B-155675, FEB. 9, 1965

B-155675: Feb 9, 1965

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INC.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 27. BIDS WERE SOLICITED FOR FURNISHING 12 UNITS OF EQUIPMENT COMPRISING A MINIMUM OF 19. THE PURCHASES WERE TO BE CONSUMMATED IN ORDER TO FILL THE CIVIL SERVICE COMMISSION ORDER NO. 65-0138. YOU PROTEST THE FACT THAT THE PROCUREMENT WAS NOT SET ASIDE FOR SMALL BUSINESS CONCERNS. YOU INDICATE THAT ALTHOUGH YOU HAVE SUBMITTED BIDS ON THIS TYPE OF EQUIPMENT IN THE PAST. YOU HAVE NEVER RECEIVED AN AWARD OF A CONTRACT EVEN THOUGH ON SEVERAL OCCASIONS YOU WERE THE LOW BIDDER. PURSUANT TO THE PROVISIONS OF 15 U.S.C. 644 AND SECTION 1-1.706 OF THE FEDERAL PROCUREMENT REGULATIONS PROCUREMENT OF SUPPLIES ON A SET ASIDE FOR SMALL BUSINESS CONCERNS IS GENERALLY MADE BY A DETERMINATION OF THE CONTRACTING OFFICE CONCERNED IN CONJUNCTION WITH A REPRESENTATIVE OF THE SMALL BUSINESS ADMINISTRATION.

B-155675, FEB. 9, 1965

TO FERRIS BUSINESS EQUIPMENT, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 27, 1964, IN REGARD TO INVITATION FOR BIDS NO. FPNHO-L-68193-NA-11-30-64 ISSUED BY THE GENERAL SERVICES ADMINISTRATION ON NOVEMBER 9, 1964.

THE CITED INVITATION SOLICITED BIDS FOR FURNISHING 48 FILES, VISIBLE RECORD, ROTARY TRAY TYPE, MOTORIZED, ELECTRICALLY OPERATED, FOR FILING6 BY 4 INCH CARDS, LESS EXCHANGE ALLOWANCES FOR 110 SHAW WALKER AND 112 REMINGTON RAND FILING CABINETS AS DESCRIBED. ALSO, BIDS WERE SOLICITED FOR FURNISHING 12 UNITS OF EQUIPMENT COMPRISING A MINIMUM OF 19,636 FILING INCHES IN 12 WORK STATIONS OF 1 UNIT PER STATION, LESS EXCHANGE ALLOWANCE FOR 6 SHAW WALKER AND 54 REMINGTON RAND FILING CABINETS, AS DESCRIBED. THE PURCHASES WERE TO BE CONSUMMATED IN ORDER TO FILL THE CIVIL SERVICE COMMISSION ORDER NO. 65-0138.

YOU PROTEST THE FACT THAT THE PROCUREMENT WAS NOT SET ASIDE FOR SMALL BUSINESS CONCERNS. ALSO, YOU INDICATE THAT ALTHOUGH YOU HAVE SUBMITTED BIDS ON THIS TYPE OF EQUIPMENT IN THE PAST, YOU HAVE NEVER RECEIVED AN AWARD OF A CONTRACT EVEN THOUGH ON SEVERAL OCCASIONS YOU WERE THE LOW BIDDER, BECAUSE THE FILES YOU OFFERED DID NOT MEET THE REQUIRED SPECIFICATIONS. THUS, IT APPEARS THAT YOU CONTEND THAT THE SPECIFICATIONS SHOULD BE SO DRAWN THAT YOUR EQUIPMENT WOULD MEET THEM.

PURSUANT TO THE PROVISIONS OF 15 U.S.C. 644 AND SECTION 1-1.706 OF THE FEDERAL PROCUREMENT REGULATIONS PROCUREMENT OF SUPPLIES ON A SET ASIDE FOR SMALL BUSINESS CONCERNS IS GENERALLY MADE BY A DETERMINATION OF THE CONTRACTING OFFICE CONCERNED IN CONJUNCTION WITH A REPRESENTATIVE OF THE SMALL BUSINESS ADMINISTRATION. THE RECORD SHOWS THAT PRIOR TO ADVERTISING FOR BIDS IN THIS CASE THE GENERAL SERVICES ADMINISTRATION DISCUSSED THE MATTER OF PROCURING THE SUPPLIES ON A SMALL BUSINESS SET-ASIDE WITH A REPRESENTATIVE OF THE SMALL BUSINESS ADMINISTRATION. A DETERMINATION WAS MADE THAT NEITHER A 100 PERCENT SET-ASIDE NOR A PARTIAL SET-ASIDE WOULD MEET THE REQUIREMENTS OF THE UNITED STATES CIVIL SERVICE COMMISSION, THE USING AGENCY. THIS DECISION WAS PROMPTED IN PART BY THE FACT THAT THE PROCUREMENT INVOLVED THE TRADE-IN OF FILING CABINETS PREVIOUSLY SUPPLIED BY LARGE BUSINESS FIRMS AND IT WAS CONSIDERED UNWISE TO PRECLUDE THE MAKERS OF THESE CABINETS FROM BIDDING ON ALL PHASES OF THE PROCUREMENT.

WITH REGARD TO YOUR MAIN CONTENTION THAT THE SPECIFICATION IS TOO RESTRICTIVE, YOU HAVE FAILED TO POINT OUT IN WHAT WAY IT WAS RESTRICTIVE. THE FILING CABINETS WERE DESIRED BY THE UNITED STATES CIVIL SERVICE COMMISSION AND THE SPECIFICATIONS WERE SO DRAWN THAT THE CABINETS WOULD SUFFICE FOR THEIR CURRENT REQUIREMENTS PLUS A TOLERANCE FOR A 5-YEAR EXPANSION AND HENCE IT WAS NECESSARY TO SET A MINIMUM NUMBER OF FILING INCHES FOR EACH OF THE ITEMS CONCERNED. ALSO, IT IS STATED THAT WITH SUCH REQUIREMENTS THE MAKERS OF SMALLER-SIZED CABINETS COULD NOT BID ON THEIR STANDARD PRODUCTION AND AN ATTEMPT WAS MADE TO COOPERATE WITH SUCH FIRMS AS FAR AS POSSIBLE BY PERMITTING THEM TO BID ON REGULAR PRODUCTION STOCK MODELS, SUITABLY MODIFIED.

WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE AGENCY ON WHOSE BEHALF THE PROCUREMENT IS MADE. COMP. GEN. 554; 39 ID. 101; 40 ID. 294; AND B-152742, JANUARY 27, 1964. APPLICABLE STATUTES AND REGULATORY PROVISIONS REQUIRE THAT MAXIMUM COMPETITION BE OBTAINED WITHIN SUCH ESTABLISHED REQUIREMENTS. 32 COMP. GEN. 384. 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 OF THE GOVERNMENT DOES NOT WARRANT THE CONCLUSION THAT THE SPECIFICATIONS ARE RESTRICTIVE. SEE 30 COMP. GEN. 368. THERE HAS BEEN NO SHOWING THAT THE SPECIFICATIONS WERE ESTABLISHED WITHOUT REGARD TO WHETHER ANY REAL PURPOSE WAS SERVED THEREBY.

WE ARE UNABLE TO CONCLUDE FROM THE REPORTED FACTS THAT THE GENERAL SERVICES ADMINISTRATION ACTED IMPROPERLY IN THE SOLICITATION OF BIDS IN THIS INSTANCE AND YOUR PROTEST IS DENIED.