B-133898, NOVEMBER 13, 1957, 37 COMP. GEN. 323

B-133898, NOVEMBER 13, 1957, 37 COMP. GEN. 323

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - MACHINE MODIFICATION A PROCUREMENT SPECIFICATION FOR COTTON TWINE FOR MAIL TYING MACHINES WHICH CANNOT BE EFFICIENTLY USED WITH JUTE TWINE WITH MODIFICATION IS NOT RESTRICTIVE OF COMPETITION.

TO LUDLOW MANUFACTURING AND SALES CO., NOVEMBER 13, 1957:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 23, 1957, ENCLOSING A COPY OF YOUR LETTER OF THE SAME DATE TO THE BUREAU OF FACILITIES, POST OFFICE DEPARTMENT, PROTESTING INVITATION FOR BIDS NO. 339, ISSUED SEPTEMBER 20, 1957, FOR THE PROCUREMENT OF COTTON TWINE TO BE USED WITH POST OFFICE MACHINES WHICH BUNDLE MAIL. YOU REQUESTED OUR OFFICE TO RULE THAT THE POST OFFICE DEPARTMENT MUST OPEN THE INVITATION TO JUTE TWINE SINCE IT MEETS ALL OF THE REQUIREMENTS OF THE DEPARTMENT FOR TYING OF MAIL BY APPROXIMATELY 3,100 MACHINES NOW IN OPERATION AT VARIOUS POSTS OFFICES IN THE UNITED STATES.

IN A LETTER DATED OCTOBER 14, 1957, FROM THE POST OFFICE DEPARTMENT, THE OPINION IS EXPRESSED THAT THE DEPARTMENT'S ACTION IN RESTRICTING INVITATION NO. 339 TO TWINE MADE OF COTTON WAS A REASONABLE EXERCISE OF DISCRETION AND WAS LEGALLY PERMISSIBLE. IT IS STATED THAT, IF THE DEPARTMENT DISREGARDED THE FACT THAT JUTE TWINE PRODUCES QUANTITIES OF DUST AND DIRT ON POST OFFICE FLOORS, AND ALSO ON THE MACHINES, LUDLOW 3 PLY LUBRICATED JUTE TWINE NOW HAS THE PHYSICAL QUALITIES WHICH MAKE IT SATISFACTORY FOR USE AS TWINE TO BUNDLE MAIL BY A MACHINE ADAPTED TO THE USE OF JUTE TWINE.

THE DEPARTMENT DISPUTES YOUR CONTENTION THAT THE COST OF MODIFYING THE MACHINES TO PERMIT THE USE OF JUTE TWINE AS WELL AS COTTON TWINE WOULD BE RELATIVELY SMALL AND THAT SUCH COST COULD BE RECOVERED WITHIN A SHORT TIME IF MANUFACTURERS OF JUTE TWINE WERE PERMITTED TO BID ON THE GOVERNMENT'S REQUIREMENTS FOR TWINE TO BE USED WITH THE POST OFFICE MACHINES.

THE DEPARTMENTAL REPORT SETS FORTH THAT JUTE TWINE HAS AN ABRASIVE EFFECT AND THAT AN EXPENDITURE OF ABOUT $15.76 PER MACHINE WOULD BE REQUIRED FOR A MODIFICATION WHICH WOULD PERMIT THE USE OF JUTE TWINE FOR AN INDEFINITE PERIOD OF TIME. THE ADDED COST OF NEW MACHINES SUITABLE FOR BOTH JUTE AND COTTON TWINE IS ESTIMATED AT $13.10 PER MACHINE. ALSO, IT IS ESTIMATED THAT AN EXPENDITURE OF ABOUT $4.16 PER MACHINE WOULD BE REQUIRED FOR A MINIMAL MODIFICATION WHICH WOULD BE EFFECTIVE FOR ABOUT TWO YEARS. ON THE BASIS OF PRICE COMPARISONS BETWEEN 10 PLY 8 COTTON TWINE AND YOUR LUBRICATED 3 PLY JUTE TWINE, IT APPEARS THAT THE DEPARTMENT ORIGINALLY ESTIMATED THAT AN ANNUAL SAVING OF APPROXIMATELY $4.41 PER MACHINE COULD BE EXPECTED BY PURCHASES OF JUTE TWINE INSTEAD OF COTTON TWINE FOR USE WITH THE MACHINES.

HOWEVER, IT IS REPORTED THAT THE TESTS WHICH SHOWED LUDLOW 3 PLY LUBRICATED JUTE TWINE COULD BE USED WITH THE MACHINES IF MODIFIED ALSO SHOWED THAT OTHER THAN 10 PLY 8 COTTON TWINE COULD BE USED, AND IT WAS FOUND THAT THE COST OF ONE OF THESE OTHER YARNS, BEMIS' 5 PLY 4.5, WAS LOWER PER FOOT THAN THE COST OF LUDLOW 3 PLY LUBRICATED JUTE TWINE. IT IS ALSO REPORTED THAT THE PRICE OF COTTON HAS DECLINED WHILE THERE ARE INDICATIONS THAT THE PRICE OF JUTE MAY HAVE TO RISE.

ALTHOUGH OTHER FACTORS HAVE BEEN CONSIDERED BY THE DEPARTMENT AS JUSTIFICATION FOR ITS DECISION TO POSTPONE CONSIDERATION OF MODIFYING THE MACHINES, IT IS APPARENT THAT AT THE TIME OF ISSUING INVITATION FOR BIDS NO. 339 THE DEPARTMENT HAD NO REASON TO BELIEVE THAT ANY SUBSTANTIAL PART OF THE COST OF SUCH MODIFICATION COULD BE RECOVERED IF MANUFACTURERS OF JUTE TWINE WERE PERMITTED TO SUBMIT BIDS.

