B-163994, SEPT. 16, 1968

B-163994, SEPT. 16, 1968

TO BEALL MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1968, AND PRIOR CORRESPONDENCE, SETTING FORTH IN DETAIL YOUR PROTEST AGAINST ANY AWARD UNDER INVITATION FOR BIDS NO. ST-68-25 ISSUED BY THE DEPARTMENT OF STATE FOR ELECTRIC POWERED INTEROFFICE CARTS.

THE ABOVE INVITATION REQUESTED BIDS FOR SUPPLYING FOUR INTEROFFICE CARTS WHICH WERE TO BE BELT DRIVEN THROUGH THE REAR WHEELS AND WHICH WERE TO BE MOUNTED ON SEMIPNEUMATIC NONMARKING RUBBER TIRES. AT BID OPENING ON MARCH 27, 1968, ONLY ONE BID, OFFERING A TAYLOR-DUNN MODEL CART, HAD BEEN RECEIVED. THAT BID WAS ACCOMPANIED BY A LETTER WHICH STATED THAT THE SEMIPNUMATIC TIRES TO BE FURNISHED WOULD NOT BE FULLY NONMARKING, AS SUCH WERE NOT AVAILABLE, HOWEVER, THE TIRES FURNISHED WOULD BE BASICALLY NONMARKING IN THE SENSE THAT THEY WOULD NOT MARK UNDER NORMAL OPERATING CONDITIONS.

BEALL PROTESTED ANY AWARD TO THE SOLE BIDDER ON A THREE-FOLD BASIS. THE PRIMARY BASIS FOR THE PROTEST WAS THAT THE SPECIFICATIONS WERE RESTRICTIVE, AS EVIDENCED BY ONLY ONE BID, DUE TO THE REQUIREMENT THAT THE CART BE DRIVEN THROUGH THE REAR WHEELS BY A BELT. THE SECOND BASIS FOR THE PROTEST WAS THAT FULLY NONMARKING SEMIPNEUMATIC TIRES AS REQUESTED IN THE INVITATION DO NOT IN FACT EXIST. THE FINAL BASIS WAS THAT THE SOLE BIDDER WAS NONRESPONSIVE DUE TO THE QUALIFICATION RESPECTING THE NONMARKING TIRES AND IN THAT THE DIMENSIONAL DRAWING SUBMITTED WITH BID DEPICTED HIS CART TO BE IN EXCESS OF THE MAXIMUM 60 INCHES FROM THE FLOOR.

THIS OFFICE HAS LONG RECOGNIZED THAT IT IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING ACTIVITY TO DRAFT SPECIFICATIONS TO ADEQUATELY REFLECT THEIR MINIMUM NEEDS. 17 COMP. GEN. 554; 44 ID. 302. ADDITIONALLY, THE ADMINISTRATIVE AGENTS ARE THOSE TECHNICALLY QUALIFIED TO ASCERTAIN WHETHER THE PRODUCT OFFERED BY A BIDDER CONFORMS TO THE SPECIFICATIONS AND SATISFIES THE GOVERNMENT'S NEEDS. 40 COMP. GEN 294, 297.

IN THE PRESENT INSTANCE, PERSONNEL AT THE STATE DEPARTMENT HAVE ADVISED THAT BELT DRIVEN, REAR WHEEL, DRIVE WAS REQUESTED FOR TWO OVERRIDING REASONS. FIRST, THE LEVEL OF NOISE WAS A MAJOR CONCERN AND IT WAS CONSIDERED THAT A BELT DRIVE WOULD MAKE LESS NOISE THAN A CHAIN DRIVE. SECONDLY, THE DESIRE TO AVOID TIRE MARKS ON THE FLOORS, WHICH ARE SUBJECT TO USE BY THE PUBLIC AND FOREIGN DIGNITARIES, WAS THE MOTIVATING FACTOR FOR REQUIRING DRIVE THROUGH THE TWO REAR WHEELS INSTEAD OF THE SINGLE FRONT TIRE. IT WAS ANTICIPATED THAT THIS WOULD SIGNIFICANTLY DECREASE TIRE SLIPPAGE ON STARTING AND STOPPING WHICH CAUSES TIRE MARKING. BEALL HAS ASSERTED THAT THEIR FRONT WHEEL, CHAIN DRIVEN (ENCASED IN OIL), CART WOULD HAVE EQUALLY SATISFIED THESE REQUIREMENTS. THIS MATTER CLEARLY INVOLVES A CLOSE TECHNICAL EVALUATION BEYOND THE PURVIEW OF THIS OFFICE. 40 COMP. GEN. 294.

