B-157397, SEP. 23, 1965

B-157397: Sep 23, 1965

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THIS PROCUREMENT WAS INITIALLY ADVERTISED UNDER INVITATION NO. 65 128-11 (B) WHICH SPECIFIED 261 FOUR-LAMP FIXTURES AND 18 TWO-LAMP FIXTURES. FIVE BIDS WERE RECEIVED AND OPENED ON JANUARY 5. NO AWARD WAS MADE THEREUNDER SINCE THE QUANTITY REQUIREMENTS HAD INCREASED AND THE SPECIFICATIONS THEREFORE HAD CHANGED. THE INVITATION WAS THEREFORE CANCELED WITH APPROPRIATE ADVICE TO ALL BIDDERS. THE PROCUREMENT AGENCY WHICH HAS THE PRIMARY RESPONSIBILITY FOR PREPARING SPECIFICATIONS TO MEET ITS NEEDS ADVISED AS FOLLOWS: "THE PRIMARY REVISION TO THE SPECIFICATION WAS IN DROPPING THE LAMP CURRENT FROM 240 MA TO 120 MA. THE BASIC REASON WAS TO OBTAIN A FIXTURE WITH A MUCH LONGER LAMP LIFE. ALTHOUGH THE INITIAL COST OF THE 6-LAMP FIXTURE IS GREATER THAN THE 4-LAMP FIXTURE.

B-157397, SEP. 23, 1965

TO NATIONAL CATHODE CORP.:

WE REFER TO YOUR LETTER OF AUGUST 3, 1965, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE COLD CATHODE LIGHTING CORPORATION UNDER UNITED STATES INFORMATION AGENCY INVITATION FOR BIDS NO. 65-192-11 (B), DATED MARCH 16, 1965, COVERING INTERFERENCE-FREE LIGHTING EQUIPMENT.

THIS PROCUREMENT WAS INITIALLY ADVERTISED UNDER INVITATION NO. 65 128-11 (B) WHICH SPECIFIED 261 FOUR-LAMP FIXTURES AND 18 TWO-LAMP FIXTURES, WITH 240 MILLIAMPERE (MA) TYPE LAMPS, TOGETHER WITH ASSOCIATED TRANSFORMERS, SOCKETS, HANGERS AND LAMPS. FIVE BIDS WERE RECEIVED AND OPENED ON JANUARY 5, 1965, BUT NO AWARD WAS MADE THEREUNDER SINCE THE QUANTITY REQUIREMENTS HAD INCREASED AND THE SPECIFICATIONS THEREFORE HAD CHANGED. THE INVITATION WAS THEREFORE CANCELED WITH APPROPRIATE ADVICE TO ALL BIDDERS. IN COMMENTING ON THE SPECIFICATION CHANGES, THE PROCUREMENT AGENCY WHICH HAS THE PRIMARY RESPONSIBILITY FOR PREPARING SPECIFICATIONS TO MEET ITS NEEDS ADVISED AS FOLLOWS:

"THE PRIMARY REVISION TO THE SPECIFICATION WAS IN DROPPING THE LAMP CURRENT FROM 240 MA TO 120 MA, AND UTILIZING A SIX LAMP FIXTURE IN LIEU OF THE FOUR LAMP FIXTURE TO PRODUCE THE DEGREE OF LIGHT INTENSITY REQUIRED. THE BASIC REASON WAS TO OBTAIN A FIXTURE WITH A MUCH LONGER LAMP LIFE. ALTHOUGH THE INITIAL COST OF THE 6-LAMP FIXTURE IS GREATER THAN THE 4-LAMP FIXTURE, THE SAVINGS THAT WILL RESULT FROM LONGER LAMP LIFE WILL MORE THAN OFFSET THIS GREATER INITIAL COST. THE LAMPS ARE EXTREMELY FRAGILE, AND CONSIDERABLE DIFFICULTY HAS BEEN EXPERIENCED WITH BREAKAGE OF LAMPS DURING SHIPMENT ABROAD.

"ADDITIONAL REVISIONS WERE MADE IN THE SPECIFICATIONS TO REQUIRE "FERRULE" ENDS IN LIEU OF ,CLOVERLEAF" 25MM DIAMETER LAMPS IN LIEU OF 35MM DIAMETER, AS STANDARDIZED BY THE AMERICAN STANDARDS ASSOCIATION AND THE FLUORESCENT LIGHTING ASSOCIATION HANDBOOK.'

THEREAFTER, INVITATION NO. 65-192-11 (B) WAS ISSUED INCORPORATING THE CHANGES STATED ABOVE. SIX BIDS WERE RECEIVED AND OPENED ON THIS INVITATION ON MARCH 31, 1965, FOR 317 SIX-LAMP FIXTURES AND 18 TWO-LAMP FIXTURES WITH 120 MA LAMPS. COLD CATHODE BID A TOTAL AMOUNT OF $27,285.80, FOLLOWED BY THE BIDS OF THE COOL CATHODE LIGHTING CORP. AND THE SWEDISH IRON AND STEEL CORP. YOUR BID WAS THE FIFTH HIGHEST ON THE SPECIFICATION REQUIREMENTS. ALSO, YOU SUBMITTED AN ALTERNATIVE BID IN THE AMOUNT OF $29,588.50 WHEREIN YOU OFFERED 200 MA, FOUR-LAMP FIXTURES IN DISREGARD OF THE SPECIFICATION REQUIREMENTS. SINCE COLD CATHODE SUBMITTED THE LOWEST RESPONSIVE BID, CONTRACT NO. IA-10831 WAS AWARDED TO IT ON MAY 26, 1965, AS THE LOWEST RESPONSIBLE BIDDER.

UPON REVIEW WE FIND NO LEGAL BASES TO QUESTION THIS AWARD WHICH, IN OUR OPINION, WAS MADE IN ACCORDANCE WITH THE COMPETITIVE BIDDING STATUTE CODIFIED AT 41 U.S.C. 253.

YOU QUESTION THE ADMINISTRATIVE WISDOM OF SPECIFYING SIX-LAMP FIXTURES WITH 120 MA LAMPS RATHER THAN FOUR-LAMP FIXTURES WITH 200 MA LAMPS AS ALTERNATIVELY BID BY YOU. WE HAVE HELD THAT THE GOVERNING CRITERIA IN ADVERTISED PROCUREMENT ARE NOT THE DESIRES OF THE BIDDER BUT THE GOVERNMENT'S MINIMUM NEEDS AS REFLECTED IN THE SPECIFICATIONS. COROLLARY THERETO, IS THE PROPOSITION THAT THE GOVERNMENT MAY NOT BE PLACED IN A POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH DO NOT, IN THE CONSIDERED JUDGMENT OF THE RESPONSIBLE AGENCY, MEET ITS NEEDS. COMP. GEN. 251.

YOU NEXT CONTEND, IN EFFECT, THAT COLD CATHODE IS NOT A RESPONSIBLE BIDDER. HOWEVER, THE QUESTION WHETHER A BIDDER IS RESPONSIBLE IS ONE FOR DETERMINATION BY THE PROCUREMENT AGENCY, AND OUR OFFICE ORDINARILY WILL NOT QUESTION SUCH DETERMINATIONS ESPECIALLY WHERE, AS HERE, PRIOR CONTRACTS WITH COLD CATHODE HAVE BEEN SATISFACTORILY PERFORMED AND WHERE THE PROCUREMENT OFFICE HAS SATISFIED ITSELF PRIOR TO AWARD OF THE SUCCESSFUL BIDDER'S RESPONSIBILITY. 38 COMP. GEN. 131.