THE DEPARTMENTAL REPORT HAS BEEN EXAMINED BY YOUR ATTORNEYS AND THEY HAVE TAKEN EXCEPTION TO MOST OF THE CONCLUSIONS REACHED IN SUCH REPORT. IT WAS AT FIRST ALLEGED THAT THE POST OFFICE DEPARTMENT WAS NEVER FURNISHED A PRICE ON YOUR 3 PLY LUBRICATED JUTE TWINE BUT IT WAS LATER ADMITTED THAT A QUANTITY OF SUCH TWINE HAD BEEN PURCHASED BY THE DEPARTMENT. IT WAS ALLEGED THAT COTTON TWINE IS NOT PRODUCED FROM BALED COTTON BUT IS MADE FROM WASTE COTTON, CARD STRIPS AND COMBING NOILS. THAT ALLEGATION IS NOT SUBSTANTIATED AND WE UNDERSTAND THAT INDUSTRIAL CORDAGES AND TWINES ARE MADE ALMOST EXCLUSIVELY FROM COTTON YARNS AND COTTON LINT. SEE PAGES 73 AND 74 OF " OPINION AND PRACTICES AMONG MANUFACTURERS OF CORDAGE AND TWINE" PUBLISHED IN JUNE 1953 BY THE BUREAU OF ECONOMICS, DEPARTMENT OF AGRICULTURE. IT WAS FURTHER ALLEGED THAT JUTE TWINE DOES NOT PRODUCE EXCESSIVE QUANTITIES OF DIRT AND DUST, BUT WE UNDERSTAND FROM THIS SAME SOURCE THAT JUTE TWINE HAS NOT BEEN CONSIDERED CLEAN AND WE ARE OF THE OPINION THAT SUCH OBJECTION WOULD BE AT LEAST OF SOME CONCERN TO THE POST OFFICE DEPARTMENT IN DETERMINING ITS SUITABILITY FOR USE WITH THE TYING MACHINES.

AS STATED IN THE DEPARTMENTAL REPORT, THE POST OFFICE DEPARTMENT DID NOT DELIBERATELY ACQUIRE MACHINES WHICH WERE SO DESIGNED AS TO PRECLUDE CERTAIN MANUFACTURERS FROM BIDDING. AT THE TIME THEY WERE ACQUIRED, COTTON TWINE ONLY COULD BE USED WITH THE TYING MACHINES. IN OUR OPINION SUFFICIENT REASONS HAVE BEEN ADVANCED BY THE DEPARTMENT FOR CONTINUING TO USE THE MACHINES WITHOUT MODIFYING THEM SO THAT JUTE TWINE CAN BE USED.

IN ANY EVENT WE CAN PERCEIVE OF NO LEGAL BASIS TO SUPPORT YOUR CONTENTION THAT THE INVITATION OR SPECIFICATIONS HERE INVOLVED DO VIOLENCE TO SECTION 3709, REVISED STATUTES, 41 U.S.C. 5. WE HAVE CONSISTENTLY HELD THAT THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF THIS OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER'S PRODUCT DOES NOT MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 638; 33 ID. 586. WE HAVE, OF COURSE, HELD IN CERTAIN DECISIONS, SUCH AS CITED IN YOUR LETTER OF SEPTEMBER 23, TO THE POST OFFICE DEPARTMENT THAT SPECIFICATIONS REFLECTING THE PERSONAL PREFERENCE OF ADMINISTRATIVE OFFICIALS FOR A PARTICULAR PRODUCT, WITHOUT REGARD TO THE AGENCY'S ACTUAL NEEDS, ARE RESTRICTIVE. BUT THOSE DECISIONS ARE NOT RELEVANT TO THE INSTANT MATTER. THE PLAIN FACT HERE IS THAT THE EXISTING MACHINES OF THE DEPARTMENT CANNOT BE EFFICIENTLY UTILIZED WITH THE JUTE TWINE WITHOUT MODIFYING THEM FOR SUCH USE. SUCH BEING THE CASE, WE THINK THE SPECIFICATION OF COTTON TWINE FOR USE IN THE MACHINES IS NOT RESTRICTIVE OF COMPETITION. MOREOVER, AS EXPLAINED TO YOUR ATTORNEYS, IT IS NOT WITHIN THE AMBIT OF OUR JURISDICTION TO DIRECT A MODIFICATION OF GOVERNMENT-OWNED MACHINERY IN ORDER TO EFFECT POSSIBLE SAVINGS IN COSTS OF OPERATION. AT MOST WE COULD ONLY SUGGEST SUCH ACTION AND THEN ONLY IF WE FELT WE WERE JUSTIFIED IN DOING SO. YOUR PROBLEM WOULD, THEREFORE, SEEM TO BE ONE FOR SOLUTION THROUGH EFFORTS TO CONVINCE THE POST OFFICE DEPARTMENT THAT THE MACHINES HERE INVOLVED SHOULD BE MODIFIED.

ACCORDINGLY, YOU ARE ADVISED THAT WE WOULD NOT BE JUSTIFIED IN TAKING ANY EXCEPTION TO ANY AWARD PROPERLY MADE BY THE POST OFFICE DEPARTMENT UNDER ITS INVITATION FOR BIDS NO. 339.