B-140752, NOV. 17, 1959

B-140752: Nov 17, 1959

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INC: REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 14. THE GENERAL SERVICES ADMINISTRATION REPORTS THAT THE STYLES AND DESIGN OF THE FURNITURE BY THE INVITATION WERE SELECTED AND AGREED UPON IN COLLABORATION WITH REPRESENTATIVES OF THE PRINCIPAL USING FEDERAL AGENCIES AS MEETING THE MINIMUM REQUIREMENTS OF THE GOVERNMENT. IT IS REPORTED THAT INITIALLY THE STYLE AND DESIGN SELECTED WERE THOSE MANUFACTURED BY MOLLA. THE REASON FOR THIS INITIAL SELECTION WAS THAT MUCH OF THIS TYPE OF FURNITURE THEN IN USE HAD BEEN OBTAINED FROM MOLLA. IT IS REPORTED THAT INVITATIONS FOR BIDS ON THIS BASIS HAVE OBTAINED COMPETITION AND PRICES OFFERED HAVE BEEN CONSIDERED TO BE FAIR AND REASONABLE. " IT IS. NECESSARY UNDER COMPETITIVE BIDDING TO PROVIDE A COMMON BASIS OF REQUIREMENT IN ORDER TO HAVE A MEDIUM FOR DETERMINING A PROPER AWARD.

B-140752, NOV. 17, 1959

TO GALLO ORIGINAL IRON WORKS, INC:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 14, 1959, FROM YOUR ATTORNEYS, TRANSMITTING YOUR LETTER OF SEPTEMBER 11, 1959, PROTESTING AGAINST ANY AWARD UNDER INVITATION FOR BIDS ISSUED ON JULY 29, 1959, BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, FOR FURNISHING HOUSEHOLD FURNITURE (FSC GROUP 71) FOR THE PERIOD DECEMBER 15, 1959, THROUGH DECEMBER 14, 1960, FOR VARIOUS AGENCIES OF THE FEDERAL GOVERNMENT, INCLUDING THE DISTRICT OF COLUMBIA.

YOUR LETTER RAISES TWO BASIC OBJECTIONS TO THE INVITATION FOR BIDS. YOU STATE THAT THE INVITATION DOES NOT ENABLE THE GOVERNMENT TO GET THE BEST STYLES AND VALUES FOR THE VARIOUS INSTALLATIONS AND ALSO, THAT IT ENCOURAGES THE PIRACY OF STYLE BY ONE MANUFACTURER FROM ANOTHER MANUFACTURER.

WITH REGARD TO YOUR FIRST OBJECTION, THE GENERAL SERVICES ADMINISTRATION REPORTS THAT THE STYLES AND DESIGN OF THE FURNITURE BY THE INVITATION WERE SELECTED AND AGREED UPON IN COLLABORATION WITH REPRESENTATIVES OF THE PRINCIPAL USING FEDERAL AGENCIES AS MEETING THE MINIMUM REQUIREMENTS OF THE GOVERNMENT. IT IS REPORTED THAT INITIALLY THE STYLE AND DESIGN SELECTED WERE THOSE MANUFACTURED BY MOLLA, INC. THE REASON FOR THIS INITIAL SELECTION WAS THAT MUCH OF THIS TYPE OF FURNITURE THEN IN USE HAD BEEN OBTAINED FROM MOLLA, INC. ALSO, IT IS REPORTED THAT INVITATIONS FOR BIDS ON THIS BASIS HAVE OBTAINED COMPETITION AND PRICES OFFERED HAVE BEEN CONSIDERED TO BE FAIR AND REASONABLE.

WITH REGARD TO YOUR SECOND OBJECTION THAT IT ENCOURAGES "PIRACY OF STYLE," IT IS, OF COURSE, NECESSARY UNDER COMPETITIVE BIDDING TO PROVIDE A COMMON BASIS OF REQUIREMENT IN ORDER TO HAVE A MEDIUM FOR DETERMINING A PROPER AWARD. PARAGRAPH 6 OF THE SPECIAL PROVISIONS OF THE INVITATION STATES THAT "* * * BIDS WILL BE CONSIDERED ON ITEMS OF SUBSTANTIALLY THE SAME DESIGNS * * *" AND THAT "* * * DESIGNS MAY BE VARIED, * * *.' IT IS REPORTED THAT THE FACT THAT AWARDS HAVE BEEN MADE TO OTHER BIDDERS WHEN MOLLA, INC., IS NOT ONLY INDICATIVE OF THE FACT THAT THERE WAS NO OBJECTION FROM THAT COMPANY AGAINST THE USE OF THEIR FURNITURE DESIGN FOR COMPETITIVE BIDDING PURPOSES, BUT ALSO THAT BIDDERS OTHER THAN THE ONE MANUFACTURING THE FURNITURE FROM WHICH THE DESIGNS WERE SELECTED COULD OFFER COMPETITIVE BIDS.

