B-164222, SEP. 23, 1968

B-164222, SEP. 23, 1968

TO FISHER BERKELEY CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 5, 1968, REQUESTING RECONSIDERATION OF OUR DECISION DATED AUGUST 26, 1968, B-164222, WHEREIN WE DENIED YOUR PROTEST CONCERNING INVITATION FOR BIDS NO. DADA03-68-B- 1715, ISSUED BY THE FITZSIMONS GENERAL HOSPITAL, DENVER, COLORADO.

IN OUR DECISION WE HELD THAT THE SPECIFICATIONS ISSUED FOR THE PROCUREMENT OF AUTOMATIC NURSES CALL SYSTEMS WERE DESIGNED TO MEET THE AGENCY'S ACTUAL NEEDS, AND "SINCE THE BIDS RECEIVED INDICATE THAT AT LEAST THREE MANUFACTURERS ARE ABLE TO MEET THE SPECIFICATION REQUIREMENTS, WE CANNOT CONCLUDE THAT THE SPECIFICATIONS UNDULY RESTRICTED COMPETITION.'

YOU ALLEGE, AS A BASIS FOR RECONSIDERATION, THAT NEITHER DUKANE SYSTEM NOR STANDARD ELECTRIC SYSTEM COULD MEET THE SPECIFICATIONS AS ISSUED; THAT THE SPECIFICATIONS WERE WRITTEN IN SUCH A WAY THAT ONLY THE MOTOROLA SYSTEM COULD MEET THEM; THAT THEREFORE THE SPECIFICATIONS ARE UNDULY RESTRICTIVE, AND SHOULD BE CANCELLED AND REWRITTEN IN ORDER TO HAVE AT LEAST THREE FIRMS COMPETING FOR THE NURSES CALL SYSTEM CONTRACT.

TURNING TO YOUR CONTENTION THAT THE STANDARD ELECTRIC SYSTEM DOES NOT MEET THE SPECIFICATIONS BECAUSE ITS STANDARD OFF-THE-SHELF EQUIPMENT WILL NOT STORE THE CALLS IN SEQUENCE AS THEY ARE PLACED, IN THE ABSENCE OF DOCUMENTARY EVIDENCE THAT THE BID OFFERING STANDARD ELECTRIC EQUIPMENT DID NOT CONTEMPLATE MODIFYING ITS OFF-THE-SHELF EQUIPMENT TO CONFORM TO THE SPECIFICATIONS, WE ARE UNABLE TO CONCLUDE THAT SUCH BID WAS NONRESPONSIVE, ESPECIALLY IN THE LIGHT OF THE RECORD BEFORE US WHICH SHOWS THAT THE BIDDER TOOK NO EXCEPTION TO THE SUBJECT INVITATION AND THAT THE PRICE BID FOR ITS EQUIPMENT WAS 30 PERCENT GREATER THAN MOTOROLA'S BID.

HOWEVER, A COPY OF A LETTER DATED MAY 23, 1968, WITH ENCLOSURE, FROM DUKANE CORPORATION SEEMS TO INDICATE THAT THAT FIRM TOOK EXCEPTIONS TO THE SUBJECT SPECIFICATIONS. ASSUMING, WITHOUT DECIDING, THAT DUKANE'S OFF-THE -SHELF SYSTEM DOES NOT MEET THE SPECIFICATIONS, AND THAT THOSE BIDS OFFERING DUKANE EQUIPMENT WERE NOT BASED UPON APPROPRIATE REVISIONS TO MEET THE SPECIFICATIONS, IT WOULD STILL APPEAR THAT TWO MANUFACTURES, NAMELY MOTOROLA AND STANDARD ELECTRIC, WERE WILLING AND ABLE TO MEET THE SPECIFICATIONS.

OUR DECISION OF AUGUST 7, 1967, B-161654 STATED:

"IT HAS BEEN HELD BY OUR OFFICE IN MANY CASES THAT THE PREPARATION OF SPECIFICATIONS COVERING THE ACTUAL NEEDS OF THE GOVERNMENT IS A RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES OF THE GOVERNMENT. IN THE INSTANT MATTER, IT APPEARS THAT THE DEPARTMENT OF THE NAVY HAS EXERCISED THAT RESPONSIBILITY BY THE PREPARATION OF SPECIFICATIONS TO REQUIRE A FURTHER REFINEMENT OF THE CLIMAX PRODUCT TO LIMIT IMPURITIES AND CONTROL PARTICLE SIZE. WHILE THE LAW REQUIRING ADVERTISING FOR BIDS AND AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER, IN EACH CASE, CONTEMPLATES FAIR AND UNRESTRICTED COMPETITION, THE FACT THAT A PARTICULAR BIDDER IS UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEEDS WILL NOT BE SUFFICIENT TO WARRANT THE CONCLUSION THAT SUCH SPECIFICATIONS ARE UNDULY RESTRICTIVE. THUS, SINCE IT IS REPORTED THAT AT LEAST TWO QUALIFIED REPROCESSORS OF MOS2 POWDER ARE IN A POSITION TO FURNISH MATERIAL COMPLYING WITH THE SPECIFICATIONS WE ARE OF THE VIEW THAT THE SPECIFICATIONS ARE NOT UNDULY RESTRICTIVE IN THAT IT APPEARS THEY WERE DESIGNED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT.'

INASMUCH AS TWO MANUFACTURERS APPEAR TO HAVE BEEN WILLING AND ABLE TO MEET THE SPECIFICATIONS, WE MUST ADHERE TO OUR ORIGINAL CONCLUSION THAT THE SPECIFICATIONS FOR THE NURSES CALL SYSTEM ARE NOT UNDULY RESTRICTIVE. ACCORDINGLY, WE FIND NO BASIS UPON WHICH WE WOULD BE WARRANTED IN REQUESTING THE ARMY TO CANCEL THE PRESENT PROCUREMENT AND REWRITE THE SPECIFICATIONS.