B-156877, JUL. 19, 1965

B-156877: Jul 19, 1965

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PETTIBONE MULLIKEN CORPORATION: REFERENCE IS MADE TO A TELEGRAM OF MAY 26. THAT IT SHOULD HAVE "FULL LENGTH CARRY DECKS. YOU PROTESTED TO THE PURCHASING ACTIVITY (AND TO THIS OFFICE) THAT THE REQUIREMENT FOR CARRY DECKS OF THE TYPE AND CAPACITY PRESCRIBED WAS PROPRIETARY INASMUCH AS SUCH EQUIPMENT COULD ONLY BE MANUFACTURED BY DROTT MANUFACTURING CORPORATION. THIS CONNECTION IT IS NOTED THAT THE DESCRIPTIVE LITERATURE ON THE PRODUCT YOU PROPOSED TO FURNISH SHOWS "LOAD CARRYING PLATFORM (FRONT OR REAR)" AS AVAILABLE ATTACHMENTS TO THE PRODUCT. YOUR CONTENTION WAS CONSIDERED BY THE AGENCY'S TECHNICAL PERSONNEL WHO DETERMINED THAT THE FULL LENGTH AND LARGE AREA CARRY DECKS REQUIREMENT WAS ESSENTIAL TO MEETING THE MINIMUM NEEDS OF THE USING ACTIVITIES AND THE BIDS WERE THEREAFTER OPENED AS SCHEDULED ON JUNE 3.

B-156877, JUL. 19, 1965

TO PETTIBONE NEW YORK DIVISION, PETTIBONE MULLIKEN CORPORATION:

REFERENCE IS MADE TO A TELEGRAM OF MAY 26, 1965, FROM C AND M INDUSTRIAL ASSOCIATES, INC., AND TO YOUR SUPPLEMENTAL WIRES PROTESTING AGAINST THE AWARD OF A CONTRACT TO BAY CITIES EQUIPMENT COMPANY FOR A MOBILE TRUCK CRANE UNDER ITEM NO. 1 OF INVITATION FOR BIDS NO. A 10707/FB-8) ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION AT MOFFETT FIELD, CALIFORNIA.

THE INVITATION SOLICITED BIDS FOR THE CRANE IN ACCORDANCE WITH SPECIFICATIONS WHICH PROVIDED, IN PERTINENT PART, THAT IT SHOULD HAVE "FULL LENGTH CARRY DECKS, APPROXIMATELY 73-SQUARE FEET A," AND THAT IT COULD BE THE DROTT MANUFACTURING CORPORATION "GO-DEVIL" MODEL 160, OR EQUAL.

ON MAY 26, 1965, YOU PROTESTED TO THE PURCHASING ACTIVITY (AND TO THIS OFFICE) THAT THE REQUIREMENT FOR CARRY DECKS OF THE TYPE AND CAPACITY PRESCRIBED WAS PROPRIETARY INASMUCH AS SUCH EQUIPMENT COULD ONLY BE MANUFACTURED BY DROTT MANUFACTURING CORPORATION, WHEREAS "LOAD CARRYING PLATFORMS" COULD BE INSTALLED ON THE CRANES OF OTHER MANUFACTURERS. THIS CONNECTION IT IS NOTED THAT THE DESCRIPTIVE LITERATURE ON THE PRODUCT YOU PROPOSED TO FURNISH SHOWS "LOAD CARRYING PLATFORM (FRONT OR REAR)" AS AVAILABLE ATTACHMENTS TO THE PRODUCT.

