B-141034, DEC. 3, 1959

B-141034: Dec 3, 1959

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

INC.: REFERENCE IS MADE TO YOUR LETTER OF JULY 15. YOU CONTEND THAT THE SPECIFICATIONS MADE A PART OF THE INVITATION WERE RESTRICTIVE. THE RECORD BEFORE US DISCLOSES THAT UPON EVALUATION OF THE BIDS SUBMITTED IN RESPONSE TO THE INVITATION IT WAS DETERMINED BY THE PROCURING AGENCY THAT THE EQUIPMENT YOU PROPOSED TO FURNISH UNDER ITEM NO. 1 WAS DEFICIENT IN THAT THE PRESS SPEED WAS 2. THE DIMENSION OF THE FEED PILE WAS 16 1/2 INCHES RATHER THAN 36 NCHES. THE DELIVERY PILE WAS 16 1/2 INCHES RATHER THAN 20 INCHES. WITH RESPECT TO ITEM NO. 2 THE EQUIPMENT YOU OFFERED WAS DEFICIENT IN THAT IT HAD A STATED SPEED RANGING FROM 3. THE MINIMUM SIZE SHEET PRINTABLE WAS 10 BY 14 INCHES RATHER THAN 9 BY 12 INCHES.

B-141034, DEC. 3, 1959

TO AMERICAN TYPE FOUNDERS CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 15, 1959, PROTESTING TO THE CONTRACTING OFFICER, UNITED STATES MILITARY ACADEMY, AGAINST THE REJECTION OF YOUR BID ON ITEMS NOS. 1 AND 2 SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 30-145-59-201, AND THE AWARD OF A CONTRACT THEREFOR TO ANOTHER SOURCE OF SUPPLY. YOU CONTEND THAT THE SPECIFICATIONS MADE A PART OF THE INVITATION WERE RESTRICTIVE; ALSO THAT THEY DID NOT SET FORTH THE ESSENTIAL CHARACTERISTICS AND FUNCTIONS OF THE DESIRED EQUIPMENT, NOR STATE THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT.

THE RECORD BEFORE US DISCLOSES THAT UPON EVALUATION OF THE BIDS SUBMITTED IN RESPONSE TO THE INVITATION IT WAS DETERMINED BY THE PROCURING AGENCY THAT THE EQUIPMENT YOU PROPOSED TO FURNISH UNDER ITEM NO. 1 WAS DEFICIENT IN THAT THE PRESS SPEED WAS 2,500 TO 6,000 SHEETS PER HOUR RATHER THAN 7,000 SHEETS PER HOUR; THE DIMENSION OF THE FEED PILE WAS 16 1/2 INCHES RATHER THAN 36 NCHES; THE DELIVERY PILE WAS 16 1/2 INCHES RATHER THAN 20 INCHES; AND THAT IT PROVIDED FOR 3 FORM ROLLERS RATHER THAN 4.

WITH RESPECT TO ITEM NO. 2 THE EQUIPMENT YOU OFFERED WAS DEFICIENT IN THAT IT HAD A STATED SPEED RANGING FROM 3,500 TO 7,000 SHEETS PER HOUR RATHER THAN 8,000 SHEETS PER HOUR; THE MINIMUM SIZE SHEET PRINTABLE WAS 10 BY 14 INCHES RATHER THAN 9 BY 12 INCHES; AND THE DELIVERY PILE WAS 36 INCHES RATHER THAN 45 INCHES. THE ABOVE STATED MINIMUM REQUIREMENTS INCORPORATED IN THE SPECIFICATIONS WERE FOUND TO BE NECESSARY TO MEET THE BASIC NEEDS OF THE PROCURING AGENCY BECAUSE OF THE SIZE AND VOLUME OF PRINTING FREQUENTLY NECESSARY. IN VIEW OF THE EXTENT OF THE DIFFERENCES AS TO PRODUCTION RATE AND DIMENSIONS BETWEEN THE SPECIFICATIONS MADE A PART OF THE INVITATION AND THOSE OF THE PRESSES YOU OFFERED, IT WAS CONCLUDED THAT SUCH DEFICIENCIES WERE MATERIAL AND NOT MINOR DEVIATIONS WHICH COULD BE WAIVED. FOR THOSE REASONS YOUR BID PROPERLY WAS REJECTED AS BEING NONRESPONSIVE.

IN REGARD TO YOUR CONTENTION THAT THE SPECIFICATIONS OF THE INVITATION WERE RESTRICTIVE, IT IS NOTED THAT THEY DO NOT CALL FOR A PATENTED OR PROPRIETARY ARTICLE; THAT THEY SET FORTH ONLY THE BASIC NEEDS AS TO SPEED, SIZE AND CAPACITY OF THE UNITS AND THEIR COMPONENT PARTS; AND, THAT THEY STIPULATE EQUIPMENT EQUAL TO THE "HARRIS-SEYBOLD" MODELS WILL BE ACCEPTABLE. IN VIEW OF THE FOREGOING WE CANNOT AGREE WITH YOUR CONTENTION THAT THE SPECIFICATIONS WERE RESTRICTIVE OR THAT THEY FAILED TO STIPULATE THE ESSENTIAL "CHARACTERISTICS AND FUNCTIONS" REQUIRED TO BE INCORPORATED INTO THE DESIRED UNIT.

THE DUTY OF DETERMINING THE ACTUAL NEEDS OF THE GOVERNMENT, AND THE DRAFTING OF SPECIFICATIONS WHICH AFFORD A BASIS FOR FAIR COMPETITIVE BIDDING ON THOSE NEEDS ARE FUNCTIONS OF THE ADMINISTRATIVE OFFICERS RATHER THAN THE GENERAL ACCOUNTING OFFICE. IN THE ABSENCE OF FAVORITISM, BAD FAITH OR A COMPLETE DISREGARD OF INDISPUTABLE FACTS, AN EXERCISE OF THE DISCRETION VESTED IN PROCUREMENT OFFICIALS AS TO SUCH MATTERS WILL NOT BE QUESTIONED BY THIS OFFICE. IN THE INSTANT CASE WE FEEL THAT THE EVALUATION BY THE ADMINISTRATIVE OFFICE CONSTITUTED A BONA FIDE DETERMINATION ADEQUATELY SUPPORTED BY SUBSTANTIAL EVIDENCE. IN THAT REGARD IT MAY BE OBSERVED 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 WOULD NOT BE MET.

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 BY THE ADMINISTRATIVE OFFICE.