B-157111, AUGUST 18, 1965

B-157111: Aug 18, 1965

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WHICH SYSTEM IS NOT INTERCHANGEABLE WITH THE TWO POINT HOOKUP SYSTEM USED AND PROPOSED BY YOUR COMPANY. SINCE THE LODAL VEHICLES WILL MEET THE SPECIFICATIONS RELATIVE TO PICKUP SYSTEM AND CONTAINERS. WE ARE UNABLE TO SAY THAT THE LOW BID IS NONRESPONSIVE OR NOT COMPATIBLE TO THE GOVERNMENT'S ADVERTISED NEED. WE NOTE THAT BOTH TYPES OF SYSTEMS ARE COMMERCIAL PRODUCTS PERMITTED TO BE FURNISHED UNDER THE SPECIFICATIONS WHICH HAVE BEEN APPROVED BY THE DEPARTMENT OF DEFENSE FOR MANDATORY USE BY ALL MILITARY DEPARTMENTS. THE RECORD ESTABLISHES THAT LODAL IS THE LOWEST RESPONSIBLE. THE USE OF WHICH IS INTERCHANGEABLE. FROM BIDDING ON FUTURE PROCUREMENTS OF THE AIR FORCE AS THE LODAL CONTAINERS WILL ONLY WORK WITH A LODAL HOIST AND A LODAL HOIST WILL PERFORM ONLY WITH A LODAL CONTAINER.

B-157111, AUGUST 18, 1965

TO DEMPSTER BROTHERS INC.:

BY LETTER DATED JUNE 24, 1965, WITH ENCLOSURES, YOU PROTESTED AGAINST ANY AWARD TO LODAL, INC., BY THE ARMY TANK-AUTOMOTIVE CENTER, ARMY MATERIEL COMMAND, UNDER SMALL BUSINESS RESTRICTED INVITATION FOR BIDS NO. AMC-20- 113-65-1796 (T) COVERING THE PROCUREMENT OF 33 REFUSE COLLECTION TRUCKS FOR USE OF THE AIR FORCE.

THE INVITATION DATED FEBRUARY 15, 1965, REQUESTED BIDS AS FOLLOW:

"TRUCKS, REFUSE COLLECTION: COMPACTION TYPE BODY, WITH FRONT CONTAINER HOISTING DEVICE; GED, 6 X 4, 24 CUBIC YARD CAPACITY, 39,500 POUNDS GVW, 3000 POUNDS HOIST, SHALL BE IN ACCORDANCE WITH TYPE I OF SPECIFICATION MIL -T-46748A, DATED 25 SEPTEMBER 1963.'

UPON THE OPENING OF BIDS ON MARCH 31, 1965, IT APPEARED THAT LODAL, INC., SUBMITTED THE LOWEST BID. IT APPEARS THAT LODAL PROPOSES TO FURNISH VEHICLES UTILIZING A ONE POINT HOOKUP SYSTEM FOR THE CONTAINER HOISTING MECHANISM, WHICH SYSTEM IS NOT INTERCHANGEABLE WITH THE TWO POINT HOOKUP SYSTEM USED AND PROPOSED BY YOUR COMPANY. SINCE THE LODAL VEHICLES WILL MEET THE SPECIFICATIONS RELATIVE TO PICKUP SYSTEM AND CONTAINERS, WE ARE UNABLE TO SAY THAT THE LOW BID IS NONRESPONSIVE OR NOT COMPATIBLE TO THE GOVERNMENT'S ADVERTISED NEED. IN THIS CONNECTION, WE NOTE THAT BOTH TYPES OF SYSTEMS ARE COMMERCIAL PRODUCTS PERMITTED TO BE FURNISHED UNDER THE SPECIFICATIONS WHICH HAVE BEEN APPROVED BY THE DEPARTMENT OF DEFENSE FOR MANDATORY USE BY ALL MILITARY DEPARTMENTS. SEE ARMED SERVICES PROCUREMENT REGULATION 1 1202.

THE RECORD ESTABLISHES THAT LODAL IS THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER ON THE AIR FORCE REQUIREMENTS, AND THAT THE AIR FORCE HAS AGREED TO ACCEPT THE LODAL VEHICLES IN SATISFACTION OF THEIR REQUIREMENTS FOR REFUSE COLLECTION TRUCKS. IN VIEW THEREOF, NO LEGAL BASIS EXISTS FOR QUESTIONING AN AWARD TO LODAL UNDER THE INVITATION. SEE 10 U.S.C. 2305 (C). HOWEVER, YOU CONTEND THAT THE PURCHASE BY THE AIR FORCE OF ANY ADDITIONAL LODAL HOISTING UNITS WOULD NOT BE IN THE INTERESTS OF THE GOVERNMENT BECAUSE SUCH ACTION WOULD:

"/A)COMPOUND AND INCREASE THE MONETARY LOSS WHICH HAS TO DATE BEEN INCURRED ON PRIOR PROCUREMENTS OF LODAL EQUIPMENT BY THE AIR FORCE;

