B-161098, JAN. 11, 1968

B-161098, JAN. 11, 1968

BIDS - INVITATION DEFECTS DECISION TO MAYOR-COMMISSIONER, D.C. SUSTAINING PROTEST OF CURTIN AND JOHNSON, INC., AGAINST PROPOSED AWARD TO NATIONAL LAND RECLAMATION SERVICE, INC., FOR KENILWORTH MODEL SANITARY LANDFILL PROJECT AND REQUIRING CANCELLATION OF THE INVITATION. WHERE BIDDERS WERE NOT ADVISED OF ESTIMATED QUANTITY OF LANDFILL WHICH WOULD BE USED FOR BID EVALUATION PURPOSES, UNTIL AFTER BID OPENING, THERE WAS NO COMMON BASIS FOR COMPETITION. THEREFORE INVITATION IS MATERIALLY DEFECTIVE AND MUST BE CANCELLED. THE ADEQUACY OF APPROXIMATELY TWO WEEK'S TIME IN WHICH TO PREPARE A BID ON A PROJECT OF SUBSTANTIAL MAGNITUDE IS ALSO QUESTIONED. REQUIREMENT THAT BIDDERS STATE A MONTHLY CHARGE FOR AMORTIZATION (IN 18 MONTHS) OF THE COST OF EQUIPMENT TITLE WHICH WOULD PASS TO GOVERNMENT WHEN THE INVITATION DID NOT SPECIFY MINIMUM EQUIPMENT IS A REQUIREMENT THAT PREVENTS EFFECTIVE COMPETITION. THE PRICE CHARGED FOR EQUIPMENT AMORTIZATION CAN NOT BE EVALUATED AMONG BIDDERS WITHOUT SOME DEFINITION OF MINIMUM QUANTITY AND QUALITY SINCE GOVERNMENT IS IN EFFECT PURCHASING THE EQUIPMENT. THE RENEWAL PROVISION IN INVITATION IS NOT OPTION SINCE IT PROVIDES FOR RENEWAL BY MUTUAL AGREEMENT. QUESTION IS FURTHER RAISED CONCERNING BIDDER QUALIFICATION REQUIREMENTS.

TO MAYOR WASHINGTON:

REFERENCE IS MADE TO LETTERS OF DECEMBER 14 AND 20, 1967, IN CONNECTION WITH OUR REVIEW OF THE PROTEST FROM CURTIN AND JOHNSON, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. 03-466-8-0263-W, ISSUED ON OCTOBER 17, 1967, BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, HEREAFTER REFERRED TO AS D.C. GOVERNMENT, FOR A "DEMONSTRATION SANITARY LANDFILL". THE INVITATION PROVIDES THAT THE TERM OF THE CONTRACT IS TO BE FROM JANUARY 1, 1968, TO JUNE 30, 1969, WITH AN OPTION TO EXTEND BY MUTUAL AGREEMENT, SUBJECT TO THE AVAILABILITY OF FUNDS, UNTIL DECEMBER 31, 1972.

UNDER ITEM NO. 1-A OF THE INVITATION, PRICES WERE REQUESTED ON A TON BASIS FOR HANDLING A GUARANTEED MINIMUM OF 3,600 TONS PER WEEK. ITEM NO. 1-B REQUESTED PRICES ON A TON BASIS FOR HANDLING REFUSE IN EXCESS OF 3,600 TONS PER WEEK. ITEM NO. 1-C REQUESTED PRICES ON A CUBIC YARD BASIS FOR HANDLING UP TO 3,600 CUBIC YARDS OF INCINERATOR RESIDUE PER WEEK WITH NO GUARANTEED MINIMUM. ITEM NO. 1-D REQUESTED PRICES ON A PER MONTH BASIS FOR RENTAL COSTS AMORTIZED OVER 18 MONTHS FOR EQUIPMENT WHICH WAS TO BECOME THE PROPERTY OF THE DISTRICT OF COLUMBIA AT THE COMPLETION OF THE PROJECT. BIDS WERE OPENED ON NOVEMBER 3, 1967, AND THE ESTIMATED AMOUNTS OF THE TWO LOWEST BIDS OVER THE 18-MONTH PERIOD (EXCLUDING EQUIPMENT COSTS) ARE:

CURTIN AND JOHNSON, INCORPORATED $ 774,260

NATIONAL LAND RECLAMATION SERVICE, INCORPORATED $ 1,036,152

ON DECEMBER 20, 1967, THE PROCUREMENT OFFICER FOR THE D.C. GOVERNMENT FORWARDED THE "FINAL PLAN-DESIGN, PROCEDURES AND OPERATING REQUIREMENTS,DECEMBER 1967" FOR THE KENILWORTH SANITARY LANDFILL TO OUR OFFICE. THIS FINAL PLAN-DESIGN WAS ISSUED BY THE DISTRICT OF COLUMBIA, DEPARTMENT OF SANITARY ENGINEERING. THE FINAL PLAN-DESIGN FOR THE KENILWORTH PROJECT, WHICH IS A DEFINITIVE SPECIFICATION, WAS NOT COMPLETED UNTIL AFTER BID OPENING.

