B-175153, APR 20, 1972

B-175153: Apr 20, 1972

Additional Materials:

Contact:

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

 

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

THE DRAFTING OF SPECIFICATIONS TO MEET AGENCY REQUIREMENTS IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING ACTIVITY AND WILL NOT BE QUESTIONED IN THE ABSENCE OF EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION. 17 COMP. THE INSTANT RECORD CLEARLY JUSTIFIES NASA'S PROCUREMENT OF SPECIALIZED EQUIPMENT AND THE NUMBER OF RESPONSES TO THE SOLICITATION INDICATES THAT THE SPECIFICATIONS WERE NOT UNDULY RESTRICTIVE. PROTESTANT'S ALLEGATION THAT THE HEAD OF THE SUPPORT SERVICES STATION AT LARC IS NOT A HORTICULTURIST IS FRIVOLOUS. IS CUSTOMARY FOR THE CONTRACTING OFFICER TO BE COMPETENT IN THE FIELD OF CONTRACTING AND HIS RELIANCE ON SPECIALISTS WITH RESPECT TO THE SUBJECT MATTER OF GOVERNMENT CONTRACTS IS QUITE REASONABLE.

B-175153, APR 20, 1972

BID PROTEST - TOTAL SMALL BUSINESS SET-ASIDE - ALLEGED RESTRICTIVENESS OF SPECIFICATIONS DECISION DENYING PROTEST OF ARBOR LANDSCAPING, INC., AGAINST THE ALLEGED RESTRICTIVENESS OF SPECIFICATIONS IN AN IFB ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), HAMPTON, VA., AS A TOTAL SMALL BUSINESS SET-ASIDE FOR MAINTENANCE SERVICES AT THE LANGLEY RESEARCH CENTER (LARC). AS A GENERAL RULE, THE DRAFTING OF SPECIFICATIONS TO MEET AGENCY REQUIREMENTS IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING ACTIVITY AND WILL NOT BE QUESTIONED IN THE ABSENCE OF EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION. 17 COMP. GEN. 554 (1938). THE INSTANT RECORD CLEARLY JUSTIFIES NASA'S PROCUREMENT OF SPECIALIZED EQUIPMENT AND THE NUMBER OF RESPONSES TO THE SOLICITATION INDICATES THAT THE SPECIFICATIONS WERE NOT UNDULY RESTRICTIVE. FINALLY, PROTESTANT'S ALLEGATION THAT THE HEAD OF THE SUPPORT SERVICES STATION AT LARC IS NOT A HORTICULTURIST IS FRIVOLOUS. IS CUSTOMARY FOR THE CONTRACTING OFFICER TO BE COMPETENT IN THE FIELD OF CONTRACTING AND HIS RELIANCE ON SPECIALISTS WITH RESPECT TO THE SUBJECT MATTER OF GOVERNMENT CONTRACTS IS QUITE REASONABLE. FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.

TO ARBOR LANDSCAPING, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 4, 1972 AND MARCH 8, 1972, CONCERNING YOUR PROTEST AGAINST THE RESTRICTIVENESS OF CERTAIN PORTIONS OF THE SPECIFICATIONS UNDER INVITATION FOR BIDS NO. 1-52-2447, AS AMENDED, A 100 PERCENT SMALL BUSINESS SET-ASIDE, ISSUED ON JANUARY 19, 1972, BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), HAMPTON, VIRGINIA.

THE SOLICITATION IS FOR GROUNDKEEPING AND OTHER MAINTENANCE SERVICES FOR LANGLEY RESEARCH CENTER (LARC), FOR THE PERIOD APRIL 1, 1972, THROUGH MARCH 31, 1973, WITH AN OPTION PROVISION FOR TWO ADDITIONAL YEARS. UNDER THE TERMS OF THE SOLICITATION THE GOVERNMENT AGREES TO CALL ON THE CONTRACTOR FOR ALL SUPPLIES AND SERVICES SET FORTH IN THE SCHEDULE AND THE CONTRACTOR AGREES TO FURNISH SUCH SUPPLIES AND SERVICES AS MAY BE CALLED FOR BY THE GOVERNMENT.

