B-152804, JAN. 15, 1964

B-152804, JAN. 15, 1964

TO BROS INCORPORATED:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 17 AND OCTOBER 11, 1963, PROTESTING AWARDS MADE BY THE FEDERAL AVIATION AGENCY TO AMERICAN SNOWBLAST CORPORATION FOR CERTAIN ROTARY SNOWPLOWS.

YOU PROTEST THE AWARD OF CONTRACT FA-WA-4497 FOR THREE AMERICAN SNOWBLAST R-2200A ROTARY SNOWPLOWS, AT A TOTAL PRICE OF $193,527, ON THE BASIS THAT IT IS THE RESULT OF NEGOTIATION WITH THE CONTRACTOR TO THE EXCLUSION OF ALL OTHER MANUFACTURERS OF THE SAME TYPE OF EQUIPMENT. YOU CONTEND THAT THE AGENCY COULD HAVE SAVED A CONSIDERABLE AMOUNT OF MONEY IF IT HAD INVITED MANUFACTURERS TO BID ON A SPECIFICATION WHICH WOULD HAVE GIVEN THEM ALL AN EQUAL CHANCE TO COMPLETE. FURTHER, YOU PROTEST THE AWARD ON THE BASIS THAT THE PROCUREMENT WAS NOT SYNOPSIZED IN THE "COMMERCE BUSINESS DAILY" BEFORE IT WAS NEGOTIATED. YOU SAY YOU ARE DISTURBED BY THE PATTERN BEING SET BY THE AGENCY IN THAT OVER THE PAST FEW YEARS TWO OTHER UNITS HAVE BEEN PURCHASED BY NEGOTIATION FOR USE AT WASHINGTON NATIONAL AIRPORT AND WHEN DELIVERY OF ONE OF THESE UNITS WAS NOT MADE AS PROMISED THE CONTRACTOR SUPPLIED A USED PLOW UNTIL THE NEW UNIT COULD BE DELIVERED AND AFTER THE NEW UNIT WAS DELIVERED THE LOANED UNIT WAS PURCHASED BY THE AGENCY AND ASSIGNED TO DULLES INTERNATIONAL AIRPORT. YOU SAY YOU BELIEVE THIS IS CONTRARY TO FEDERAL PROCUREMENT REGULATIONS (FPR).

IN ADDITION, YOU PROTEST THE AWARD OF CONTRACT FA-WE-10796 FOR TWO AMERICAN SNOWBLAST R-1000H SNOWPLOWS, AT A TOTAL PRICE OF $86,750, ON THE BASIS THAT THE INVITATION SPECIFICATIONS WERE RESTRICTIVE TO THE MODEL CITED. ALSO, YOU STATE THAT YOU RECEIVED THE INVITATION FOR BIDS FROM A DEALER AND THAT YOU CANNOT UNDERSTAND WHY YOUR COMPANY, WHICH YOU SAY IS ONE OF THE LARGEST MANUFACTURERS OF ROTARY SNOWPLOWS IN THE COUNTRY, DID NOT RECEIVE ONE DIRECT FROM THE CONTRACTING OFFICER.

THE AGENCY HAS REPORTED THAT CONTRACT FA-WA-4497 WAS NEGOTIATED WITH THIS AMERICAN SNOWBLAST CORPORATION ON A SOLE-SOURCE BASIS BECAUSE IT WAS DETERMINED THAT THE AMERICAN SNOWBLAST EQUIPMENT HAS UNIQUE FEATURES WHICH ARE NEEDED IN CLEARING THE RUNWAYS AT DULLES INTERNATIONAL AIRPORT. THE FOLLOWING WERE CONSIDERED DESIRABLE ADVANTAGES:

(1) AT HIGH SPEED, THE SNOWBLAST ROTARY EQUIPMENT CAN REMOVE SNOW IN HALF AS MUCH TIME AS ANY SIMILAR EQUIPMENT;

(2) WHEREAS ALL ROTARY EQUIPMENT HAS THE SNOW DISCHARGE CHUTE IN FRONT OF THE OPERATOR'S CAB WITH POSSIBLE IMPAIRMENT OF VISIBILITY, IN THE SNOWBLAST EQUIPMENT THE OPERATOR'S CAB IS IN FRONT OF THE DISCHARGE CHUTE AND ABOVE THE ROTARY MECHANISM WITH THE RESULT THAT FORWARD AND SIDE VISIBILITY OF RUNWAY LIGHTS AND GROUND OBSTRUCTIONS IS NOT IMPAIRED; AND

(3) THE SNOWBLAST EQUIPMENT HAS HELICAL SNOW BLADE MAINTENANCE THROUGH USE OF A SIMPLE SHEAR PIN ARRANGEMENT.