THE "GENERAL DESCRIPTION OF WORK" FOR THE PROJECT IS STATED ON PAGES 4 THROUGH 6 OF THE INVITATION. THE GENERAL OBJECTIVE OF THE PROJECT IS STATED IN PARAGRAPH 1 ON PAGE 4 OF THE INVITATION AS FOLLOWS: "1. PREPARATION FOR FINAL DEVELOPMENT OF THE KENILWORTH SITE WILL CONSIST PRIMARILY OF OPERATING A MODEL SANITARY LANDFILL FOR AN ESTIMATED PERIOD OF FROM 12 TO 15 MONTHS. THIS SANITARY LANDFILL PROCEDURE MUST PERMIT FINAL GRADING AND DEVELOPMENT OF THE SITE IN ACCORDANCE WITH THE BEST LANDFILL PRACTICE AND ALLOW FOR THE DISPOSAL OF APPROXIMATELY 750 TONS OF REFUSE AND 600 CUBIC YARDS OF INCINERATOR ASH RESIDUE PER DAY, 6 DAYS PER WEEK. ALL OPERATIONS IN THIS AREA SHALL CONFORM TO THE HIGHEST STANDARDS OF SANITARY LANDFILL PRACTICE.'

THE OTHER PROVISIONS UNDER THE "GENERAL DESCRIPTION OF WORK" ARE SUBSTANTIALLY AS GENERAL AS PARAGRAPH 1, QUOTED ABOVE, IN SETTING FORTH D.C. GOVERNMENT'S REQUIREMENTS. THE FINAL PLAN-DESIGN, ON THE OTHER HAND, CONTAINS DETAILED REQUIREMENTS FOR THE PROJECT. THERE FOLLOWS SOME COMPARISONS BETWEEN THE GENERAL REQUIREMENTS IN THE INVITATION AND THE SPECIFIC REQUIREMENTS IN THE FINAL PLAN-DESIGN. PARAGRAPH 1:02, SECTION 1, INITIAL PREPARATION, OF THE FINAL PLAN-DESIGN REQUIRES THAT THE CONTRACTOR FURNISH A CHAIN LINK FENCE, SEVEN FEET IN HEIGHT, AROUND THE PERIPHERY OF THE LANDFILL SITE. THIS PARAGRAPH ALSO GIVES SUCH DETAILS, AMONG OTHERS, IN FENCE CONSTRUCTION AS THE SPACING OF THE POSTS AND A SPECIFIED MANUFACTURER OR APPROVED EQUAL. PARAGRAPH 6 ON PAGE 5 OF THE INVITATION MAKES A GENERAL STATEMENT THAT THE CONTRACTOR SHALL FURNISH ALL NECESSARY FENCING, WITHOUT SPECIFYING THE QUALITY OR EXTENT THEREOF. PARAGRAPH 1:05 OF THE FINAL PLAN-DESIGN GIVES THE "CLEANUP AND PREGRADING" REQUIREMENTS. THERE IS NOTHING IN THE "GENERAL DESCRIPTION OF WORK" OF THE INVITATION PROVISIONS WHICH WOULD INDICATE SPECIFIC CLEANUP REQUIREMENTS. IN REGARD TO THE CLEANUP REQUIREMENT, D.C. GOVERNMENT POINTS TO PARAGRAPH 6 ON PAGE 5 OF THE INVITATION WHICH PROVIDES THAT "THE CONTRACTOR * * * SHALL BE SOLELY RESPONSIBLE NOT ONLY FOR SAID OPERATION, BUT ALSO FOR THE MAINTENANCE THEREOF * * *.' D.C. GOVERNMENT'S POSITION IS THAT THE CONTRACTOR WOULD BE HELD TO THE CLEANUP REQUIREMENT PURSUANT TO THIS PROVISION. THIS GENERAL PROVISION DOES NOT ADVISE BIDDERS OF THE SPECIFIC CLEANUP REQUIREMENTS. PARAGRAPH 1:06 OF THE FINAL PLAN-DESIGN REQUIRES THAT THE CONTRACTOR FURNISH AND INSTALL TWO ELECTRONICALLY COMPUTERIZED SCALES MADE BY A SPECIFIED MANUFACTURER OR APPROVED EQUAL. THIS PROVISION PROVIDES FURTHER THAT THE CONTRACTOR SHALL FURNISH A SCALE HOUSE BY A SPECIFIED MANUFACTURER OR APPROVED EQUAL; A BUILDING FOR EQUIPMENT AND LANDFILL PERSONNEL BY A SPECIFIED MANUFACTURER OR APPROVED EQUAL; AND A SEPTIC TANK SYSTEM. PARAGRAPH 6 ON PAGE 5 OF THE INVITATION PROVIDES GENERALLY THAT THE CONTRACTOR SHALL FURNISH ALL NECESSARY LABOR, TOOLS, FENCING, SCALES, BUILDINGS AND EQUIPMENT FOR THE OPERATION OF THE LANDFILL. PARAGRAPH 14 ON PAGE 6 OF THE INVITATION PROVIDES GENERALLY FOR THE CONSTRUCTION AND MAINTENANCE OF A SCALE OR SCALES IN GOOD WORKING ORDER.

