B-163416, MAR. 21, 1968

B-163416: Mar 21, 1968

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF JANUARY 26. GS-03B 12536 WHICH WAS SCHEDULED FOR OPENING AT 1:30 P.M. WAS LATER EXTENDED TO 1:30 P.M. CONTAINERS SHALL BE THE TYPE THAT HAVE SIDE OPENINGS. THE GOVERNMENT WILL FURNISH AN ELECTRICAL OUTLET FOR USE IN THE OPERATION OF THIS COMPACTOR. THE CONTRACTOR WILL MAKE THE NECESSARY ELECTRICAL CONNECTIONS TO THE COMPACTOR. IT WAS FURTHER PROVIDED IN THE SPECIFICATIONS THAT "BEFORE BEGINNING THE WORK OF THE CONTRACT. TWO BIDS WERE RECEIVED AND OPENED ON FEBRUARY 15. 830.04 WAS SUBMITTED BY THE SQUARE DEAL TRUCKING CO. 836 WAS SUBMITTED BY THE BALDWIN TRASH COMPANY. YOU CONTEND THAT SUFFICIENT TIME WAS NOT ALLOWED BY THE GOVERNMENT AFTER ISSUANCE OF THE INVITATION FOR BIDS FOR BIDDERS TO MAKE THE NECESSARY ARRANGEMENTS AND COMMITMENTS TO OBTAIN THE CONTAINERS DESCRIBED IN THE INVITATION IN THE EVENT OF AN AWARD TO OTHER THAN THE CURRENT CONTRACTOR.

B-163416, MAR. 21, 1968

TO KEANE TRANSPORT, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF JANUARY 26, 1968, PROTESTING AGAINST THE AWARD OF ANY CONTRACT BY THE GENERAL SERVICES ADMINISTRATION (GSA) UNDER INVITATION FOR BIDS NO. GS-03B 12536 WHICH WAS SCHEDULED FOR OPENING AT 1:30 P.M., JANUARY 29, 1968, BUT WAS LATER EXTENDED TO 1:30 P.M., FEBRUARY 15, 1968.

THE INVITATION, ISSUED ON JANUARY 15, 1968, REQUESTED BIDS FOR FURNISHING ALL REQUIRED TRASH AND DEBRIS REMOVAL AND DISPOSAL SERVICES IN THE ARLINGTON, VIRGINIA, AREA AS ITEMIZED IN THE SPECIFICATIONS FOR A PERIOD OF 1 YEAR BEGINNING ON THE DATE SPECIFIED IN THE NOTICE OF AWARD AT THE SITES INDICATED IN EXHIBITS "A" AND "B" OF THE SCHEDULE. THE INVITATION CONTEMPLATES DETACHED CONTAINER SERVICE AND BULK REMOVAL SERVICE UTILIZING CONTAINERS AS DESCRIBED ON PAGES 1 AND 3 OF THE SCHEDULE:

"FURNISH A STATIONARY PACKER WITH A 40 CUBIC YARD SELF-CONTAINED FIREPROOF AND VERMIN-PROOF METAL CONTAINER AT THE LOADING PLATFORM OF BUILDING -A- AT FRANCONIA, VIRGINIA * * *.'

"THESE CONTAINERS SHALL NOT EXCEED THE HEIGHT PRESCRIBED BELOW. CONTAINERS SHALL BE OF A TYPE TO FACILITATE LOADING BY PERSONNEL FROM THE SIDE OR TOP FROM A NORMAL STANDING POSITION. CONTAINERS SHALL BE OF A TYPE AFFORDING MECHANICAL HANDLING AND HOISTING FOR TRANSPORTATION TO THE PLACE OF DISPOSAL. CONTAINERS SHALL BE THE TYPE THAT HAVE SIDE OPENINGS, CONSTRUCTED SO AS TO PREVENT SPILLAGE OF LIQUIDS OR SCATTERING OF TRASH, DEBRIS AND GARBAGE. MAXIMUM OVERALL HEIGHT OF CONTAINERS; 3 CUBIC YARD - 50 INCHES 5 AND 6 CUBIC YARD 65 INCHES - 10 CUBIC YARD - 84 INCHES.'

THE SPECIFICATIONS ATTACHED TO THE INVITATION REQUIRED THAT DETACHABLE CONTAINER SERVICE SHALL BE PERFORMED WITH CONTRACTOR FURNISHED CONTAINERS MEETING MINIMUM CAPACITY REQUIREMENTS AND PROVIDED AS TO STATIONARY COMPACTOR OPERATIONS AT FRANCONIA, VIRGINIA, THAT:

"THE CONTRACTOR AWARDED ITEM 2 OF THIS CONTRACT SHALL INSTALL A STATIONARY COMPACTOR WITH A 40 CUBIC YARD FIREPROOF AND VERMIN PROOF METAL CONTAINER IN A LOCATION DESIGNATED BY THE BUILDINGS MANAGER ON OR ADJACENT TO THE LOADING PLATFORM. A METAL GUARD RAIL SHALL BE INSTALLED IN FRONT OF THE LOADING HOPPER OF THE COMPACTOR UNIT. THE GOVERNMENT WILL FURNISH AN ELECTRICAL OUTLET FOR USE IN THE OPERATION OF THIS COMPACTOR. THE CONTRACTOR WILL MAKE THE NECESSARY ELECTRICAL CONNECTIONS TO THE COMPACTOR, INCLUDING A PUSHBUTTONSWITCH.'

