B-154735, OCT. 23, 1964

B-154735: Oct 23, 1964

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INC.: REFERENCE IS MADE TO YOUR LETTER DATED JULY 14. IT IS ESTIMATED THAT 50 PERCENT OF THE ITEMS ORDERED WILL BE SHIPPED TO OAKLAND. 50 PERCENT WILL BE SHIPPED TO NORFOLK. BIDDERS' ATTENTION WAS CALLED TO THE CLAUSE PROVIDING THAT THE GOVERNMENT IS REQUIRED TO ORDER ONLY ONE RESUSCITATOR AND ONE REFILL FITTING WITH GAGE. THE INVITATION ALSO PROVIDED THAT DELIVERY OF THE ARTICLES WAS TO BE MADE AT DESTINATION FREE OF EXPENSE TO THE GOVERNMENT. THE INVITATION WAS ISSUED ON JUNE 8. WAS ISSUED. AMENDMENT NO. 2 TO THE INVITATION WAS ISSUED ON JUNE 18. IT IS REPORTED THAT ON JUNE 25. THE THREE BIDS RECEIVED WERE OPENED WITH THE J. AWARD WAS MADE TO THAT COMPANY ON JULY 14. PROTEST OF AWARD UNDER THE SUBJECT INVITATION IS MADE FOR TWO REASONS: (1) THAT THE BID HAS TO BE AN AVERAGE PRICE PREDICATED ON THE GOVERNMENT'S ESTIMATE THAT 50 PERCENT OF THE TOTAL QUALITIES OF ITEMS 1 AND 2 WILL GO TO EACH DESTINATION INDICATED IN THE INVITATION FOR BIDS WHEN.

B-154735, OCT. 23, 1964

TO GLOBE SAFETY PRODUCTS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 14, 1964, PROTESTING ANY AWARD MADE OR TO BE MADE PURSUANT TO IFB-N140-558-64, ISSUED BY THE NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK, FOR THE PROCUREMENT OF AN ESTIMATED QUANTITY OF 175 RESUSCITATORS AND 150 REFILL FITTINGS WITH GAGE. THE INVITATION SPECIFICALLY STATED THAT "FOR BID EVALUATION PURPOSES ONLY, IT IS ESTIMATED THAT 50 PERCENT OF THE ITEMS ORDERED WILL BE SHIPPED TO OAKLAND, CALIFORNIA, AND 50 PERCENT WILL BE SHIPPED TO NORFOLK, VIRGINIA.' BIDDERS' ATTENTION WAS CALLED TO THE CLAUSE PROVIDING THAT THE GOVERNMENT IS REQUIRED TO ORDER ONLY ONE RESUSCITATOR AND ONE REFILL FITTING WITH GAGE. THE INVITATION ALSO PROVIDED THAT DELIVERY OF THE ARTICLES WAS TO BE MADE AT DESTINATION FREE OF EXPENSE TO THE GOVERNMENT. THE INVITATION FURTHER PROVIDED IN THE TIME OF PERFORMANCE CLAUSE THAT "THE SUPPLIES COVERED BY ANY ORDER ISSUED HEREUNDER SHALL BE DELIVERED WITHIN TWO (2) WEEKS FROM RECEIPT OF ORDER.' THE INVITATION WAS ISSUED ON JUNE 8, 1964 WITH A BID OPENING DATE OF JULY 6, 1964.

THE RECORD SHOWS THAT THE REQUISITIONING ACTIVITY, THE FIELD BRANCH, BROOKLYN, NEW YORK, OF THE BUREAU OF MEDICINE AND SURGERY, STATED THAT ONLY FOUR FIRMS HAD HAD THEIR RESUSCITATORS APPROVED FOR USE BY THE BUREAU OF MEDICINE AND SURGERY, AND STIPULATED THAT BIDS BE SOLICITED FROM THESE FOUR FIRMS ONLY. BASED ON A REQUEST OF THE REQUISITIONING ACTIVITY THAT EVERY EFFORT BE MADE TO EXPEDITE THE PROCUREMENT, AMENDMENT NO. 1, DATED JUNE 8, 1964, THE SAME DATE OF ISSUANCE OF THE BASIC INVITATION, WAS ISSUED, WHICH, IN ADDITION TO CERTAIN OTHER CHANGES, ACCELERATED THE BID OPENING DATE FROM JULY 6, 1964, TO JUNE 22, 1964.

THE RECORD FURTHER SHOWS THAT ON JUNE 18, 1964, THE PRESIDENT OF YOUR COMPANY, ONE OF THE FOUR FIRMS SOLICITED, IN A CONFERENCE TELEPHONE CALL COMPLAINED OF CERTAIN MATTERS CONCERNING THE INVITATION, POINTING OUT THAT THE GOVERNMENT COULD DEMAND DELIVERY OF THE ENTIRE ESTIMATED PROCUREMENT WITHIN A TWO-WEEK PERIOD. AS A RESULT OF THE CONVERSATION, AMENDMENT NO. 2 TO THE INVITATION WAS ISSUED ON JUNE 18, 1964, STIPULATING THAT THE GOVERNMENT WOULD NOT ORDER MORE THAN 20 UNITS OF EACH ITEM IN ANY ONE ORDER AND ALSO EXTENDED THE OPENING DATE OF THE BID FROM JUNE 22, 1964 TO JUNE 30, 1964.

