B-152804, JAN. 15, 1964

B-152804, JAN. 15, 1964

TO OSHKOSH MOTOR TRUCK, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 19, 1963, PROTESTING AWARDS MADE BY THE FEDERAL AVIATION AGENCY TO AMERICAN SNOWBLAST CORPORATION FOR CERTAIN ROTARY SNOWPLOWS.

YOU HAVE PROTESTED THAT WITHIN A TWO-YEAR PERIOD THE FEDERAL AVIATION AGENCY HAS NEGOTIATED CONTRACTS WITH AMERICAN SNOWBLAST CORPORATION FOR SIX ROTARY SNOWPLOWS WITHOUT PUBLISHING THE PROCUREMENTS IN "COMMERCE BUSINESS DAILY" BEFORE THE NEGOTIATION OF THE CONTRACTS. YOU STATE THAT YOU ARE CONCERNED ABOUT THE SITUATION BECAUSE YOUR COMPANY BUILDS TRUCK CHASSIS FOR ROTARY SNOWPLOWS AND YOU ARE OF THE OPINION THAT THE DESIGN OFFERED BY AMERICAN SNOWBLAST DOES NOT OFFER THE ADVANTAGES THAT CAN BE SUPPLIED BY OTHER MANUFACTURERS.

IN ADDITION YOU HAVE PROTESTED THE AWARD OF CONTRACT FA-WE-10796 TO AMERICAN SNOWBLAST. YOU STATE THAT YOUR COMPANY DID NOT RECEIVE AN INVITATION TO BID AND THAT ONE COMPANY WHICH DID RECEIVE AN INVITATION RETURNED IT BEFORE BID OPENING WITH ADVICE THAT THE SPECIFICATIONS WERE RESTRICTIVE AND THAT IT COULD NOT LOCATE A REGULAR MANUFACTURER OF FOUR- WHEEL-DRIVE TRUCKS TO MEET THE SPECIFICATIONS.

FURTHER, YOU STATE THAT YOU BELIEVE THAT, IF ALL THE PROCUREMENTS HAD BEEN MADE BY ADVERTISED BIDDING, THE GOVERNMENT COULD HAVE SAVED OVER $100,000 AND WOULD HAVE RECEIVED SUPERIOR EQUIPMENT WHICH HAS BEEN TESTED AND PROVEN OVER A NUMBER OF YEARS.

THE AGENCY HAS VERIFIED THAT SINCE OCTOBER 1961 IT HAS PURCHASED BY NEGOTIATION SIX UNITS OF SNOWBLAST EQUIPMENT. EACH OF THESE PROCUREMENTS WAS NEGOTIATED ON A SOLE-SOURCE BASIS. THE AGENCY HAS INDICATED THAT ON THE SNOWBLAST EQUIPMENT THE OPERATOR'S CAB IS LOCATED IN FRONT OF THE SNOW DISCHARGE CHUTE AND ABOVE THE ROTARY MECHANISM. THIS IS REPORTED AS PROVIDING THE OPERATOR WITH BETTER GROUND VISIBILITY FORWARD AND TO THE SIDE THAN THE OPERATOR WOULD HAVE IN ANY OTHER EQUIPMENT WITH THE RESULT THAT THE OPERATOR CAN MANEUVER AT HIGH SPEED AROUND RUNWAY LIGHTS AND OTHER GROUND OBSTRUCTIONS WITHOUT DAMAGE TO THEM. THE AGENCY CONSIDERS THAT THIS IS AN IMPORTANT FEATURE REQUIRED FOR ITS NEEDS AND THAT IT IS JUSTIFIED IN PURCHASING THE EQUIPMENT FOR THIS REASON ALONE. WHILE YOU MAY BE IN DISAGREEMENT WITH THE AGENCY AS TO WHETHER SNOWBLAST EQUIPMENT OR SOME OTHER EQUIPMENT IS OF SUPERIOR DESIGN, THE JUDGMENT OF WHAT IS REASONABLY NEEDED TO MEET THE AGENCY'S NEED BELONGS TO AND IS TO BE EXERCISED BY THE AGENCY.