IT IS SUGGESTED IN YOUR LETTER THAT AN INVITATION FOR THE INVOLVED FURNITURE COULD BE BETTER PREPARED SO THAT THE GOVERNMENT WOULD OBTAIN BETTER STYLES AND VALUE. TO THIS END YOU SUGGEST THAT THE GOVERNMENT CREATE ITS OWN PARTICULAR DESIGN OF FURNITURE WITHOUT REGARD TO ANY COMMERCIAL PRODUCTION AND INVITE BIDS THEREON ON A COMPETITIVE BASIS. YOU SUGGEST, ALSO, THAT ONE OR MORE GROUPS FROM ALL MANUFACTURERS OF WROUGHT IRON FURNITURE BE SELECTED, APPARENTLY WITHOUT REGARD TO SPECIFICATION OR RECEIPT OF AWARDS.

AS TO YOUR FIRST SUGGESTION, THE ADMINISTRATIVE OFFICE REPORTS THAT IT IS THE POLICY OF THE GOVERNMENT TO BUY COMMERCIALLY DESIGNED FURNITURE CONSTRUCTED UNDER THE PROVISIONS OF GOVERNMENT-PREPARED NONRESTRICTIVE SPECIFICATIONS. SINCE THERE ARE NO RESTRICTIVE CHARACTERISTICS AS TO EITHER STYLE, DESIGN OR SPECIFICATION, THERE IS NO REASON OTHER THAN CHOICE ON THE PART OF WROUGHT IRON FURNITURE SUPPLIERS WHICH WOULD TEND TO CURB COMPETITION.

AS TO YOUR SECOND SUGGESTION, THIS TYPE OF BUYING IS GENERALLY REFERRED TO AS THAT OF MULTIPLE AWARDS. UNDER THIS PROCEDURE AWARDS MAY BE MADE TO ALL BIDDERS OFFERING COMMERCIAL PRODUCTION AT REASONABLE PRICES OR AWARDS LIMITED TO THOSE SUPPLIERS OFFERING MATERIAL MEETING SPECIFICATION REQUIREMENTS AND ALSO OFFERING REASONABLE PRICES. THE FIRST BASIS IS USUALLY EMPLOYED WHEN THERE IS NO SPECIFICATION AVAILABLE AND COMMERCIAL PRODUCTION IS OF A STANDARD QUALITY WITHIN AN INDUSTRY. THE SECOND BASIS IS EMPLOYED WHEN A SPECIFICATION IS AVAILABLE BUT WHERE MULTIPLE PRODUCTION IS NECESSARY TO MEET REQUIREMENTS OR WHERE SELECTIVITY IS REQUIRED TO MEET SPECIAL NEEDS. IT IS REPORTED THAT IN THIS CASE NEITHER OF THE ABOVE CONDITIONS EXISTS.

WHILE YOUR LETTER SUGGESTED THAT BIDS BE NOT OPENED AS SCHEDULED, THE TRANSMITTAL LETTER OF SEPTEMBER 14, 1959, WAS NOT RECEIVED IN TIME TO NOTIFY BIDDERS OF A POSTPONED DATE OF OPENING. IT IS REPORTED, HOWEVER, THAT IT WAS DETERMINED THAT THE PRICES RECEIVED WERE EXCESSIVE AND INEQUITABLE, AND THAT THE INVITATION DID NOT PROPERLY WEIGHT ITEMS FOR AGGREGATE AWARD. THEREFORE, ALL BIDS WERE REJECTED AND BIDDERS WERE ADVISED THAT THE REQUIREMENTS WOULD BE READVERTISED WITH REVISED PROVISIONS AND SPECIFICATIONS. ALSO, THE ADMINISTRATIVE OFFICE STATES THAT THE REVISED INVITATION FOR BIDS WILL EMPHASIZE THE FACT THAT LINE DRAWINGS INCLUDED IN THE INVITATION ARE INTENDED AS INDICATIONS OF THE GOVERNMENT'S GENERAL REQUIREMENTS BUT THAT BIDS OFFERING FURNITURE VARYING FROM THE DESIGNS DEPICTED, WITHOUT IMPAIRING OR LIMITING THE USEFULNESS OR FINISH OF THE ITEMS, WILL BE CONSIDERED. THE SPECIFICATIONS WILL BE REVISED TO ESTABLISH MINIMUM DIMENSIONS IN LIEU OF DEFINITE DIMENSIONS WITH PLUS OR MINUS TOLERANCES. THE ITEMS AND SUBITEMS WILL BE WEIGHTED IN ORDER THAT PRICES OFFERED ON MAJOR ITEMS AND SUB-ITEMS WILL BE EVALUATED IN ACCORDANCE WITH THEIR ESTIMATED USE.

ALTHOUGH THE PROPOSED READVERTISEMENT AND CONTEMPLATED INVITATION FOR BIDS DO NOT FOLLOW IN DETAIL YOUR SUGGESTED CORRECTIONS, NEVERTHELESS IT DOES APPEAR THAT THE GOVERNMENT WILL BE ABLE TO PROCURE THE NECESSARY FURNITURE WITH ADEQUATE STYLING AND ON A REAL COMPETITIVE BASIS. ACCORDINGLY, WE WOULD NOT BE WARRANTED IN RAISING ANY OBJECTION TO THE PROCEDURE NOW ADOPTED.