B-146315, AUG. 23, 1961

B-146315, AUG. 23, 1961

TO SOLOMON DIMOND, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 3, 1961, WITH ENCLOSURES, PROTESTING ON BEHALF OF SHAYNE TRASH CONTAINER SERVICE, INC., THE AWARD OF A CONTRACT PURSUANT TO INVITATION FOR BIDS NO. S 373, ISSUED BY THE GODDARD SPACE FLIGHT CENTER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, AND OPENED ON JUNE 30, 1961.

THE PROTEST SET FORTH IN YOUR LETTER WAS DIRECTED TO ITEM 1 OF THE INDICATED INVITATION WHICH REQUESTED BIDS FOR FURNISHING ALL REQUIRED TRASH AND DEBRIS REMOVAL AND DISPOSAL SERVICES, BEGINNING ON THE DATE SPECIFIED IN THE NOTICE OF AWARD AND ENDING JUNE 30, 1962, AS ITEMIZED AND DESCRIBED AT THE SITES INDICATED IN EXHIBIT "A" TO THE INVITATION. IT WAS STATED IN YOUR LETTER, IN EFFECT, THAT THE BASIC REQUIREMENT OF THE INVITATION WAS THAT THE CONTRACTOR WOULD PERFORM A PRECISE SERVICE ON SPECIFIED DAYS FOR A PRECISE CHARGE BASED UPON THE NUMBER OF CONTAINERS FURNISHED, BUT THAT, HOWEVER, AS TO BUILDING NO. 4, THE BASIC REQUIREMENT WAS MODIFIED BY A STATEMENT IN EXHIBIT "A" TO THE EFFECT THAT THE NUMBER OF PICK-UPS WILL BE---

"AS REQUIRED, DELIVERY TO NAVAL WEAPONS PLANT, WASHINGTON, FOR STORAGE OF SCRAP METAL.'

IT WAS STATED FURTHER IN YOUR LETTER THAT SHAYNE TRASH CONTAINER SERVICE, INC., WAS THE CONTRACTOR WHO PERFORMED THE "SAME SERVICE" FOR THE PERIOD ENDING JUNE 30, 1961, AND THAT PAYMENTS WERE MADE UNDER THE CONTRACT ON THE BASIS OF A UNIT PRICE FOR EACH DIRECTED "PICK-UP.' YOU THEN SUGGESTED THAT A CHANGE FROM A CHARGE PER "PICK-UP" TO THAT OF AN UNLIMITED OBLIGATION FORCED ALL BIDDERS TO INCLUDE A CONTINGENT COST ITEM FOR THE "UNLIMITED SERVICE," AND THAT THIS UNDOUBTEDLY CAUSED ALL BIDDERS TO UNNECESSARILY INCREASE THEIR BID PRICES. FOR THE REASONS SET FORTH IN YOUR LETTER, YOU REQUESTED THAT ALL BIDS BE REJECTED AND THE REQUIREMENT READVERTISED TO ELIMINATE THE ,UNNECESSARY CONTINGENT CHARGE" WHICH ALL BIDDERS WOULD HAVE TO ADD TO THEIR PRICES.

THE RECORD SHOWS THAT UNDER THE CITED INVITATION, ISSUED BY THE GODDARD SPACE FLIGHT CENTER UNDER DATE OF JUNE 19, 1961, BIDS WERE REQUESTED--- TO BE OPENED AT 3:00 P.M. ON JUNE 30, 1961--- FOR TRASH, GARBAGE AND DEBRIS REMOVAL AND DISPOSAL SERVICES IN ACCORDANCE WITH CERTAIN SPECIFICATIONS, INCLUDING EXHIBIT "A" WHICH SPECIFIED EIGHTPICK UP POINTS AT THE GODDARD CENTER AND THE DAYS AND TIMES FOR THE PICK UPS TO OCCUR. BIDDERS WERE ALSO REQUIRED TO UNDERTAKE THE REMOVAL OF SCRAP METAL FROM ONE POINT--- BUILDING NO. 4--- THE FREQUENCY OR TIMES OF REMOVAL IN EACH MONTH BEING "AS REQUIRED.' NO ESTIMATE OF THIS REQUIREMENT WAS SET FORTH IN THE INVITATION FOR BIDS.