IT WAS FURTHER PROVIDED IN THE SPECIFICATIONS THAT "BEFORE BEGINNING THE WORK OF THE CONTRACT, THE CONTRACTOR SHALL SUBMIT TO THE CONTRACTING OFFICER A LIST GIVING THE NAME OF THE MANUFACTURER AND BRAND NAME OF EQUIPMENT THAT HE PROPOSES TO USE IN THE PERFORMANCE OF THE WORK AND THE LOCAL LOCATION AT WHICH SUCH EQUIPMENT MAY BE INSPECTED.'

TWO BIDS WERE RECEIVED AND OPENED ON FEBRUARY 15, 1968, AND IT APPEARS THAT YOU DID NOT CHOOSE TO BID. THE LOWEST BID IN THE AGGREGATE AMOUNT OF $175,830.04 WAS SUBMITTED BY THE SQUARE DEAL TRUCKING CO., INC. THE OTHER BID IN THE AGGREGATE AMOUNT OF $193,836 WAS SUBMITTED BY THE BALDWIN TRASH COMPANY, INC. THE CONTRACTING OFFICE CONTEMPLATES AWARDING THE CONTRACT FOR THE REQUIRED SERVICES TO THE SQUARE DEAL TRUCKING CO., INC., AS THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER UNDER THE INVITATION.

YOU CONTEND THAT SUFFICIENT TIME WAS NOT ALLOWED BY THE GOVERNMENT AFTER ISSUANCE OF THE INVITATION FOR BIDS FOR BIDDERS TO MAKE THE NECESSARY ARRANGEMENTS AND COMMITMENTS TO OBTAIN THE CONTAINERS DESCRIBED IN THE INVITATION IN THE EVENT OF AN AWARD TO OTHER THAN THE CURRENT CONTRACTOR. IT IS REPORTED THAT SUBSEQUENT TO THE ISSUANCE OF THE INVITATION, PURSUANT TO THE REQUEST OF AN OFFICIAL OF YOUR FIRM, THE TIME FOR OPENING OF BIDS WAS EXTENDED FROM JANUARY 29, 1968, TO FEBRUARY 15, 1968. IN THIS REGARD, THE RECORD SHOWS THAT A TOTAL PERIOD (INCLUDING THE EXTENSION) OF 31 DAYS ELAPSED BETWEEN THE TIME THE INVITATION FOR BIDS WAS ISSUED AND THE TIME SET FOR OPENING OF BIDS.

SECTION 1-2.202.1 (C) OF THE FEDERAL PROCUREMENT REGULATIONS PROVIDES IN PART:

"* * * AS A GENERAL RULE, BIDDING TIME SHALL BE NOT LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES AND SERVICES AND NOT LESS THAN 30 CALENDAR DAYS WHEN PROCURING OTHER THAN STANDARD COMMERCIAL ARTICLES OR SERVICES. * * *"

SINCE THE 31-DAY BIDDING TIME (JANUARY 15 TO FEBRUARY 15) ALLOWED UNDER THE INVITATION, AS AMENDED, EXCEEDED BOTH THE 15-DAY AND 30-DAY PERIODS PRESCRIBED ABOVE, WE FIND NO BASIS FOR OBJECTING TO THE TIME ALLOWED BY THE AGENCY FOR THE SUBMISSION OF BIDS.

YOU PROTEST AGAINST THE ALLEGED RESTRICTIVE SPECIFICATIONS MADE A PART OF THE INVITATION FOR BIDS. YOU ALLEGE, IN SUBSTANCE, THAT THE REQUIREMENT TO FURNISH A STATIONARY PACKER OF 40-CUBIC-YARD CAPACITY AND CONTAINERS OF VARIOUS SIZES IS UNREASONABLE, AND LIMITS BIDDING TO THE PRESENT CONTRACTOR, THE SQUARE DEAL TRUCKING CO., INC., WHICH IS THE ONLY QUALIFIED FIRM IN THE AREA POSSESSING THE NECESSARY CONTAINERS. YOU STATE THAT SUCH CONTAINERS ARE NOT READILY AVAILABLE TO YOUR FIRM AND THAT EVEN IF THEY WERE READILY AVAILABLE TO YOUR FIRM, IT WOULD BE IMPOSSIBLE TO PLACE THE EQUIPMENT WITHIN THE 24-HOUR PERIOD ALLOWED BY THE INVITATION FOR BIDS FOR REMOVAL OF BULK TRASH AND DEBRIS. YOU ALSO QUESTION WHY THE INVITATION SPECIFIED CONTAINERS WITH EXACT DIMENSIONS WHEN OTHER CONTAINERS WITH DIFFERENT DIMENSIONS COULD SATISFACTORILY SERVE THE REQUIRED PURPOSE.

