B-140221, SEP. 11, 1959

B-140221: Sep 11, 1959

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TO SHERER-GILLETT COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JULY 14. IT IS YOUR CONTENTION. THAT YOUR AGGREGATE BID WAS $1. THAT UNDER ITEM NO. 8 YOUR BID WAS APPROXIMATELY $1. OR TYPE OF MATERIAL STIPULATED IN THE INVITATION YOU FEEL THAT IT IS EQUAL OR SUPERIOR TO THE EQUIPMENT CALLED FOR UNDER THE INVITATION. FROM REVIEW OF THE RECORD AND FILES OF THE AIR FORCE WE FIND THAT NO AWARD WAS MADE FOR ITEMS NOS. 7 AND 11. THAT YOU WERE AWARDED A CONTRACT FOR ITEMS NOS. 9 AND 12. INCORPORATED WAS LOW BIDDER ON ITEMS NOS. 1C. RECEIVED AN AWARD FOR SUCH EQUIPMENT TO WHICH NO OBJECTION IS RAISED. CONSIDERATION WILL BE GIVEN ONLY TO THE BALANCE OF OTHER ITEMS CALLED FOR UNDER THE INVITATION.

B-140221, SEP. 11, 1959

TO SHERER-GILLETT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 14, 1959, AND ENCLOSURE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. 20-602-59-97, BY THE BASE PROCUREMENT OFFICE, SELFRIDGE AIR FORCE BASE, FOR A QUANTITY OF COMMISSARY STORES EQUIPMENT. IT IS YOUR CONTENTION, IN SUBSTANCE, THAT YOUR AGGREGATE BID WAS $1,857.36 LESS THAN THE TOTAL AMOUNTS OF THE ACTUAL AWARDS MADE; THAT UNDER ITEM NO. 8 YOUR BID WAS APPROXIMATELY $1,600 UNDER THE COMPETITIVE AWARD SINCE YOU DID NOT INCLUDE IN YOUR NET QUOTATION ANY INSTALLATION CHARGES; AND, THAT WHILE THE EQUIPMENT YOU OFFERED UNDER CERTAIN OTHER ITEMS FAILED TO COMPLY STRICTLY WITH THE SPECIFICATIONS AS TO CAPACITY, FINISH, OR TYPE OF MATERIAL STIPULATED IN THE INVITATION YOU FEEL THAT IT IS EQUAL OR SUPERIOR TO THE EQUIPMENT CALLED FOR UNDER THE INVITATION.

FROM REVIEW OF THE RECORD AND FILES OF THE AIR FORCE WE FIND THAT NO AWARD WAS MADE FOR ITEMS NOS. 7 AND 11; THAT YOU WERE AWARDED A CONTRACT FOR ITEMS NOS. 9 AND 12; AND THAT STAFFORD-SMITH, INCORPORATED WAS LOW BIDDER ON ITEMS NOS. 1C, ID, 3, 4, AND 10, AND RECEIVED AN AWARD FOR SUCH EQUIPMENT TO WHICH NO OBJECTION IS RAISED. THEREFORE, CONSIDERATION WILL BE GIVEN ONLY TO THE BALANCE OF OTHER ITEMS CALLED FOR UNDER THE INVITATION.

ITEM NO. 1 COVERING SHELVING UNITS AND ACCESSORIES SPECIFIED AN ALL STEEL CONSTRUCTION WITH NOT LESS THAN 22 GUAGE STEEL BACK PANELS, WHEREAS YOU OFFERED TO FURNISH SHELVING WITH BACK PANELS OF MASONITE. IT IS THE OPINION OF THE PROCUREMENT AGENCY THAT SUCH MATERIAL IS LESS DESIRABLE THAN STEEL SINCE IT HAS A TENDENCY TO ABSORB LIQUIDS, BLEACHES, AND ODORS, AND IS LESS DURABLE THAN STEEL.

ITEMS 2 THROUGH 6, COVERING DISPLAY CASES, CALLED FOR STAINLESS STEEL BUMPER RAILS ALONG THE FRONT OF THE CASES WHEREAS YOU OFFERED TO FURNISH CASES EQUIPPED WITH ALUMINUM RAILS. IN THE OPINION OF THE CONTRACTING OFFICIALS SUCH MATERIAL IS INFERIOR IN THAT IT IS SOFTER, DENTS EASIER, AND DOES NOT AFFORD ADEQUATE PROTECTION TO THE CASES. FURTHERMORE, WHILE ITEM 5 SPECIFIED A FRESH MEAT DISPLAY CASE WITH A MINIMUM CAPACITY OF 55 CUBIC FEET, THE UNIT YOU OFFERED CONTAINED ONLY 47.2 CUBIC FEET.

IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE DIFFERENCES RELATED ABOVE EFFECT THE QUALITY AND PRICE OF THE EQUIPMENT TO THE EXTENT THAT THE DEVIATIONS FROM THE INVITATION REQUIREMENTS ARE MATERIAL AND MAY NOT BE WAIVED AS INFORMALITIES OR MINOR IRREGULARITIES. BASED UPON THE EVIDENCE OF RECORD WE ARE IN ACCORD WITH THOSE CONCLUSIONS.

WITH RESPECT TO ITEM NO. 8, THE REPORT STATES THAT WHILE YOUR QUOTATION THEREON WAS MATERIALLY LOWER THAN THAT OF STAFFORD-SMITH, INCORPORATED, IT WAS DETERMINED, AFTER OPENING OF THE BIDS, THAT YOUR OFFER DID NOT INCLUDE INSTALLATION CHARGES, SINCE AS YOU INFORMED THE CONTRACTING OFFICE, SUCH CHARGES WERE ALLOCATED TO THE VARIOUS CASES. WITH KNOWLEDGE THAT THE UNDISCLOSED COST TO INSTALL THE CONDENSERS WAS NOT INCLUDED IN YOUR QUOTATION, THE CONTRACTING OFFICER PROPERLY CONCLUDED THAT AWARD FOR ITEM NO. 8 COULD NOT BE MADE TO YOU ON THE BASIS OF YOUR BID.

THE DRAFTING OF SPECIFICATIONS FOR ITEMS TO BE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES AND THEIR DETERMINATIONS OF THEIR NEEDS WILL NOT ORDINARILY BE QUESTIONED UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE. IT HAS LONG BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT THE UNITED STATES IS NOT REQUIRED TO PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT THE LOWEST PRICE WHEN, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, THE ACTUAL NEEDS OF THE GOVERNMENT ARE NOT SERVED. AS TO THIS PROCUREMENT WE FEEL THAT THE REQUIREMENTS OF THE ADMINISTRATIVE OFFICE CONSTITUTE A BONA FIDE DETERMINATION ADEQUATELY SUPPORTED BY THE RECORD WITHOUT ANY EVIDENCE OF FAVORITISM, BAD FAITH, OR PERSONAL PREFERENCE. SUCH EXERCISE OF THE DISCRETION VESTED IN THE PROCUREMENT OFFICIALS OF THE GOVERNMENT, IN THE ABSENCE OF BAD FAITH, IS NOT SUBJECT TO JUDICIAL REVIEW.

IN THE CIRCUMSTANCES IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ACTION TAKEN. FOR YOUR INFORMATION, IT MAY ALSO BE NOTED THAT THE COST OF COMMISSARY STORES EQUIPMENT IS REIMBURSED TO THE TREASURY FROM REVENUES OF THE STORES AND IS THEREFORE NOT ULTIMATELY BORNE BY THE TAXPAYERS.