B-135379, APR. 10, 1958

B-135379: Apr 10, 1958

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TO THE CINCINNATI GALVANIZING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26. AFTER TELEGRAPHIC REQUESTS FOR BIDS IN RESPONSE TO WHICH YOU SUBMITTED SAMPLES AND PRICES ON ROUND METAL BASKETS WHICH WERE $2. 296.80 LESS THAN THE PRICE AT WHICH THE SQUARE BASKETS WERE PURCHASED. THAT YOU HAVE BEEN FURNISHING ROUND METAL BASKETS TO THE FEDERAL SUPPLY SERVICE WHICH YOU FEEL MEET THE NEEDS OF THE SERVICE. YOU STATE FURTHER THAT YOU ARE IN RECEIPT OF A TELEGRAM FROM THE SAN FRANCISCO REGIONAL OFFICE. YOUR PROTEST IS DIRECTED TO THE FORT WORTH PROCUREMENT WHICH YOU CONTEND COULD HAVE BEEN MADE AT A SAVING OF $2. IT IS STATED THAT BOTH SQUARE AND ROUND METAL WASTE BASKETS ARE CARRIED IN FEDERAL SUPPLY SERVICE STORES STOCK.

B-135379, APR. 10, 1958

TO THE CINCINNATI GALVANIZING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1958, WITH ENCLOSURE, PROTESTING THE PROCUREMENT BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, OF A QUANTITY OF SQUARE METAL WASTE BASKETS.

IN REGISTERING YOUR PROTEST YOU STATE THAT THE FORT WORTH REGIONAL OFFICE, FEDERAL SUPPLY SERVICE, PLACED A CONTRACT FOR 3,480 SQUARE METAL BASKETS, AFTER TELEGRAPHIC REQUESTS FOR BIDS IN RESPONSE TO WHICH YOU SUBMITTED SAMPLES AND PRICES ON ROUND METAL BASKETS WHICH WERE $2,296.80 LESS THAN THE PRICE AT WHICH THE SQUARE BASKETS WERE PURCHASED; AND THAT YOU HAVE BEEN FURNISHING ROUND METAL BASKETS TO THE FEDERAL SUPPLY SERVICE WHICH YOU FEEL MEET THE NEEDS OF THE SERVICE. YOU STATE FURTHER THAT YOU ARE IN RECEIPT OF A TELEGRAM FROM THE SAN FRANCISCO REGIONAL OFFICE, FEDERAL SUPPLY SERVICE, REQUESTING BIDS ON A QUANTITY OF SQUARE METAL WASTE BASKETS. BASICALLY, YOUR PROTEST IS DIRECTED TO THE FORT WORTH PROCUREMENT WHICH YOU CONTEND COULD HAVE BEEN MADE AT A SAVING OF $2,296.80 HAD ROUND BASKETS BEEN PURCHASED.

IN A REPORT FURNISHED US BY THE COMMISSIONER, FEDERAL SUPPLY SERVICE, IT IS STATED THAT BOTH SQUARE AND ROUND METAL WASTE BASKETS ARE CARRIED IN FEDERAL SUPPLY SERVICE STORES STOCK, THE CATALOG PRICES BEING $2.06 AND ?92 EACH, RESPECTIVELY. THE SQUARE BASKETS ARE PURCHASED FROM THE FEDERAL PRISON INDUSTRIES, INCORPORATED (FPI), AND THE ROUND BASKETS IN THE OPEN MARKET.

IT IS REPORTED THAT WHEN FPI RECENTLY BECAME UNABLE TO MEET THE NEEDS OF THE FEDERAL SUPPLY SERVICE FOR SQUARE BASKETS IT GRANTED A CLEARANCE WHICH HAS BEEN USED BY SEVERAL REGIONAL OFFICES INCLUDING THE FORT WORTH REGIONAL OFFICE IN MAKING OPEN MARKET PROCUREMENTS. YOUR BID ON THE FORT WORTH PROCUREMENT WAS REJECTED AS BEING NONRESPONSIVE BECAUSE YOU FURNISHED A SAMPLE OF AND QUOTED A PRICE ON A ROUND BASKET. IN THE CIRCUMSTANCES, WE FEEL THAT THE REJECTION OF YOUR BID WAS CORRECT AND PROPER.

