B-122462, JUN. 6, 1957

B-122462: Jun 6, 1957

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THE ONLY BID RECEIVED WAS FROM THE MIEHLE PRINTING PRESS AND MANUFACTURING COMPANY. THE MANUFACTURER OF THE PRESS ON WHICH THE INSTALLATION WAS TO BE MADE. THE HARRIS SEYBOLD COMPANY PROTESTED AGAINST THE INVITATION TO BID ON THE GROUND THAT THE SPECIFICATIONS WERE SO RESTRICTIVE AS TO PRECLUDE BIDDING BY ANY COMPANY OTHER THAN THE MANUFACTURER OF THE PRESS. AS A RESULT OF THE PROTEST OUR OFFICE ADVISED YOU THAT SINCE THE SPECIFICATIONS DESCRIBED EQUIPMENT WHICH IS MANUFACTURED ONLY BY MIEHLE PRINTING PRESS AND MANUFACTURING COMPANY. YOU WERE ADVISED THAT THE CONTRACT SHOULD HAVE BEEN NEGOTIATED WITH MIEHLE ON A BASIS THAT PROBABLY WOULD HAVE INSURED A FAIR AND REASONABLE PRICE TO THE GOVERNMENT.

B-122462, JUN. 6, 1957

TO HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER, GOVERNMENT PRINTING OFFICE:

YOUR LETTER OF MAY 22, 1957, REQUESTS A DECISION AS TO WHETHER, UNDER THE CIRCUMSTANCES OUTLINED IN YOUR LETTER, A PRINTING UNIT TO BE INSTALLED ON A MIEHLE 61 SINGLE-COLOR, SHEET-FED OFFSET PRESS SHOULD BE PROCURED THROUGH FORMAL ADVERTISING OR NEGOTIATION.

IN YOUR LETTER YOU STATE THAT ON DECEMBER 2, 1954, THE GOVERNMENT PRINTING OFFICE FORWARDED INVITATIONS TO BID TOGETHER WITH SPECIFICATIONS TO 12 PRESS MANUFACTURERS TO OBTAIN PRICES ON THE FURNISHING AND INSTALLATION OF ONE ADDITIONAL PRINTING UNIT FOR MIEHLE 61 OFFSET PRESS. THE SPECIFICATIONS PROVIDED THAT THE UNIT MUST BE IDENTICAL WITH THE UNITS IN SERVICE. THE ONLY BID RECEIVED WAS FROM THE MIEHLE PRINTING PRESS AND MANUFACTURING COMPANY, THE MANUFACTURER OF THE PRESS ON WHICH THE INSTALLATION WAS TO BE MADE. THE HARRIS SEYBOLD COMPANY PROTESTED AGAINST THE INVITATION TO BID ON THE GROUND THAT THE SPECIFICATIONS WERE SO RESTRICTIVE AS TO PRECLUDE BIDDING BY ANY COMPANY OTHER THAN THE MANUFACTURER OF THE PRESS. AS A RESULT OF THE PROTEST OUR OFFICE ADVISED YOU THAT SINCE THE SPECIFICATIONS DESCRIBED EQUIPMENT WHICH IS MANUFACTURED ONLY BY MIEHLE PRINTING PRESS AND MANUFACTURING COMPANY, IT COULD NOT REASONABLY BE EXPECTED THAT OTHER MANUFACTURERS WOULD BE IN A POSITION TO PRODUCE COMPETITIVELY EQUIPMENT WHICH COULD OPERATE WITH A MIEHLE PRESS. CONSEQUENTLY, YOU WERE ADVISED THAT THE CONTRACT SHOULD HAVE BEEN NEGOTIATED WITH MIEHLE ON A BASIS THAT PROBABLY WOULD HAVE INSURED A FAIR AND REASONABLE PRICE TO THE GOVERNMENT, RATHER THAN MAKE AN AWARD ON THE BASIS OF THE BID AS RECEIVED FROM THAT COMPANY.