IN REGARD TO THE REQUIREMENT FOR A STATIONARY PACKER OF 40-CUBIC YARD CAPACITY, WHICH IT IS REPORTED IS A LARGE PACKER OF THE MAXIMUM SIZE GENERALLY IN USE IN THE WASHINGTON METROPOLITAN AREA, THE CONTRACTING OFFICE STATES THAT THE MAXIMUM SIZE WAS SPECIFIED IN ORDER TO MINIMIZE THE NUMBER OF TIMES WHEN THE PACKER WOULD HAVE TO BE REMOVED FROM ITS USUAL LOCATION IN ORDER TO DUMP IT. IT IS REPORTED THAT THE ABSENCE OF THE STATIONARY PACKER CREATES A FIRE HAZARD AT ITS INTENDED LOCATION, THE GSA STORES DEPOT AT FRANCONIA, VIRGINIA. THE OTHER TYPES OF EQUIPMENT SPECIFIED WERE CONTAINERS OF VARIOUS SIZES. THE CONTENTS OF THESE CONTAINERS ARE TRUCKED AWAY WHEN FILLED. THE MAXIMUM ALLOWABLE HEIGHT FOR CONTAINERS OF DIFFERENT SIZES WAS SET OUT IN THE INVITATION IN ORDER TO INFORM BIDDERS OF THE SPACE LIMITATIONS AT THE VARIOUS LOCATIONS WHERE TRASH WOULD BE STORED IN SUCH CONTAINERS.

THE DRAFTING OF SPECIFICATIONS FOR MATERIALS OR SERVICES TO BE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES AND A DETERMINATION AS TO THEIR NEEDS WILL NOT ORDINARILY BE QUESTIONED UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE. 17 COMP. GEN. 554. AS TO THIS PROCUREMENT, WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE SPECIFICATIONS WERE NOT BASED UPON A BONA FIDE DETERMINATION OF THE PRESENT NEEDS OF THE GSA STORES DEPOT UNDER EXISTING CONDITIONS. THE EXERCISE OF SUCH DETERMINATION IS VESTED IN THE PROCUREMENT OFFICIALS INVOLVED IN EACH CASE AND, IN THE ABSENCE OF BAD FAITH, IS NOT SUBJECT TO REVIEW. CLEARLY, IN THE ORDERLY CONDUCT OF ITS BUSINESS THE GOVERNMENT MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE SUCH DISCRETIONARY AUTHORITY WITH ONE OF ITS POTENTIAL SUPPLIERS WHO IS UNABLE OR UNWILLING TO COMPLY WITH THE ADVERTISED NEEDS OF THE GOVERNMENT. 30 COMP. GEN. 368; B-142595, JULY 25, 1960.

YOU STATE THAT THE PRESENT CONTRACT FOR THE REQUIRED SERVICES EXPIRED JANUARY 31, 1968, AND YOU REQUEST ADVICE AS TO WHY THE INVITATION DID NOT STATE THAT THE CONTRACT TO BE AWARDED UNDER THAT INVITATION WOULD BE EFFECTIVE FEBRUARY 1, 1968, RATHER THAN STATING THAT THE EFFECTIVE DATE OF THE CONTRACT WOULD BE THE DATE OF THE AWARD. IN OTHER WORDS, YOU CONTEND THAT A DEFINITE DATE SHOULD HAVE BEEN SPECIFIED AS THE EFFECTIVE DATE OF THE CONTRACT. IN THAT CONNECTION, WE ARE OF THE OPINION THAT IT IS NOT NECESSARY TO STATE IN AN INVITATION THAT THE EFFECTIVE DATE OF THE CONTRACT WILL BE A CERTAIN DATE. RATHER, IT IS SUFFICIENT THAT A BID ACCEPTANCE PERIOD BE SPECIFIED WITH ADVICE, AS HERE, TO BIDDERS THAT UPON ACCEPTANCE WORK MAY BE COMMENCED OR THAT WORK WILL START UPON RECEIPT OF A NOTICE TO PROCEED. THE PRESENT RECORD INDICATES THAT THE PRESENT CONTRACTOR HAS EXTENDED THE PERIOD OF ITS EXISTING CONTRACT TO MARCH 15, 1968, AND THAT THE CONTRACTING OFFICER CONTEMPLATES AWARDING A NEW CONTRACT TO THAT CONTRACTOR ON THAT DATE IF OTHERWISE PROPER.

ON THE PRESENT RECORD, WE SEE NO BASIS FOR OBJECTING TO THE PROPOSED AWARD OF A CONTRACT FOR THE TRASH REMOVAL SERVICES TO THE SQUARE DEAL TRUCKING CO., INC. ACCORDINGLY, YOUR PROTEST IS DENIED.