B-168348, JAN. 14, 1970

B-168348: Jan 14, 1970

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AN AMENDMENT TO A MULTI-ITEM INVITATION THAT PROVIDED FOR AWARD OF CERTAIN SPECIFIC ITEMS TO A SINGLE BIDDER BECAUSE COMPATIBILITY WAS ESSENTIAL RENDERED INOPERATIVE THE ORIGINAL INVITATION PROVISION PROVIDING FOR ACCEPTANCE OF ANY ITEM OR GROUP OF ITEMS. ALTHOUGH IT WAS ADVERSE TO THE LOW BIDDER WHO BID ON ALL BUT ONE OF THE REQUIRED ITEMS. IS NOT OBJECTIONABLE SINCE IT WAS BASED ON BONA FIDE DETERMINATION OF COMPATIBILITY A MATTER FOR THE CONTRACTING AGENCY. TO FEDERAL SIGN AND SIGNAL CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 7. PROSPECTIVE BIDDERS WERE ADVISED THAT AN AWARD WOULD BE MADE TO ONE BIDDER ON ITEMS 1 THROUGH 10. AMENDMENTS NOS. 1 AND 2 WERE ISSUED ON OCTOBER 3 AND 17.

B-168348, JAN. 14, 1970

BID PROTEST--ITEM V. AGGREGATE AWARDS DECISION TO FEDERAL SIGN AND SIGNAL CORPORATION DENYING PROTEST AGAINST ACTION OF DEFENSE SUPPLY AGENCY IN GROUPING OF CERTAIN ITEMS OF RADIO EQUIPMENT AND AWARD TO ONE BIDDER. AN AMENDMENT TO A MULTI-ITEM INVITATION THAT PROVIDED FOR AWARD OF CERTAIN SPECIFIC ITEMS TO A SINGLE BIDDER BECAUSE COMPATIBILITY WAS ESSENTIAL RENDERED INOPERATIVE THE ORIGINAL INVITATION PROVISION PROVIDING FOR ACCEPTANCE OF ANY ITEM OR GROUP OF ITEMS. SUCH A DETERMINATION, ALTHOUGH IT WAS ADVERSE TO THE LOW BIDDER WHO BID ON ALL BUT ONE OF THE REQUIRED ITEMS, IS NOT OBJECTIONABLE SINCE IT WAS BASED ON BONA FIDE DETERMINATION OF COMPATIBILITY A MATTER FOR THE CONTRACTING AGENCY.

TO FEDERAL SIGN AND SIGNAL CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 7, 1969, PROTESTING AGAINST THE ACTION OF THE DEFENSE SUPPLY AGENCY, OPERATING MATERIEL DIVISION, PROCUREMENT BRANCH, DEFENSE DEPOT OGDEN, OGDEN, UTAH, IN GROUPING ITEMS 3, 4, 5, 6, 8, 9, AND 10 OF INVITATION FOR BIDS (IFB) NO. DSA-003-70-B-0106, AS AMENDED, FOR AWARD TO ONE BIDDER.

ON SEPTEMBER 23, 1969, THE DEFENSE DEPOT OGDEN, OGDEN, UTAH, ISSUED IFB NO. DSA-003-70-B-0106 FOR THE PROCUREMENT OF 10 ITEMS OF RADIO EQUIPMENT, BRAND NAME OR EQUAL. ON PAGE 10 OF THE INVITATION, PROSPECTIVE BIDDERS WERE ADVISED THAT AN AWARD WOULD BE MADE TO ONE BIDDER ON ITEMS 1 THROUGH 10, SUBJECT, HOWEVER, TO THE GOVERNMENT'S RIGHTS UNDER PARAGRAPH 10 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS TO "ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY OFFER." AMENDMENTS NOS. 1 AND 2 WERE ISSUED ON OCTOBER 3 AND 17, 1969, IN ORDER TO MODIFY CERTAIN TECHNICAL REQUIREMENTS. ON OCTOBER 20, 1969, AMENDMENT NO. 3 WAS ISSUED EXTENDING THE TIME OF THE BID OPENING TO OCTOBER 30, 1969, AND PROVIDING THAT AN AWARD WOULD BE MADE TO A SINGLE BIDDER AS TO ONLY ITEMS 3, 4, 5, 6, 8, 9, AND 10 IN ORDER TO INSURE COMPATIBILITY OF THE EQUIPMENT CONCERNED.