YOUR CONTENTION WAS CONSIDERED BY THE AGENCY'S TECHNICAL PERSONNEL WHO DETERMINED THAT THE FULL LENGTH AND LARGE AREA CARRY DECKS REQUIREMENT WAS ESSENTIAL TO MEETING THE MINIMUM NEEDS OF THE USING ACTIVITIES AND THE BIDS WERE THEREAFTER OPENED AS SCHEDULED ON JUNE 3, 1965. THE LOW BID OF $22,653 ($22,903 LESS $250 TRADE-IN ALLOWANCE FOR GOVERNMENT-OWNED CRANE) WAS SUBMITTED BY YOUR FIRM ON THE PETTIBONE "MULTIKRANE" MODEL NO. 15-15. BAY CITIES' BID ON THE "GO-DEVIL" MODEL 160 CRANE IN THE NET AMOUNT OF $26,685 WAS SECOND LOW.

IN SUBMITTING YOUR BID YOU ATTACHED A LETTER DATED MAY 28, 1965, WHEREIN YOU STATED:

"* * * WE FEEL THE SPECIFICATIONS FOR THE SUBJECT INVITATION ARE OF A RESTRICTIVE OR PROPRIETARY NATURE. THE REQUIREMENT FOR FULL LENGTH CARRY DECKS, APPROXIMATELY 73 SQUARE FEET OF AREA, LIMITS THIS REQUIREMENT TO ONE MANUFACTURER. WE ARE CERTAIN THIS IS NOT JUSTIFIED; FOR IF IT WERE, YOU WOULD HAVE NEGOTIATED SOLE SOURCE FROM THE BEGINNING, RATHER THAN ADVERTISING THE REQUIREMENT FOR BID.'

YOUR LOW BID WAS EVALUATED AND FOUND TO BE NONRESPONSIVE TO THE INVITATION INASMUCH AS THE CRANE WHICH YOU PROPOSED TO FURNISH DID NOT SATISFY THE CARRYING DECK REQUIREMENTS OF THE INVITATION, AND THE CONTRACT WAS THEREFORE AWARDED TO BAY CITIES FOR THE DROTT MACHINE.

CONTINUING YOUR PROTEST IN THE MATTER, YOU ASK IN TELEGRAM DATED JUNE 29, 1965:

"* * * (1) WHY THIS AWARD WAS MADE ON A CRANE AT A PRICE $4,511.03 HIGHER THAN OUR BID, WHEN, IN OUR OPINION, THE USE TO WHICH THIS MACHINE WILL BE PUT DOES NOT REQUIRE A PROPRIETARY SPECIFICATION, AND (2) IF THE REQUIREMENTS OF THIS USING ACTIVITY ARE SO DISTINCT IN NATURE, WHAT ARE THEIR SPECIFIC REQUIREMENTS, AND (3) WHY THEN THIS WAS NOT A SOLE SOURCE PROCUREMENT INSTEAD OF AN IFB. * * *"

DURING THE CONSIDERATION OF YOUR ORIGINAL PROTEST OF MAY 26, THE PROCUREMENT OFFICER WAS FURNISHED THE FOLLOWING MEMORANDUMS FROM THE TWO PRINCIPAL USERS OF THE CRANE:

USER NO. 1

"THE INTENDED PURPOSE OF THIS CRANE IS TO ELIMINATE MANPOWER. THE NEW CRANE WILL REPLACE THE CRANE KAR, WHICH DOES NOT HAVE A CARRYING DECK. THE DECK WILL ELIMINATE THE NEED FOR ADDITIONAL MANPOWER AND EQUIPMENT IN THE PERFORMANCE OF MEDIUM RIGGING REQUIREMENTS.

"THE CARRYING DECK WILL BE USED APPROXIMATELY 75 PERCENT OF THE CRANES OPERATIONAL TIME. APPROXIMATELY 30 PERCENT OF ITS OPERATIONAL TIME WILL BE WITH LOADS OF 8,000 POUNDS AND ABOVE, UTILIZING THE CARRYING DECK.

"THE SIDE LOADING DECK WILL BE USED FREQUENTLY IN HANDLING AND TRANSPORTING LONG LOADS, SUCH AS PIPES, STRUCTURAL BEAMS, AND FABRICATED STEEL SECTIONS FROM THE SHOP TO JOB SITES.

