B-163666, JUNE 3, 1968, 47 COMP. GEN. 701

B-163666, JUNE 3, 1968, 47 COMP. GEN. 701

CONTRACTS - SPECIFICATIONS - MILITARY - "ALL OR NONE" BIDDING REQUIREMENT AN "ALL OR NONE" BIDDING LIMITATION IN AN INVITATION SOLICITING BIDS FOR THE PURCHASE OF VARIOUS TYPES OF REFUSE COLLECTION, MATERIALS HANDLING TRUCKS WITH CONTAINER HOISTING DEVISES, AND FOR DETACHABLE REFUSE CONTAINERS SUITABLE FOR USE WITH THE TRUCKS TO BE MANUFACTURED IN ACCORDANCE WITH PERFORMANCE TYPE MILITARY SPECIFICATIONS IS NOT RESTRICTIVE OF COMPETITION WHERE THE LIMITATION IS NECESSARY TO INSURE THE PURCHASE OF A WORKABLE SYSTEM FOR THE COLLECTION AND HANDLING OF TRASH AND IS BASED UPON A BONA FIDE DETERMINATION THAT THE NECESSARY DEGREE OF COMPATIBILITY OF COMPONENTS OF THE ADVERTISED SYSTEM CANNOT BE OTHERWISE ACHIEVED UNDER THE REFEERNCED MILITARY SPECIFICATIONS.

TO THE ANCHOR MACHINE CO., INC., JUNE 3, 1968:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 23, 26, AND MARCH 20, 1968, PROTESTING THE AWARD OF A CONTRACT TO ANY BIDDER UNDER INVITATION FOR BIDS NO. DAAE07-68-B-0927, ISSUED BY THE UNITED STATES ARMY TANK AND AUTOMOTIVE COMMAND, WARREN, MICHIGAN. WE ARE ADVISED THAT BIDS HAVE BEEN RECEIVED UNDER THE INVITATION BUT THAT THE BID OPENING HAS BEEN DELAYED BY THE PROCURING ACTIVITY PENDING OUR DECISION IN THE MATTER.

THE INVITATION, ISSUED FEBRUARY 6, 1968, SOLICITED BIDS FOR THE PURCHASE OF VARIOUS TYPES OF REFUSE COLLECTION, MATERIALS-HANDLING TRUCKS WITH CONTAINER HOISTING DEVICES, AND FOR DETACHABLE REFUSE CONTAINERS SUITABLE FOR USE WITH THE TRUCKS. THE ADVERTISED TRUCKSAND CONTAINERS ARE LISTED IN THE INVITATION UNDER FIVE GROUPS (I THROUGH V), COMPRISING AS AMENDED, A TOTAL OF 18 INDIVIDUAL ITEMS AND NUMEROUS SUBITEMS. THE INVITATION PROVIDES THAT ALL OF THE ITEMS ARE TO BE MANUFACTURED IN ACCORDANCE WITH THE SEVERAL MILITARY SPECIFICATIONS IDENTIFIED THEREIN. PARAGRAPH 37 OF THE "ADDITIONAL SOLICITATION INSTRUCTIONS AND CONDITIONS" ADVISED PROSPECTIVE BIDDERS, PER AMENDMENT NO. 2, FEBRUARY 23, 1968, THAT BIDS WERE TO BE SUBMITTED ON AN "ALL OR NONE" BASIS FOR EACH OF THE FIVE GROUPS OF ITEMS, AND THAT ANY BID NOT IN CONFORMANCE WITH THE REQUIREMENT WILL BE CONSIDERED NONRESPONSIVE. SPECIFICALLY YOUR PROTEST HAS REFERENCE TO THE "ALL OR NONE" REQUIREMENT OF THE INVITATION MADE APPLICABLE TO THE ITEMS INCLUDED IN GROUP I, V, VI, VIII, AND IX. GROUP I INCLUDES MATERIALS HANDLING TRUCKS AND REFUSE CONTAINERS OF DIFFERENT SIZES; GROUP V INCLUDES TILTING FRAME TRUCKS FOR CONTAINER HANDLING AND VARIOUS TYPES OF DETACHABLE CARGO BODIES; GROUP VI INCLUDES REFUSE COLLECTION TRUCKS OF VARIOUS TYPES AND REFUSE CONTAINERS; GROUP VIII INCLUDES REFUSE COLLECTION TRUCKS WITH TILT CABS, COMPACTION TYPE, AND VARIOUS SIZES OF REFUSE CONTAINERS; AND GROUP IX INCLUDES REFUSE COLLECTION TRUCKS SIMILAR TO THOSE IN GROUP VIII AND VARIOUS SIZES OF REFUSE CONTAINERS.