IN RESPONSE TO THE ABOVE INVITATION, SIX BIDS WERE RECEIVED, INCLUDING THE BID OF YOUR FIRM. A REVIEW OF ALL BIDS RECEIVED DISCLOSED THAT THE ONLY RESPONSIVE BID RECEIVED WAS FROM MOTOROLA COMMUNICATIONS & ELECTRONICS, INC. WHILE THE BID OF YOUR FIRM WAS THE LOWEST RECEIVED ON ITEMS 4, 5, 6, 8, 9, AND 10, IT WAS DETERMINED THAT SINCE YOU HAD FAILED TO BID ON ITEM 3, YOUR BID WAS NONRESPONSIVE TO THE INVITATION REQUIREMENT CALLING FOR AWARD OF ALL OF THESE ITEMS TO A SINGLE BIDDER. IT IS REPORTED THAT TWO OTHER BIDS WERE ALSO DETERMINED TO BE NONRESPONSIVE TO THE IFB BECAUSE THE BIDDERS HAD FAILED TO QUOTE ON ITEM 3. ANOTHER BIDDER BID ON ONLY A PORTION OF ITEM 7, AND THE SIXTH BIDDER OFFERED TO DELIVER ON A BASIS OTHER THAN SPECIFIED IN THE IFB. IT IS UNDERSTOOD INFORMALLY THAT AN AWARD UNDER THE SUBJECT INVITATION IS BEING WITHHELD PENDING A DECISION BY OUR OFFICE ON YOUR PROTEST.

YOU CONTEND THAT THERE IS NO NEED FOR THE GOVERNMENT TO PURCHASE ITEMS 3, 4, 5, 6, 8, 9, AND 10 FROM A SINGLE SOURCE OF SUPPLY. YOU STATE THAT THE BID OF YOUR FIRM WAS LOW ON ITEMS 4, 5, 6, 8, 9, AND 10; THAT YOUR FIRM DID NOT SUBMIT A BID ON THE OTHER ITEMS, INCLUDING ITEM 3, BECAUSE YOUR COMPANY DOES NOT MANUFACTURE THE EQUIPMENT COVERED BY THESE ITEMS; AND THAT YOUR BID ON ITEMS 4, 5, 6, 8, 9, AND 10 IS $1,977.60 LOWER THAN THE BID OF MOTOROLA COMMUNICATIONS & ELECTRONICS, INC; ON THESE ITEMS. YOU STATE THAT IT IS UNDERSTANDABLE THAT ITEMS 1, 2, AND 3, WHICH WORK AS A SINGLE SELECTIVE CALL COMMUNICATION SYSTEM, MIGHT BE DESIRABLE TO BE PURCHASED FROM ONE SUPPLIER; HOWEVER, ITEMS 4, 5, AND 6 ARE FOR PORTABLE RADIOS OF A NONSELECTIVE CALL, EACH TO WORK WITH INDEPENDENT COMMUNICATION NETWORKS. ALSO, YOU CONTEND THAT THE GOVERNMENT SHOULD CHOOSE THE LOWEST BID FOR THESE ITEMS THAT MEETS THE SPECIFICATIONS. YOU MAINTAIN FURTHER THAT THERE IS NO INTERCOMMUNICATION REQUIREMENT AMONG ITEMS 3, 4, 5, AND 6 AND THAT ITEMS 8, 9, AND 10 ARE FOR BATTERY CHARGING EQUIPMENT WHICH SHOULD BE PURCHASED FOR THE EQUIPMENT WITH WHICH IT IS TO BE USED.

IT IS YOUR OPINION THAT AMENDEMENT NO. 3 WAS ISSUED IN ERROR SINCE IT WOULD APPEAR TO BE TO THE BENEFIT OF THE GOVERNMENT PRICE WISE NOT TO HAVE SUCH A RESTRICTION AS TO THE AWARDING OF CERTAIN ITEMS TO A SINGLE BIDDER. IN ANY EVENT, IT IS POINTED OUT THAT THE GOVERNMENT HAS A RIGHT UNDER PARAGRAPH 10, REFERRED TO ABOVE, TO PURCHASE ITEMS 4, 5, 6, 8, 9, AND 10 FROM YOUR FIRM WHICH OFFERED THE LOWEST BID THERON TO FURNISH EQUIPMENT THAT MEETS THE REQUIREMENTS OF THE SPECIFICATIONS.

APPARENTLY, YOU HAVE FAILED TO NOTE THAT THE ORIGINAL INVITATION PROVIDED FOR AWARD OF ALL 10 ITEMS TO A SINGLE BIDDER. IN REGARD TO PARAGRAPH 10 OF THE SOLICITATION INSTRUCTIONS, WHICH WAS CITED IN AMENDMENT NO. 3, SUBPARAGRAPH (C) OF THAT PARAGRAPH PROVIDES AS FOLLOWS:

"(C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY OFFER, UNLESS THE OFFEROR QUALIFIES HIS OFFER BY SPECIFIC LIMITATIONS. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, OFFERS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED; AND THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY OFFERED AT THE UNIT PRICES OFFERED UNLESS THE OFFEROR SPECIFIES OTHERWISE IN HIS OFFER."

SINCE THE GOVERNMENT SPECIFICALLY STIPULATED IN AMENDMENT NO. 3 THAT ITEMS 3, 4, 5, 6, 8, 9, AND 10 WOULD BE AWARDED TO A SINGLE BIDDER, WE BELIEVE THAT REFERENCE THEREIN TO PARAGRAPH 10 WAS INCLUDED FOR THE SOLE PURPOSE OF RESERVING ITS RIGHT UNDER THE SECOND SENTENCE THEREOF TO MAKE AN AWARD FOR LESS THAN THE QUANTITY SPECIFIED UNDER EACH ITEM. IN THIS LIGHT, IT IS CLEAR THAT THE GROUP AWARD PROVISION OF AMENDMENT NO. 3 EFFECTIVELY RENDERED INOPERATIVE THE FIRST SENTENCE OF PARAGRAPH 10.

