B-174770(1), JUL 14, 1972

B-174770(1): Jul 14, 1972

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THE ISSUANCE OF THIS RFP WAS PROPER SINCE THE REQUIREMENTS WERE OUTSIDE THE SCOPE OF THE GSA FEDERAL SUPPLY SCHEDULE CONTRACT IN THAT THEY EXCEEDED THE CONTRACT'S MAXIMUM ORDER LIMITATION AND. WERE SUBMITTED TO GSA FOR PROCUREMENT UNDER ASPR 5-102.2(C). THE FSS CONTRACT TYPEWRITERS DID NOT CONTAIN CERTAIN FEATURES WHICH WERE CONSIDERED NECESSARY BY THE USER ACTIVITY. THE RFP WAS ISSUED TO NINE TYPEWRITER MANUFACTURERS ON NOVEMBER 24. SIX OFFERS WERE RECEIVED. NEGOTIATIONS WERE CONDUCTED RESULTING IN PAILLARD. AS ONE OF THE FOUR OFFERORS TO HAVE INITIALLY TAKEN EXCEPTION TO THE SPECIFICATION. THE THRUST OF YOUR FIRST CONTENTION IS THAT THIS PROCUREMENT SHOULD HAVE BEEN MADE FROM THE GSA FEDERAL SUPPLY SCHEDULE.

B-174770(1), JUL 14, 1972

BID PROTEST - FEDERAL SUPPLY SCHEDULE CONTRACTS - MAXIMUM ORDER LIMITATIONS - INADEQUATE SPECIFICATIONS DENIAL OF PROTEST BY THE ROYAL TYPEWRITER COMPANY AGAINST THE AWARD OF A CONTRACT UNDER AN RFP ISSUED BY THE FEDERAL SUPPLY SERVICE, GSA, FOR 108 FSC CLASS 7430 ELECTRIC TYPEWRITERS. THE ISSUANCE OF THIS RFP WAS PROPER SINCE THE REQUIREMENTS WERE OUTSIDE THE SCOPE OF THE GSA FEDERAL SUPPLY SCHEDULE CONTRACT IN THAT THEY EXCEEDED THE CONTRACT'S MAXIMUM ORDER LIMITATION AND, THEREFORE, WERE SUBMITTED TO GSA FOR PROCUREMENT UNDER ASPR 5-102.2(C). ALSO, THE FSS CONTRACT TYPEWRITERS DID NOT CONTAIN CERTAIN FEATURES WHICH WERE CONSIDERED NECESSARY BY THE USER ACTIVITY. SEE ALSO, DECISION OF TODAY, B -174770, TO OLIVETTI CORPORATION OF AMERICA.

TO ROYAL TYPEWRITER COMPANY:

WE REFER TO YOUR LETTER OF DECEMBER 14, 1971, WITH ENCLOSURES, TO THE FEDERAL SUPPLY SERVICE (FSS) OF THE GENERAL SERVICES ADMINISTRATION, PROTESTING THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS NO. FPNHO-K -42229-N-12-1-71, ISSUED BY THE FSS ON THE GROUNDS THAT THE SPECIFICATION CONTAINS SUPERFLUOUS FEATURES NOT CONTAINED IN THE DESCRIPTION OF THE FEDERAL STOCK NUMBER ALLEGEDLY AUTHORIZED BY THE UNITED STATES ARMY SUPPORT CENTER, AND THAT THE SPECIFICATION IN THE SOLICITATION DESCRIBES ONLY ONE PARTICULAR BRAND TYPEWRITER.

THE RFP WAS ISSUED TO NINE TYPEWRITER MANUFACTURERS ON NOVEMBER 24, 1971, FOR A QUANTITY OF 108 FSC CLASS 7430 ELECTRIC TYPEWRITERS. SIX OFFERS WERE RECEIVED. FOUR OF THE OFFERORS, INCLUDING ROYAL, TOOK EXCEPTION TO THE SPECIFICATION. NEGOTIATIONS WERE CONDUCTED RESULTING IN PAILLARD, INCORPORATED, BEING THE LOW OFFEROR AT $288.61 PER UNIT. A FOREIGN CONCERN, PAILLARD, REMAINED THE LOW OFFEROR AFTER THE APPLICATION OF A 12 PERCENT BUY AMERICAN PRICE DIFFERENTIAL. IN ADDITION, AS ONE OF THE FOUR OFFERORS TO HAVE INITIALLY TAKEN EXCEPTION TO THE SPECIFICATION, PAILLARD AGREED TO OVERCOME ITS EXCEPTIONS TO THE SPECIFICATION. YOU PROTESTED TO OUR OFFICE PRIOR TO THE AWARD OF A CONTRACT. HOWEVER, GSA, ON OR ABOUT JANUARY 11, 1972, IN CONSULTATION WITH THE FIRST UNITED STATES ARMY RECRUITING DISTRICT, THE USER AGENCY, MADE A DETERMINATION OF URGENCY IN ACCORDANCE WITH THE APPLICABLE FEDERAL PROCUREMENT REGULATIONS, AND PURSUANT THERETO AWARDED A CONTRACT TO PAILLARD ON JANUARY 13, 1972.