YOU CONTEND THAT THE "ALL OR NONE" BID PROVISIONS OF THE INVITATION ARE AMBIGUOUS AND UNDULY RESTRICTIVE OF COMPETITION SINCE ONLY THOSE POTENTIAL SUPPLIERS WHO ARE CAPABLE OF MANUFACTURING OR SUPPLYING ALL ITEMS WITHIN THE NAMED GROUPS COULD PARTICIPATE IN THE PROCUREMENT. IN THE LATTER REGARD, YOU STATE THAT THERE IS NO JUSTIFICATION FOR THE SOLICITATION OF BIDS ON AN "ALL OR NONE" BASIS TO INSURE COMPATIBILITY OF THE ADVERTISED COMPONENTS, AS ALLEGED BY THE PROCURING AGENCY, SINCE THE REFUSE CONTAINERS ARE TO BE CONSTRUCTED PURSUANT TO REFERENCED MILITARY SPECIFICATIONS WHICH, IN ITSELF, INSURES COMPATIBILITY OF THE REFUSE CONTAINERS WITH THE TRUCKS.

YOUR LETTER OF MARCH 20, SUBMITTED IN FURTHER SUPPORT OF YOUR PROTEST, STATES AS FOLLOWS:

AS I INDICATED TO YOU, WE ARE, TO A LIMITED EXTENT, IN THE REFUSE HAULING TRUCK BUSINESS. WE MANUFACTURE SPECIALIZED CLOSED CONTAINERS USED WITH OUR REFUSE COMPACTION SYSTEM. A PROPERLY EQUIPPED TRUCK IS NECESSARY TO HANDLE THESE SPECIAL CLOSED CONTAINERS. NORMALLY, WE HAVE THE CUSTOMER FURNISH THIS TRUCK TO US AND WE FURNISH THE NECESSARY HOISTING EQUIPMENT AND INSTALL IT ON THE TRUCK.

IT IS COMPLETELY OUTSIDE OF OUR CAPABILITY TO FURNISH THE VEHICLES, AS PER THE SPECIFICATIONS, FOR THIS SOLICITATION. WE ARE PRINCIPALLY A MANUFACTURER OF CONTAINERS, REGARDLESS OF SIZE OR CONFIGURATION, ETC., AND BUILD THEM FOR BOTH COMMERCIAL USE AND TO THE MILITARY SPECIFICATION APPLICABLE TO THIS SOLICITATION. WE CAN OFFER CONTAINERS IN COMPLIANCE WITH SPECIFICATION MIL-R-22827B AT EXTREMELY COMPETITIVE PRICES AND COMPLETELY COMPATIBLE WITH THE USER'S HAULING EQUIPMENT, REGARDLESS OF ITS TYPE, MAKE OR MANUFACTURE. IT IS FOR THESE FOREGOING REASONS THAT WE HAVE ENTERED OUR PROTEST RELATIVE TO THE PRESENT "METHOD OF AWARD.'

