B-143263, DEC. 22, 1960

B-143263, DEC. 22, 1960

TO ALEXANDER BOSKOFF, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 11, 1960, AND SUBSEQUENT CORRESPONDENCE, CONCERNING THE PROTEST OF SQUARE DEAL TRUCKING COMPANY, INC., HEREINAFTER REFERRED TO AS SQUARE DEAL, IN CONNECTION WITH INVITATIONS FOR BIDS FOR THE COLLECTION AND DISPOSAL OF REFUSE AT FORT LESLEY J. MCNAIR, FOR PERIODS SUBSEQUENT TO JULY 1, 1960.

FOR THE YEAR ENDING JUNE 30, 1960, SQUARE DEAL HAD BEEN THE SUCCESSFUL BIDDER AND HAD RECEIVED AN AWARD FOR THE COLLECTION AND DISPOSAL OF REFUSE AT THE FORT, UNDER SPECIFICATIONS PROVIDING FOR THE COLLECTION OF REFUSE FROM GI CANS (32 GALLON CAPACITY), WHICH WERE THE PROPERTY OF THE GOVERNMENT. COLLECTION ON THOSE TERMS IN HEREINAFTER REFERRED TO AS CONVENTIONAL SERVICE.

DURING THE COURSE OF THE YEAR FORT PERSONNEL EXPERIENCED MAINTENANCE DIFFICULTIES AT SEVERAL COLLECTION POINTS AND, AT THEIR REQUEST, SQUARE DEAL PLACED AT THOSE POINTS LARGE CONTAINERS WHICH REQUIRED SERVICING BY A TRUCK EQUIPPED WITH SPECIAL MECHANICAL DEVICES. AFTER EXPERIMENTATION WITH THIS EQUIPMENT AT THE TROUBLE SPOTS, FORT PERSONNEL INFORMED SQUARE DEAL THAT THE PLACING OF A 5-CUBIC YARD CONTAINER AT EACH OF THE SIX SPOTS HAD SOLVED THE MAINTENANCE PROBLEM. AT THIS POINT DISCUSSION AROSE WITH RESPECT TO THE COST OF THE ADDITIONAL EQUIPMENT WHICH HAD BEEN FURNISHED BY SQUARE DEAL. SINCE THE FORT HAD ONLY A LIMITED AMOUNT OF FUNDS TO PAY FOR THE INCREASED SERVICE, AND SINCE THE CONTRACT HAD ONLY A FEW MONTHS TO RUN, SQUARE DEAL AGREED TO AN INCREASE IN THE MONTHLY RATE FROM $900 TO $1,100 FOR THE USE OF THE EXTRA EQUIPMENT.

UNDER DATE OF MAY 4, 1960, FORT MCNAIR ISSUED INVITATION FOR BIDS NO. NDW 49-069-60-8, REQUESTING BIDS TO BE OPENED ON JUNE 3, 1960, FOR COLLECTION AND DISPOSAL OF REFUSE FOR THE 12-MONTH PERIOD JULY 1, 1960, THROUGH JUNE 30, 1961. THE SPECIFICATION GREATLY INCREASED THE NUMBER OF DETACHABLE CONTAINERS TO BE FURNISHED BY THE CONTRACTOR, CALLING FOR FOUR 6-CUBIC YARD, TEN 5-CUBIC YARD AND TWO 2-CUBIC YARD CONTAINERS, OR A TOTAL OF 16 DETACHABLE CONTAINERS AS COMPARED WITH 6 FURNISHED DURING THE FINAL PERIOD OF THE PRIOR CONTRACT.

THE LOWEST RESPONSIVE BID RECEIVED UNDER THIS INVITATION WAS SUBMITTED BY SQUARE DEAL AND PROVIDED FOR A CHARGE OF $1,750 PER MONTH. ALL BIDS WERE REJECTED BY FORT MCNAIR ON THE BASIS OF THE HIGH COST OF THE SERVICES REQUESTED AS COMPARED WITH THE COST OF $1,100 PER MONTH UNDER THE PRIOR CONTRACT. THE INCREASE IN COST APPARENTLY WAS DUE PRIMARILY TO THE INCREASE IN THE NUMBER OF DETACHABLE CONTAINERS TO BE FURNISHED BY THE CONTRACTOR.