SECTION 2 OF THE FINAL PLAN-DESIGN GIVES THE "OPERATION" REQUIREMENTS OF THE LANDFILL. SECTION 2:07 OF THE FINAL PLAN-DESIGN SPECIFIES THE "DAILY" COVER REQUIREMENT AS 6-8 INCHES AND THE FINAL" COVER REQUIREMENT AS 36 INCHES. THERE IS NOTHING IN THE INVITATION WHICH GIVES EITHER THE DAILY OR FINAL COVER REQUIREMENTS. SECTION 2:05 OF THE FINAL PLAN-DESIGN SPECIFIES THE OPERATIONAL SEQUENCE FOR THE LANDFILL WITH THE CONTOURS INDICATED ON THE ENCLOSED DRAWINGS AND IT IS PROVIDED THAT ANY DEVIATION FROM THE METHOD OF OPERATION MUST BE APPROVED BY THE DISTRICT OF COLUMBIA PRIOR TO COMMENCEMENT OF OPERATIONS BY THE CONTRACTOR. THERE IS NOTHING IN THE INVITATION WHICH WOULD ADVISE THE CONTRACTOR AS TO THE SEQUENCE OF OPERATIONS FOR THE PROJECT.

SECTION 3 OF THE FINAL PLAN-DESIGN GIVES THE "COMPLETION" REQUIREMENTS AND THE DRAWINGS RELATING TO SUCH REQUIREMENTS. SECTION 3:04 GIVES SPECIFIC SEEDING REQUIREMENTS INCLUDING, AMONG OTHERS, THE COMPOSITION OF THE SEED AND THE PERIOD DURING WHICH THE SEED MAY BE SOWN. THERE IS NOTHING IN THE INVITATION OR THE FINAL PLAN-DESIGN WHICH WOULD ADVISE BIDDERS OF THE AREA TO BE SEEDED.

PARAGRAPH 5 UNDER THE "GENERAL DESCRIPTION OF WORK" PROVISIONS ON PAGE 5 OF THE INVITATION PROVIDES: "5. THE FILL OPERATION SHALL BE CONDUCTED IN ACCORDANCE WITH A SANITARY LANDFILL DESIGN BEING PREPARED BY A REGISTERED PROFESSIONAL ENGINEER, AND SHALL BE ADHERED TO AT ALL TIMES. THE PROCEDURES SET FORTH WITH THE REQUESTED PROPOSAL WILL BE EVALUATED ON THE BASIS OF THE BEST SANITARY LANDFILL PRACTICE AND, WHERE APPLICABLE, WILL BE INCORPORATED IN THE FINAL PLAN. IT IS BELIEVED THAT THE HIGH STANDARDS AND METHODS OF OPERATION REQUIRED TO BE SET FORTH BY THE BIDDER WILL BE SIMILAR TO THE REQUIREMENTS OF THE AFOREMENTIONED SANITARY LANDFILL DESIGN AND THAT A MINIMUM OF NEGOTIATION WILL BE REQUIRED WITH THE SUCCESSFUL BIDDER TO ACHIEVE THE DESIRED RESULTS AND OPERATING PROFICIENCY.'

THE SECOND PARAGRAPH ON PAGE 4 OF THE INVITATION UNDER THE HEADING "INTENT" PROVIDES:

"BIDDERS SHALL PRESENT WITH THEIR BID ANY UNIQUE OPERATIONS OR INNOVATIONS WHICH THEY FEEL MAY ENHANCE A SCIENTIFIC METHOD OF DISPOSING OF REFUSE AND INCINERATOR RESIDE BY MEANS OF A CONTROLLED DEPOSIT THEREBY ACHIEVING THE MAXIMUM USE OF THE LAND IN THE AREAS SPECIFIED HEREIN WITHOUT CREATING NUISANCES OR HAZARDS TO PUBLIC HEALTH OR SAFETY BY UTILIZING THE PRINCIPLES OF ENGINEERING TO CONFINE THE REFUSE TO THE SMALLEST PRACTICAL AREA, TO REDUCE IT TO THE SMALLEST PRACTICAL VOLUME, AND TO COVER IT WITH A LAYER OF EARTH AT THE CONCLUSION OF EACH DAY'S OPERATION OR AT SUCH MORE FREQUENT INTERVALS AS MAY BE NECESSARY.'