IT IS REPORTED THAT ON JUNE 25, 1964, THE FIELD BRANCH, BUREAU OF MEDICINE AND SURGERY NOTIFIED THE NAVY PURCHASING OFFICE, NEW YORK, THAT YOUR RESUSCITATOR VALVE HAD BEEN TESTED AND APPROVED. ON JUNE 30, 1964, THE THREE BIDS RECEIVED WERE OPENED WITH THE J. H. EMERSON COMPANY, THE LOW BIDDER, AND YOUR COMPANY'S BID AS SECOND LOW. UPON CONFIRMATION THAT THE J. H. EMERSON COMPANY'S RESUSCITATORS HAD BEEN TESTED AND APPROVED, AWARD WAS MADE TO THAT COMPANY ON JULY 14, 1964.

IN YOUR LETTER OF JULY 14, 1964, PROTEST OF AWARD UNDER THE SUBJECT INVITATION IS MADE FOR TWO REASONS: (1) THAT THE BID HAS TO BE AN AVERAGE PRICE PREDICATED ON THE GOVERNMENT'S ESTIMATE THAT 50 PERCENT OF THE TOTAL QUALITIES OF ITEMS 1 AND 2 WILL GO TO EACH DESTINATION INDICATED IN THE INVITATION FOR BIDS WHEN, IN FACT, THE GOVERNMENT COULD REQUIRE THE DELIVERY OF 100 PERCENT OF THESE QUANTITIES TO EITHER DESTINATION, THUS RENDERING IT IMPOSSIBLE FOR THE BIDDER TO ACCURATELY ESTABLISH HIS COSTS; AND (2) THE REQUIREMENT OF A TWO-WEEK DELIVERY TIME FROM DATE OF ORDER IS UNREASONABLE SINCE TESTING TIME COMBINED WITH FINAL INSPECTION COULD CONSUME MORE THAN THE TIME ALLOTTED FOR DELIVERY.

THE ADMINISTRATIVE REPORT STATES THAT IT PLANNED TO HAVE DELIVERY FOLLOW A PATTERN OF ABOUT 50 PERCENT TO EACH OF THE TWO DESTINATIONS, AND THAT THE TRANSPORTATION FACTOR WAS ASSUMED TO BE, AND IN FACT IS, A SMALL PORTION OF THE TOTAL COST. IT ALSO IS STATED THAT IT IS COMMON PRACTICE WITH MANY FIRMS AND IN MANY INDUSTRIES AVERAGING TRANSPORTATION COSTS FOR THE PURPOSE OF QUOTING PRICES FOR DELIVERY ANYWHERE IN THE CONTINENTAL UNITED STATES.

AS TO YOUR COMPLAINT ABOUT THE "TWO-WEEK" DELIVERY TIME, IT IS REPORTED THAT:

"* * * WHEN GLOBE FIRST COMPLAINED ABOUT THIS POINT IN THE TELEPHONE CONVERSATION AND TELEGRAM OF 18 JUNE 1964, IT WAS IN RELATION TO THE FACT THAT UNDER THE TERMS OF THE SCHEDULE, THE GOVERNMENT COULD REQUIRE THE CONTRACTOR TO DELIVER THE ENTIRE AMOUNT OF BOTH ITEMS WITHIN TWO WEEKS. DURING THAT CONVERSATION MR. ISAACSON DID ESTIMATE THAT HIS FIRM COULD DELIVER 20 UNITS OF EACH ITEM WITHIN THE STATED TWO WEEK PERIOD. THIS COMMENT OF GLOBE AND DETERMINATION BY THE REQUIRING ACTIVITY THAT SUCH DELIVERIES WOULD MEET ITS NEEDS WERE THE BASES FOR AMENDMENT NO. 2 TO THE INVITATION AND THE REASON WHY THE TWO WEEK DELIVERY REQUIREMENT FOR EACH ORDER OF 20 UNITS WAS LEFT UNCHANGED. UNDER THE TYPE OF CONTRACT CONTEMPLATED, A FIRM STOCKS THESE UNITS AND FURNISHES SUCH STOCK UPON RECEIPT OF AN ORDER. NO GOVERNMENT INSPECTION IS INVOLVED AT SOURCE. OTHER FIRM PROTESTED ON THIS POINT, AND IT IS INTERESTING TO NOTE THAT GLOBE'S BID WAS RESPONSIVE TO THE ORDERING PROCEDURE. THEREFORE, IT IS ASSUMED THAT HAD GLOBE BEEN THE SUCCESSFUL BIDDER IT WAS WILLING TO ACCEPT AN AWARD ON THIS BASIS.'

THE DRAFTING OF PROCUREMENT SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY. COMP. GEN. 251; 17 COMP. GEN. 554. WE HAVE FREQUENTLY STATED THAT THE REQUISITIONING OFFICE AND THE PROCUREMENT OFFICER ARE IN THE BEST POSITION TO DETERMINE THOSE NEEDS, AND THE GENERAL ACCOUNTING OFFICE WILL NOT OVERRULE THEIR JUDGMENT EXCEPT FOR SOME COMPELLING REASON. IN THE PRESENT MATTER IT APPEARS THAT EARLY DELIVERY OF THE ITEMS WAS ESSENTIAL AND DID NOT IN FACT LESSEN COMPETITION SINCE THREE OR FOUR QUALIFIED FIRMS RESPONDED TO THE INVITATION. THE REQUIREMENT THAT PRICES BE QUOTED INCLUDING DELIVERY IS NOT UNREASONABLE, DOES NOT PLACE ANY BIDDER AT A DISADVANTAGE, AND IN THE PRESENT CASE IS OF SOME ADVANTAGE TO THE GOVERNMENT.

ACCORDINGLY, WE PERCEIVE NO PROPER LEGAL BASIS FOR VOIDING THE ACTION OF THE CONTRACTING OFFICER, AND YOUR PROTEST IS DENIED.