THE AGENCY HAS ADVISED THAT THE WESTERN REGION, WHICH HANDLED THE PROCUREMENT UNDER THE INVITATION UPON WHICH CONTRACT FA-WE-10796 IS BASED, DISTRIBUTED THE INVITATIONS TO THE COMPANIES ON ITS BID MAILING LIST AND TO COMPANIES LISTED IN THE "SNOW PLOWS" SECTION OF THE YELLOW PAGES OF THE TELEPHONE BOOKS FOR THE MAJOR CITIES IN THE WESTERN REGION. IF YOUR COMPANY DID NOT RECEIVE AN INVITATION, IT MUST BE THAT ITS NAME DID NOT APPEAR IN EITHER LISTING.

SINCE YOU SEEM TO BE AWARE THAT THE NEGOTIATED PROCUREMENTS WERE NOT PUBLISHED IN THE "COMMERCE BUSINESS DAILY" BEFORE THEY WERE NEGOTIATED, IT APPEARS THAT YOU MIGHT HAVE NOTICED A SYNOPSIS ON THE PROCUREMENT COVERED BY THE INVITATION FOR BIDS IF IT HAD BEEN PUBLISHED IN THE "COMMERCE BUSINESS DAILY.' HOWEVER, THE AGENCY HAS ADVISED THAT NONE OF THE ABOVE PROCUREMENTS WERE ADVERTISED IN THAT PUBLICATION BEFORE AWARDS WERE MADE BECAUSE IT WAS CONSIDERED THAT EXCEPTION (4) IN FPR 1-1.1003-2 APPLIED. THAT REGULATION, IN ACCORDANCE WITH SECTION 8 OF PUBLIC LAW 87-305, 15 U.S.C. 637/E), REQUIRES THE PUBLICATION IN THE DEPARTMENT OF COMMERCE SYNOPSIS OF ALL PROPOSED CIVILIAN AGENCY ACTIONS OF $5,000 AND ABOVE, WITH CERTAIN EXCEPTIONS, AMONG THEM NUMBER (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, WE NOTE THAT THE INVITATION WAS ISSUED ON JUNE 3, 1963, AND ORIGINALLY REQUIRED THAT BIDS BE SUBMITTED BY JUNE 19, 1963, WHICH DATE WAS EXTENDED TO JUNE 25, 1963. THE NUMBER OF CALENDAR DAYS FROM INVITATION ISSUANCE TO BID OPENING, WHETHER NARROWED TO THE ORIGINAL OR EXTENDED OPENING, WAS MORE THAN 15 DAYS. THEREFORE, THE AGENCY WAS NOT JUSTIFIED IN RELYING UPON THE CITED EXCEPTION.

WITH REGARD TO THE NEGOTIATED PROCUREMENTS, WHILE THE AGENCY HAS REPORTED THAT PUBLICATION OF THEM WAS NOT CONSIDERED REQUIRED EITHER BECAUSE OF UNUSUAL AND COMPELLING EMERGENCIES, IT HAS NOT INDICATED WHAT THE PRECISE CIRCUMSTANCES WERE IN EACH PROCUREMENT. HOWEVER, WE NOTE THAT ONE OF THE CONTRACTS 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 BRINGING THE MATTER OF THE FAILURE TO SYNOPSIZE THESE PROCUREMENTS TO THE ATTENTION OF THE FEDERAL AVIATION AGENCY ADMINISTRATOR WITH THE RECOMMENDATION THAT IN FUTURE PROCUREMENTS THERE BE STRICTER ADHERENCE TO THE PUBLICATION REQUIREMENTS.

ALTHOUGH IT HAS BEEN CONTENDED THAT THE SPECIFICATIONS IN THE INVITATION FOR BIDS WERE RESTRICTIVE TO SNOWBLAST EQUIPMENT, THE AGENCY HAS ADVISED THAT THE SPECIFICATIONS SET FORTH MINIMUM BASIC REQUIREMENTS WHICH ARE CONSIDERED ABSOLUTELY ESSENTIAL. DECISIONS OF OUR OFFICE HAVE HELD THAT THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE TO MEET 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, 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.'

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.