A GENERAL EXPLANATION OF THE PROCUREMENT IS CONTAINED IN A MEMORANDUM DATED DECEMBER 20, 1967, PREPARED BY THE DIRECTOR OF SANITARY ENGINEERING, GOVERNMENT OF THE DISTRICT OF COLUMBIA, AS FOLLOWS:

"AN EXPLANATION OF THE BIDDING PROCEDURE AND THE REASON THIS PROCEDURE WAS FOLLOWED BY THE DISTRICT WOULD SEEM TO BE OF VALUE TO PERSONS REVIEWING THIS MATTER. YOU WILL RECALL THAT AN AGREEMENT WAS REACHED ON OCTOBER 1ST BETWEEN THE DISTRICT OF COLUMBIA AND THE DEPARTMENT OF THE INTERIOR FOR THE OPERATION OF A LANDFILL ON NATIONAL PARK SERVICE PROPERTY AT KENILWORTH AND OXON BAY. THE AGREEMENT CALLED FOR A SANITARY LANDFILL TO BEGIN AT KENILWORTH WITHIN THREE MONTHS. THE LANDFILL WAS TO BE A MODEL DEMONSTRATION SANITARY LANDFILL FINANCED, IN PART, BY A GRANT FROM THE U.S. PUBLIC HEALTH SERVICE,SOLID WASTES PROGRAM. THE MODEL DEMONSTRATION PHASE OF THE PROJECT WAS MADE NECESSARY BY THE FACT THAT THE SOLID WASTES PROGRAM CAN PROVIDE GRANT MONEY ONLY FOR DEMONSTRATION PROJECTS. THE U.S. PUBLIC HEALTH SERVICE FEELS THAT THERE IS A CRITICAL NEED TO OPERATE A MODEL SANITARY LANDFILL IN THIS SECTION OF THE COUNTRY IN ORDER TO PROVE TO THE GENERAL PUBLIC THAT THIS CAN BE AN ACCEPTABLE METHOD OF SOLID WASTE DISPOSAL. THUS THE SIGNIFICANCE OF THIS PROJECT TRANSCENDS THE LOCAL PROBLEM AT KENILWORTH AND WILL HAVE FAR-REACHING EFFECTS ON THE FUTURE PLANS FOR WASTE DISPOSAL IN THIS AREA.

"THE MODEL PROJECT REQUIRES THAT IT BE OPERATED BY A CONTRACTOR EXPERIENCED IN SANITARY LANDFILL OPERATIONS. A LENGTHY TRAINING PERIOD WAS NOT POSSIBLE BECAUSE OF THE RELATIVELY SHORT LIFE OF THE KENILWORTH SITE (12 TO 15 MONTHS), AND THE NEED TO SELL THE PUBLIC FROM THE START. WITH THIS IN MIND, THE EXPERIENCE PARAGRAPH WAS INCLUDED IN THE SPECIFICATIONS (PARAGRAPH 5, PAGE 7) AND THE PROPOSED BIDDERS WERE INVITED TO SUBMIT THEIR OWN OPERATIONAL METHODS AND PROCEDURES. THIS METHOD OF SECURING BIDS WAS IN EFFECT DICTATED BY THE TIME REQUIREMENT FACED BY THE DISTRICT. WE WERE AWARE THAT CONTRACTORS EXPERIENCED IN THIS FIELD WOULD BE IN A POSITION TO SET FORTH AND INCLUDE IN THEIR BID PRACTICALLY ALL SIGNIFICANT REQUIREMENTS TO ACCOMPLISH A MODEL SANITARY LANDFILL. THUS IT WAS ANTICIPATED THAT THE FINAL PLANS AND SPECIFICATIONS WOULD NOT VARY SIGNIFICANTLY FROM THE CONTRACTOR'S SUBMISSION (PARAGRAPH 5, PAGE 5). THIS WAS BORNE OUT ON THE RECEIPT OF BIDS WHEN NATIONAL LAND RECLAMATION SERVICE, INC., AN EXPERIENCED CONTRACTOR, DID INCLUDE NECESSARY ITEMS FOR A MODEL DEMONSTRATION SANITARY LANDFILL AND NO CHANGE IN THE BID PRICE WAS REQUIRED AFTER NEGOTIATIONS; WHEREAS CURTIN AND JOHNSON, AN INEXPERIENCED BIDDER, DID NOT APPRECIATE WHAT WAS REQUIRED AND CONSEQUENTLY SUBMITTED A PROPOSAL WHICH DID NOT FULLY PROVIDE FOR A MODEL OPERATION. THIS IS TO BE EXPECTED SINCE THE SPECIFICATIONS AS STATED ABOVE WERE INTENDED FOR THE EXPERIENCED CONTRACTOR.'