"THE DECK CARRYING FEATURE REDUCES MANPOWER BY ONE-HALF MINIMUM TO TWO- THIRDS MAXIMUM, AND IN MOST CASES THE NEED FOR ADDITIONAL EQUIPMENT.'

USER NO. 2

"1. THE ELECTRICAL SERVICES SECTION WILL HAVE MANY USES FOR THE PIECE OF EQUIPMENT.

"2. IT WILL COVER THE RANGE OF MANY OF THE LARGE MOTORS, PUMPS, GENERATORS, TRANSFORMERS, SWITCH GEAR AND EQUIPMENT LOCATED THROUGHOUT THE CENTER. IT WILL ALSO BE USED IN HANDLING LARGE CABLE REELS AND IN SETTING UP AND PULLING CABLES.

"3. WE ARE PRIMARILY CONCERNED WITH THE USE OF THIS CRANE IN THE OVERHAUL AND REPAIR OF THE EQUIPMENT MENTIONED ABOVE. THIS REQUIRES THE REMOVAL OF THE EQUIPMENT TO THE SHOPS WHERE THE WORK IS PERFORMED. ITS COMPACT SIZE AND MANEUVERABILITY ARE NECESSARY FOR GETTING INTO MANY TIGHT AREAS WHERE EQUIPMENT IS INSTALLED.

"4. THE FULL CAPACITY CARGO DECK WILL BE EXTREMELY VALUABLE. IT WILL SAVE MANY MAN HOURS AND THE USE OF ADDITIONAL PIECES OF EQUIPMENT SUCH AS TRUCK FORK LIFTS OR DOLLIES WHEN MOVING EQUIPMENT. WE ESTIMATE THAT THE CARGO DECK WILL BE USED IN AT LEAST 80 PERCENT OF OUR JOBS.'

IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT AND DETERMINATIONS AS TO WHETHER THE BIDS RECEIVED ARE FACTUALLY RESPONSIVE TO SUCH SPECIFICATIONS ARE PRIMARILY A RESPONSIBILITY OF THE PARTICULAR AGENCY INVOLVED. IN THE INSTANT CASE IT APPEARS THAT THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION HAS EXERCISED THAT RESPONSIBILITY BY THE PREPARATION OF SPECIFICATIONS WHICH INCLUDED CARRY DECK REQUIREMENTS DESIGNED TO FACILITATE THE OPERATIONS FOR WHICH THE CRANE WAS INTENDED TO BE USED. WHILE IT APPEARS THAT THE FRONT OR REAR LOAD CARRYING PLATFORMS AVAILABLE WITH THE PETTIBONE CRANE MIGHT SERVE SATISFACTORILY THAT PORTION OF THE AGENCY'S NEEDS FOR CARRYING COMPACT INDIVIDUAL ITEMS, THE RECORD DOES NOT INDICATE THAT SUCH TYPE OF PLATFORMS WOULD BE ADEQUATE FOR THE LARGE LOADS WHICH WOULD UTILIZE THE FULL CAPACITY OF THE DROTT MACHINE'S CARRYING DECK OR THAT FRONT OR REAR LOAD CARRYING PLATFORMS COULD BE USED EFFICIENTLY, AS IN THE CASE OF FULL LENGTH DECKS, FOR TRANSPORTING LOADS CONSISTING OF LONG ITEMS FROM THE WORK SHOPS TO THE VARIOUS JOB SITES. INASMUCH AS IT IS REPORTED THAT THE AGENCY NEEDS WOULD INVOLVE SUCH USES OF THE MACHINE FOR A SUBSTANTIAL PORTION OF THE OPERATIONAL TIME, IT IS NOT APPARENT THAT THE ADMINISTRATIVE ACTION IN REJECTING YOUR BID ON THE PETTIBONE MACHINE WAS ARBITRARY, CAPRICIOUS OR IN BAD FAITH.