YOU FURTHER STATE THAT YOU ARE NOW PREPARING TO PURCHASE AN EXTRA PRINTING UNIT TO BE INSTALLED ON A MIEHLE NO. 61 SINGLE-COLOR SHEET-FED OFFSET PRESS AND SINCE YOU KNOW THAT THE PRICE WHICH WAS PAID FOR THE EQUIPMENT TWO YEARS AGO WAS CONSIDERED REASONABLE AT THAT TIME YOU ARE IN A BETTER POSITION PRICE WISE TO ADVERTISE RATHER THAN NEGOTIATE. THIS WOULD MAKE YOUR NEED FOR THE ADDITIONAL UNIT KNOWN TO THE PRESS MANUFACTURING INDUSTRY IN THE EVENT IT WERE POSSIBLE FOR ONE OF MIEHLE'S COMPETITORS TO MANUFACTURE THE UNIT. SINCE, HOWEVER, YOU DESIRE TO AVOID A SITUATION SUCH AS THE ONE WHICH OCCURRED THE LAST TIME YOU ADVERTISED FOR BIDS YOU REQUEST A DECISION AS TO WHETHER THE PURCHASE SHOULD BE ADVERTISED OR NEGOTIATED WITH THE FIRM FROM WHICH YOU PURCHASED THE PRESS TO WHICH THE UNIT IS TO BE ATTACHED.

SECTION 3709, REVISED STATUTES, AS AMENDED, PROVIDES THAT ADVERTISING IN CONNECTION WITH PURCHASES AND CONTRACTS FOR SUPPLIES NEED NOT BE REQUIRED "WHEN ONLY ONE SOURCE OF SUPPLY IS AVAILABLE AND THE GOVERNMENT PURCHASING OR CONTRACTING OFFICER SHALL SO CERTIFY.' UNDER THE PROVISIONS OF THE ACT, IT IS THE CONTRACTING OFFICER'S RESPONSIBILITY TO DETERMINE WHETHER ONLY ONE SOURCE OF SUPPLY IS AVAILABLE AND HIS CERTIFICATE SHOULD BE ACCOMPANIED BY A SHOWING AS TO HOW IT WAS DETERMINED THAT A PARTICULAR MANUFACTURER IS THE ONLY CONCERN THAT CAN SUBMIT A BID. THE MOST PRACTICABLE WAY OF DETERMINING THIS IS BY ADVERTISING FOR BIDS ON SPECIFICATIONS SO DRAWN AS TO SET FORTH THE ACTUAL NEEDS OF THE UNITED STATES.

SINCE IT IS INDICATED IN YOUR LETTER THAT DOUBT EXISTS AS TO WHETHER THE MIEHLE PRINTING PRESS AND MANUFACTURING COMPANY IS THE ONLY CONCERN THAT CAN SUPPLY THE REQUIRED PRINTING UNIT, IT IS BELIEVED THAT THE CONTRACTING OFFICER IS NOT IN A POSITION TO JUSTIFY NEGOTIATION OF A CONTRACT WITH THAT CONCERN ON THE GROUND THAT IT IS THE ONLY SOURCE OF SUPPLY AVAILABLE. IT IS OUR VIEW, THEREFORE, THAT THE PROCUREMENT SHOULD BE ADVERTISED, RATHER THAN NEGOTIATED, IRRESPECTIVE OF WHETHER A SITUATION DEVELOPS AS OCCURRED THE LAST TIME YOU ADVERTISED FOR BIDS.

IF, AFTER ADVERTISING, IT IS ESTABLISHED THAT MIEHLE IS THE ONLY MANUFACTURER ABLE TO FURNISH THE EQUIPMENT, THERE WOULD BE NO LEGAL OBJECTION, SHOULD IT BE DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT, TO NEGOTIATING WITH THE COMPANY BEFORE ENTERING INTO A CONTRACT.