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B-159550, FEB. 13, 1967

B-159550 Feb 13, 1967
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YOU QUOTE A STATEMENT MADE IN THE PENULTIMATE PARAGRAPH (PAGE 6) OF SUCH DECISION THAT THE PURCHASE IS NOT ONE LIKELY TO BE REPEATED IN THE FORESEEABLE FUTURE. YOU EXPRESS THE VIEW THAT THE SUBJECT DECISION "RESTS ON THE FACT THAT THIS IS A "ONE-TIME" PROCUREMENT.'. YOU FURTHER STATE THAT IF GOVERNMENT AGENCIES CONTINUE TO BUY SUCH PARTICULAR TYPE OF TRUCK THE DECISION INDICATES THAT "THE SPECIFICATION SHOULD BE COORDINATED WITH THE MATERIAL HANDLING INDUSTRY IN ORDER TO INSURE THAT A SPECIFICATION CAN BE WRITTEN THAT WILL PERMIT OPEN. WHILE IT IS NOTED IN OUR DECISION OF NOVEMBER 25. THAT THE PURCHASE IS NOT ONE LIKELY TO BE REPEATED (BASED ON THE ADMINISTRATIVE STATEMENT THAT ITEM C WAS APPROVED BY THE ARMY SUBSISTENCE CENTER TO MEET A PECULIAR OPERATIONAL REQUIREMENT) THE DENIAL OF YOUR PROTEST DID NOT REST SOLELY ON THAT FACTOR AS YOU SUGGEST.

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B-159550, FEB. 13, 1967

TO THE PAUL H. WERRES COMPANY, INC.:

WE REFER TO YOUR LETTER OF JANUARY 16, 1967, CONCERNING OUR DECISION OF NOVEMBER 25, 1966, B-159550, DENYING YOUR PROTEST AGAINST THE AWARD OF A CONTRACT FOR THREE ELECTRIC FORK TRUCKS (STRADDLE TYPE) TO BIG JOE MANUFACTURING COMPANY UNDER ITEM C OF DEFENSE SUPPLY AGENCY IFB. NO. DSA- 400-66-B-4413 FOR USE BY THE ARMY IN ITS COMMISSARY OPERATIONS AT CAMERON STATION, ALEXANDRIA, VIRGINIA.

YOU QUOTE A STATEMENT MADE IN THE PENULTIMATE PARAGRAPH (PAGE 6) OF SUCH DECISION THAT THE PURCHASE IS NOT ONE LIKELY TO BE REPEATED IN THE FORESEEABLE FUTURE, AND YOU EXPRESS THE VIEW THAT THE SUBJECT DECISION "RESTS ON THE FACT THAT THIS IS A "ONE-TIME" PROCUREMENT.' YOU FURTHER STATE THAT IF GOVERNMENT AGENCIES CONTINUE TO BUY SUCH PARTICULAR TYPE OF TRUCK THE DECISION INDICATES THAT "THE SPECIFICATION SHOULD BE COORDINATED WITH THE MATERIAL HANDLING INDUSTRY IN ORDER TO INSURE THAT A SPECIFICATION CAN BE WRITTEN THAT WILL PERMIT OPEN, COMPETITIVE BIDDING ON THIS TYPE OF EQUIPMENT.'

WHILE IT IS NOTED IN OUR DECISION OF NOVEMBER 25, 1966, THAT THE PURCHASE IS NOT ONE LIKELY TO BE REPEATED (BASED ON THE ADMINISTRATIVE STATEMENT THAT ITEM C WAS APPROVED BY THE ARMY SUBSISTENCE CENTER TO MEET A PECULIAR OPERATIONAL REQUIREMENT) THE DENIAL OF YOUR PROTEST DID NOT REST SOLELY ON THAT FACTOR AS YOU SUGGEST. THE PRINCIPAL BASIS FOR OUR DECISION WAS RATHER OUR CONCLUSION THAT THERE WAS NO ADEQUATE MILITARY SPECIFICATION FOR ITEM C, AND ON THE LACK OF SUFFICIENT EVIDENCE OF RECORD TO SUPPORT A FINDING THAT THE IFB SPECIFICATIONS FOR SUCH ITEM UNDULY RESTRICTED COMPETITION BY STATING REQUIREMENTS WHICH WERE IN EXCESS OF, OR NOT IN ACCORDANCE WITH, THE ACTUAL NEEDS OF THE USING ACTIVITY.

