B-218547, JUL 1, 1985, 85-2 CPD 6

B-218547: Jul 1, 1985

Additional Materials:

Contact:

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

 

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

PROTEST CHALLENGING SOLICITATION PROVISION PROHIBITING HIGH DENSITY POLYETHYLENE FOR CERTAIN LINE ITEMS OF PLASTIC BAGS IS DISMISSED AS ACADEMIC WHERE THE PROTESTER SUBMITTED A BID BASED ON THE USE OF SUCH MATERIAL AND WAS NOT THE LOW BIDDER. SPECIFICATIONS WHICH REQUIRE CERTAIN THICKNESSES FOR VARIOUS TYPES OF PLASTIC BAGS ARE NOT UNDULY RESTRICTIVE FOR NOT ALLOWING A THINNER FILM FOR HIGH DENSITY POLYETHYLENE BAGS WHERE THE AGENCY DETERMINES THAT ADDITIONAL TESTING IS NECESSARY TO ASSURE THAT THE HIGH DENSITY BAGS ARE SUITABLE FOR THE GOVERNMENT'S NEEDS AND THE PROTESTER FAILS TO ESTABLISH THAT THE AGENCY'S DETERMINATION IS UNREASONABLE. WAS ISSUED TO COVER FEDERAL SUPPLY SCHEDULE REQUIREMENTS FOR VARIOUS TYPES OF PLASTIC BAGS UNDER 177 DIFFERENT LINE ITEMS.

B-218547, JUL 1, 1985, 85-2 CPD 6

CONTRACTS - PROTESTS - MOOT, ACADEMIC ETC. QUESTIONS - PROTESTER NOT IN LINE FOR AWARD DIGEST: 1. PROTEST CHALLENGING SOLICITATION PROVISION PROHIBITING HIGH DENSITY POLYETHYLENE FOR CERTAIN LINE ITEMS OF PLASTIC BAGS IS DISMISSED AS ACADEMIC WHERE THE PROTESTER SUBMITTED A BID BASED ON THE USE OF SUCH MATERIAL AND WAS NOT THE LOW BIDDER. BIDS - INVITATION FOR BIDS - SPECIFICATIONS - MINIMUM NEEDS REQUIREMENT - ADMINISTRATIVE DETERMINATION - REASONABLENESS 2. SPECIFICATIONS WHICH REQUIRE CERTAIN THICKNESSES FOR VARIOUS TYPES OF PLASTIC BAGS ARE NOT UNDULY RESTRICTIVE FOR NOT ALLOWING A THINNER FILM FOR HIGH DENSITY POLYETHYLENE BAGS WHERE THE AGENCY DETERMINES THAT ADDITIONAL TESTING IS NECESSARY TO ASSURE THAT THE HIGH DENSITY BAGS ARE SUITABLE FOR THE GOVERNMENT'S NEEDS AND THE PROTESTER FAILS TO ESTABLISH THAT THE AGENCY'S DETERMINATION IS UNREASONABLE.

QUALITY BAG, INC.:

QUALITY BAG, INC. PROTESTS THAT CERTAIN SPECIFICATIONS IN INVITATION FOR BIDS (IFB) NO. 5FC0-13-85-020, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), UNDULY RESTRICT COMPETITION. THE IFB, A TOTAL SMALL BUSINESS SET ASIDE, WAS ISSUED TO COVER FEDERAL SUPPLY SCHEDULE REQUIREMENTS FOR VARIOUS TYPES OF PLASTIC BAGS UNDER 177 DIFFERENT LINE ITEMS. QUALITY BAG PROTESTS THE IFB'S PROHIBITION AGAINST USING HIGH DENSITY POLYETHYLENE (HDPE) IN MAKING SOME OF THE REQUIRED BAGS, AND THE PLASTIC FILM THICKNESS REQUIREMENTS APPLICABLE TO OTHER LINE ITEMS. QUALITY BAG ASSERTS THAT ITS HDPE BAGS CAN BE MADE WITH A THINNER FILM THAN SPECIFIED AND STILL MEET ALL THE IFB REQUIREMENTS, INCLUDING THE STRENGTH REQUIREMENT, AND THAT THE IFB THEREFORE SHOULD PERMIT THE FURNISHING OF THINNER-FILM HDPE BAGS. WE DISMISS THE PROTEST IN PART AND DENY IT IN PART.

