B-177894, APR 17, 1973

B-177894, APR 17, 1973

DECISION DENYING BID PROTEST OF SILENT AGAINST PROCEDURES FOR SOLICITING BIDS UNDER IFBS DACW35-73-B-0020 AND -0030, ISSUED BY ARMY ENGINEER DISTRICT, DETROIT, MICHIGAN. NO EVIDENCE OF RESTRICTIVE SPECIFICATIONS OR OF ARBITRARY FINDING OF PRICE UNREASONABLENESS.

TO SILENT HOIST AND CRANE COMPANY, INC.:

WE REFER TO YOUR LETTER DATED JANUARY 24, 1973, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE PROCEDURES FOR SOLICITING BIDS UNDER IFBS DACW35-73-B-0020 AND -0030, ISSUED BY THE ARMY ENGINEER DISTRICT, DETROIT, MICHIGAN.

INVITATION FOR BIDS DACW35-73-B-0020 (IFB -0020) WAS ISSUED ON NOVEMBER 13, 1972, FOR THE SUPPLY OF ONE 10,000-POUND CAPACITY FORK LIFT TRUCK. THE FOLLOWING BIDS WERE RECORDED AT THE BID OPENING ON DECEMBER 8, 1972:

MODERN HANDLING EQUIP. CO. $11,472.00

TOWMOTOR CORP. 11,783.00

CLARK EQUIP. CO. 12,985.00

OTIS MATERIAL HANDLING 13,800.00

ADVANCE FORK LIFT CO. 14,543.75

SILENT HOIST & CRANE 16,545.91

THE FORK LIFT TRUCK TO BE PROCURED UNDER IFB -0020 WAS TO REPLACE ONE WHICH WAS IN NEED OF EXTENSIVE REPAIRS AND WAS BEING MAINTAINED IN OPERATING CONDITION ON A DAY-TO-DAY BASIS. IN VIEW THEREOF, SECTION H 1 OF IFB -0020 REQUIRED DELIVERY OF THE TRUCK WITHIN 30 DAYS AFTER RECEIPT OF CONTRACT. NONE OF THE BIDDERS OBJECTED TO THE TECHNICAL SPECIFICATIONS FOR THE ITEM BEING PROCURED. HOWEVER, ALL BIDDERS OTHER THAN SILENT HOIST WERE NONRESPONSIVE IN THAT THEY TOOK EXCEPTION TO THE REQUIRED DELIVERY SCHEDULE.

THUS, THE SOLE RESPONSIVE AND RESPONSIBLE BID RECEIVED WAS APPROXIMATELY 45 PERCENT GREATER THAN THE APPARENT LOW BID AND ALMOST 40 PERCENT ABOVE THE PRICE OF $12,000 WHICH WAS ANTICIPATED BY THE PROCURING ACTIVITY WHEN IT ISSUED IFB -0020. THE CONTRACTING OFFICER THEREFORE DETERMINED THAT SILENT HOIST'S BID WAS UNREASONABLY HIGH. IT WAS ALSO DETERMINED THAT THE SHORT DELIVERY PERIOD, ALTHOUGH DESIRABLE, WAS NOT CRITICAL, AND IN VIEW OF THE PRESENCE OF FIVE LOWER BIDS, IT WAS CONSIDERED IN THE GOVERNMENT'S BEST INTEREST TO CANCEL IFB -0020 AND READVERTISE THE REQUIREMENT WITH A LONGER DELIVERY SCHEDULE.

IFB -0020 WAS CANCELED AND THE REQUIREMENT WAS READVERTISED BY THE ISSUANCE OF IFB DACW35-73-B-0030 (IFB -0030) ON JANUARY 12, 1973. THE ONLY RESPECT IN WHICH IFB -0030 DIFFERED FROM ITS PREDECESSOR WAS THAT THE DELIVERY SCHEDULE WAS LENGTHENED TO 90 DAYS. THE FOLLOWING BIDS WERE RECEIVED UNDER IFB -0030:

MODERN HANDLING EQUIP. CO. $11,472.00

TOWMOTOR CORP. 12,306.00

OTIS MATERIAL HANDLING 12,630.00

CLARK EQUIP. CO. 12,785.00

EATON CORP. 13,900.00

ADVANCE FORK LIFT CO. 14,572.25

UPON RECEIPT OF THE PROCURING ACTIVITY'S DENIAL OF YOUR PROTEST AGAINST THE CANCELLATION OF IFB -0020, YOU PROTESTED TO OUR OFFICE. AWARD UNDER IFB -0030 HAS BEEN WITHHELD PENDING OUR DECISION.