THE THRUST OF YOUR FIRST CONTENTION IS THAT THIS PROCUREMENT SHOULD HAVE BEEN MADE FROM THE GSA FEDERAL SUPPLY SCHEDULE, AND NOT IN ACCORDANCE WITH THE SPECIAL SPECIFICATION DRAFTED FOR THIS PROCUREMENT. WHILE IT IS TRUE THAT THE TYPEWRITER ITEM IN THE SUBJECT RFP IS OF A CLASS COVERED UNDER A GSA FEDERAL SUPPLY SCHEDULE CONTRACT WHICH IS MANDATORY ON THE DEPARTMENT OF DEFENSE (SEE ASPR 5-102.3), IN THE INSTANT CASE THE RFP REQUIREMENTS WERE OUTSIDE THE SCOPE OF THE SCHEDULE CONTRACT BECAUSE THEY EXCEEDED THE CONTRACT'S APPLICABLE MAXIMUM ORDER LIMITATION AND, THEREFORE, WERE SUBMITTED TO GSA FOR INDEPENDENT PURCHASE ACTION UNDER ASPR 5-102.2(C). FEDERAL SUPPLY SCHEDULES ARE MANDATORY ONLY TO THE EXTENT SPECIFIED IN EACH SCHEDULE. B-163843, APRIL 2, 1968. CONSEQUENTLY, THE REGULATIONS WHICH YOU HAVE CITED ARE NOT APPLICABLE SINCE THEY GOVERN THE PROCUREMENT OF ITEMS FROM THE SCHEDULE CONTRACT ITSELF.

FURTHERMORE, THE FSS CONTRACT TYPEWRITERS DID NOT CONTAIN CERTAIN FEATURES WHICH WERE CONSIDERED NECESSARY REQUIREMENTS BY THE USER ACTIVITY. IT IS YOUR CONTENTION THAT THESE ADDITIONAL FEATURES ARE SUPERFLUOUS. YOU SPECIFICALLY NOTE THE UPRIGHT PAPER SUPPORT, DUAL RIBBON, AND DETACHABLE CORD REQUIREMENTS. IN DEFERENCE TO THE EXCEPTIONS TO THE SPECIFICATION TAKEN BY SOME OF THE OFFERORS, INCLUDING ROYAL, THE GSA ON DECEMBER 8, 1971, REQUESTED VERIFICATION OF THE SPECIAL FEATURES REQUIRED UNDER THE RFP. BY LETTER DATED DECEMBER 28, 1971, THE UNITED STATES ARMY FIRST RECRUITING DISTRICT REITERATED THE NEED FOR THE SPECIAL FEATURES. SPECIFICALLY, THE ARMY PROVIDED THE FOLLOWING EXPLANATION FOR THE PARTICULAR REQUIREMENTS YOU HAVE QUESTIONED:

"A. DUAL RIBBON CAPABILITIES: THE TYPEWRITER MUST BE ABLE TO COMPLETE ROUGH DRAFTS AND FINISHED COPIES PLUS FORMS WITH MANY COPIES ON THE SAME MACHINE, WITHOUT HAVING TO MANUALLY CHANGE THE RIBBONS OR USE ANOTHER MACHINE. IT ALSO ELIMINATES THE NEED FOR TWO MACHINES, ONE WITH EACH TYPE OF RIBBON.

"B. DETACHABLE CORD: A MUST ITEM, FROM THE SAFETY ASPECT. IN NORMAL USE, A SECRETARY OR CLERK SITS BEHIND HER DESK IN AN INCLOSED OFFICE WITH HER TYPEWRITER AND THERE IS LITTLE OR NO CHANCE OF ANYONE RUNNING INTO OR TRIPPING OVER THE TYPEWRITER CORD. BUT IN AN ARMED FORCES EXAMINING AND ENTRANCE STATION, WHERE TYPISTS ARE IN OPEN AREAS OR HAVE PEOPLE MILLING AROUND, THE CHANCES ARE INCREASED, DUE TO EXCITED ANTICIPATION, IF THE CORD IS ATTACHED TO THE TYPEWRITER, THE MACHINE WILL BE PULLED TO THE FLOOR AND DAMAGE OR INJURE THE PERSON INVOLVED. A DETACHABLE CORD, WHEN IT IS RUN INTO OR TRIPPED OVER, PULLS FROM THE MACHINE AND DOES NOT CAUSE INJURIES EITHER TO THE PERSON INVOLVED OR TO THE TYPEWRITER ITSELF. THE ABOVE DESCRIBED SAFETY FEATURE RELATES DIRECTLY TO A FULL SIZE HEAVY DUTY TYPEWRITER.

"F. UPRIGHT PAPER SUPPORT: THE SUPPORT KEEPS THE COPY VISIBLE AND ALSO PREVENTS THE CARBONS FROM SLIPPING AS YOU NEAR THE END OF THE TYPED PAPER."

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THE SPECIFICATIONS IS PRIMARILY THAT OF THE CONTRACTING AGENCIES. WHILE OUR OFFICE WILL 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 NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. ACCORDINGLY, OUR OFFICE WILL OVERTURN SUCH DETERMINATION ONLY WHERE A CLEAR ABUSE OF THE DISCRETION RESERVED TO THE CONTRACTING OFFICIALS IS SHOWN. IN THE INSTANT CASE, IT IS OUR OPINION THAT THE EXPLANATIONS FOR THE SPECIFIC FEATURES QUOTED ABOVE ADEQUATELY DEMONSTRATE THEIR NECESSITY IN ORDER TO MEET THE LEGITIMATE NEEDS OF THE GOVERNMENT. UNDER THE CIRCUMSTANCES, WE CANNOT CONCLUDE THAT THE SPECIFICATION WAS UNDULY RESTRICTIVE. SEE 45 COMP. GEN. 365 (1965).

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, YOUR PROTEST MUST BE DENIED. ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO OLIVETTI CORPORATION OF AMERICA ON THE SAME PROCUREMENT.