"/B) ULTIMATELY RESULT IN THE AIR FORCE BEING COMPELLED TO PURCHASE ADDITIONAL CONTAINERS FROM LODAL, APPARENTLY THE SOLE SOURCE THEREOF, BECAUSE OF PATENTS;

"/C) ELIMINATE ALL OTHER MANUFACTURERS OF THIS TYPE OF EQUIPMENT, THE USE OF WHICH IS INTERCHANGEABLE, FROM BIDDING ON FUTURE PROCUREMENTS OF THE AIR FORCE AS THE LODAL CONTAINERS WILL ONLY WORK WITH A LODAL HOIST AND A LODAL HOIST WILL PERFORM ONLY WITH A LODAL CONTAINER. THE AIR FORCE WILL THEN BE ENTIRELY AT THE MERCY OF A SOLE SOURCE SUPPLIER.

"/D) THE INVESTMENT OF THE AIR FORCE IN ITS PRESENT INVENTORY OF CONTAINERS WILL BE RENDERED VALUELESS, EVEN THOUGH THEY HAVE MANY YEARS OF REMAINING USEFUL LIFE.'

THE VIEWS OF THE DEPARTMENT OF THE AIR FORCE IN THESE RESPECTS WERE SOLICITED BY OUR OFFICE AND WE HAVE BEEN ADVISED BY THAT DEPARTMENT AS FOLLOWS:

"2. THE AIR FORCE HAS USED THE CONTAINER SYSTEM FOR DISPOSAL OF WASTE MATTER FOR MANY YEARS. AS INDICATED IN THE LETTER OF DEMPSTER BROTHERS, WE HAVE PROCURED SOME 7,500 CONTAINERS. THE MAJORITY OF THESE CONTAINERS WERE PRIMARILY FOR USE WITH REAR HOIST TRUCKS.

"3. AT EACH AIR FORCE BASE WE DETERMINE WHETHER IT IS MORE ECONOMICAL TO DO OUR OWN REFUSE COLLECTION OR WHETHER WE SHOULD CONTRACT FOR THIS SERVICE. AT THOSE BASES WHERE WE DO OUR OWN COLLECTION WE UTILIZE BOTH REAR MOUNTED TYPE HOIST AS WELL AS THE FRONT MOUNTED HOIST CONTAINER SYSTEMS. THE SYSTEM SELECTED IS THE ONE DETERMINED TO BE BETTER FOR THE SPECIFIC JOB IN QUESTION.

"4. THE AIR FORCE CENTRALLY PROCURES, THROUGH THE DEPARTMENT OF ARMY, ALL OF ITS REFUSE CARRYING VEHICLES. PROCUREMENTS HAVE BEEN AND WILL CONTINUE TO BE ON A COMPETITIVE BASIS. WE NORMALLY PROCURE CONTAINERS FOR USE WITH THESE TRUCKS ON A LOCAL PURCHASE PROCEDURE. THIS PROCEDURE IS FOLLOWED BECAUSE THERE ARE CONTAINERS ALREADY IN OUR INVENTORY AND ONLY THE BASES THEMSELVES CAN DETERMINE WHEN AND HOW THEY SHOULD BE REPLACED.

"5. WHEN WE PROCURED THE FIRST FRONT LOADING REFUSE TRUCKS IT WAS NECESSARY THAT WE BUY NEW CONTAINERS OR CONVERT EXISTING CONTAINERS IN A TIMELY MANNER, IN ORDER THAT THESE VEHICLES COULD BE FULLY UTILIZED UPON ARRIVAL AT THE BASES. WE, THEREFORE, DETERMINED THAT WE WOULD BUY A QUANTITY OF CONVERSION KITS (2,551 PROCURED) AND SHIP A QUANTITY WITH EACH REFUSE TRUCK TO OUR BASES. IN SOME INSTANCES, THE BASES DETERMINED THAT IT WAS NOT ECONOMICAL TO MODIFY ALL EXISTING CONTAINERS AND THAT PURCHASE OF SOME NEW CONTAINERS WAS MORE DESIRABLE. WE DID PROCURE SOME 1500 CONTAINERS THROUGH LOCAL PURCHASES. ALTHOUGH WE DO NOT HAVE DEFINITIVE INFORMATION WITH RESPECT TO ALL SUCH PURCHASES, WE UNDERSTAND MOST OF THESE PURCHASES WERE MADE COMPETITIVELY. AT THE PRESENT TIME WE ESTIMATE THAT WE HAVE APPROXIMATELY 250 CONVERSION KITS STILL AVAILABLE AT OUR VARIOUS BASES. * * * THIS CONVERSION OF EXISTING CONTAINERS HAS BEEN GENERALLY SATISFACTORY AND THE AIR FORCE WILL CONTINUE TO FOLLOW THIS PROCEDURE OF CONVERTING EXISTING CONTAINERS FOR USE WITH REFUSE TRUCKS.