DUE TO THE CANCELLATION AND THE FACT THAT THERE WAS INSUFFICIENT TIME TO READVERTISE AND MAKE AWARD BEFORE JULY 1, FORT MCNAIR NEGOTIATED AN AGREEMENT WITH SQUARE DEAL TO CONTINUE THE SERVICE THEN BEING SUPPLIED, INCLUDING THE USE OF SIX 5-CUBIC YARD CONTAINERS FOR THE MONTH OF JULY 1960 FOR A PRICE OF $1,320.

ON JUNE 20, 1960, FORT MCNAIR ISSUED INVITATION FOR BIDS NO. MDW 49 069- 60-15, REQUESTING BIDS TO BE OPENED ON JULY 18, 1960, FOR THE 11 MONTH PERIOD AUGUST 1, 1960, THROUGH JUNE 30, 1961, THE SPECIFICATION PROVIDED IN ADDITION TO THE CONVENTIONAL SERVICE FOR THE FURNISHING BY THE CONTRACTOR OF SIX 5-CUBIC YARD DETACHABLE CONTAINERS AND REQUIRED BIDDERS TO QUOTE A UNIT PRICE PER MONTH FOR FURNISHING ADDITIONAL 5 CUBIC YARD CONTAINERS IF ORDERED BY THE GOVERNMENT. ON JULY 19, 1960, FORT MCNAIR AND HEADQUARTERS, MILITARY DISTRICT OF WASHINGTON, RECEIVED COPIES OF A LETTER DATED JULY 15, 1960, FROM BALDWIN TRASH COMPANY PROTESTING THE REQUIREMENT OF THE SPECIFICATION FOR FURNISHING THE 5-CUBIC YARD CONTAINERS. A COPY OF THAT LETTER WAS RECEIVED IN THIS OFFICE ON JULY 18, 1960. BALDWIN TRASH COMPANY CONTENDED THAT THE SPECIFICATIONS WERE RESTRICTIVE, THAT THE REFUSE COULD BE STORED AND COLLECTED SATISFACTORILY AT EACH OF THE TROUBLE POINTS IN SEVERAL SMALLER CONTAINERS RATHER THAN IN ONE 5-CUBIC YARD CONTAINER AND THAT WITH SUCH REQUIREMENTS THE SERVICE COULD BE FURNISHED SUBSTANTIALLY CHEAPER. SINCE THE BIDS HAD BEEN OPENED ON JULY 18, 1960, IT WAS NOT POSSIBLE TO CONSIDER REVISION OF THE SPECIFICATION ON THE BASIS OF THE PROTEST.

IN RESPONSE TO THIS SECOND INVITATION THREE BIDS WERE RECEIVED. SQUARE DEAL QUOTED A PRICE OF $1,300 PER MONTH, SHAYNE BROTHERS $1,362 PER MONTH, AND BALDWIN TRASH COMPANY $850 PER MONTH. HOWEVER, BALDWIN'S BID WAS QUALIFIED BY THE STATEMENT THAT THE WOULD NOT FURNISH 5-CUBIC YARD CONTAINERS BUT WOULD FURNISH CONTAINERS OF EQUIVALENT CAPACITY. BALDWIN'S BID WAS CONSIDERED AS BEING NONRESPONSIVE AND FORT MCNAIR PROPOSED TO AWARD THE CONTRACT TO SQUARE DEAL AS LOWEST RESPONSIVE BIDDER. HOWEVER, THE PROPOSED AWARD WAS DISAPPROVED BY HEADQUARTERS, UNABLE TO JUSTIFY AN EXPENDITURE OF $1,300 PER MONTH TO REMOVE REFUSE THAT HAD PREVIOUSLY BEEN REMOVED BY STRAIGHT CONVENTIONAL SERVICE AT $900 PER MONTH. FORT MCNAIR WAS DIRECTED TO READVERTISE ITS REQUIREMENTS AND TO INCLUDE A PROVISION THAT WOULD PERMIT BIDDERS TO FURNISH SMALLER INDIVIDUAL SIZE CONTAINERS AS A SUBSTITUTE OR THE 5-CUBIC YARD CONTAINERS. PURSUANT TO SUCH INSTRUCTIONS, ALL BIDS RECEIVED IN RESPONSE TO THE SECOND INVITATION WERE REJECTED BY FORT MCNAIR ON JULY 27, 1960.

