B-169919, JUN. 16, 1970

B-169919, JUN. 16, 1970

CONTRACTS--SPECIFICATIONS RESTRICTIVE--CANCELLATION OF INVITATION DUE TO BIDDER'S PROTEST OF RESTRICTIVE NATURE OF SPECIFICATIONS FOR SIDE- LOADING ITS WASHER-EXTRACTOR MACHINES WHICH EXCLUDED END-LOADING MACHINE, SPECIFICATIONS WERE AMENDED FOR ONE PROCUREMENT TO INCLUDE SUCH MACHINES BUT NOT FOR ANOTHER, AND SINCE OFFICIAL DETERMINED BOTH MACHINES SHOULD BE OFFERED TO OBTAIN WIDEST POSSIBLE COMPETITION, EVEN THOUGH BIDS HAD BEEN OPENED AND PRICES EXPOSED, PROCUREMENT SHOULD BE CANCELED AND READVERTISED WITH BROADENED SPECIFICATIONS TO INCLUDE END LOADING MACHINES SINCE IT IS DUTY OF PROCUREMENT OFFICIALS TO SEE THAT SPECIFICATIONS ARE DRAFTED TO STATE GOVERNMENT'S ACTUAL MINIMUM NEEDS. SEE COMP. GEN. DECS. CITED.

TO MR. JOHNSON:

REFERENCE IS MADE TO LETTER 134G, WITH ENCLOSURES, DATED MAY 26, 1970, FROM THE DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF MEDICINE AND SURGERY, FORWARDING THE PROTEST OF THE PELLERIN MILNOR CORPORATION (PMC) CONCERNING THE ALLEGED RESTRICTIVE NATURE OF A SPECIFICATION CONTAINED IN SOLICITATION NO. M3-59-70, ISSUED BY THE MARKETING DIVISION, ADMINISTRATIVE MEDICAL SUPPLIES AND EQUIPMENT, HINES, ILLINOIS.

THE SOLICITATION, ISSUED ON APRIL 3, 1970, COVERED THE PURCHASE OF COMMERCIAL WASHER-EXTRACTOR COMBINATION MACHINE FOR THE VETERANS ADMINISTRATION (VA) HOSPITAL IN MEMPHIS, TENNESSEE. THE SOLICITATION SPECIFICATIONS REQUIRED THAT THE MACHINE HAVE A SIDE-LOADING CHARACTERISTIC. PRIOR TO BID OPENING, PMC PROTESTED AGAINST THE ALLEGED RESTRICTIVE NATURE OF THAT SPECIFICATION IN THIS SOLICITATION AND ANOTHER SOLICITATION FOR THE PURCHASE OF AN IDENTICAL MACHINE FOR THE HOSPITAL AT NORTHAMPTON, MASSACHUSETTS. IN VIEW OF PMC'S ALLEGATIONS THAT THEIR END- LOADING TYPE MACHINES ARE EXCLUDED, A TECHNICAL REVIEW OF THE MATTER WAS MADE BY VA LAUNDRY OPERATION PERSONNEL WHO, IN A MEMO TO DIRECTOR, SUPPLY SERVICE, STATED:

"1. IN ORDER TO PERMIT THE PELLERIN MILNOR CORPORATION AND OTHER EQUIPMENT MANUFACTURERS TO BID ON WASHER-EXTRACTORS FOR VAH NORTHAMPTON, WE HAVE REQUESTED YOUR SERVICE TO AMEND THE PURCHASE DESCRIPTION TO READ:

END-LOADING - 2 OR 3 COMPARTMENTS

SIDE-LOADING - 2, 3 OR 4 COMPARTMENTS" HOWEVER, WITH REGARD TO THE MEMPHIS PROCUREMENT, IT WAS RECOMMENDED AS FOLLOWS:

"3. THE WASHER EXTRACTOR DESCRIPTION FOR VAH MEMPHIS SPECIFIES SIDE LOADING ONLY. THIS TYPE OF A MACHINE HAS BEEN SELECTED TO CONFORM WITH SIMILAR TYPES IN USE AT MEMPHIS. A COMBINATION OF SIDE AND END-LOADING WASHER EXTRACTORS WOULD HINDER THE FLOW OF WORK AND REQUIRE MORE OPERATOR'S SKILL AND TRAINING. EXPERIENCE INDICATES THAT LESS EFFORT IS REQUIRED TO LOAD AND UNLOAD SIDE-LOADERS THAN CERTAIN TYPES OF END LOADERS.

"4. ALTHOUGH THE PELLERIN MACHINE MAY BE EASY TO LOAD AND UNLOAD, THERE IS NO ASSURANCE THAT THIS COMPANY WOULD GET THE BID. END-LOADING MACHINES MADE BY OTHER COMPANIES WOULD NOT FIT INTO THE EXISTING EQUIPMENT SCHEME AND WOULD CREATE PROBLEMS IN A LAUNDRY NOW EQUIPPED WITH ALL SIDE-LOADING MACHINES."

IN COMPLIANCE WITH THIS ADVICE, SPECIFICATIONS IN THE SOLICITATION COVERING THE NORTHAMPTON PURCHASE WERE AMENDED TO PERMIT PROSPECTIVE BIDDERS TO OFFER AN END-LOADING MACHINE AS WELL AS A SIDE-LOADING MACHINE. BUT NO AMENDMENT OF THE SPECIFICATIONS COVERING THE MEMPHIS SOLICITATION WAS EFFECTED. PMC DID NOT SUBMIT A BID ON THE MEMPHIS SOLICITATION, AND BID OPENING OCCURRED ON APRIL 30, 1970.