THE PROCURING ACTIVITY HAS ADVISED US THAT IT AGREES WITH YOUR CONTENTION THAT THE "ALL OR ONE" BIDDING PROVISIONS ARE RESTRICTIVE OF COMPETITION INSOFAR AS THEY RELATE TO GROUP I, AND THAT THE INVITATION WILL BE AMENDED TO REMOVE THE LIMITATION AS TO GROUP I PRIOR TO BID OPENING. HOWEVER, WITH REGARD TO YOUR PROTEST AGAINST THE "ALL OR NONE" REQUIREMENT AS IT IS APPLICABLE TO THE REMAINING GROUPS OF THE INVITATION, THE PROCURING ACTIVITY IS CONVINCED THAT THE "ALL OR ONE" BIDDING LIMITATION IS NECESSARY IN ORDER TO INSURE THE PURCHASE BY THE GOVERNMENT OF A WORKABLE SYSTEM FOR THE COLLECTION AND HANDLING OF TRASH AND RUBBISH. EACH OF THE ADVERTISED REFUSE COLLECTION SYSTEMS IS COMPRISED OF A TRUCK, A CARGO BODY, AND A NUMBER OF CONTAINERS, ALL OF WHICH MUST BE COMPATIBLE WITH EACH OTHER. THE MILITARY SPECIFICATIONS REFERENCED IN THE INVITATION ARE PERFORMANCE-TYPE SPECIFICATIONS WHICH ARE DESIGNED WHICH ARE DESIGNED TO PERMIT THE PURCHASE OF AN INDEFINITE NUMBER OF STYLES AND DESIGNS OF REFUSE COLLECTION SYSTEMS AVAILABLE FROM SEVERAL KNOWN SOURCES, BUT WHICH, DO NOT OF THEMSELVES, INSURE COMPATIBILITY BETWEEN THE DIFFERENT MANUFACTURERS' STYLES AS YOU ALLEGE. THE CONTRACTING OFFICER STATES IN THIS REGARD THAT:

* * * EVEN THOUGH THERE MAY BE IN GIVEN INSTANCES INTERCHANGEABILITY OF CONTAINERS AND TRUCKS BETWEEN THE VARIOUS SYSTEMS, THE TRUCKS OF ONE SUPPLIER, FOR EXAMPLE, WILL NOT NECESSARILY FIT AND MATCH WITH AND PICK UP AND HANDLE THE CONTAINERS OF A SECOND SUPPLIER. TO ASSURE COMPATIBILITY BETWEEN THE VARIOUS PARTS OF A REFUSE COLLECTION SYSTEM, "ALL OR NONE" REQUIREMENTS MAY BE NECESSARY. IT WOULD BE POINTLESS, FOR INSTANCE, TO PURCHASE CONTAINERS FROM ONE SOURCE AND TRUCKS FROM A SECOND SOURCE WHEN THE HANDLING DEVICES ON THE TRUCKS FURNISHED BY THE SECOND SOURCE WOULD NOT MATCH WITH AND PICK UP AND UNLOAD THE CONTAINERS OF THE FIRST SUPPLIER.

THE ADMINISTRATIVE JUSTIFICATION SUPPORTING THE REQUIREMENT FOR COMPATIBILITY WITHIN THE ADVERTISED SYSTEMS WHICH, IT IS REPORTED, CANNOT BE INSURED SOLELY BY USE OF THE REFERENCED MILITARY SPECIFICATIONS WITHOUT APPLICATION OF THE "ALL OR NONE" BIDDING LIMITATION, IS AS FOLLOWS:

A. THE CARGO BODIES ARE DRAWN UP OR RELEASED FROM THE TRUCKS BY A SYSTEM OF MATCHING AND MATING RAILS UPON WHICH THE CARGO BODY SLIDES UP ONTO OR DOWN FROM THE TRUCK. AS THE SPECIFICATIONS DO NOT PRESCRIBE LOCATIONS OR DIMENSIONS, THE RAILS AND THEIR LOCATIONS WILL PROBABLY VARY FROM ONE MANUFACTURER'S SYSTEM TO ANOTHER. THUS, THERE IS NO ASSURANCE THAT THE CARGO BODY OF ONE SYSTEM WILL FUNCTION WITH THE TRUCK OF ANOTHER, IN THE ABSENCE OF "ALL OR NONE" PROVISIONS.

B. THE MOTIVE FORCE LIFTING THE CARGO BODY ONTO THE TRUCK AND RELEASING THE CARGO BODY FROM THE TRUCK MAY BE EITHER A CYLINDER TYPE OR A WINCH TYPE, BOTH OF WHICH ARE ESSENTIALLY DIFFERENT AND MAY BE ENTIRELY INCOMPATIBLE WITH EACH OTHER.