IN VIEW OF THE ABOVE ACTION AND THE LIMITED TIME AVAILABLE, IT WAS NECESSARY FOR FORT MCNAIR TO NEGOTIATE A CONTRACT FOR TRASH COLLECTION FOR THE MONTH OF AUGUST 1960. FOR THIS PURPOSE QUOTATIONS WERE REQUESTED UNDER ITEM 1 FOR FURNISHING THE SAME TYPE OF SERVICE AS WAS THEN BEING FURNISHED, EXCEPT THAT AN ADDITIONAL 5-CUBIC YARD CONTAINER WAS ADDED, AND UNDER ALTERNATE ITEM 2 FOR CONTAINERS OF LESS CAPACITY. BALDWIN TRASH COMPANY DID NOT SUBMIT A QUOTATION AND AWARD WAS MADE TO SQUARE DEAL ON ITEM 1 FOR THE SAME TYPE OF SERVICE IT WAS THEN RENDERING FOR THE SUM OF $1,357.50 FOR THE MONTH OF AUGUST 1960.

ON AUGUST 5, 1960, FORT MCNAIR ISSUED INVITATION FOR BIDS NO. MDW 49 069- 61-2, REQUESTING BIDS TO BE OPENED ON AUGUST 19, 1960, COVERING THE COLLECTION AND DISPOSAL OF REFUSE FOR THE 10-MONTH PERIOD SEPTEMBER 1, 1960, THROUGH JUNE 30, 1961. THIS INVITATION PROVIDED FOR BIDS ON ALTERNATE ITEMS 1 AND 2. ITEM 1 COVERED THE SAME TYPE OF SERVICE THEN BEING RENDERED BY SQUARE DEAL, NAMELY, CONVENTIONAL SERVICE THROUGHOUT THE FORT EXCEPT AT SEVEN POINTS WHERE THE CONTRACTOR WAS TO FURNISH 5-CUBIC YARD DETACHABLE CONTAINERS. ITEM 2 ALSO COVERED CONVENTIONAL SERVICE THROUGHOUT THE FORT EXCEPT THAT WITH RESPECT TO THE SEVEN TROUBLE SPOTS IT PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"BIDDERS MAY SUBMIT A BID ON ITEM 1 AND/OR ITEM 2. AWARD WILL BE MADE ON EITHER ITEM 1 OR 2. IN EVALUATING BIDS, THE GOVERNMENT WILL ADD A COST FACTOR OF $200.00 TO THE PRICE SUBMITTED AGAINST ITEM 2 IF THE BIDDER OFFERS TO FURNISH INDIVIDUAL CONTAINERS OF 32 GALLON CAPACITY (GI CANS). IN THE EVENT THE BIDDER OFFERS TO FURNISH METAL TRASH CONTAINERS OF THE SAME TYPE COVERED IN PART 3 OF THE TECHNICAL PROVISIONS BUT OF A SMALLER INDIVIDUAL CAPACITY, THERE WILL BE NO EVALUATING FACTOR ADDED. BIDDERS SUBMITTING A PRICE AGAINST ITEM 2 MUST FURNISH, ALONG WITH THEIR BID A STATEMENT OF THE SPECIFIC TYPE, SIZE AND NUMBER OF CONTAINERS TO BE FURNISHED. FAILURE TO SUBMIT THIS INFORMATION WILL RESULT IN REJECTION OF SUCH BIDS AS NON-RESPONSIVE.

TECHNICAL PROVISIONS

PART 4

"4-01 SCOPE OF WORK

THE WORK COVERED BY THIS PART IS EXACTLY THE SAME AS THAT COVERED IN PART 3 ABOVE EXCEPT THAT THE CONTRACTOR MAY FURNISH INDIVIDUAL CONTAINERS OF LESS THAN 5-CUBIC YARD CAPACITY PROVIDED THAT CONTAINERS TO BE FURNISHED WILL NOT BE LESS THAN 32 GALLON CAPACITY EACH AND THAT A SUFFICIENT NUMBER OF INDIVIDUAL CONTAINERS WILL BE FURNISHED TO PROVIDE A TOTAL CAPACITY OF 5 CUBIC YARDS AT EACH OF THE SEVEN POINTS SPECIFIED.'

