B-158750, B158474, MAY 4, 1966

B-158750, B158474, MAY 4, 1966

TO SPECIALTY CLOSURES, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM DATED MARCH 20, 1966, WHEREIN YOU PROTESTED A SPECIFICATION CONTAINED IN DEFENSE SUPPLY AGENCY INVITATION FOR BIDS NO. DSA 4-66-4180, AS BEING UNDULY RESTRICTIVE TO YOU AND OTHER SUPPLIERS LOCATED ON THE WEST COAST. THE PERTINENT PART OF THE INVITATION CALLED FOR THE PROCUREMENT OF VARIOUS SIZES AND QUANTITIES OF STEEL STRAPPING SEALS TO BE DELIVERED TO DEFENSE DEPOT TRACY, TRACY, CALIFORNIA, PACKED IN ACCORDANCE WITH INSTRUCTIONS INCLUDED THEREIN FOR ULTIMATE SHIPMENT TO SOUTHEAST ASIA.

AMENDMENT NO. 1, PERTAINING TO SUB-ITEMS NO. A-0001 AND C-0010, REQUIRED THAT UNDER CERTAIN CONDITIONS THE LOADS BE PALLETIZED IN SUCH A MANNER THAT THEY COULD BE MOVED IN AN UNBROKEN STATE FROM THE INITIAL SOURCE TO THE ULTIMATE DESTINATION WITH NORMAL HANDLING EQUIPMENT. THE PALLETIZATION WAS TO BE DONE IN ACCORDANCE WITH SPECIFICATIONS CONTAINED IN MILITARY STANDARDS PAMPHLET MIL STD-147A, WHICH GENERALLY REQUIRES THE USE OF HARDWOOD PALLETS.

THE REASONS UNDERLYING ISSUANCE OF THE AMENDMENT ARE CONTAINED IN TWO FORM LETTERS, INCLUDED IN THE ADMINISTRATIVE REPORT, FROM THE DEFENSE SUPPLY AGENCY TO ITS FIELD ACTIVITIES. THE MARCH 9, 1966, LETTER STATES THAT ALL CARGO SHIPMENT FROM DSA DEPOTS OR COMMERCIAL STORAGE ACTIVITIES TO SOUTHEAST ASIA WILL BE UNITIZED AND/OR PALLETIZED TO THE MAXIMUM EXTENT PRACTICABLE. THIS IS FURTHER EXPLAINED IN THE SECOND LETTER DATED APRIL 15, 1966, WHICH READS, IN PART, AS FOLLOWS:

"THE BASIC GENERAL REASON FOR THE REQUIREMENT FOR HARDWOOD PALLETS IS THAT THEY WILL MORE CAPABLY WITHSTAND THE RIGORS OF MULTIPLE HANDLING, FREQUENT REUSE AND INCLEMENT CONDITIONS UNDER WHICH SUPPLIES ARE STORED - PARTICULARLY UNDER WARTIME CONDITIONS SUCH AS IN SEA - THAN WILL THE SOFTWOOD PALLETS. THE HARDWOOD PALLET IS THE STANDARD TYPE, ADOPTED BY THE MILITARY DEPARTMENTS FOR USE THROUGHOUT THE DEPARTMENT OF DEFENSE WAREHOUSING SYSTEM, AS STATED IN THE JOINT STORAGE AND MATERIALS HANDLING MANUAL (DSAM 4145.1). IT IS ALSO REQUIRED AS A LOAD BASE FOR CARGO UNITIZATION THROUGHOUT THE DOD SYSTEM AS SPECIFIED IN DOD INSTRUCTION 4100.36,"CARGO UNITIZATION," 8 JULY 1964. THE OBJECTIVE OF THESE POLICIES FOR USE OF HARDWOOD PALLETS IS TO HAVE A LOAD BASE FOR UNITIZED SHIPMENTS WHICH WILL ASSURE THEIR DELIVERY IN AN UNBROKEN OR UNDAMAGED STATE IRRESPECTIVE OF THE SHIPMENT AND HANDLING HAZARDS INCLUDING CARGO HANDLING SYSTEMS--- FREQUENTLY UNCONVENTIONAL--- TO WHICH THEY MAY BE EXPOSED.'

WHILE DEVIATIONS FROM THE ABOVE-STATED STANDARD WILL BE ALLOWED UNDER CERTAIN CIRCUMSTANCES, THE AGENCY ADVISES IT WILL BE DONE ONLY FOR THE MOST COGENT REASONS, AND NO DEVIATION IS CONTEMPLATED SO LONG AS COMPETITIVE BIDDERS WILL OFFER TO MEET THE REQUIREMENT OF THE STANDARD AT REASONABLE PRICES.

YOUR REQUEST THAT THE TWO CITED ITEMS BE REMOVED FROM THE INVITATION IS ESSENTIALLY PREDICATED UPON THE ARGUMENT THAT SUPPLIERS IN YOUR LOCALE CANNOT EFFECTIVELY COMPETE WITH SUPPLIERS IN DIFFERENT PARTS OF THE COUNTRY, IN THAT HARDWOOD FOR CONSTRUCTION OF THE PALLETS IS NOT AVAILABLE ON THE WEST COAST. WHILE IT IS THE DUTY OF THIS OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368; 33 ID. 586. THE GOVERNMENT IS NOT 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. 36 COMP. GEN. 251.

IN OUR VIEW THE ABOVE-STATED REASONS AMPLY JUSTIFY INCLUSION OF THE QUESTIONED SPECIFICATION IN THE INVITATION. THE MERE FACT THAT YOU ARE AT A COMPETITIVE DISADVANTAGE IN COMPLYING WITH THE REQUIREMENT DOES NOT WARRANT THE CONCLUSION THAT IT IS DISCRIMINATORY OR RESTRICTIVE TO THE POINT OF PRECLUDING FULL AND FREE COMPETITION.

ACCORDINGLY, YOUR PROTEST IS DENIED.

IN YOUR LETTER OF APRIL 12, 1966, YOU REFER TO OUR DECISION OF APRIL 7, 1966, B-158474, AND INQUIRE CONCERNING THE STATUS OF AWARDS OF THE ITEMS IN INVITATION FOR BIDS NO. DSA-4-66-4180, WHICH WERE NOT INVOLVED IN YOUR PROTEST UNDER THAT INVITATION. THE DEFENSE SUPPLY AGENCY HAS ADVISED US AS FOLLOWS:

"WHEN A PROTEST IS MADE AGAINST THE AWARD OF ONE OR MORE ITEMS ON AN INVITATION FOR BIDS, AWARDS ON ITEMS NOT INVOLVED IN THE PROTEST OR WHICH WOULD NOT BE AFFECTED BY THE DECISION ON THE PROTEST WOULD NOT BE WITHHELD PENDING RESOLUTION OF THE PROTEST, UNLESS THE BIDS ON THESE ITEMS WERE TIED IN WITH THE PROTESTED ITEM OR ITEMS. IN THE CASE OF INVITATION FOR BIDS DSA-4-66-4180, AWARDS HAVE NOT YET BEEN MADE ON THE ITEMS NOT INVOLVED IN THE PROTEST BECAUSE THE BIDS ON THESE ITEMS ARE STILL BEING EVALUATED. IT IS ANTICIPATED, HOWEVER, THAT AWARDS WILL BE MADE IN THE NEAR FUTURE.'