YOUR PROTEST WAS FILED PRIOR TO THE AMENDED BID OPENING ON FEBRUARY 17, 1972. AWARD WAS MADE ON MARCH 22, 1972, PENDING RESOLUTION OF YOUR PROTEST ON THE BASIS OF URGENCY IN ORDER TO COINCIDE WITH THE START OF THE GROWING SEASON.

THE BIDS AT OPENING WERE:

FIRM AMOUNT

B. D. ASHE, INC. $213,394.57

DYNETERIA, INC. $245,285.43

CONRAD G. ASHE $249,839.83

ARBOR LANDSCAPING, INC. $256,330.00

JAMES A. PHILLIPS $289,611.00

YOU URGE THAT THE SPECIFICATIONS FOR THE FOLLOWING PIECES OF EQUIPMENT WERE DRAFTED IN SUCH A WAY THAT YOUR EQUIPMENT WAS WRITTEN OUT OF THE SPECIFICATIONS:

1. LAWN MOWING EQUIPMENT

2. SLOPE MOWER

3. LAWN RAKE

4. STREET SWEEPER

5. DUMP TRUCK

FIRST, YOU OBJECT TO SECTION 2-01.1 OF THE SPECIFICATIONS WHICH PROVIDES:

"MOWING SHALL BE ACCOMPLISHED WITH REEL TYPE GANG MOWERS WHICH SHALL BE PRECEDED BY FLAIL MOWERS. FLAIL AND REELS MAY BE ATTACHED TOGETHER TO MAKE A SINGLE PIECE OF EQUIPMENT. MINOR TRIMMING MAY BE ACCOMPLISHED WITH EITHER REEL OR ROTOR TYPE MOWERS. MINOR TRIMMING SHALL BE THAT TRIMMING AROUND SHRUBS, TREES, FIRE PLUGS, POLES, BUILDING FOUNDATIONS, SIDEWALKS, CURBS, AND/OR ANY OTHER PERMANENT TYPE STRUCTURES."

YOU URGE THAT THE ABOVE SPECIFICATION IS DIFFERENT FROM THE ONE USED IN PRIOR LARC CONTRACTS AND ALSO AIR FORCE AND NAVY CONTRACTS.

NASA REPORTS THAT THE SPECIFICATIONS WERE DRAFTED BY THE PLANT CONTRACT SECTION, FACILITIES AND EQUIPMENT ENGINEERING DIVISION, WHICH HAS RESPONSIBILITY FOR THE SPECIFICATIONS FOR THIS TYPE OF PROJECT. NASA STATES THAT THE SPECIFICATIONS FOR THE LAWN MOWERS DIFFER IN CERTAIN RESPECTS FROM THOSE IN THE PRIOR NASA CONTRACT AND FROM NAVY AND AIR FORCE SPECIFICATIONS IN ORDER TO MEET THE SPECIFIC NEEDS OF THE CENTER.

LARC'S REASONS FOR REQUIRING THAT THE REEL MOWERS BE PRECEDED BY FLAIL MOWERS IS AS FOLLOWS:

" *** THE FLAIL MOWERS ARE REQUIRED TO CUT LONG STEM WEEDS, SUCH AS BUCK THORN, DANDELION AND PLANTAIN, WHICH ARE FOUND IN THE CENTER'S LAWN. THE REEL TYPE MOWER IS THEN USED TO CUT THE LAWNS TO THE DESIRED HEIGHT. EXPERIENCE HAS REVEALED THAT LARGE ROTARY TYPE MOWERS DO NOT PROPERLY CUT THE CENTER'S LAWN SINCE WE ARE UNABLE TO MAINTAIN CONSISTENTLY EVEN GRADED LAWNS. THIS CONDITION ARISES IN PART FROM THE LARGE AMOUNT OF FACILITY CONSTRUCTION AND MAINTENANCE TO SUB-SURFACE UTILITIES. BECAUSE OF THE PRESENCE OF GROUND SURFACE IRREGULARITIES, REEL GANG MOWERS HAVE PROVEN TO BE THE ONLY SATISFACTORY EQUIPMENT SINCE THEY ARTICULATE TO FOLLOW THE CONTOUR OF THE GROUND. THIS REDUCES OR ELIMINATES UNSIGHTLY SCALPING AND GOUGING WHICH ARE PREVALENT AFTER CUTTING WITH ROTARY MOWERS."