THE MEMORANDUM OF DECEMBER 20, 1967, FROM THE DIRECTOR OF SANITARY ENGINEERING ALSO ADVISES AS FOLLOWS: "THE FINAL PLAN - DESIGN, PROCEDURES AND OPERATING REQUIREMENTS WILL NOT AFFECT NATIONAL LAND'S BID PRICE OR COST. SOME NEGOTIATIONS WERE REQUIRED WITH THE NATIONAL LAND RECLAMATION SERVICE, INC., TO REACH ACCORD ON ALL ITEMS AND PROCEDURES, AS PROVIDED IN THE INVITATION, BUT THESE DID NOT ALTER THEIR COSTS OR THE COST TO THE DISTRICT.'

PARAGRAPH 5 OF THE "SPECIAL CONDITIONS" ON PAGE 7 OF THE INVITATION PROVIDES: "5. BIDDER QUALIFICATIONS: BIDDER MUST FURNISH SATISFACTORY EVIDENCE THAT HE HAS OPERATED OR IS PRESENTLY OPERATING A LANDFILL OF THE TYPE AND CAPACITY COMPARABLE TO THAT REQUIRED BY THESE SPECIFICATIONS AND THAT HE HAS SUCCESSFULLY OPERATED A LANDFILL OPERATION OF THE TYPE REQUIRED BY THE SPECIFICATIONS FOR A PERIOD OF NOT LESS THAN 3 YEARS WITHIN THE LAST 5 YEARS. FURTHER, THE BIDDER WILL BE REQUIRED TO DEMONSTRATE TO THE SATISFACTION OF THE DISTRICT THAT HE HAS ADEQUATE EQUIPMENT, FINANCIAL RESOURCES, EXPERIENCED PERSONNEL AND EXPERTISE TO PERFORM SERVICE UNDER THIS CONTRACT AND SHALL FURNISH SUCH INFORMATION AND/OR PROOF COVERING HIS QUALIFICATIONS REQUESTED BY THE DISTRICT. LANDFILL OPERATIONS WHICH HAVE BEEN OR ARE NOW BEING OPERATED BY THE BIDDER WILL BE SUBJECT TO INSPECTION, TO DETERMINE THE BIDDER'S ABILITY TO PERFORM SATISFACTORILY UNDER THIS CONTRACT. NO CONTRACT WILL BE AWARDED TO ANY BIDDER WHO, AS DETERMINED BY THE DISTRICT, IS NOT QUALIFIED TO PERFORM SATISFACTORY SERVICE DUE TO AN UNSATISFACTORY RECORD, INADEQUATELY (SIC) EXPERIENCE, OR LACKS THE NECESSARY CAPITAL, ORGANIZATION, AND EQUIPMENT TO CONDUCT AND COMPLETE THE SERVICES IN STRICT ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS CONTRACT.'

THE D.C. GOVERNMENT PROPOSES TO REJECT THE BID OF CURTIN AND JOHNSON, INCORPORATED, WHICH WAS LOW, SINCE THIS BIDDER DOES NOT HAVE THE EXPERIENCE REQUIRED BY THE "BIDDER QUALIFICATIONS" CLAUSE, QUOTED ABOVE. BY LETTERS OF DECEMBER 11, 12, AND 18, 1967, WITH ENCLOSURES, COUNSEL FOR CURTIN AND JOHNSON PROTESTED AGAINST THE PROPOSED REJECTION. THE CONTENTIONS ARE THAT THE EXPERIENCE REQUIREMENT IS AN ARBITRARY ONE; THAT THE D.C. GOVERNMENT HAD AN INADEQUATE MAILING LIST TO BIDDERS; AND THAT THE PERIOD BETWEEN ISSUANCE OF THE INVITATION AND OPENING OF BIDS WAS TOO SHORT TO PERMIT ADEQUATE COMPETITION. IT IS ALLEGED THAT THE INVITATION IS DEFECTIVE SINCE IT IS VAGUE AND INDEFINITE AS TO D.C. GOVERNMENT'S LANDFILL REQUIREMENTS. A QUESTION IS ALSO RAISED REGARDING THE LEGALITY OF THE "RENEWAL" PROVISION IN PARAGRAPH 3 OF THE "SPECIAL PROVISIONS" ON PAGE 7 OF THE INVITATION. COUNSEL FOR NATIONAL LAND HAS RAISED THE FOLLOWING POINTS IN ITS LETTER OF JANUARY 2, 1968:

