMENT REGARDLESS OF THE DATA SUBMITTED WITH ITS PROPOSAL.

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 MINIMUM 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. MATTER OF EAST BAY AUTO SUPPLY, INC., B-180434, 53 COMP. GEN. , (1974). SPECIFICATIONS SHOULD BE DRAFTED TO MAXIMIZE COMPETITION, B-172006, JUNE 30, 1972; HOWEVER, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY "*** UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY OPINION IS IN ERROR AND THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATIONS WOULD, BY UNDULY RESTRICTING COMPETITION *** BE A VIOLATION OF LAW." 40 COMP. GEN. 294, 297 (1960). MOREOVER, WHILE OUR OFFICE WILL DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR PROSPECTIVE CONTRACTOR MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 49 COMP. GEN. 857, 862 (1970).

BASED ON THE RECORD BEFORE US, WE FIND THAT DCSC HAS REASONABLY SUPPORTED ITS USE OF THE 1500 CUBIC YARDS PER HOUR COMPACTION RATE IN CONNECTION WITH THE INSTANT PROCUREMENT. ARMY TECHNICAL PERSONNEL REPORT THAT THE STATED COMPACTION RATE IS NECESSARY FOR ROLLERS TO KEEP UP WITH EARTH HAULERS AND TO AVOID BOTTLENECKS AT CONSTRUCTION SITES. IN THIS CONNECTION, IT IS REPORTED THAT BEFORE FINALIZING THIS REQUIREMENT, A REVIEW MANUFACTURERS' LITERATURE VERIFIED THAT COMMERCIALLY AVAILABLE ROLLERS WERE AVAILABLE THAT COULD MEET OR EXCEED THE PROPOSED RATE. FURTHERMORE, THE RECORD INDICATES THAT PRIOR TO THE ABOVE COMPACTION RATE BECOMING A FIRM REQUIREMENT, ALL COMPANIES THAT MANUFACTURED THE TYPE OF EQUIPMENT BEING PROCURED WERE ADVISED OF THE ARMY'S (BY LETTER OF JANUARY 4, 1973) PLANS FOR PROCURING COMPACTION EQUIPMENT, INCLUDING THE REQUIREMENT FOR A PROPOSED 1500 CUBIC YARD PER HOUR COMPACTION RATE, AND NEITHER KOEHRING OR GALION OBJECTION TO THE PROPOSED RATE AT THAT TIME. THEREFORE, SINCE AT LEAST TWO FIRMS RESPONDING TO THIS SOLICITATION AND TWO DIFFERENT FIRMS RESPONDING TO A CONTEMPORANEOUS SOLICITATION (RFTP NO. 74-0008) HAVE BEEN DETERMINED TECHNICALLY CAPABLE OF FURNISHING EQUIPMENT MEETING THE REQUIREMENT, WE BELIEVE THAT THE PROCURING AGENCY PROPERLY EXERCISED ITS DISCRETION IN DRAFTING THE SPECIFICATION AND WE WILL NOT QUESTION THIS DETERMINATION.

BOTH KOEHRING AND DYNAPAC HAVE PROTESTED REJECTION OF THEIR TECHNICAL PROPOSALS AS UNACCEPTABLE FOR FAILURE TO FURNISH DATA ESTABLISHING COMPLIANCE WITH THE COMPACTION REQUIREMENT. THE REQUEST FOR TECHNICAL PROPOSALS ADVISED THAT THE PROCUREMENT WAS BEING CONDUCTED PURSUANT TO THE TWO-STEP FORMAL ADVERTISING PROCEDURES AS PROVIDED IN PART 5, SECTION II OF THE ARMED SERVICES PROCUREMENT REGULATIONS (1974 EDITION). PARAGRAPH 2 -503.1(E) PROVIDES THAT:

"(E) *** THE PROPOSALS AS SUBMITTED, SHALL BE CATEGORIZED AS:

"(I) ACCEPTABLE;

"(II) REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE ***; OR

"(III) IN ALL OTHER CASES, UNACCEPTABLE.

"ANY PROPOSAL WHICH MODIFIES, OR FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OR SPECIFICATIONS OF, THE REQUEST FOR TECHNICAL PROPOSALS SHALL BE CONSIDERED NONRESPONSIVE AND CATEGORIZED AS UNACCEPTABLE ***."

SINCE NEITHER KOEHRING NOR DYNAPAC FURNISHED DATA SUFFICIENT TO ESTABLISH COMPLIANCE WITH THE COMPACTION SPECIFICATION, BOTH PROPOSALS WERE PROPERLY CATEGORIZED UNACCEPTABLE UNDER THE ABOVE REGULATION AND REJECTED. 167833(1), NOVEMBER 25, 1969.

FINALLY, DYNAPAC CONTENDS THAT REJECTION OF ITS PROPOSAL FOR FAILING TO FURNISH THE DATA WAS ARBITRARY BECAUSE THE REQUIREMENT OF APPENDIX II OF THE SOLICITATION FOR PERFORMANCE TESTING COULD HAVE BEEN RELIED UPON TO ESTABLISH ITS COMPLIANCE WITH THE COMPACTION REQUIREMENT. THE TESTING PROCEDURES STATED IN APPENDIX II ARE REQUIRED PURSUANT TO PARAGRAPH 7 OF THE ITEM DESCRIPTION AND APPLY TO THE "FIRST ROLLER PRODUCED IN ACCORDANCE WITH THIS ITEM DESCRIPTION ***." APPROVAL OF FIRST ARTICLE INVOLVES TESTING AND EVALUATING FOR CONFORMANCE WITH SPECIFIED CONTRACT REQUIREMENTS BEFORE OR IN THE INITIAL STAGE OF PRODUCTION UNDER A CONTRACT. SEE ASPR 1-1900, ET SEQ. (1974 EDITION). THEREFORE, THE FIRST ARTICLE TESTING PROVISIONS ARE EFFECTIVE ONLY AFTER A CONTRACT HAS BEEN AWARDED TO AN OFFEROR COMPLYING WITH ALL ESSENTIAL REQUIREMENTS OF A REQUEST FOR TECHNICAL PROPOSALS, AND PROVIDE NO BASIS FOR WAIVING DATA REQUIREMENTS FOR PROPOSAL EVALUATION. B-178404, JUNE 28, 1973.

ACCORDINGLY, THE PROTEST ARE DENIED.