BID OPENING, WHICH OCCURRED AFTER QUALITY BAG FILED ITS PROTEST, REVEALED THAT QUALITY BAG IN FACT SUBMITTED A BID BASED ON PROVIDING HDPE BAGS FOR ALL THE ITEMS, AND FINISHED NO BETTER THAN THIRD LOW BIDDER ON ANY OF THE ITEMS COVERED BY THE PROHIBITION, WITH ITS BID ON THEM RANGING FROM 32 PERCENT TO 144 PERCENT MORE THAN THE APPARENT LOW BID.

WE WILL NOT REVIEW A PRE-BID OPENING PROTEST ALLEGATION THAT SPECIFICATIONS ARE UNDULY RESTRICTIVE WHERE BID OPENING SUBSEQUENTLY DISCLOSES THAT THE PROTESTER IS NOT THE LOW BIDDER ON THE ITEMS AFFECTED BY THE CHALLENGED SPECIFICATIONS, AND IT DOES NOT APPEAR THAT THE SPECIFICATIONS OTHERWISE HAD A MATERIAL IMPACT ON THE PROTESTER'S BID PRICE. THE ALLEGATION BECOMES ACADEMIC UNDER THESE CIRCUMSTANCES. TOM SHAW, INC., B-212771, DEC. 21, 1983, 84-1 CPD PARA. 11. AS QUALITY BAG'S BID BASED ON HDPE BAGS WAS NOT LOW ON THESE COVERED ITEMS AND THERE IS NO BASIS FOR ASSUMING THAT THE PROHIBITION SOMEHOW LED QUALITY BAG TO OFFER A HIGHER PRICE THAN IT OTHERWISE COULD HAVE, OUR DECISION ON THIS QUESTION WOULD NOT CHANGE THE OUTCOME OF THE COMPETITION. THUS, NO USEFUL PURPOSE WOULD BE SERVED BY OUR REVIEW OF THE MERITS OF THIS PORTION OF THE PROTEST. /1/

QUALITY BAG IS THE APPARENT LOW BIDDER ON THE MAJORITY OF THE REMAINING ITEMS, SO WE WILL CONSIDER WHETHER THE THICKNESS REQUIREMENTS ARE UNDULY RESTRICTIVE OF COMPETITION.

THE PROCURING AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS AND THE BEST METHOD OF ACCOMMODATING THEM, SINCE THE AGENCY IS MOST FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES OR SERVICES HAVE BEEN USED IN THE PAST AND HOW THEY ARE TO BE USED IN THE FUTURE. PIERCE COAL SALES INTERNATIONAL, B-217051, MAR. 1, 1985, 85-1 CPD PARA. 258. THEREFORE, IN CONSIDERING A CHALLENGE TO A SPECIFICATION AS UNDULY RESTRICTIVE, WE WILL NOT DISTURB THE AGENCY'S DETERMINATION THAT THE SPECIFICATION IS NECESSARY TO MEET ITS MINIMUM NEEDS UNLESS IT IS SHOWN TO BE UNREASONABLE. INTERSTATE COURT REPORTERS, B-208881.2, FEB. 9, 1983, 83-1 CPD PARA. 145. WE FIND QUALITY BAG HAS NOT MET THIS BURDEN.