THE RECORD INDICATES THAT THE PROCURING ACTIVITY GROUPED ITEMS 3, 4, 5, 6, 8, 9, AND 10 OF THE SUBJECT INVITATION, AS AMENDED, INTO ONE GROUP FOR PURPOSES OF MAKING AN AWARD BECAUSE IT WANTED TO INSURE THAT THE EQUIPMENT COVERED BY THESE ITEMS WOULD BE COMPATIBLE. AS TO THE COMPATIBILITY OF THE REQUIRED EQUIPMENT, THE CONTRACTING OFFICER HAS ADVISED AS FOLLOWS:

"7. AS TO THE NEED FOR COMPATIBILITY OF ITEMS 3, 4, 5, 6, 8, 9, AND 10, IT IS CLEAR THAT SUCH A REQUIREMENT EXISTS. IN THIS REGARD, IT SHOULD BE NOTED THAT THE FIRST FOUR OF THESE ITEMS COVER BATTERY POWERED, HAND HELD PORTABLE RADIOS. THEY ARE TO BE USED DURING TWO 8 HOUR WORK SHIFTS DAILY AND ALSO AT TIMES ON THREE SHIFTS THROUGHOUT SPECIFIED WAREHOUSES. THE LAST THREE ITEMS ARE CHARGERS WHICH ARE TO BE USED TO RECHARGE THE BATTERIES IN THE RADIOS.

"8. GENERALLY SPEAKING THE BATTERIES REQUIRE CHARGING AFTER ABOUT 8 HOURS OF USE. AN INTEGRAL AND VITAL FEATURE OF THE CHARGERS AND RADIOS SPECIFIED IS THAT THE PORTABLE RADIOS ARE RECHARGED BY SIMPLY 'PLUGGING' THEM INTO RECEPTACLES IN THE CHARGERS.

"9. THE VALUE OF THIS IS SUBSTANTIAL IN VIEW OF THE USE TO BE MADE OF THE RADIOS AND CHARGERS. 'PLUG-IN' RECHARGING WILL AVOID THE RADIOS HAVING TO BE TAKEN APART AND THE BATTERIES RECHARGED SEPARATELY. WEAR AND TEAR ON THE RADIOS WILL BE AVOIDED. FURTHER, THE RADIOS CAN BE USED AT A DESK WHILE RECHARGING IS BEING ACCOMPLISHED. THE BATTERIES CONCERNED COST APPROXIMATELY $50.00 APIECE AND THE CAPABILITY OF RECHARGING WITHOUT REMOVING BATTERIES WILL AVOID THE NECESSITY OF PROCURING FROM 20 TO 28 ADDITIONAL BATTERIES, WHICH IT IS ESTIMATED WOULD OTHERWISE BE NEEDED AS REPLACEMENTS FOR THOSE BEING SEPARATELY RECHARGED.

"10. INASMUCH AS SUBJECT PROCUREMENT IS ON THE BASIS OF 'OR EQUAL' DESCRIPTIONS, WHICH ARE TANTAMOUNT TO PERFORMANCE RATHER THAN FEDERAL OR OTHER DETAILED SPECIFICATIONS, COMPATIBILITY AND USABILITY OF THE RADIOS WITH THE CHARGERS COULD NOT BE ASSURED UNLESS AWARD IS MADE TO A SINGLE FIRM. WITHOUT THIS COMPATIBILITY AN INTEGRATED AND TOTAL COMMUNICATION SYSTEM COULD NOT BE ATTAINED AND ECONOMIES IN EQUIPMENT AND OPERATION WOULD BE LOST."

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

"IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO 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." SEE ALSO 47 COMP. GEN. 701 (1968).

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 A GROUP OF ITEMS OF EQUIPMENT, AS TO WHICH COMPATIBILITY IS REQUIRED, FROM A POTENTIAL SUPPLIER WHO IS UNABLE OR UNWILLING TO SUPPLY THE ENTIRE GROUP OF ITEMS BUT ONLY CERTAIN ITEMS FROM THE GROUP. MOREOVER, THE TECHNICAL AND/OR ENGINEERING QUESTION AS TO WHETHER THE DESIRED COMPATIBILITY OF THE GROUP OF ITEMS OF EQUIPMENT MAY BE ATTAINED OTHER THAN THROUGH THE PURCHASE OF THE ENTIRE GROUP OF ITEMS FROM A SINGLE BIDDER 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 INVITATION REQUIREMENT CALLING FOR THE AWARD OF ITEMS 3, 4, 5, 6, 8, 9, AND 10 TO A SINGLE BIDDER IS NOT OBJECTIONABLE UNDER THE CIRCUMSTANCES OF THIS PROCUREMENT.