EXCEPT TO THE EXTENT THAT A REQUIREMENT IS IMPOSED DIRECTLY OR INDIRECTLY BY, OR IS IN CONFLICT WITH, THE LAW, THIS OFFICE CANNOT DIRECT THE TERMS, CONDITIONS OR SPECIFICATIONS WHICH ARE TO BE INCLUDED IN AN INVITATION FOR BIDS. THE FACT THAT A BIDDER MAY BE UNWILLING OR UNABLE TO MEET CERTAIN REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS WHICH HAVE BEEN DETERMINED TO REFLECT OR DESCRIBE THE GOVERNMENT'S NEEDS, IS NOT SUFFICIENT TO WARRANT THE CONCLUSION THAT SUCH SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION. IN THIS REGARD WE STATED IN 36 COMP. GEN. 251, 252:

"THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.'

CONCERNING YOUR QUESTION OF WHY THE CRANE WAS NOT A SOLE SOURCE PROCUREMENT, THE ADMINISTRATIVE OFFICE REPORTS THAT THE IFB WAS ISSUED WITH THE EXPECTATION THAT RESPONSIVE BIDS WOULD BE RECEIVED ON MORE THAN ONE MAKE OF CRANE. THE AGENCY FURTHER REPORTS ITS POSITION TO BE THAT SHOULD A SIMILAR REQUIREMENT FOR A CRANE WITH FULL LENGTH AND LARGE CAPACITY CARRYING DECK FEATURES ARISE, PROCUREMENT BY ADVERTISING WOULD APPEAR PROPER FOR THE REASON THAT IN ITS OPINION THE REDESIGNING OR MODIFICATION OF EXISTING CRANES TO INCORPORATE SUCH FEATURES SEEMS TO POSE A SERIOUS PROBLEM FOR CRANE MANUFACTURERS OTHER THAN DROTT. WHILE YOUR ASSERTION THAT THE SUBJECT SPECIFICATION WAS RESTRICTIVE MAY BE TRUE TO THE EXTENT THAT IT PREVENTED YOU FROM SUBMITTING A RESPONSIVE BID ON THE PETTIBONE MACHINE, THE QUESTION OF WHETHER A FIRM IS A SOLE SOURCE OF A PRODUCT HAVING PARTICULAR FEATURES MAY BE DIFFICULT TO RESOLVE AT ANY GIVEN POINT IN TIME WITHOUT FIRST SOLICITING BIDS, SINCE ANOTHER FIRM MAY BE PLANNING TO ENTER THE MARKET AT THE FIRST OPPORTUNITY, OR MAY BE WILLING TO ALTER ITS COMMERCIAL OR STANDARD EQUIPMENT IN ORDER TO COMPETE FOR A PARTICULAR PROCUREMENT OR BUSINESS. WHERE, AS IN THE INSTANT CASE, BIDS ARE SOLICITED UNDER SPECIFICATIONS WHICH REFLECT ACTUAL NEEDS AND NO RESPONSIVE BID IS RECEIVED ON AN "OR EQUAL" ITEM, IT WOULD APPEAR THAT THE SOLE MEASURE OF WHETHER AN AWARD SHOULD BE MADE IS THE REASONABLENESS OF THE BID PRICES. WE HAVE NO INFORMATION THAT BAY CITIES' PRICE ON THE DROTT MACHINE IS UNREASONABLE, AND WE THEREFORE FAIL TO SEE HOW THE AGENCY'S FAILURE TO NEGOTIATE ONLY WITH SUPPLIERS OF THE DROTT MACHINE WOULD AFFECT THE VALIDITY OF THE CONTRACT AWARDED TO BAY CITIES.

SINCE THE AWARD HAS BEEN MADE AND SINCE, FOR THE REASONS STATED, WE DO NOT FIND THE AGENCY TO BE WITHOUT JUSTIFICATION FOR SPECIFYING THE CARGO CARRYING FEATURES EQUAL TO THE DROTT CRANE, WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN DISTURBING THE ACTION TAKEN. YOUR PROTEST AGAINST THE AWARD TO BAY CITIES MUST THEREFORE BE DENIED.