YOU DISPUTE THAT THE CHARACTERISTICS NUMBERED (1) AND (3) ABOVE ARE UNIQUE AND THAT THE CHARACTERISTIC NUMBERED (2) IS NECESSARY. YOU STATE THAT THE EQUIPMENT OF YOUR COMPANY'S MANUFACTURE IS COMPARABLE TO THAT OF AMERICAN SNOWBLAST IN THAT IT IS CAPABLE OF OPERATING AT 25 MILES PER HOUR AND REMOVING MORE THAN 3,000 TONS OF SNOW PER HOUR (TWICE AS MUCH REMOVAL AS SNOWBLAST). YOU STATE ALSO THAT THE EQUIPMENT MANUFACTURED BY YOUR COMPANY HAS EASE OF HELICAL SNOW BLADE MAINTENANCE THROUGH A SIMPLE SHEAR PIN ARRANGEMENT TOO. FURTHER, YOU DOUBT THE NECESSITY OF THE OPERATOR RIDING ABOVE THE ROTARY MECHANISM AND THE SNOW DISCHARGE BEING AT THE REAR OF THE VEHICLE SINCE YOU SAY WHEN THERE IS SNOW ON THE GROUND THE DRIVER WILL NOT BE ABLE TO SEE THE GROUND OBSTRUCTIONS ANYWAY. IN ADDITION, YOU QUESTION WHETHER THE PLOWS WILL BE USED AROUND RUNWAY LIGHTS AND OTHER OBSTRUCTION INASMUCH AS ROTARY BROOMS ALLEGEDLY HAVE BEEN PURCHASED FOR CLEARING AROUND SUCH AREAS.

DESPITE YOUR CONTENTIONS, THE AGENCY PERSISTS IN THE VIEW THAT, EVEN FROM THE STANDPOINT OF VISIBILITY ALONE, IT WAS JUSTIFIED IN PURCHASING THE SNOWBLAST EQUIPMENT. IT REPORTS:

"SNOW REMOVAL OPERATIONS AT DULLES, AS WELL AS AT OTHER AIRPORTS, ARE PUT INTO EFFECT WHEN NO MORE THAN ONE-HALF INCH OF SNOW HAS ACCUMULATED, OR EVEN SOONER DEPENDING UPON THE SEVERITY OF THE STORM. THE INSET LIGHTS EXTEND APPROXIMATELY ONE-HALF INCH ABOVE THE PAVEMENT AND THE RUNWAY EDGE LIGHTS ARE APPROXIMATELY FOURTEEN INCHES HIGH THUS MAKING THEM VISIBLE FROM THE FRONT MOUNTED CAB OF THE SNOWBLAST MACHINE.

"WE DO NOT CONTEND THAT UNDER HEAVY SNOW CONDITIONS THAT THE INSET LIGHTS WILL NOT BECOME COVERED BEFORE THE MACHINE CAN REACH THEM, HOWEVER ONE OF THE FEATURES OF THE SNOW REMOVAL PORTION OF THE SNOWBLAST MACHINE IS THAT IT CAN BE RAISED SUFFICIENTLY ABOVE THE PAVEMENT SO AS NOT TO DAMAGE THE LIGHTS. IT IS OUR UNDERSTANDING THAT THE BROS MACHINE DOES NOT HAVE THIS FEATURE.

"IN REGARD TO THE 14 INCH EDGE LIGHTS, SNOW IS NEVER ALLOWED TO ACCUMULATE TO AN EXTENT THAT THESE LIGHTS WOULD NOT BE VISIBLE FROM THE SNOWBLAST EQUIPMENT. THIS EQUIPMENT WAS USED THIS PAST WINTER AND WILL BE USED THIS COMING WINTER TO CLEAN THE AREAS AROUND THESE LIGHTS WHICH ARE LOCATED APPROXIMATELY 20 FEET FROM THE EDGE OF THE GRASS ALONG THE RUNWAYS. IN VIEW OF THE ACTUAL USE OF THESE MACHINES FOR THIS PURPOSE, THE STATEMENT BY BROS THAT "WE DO NOT BELIEVE THEY WILL USE THESE UNITS UNITS AROUND THE RUNWAY LIGHTS," IS INCORRECT.'