C. THE COMPACTOR WITHIN THE CARGO BODY (ITEM 009) OPERATES UPON A HYDRAULIC SYSTEM. THE POWER TO OPERATE THIS SYSTEM IS GENERATED BY THE TRUCK. THE SPECIFICATIONS DO NOT CALL OUT THE TYPES OF HOSES AND CONNECTIONS TO BE USED NOR THE LOCATIONS IN THE CARGO BODY THROUGH WHICH THE HOSES AND HYDRAULIC CONNECTIONS MUST PASS OR TERMINATE. THE RESULT IS THAT THE HYDRAULIC SYSTEM OF ONE TRUCK MANUFACTURER CANNOT BE EXPECTED TO BE COMPATIBLE AND FUNCTION IN CONJUNCTION WITH THE HYDRAULIC SYSTEM IN A CARGO BODY MADE BY ANOTHER MANUFACTURER.

3. WITH RESPECT TO THE REFUSE COLLECTION TRUCKS WITH FRONT CONTAINER HOISTING DEVICES AND THEIR CORRESPONDING CONTAINERS, INCOMPATIBILITY CAN RESULT, IF THE "ALL OR NONE" REQUIREMENTS ARE NOT PRESERVED, WITH RESPECT TO THE ARMS OF THE TRUCK FRONT HOISTING MECHANISM AND THE CORRESPONDING HOISTING ATTACHMENTS ON THE CONTAINERS BY WHICH THE CONTAINERS ARE LIFTED. IN THESE SYSTEMS (ITEMS 0010 THROUGH 0017, ITEMS 0019 THROUGH 0022, AND ITEMS 0023 THROUGH 0028), THE ARMS ON THE TRUCK FRONT HOISTING MECHANISM MAY VARY IN A NUMBER OF RESPECTS FROM MANUFACTURER TO MANUFACTURER. THEY MAY BE A PIN TYPE, A SLEEVE TYPE, OR PICK UP THE CONTAINER FROM THE BOTTOM--- AND STILL COMPLY WITH THE PERFORMANCE REQUIREMENTS IN THE TRUCK SPECIFICATIONS. EVEN IF THE ARMS ON THE TRUCK'S HOISTING DEVICE SHOULD MATE WITH THE HOISTING ATTACHMENTS ON THE CONTAINER, THE CONTAINER HOISTING ATTACHMENT'S LOCATION MAY DIFFER FROM MANUFACTURER, WITH THE RESULT THAT THE CONTAINER OF ONE MANUFACTURER MIGHT NOT CLEAR THE TRUCK CAB OF ANOTHER MANUFACTURER. FURTHER, EVEN IF THE TYPE OF ARM ON THE FRONT HOISTING MECHANISM IS OF A GENERALLY COMPATIBLE TYPE WITH THE CORRESPONDING HOISTING ATTACHMENT ON THE CONTAINER, THE EXACT MEASUREMENTS AND THE CONFIGURATIONS OF THE ARM MUST CORRESPOND TO THE MEASUREMENTS AND CONFIGURATIONS UPON THE CONTAINER HOISTING ATTACHMENTS. IN ALL THESE SYSTEMS (ITEMS 0010 THROUGH 0017, ITEMS 0019 THROUGH 0022, AND ITEMS 0023 THROUGH 0028), NEW SYSTEMS ARE BEING PURCHASED AND IT CANNOT BE KNOWN UNTIL OPENING WHO WILL BE THE SUCCESSFUL BIDDER AND TRUCK MANUFACTURER. THUS, IF THE TRUCKS AND CONTAINERS ARE TO FUNCTION AS A SYSTEM WITHOUT ALTERATION BY THE GOVERNMENT, AS SPECIFIED, THE "ALL OR NONE" REQUIREMENTS MUST BE RETAINED.