FOR PURPOSES OF ACHIEVING ECONOMIES IN OPERATION, THE SECOND SENTENCE OF PARAGRAPH 2-01.1 PERMITS (BUT DOES NOT REQUIRE) THE CONTRACTOR TO ATTACH THE FLAIL AND REEL MOWERS TOGETHER SO THAT THE CUTTING CAN BE PERFORMED IN ONE RATHER THAN TWO OPERATIONS. NASA ADVISES THAT THE PROCEDURE FOR ATTACHING THE TWO MOWERS TOGETHER CAN READILY BE ACCOMPLISHED THROUGH A MINOR MODIFICATION IN THE FIELD, BY FABRICATING A SIMPLE HITCHING DEVICE SIMILAR TO AN AUTOMOBILE TRAILER UNIT. SUCH A HITCH MAY OR MAY NOT BE AVAILABLE COMMERCIALLY.

THE 30-FOOT TELESCOPIC SIDE ARM FOR THE SLOPE MOWER WAS REQUIRED IN PARAGRAPH 2-01.2 BECAUSE OF THE EXISTENCE OF EARTH-COVERED FACILITIES, AND THE LENGTH OF THE ARM MUST BE SUFFICIENT TO CUT THESE AREAS. ONE OF THE ATTACHMENTS WITH YOUR LETTER OF MARCH 8 ADMITS THAT THE 18-FOOT ARM ON YOUR EQUIPMENT IS NOT ADEQUATE TO ACCOMPLISH THE TASK OF CUTTING THE EARTH -COVERED FACILITIES. THE SIDE ARM SICKLE IN PARAGRAPH 2-01.2 WAS MADE AN OPTIONAL REQUIREMENT BY AMENDMENT 5 TO THE INVITATION. NASA ADVISES THAT THE SIDE ARM SICKLE REDUCES THE NUMBER OF UNSKILLED LABORERS REQUIRED FOR HANDWORK.

THE NYLON COMB FOR THE LAWN RAKE IN PARAGRAPH 2-01.8 WAS SPECIFIED TO ACCOMPLISH A LIGHT SCARIFYING ACTION THAT INCREASES WATER AND PESTICIDE PENETRATION AND REDUCES THE NEED FOR RENOVATING THE LAWN. NASA ADVISES THAT THE RAKE-O-VAC INDUSTRIAL SWEEPER MANUFACTURED BY TORO IS AT LEAST ONE COMMERCIALLY AVAILABLE LAWN RAKE WHICH HAS NYLON COMBS.

NASA REPORTS THAT THE MINIMUM STREET SWEEPING BRUSH REQUIREMENT OF 5 FEET BY 26 INCHES IN PARAGRAPH 2-01.56 WAS ESTABLISHED TO ASSURE THAT STREETS, PARKING LOTS AND AIRPORT TAXIWAYS ARE SWEPT WITHIN A PERIOD OF TIME SPECIFIED IN A WORK ORDER. THE LARGER BRUSH IS COMMERCIALLY AVAILABLE. EQUIPMENT USING SMALLER BRUSHES HAD TAKEN AN UNREASONABLE PERIOD OF TIME TO ACCOMPLISH SWEEPING OPERATIONS.

A SOLID BODY AND TAILGATE WAS SPECIFIED FOR THE DUMP TRUCK IN PARAGRAPH 2 -01.58 TO AVOID SPILLAGE OF DEBRIS ON ROADWAYS WHICH NECESSITATED ADDITIONAL SWEEPING. THE 3 1/2 CUBIC YARD BODY REQUIREMENT REPRESENTS THE MINIMUM SIZE FOR A TRUCK WHICH WILL DO THE REQUIRED WORK ECONOMICALLY. SINCE THE LARC PAYS FOR THIS TYPE OF WORK ON AN HOURLY BASIS IT WAS DEEMED NECESSARY TO SPECIFY A MINIMUM TRUCK SIZE.