THREE BIDS WERE RECEIVED IN RESPONSE TO THE THIRD INVITATION. SQUARE DEAL AND SHAYNE BROTHERS SUBMITTED BIDS UNDER ITEM 1 OF $1,357.50 AND $1,442 PER MONTH, RESPECTIVELY. BALDWIN TRASH COMPANY SUBMITTED A BID UNDER ITEM 2 OF $725 PER MONTH AND STATED THAT IT WOULD FURNISH TWO 2- CUBIC YARD CONTAINERS AND ONE 1-CUBIC YARD CONTAINER AT EACH OF THE 7 POINTS WHERE A 5-CUBIC YARD CONTAINER WAS THEN BEING FURNISHED. AWARD WAS MADE TO THE BALDWIN TRASH COMPANY UNDER ITEM 2.

UPON THE ISSUANCE OF THIS THIRD INVITATION ON AUGUST 5, 1960, SQUARE DEAL PROTESTED PART 4 OF THE INVITATION WHICH PERMITTED PROSPECTIVE BIDDERS TO OFFER SMALLER CONTAINERS IN 5-CUBIC YARD COMBINATIONS IN PLACE OF THE 5- CUBIC YARD CONTAINERS SPECIFIED IN PART 3. IT WAS URGED THAT THE ACTION OF HEADQUARTERS, MILITARY DISTRICT OF WASHINGTON, IN DIRECTING FORT MCNAIR TO CANCEL THE SECOND INVITATION ON THE INVITATION ON THE BASIS OF SEEKING FURTHER COMPETITION WAS AN ARBITRARY AND CAPRICIOUS DECISION, AND THAT THE PROCEDURE FOLLOWED BY HEADQUARTERS, MILITARY DISTRICT OF WASHINGTON, WAS DESTRUCTIVE OF THE PRINCIPLES OF COMPETITIVE BIDDING IN THAT BIDS ONCE DISCLOSED SHOULD NOT BE REJECTED EXCEPT FOR COGENT REASONS. ALSO, SQUARE DEAL URGED THAT IF BIDDERS WERE TO BE PERMITTED TO OFFER SMALLER CONTAINERS AT FORT MCNAIR THEN THEY SHOULD LIKEWISE BE ABLE TO OFFER CONTAINERS SMALLER THAN THE 10 AND 30-CUBIC YARD CONTAINERS REQUIRED AT FORT MYER.

THE FIRST INVITATION REQUIRING DETACHABLE CONTAINER SERVICE AT 16 POINTS AND IN RESPONSE TO WHICH THE LOWEST BID RECEIVED WAS $1,750 PER MONTH AND THE FORT PROPOSED AWARD ON THAT BASIS TO HEADQUARTERS, THE HIGH COST AND BECAUSE IT EXCEEDED FUNDS BUDGETED FOR SUCH SERVICES. FORT MCNAIR HAD NOT JUSTIFIED AN EXPENDITURE OF $1,300 PER MONTH TO DETACHABLE CONTAINER SERVICE TO 6 POINTS WHICH WAS THE SAME SERVICE IT WAS THEN RECEIVING. THE LOW BID RECEIVED FOR SUCH SERVICE WAS $1,300 PER MONTH AND THE FORT PROPOSED AWARD ON THAT BASIS TO HEADQUARTERS, MILITARY DISTRICT OF WASHINGTON. HOWEVER, HEADQUARTERS DETERMINED THAT FOR MCNAIR HAD NOT JUSTIFIED AN EXPENDITURE OF $1,300 PER MONTH TO REMOVE REFUSE THAT HAD PREVIOUSLY BEEN REMOVED BY STRAIGHT CONVENTIONAL SERVICE AT $900 PER MONTH. ALSO, HEADQUARTERS WAS ON NOTICE OF THE PROBABILITY THAT A LOWER PRICE MIGHT BE OBTAINED IF A COMBINATION OF SMALLER CONTAINERS AT THE TROUBLE SPOTS WAS PERMITTED. THEREFORE, HEADQUARTERS DIRECTED FORT MCNAIR TO REJECT ALL BIDS AND TO READVERTISE. IN RESPONSE TO THIS INVITATION A LOW BID WAS RECEIVED OFFERING TO FURNISH TWO 2-CUBIC YARD AND ONE 1-CUBIC YARD CONTAINERS AT EACH OF THE SEVEN TROUBLE POINTS FOR $725 PER MONTH AS COMPARED WITH BIDS OF $1,357.50 AND $1,442.50 PER MONTH FOR 5-CUBIC YARD CONTAINERS AT THE SEVEN TROUBLE POINTS.