"I. NATIONAL IS THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER;

"II. THERE IS NO EVIDENCE THAT THE STANDARDS UTILIZED BY THE CONTRACTING AGENCY TO DETERMINE RESPONSIBILITY WERE SELECTED ARBITRARILY, CAPRICIOUSLY OR FRAUDULENTLY. "III. THE DETERMINATION OF THE DISTRICT OF COLUMBIA PROCUREMENT OFFICER THAT NATIONAL IS THE LOWEST RESPONSIBLE BIDDER IS NOT SUBJECT TO REVIEW BY THE COMPTROLLER GENERAL.

"IV. THERE IS NO VALIDITY TO THE CHARGE THAT THE SPECIFICATIONS ARE VAGUE; THE MATTER IS NOT SUBJECT TO REVIEW BY THE COMPTROLLER GENERAL.

"V. THE BID OF CURTIN AND JOHNSON WAS NOT RESPONSIVE TO THE INVITATION FOR BID; FURTHER CONSIDERATION OF ITS BID OR PROTEST IS UNJUSTIFIED.

"VI.IN VIEW OF THE VALIDITY OF THE REQUIREMENT FOR EXPERIENCE IN SANITARY LANDFILL OPERATIONS, AND ADMITTED LACK OF ANY SUCH EXPERIENCE, ITS PROTEST AGAINST THE AWARD TO -ANY OTHER CONTRACTOR- MUST BE DENIED FOR LACK OF STANDING; IT HAS NO JUSTIFIABLE INTEREST IN THE AWARD OF THE CONTRACT.'

IT SHOULD BE NOTED AT THE OUTSET THAT ALL CONTRACTS FOR SUPPLIES OR SERVICES FOR THE DISTRICT OF COLUMBIA ARE REQUIRED TO BE MADE AFTER ADVERTISING FOR PROPOSALS. SEE SECTION 1-808 OF THE D.C. CODE, AND SECTION 3709, REVISED STATUTES OF THE UNITED STATES, WHICH WAS MADE APPLICABLE TO THE DISTRICT OF COLUMBIA BY THE ACT OF JANUARY 27, 1894, 28 STAT. 33. COMPARABLE COMPETITIVE BIDDING STATUTES ARE APPLICABLE GENERALLY TO PUBLIC PROCUREMENT, BOTH BY THE FEDERAL GOVERNMENT AND BY STATE AND LOCAL GOVERNMENTS.

THERE ARE THREE PRINCIPLES WHICH ARE VITAL TO ANY COMPETITIVE BIDDING PROCEDURE: AN OFFERING TO THE PUBLIC, AN EQUAL OPPORTUNITY FOR COMPETITION, AND A BASIS FOR EXACT COMPARISON OF BIDS. THERE CAN BE NO REAL COMPETITION UNLESS BIDDERS ARE COMPETING ON A COMMON BASIS; NO INTELLIGENT BIDDING FOR A CONTRACT UNLESS ALL BIDDERS KNOW WHAT THE CONTRACT IS.

THE SITUATION IN THE PRESENT CASE IS ONE IN WHICH BIDDERS WERE REQUIRED TO SPECIFY THEIR PROPOSED METHODS OF PERFORMANCE. AFTER RECEIPT OF BIDS THEY WERE TO BE EVALUATED TO DETERMINE WHETHER BIDDERS' PROPOSED METHODS OF PERFORMANCE MET THE REQUIREMENTS OF DEFINITIVE SPECIFICATIONS WHICH WERE NOT AVAILABLE TO BIDDERS AND WERE NOT COMPLETED UNTIL AFTER BIDS HAD BEEN SUBMITTED. IN OTHER WORDS, BIDDERS WERE PUT IN THE POSITION OF HAVING TO GUESS WHAT THE CONTRACT SPECIFICATIONS WOULD BE. THE INVITATION ITSELF SPEAKS OF "NEGOTIATION" WHICH MIGHT BE REQUIRED WITH THE SUCCESSFUL BIDDER, AND WE HAVE BEEN ADVISED THE INTENDED PURPOSE OF THIS WAS TO ASSURE A "MEETING OF THE MINDS.' IT IS APPARENT FROM THE FOREGOING THAT BIDDERS DID NOT KNOW EXACTLY WHAT THE CONTRACT WAS FOR WHICH THEY WERE COMPETING, AND THAT THERE WAS NO COMMON BASIS FOR COMPETITION.

