B-153517, MAY 26, 1964

B-153517, MAY 26, 1964

TO AMERICAN MACHINE AND TOOL COMPANY, INC., OF PENNSYLVANIA:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15, 1964, AND ENCLOSURE, PROTESTING AWARD OF A CONTRACT FOR ITEM NO. 1 UNDER INVITATION FOR BIDS NO. SF-AID-V-15938-B-64 TO THE CARVER PUMP COMPANY AT A PRICE IN EXCESS OF YOUR BID ON THE ITEM.

THE INVITATION, WHICH WAS ISSUED AUGUST 15, 1963, BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, SAN FRANCISCO, CALIFORNIA, REQUESTED BIDS ON GASOLINE DRIVEN WATER PUMPS AND CYLINDERS FOR SHIPMENT TO SAIGON, VIET NAM, UNDER THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID) PROGRAM. ITEM NO. 1 COVERED 100 PUMPS WHICH, UNDER THE TERMS OF THE PURCHASE DESCRIPTION CONTAINED IN THE INVITATION, WERE REQUIRED TO BE CAPABLE OF PUMPING 130 GALLONS PER MINUTE (GPM) AT 25-FOOT HEAD.

OF THE 18 BIDS SUBMITTED ON ITEM NO. 1, THE UNIT BID OF $132 FROM CARVER WAS SEVENTH LOWEST. OF THE SIX LOWER UNITS BIDS, FOUR, INCLUDING YOUR BID OF $115, WERE REJECTED FOR FAILURE TO COMPLY WITH THE SPECIFICATION REQUIREMENTS. THE REMAINING TWO LOW UNIT BIDS WERE DISPLACED AFTER FREIGHT EVALUATION BY THE CARVER BID, WHICH TOTALED $13,771.13 INCLUDING FREIGHT. ACCORDINGLY, CARVER, WHO COMPLIED WITH THE SPECIFICATIONS, WAS AWARDED ITEM NO. 1.

THE SPECIFIC BASIS FOR THE REJECTION OF YOUR BID WAS A DETERMINATION BY THE FEDERAL SUPPLY SERVICE THAT THE AMCO 2500 PUMP OFFERED BY YOUR BID DID NOT MEET THE PUMPING CAPACITY REQUIRED BY THE SPECIFICATIONS. THIS DETERMINATION WAS BASED ON A REVIEW OF THE PERFORMANCE CURVE SHOWN IN THE SPECIFICATION SHEET FOR THE PUMP WHICH YOU SUBMITTED WITH YOUR BID AND WHICH DISCLOSED THAT THE PUMP WAS INCAPABLE OF PUMPING 130 GPM AT 25-FOOT HEAD.

THE DRAFTING OF SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND THE FACTUAL DETERMINATION WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE NEEDS ARE PRIMARILY THE RESPONSIBILITY OF THE PROCUREMENT AGENCY. THE GOVERNING LAW REQUIRES THAT CONTRACT AWARDS BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION FOR BIDS AND WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. SEE SECTION 303 (B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 395, 41 U.S.C. 253 (B). TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING GOVERNMENT CONTRACTS ON AN OPEN COMPETITIVE BASIS. MOREOVER, THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE THE LOWEST PRICED EQUIPMENT OBTAINABLE WITHOUT REGARD TO THE PARTICULAR NEEDS TO BE SERVED. 17 COMP. GEN. 554; 36 ID. 251, 252.

SINCE THE EQUIPMENT OFFERED BY YOU, AND BY THE THREE OTHER LOW BIDDERS, DID NOT MEET THE SPECIFICATION REQUIREMENTS, THE REJECTION OF SUCH BIDS APPEARS TO HAVE BEEN PROPER, AND WE FIND NO LEGAL BASIS FOR OBJECTING TO THE AWARD TO CARVER AS THE LOWEST RESPONSIVE BIDDER. ACCORDINGLY, YOUR PROTEST IS DENIED.