IT WAS REPORTED THAT WHEN THE BIDS WERE OPENED ON JUNE 30, 1961, IT WAS FOUND THAT THE SQUARE DEAL TRUCKING COMPANY WAS THE LOW BIDDER. THAT CONCERN SUBMITTED A BID OF $40 ON ITEM 1 AND A BID OF $1 FOR EACH CUBIC YARD OF BULK TRASH AND DEBRIS REMOVAL WITH RESPECT TO ITEM 2. THE BID OF SQUARE DEAL TOTALLED $4,900 FOR THE PLANNED 12-MONTH PERIOD OF THE CONTRACT, THAT TOTAL BEING COMPUTED BY MULTIPLYING THE MONTHLY PRICE OF $40 BY 10 (THE NUMBER OF CONTAINERS SHOWN IN THE ,CONTAINER S" COLUMN OF EXHIBIT "A"), AND THEN BY 12, AS REQUIRED BY THE SCHEDULE. TO THE TOTAL OF $4,800 THERE WAS ADDED THE SUM OF $100 WHICH WAS OBTAINED BY MULTIPLYING THE BID PRICE OF $1 PER CUBIC YARD OF BRICK TRASH REMOVAL TIMES 100, THE ESTIMATE OF BULK TRASH WHICH WAS USED FOR EVALUATION PURPOSES.

IT APPEARS TO BE TRUE THAT THE BASIS FOR SOLICITING BIDS AS SET FORTH IN THE INVITATION DATED JUNE 19, 1961, DIFFERED FROM THE PRESENT TRASH REMOVAL CONTRACT BETWEEN THE GODDARD CENTER AND THE SHAYNE TRASH CONTAINER SERVICE IN THAT IN THE CONTRACT WITH SHAYNE A UNIT PRICE FOR EACH DIRECTED PICK-UP WAS ESTABLISHED, WHEREAS, UNDER THE CITED INVITATION THE BIDDER WOULD BE OBLIGATED TO MEET GODDARD'S REQUIREMENTS FOR SCRAP METAL REMOVAL, AND WITHOUT THE FREQUENCY OF THESE REQUIREMENTS BEING STATED OR ESTIMATED IN THE INVITATION FOR BIDS. YOUR PROTEST APPEARS TO BE BASED UPON THIS "DIFFERENCE" BETWEEN THE REQUIREMENTS OF THE PRESENT CONTRACT WITH SHAYNE AND THE REQUIREMENTS OF THE CITED INVITATION.

IT MAY BE POINTED OUT THAT BY REASON OF YOUR CLIENT'S EXPERIENCE UNDER THE CONTRACT ENDING JUNE 30, 1961, IT APPARENTLY HAD FIRSTHAND INFORMATION AS TO THE NUMBER OF TRIPS THAT MIGHT BE REQUIRED DURING THE TERM OF ITS BID FOR REMOVAL OF THE SCRAP METAL TO THE NAVAL WEAPONS PLANT, AND THAT IT MADE ITS BID ACCORDINGLY. IN OTHER WORDS, YOUR CLIENT WAS FULLY ADVISED AS TO THE PROBABLE FUTURE REQUIREMENTS. IT SEEMS CLEAR THAT THE PROTEST FILED HEREIN IS AGAINST THE "BUSINESS JUDGMENT" EXERCISED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION IN THE PREPARATION OF THE INVITATION FOR BIDS. WHILE IT MAY BE TRUE THAT THE INCLUSION IN THE INVITATION OF AN ESTIMATE FOR THE SCRAP METAL REMOVAL MIGHT HAVE BEEN DESIRABLE, IT IS ALSO TRUE THAT ALL BIDDERS WERE REQUIRED TO BID ON AN "AS REQUIRED" BASIS AND THUS WERE ON EQUAL FOOTING INSOFAR AS COMPETITIVE BIDDING WAS CONCERNED. IN ANY EVENT,THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT IS PRIMARILY THAT OF THE ADMINISTRATIVE AGENCY CONCERNED. 17 COMP. GEN. 554.

UPON THE BASIS OF THE FACTS APPEARING IN THIS CASE, AND PARTICULARLY THE FACT THAT ALL BIDDERS UNDER THE INVITATIONS WERE COMPETING ON AN EQUAL STATUS, WE FIND NO PROPER BASIS FOR OUR OFFICE TO OBJECT TO THE PROCEDURE FOLLOWED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION HEREIN. ACCORDINGLY, YOUR PROTEST IS DENIED.