BIDDERS MUST, AS A MINIMUM, BE ADVISED OF OBJECTIVELY DETERMINABLE FACTORS FROM WHICH THEY CAN ESTIMATE WITHIN REASONABLE LIMITS THE EFFECT OF EVALUATION FACTORS ON THEIR BIDS IN RELATION TO OTHER POSSIBLE BIDS. SEE 36 COMP. GEN. 380, 385; SEE ALSO, 44 COMP. GEN. 392. BIDDERS WERE NOT ADVISED, AS THEY SHOULD HAVE BEEN, OF THE ESTIMATED QUANTITY OF ITEM NO. 1 -B WHICH WOULD BE USED FOR BID EVALUATION PURPOSES. THE FACT THAT THE D.C. GOVERNMENT DID NEGOTIATE WITH NATIONAL LAND TO CONFIRM WHETHER THAT BIDDER MET THE REQUIREMENTS OF THE FINAL PLAN-DESIGN FURTHER DEMONSTRATES THAT THE INVITATION DID NOT MEET THE REQUIRED MINIMUM STANDARD THAT BIDDERS MUST BE ADVISED IN ADVANCE OF THOSE FACTORS WHICH WILL BE CONSIDERED IN EVALUATING BIDS. WE ARE COMPELLED TO CONCLUDE THAT THE INVITATION IS MATERIALLY DEFECTIVE AND THAT IT MUST BE CANCELLED.

SO FAR AS NATIONAL LAND'S CONTENTION THAT OUR OFFICE HAS NO JURISDICTION TO REVIEW THE MATTER IS CONCERNED, SUFFICE IT TO SAY THAT WE DO NOT AGREE, AND THAT SIMILAR QUESTIONS HAVE BEEN REVIEWED AND RULED ON BY US SINCE THE ESTABLISHMENT OF THE GENERAL ACCOUNTING OFFICE.

THERE ARE OTHER ASPECTS OF THE PROCUREMENT AND INVITATION WHICH SHOULD BE DISCUSSED. WE NOTE THE INVITATION WAS ISSUED OCTOBER 17, 1967, AND BIDS WERE OPENED NOVEMBER 3, 1967. INVITATIONS WERE SENT TO 8 PROSPECTIVE BIDDERS ON OCTOBER 17, 1967. ON OCTOBER 19, 1967, INVITATIONS WERE SENT TO A NUMBER OF OTHER PROSPECTIVE BIDDERS. WE QUESTION THE ADEQUACY OF APPROXIMATELY TWO WEEKS' TIME IN WHICH TO PREPARE A BID ON A PROJECT AS SUBSTANTIAL AS THIS, AND WE NOTE THAT A SIMILAR QUESTION WAS RAISED BY THE INTERNATIONAL CITY MANAGERS' ASSOCIATION. WE SUGGEST A REVIEW BE MADE TO DETERMINE WHETHER TWO WEEKS IS "SUFFICIENT TIME" TO SECURE ADEQUATE COMPETITION AS CONTEMPLATED BY SECTION 1-808, D.C. CODE.

ANOTHER ASPECT OF THE PROCUREMENT WHICH MIGHT BE QUESTIONED FROM THE STANDPOINT OF OBTAINING THE MOST EFFECTIVE COMPETITION AND THE BEST PRICE FOR THE DISTRICT OF COLUMBIA IS THE FACT THAT BIDDERS WERE REQUIRED TO STATE A MONTHLY CHARGE FOR AMORTIZATION (IN 18 MONTHS) OF THE COST OF LANDFILL EQUIPMENT, TITLE TO WHICH WILL THEN PASS TO THE DISTRICT, AND TO INCLUDE IN THAT CHARGE THE COST OF FENCING, SCALES, AND BUILDINGS. HOWEVER, WE FIND NOTHING IN THE INVITATION (OR EVEN IN THE FINAL PLAN- DESIGN) WHICH ADVISES BIDDERS OF THE MINIMUM EQUIPMENT REQUIRED. THE SIGNIFICANCE OF BIDDERS' LACK OF KNOWLEDGE AS TO WHAT EQUIPMENT WAS DESIRED OR REQUIRED AND ITS IMPACT ON BID PRICES IS DEMONSTRATED BY THE FACT THAT NATIONAL LAND'S PRICE FOR EQUIPMENT RENTAL IS SOME $94,000 HIGHER THAN CURTIN AND JOHNSON'S PRICE AND THE NEXT LOWEST PRICE FOR EQUIPMENT RENTAL IN THE THREE OTHER BIDS IS SOME $303,000 HIGHER THAN CURTIN AND JOHNSON'S PRICE. IT IS NOTED THE FINAL PLAN-DESIGN PROVIDES IN PARAGRAPH 2:11 THEREOF THAT THE COST OF ANY EQUIPMENT IN ADDITION TO "THE EQUIPMENT SUBMITTED AS A PORTION OF THE BID" IS TO BE INCLUDED IN THE PER TON PRICE FOR REFUSE DISPOSAL. THIS PRICE PER TON ALSO IS TO INCLUDE THE COST OF SEEDING AN UNDETERMINED ACREAGE. IT IS OBVIOUS THAT THE COST OF SUCH ITEMS DOES NOT DEPEND UPON THE QUANTITY OF REFUSE TO BE BURIED, AND IN VIEW OF THE POSSIBLE VARIATION IN THAT QUANTITY, THE PER TON PRICE FOR DISPOSAL SEEMS INAPPROPRIATE FOR RECOVERY OF SUCH COSTS. FURTHER, WE DO NOT SEE HOW THE PRICE CHARGED FOR EQUIPMENT AMORTIZATION CAN BE EVALUATED AS BETWEEN BIDDERS WITHOUT SOME DEFINITION OF THE MINIMUM QUANTITY AND QUALITY OF THE EQUIPMENT INVOLVED, IN VIEW OF THE FACT THAT THE DISTRICT IS IN EFFECT PURCHASING THE EQUIPMENT.

