B-155541, NOV. 23, 1964

B-155541, NOV. 23, 1964

TO STANDARD PRESSED STEEL COMPANY:

YOUR LETTER OF OCTOBER 30, 1964, TO MR. J. GEORGE STEWART, ARCHITECT OF THE CAPITOL, PROTESTING AGAINST HIS DETERMINATION THAT YOUR BID UNDER AN INVITATION FOR BIDS FOR CERTAIN FURNITURE FOR THE RAYBURN HOUSE OFFICE BUILDING WAS NONRESPONSIVE, HAS BEEN REFERRED TO THIS OFFICE WITH A REQUEST THAT WE RENDER A DECISION ON THE MERITS OF YOUR PROTEST.

THE INVITATION, ISSUED OCTOBER 2, 1964, CALLED FOR BIDS ON "GROUP XIII, MISCELLANEOUS NITURE," CONSISTING OF 36 ITEMS OF FURNITURE AND PROVIDED, IN PARAGRAPH 12 OF THE BIDDING CONDITION, THAT "THE CONTRACT WILL BE AWARDED IN ENTIRETY FOR THE QUOTED LUMP-SUM PRICE TO THE LOWEST RESPONSIBLE BIDDER COMPLYING WITH THE CONDITIONS OF THE INVITATION FOR BIDS.' YOU SUBMITTED A BID ON ITEMS 1 THROUGH 6 ONLY, WHILE THE OTHER THREE BIDS RECEIVED INCLUDED ALL 36 ITEMS IN THE GROUP. THE ARCHITECT THEREFORE DECLARED YOUR BID NONRESPONSIVE AND PROPOSES TO AWARD A CONTRACT FOR THE ENTIRE GROUP TO ONE OF THE OTHER THREE BIDDERS.

YOU CONTEND, IN EFFECT, THAT TO REQUIRE A LUMP-SUM BID ON THE ENTIRE GROUP RESULTED IN THE INVITATION BEING RESTRICTIVE OF COMPETITION AND NOT IN THE BEST INTERESTS OF THE GOVERNMENT OR THE BIDDERS. YOU STATE THAT WHILE THE PRODUCTS OF ELEVEN MANUFACTURERS WERE NAMED UNDER THE SPECIFICATION, REQUIRING A TOTAL BID EFFECTIVELY PREVENTED SUCH MANUFACTURERS FROM BIDDING ON THEIR OWN PRODUCTS.

IN CONSIDERING THE MERITS OF YOUR CONTENTIONS, IT SHOULD BE NOTED THAT THE SPECIFICATIONS CALLED FOR A PARTICULAR PIECE OF FURNITURE TO BE THAT OF A DESIGNATED MANUFACTURER OR THE ,APPROVED EQUAL THEREOF," WHICH IS AN ACCEPTED AND PROPER MEANS OF EXPRESSING THE CHARACTERISTICS WANTED IN THE PRODUCT TO BE PROCURED. THIS METHOD OF PROCUREMENT IS NOT INTENDED TO GIVE AN ADVANTAGE TO THE MANUFACTURER NAMED, BUT IS INTENDED TO BROADEN THE FIELD OF COMPETITION BY INCLUDING NOT ONLY THAT PRODUCT NAMED, WHICH IT IS KNOWN HAS THE DESIRED CHARACTERISTICS, BUT THOSE PRODUCTS WHICH ARE "EQUAL" THERETO. ADDITIONALLY, IT SHOULD BE NOTED THAT ALL BIDDERS IN THE INSTANT PROCUREMENT WERE REQUIRED TO BID ON THE SAME NUMBER OF ITEMS. ADDITION, THOSE BIDDERS WHO WERE NOT MANUFACTURERS OF ANY OF THE NAMED PRODUCTS WERE REQUIRED TO OFFER THAT PRODUCT, OR AT LEAST OFFER A PRODUCT MEETING THE SAME SPECIFICATIONS.

UNDER THESE CIRCUMSTANCES WE ARE OF THE OPINION THAT THE MEANS EMPLOYED IN THIS PROCUREMENT WERE PROPER. THE APPLICABLE PROVISION OF THE LAW, 41 U.S.C. 5, HAS BEEN INTERPRETED AS REQUIRING SPECIFICATIONS AND INVITATIONS FOR BIDS TO PERMIT SUCH FULL AND FREE COMPETITION AS IS CONSISTENT WITH THE NEEDS OF THE GOVERNMENT. 37 COMP. GEN. 524, 527 AND 40 COMP. GEN. 592, 593. WITHIN THIS LIMITATION, THE AGENCY CONCERNED IS VESTED WITH THE DISCRETION TO DETERMINE THE MANNER IN WHICH BIDDERS SHALL BE REQUIRED TO COMPETE IN A GIVEN PROCUREMENT. WITH RESPECT TO THIS PROCUREMENT, THE ADMINISTRATIVE REPORT STATES THE FOLLOWING:

"IN RESPONSE TO THE PROTEST I WOULD LIKE TO ADVISE THAT THE CONGRESS APPROPRIATED A TOTAL OF APPROXIMATELY $3,500,000 FOR FURNITURE AND FURNISHINGS FOR THE RAYBURN HOUSE OFFICE BUILDING. AFTER CONSULTATIONS WITH THE FURNITURE CONSULTANTS FOR THE RAYBURN HOUSE OFFICE BUILDING IT WAS DECIDED TO DIVIDE THE PROCUREMENT OF THE FURNITURE AND FURNISHINGS INTO 14 GROUPS. UPON A SUBSEQUENT STUDY WITH THE AIM TO SPREAD THE BIDDING AS MUCH AS POSSIBLE, THE NUMBER OF GROUPS WAS INCREASED FROM 14 TO 21 GROUPS. THIS WAS FOUND TO CONSTITUTE THE PRACTICAL LIMIT FOR THE DIVISION OF THE PROCUREMENT IN CONSIDERATION OF THE PERSONNEL AVAILABLE FOR CONTRACT ADMINISTRATION AND OF THE TIME LIMITS WITHIN WHICH THE BUILDING WAS REQUIRED TO BE FURNISHED.

"SEPARATE INVITATIONS FOR BIDS HAVE BEEN AND ARE BEING ISSUED ON A LUMP- SUM BASIS FOR EACH GROUP. THIS PROCEDURE WILL RESULT IN THE AWARD OF 21 CONTRACTS WHICH IS THE MAXIMUM ADMINISTRATIVE WORKLOAD THIS OFFICE CAN REASONABLY HANDLE WITH ITS AVAILABLE FORCE.'

WE THINK IT IS CLEAR THAT IN A PROCUREMENT OF THIS MAGNITUDE IT WOULD BE IMPRACTICABLE FOR AWARD TO BE MADE ON AN ITEM BY ITEM BASIS. WITHOUT SOME GROUPING OF THE ITEMS THE MULTIPLICITY OF CONTRACTS NECESSARY FOR THIS PROCUREMENT WOULD UNDOUBTEDLY RESULT IN NUMEROUS ADDITIONAL PROBLEMS OF ADMINISTRATION AND WOULD BE OTHERWISE ECONOMICALLY UNSOUND. WE ARE OF THE OPINION THAT THE METHOD OF PROCUREMENT CHOSEN TO OVERCOME THESE PRACTICAL PROBLEMS WAS A REASONABLE EXERCISE OF THE ADMINISTRATIVE DISCRETION CONTEMPLATED BY THE PROVISION OF 41 U.S.C. 5.

ACCORDINGLY, WE SEE NO BASIS UPON WHICH WE MAY OBJECT AND YOUR PROTEST MUST THEREFORE BE DENIED.