THE NEEDS OF THE GOVERNMENT AND THE DRAFTING OF SPECIFICATIONS SETTING FORTH THOSE NEEDS ARE NECESSARILY FOR DETERMINATION IN THE FIRST INSTANCE BY THE ADMINISTRATIVE PURCHASING AGENCIES. IT IS NOT WITHIN THE PROVINCE OF OUR OFFICE TO DECIDE WHAT THE NEEDS OF A PARTICULAR AGENCY MAY BE OR TO DRAFT THE APPLICABLE SPECIFICATIONS FOR THOSE NEEDS.

THE FEDERAL SUPPLY SERVICE IS CHARGED BY LAW WITH THE DETERMINATION OF SUPPLY REQUIREMENTS; THE DEVELOPMENT FOR THE FEDERAL SERVICE OF STANDARD PURCHASE SPECIFICATIONS FOR ITEMS OF COMMON USE; THE STANDARDIZATION OF COMMODITIES PURCHASED; AND THE CATALOGING OF ITEMS OF SUPPLY PROCURED BY THE GENERAL SERVICES ADMINISTRATION FOR THE USE OF THE EXECUTIVE AGENCIES GENERALLY. PURSUANT TO SUCH AUTHORITY, IT HAS ISSUED FEDERAL STANDARD NO. 32B, DATED FEBRUARY 10, 1958, WHICH LIMITS GOVERNMENT PROCUREMENT OF WASTE BASKETS TO THE ITEMS LISTED THEREIN. BOTH ROUND AND SQUARE BASKETS ARE LISTED FOR OFFICE USE, AND WE ARE ADVISED THAT, AS BETWEEN THE TWO, THE SQUARE BASKETS ARE OF A HEAVIER, MORE SOLID CONSTRUCTION AND ARE PREFERRED BY MANY GOVERNMENT AGENCIES BECAUSE OF THEIR DURABLE QUALITIES. IN THIS REGARD, WE HAVE HELD THAT 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. 36 COMP. GEN. 251, 252.

THERE IS NOTHING IN THE RECORD TO INDICATE ANY ABUSE OF DISCRETION ON THE PART OF THE FEDERAL SUPPLY SERVICE IN THE PRESENT MATTER OR THAT THEY WERE MOTIVATED BY ANY DESIRE OTHER THAN TO OBTAIN FOR THE GOVERNMENT SUPPLIES WHICH WILL BEST SUIT ITS NEEDS, ALL FACTS CONSIDERED. WHETHER THE SELECTION OF ONE TYPE OF BASKET OVER ANOTHER WILL BEST SERVE THE GOVERNMENT'S INTEREST IS NOT A MATTER FOR OUR DETERMINATION, BUT WITH RESPECT TO THE LEGALITY OF SUCH ACTION THERE CAN BE NO DOUBT. IN THIS CONNECTION, THE COMMISSIONER, FEDERAL SUPPLY SERVICE, STATES THAT THE FEDERAL STANDARD IS BEING RECONSIDERED AND THEIR STORES STOCK ITEMS ON WASTE BASKETS WILL BE REVISED TO REFLECT ANY CHANGE WHICH MAY BE MADE. IS EMPHASIZED, HOWEVER, THAT DELETION OF THE SQUARE BASKET FROM THE STANDARD WOULD MAKE OBSOLETE THE MANUFACTURING EQUIPMENT OF FPI AND NECESSITATE PROCUREMENT OF NEW EQUIPMENT TO MANUFACTURE THE ROUND BASKETS HERETOFORE NOT MANUFACTURED BY THAT AGENCY.

WE ARE NOT ADVISED AS TO WHETHER THE AGENCIES WHOSE ORDERS FOR THE SQUARE BASKETS BROUGHT ABOUT THE EMERGENCY PROCUREMENT IN QUESTION WERE ADVISED OF THE EXHAUSTION OF THE STORE STOCK, OR WHETHER ANY SUGGESTION WAS MADE TO THEM BY THE REGIONAL SUPPLY OFFICES THAT THEY CONSIDER THE USE OF THE ROUND BASKETS. IT IS REPORTED, HOWEVER, THAT THE PROCUREMENT INITIATED BY THE SAN FRANCISCO OFFICE HAS BEEN CANCELED.

IN THE LIGHT OF THE FOREGOING, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ..END :