NOTICE MUST ALSO BE TAKEN OF THE RENEWAL PROVISION ON PAGE 7 OF THE INVITATION. THIS PROVISION IS NOT AN OPTION SINCE IT PROVIDES FOR RENEWAL BY "MUTUAL AGREEMENT.' ANY RENEWAL OF THIS TYPE WOULD NOT APPEAR TO COMPLY WITH THE ADVERTISING REQUIREMENTS OF SECTION 1-808, D.C. CODE.

OUR FINAL COMMENTS RELATE TO THE BIDDER QUALIFICATION PROVISION ON PAGE 7 OF THE INVITATION. WE HAVE HELD THAT AWARD OF A CONTRACT MAY BE LIMITED TO THOSE BIDDERS MEETING SPECIFIED QUALITATIVE AND QUANTITATIVE REQUIREMENTS IN A SPECIALIZED FIELD WHERE THE BIDDING CONDITIONS SO PROVIDE AND A DETERMINATION HAS BEEN MADE THAT THE PUBLIC INTEREST WOULD BE SERVED THEREBY. SEE 37 COMP. GEN. 196. HOWEVER, THE REQUIREMENT THAT BIDDERS MUST HAVE OPERATED A LANDFILL OF COMPARABLE "TYPE AND CAPACITY" FOR AT LEAST THREE YEARS RAISES QUESTIONS WHICH WE BELIEVE SHOULD RECEIVE CONSIDERATION IN DRAFTING ANY FUTURE CLAUSE OF THIS NATURE. HOW MANY PROSPECTIVE BIDDERS ARE KNOWN TO QUALIFY UNDER THE REQUIREMENT? IN OTHER WORDS, DOES THE REQUIREMENT PRECLUDE EFFECTIVE COMPETITION? WHAT IS MEANT BY THE WORDS "TYPE" AND "CAPACITY? " WE ASSUME THAT THE QUANTITY OF LAND AVAILABLE FOR LANDFILL PURPOSES HAS NO BEARING ON THE QUALITY OF WORK DONE ON A DAILY BASIS, SO WE ASSUME THAT "CAPACITY" WAS INTENDED TO MEAN THE DAILY QUANTITY OF REFUSE TO BE DISPOSED OF. THE GUARANTEED MINIMUM WAS 3,600 TONS PER WEEK. WE BELIEVE A DETERMINATION SHOULD BE MADE AS TO THE MINIMUM WEEKLY TONNAGE BIDDERS MUST HAVE HAD EXPERIENCE WITH IN ORDER TO BE CONSIDERED QUALIFIED TO DISPOSE OF 3,600 TONS WEEKLY, AND BIDDERS SHOULD BE TOLD WHAT THAT MINIMUM IS. WE BELIEVE ALSO THAT A DETERMINATION SHOULD BE MADE AS TO THE MINIMUM PERIOD OF PAST EXPERIENCE NECESSARY TO DEMONSTRATE A BIDDER'S CAPABILITY, BASED ON OBJECTIVE FACTORS, AS FOR EXAMPLE, THOSE THINGS WHICH A LANDFILL OPERATOR WOULD LEARN IN THREE YEARS WHICH HE WOULD NOT LEARN IN OPERATING A LANDFILL FOR A SHORTER PERIOD OF TIME.

FOR YOUR CONSIDERATION WE ARE ENCLOSING A COPY OF A TELEGRAM DATED JANUARY 2, 1968, FROM LANDFILL INCORPORATED, COMMERCE CITY, COLORADO.