B-132358, AUG. 22, 1957

B-132358: Aug 22, 1957

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER. BIDS WERE OPENED ON JUNE 26. TWO OF THE BIDS MET THE SPECIFICATION REQUIREMENTS FOR A HONEYCOMB CORE TABLE AND A CONTRACT FOR THE PROCUREMENT WAS AWARDED ON JUNE 28. YOUR BIDS OF $50.50 AND $41.50 PER UNIT WERE REJECTED SINCE YOU PROPOSED TO FURNISH HARD CORE TABLES CONTRARY TO THE SPECIFICATIONS. THE REPORT FURNISHED BY THE DEPARTMENT OF THE ARMY STATES THAT HONEYCOMB CORE TABLES WERE SPECIFIED BECAUSE THEY WERE REQUIRED TO HAVE "STRENGTH AND MASS WITHOUT WEIGHT FOR EASE IN FREQUENT MOVING MADE NECESSARY BY THE TEACHING METHODOLOGY" USED AT THE UNITED STATES ARMY COMMAND AND GENERAL STAFF COLLEGE FOR WHOSE USE THE TABLES WERE BEING PROCURED.

B-132358, AUG. 22, 1957

TO CRAMER'S SAFE AND OFFICE EQUIPMENT CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER, WITH ENCLOSURES, OF JUNE 27, 1957, PROTESTING AGAINST THE RESTRICTIVE NATURE OF THE SPECIFICATIONS CONTAINED IN INVITATION FOR BIDS NO. AV 14-021-57-118, ISSUED JUNE 14, 1957, BY THE PURCHASING AND CONTRACTING DIVISION, FORT LEAVENWORTH, KANSAS, FOR THE PROCUREMENT OF TABLES WITH HONEYCOMB CORES.

BIDS WERE OPENED ON JUNE 26, 1957. TWO OF THE BIDS MET THE SPECIFICATION REQUIREMENTS FOR A HONEYCOMB CORE TABLE AND A CONTRACT FOR THE PROCUREMENT WAS AWARDED ON JUNE 28, 1957, TO THE BOWLUS SCHOOL SUPPLY COMPANY OF PITTSBURGH, KANSAS, THE BIDDER SUBMITTING THE LOWEST RESPONSIVE BID, AT A PRICE OF $45.95 PER UNIT LESS PROMPT PAYMENT DISCOUNT.

YOUR BIDS OF $50.50 AND $41.50 PER UNIT WERE REJECTED SINCE YOU PROPOSED TO FURNISH HARD CORE TABLES CONTRARY TO THE SPECIFICATIONS.

THE REPORT FURNISHED BY THE DEPARTMENT OF THE ARMY STATES THAT HONEYCOMB CORE TABLES WERE SPECIFIED BECAUSE THEY WERE REQUIRED TO HAVE "STRENGTH AND MASS WITHOUT WEIGHT FOR EASE IN FREQUENT MOVING MADE NECESSARY BY THE TEACHING METHODOLOGY" USED AT THE UNITED STATES ARMY COMMAND AND GENERAL STAFF COLLEGE FOR WHOSE USE THE TABLES WERE BEING PROCURED.

IN YOUR TELEGRAM, YOU STATE,"THESE SPECIFICATIONS WERE SO RESTRICTIVE AS TO MAKER THAT ONLY ONE COULD MEET THE ENTIRE REQUIREMENTS, DIFFERENCE BEING IN THE CORE OF TOP.' THIS STATEMENT IS CONTRARY TO THE FACTS SINCE EACH OF THE TWO LOW BIDDERS OFFERED A TABLE IN STRICT CONFORMANCE WITH THE SPECIFICATIONS AND IN EACH CASE THE TABLES OFFERED WERE TO BE PRODUCED BY A DIFFERENT MANUFACTURER.