YOUR INITIAL BASES FOR PROTEST ARE THAT CERTAIN REQUIREMENTS OF THE TECHNICAL SPECIFICATION IN IFBS -0020 AND -0030 WERE EITHER "DESIGN RESTRICTIVE" OR EXCEEDED THE GOVERNMENT'S MINIMUM NEEDS. IN REGARD TO THE FIRST BASIS, IT WAS ADMINISTRATIVELY REPORTED:

FIVE DIFFERENT PROPRIETARY MACHINES WERE OFFERED UNDER EACH INVITATION. FOUR WERE COMMON TO BOTH INVITATIONS AND SILENT HOIST BID ON THE FIRST BUT NOT ON THE SECOND INVITATION. EATON CORPORATION DID NOT BID ON THE FIRST BUT DID ON THE SECOND INVITATION. IT IS APPARENT THAT ALTOGETHER ON BOTH INVITATIONS WITH IDENTICAL TECHNICAL SPECIFICATIONS, SIX DIFFERENT MACHINES MEETING THOSE SPECIFICATIONS WERE OFFERED. IT IS ONLY FAIR AND REASONABLE TO ASSUME THAT A GIVEN SET OF TECHNICAL REQUIREMENTS THAT CAN BE MET BY SIX DIFFERENT MANUFACTURERS WHO BUILD SIX DIFFERENT MACHINES ARE NOT RESTRICTIVE NOR DO THEY LIMIT COMPETITION.

IN CASES OF THIS NATURE THE QUESTION TO BE DECIDED IS WHETHER THE SPECIFICATIONS UNDULY RESTRICT COMPETITION. IT IS APPARENT THAT THE SPECIFICATIONS IN THE INSTANT CASE GAVE BIDDERS SUFFICIENT LATITUDE TO PERMIT COMPETITION BY SIX DIFFERENT MANUFACTURERS. ABSENT EVIDENCE THAT THE AGENCY'S NEEDS COULD HAVE BEEN MET BY A LESS DEMANDING SPECIFICATION, WE SEE NO LEGAL BASIS ON WHICH WE WOULD BE WARRANTED IN FINDING THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION.

IN RESPONSE TO YOUR ALLEGATION THAT CERTAIN SPECIFICATION REQUIREMENTS EXCEEDED THE GOVERNMENT'S MINIMUM NEEDS, THE CONTRACTING OFFICER HAS STATED:

SPECIFICATIONS WERE PROVIDED BY THE USING ELEMENT AND WERE BASED UPON SAFETY, OPERATING EXPERIENCE AND NEEDS, CURRENT MAINTENANCE RECORDS, AND THE PHYSICAL CHARACTER OF THE STRUCTURES WHERE THE EQUIPMENT WILL BE USED. ***

THIS STATEMENT WAS FURTHER EXPLAINED IN A SUPPLEMENTAL ADMINISTRATIVE REPORT, WHICH WAS FURNISHED YOU BUT UPON WHICH YOU DECLINED TO COMMENT.

THE RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT IS PRIMARILY THAT OF THE CONTRACTING AGENCY. COMP. GEN. 554 (1938). IN THE ABSENCE OF EVIDENCE CLEARLY INDICATING THAT THE SPECIFICATIONS AS WRITTEN DO NOT REFLECT THE MINIMUM NEEDS OF THE PROCURING ACTIVITY OR THAT THEY ARE OTHERWISE CONTRARY TO APPLICABLE LAW OR REGULATION, OUR OFFICE MAY NOT PROPERLY OBJECT THERETO.

YOU ALSO CONTEND THAT IT WAS IMPROPER FOR THE CONTRACTING OFFICER TO HAVE DETERMINED THE REASONABLENESS OF YOUR PRICE THROUGH A COMPARISON WITH NONRESPONSIVE BIDS; THAT AWARD UNDER IFB -0020 SHOULD HAVE BEEN MADE TO YOU AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER; AND THAT THE CANCELLATION OF IFB -0020 AND ISSUANCE OF IFB -0030 CONSTITUTED AN AUCTION. THESE ARGUMENTS, AS WELL AS THE FACTUAL SITUATION FROM WHICH THEY ARISE, BEAR AN EXTRAORDINARY SIMILARITY TO THOSE OF OUR DECISION B 173334, AUGUST 19, 1971, COPY ENCLOSED, IN WHICH YOU WERE THE PROTESTANT. UNDER THE AUTHORITIES SET FORTH IN THAT DECISION, WHICH ARE EQUALLY APPLICABLE TO THIS PROTEST, AND BASED UPON OUR REVIEW OF THE PRESENT RECORD, WE DO NOT FIND THAT YOUR CONTENTIONS PRESENT AN ADEQUATE BASIS FOR THIS OFFICE TO OBJECT TO THE CANCELLATION OF IFB 0020 AND THE ISSUANCE OF IFB -0030.

ACCORDINGLY, YOUR PROTEST IS DENIED.