B-147409, JAN. 18, 1962

B-147409, JAN. 18, 1962

TO NUTTING TRUCK AND CASTER COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 9, 1961, PROTESTING AGAINST THE AWARD OF CONTRACTS TO OTHER BIDDERS UNDER INVITATIONS TO BID NOS. 10-62 AND SF 17-62, ISSUED BY THE UNITED STATES PUBLIC HEALTH SERVICE HOSPITAL AT NORFOLK, VIRGINIA AND SAN FRANCISCO, CALIFORNIA, RESPECTIVELY, COVERING THE PURCHASE, IN BOTH CASES, OF A QUANTITY OF FOOD CONVEYORS.

WITH RESPECT TO THE FIRST-CITED PROCUREMENT, THE RECORD DISCLOSES THAT IN RESPONSE TO THE INVITATION YOU SUBMITTED A BID OF $7,416, NET, FOR THE SIX UNITS, AND STIPULATED THAT YOU WERE QUOTING ON YOUR MODEL 20 FACB, ASSUMING IT TO BE IN FULL COMPLIANCE WITH THE OPERATING PERFORMANCE REQUIREMENTS. IN THE EVALUATION OF THE BIDS AFTER OPENING IT WAS FOUND THAT THE EQUIPMENT YOU PROPOSED TO FURNISH FAILED TO COMPLY WITH THE SPECIFICATIONS IN THAT THE CARTS OFFERED DID NOT INCORPORATE IN THEIR CONSTRUCTION (1) A UTILITY DRAWER, (2) TWO CENTER CASTERS, (3) ELECTRICALLY HEATED AND THERMOSTATICALLY CONTROLLED BEVERAGE CONTAINERS AND, (4) A UTILITY SHELF. SINCE THOSE FEATURES WERE DEEMED TO BE ESSENTIAL TO THE MINIMUM OPERATING NEEDS OF SUCH EQUIPMENT YOUR BID WAS REJECTED AND AWARD MADE TO THE LOWEST RESPONSIVE BIDDER AT A NET PRICE OF $7,497, EQUAL TO $81 IN EXCESS OF YOUR OFFER FOR THE 6 UNIT SPECIFIED. IS ESTIMATED THAT THE COST OF FURNISHING AND INSTALLING THE LISTED COMPONENTS WOULD BE APPROXIMATELY $104.50 PER UNIT.

THE DRAFTING OF SPECIFICATIONS FOR ITEMS TO BE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE USING AGENCY AND A DETERMINATION AS TO THEIR NEEDS WILL NOT ORDINARILY BE QUESTIONED UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE. OF THREE PROPOSALS RECEIVED ONLY YOUR BID CONTAINED MATERIAL DEVIATIONS FROM THE ADVERTISED SPECIFICATIONS, AND UNDER THOSE CIRCUMSTANCES ACCEPTANCE OF YOUR OFFER CLEARLY WOULD HAVE BEEN PREJUDICIAL TO THE OTHER BIDDERS.

IN THE SECOND PROCUREMENT INVITATION WERE SOUGHT BY THE SAN FRANCISCO HOSPITAL AUTHORITIES FOR TEN UNITS OF THE SAME GENERAL DESCRIPTION. THE LOWEST BID WAS SUBMITTED BY CRIMSCO, INCORPORATED, AT A NET UNIT PRICE AFTER DISCOUNT OF $1,269.10, OR $319 LESS THAN YOUR OFFER FOR THE LOT. THE EVALUATION OF THE BIDS AND THE EQUIPMENT OFFERED THEREUNDER, IT WAS FOUND THAT THE CONVEYOR PROPOSED TO BE FURNISHED BY THE LOW BIDDER SUBSTANTIALLY COMPLIED WITH THE SPECIFICATIONS, WAS SUITABLE FOR THE NEEDS OF THAT INSTITUTION AND, THAT THE LACK OF SHELVES LOCATED IN THE COLD FOOD COMPARTMENT DOOR WAS CONSIDERED OF MINOR CONSEQUENCE SINCE IT DID NOT MATERIALLY AFFECT THEIR FOOD SERVICE OPERATIONS.

WE AGREE WITH YOUR CONTENTION THAT IF SHELVES IN THE REFRIGERATOR DOORS WERE NOT DEEMED ESSENTIAL IN THE UNIT TO OBTAIN ADEQUATE PERFORMANCE SUCH SPECIFICATION SHOULD HAVE BEEN OMITTED FROM THE INVITATION. HOWEVER, WE ARE NOT IN A POSITION TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCUREMENT OFFICIALS AS TO WHETHER SUCH FEATURE IS MATERIAL OR ONLY A MINOR DEVIATION UNAFFECTING ITS OVERALL UTILITY. AS WE STATED IN CONNECTION WITH THE FIRST INVITATION, SUCH MATTERS PRIMARILY ARE FOR CONSIDERATION BY THE ADMINISTRATIVE AGENCY INVOLVED, AND IN THE ABSENCE OF FAVORITISM, PERSONAL PREJUDICE, OR ABUSE OF DISCRETION, SUCH DETERMINATION WOULD NOT BE SUBJECT TO MODIFICATION BY US. THE EXTENT TO WHICH THE OMISSION OF THAT REQUIREMENT IN THE SPECIFICATIONS AFFECTED YOUR BID HAS NOT BEEN STATED OR ESTABLISHED BY YOU, NOR REFERRED TO IN THE ADMINISTRATIVE RECORD AND, THEREFORE, YOUR ASSERTION THAT YOU OTHERWISE WOULD HAVE BEEN THE LOW BIDDER CANNOT BE ACCEPTED AS CLEARLY SHOWN.

SINCE WE HAVE FOUND NO EVIDENCE OF BAD FAITH OR ABUSE OF DISCRETION IN THE SUBJECT PROCUREMENTS THE ACTION TAKEN BY THE TWO HOSPITALS WILL NOT BE DISTURBED.