PMC HAS APPARENTLY CONVINCED VA PROCUREMENT OFFICIALS THAT THE SPECIFICATION'S EXCLUSION OF AN END-LOADING MACHINE FOR THE MEMPHIS HOSPITAL "IS DIFFICULT TO SUBSTANTIATE." THE DIRECTOR, SUPPLY SERVICE'S LETTER OF MAY 26, 1970, CONCLUDES THAT:

"IN VIEW OF THE ABSENCE OF 'HARD EVIDENCE' ON THE RELATIVE MERITS OF END LOADERS VERSUS SIDE LOADERS, WE ARE NOW PERSUADED THAT FUTURE PROCUREMENTS MUST PERMIT BOTH END LOADING AND SIDE LOADING MACHINES TO BE OFFERED. FURTHER, WE PROPOSE IN THE FUTURE TO OBTAIN THE WIDEST POSSIBLE COMPETITION BY PERMITTING 2, 3, OR 4 POCKET MACHINES OF EITHER TYPE TO BE OFFERED. SUCH ACTION WILL PERMIT ALL KNOWN TYPES OF MACHINES TO BE OFFERED." OUR DECISION IS REQUESTED AS TO WHETHER AN AWARD MAY PROPERLY BE MADE UNDER THE MEMPHIS SOLICITATION, OR WHETHER THE CIRCUMSTANCES REQUIRE CANCELLATION AND READVERTISEMENT ON THE BASIS OF BROADENED SPECIFICATIONS.

41 U.S.C. 253 REQUIRES, WITH RESPECT TO ADVERTISED PROCUREMENTS BY THE CIVILIAN AGENCIES, THAT SPECIFICATIONS AND SOLICITATIONS SHALL PERMIT SUCH FULL AND FREE COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF PROPERTY NECESSARY TO MEET THE REQUIREMENTS OF THE AGENCY CONCERNED. HAVE INTERPRETED THIS STATUTE AS REQUIRING AGENCIES TO UTILIZE SPECIFICATIONS IN SOLICITATIONS WHICH WILL ALLOW THE BROADEST FIELD OF COMPETITION TO FULFILL THE LEGITIMATE NEEDS OF THE GOVERNMENT. SEE 32 COMP. GEN. 384, 387 (1953), AND CASES CITED THEREIN. 39 COMP. GEN. 563 (1960); 45 COMP. GEN. 365, 368 (1965). FURTHER, FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.404-1(B)(1) PROVIDES FOR THE CANCELLATION OF SOLICITATIONS AFTER BID OPENING AND READVERTISEMENT WHERE INADEQUATE, AMBIGUOUS, OR OTHERWISE DEFICIENT SPECIFICATIONS ARE INCLUDED. MOREOVER, IT IS THE FUNCTION OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION. SEE B-167052, SEPTEMBER 19, 1969, AND CASES CITED THEREIN; 37 COMP. GEN 323, 326 (1957). WE NEED NOT MAKE AN INDEPENDENT DETERMINATION AS TO WHETHER THE SIDE-LOADING SPECIFICATION IS RESTRICTIVE OF COMPETITION, SINCE THE DIRECTOR, SUPPLY SERVICE HAS SO DETERMINED. THAT OFFICIAL ADVISES THAT THE SPECIFICATION WILL BE REVISED IN FUTURE SOLICITATIONS TO PERMIT A BIDDER TO OFFER AN END LOADING MACHINE AS IS CONSISTENT WITH THE GOVERNMENT'S NEEDS.

IN 38 COMP. GEN. 610 (1959), IN THE FACE OF A BIDDER'S ALLEGATION THAT A SPECIFICATION WAS RESTRICTIVE, WE HELD THAT IF AN AGENCY HAD DETERMINED THAT A SPECIFICATION COULD BE BROADENED TO INCLUDE OTHER BIDDERS, FAILURE TO DO SO MIGHT REQUIRE THE CONCLUSION THAT, WITH REGARD TO FUTURE PROCUREMENTS, IT WOULD BE RESTRICTIVE. SEE, ALSO, B 159692, NOVEMBER 7, 1966. SIMILARLY, IN B-116270, AUGUST 24, 1953, WE HELD THAT IT IS THE DUTY OF PROCUREMENT OFFICIALS TO SEE THAT SPECIFICATIONS ARE SO DRAFTED AS TO STATE THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT FAIRLY AND ACCURATELY AND THAT THEY ARE NOT SO DRAWN AS TO EXCLUDE FROM COMPETITION ANY MANUFACTURERS OF PRODUCTS MEETING THE NEEDS OF THE GOVERNMENT. SEE, ALSO, B-159771, SEPTEMBER 28, 1966, WHEREIN WE APPROVED THE CANCELLATION OF A SOLICITATION WHERE IT WAS LEARNED SUBSEQUENT TO BID OPENING THAT THE SPECIFICATIONS WOULD HAVE TO BE REVISED; AND B-167769, SEPTEMBER 30, 1969, 49 COMP. GEN. , WHERE WE DIRECTED REINSTATEMENT OF A CANCELLED SOLICITATION DUE TO A REVISION IN SPECIFICATIONS AND STATED " *** THERE IS NO EVIDENCE TO INDICATE THAT THE (ORIGINAL) REQUIREMENT *** PRECLUDED OTHER POTENTIAL BIDDERS FROM SUBMITTING RESPONSIVE BIDS, *** ."

WHILE IT IS REGRETTABLE THAT BID PRICES HAVE BEEN EXPOSED, WE BELIEVE, IN CONSONANCE WITH FPR 1-2.404-1(B)(1), THAT SOLICITATION NO. M3-59-70 SHOULD BE CANCELLED AND THE PROCUREMENT READVERTISED WITH BROADENED SPECIFICATIONS TO INCLUDE END-LOADING MACHINES.