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

WITH RESPECT TO THE PARAGRAPHS MARKED OFF IN SECTION 2-01.1, ON PAGE 2-3, YOU HAVE NOT INDICATED THE SPECIFIC REASON FOR YOUR OBJECTION TO SUCH PARAGRAPHS. THE MARKED PARAGRAPHS DO NOT SEEM TO IMPOSE ANY UNUSUAL REQUIREMENTS.

NASA ADVISES THAT THE COMMENCEMENT OF WORK REQUIREMENT IN SECTION 1 04(D) CAN BE MET WITHOUT UNDUE DIFFICULTY IF THE CONTRACTOR EXERCISES DUE DILIGENCE.

WE ARE ADVISED THAT THE THATCHING OF LAWNS PRIOR TO SEEDING IN PARAGRAPH 2-01.3 IS A COMMONLY ACCEPTED PRACTICE IN THE LARC AREA. LARC'S SURVEYS HAVE DISCLOSED THAT SEEDINGS HAVE FAILED TO GERMINATE AS EXPECTED DUE TO A HEAVY COVER OF THATCH WHICH PREVENTED THE SEEDS FROM REACHING THE GROUND THEREBY LEAVING MANY BROWN AREAS WHERE LAWNS HAVE DEGENERATED.

REGARDING THE VISITORS' PARK AT LARC, NASA'S REPORT STATES THAT CONSTRUCTION COSTS FOR THE PARK WERE ABOUT $4,040.97 WITH AN ADDITIONAL $622 FOR BENCHES, PICNIC TABLES AND REFUSE CONTAINERS. LARC ADVISES THAT SOME 12,000 VISITORS HAVE USED THE PARK SINCE JUNE 1971. THERE DOES NOT SEEM TO BE A BASIS FOR QUESTIONING THIS EXPENDITURE.

FINALLY, YOU HAVE MADE THE ALLEGATION THAT THE HEAD OF THE SUPPORT SERVICES SECTION AT LARC IS NOT A HORTICULTURIST. NASA ADVISES THAT THIS INDIVIDUAL WAS SELECTED UNDER THE MERIT PROMOTION PROGRAM BECAUSE OF HIS EXPERIENCE AS A MONITOR OF NONPERSONAL SERVICE CONTRACTS. GROUNDKEEPING IS BUT ONE OF THE INDIVIDUAL'S JOB DUTIES WHICH ALSO INCLUDES SUCH RESPONSIBILITIES AS COORDINATION OF LARC'S TRANSPORTATION AND RIGGING SERVICES, REFUSE COLLECTION AND VEHICLE REPAIRS. WE BELIEVE IT IS CUSTOMARY AND REASONABLE FOR THE CONTRACTING OFFICER TO BE COMPETENT IN THE FIELD OF CONTRACTING AND RELY ON SPECIALISTS WITH RESPECT TO THE SUBJECT MATTER OF THE CONTRACTS.

THE DETERMINATION OF AN AGENCY'S REQUIREMENTS AND THE DRAFTING OF SPECIFICATIONS TO MEET SUCH NEEDS ARE PRIMARILY THE RESPONSIBILITY OF THE PROCURING ACTIVITY WHICH WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION. SEE 17 COMP. GEN. 554 (1938). THE FACT THAT AN AGENCY'S NEEDS MAY REQUIRE CERTAIN SPECIALIZED EQUIPMENT DOES NOT ESTABLISH THAT THE SPECIFICATIONS ARE RESTRICTIVE TO THE POINT OF PRECLUDING FREE AND OPEN COMPETITION. SEE 33 COMP. GEN. 586 (1954).

THE NUMBER OF RESPONSES TO THE SOLICITATION DO NOT INDICATE THAT THE SPECIFICATIONS HAVE UNDULY RESTRICTED COMPETITION. NASA'S PURPOSE FOR SPECIFYING THE VARIOUS REFINEMENTS DISCUSSED CLEARLY HAVE BEEN AT IMPROVING PERFORMANCE RATHER THAN AT DISCRIMINATING AGAINST ANY CONCERN. PURSUANT TO OUR REVIEW WE BELIEVE THERE ARE ADEQUATE BASES FOR THE SPECIFICATION REQUIREMENTS.

FOR THESE REASONS YOUR PROTEST IS DENIED.