"6. IN SEVERAL INSTANCES, WHEN WE FIRST RECEIVED THE LODAL TRUCKS WE DID HAVE PROBLEMS WITH THE CONVERTED 10 CUBIC YARD CONTAINERS. IN THESE INSTANCES THE CONTAINERS WERE FILLED WITH SCRAP METAL AND IN THE PROCESS OF EMPTYING CONTAINERS, OCCASIONALLY THE TRUCK MECHANISM WAS DAMAGED. ASSUME THAT THIS LED TO THE LODAL RECOMMENDATIONS AGAINST CONVERSION OF DEMPSTER 10 CUBIC YARD CONTAINERS. WE ARE TODAY, HOWEVER, PICKING UP CONVERTED 10 CUBIC YARD CONTAINERS (OF DEMPSTER MANUFACTURE) WITH LODAL TRUCKS WITH NO PROBLEMS. THESE CONTAINERS ARE LOADED WITH NORMAL REFUSE, SUCH AS BOXES, PAPER, TRASH, ETC.

"7. THE AIR FORCE HAS PREPARED A MILITARY SPECIFICATION, MIL-R-9973 ENTITLED "REFUSE CONTAINER, HOISTING UNIT," FOR CONTAINERS TO BE UTILIZED WITH LODAL FRONT HOISTING TRUCKS. LODAL IS KNOWLEDGEABLE OF THIS SPECIFICATION AND HAS STATED THAT THEY DO NOT OBJECT TO ITS USE IN COMPETITIVE PROCUREMENT. IN ADDITION, THE MILITARY SPECIFICATION UNDER WHICH WE PROCURE THE REFUSE TRUCKS, MIL-T-46748A, CONTAINS DATA FOR PROCUREMENT OF CONTAINERS. FURTHER, SPECIFICATION MIL-R-23954A (BUREAU OF DOCKS) IS FOR REFUSE CONTAINER PROCUREMENT. EACH OF THESE SPECIFICATIONS HAVE BEEN USED FOR COMPETITIVE PROCUREMENT OF CONTAINERS.

"8. THE AIR FORCE DOES NOT HAVE ANY TWO POINT FRONT HOIST REFUSE TRUCKS SO WE CANNOT STATE THE ACTUAL COST OF CONTAINER CONVERSION FROM A ONE POINT TO A TWO POINT PICK UP. WE CAN, HOWEVER, OFFER THIS PERTINENT INFORMATION. AT BUNKER HILL AIR FORCE BASE WE RECENTLY AWARDED A CONTRACT FOR COMMERCIAL REFUSE PICK-UP SERVICE. THE SUCCESSFUL CONTRACTOR, GAMRATH INDUSTRIES, HAS AGREED TO MODIFY OUR EXISTING ONE POINT PICK-UP CONTAINERS TO TWO POINT PICK-UP AT HIS OWN EXPENSE. THIS MODIFICATION IN NO WAY HINDERS THE CONTAINERS BEING PICKED UP BY A SINGLE HOISTING SYSTEM BUT ALLOWS FOR BOTH MEANS OF PICK-UP. GAMRATH INDUSTRIES HAS TWO VEHICLES, ONE SINGLE POINT AND ONE DOUBLE POINT. THUS, THEY CAN USE EITHER VEHICLE AT BUNKER HILL AIR FORCE BASE. THEREFORE, WE CONCLUDE THAT MODIFICATION OF CONTAINERS FROM SINGLE POINT TO A TWO POINT PICK-UP IS OF MINOR COST AND DOES NOT LIMIT THE USE OF THE MODIFIED CONTAINER. FURTHER, RECENT COMPETITIVE PROCUREMENTS OF SINGLE PICK-UP TYPE CONTAINERS AT POPE AIR FORCE BASE, CASTLE AIR FORCE BASE AND WALKER AIR FORCE BASE RESULTED IN AWARDS TO COMPANIES OTHER THAN LODAL, ALTHOUGH LODAL BID IN EACH INSTANCE. THUS, PROVING THAT WE ARE NOT FORCED TO PROCURE SINGLE POINT PICK-UP CONTAINERS ON A SOLE SOURCE BASIS.

"9. IN CONCLUSION, IT IS THE AIR FORCE POSITION THAT: (A) MAXIMUM COMPETITION IS OBTAINED BY OUR CURRENT PROCEDURES IN PROCURING REFUSE TRUCKS AND CONTAINERS; (B) WE WILL NOT BE FORCED, IN THE FUTURE, TO BUY CONTAINERS FROM ONLY ONE SOURCE; AND (C) MAXIMUM UTILIZATION OF AVAILABLE INVENTORY OF CONTAINERS IS BEING OBTAINED.'

IN VIEW OF THESE COMMENTS FROM THE USING AGENCY WHICH HAS THE PRIMARY MANAGEMENT RESPONSIBILITY IN THE MATTER, WE HAVE NO ALTERNATIVE BUT TO DENY THE POINTS OF PROTEST RAISED BY YOUR.

WITH REFERENCE TO YOUR LETTER OF JULY 2, 1965, WITH ENCLOSURES, YOU ARE ADVISED THAT OUR OFFICE DOES NOT INTEND AT THIS TIME TO MAKE A REVIEW OF THE UTILIZATION AND INVENTORY CONTROL OF REFUSE CONTAINERS WITHIN THE DEPARTMENT OF THE AIR FORCE.