B-148677, JUN. 13, 1962

B-148677, JUN. 13, 1962

TO S. BLICKMAN, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 12, 1962, TO MR. LONDON KING, FREEDMEN'S HOSPITAL, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, WASHINGTON, D.C., IN WHICH YOU PROTEST THE ALLEGEDLY RESTRICTIVE PROVISIONS OF THE SPECIFICATIONS FOR COFFEE MAKERS CONTAINED IN INVITATION NO. 1712.

THE INVITATION REQUESTED BIDS, TO BE OPENED ON APRIL 30, 1962, FOR FURNISHING TWO AUTOMATIC COFFEE MAKERS AND IT SPECIFIED ONE MODEL 10 000- 6E AND ONE MODEL 10 000-6G OF THE BEST PRODUCTS COMPANY, OR EQUAL. THE EQUIPMENT TO BE PROCURED WAS DESCRIBED IN DETAIL IN THE INVITATION AND COPIES THEREOF WERE MAILED TO FIVE DEALERS, INCLUDING YOUR FIRM.

BY LETTER DATED APRIL 12, 1962, YOU ADVISED THE ASSISTANT SUPPLY OFFICER AS FOLLOWS:

"WE WISH TO CALL YOUR ATTENTION TO THE FACT THAT SPECIFICATIONS COVERING THIS ITEM ARE SO RESTRICTIVE, THAT THERE IS NO "OR EQUAL" ITEM AVAILABLE ON THE MARKET, TO OUR KNOWLEDGE, WHICH WILL MEET EVEN THE MAJORITY OF THE POINTS COVERED BY THE SPECIFICATION SHEET.

"WE BELIEVE THAT IT IS NOT IN THE BEST INTERESTS OF THE GOVERNMENT TO ISSUE SPECIFICATIONS ON THIS RESTRICTIVE BASIS--- AND, ARE SENDING A COPY OF THIS LETTER TO THE CONTROLLER GENERAL'S OFFICE IN WASHINGTON, SO THAT THIS OFFICE MAY BE INFORMED FULLY IN CONNECTION WITH THESE RESTRICTIVE PRACTICES.'

IT IS REPORTED THAT AFTER RECEIVING YOUR LETTER OF APRIL 12, 1962, THE SUPPLY OFFICER OF FREEDMEN'S HOSPITAL SENT A TELEGRAM DATED APRIL 24, 1962, TO ALL DEALERS TO WHICH INVITATIONS HAD BEEN MAILED. THE TELEGRAM STATED THAT THE SPECIFICATIONS WERE INTENDED TO DESCRIBE THE QUALITY AND CHARACTERISTICS OF THE DESIRED EQUIPMENT, THAT THEY WERE NOT INTENDED TO BE RESTRICTIVE, AND THAT BIDS ON EQUIPMENT WHICH WAS SIMILAR IN QUALITY AND CHARACTERISTICS WOULD BE CONSIDERED.

BIDS WERE RECEIVED FROM THE E. B. ADAMS COMPANY AND THE BEST PRODUCTS COMPANY WHO OFFERED THE INSULATED AND AUTOMATIC MAKE AND MODEL UNITS WHICH WERE SPECIFIED IN THE INVITATION. THE LOWEST BID WAS SUBMITTED BY THE BEST PRODUCTS COMPANY WHO OFFERED TO FURNISH ITS MODEL 10 000-6E COFFEE MAKER AT A PRICE OF $840.42 EACH AND ITS MODEL 10 000-6G COFFEE MAKER AT A PRICE OF $810.89 EACH. BY LETTER DATED APRIL 17, 1962, YOUR FIRM ADVISED THE HOSPITAL THAT YOU WERE NOT SUBMITTING A BID ON THE COFFEE MAKERS DESCRIBED IN THE INVITATION BECAUSE SUCH EQUIPMENT WAS NOT OF YOUR MANUFACTURE. ON APRIL 30, 1962, YOUR CORPORATION SUBMITTED AN ALTERNATE BID WHEREIN YOU OFFERED TO FURNISH ONE BLICKMAN-BUILT TRSQ-106 6-GALLON SQUARE JACKETED TRI SAVER TWIN URN WITH BUILT-IN ELECTRIC IMMERSION HEATERS AND PRESSURE CONTROL AND THERMOSTAT AT A PRICE OF $1,095 EACH AND ONE BLICKMAN BUILT TRSQ-106 6-GALLON SQUARE JACKETED TRI-SAVER TWIN URN WITH GAS BURNER, PRESSURE CONTROL AND THERMOSTAT AT A PRICE $995 EACH. YOUR QUOTATION YOU STATED THAT THE COFFEE MAKERS OFFERED BY YOU WERE NEITHER INSULATED NOR AUTOMATIC AS REQUIRED BY THE SPECIFICATIONS. YOUR ALTERNATE BID WAS THE HIGHEST BID RECEIVED ON THE COFFEE MAKERS. ON APRIL 30, 1962, A CONTRACT FOR FURNISHING TWO COFFEE MAKERS WAS AWARDED TO THE BEST PRODUCTS COMPANY, THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER.

IT IS, OF COURSE, NOT WITHIN THE PROVINCE OF OUR OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 17 COMP. GEN. 554. MOREOVER, THE EQUIPMENT REQUIRED BY THE GOVERNMENT IN THE INSTANT CASE APPEARS TO BE OF A SPECIALIZED NATURE AND THE QUESTION AS TO WHAT TYPE OF EQUIPMENT IS TO BE PROCURED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT IS FOR DETERMINATION ON THE BASIS OF THE OPINIONS OF THE TECHNICIANS IN THE ADMINISTRATIVE OFFICE. WHILE THE LAW REQUIRING ADVERTISING FOR BIDS AND AWARDS OF CONTRACTS TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER, CONTEMPLATES FAIR AND UNRESTRICTED COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE NEEDS WILL NOT BE SUFFICIENT TO WARRANT THE CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTED. SEE 30 COMP. GEN. 368.

ACCORDINGLY, SINCE THERE IS NOTHING IN THE RECORD INDICATING BAD FAITH ON THE PART OF THE ADMINISTRATIVE AGENCY OR THAT IT WAS MOTIVATED BY ANY DESIRE OTHER THAN TO OBTAIN FOR THE GOVERNMENT COFFEE MAKERS WHICH WOULD BEST MEET THE NEEDS OF THE GOVERNMENT, IT MUST BE CONCLUDED THAT THERE IS NO PROPER LEGAL BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN MATTER.