OTHER ADVANTAGES RESULTING FROM THE BETTER VISIBILITY ARE STATED TO BE THAT THE MACHINE CAN BE OPERATED SAFELY WITH ONLY ONE MAN IN THE CAB SO THAT THERE IS A SAVINGS IN MANPOWER. ANOTHER VISIBILITY FEATURE IS STATED TO BE A SPECIAL HIGH-SPEED ROTATING SECTION IN THE WINDSHIELD WHICH INSURES DRIVER VISIBILITY AT ALL TIMES BECAUSE THE ACCUMULATION OF SNOW ON THE SECTION IS PREVENTED BY THE ROTATING ACTION.

IT APPEARS THAT BEFORE CONTRACT FA-WA-4497 WAS NEGOTIATED THE ACTUAL NEEDS OF THE AGENCY WERE CONSIDERED AND WERE FOUND TO BE SATISFIED BY THE SNOWBLAST MACHINE. IN THIS CONNECTION, THE RESPONSIBILITY FOR DETERMINING THE NEEDS OF THE GOVERNMENT IS A FUNCTION PRIMARILY OF THE ADMINISTRATIVE AGENCIES AND THE GOVERNMENT IS NOT REQUIRED TO PURCHASE EQUIPMENT NOT FULFILLING ITS PARTICULAR NEEDS SOLELY BECAUSE IT MIGHT BE PURCHASED AT A LOWER PRICE.

THE AGENCY HAS VERIFIED THAT SINCE OCTOBER 1961 IT HAS PURCHASED ON THREE OCCASIONS OTHER SNOWBLAST EQUIPMENT. EACH OF THESE PROCUREMENTS WAS NEGOTIATED ON A SOLE-SOURCE BASIS. NO EQUIPMENT WAS LOANED TO THE AGENCY BECAUSE OF DELAYED PERFORMANCE ON ANY OF THESE CONTRACTS. HOWEVER, IN ORDER TO HAVE A MACHINE FOR THE EARLY WINTER MONTHS, THE OCTOBER 1961 CONTRACT REQUIRED THE CONTRACTOR TO FURNISH A DEMONSTRATOR FOR THE PERIOD NOVEMBER 15, 1961, TO JANUARY 15, 1962, WITH THE STIPULATION THAT THE DEMONSTRATOR WAS TO BE REPLACED BY A NEW MACHINE, WHICH WAS DONE ON JANUARY 15, 1962. AFTER ITS USE UNDER THIS CONTRACT AT WASHINGTON NATIONAL AIRPORT, THE DEMONSTRATOR WAS STORED AT DULLES WITH THE UNDERSTANDING THAT IT COULD BE USED BY THE GOVERNMENT AT ANY TIME SUBJECT TO SALE OR RENTAL BY THE CONTRACTOR TO OTHER CUSTOMERS. IN JANUARY 1963, THE COMPANY ADVISED THAT IT HAD A REQUEST FOR THE MACHINE AND THE AGENCY DECIDED THAT IN THOSE CIRCUMSTANCES IT WOULD BE BEST TO ENTER INTO A CONTRACT FOR THE MACHINE WHICH WAS DONE IN FEBRUARY 1963. WE DO NOT PERCEIVE HOW IT WAS IMPROPER FOR THE AGENCY TO AGREE IN THE OCTOBER 1961 CONTRACT TO USING THE DEMONSTRATOR FOR A PERIOD OF TIME NOR HOW IT WAS IMPROPER FOR THE AGENCY TO AGREE TO PURCHASE THE DEMONSTRATOR IN FEBRUARY 1963 WHEN THE AGENCY HAD A USE FOR THE MACHINE.

THE AGENCY HAS ADVISED THAT THE PROCUREMENT UPON WHICH CONTRACT FA WA- 4497 IS BASED WAS NOT PUBLICIZED IN THE "COMMERCE BUSINESS DAILY" BEFORE IT WAS NEGOTIATED BECAUSE IT WAS CONSIDERED TO BE WITHIN EXCEPTION NO. (4) IN FPR 1-1.1003-2. THAT REGULATION, IN ACCORDANCE WITH SECTION 8 OF PUBLIC LAW 87-305, 15 U.S.C. 637/E), REQUIRED THE PUBLICATION IN THE DEPARTMENT OF COMMERCE SYNOPSIS OF ALL PROPOSED CIVILIAN AGENCY ACTIONS OF $5,000 AND ABOVE, WITH CERTAIN EXCEPTIONS, AMONG THEM NO. (4), WHICH PROVIDES THAT PUBLICATION IS NOT NECESSARY IN PROCUREMENTS WHICH ARE OF SUCH UNUSUAL AND COMPELLING EMERGENCY THAT THE GOVERNMENT WOULD BE SERIOUSLY INJURED IF BIDS OR OFFERS WERE PERMITTED TO BE MADE MORE THAN 15 CALENDAR DAYS AFTER THE ISSUANCE OF THE INVITATION FOR BIDS OR REQUEST FOR PROPOSALS.