WE HAVE HELD THAT THE FORMAL ADVERTISING STATUTE REQUIRES THAT EVERY EFFORT BE MADE TO DRAFT INVITATIONS FOR BIDS IN SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE GOVERNMENT'S ACTUAL NEEDS. AS TO THE PRESENT PROCUREMENT, WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE USE OF THE "ALL OR NONE" BIDDING LIMITATION IS NOT BASED UPON A BONA FIDE DETERMINATION BY THE PROCURING ACTIVITY THAT THE NECESSARY DEGREE OF COMPATIBILITY OF COMPONENTS OF THE ADVERTISED SYSTEMS CANNOT BE OTHERWISE ACHIEVED UNDER THE REFERENCED MILITARY SPECIFICATIONS. IN B-151738, AUGUST 19, 1963, WHEREIN WE CONSIDERED A PROTEST AGAINST AN INVITATION REQUIREMENT FOR AGGREGATE BIDDING IN THE PROCUREMENT OF OSCILLOSCOPES AND CAMERAS, WE HELD:

IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION ASTO WHETHER THE BIDS RECEIVED ARE RESPONSIVE TO SUCH SPECIFICATIONS ARE MATTERS WHICH ARE PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE REQUIRING THE MATERIALS OR EQUIPMENT. 21 COMP. GEN. 1132, 1136; B- 134846, JUNE 12, 1958. WHEN A SPECIFICATION LENDS ITSELF TO OPEN COMPETITION AS REQUIRED BY APPLICABLE STATUTES AND IT IS SHOWN, WHEN CONSIDERING ALL OF THE FACTS, THAT ANY RESTRICTIVE PROVISIONS THEREIN ARE NO GREATER THAN NECESSARY TO PROTECT LEGITIMATE INTERESTS OF THE GOVERNMENT, OUR OFFICE WILL NOT INTERVENE.

IN VIEW OF THE UNSATISFACTORY PAST EXPERIENCE BY THE FEDERAL AVIATION AGENCY WITH OSCILLOSCOPES AND CAMERAS MADE BY MISCELLANEOUS MANUFACTURERS, AND IN VIEW OF THE TECHNICAL REQUIREMENTS OF THIS PROCUREMENT, WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN OBJECTING IN THIS INSTANCE TO THE AGENCY'S DETERMINATION THAT ITS INTERESTS REQUIRED THE PROCUREMENT OF BOTH THE OSCILLOSCOPES AND THE CAMERAS FROM A SINGLE SOURCE. ACCORDINGLY, WE FIND THAT THE REQUIREMENT FOR AGGREGATE BIDS IN THE INVITATION WAS NOT IN CONTRAVENTION OF THE STATUTES REQUIRING OPEN AND COMPETITIVE BIDDING.

CLEARLY, IN THE ORDERLY CONDUCT OF THE GOVERNMENT'S BUSINESS, THE GOVERNMENT AS A BUYER MAY NOT BE PLACED IN THE POSITION OF HAVING TO PURCHASE A PORTION OF AN ADVERTISED SYSTEM FROM A POTENTIAL SUPPLIER WHO IS UNABLE OR UNWILLING TO SUPPLY THE ENTIRE SYSTEM BUT ONLY CERTAIN COMPONENTS OF THE SYSTEM. MOREOVER, THE TECHNICAL AND/OR ENGINEERING QUESTION AS TO WHETHER THE DESIRED COMPATIBILITY OF COMPONENTS MAY BE ATTAINED OTHER THAN THROUGH THE PURCHASE OF A COMPLETE RUBBISH COLLECTION SYSTEM IS NOT FOR RESOLUTION BY OUR OFFICE. RATHER, IN ACCORDANCE WITH OUR ESTABLISHED RULE IN AREAS SUCH AS HERE INVOLVED, WE MUST RELY UPON THE TECHNICAL JUDGMENT OF THE PROCUREMENT ACTIVITY.

IN VIEW OF THE FACTS REPORTED, WE MUST CONCLUDE THAT THE "ALL OR NONE" BIDDING LIMITATION IS NOT OBJECTIONABLE UNDER THE CIRCUMSTANCES OF THIS PROCUREMENT.