IN YOUR TELEGRAM, YOU ALSO STATE THAT YOU "PROPOSE TO FURNISH A FINER TABLE AT A SAVINGS OF $5,000.' THE ESTIMATED SAVINGS ARE APPARENTLY BASED ON THE DIFFERENCE BETWEEN THE TABLE YOU OFFERED AT $50.50 AS COMPARED TO THE PRICE OF $60 PER TABLE IN CONFORMANCE WITH THE SPECIFICATIONS OFFERED BY THE SECOND LOW BIDDER. SINCE THE LOW BID, WHICH WAS ACCEPTED, OFFERED A TABLE IN CONFORMANCE WITH THE SPECIFICATIONS AT $45.95, LESS PROMPT PAYMENT DISCOUNT, THE SAVINGS WHICH YOU ESTIMATE ARE INCORRECT. FURTHER, IT SHOULD BE NOTED THAT HAD HARD CORE TABLES BEEN ACCEPTABLE, EVEN YOUR LOW BID OF $41.50 WOULD NOT HAVE BEEN THE LOWEST RECEIVED.

IN REGARD TO YOUR CONTENTION THAT THE SPECIFICATIONS WERE RESTRICTIVE, WE STATED IN DECISION B-126456, JULY 13, 1956, IN RESPONSE TO A SIMILAR PROTEST:

"IT IS, OF COURSE, THE DUTY OF ALL OFFICERS CHARGED WITH THE RESPONSIBILITY OF PROCURING SUPPLIES AND SERVICES FOR THE UNITED STATES TO BE GUIDED IN THEIR ACTIONS BY THE BEST INTERESTS OF THE GOVERNMENT. HOWEVER, THE RESPONSIBILITY FOR MAKING FACTUAL DETERMINATIONS AS TO WHAT ARTICLES WILL BEST SERVE THE NEEDS OF THE GOVERNMENT IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION, WITH THE EXERCISE OF WHICH WE MAY NOT PROPERLY INTERFERE EXCEPT IN CASE OF CLEARLY ESTABLISHED AND OBVIOUS ABUSE. THE FACT THAT A PROSPECTIVE BIDDER MAY BE UNABLE TO MEET THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS, WHICH, IN FACT, HAVE BEEN DETERMINED TO REFLECT THE REQUIREMENTS OF THE GOVERNMENT, IS NOT SUFFICIENT TO WARRANT THE CONCLUSION THAT SUCH SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION. THE UNITED STATES IS NOT REQUIRED TO PURCHASE EQUIPMENT MERELY BECAUSE IT IS THE CHEAPEST OFFERED, 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 THEIR EQUIPMENT REGARDLESS OF WHETHER IT MEETS THE ESSENTIAL REQUIREMENTS DETERMINED TO BE NECESSARY TO MEET THE NEEDS OF THE GOVERNMENT.

"THE RECORD IN THE PRESENT CASE DOES NOT SHOW THAT THE REJECTION OF YOUR BID WAS MOTIVATED BY FAVORITISM OR PERSONAL PREFERENCE, OR THAT THE ADVERTISED SPECIFICATIONS DID NOT REPRESENT A BONA FIDE DETERMINATION OF THE GOVERNMENT'S REQUIREMENTS, ADOPTED AFTER A CAREFUL STUDY OF THE NEED TO BE MET, IN THE LIGHT OF PAST EXPERIENCE.'

WE ALSO HELD IN OUR DECISION PUBLISHED AT 36 COMP. GEN. 251, QUOTING FROM THE SYLLABUS:

"THE DRAFTING OF PROCUREMENT SPECIFICATIONS TO REFLECT THE MINIMUM REQUIREMENTS OF THE GOVERNMENT AND THE FACTUAL EVALUATION OF THE CONFORMABILITY OF EQUIPMENT OFFERED BY BIDDERS ARE PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY AND, IN THE ABSENCE OF EVIDENCE WHICH INDICATES THAT THE SPECIFICATIONS PRECLUDED ALL BUT THE SUCCESSFUL BIDDER FROM MEETING THE REQUIREMENTS, THE SPECIFICATIONS MAY NOT BE REGARDED AS RESTRICTIVE OF COMPETITION.'

SINCE THERE IS NO INDICATION THAT THE REJECTION OF YOUR BID WAS MOTIVATED BY FAVORITISM OR PERSONAL PREFERENCE OR THAT THE ADVERTISED SPECIFICATIONS DID NOT REFLECT THE NEEDS OF THE GOVERNMENT, WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THIS MATTER.