WHILE THE AGENCY HAS REPORTED THAT PUBLICATION WAS NOT CONSIDERED REQUIRED BECAUSE OF UNUSUAL AND COMPELLING EMERGENCIES, IT HAS NOT INDICATED WHAT THOSE PRECISE CIRCUMSTANCES WERE. HOWEVER, WE NOTE THAT THE CONTRACT WAS AWARDED ON MAY 29, 1963, AND PROVIDED FOR DELIVERY WITHIN 150 DAYS. IN VIEW OF THE LONG LEAD TIME IN DELIVERY, THE PRESENCE OF AN EMERGENT SITUATION THAT WOULD SERIOUSLY INJURE THE GOVERNMENT IS NOT CONVEYED TO US AND WE DO NOT PERCEIVE HOW THE GOVERNMENT WOULD HAVE BEEN INJURED BY A 15-DAY DELAY OR, IF IT WOULD HAVE, THAT THE SITUATION COULD NOT HAVE BEEN AVERTED BY COMMENCING THE PROCUREMENT ACTION AT AN EARLIER DATE. WE ARE THEREFORE BRINGING THE MATTER TO THE ATTENTION OF THE ADMINISTRATOR OF THE FEDERAL AVIATION AGENCY WITH THE RECOMMENDATION THAT IN FUTURE PROCUREMENTS THERE BE STRICTER ADHERENCE TO THE PUBLICATION REQUIREMENT.

AS TO YOUR CONTENTION THAT THE SPECIFICATIONS WERE RESTRICTIVE TO SNOWBLAST R-1000H SNOWPLOWS IN THE INVITATION FOR BIDS UPON WHICH CONTRACT FA-WE-10796 IS BASED, THE AGENCY HAS ADVISED THAT THE SPECIFICATION SET FORTH MINIMUM BASIC REQUIREMENTS WHICH ARE CONSIDERED ABSOLUTELY ESSENTIAL. WHILE IT MAY BE THAT YOUR COMPANY WAS UNABLE TO MEET THE SPECIFICATIONS DESCRIBING EQUIPMENT SIMILAR IN MANY RESPECTS TO THAT OFFERED BY A COMPETITOR, WHICH WERE ADMINISTRATIVELY CONSIDERED NECESSARY TO MEET THE PARTICULAR NEEDS OF THE GOVERNMENT, THAT FACT IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE, 30 COMP. GEN. 368 AND 33 ID. 586. FURTHER, AS WAS STATED IN 36 COMP. GEN. 251, 252:

"* * * THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.'

AS TO WHY YOUR COMPANY DID NOT RECEIVE DIRECTLY THE INVITATION FOR BIDS FOR THE FOREGOING PROCUREMENT, THE AGENCY HAS ADVISED THAT THE WESTERN REGION WHICH HANDLED THE PROCUREMENT REPORTED THAT YOUR COMPANY WAS NOT ON ITS MAILING LIST AT THE TIME THE INVITATION WAS ISSUED AND WAS NOT LISTED IN THE "SNOW PLOWS" SECTION OF THE YELLOW PAGES OF THE TELEPHONE BOOKS FOR THE MAJOR CITIES IN THE WESTERN REGION FROM WHICH ADDITIONAL NAMES WERE SECURED. IN ANY EVENT, YOU DO ADMIT THAT YOUR COMPANY RECEIVED AN INVITATION FOR BIDS SEVERAL DAYS BEFORE THE OPENING OF BIDS. THEREFORE, WHETHER YOU RECEIVED IT DIRECTLY OR INDIRECTLY FROM THE AGENCY APPEARS TO BE IMMATERIAL IN THIS CASE.

IN VIEW OF THE FOREGOING, OUTSIDE OF RECOMMENDING CORRECTIVE ACTION TO THE FEDERAL AVIATION AGENCY ADMINISTRATOR WITH RESPECT TO THE FAILURE TO PUBLISH THE PROCUREMENTS AS REQUIRED, THERE IS NO FURTHER ACTION THAT OUR OFFICE CAN TAKE IN THESE MATTERS AT THIS TIME.