WE HAVE NEVER, HOWEVER, TAKEN THE VIEW THAT A SPECIFICATION IS UNDULY RESTRICTIVE MERELY BECAUSE IT CAN READILY BE MET BY ONLY ONE PRODUCT OR MANUFACTURER. SEE OUR DECISION IN 44 COMP. GEN. 27, IN WHICH A MORE EXTENSIVE STATEMENT OF OUR VIEWS IN SUCH MATTERS IS SET FORTH ON PAGE 31 AS FOLLOWS:

"WHILE YOU ASSERT THAT THE INVITATION SPECIFICATION CONTAINED RESTRICTIVE PROPRIETARY FEATURES AND YOU FEAR THAT SUCH FEATURES MAY BE MADE A PART OF FUTURE INVITATIONS FOR BIDS, WHICH APPEARS LIKELY IF NAVY'S RECOMMENDATION FOR CHANGES IN THE EXISTING FEDERAL AND MILITARY SPECIFICATIONS FOR FOOD MIXING MACHINES IS ADOPTED, IT IS WELL ESTABLISHED THAT THE GOVERNMENT DOES NOT VIOLATE EITHER THE LETTER OR THE SPIRIT OF THE COMPETITIVE BIDDING STATUTES MERELY BECAUSE ONLY ONE FIRM CAN SUPPLY ITS LEGITIMATE NEEDS. YOUR ASSERTION THAT THE SPECIFICATION CONTAINING THE UNIMPEDED BOWL-CHANGING FEATURE OF THE HOBART TALL-COLUMN MODEL, OR EQUAL, IS RESTRICTIVE, MAY BE TRUE TO THE EXTENT THAT IT PREVENTED YOU FROM SUBMITTING A RESPONSIVE BID WITHOUT CHANGING YOUR COMMERCIAL OR STANDARD EQUIPMENT TO INCORPORATE THAT FEATURE. IN THIS SENSE, OF COURSE, ALL SPECIFICATIONS ARE RESTRICTIVE SINCE THE REQUIREMENTS THEY NECESSARILY ESTABLISH PRECLUDE THE PURCHASE OF NON-CONFORMING ITEMS. HOWEVER, 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, NORDO THE PROCUREMENT REGULATIONS SEEM TO CONTEMPLATE THE USE OF INADEQUATE FEDERAL AND MILITARY SPECIFICATIONS BUT INSTEAD PROVIDE FOR DEVIATIONS THEREFROM TOGETHER WITH THE TAKING OF ACTION TO HAVE SUCH SPECIFICATIONS AMENDED OR REVISED TO REFLECT THAT WHICH IS DETERMINED TO CURRENTLY REPRESENT THE GOVERNMENT'S MINIMUM NEEDS.'

WE ARE IN AGREEMENT WITH YOUR VIEW THAT IF FURTHER PROCUREMENTS ARE TO BE MADE OF THE SAME EQUIPMENT A BETTER SPECIFICATION SHOULD BE DRAFTED. THIS CONNECTION, WE HAVE BEEN ADVISED INFORMALLY THAT THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, IS REQUESTING THE NAVY SUPPLY SYSTEMS COMMAND (THE PREPARING ACTIVITY FOR SPECIFICATION MIL-2-21867 ON COUNTERBALANCED TRUCKS USED IN THE SUBJECT IFB) TO DEVELOP A COORDINATED MILITARY SPECIFICATION FOR THE STRADDLE TYPE TRUCK. IT IS SUGGESTED THAT YOU COMMUNICATE WITH THE LATTER AGENCY.

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