GSA EXPLAINS THAT IT STILL IS IN THE PROCESS OF TESTING THINNER-FILM HDPE BAGS FOR COMPARABILITY TO THE STANDARD-TYPE, COMMONLY-USED LOW DENSITY POLYETHYLENE (LDPE) BAGS. GSA APPARENTLY HAS NOT, AS YET, DETERMINED WHAT THE EXACT THICKNESS OF THESE BAGS SHOULD BE. ALTHOUGH QUALITY BAG CLAIMS THAT COMMERCIAL RESEARCH AND TESTING ALREADY HAS SHOWN THAT HDPE BAGS ARE SUPERIOR TO THE LDPE BAGS, THIS IS NOT ENTIRELY CLEAR FROM THE RECORD. QUALITY BAG HAS SUBMITTED WHAT IT CONSIDERS TO BE FAVORABLE RESULTS OF TWO COMPANIES' TESTING, BUT GSA POINTS OUT THAT EVEN THESE RESULTS INDICATE A RELATIVELY LOW TEAR AND IMPACT RESISTANCE FOR HDPE BAGS. GSA STATES THAT THESE RESULTS COULD INDICATE THE BAG WILL TEAR OR PUNCTURE TOO EASILY AND THAT ANY TEAR WILL CONTINUE TO TEAR RAPIDLY. THIS APPEARS TO BE A PARTICULARLY RELEVANT CONSIDERATION SINCE A SIGNIFICANT NUMBER OF PLASTIC BAGS ARE FOR USE IN DISPOSING OF INFECTIOUS WASTE FROM GOVERNMENT HOSPITALS. GSA'S CONCERN REGARDING HDPE BAG STRENGTH SEEMS TO BE SUPPORTED, MOREOVER, BY THE EXPERIENCES OF SOME USERS OF THE HDPE BAGS. WHILE, ACCORDING TO QUALITY BAG, THERE ARE SEVERAL SATISFIED USERS OF HDPE BAGS, THE RECORD SHOWS THAT AT LEAST THREE VETERANS ADMINISTRATION MEDICAL CENTERS HAVE FOUND THAT THE BAGS TEAR OR PUNCTURE MORE EASILY THAN LDPE BAGS AND ARE NOT SUITABLE FOR THEIR NEEDS.

QUALITY BAG BELIEVES THE FACT IT HAS BEEN SUPPLYING HDPE BAGS TO SEVERAL GOVERNMENT USERS UNDER GSA'S NEW ITEM INTRODUCTORY SCHEDULE (A PROCUREMENT METHOD USED TO INTRODUCE NEW PRODUCTS INTO THE FEDERAL SUPPLY SCHEDULE SYSTEM IF A SUFFICIENT DEMAND FOR THE NEW PRODUCTS EXISTS), EVIDENCES THE ACCEPTABILITY OF HDPE BAGS. AS ALREADY NOTED, HOWEVER, NOT ALL OF THE USERS HAVE FOUND THE BAGS ACCEPTABLE. AS GSA EXPLAINS, FURTHERMORE, ITS PURCHASE OF HDPE BAGS AS A NEW ITEM DOES NOT MEAN THAT THE AGENCY HAS TESTED THE BAGS AND FOUND THEM ACCEPTABLE AND DOES NOT ELIMINATE THE NEED TO ASSURE THAT THE BAGS HAVE SUFFICIENT STRENGTH FOR THE GOVERNMENT'S NEEDS.

WE BELIEVE GSA REASONABLY HAS JUSTIFIED EXCLUDING HDPE BAGS AT THICKNESSES OTHER THAN THOSE SPECIFIED IN THE IFB, AND THAT QUALITY BAG HAS NOT ESTABLISHED THAT GSA'S CONTINUING CONCERN WITH THE STRENGTH OF HDPE BAGS CLEARLY IS UNREASONABLE. THE THICKNESS REQUIREMENTS THEREFORE ARE UNOBJECTIONABLE.

THE PROTEST IS DISMISSED IN PART AND DENIED IN PART.

/1/ QUALITY BAG MAINTAINS THAT THE PROHIBITION APPLIES TO ALL LINE ITEMS AND THAT WE THUS SHOULD CONSIDER THIS ISSUE BECAUSE IT IS THE LOW BIDDER ON SEVERAL OF THE OTHER LINE ITEMS. IT IS CLEAR ON THE FACE OF THE IFB, HOWEVER, THAT THE HDPE PROHIBITION APPLIED ONLY TO ITEMS 1-100 AND 174- 177. THE ITEMS ON WHICH QUALITY BAG WAS LOW ARE COVERED BY COMMERCIAL ITEM DESCRIPTIONS A-A-1569 (JANUARY 9, 1981) AND A-A-1668 (FEBRUARY 6, 1981).