B-174770(2), JUL 14, 1972

B-174770(2): Jul 14, 1972

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS AND FOR DETERMINING WHETHER ARTICLES OFFERED BY BIDDERS MEET THE SPECIFICATIONS IS PRIMARILY THAT OF THE CONTRACTING AGENCY. GAO WILL OVERTURN SUCH DETERMINATIONS ONLY WHERE THERE IS A CLEAR ABUSE OF THE DISCRETION VESTED IN SUCH OFFICIALS. CANNOT CONCLUDE THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE. ON THE GROUNDS THAT THE SPECIFICATION WAS ALLEGEDLY WRITTEN SPECIFICALLY FOR AN INDIVIDUAL MANUFACTURER AND DID NOT PERMIT ADEQUATE COMPETITION. THE RFP WAS ISSUED TO NINE TYPEWRITER MANUFACTURERS ON NOVEMBER 24. SIX OFFERS WERE RECEIVED. NEGOTIATIONS WERE CONDUCTED WITH THE RESULT THAT PAILLARD. WAS THE LOW OFFEROR AT $288.61 PER UNIT AND REMAINED THE LOW OFFEROR AFTER THE APPLICATION OF A 12 PERCENT BUY AMERICAN PRICE DIFFERENTIAL.

B-174770(2), JUL 14, 1972

BID PROTEST - BID SPECIFICATIONS - DRAFTING DENIAL OF PROTEST BY THE OLIVETTI CORPORATION OF AMERICA AGAINST THE AWARD OF A CONTRACT UNDER AN RFP ISSUED BY THE FEDERAL SUPPLY SERVICE, GSA, FOR 108 FSC CLASS 7430 ELECTRIC TYPEWRITERS. THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS AND FOR DETERMINING WHETHER ARTICLES OFFERED BY BIDDERS MEET THE SPECIFICATIONS IS PRIMARILY THAT OF THE CONTRACTING AGENCY, AND GAO WILL OVERTURN SUCH DETERMINATIONS ONLY WHERE THERE IS A CLEAR ABUSE OF THE DISCRETION VESTED IN SUCH OFFICIALS. IN THIS INSTANCE, THE COMP. GEN. CANNOT CONCLUDE THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE.

TO OLIVETTI CORPORATION OF AMERICA:

WE REFER TO YOUR LETTERS OF DECEMBER 28, 1971, AND JANUARY 6, 1972, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS NO. FPNHO-K-42229-N-12-1-71, ISSUED BY THE FEDERAL SUPPLY SERVICE OF THE GENERAL SERVICES ADMINISTRATION (GSA), ON THE GROUNDS THAT THE SPECIFICATION WAS ALLEGEDLY WRITTEN SPECIFICALLY FOR AN INDIVIDUAL MANUFACTURER AND DID NOT PERMIT ADEQUATE COMPETITION.

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 OLIVETTI, TOOK EXCEPTION TO THE SPECIFICATION. OLYMPIA USA, INCORPORATED (A FOREIGN CONCERN), AND REMINGTON RAND AGREED TO MEET THE SPECIFICATION. NEGOTIATIONS WERE CONDUCTED WITH THE RESULT THAT PAILLARD, INCORPORATED (A FOREIGN CONCERN), WAS THE LOW OFFEROR AT $288.61 PER UNIT AND REMAINED THE LOW OFFEROR AFTER THE APPLICATION OF A 12 PERCENT BUY AMERICAN PRICE DIFFERENTIAL. ADDITION, PAILLARD AGREED TO OVERCOME ITS EXCEPTIONS TO THE SPECIFICATION AND MEET ALL OF ITS REQUIREMENTS.

ALTHOUGH YOUR PROTEST WAS MADE TO OUR OFFICE PRIOR TO THE AWARD OF A CONTRACT, 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.

IN SUPPORT OF YOUR CONTENTION THAT THE SPECIFICATION WAS WRITTEN SPECIFICALLY FOR AN INDIVIDUAL MANUFACTURER, YOU CONTEND THAT THE REQUIREMENT FOR AN UPRIGHT PAPER SUPPORT, THAT WILL NOT ONLY KEEP THE COPY VISIBLE BUT WILL ALSO PREVENT THE CARBONS FROM SLIPPING WHEN NEARING THE END OF THE TYPED PAGE, IS AN EXCLUSIVE FEATURE OF A PARTICULAR FOREIGN MANUFACTURER, OLYMPIA. YOU FURTHER CONTEND THAT THE REQUIREMENT FOR A DUAL RIBBON CAPACITY REPRESENTS AN UNNECESSARY LUXURY FEATURE WHICH FURTHER ELIMINATES COMPETITION.

IN DEFERENCE TO THE EXCEPTIONS TO THE SPECIFICATION TAKEN BY ONE OF THE OTHER OFFERORS, (ROYAL TYPEWRITER COMPANY), AND IN LIGHT OF YOUR ALLEGATION THAT SOMEONE IN THE REQUISITIONING ACTIVITY HAD INFORMED YOU THAT THE OLIVETTI EDITOR-4C MET ALL OF THE USER'S NEEDS, 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, AND DISAVOWED ANY STATEMENTS TO THE CONTRARY BY ANY PERSONNEL AT THE REQUISITIONING ACTIVITY. SPECIFICALLY, THE ARMY PROVIDED THE FOLLOWING EXPLANATIONS 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.

"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 DETERMINATIONS 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 SPECIFICATIONS WERE UNDULY RESTRICTIVE. 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 ROYAL TYPEWRITER COMPANY ON THE SAME PROCUREMENT.