SECOND, BEALL MAINTAINS THAT A SEMIPNEUMATIC TIRE DOES NOT EXIST WHICH IS FULLY NONMARKING. THIS OFFICE HAS MADE AN INDEPENDENT SURVEY OF THE TIRE MANUFACTURERS AND HAS BEEN ADVISED THAT NONMARKING TIRES DO EXIST. HOWEVER, THERE ARE VARIOUS DEGREES OF NONMARKING WHICH DEPEND UPON THE CARBON COMPOUND IN THE TIRE. OF COURSE, ANY AND ALL TIRES WILL MARK IF NOT USED IN THE PROPER FASHION. WHILE THIS INFORMATION HAS LED US TO THE CONCLUSION THAT THE NONMARKING REQUIREMENT FOR THE TIRES REQUESTED SHOULD HAVE SET FORTH THE DEGREE OF NONMARKING REQUIRED, THAT IS, THE CONDITIONS UNDER WHICH THEY SHOULD NOT MARK, WE CANNOT PERCEIVE THAT THE FAILURE TO DO SO PRECLUDED BEALL OR ANY OTHER FIRM FROM BIDDING AND THAT THE SPECIFICATION MUST BE INTERPRETED IN VIEW OF THE USE TO WHICH THE CART WAS TO BE PUT. IN THIS CONNECTION, WE NOTE THE INVITATION STATED ONLY THAT THE TIRES BE A NONMARKING TYPE, NOT THAT THEY BE GUARANTEED FULLY NONMARKING UNDER ALL CONDITIONS. THIS LACK OF LUCIDITY AND THE SOLE BIDDER'S QUALIFICATION WHICH SUPPLIED A REASONABLE MEANING WERE AT BEST MINOR IN CHARACTER AND DID NOT PREJUDICE OTHER PROSPECTIVE BIDDERS. SEE 47 COMP. GEN. 175, 178.

CONSIDERABLE NOTE HAS BEEN MADE OF THE FACT THAT ONLY ONE BID WAS RECEIVED PURSUANT TO THE INVITATION FOR BIDS. WHILE WE HAVE OFTEN HELD THAT SPECIFICATIONS SHOULD BE DRAWN TO PERMIT THE WIDEST POSSIBLE COMPETITION, THE RECEIPT OF ONE BID DOES NOT NECESSARILY EVIDENCE A RESTRICTIVE INVITATION. AS WE STATED IN PART IN 45 COMP. GEN. 365, AT PAGE 368:

"IT IS WELL ESTABLISHED THAT THE GOVERNMENT DOES NOT VIOLATE EITHER THE LETTER OR THE SPIRIT OF THE COMPETITIVE BIDDING STATUTES MERELY BECAUSE ONLY ONE FIRM CAN SUPPLY ITS NEED, PROVIDED THE SPECIFICATIONS ARE REASONABLE AND NECESSARY FOR THE PURPOSE INTENDED.'

THE LAST BASIS FOR THE PROTEST IS THAT THE ONLY BID RECEIVED WAS NONRESPONSIVE INASMUCH AS THE DRAWING SUBMITTED WITH THE BID DEPICTED THE CART TO BE SIXTY INCHES FROM THE TOP TO THE BOTTOM EXCLUDING THE HEIGHT OF THE WHEELS. THE INVITATION CLEARLY REQUIRED THE OVERALL MAXIMUM HEIGHT TO BE A TOTAL OF SIXTY INCHES. THE CONTRACTING OFFICER CONCLUDED THAT THE FIGURE AS SHOWN IN THE BID WAS CLEARLY A CLERICAL ERROR IN THAT THE DRAWING WAS MADE TO A SCALE OF 1/8 TO 1 WHICH WOULD MAKE THE CART SIXTY INCHES FROM THE FLOOR TO THE CART TOP. UPON CONFIRMATION FROM THE BIDDER, THIS ERROR WAS CORRECTED. THIS CORRECTION IS CONSISTENT WITH THE PROCUREMENT STATUTES, AND REGULATIONS. SEE 44 COMP. GEN. 77, 82.

ACCORDINGLY, FOR THE SEVERAL REASONS SET FORTH ABOVE YOUR PROTEST MUST BE DENIED.