WE ARE URGED BY SQUARE DEAL TO HOLD, IN EFFECT, THAT HEADQUARTERS, MILITARY DISTRICT OF WASHINGTON, HAD NO AUTHORITY TO DIRECT THE REJECTION OF ALL BIDS UNDER THE SECOND ADVERTISED INVITATION. THIS WAS THE INVITATION CALLING FOR 5-CUBIC CONTAINERS AT SEVEN PLACES, IN RESPONSE TO WHICH SQUARE DEAL SUBMITTED A BID OF $1,300 PER MONTH AND BALDWIN SUBMITTED A NONRESPONSIVE BID OF $850 PER MONTH CONDITIONED ON THE USE OF SMALLER CONTAINERS TOTALLING FIVE YARDS AT EACH OF THE TROUBLE POINTS.

IN OTHER WORDS, ON THE BASIS OF THE BIDS RECEIVED, IT WAS CLEARLY INDICATED THAT A SAVING OF NEARLY 35 PERCENT MIGHT BE MADE BY PERMITTING SMALLER CONTAINERS. AS A MATTER OF FACT, THIS CHANGE IN THE SPECIFICATIONS ACTUALLY RESULTED IN A SAVING OF NEARLY 45 PERCENT ON THE SUBSEQUENT READVERTISEMENT. IT IS ARGUED BY SQUARE DEAL THAT SUCH A SAVING DOES NOT CONSTITUTE A SUFFICIENT REASON FOR READVERTISING THE PROCUREMENT. WE CANNOT AGREE WITH THIS POSITION.

THE PURPOSE OF THE STATUTES REQUIRING CERTAIN GOVERNMENT CONTRACTS TO BE LET TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING IS TO GIVE ALL PERSONS AN EQUAL OPPORTUNITY TO COMPETE FOR GOVERNMENT BUSINESS, TO PREVENT UNJUST FAVORITISM, COLLUSION OR FRAUD IN AWARDING GOVERNMENT CONTRACTS, AND TO SECURE FOR THE GOVERNMENT THE BENEFITS WHICH FLOW FROM FREE AND UNRESTRICTED COMPETITION. IT IS A BASIC PRINCIPLE OF PROCUREMENT UNDER SUCH PROCEDURES THAT INVITATIONS FOR BIDS BE SO DRAWN AS TO ENABLE ALL BIDDERS TO COMPETE ON A COMMONBAS IS; AND BIDS MAY NOT BE EVALUATED ON ANY BASIS NOT PROVIDED FOR IN THE INVITATION.

IT MUST NOT BE FORGOTTEN, HOWEVER, THAT THE PRIMARY PURPOSE OF ADVERTISING FOR SEALED BIDS IS TO OBTAIN THE BEST PRICE WHICH COMPETITION WILL BRING FOR THE GOVERNMENT'S NEEDS. IT IS ALSO A CARDINAL TENET OF PROCUREMENT UNDER THIS PROCEDURE THAT THE INVITATION SPECIFICATIONS MUST BE AS BROAD AS MAY BE CONSISTENT WITH THE ACTUAL NEEDS OF THE GOVERNMENT, AND THAT SUCH NEEDS MAY NOT BE OVERSTATED. WE HAVE CONSISTENTLY AGREED WITH THE DICTUM OF THE COURT OF CLAIMS IN THE MASSMAN CASE, 120 CT.CL. 699, 719, THAT IT IS A SERIOUS MATTER TO REJECT BIDS AFTER THEY HAVE BEEN OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITOR'S PRICE, AND THAT THIS SHOULD NOT BE PERMITTED EXCEPT FOR COGENT REASONS. HOWEVER, IT HAPPENS NOT INFREQUENTLY THAT PROSPECTIVE CONTRACTORS THINK OF MEANS OF FULFILLING THE GOVERNMENT'S REQUIREMENTS IN A MANNER NOT CONTEMPLATED BY AND LESS COSTLY THAN THAT SPECIFIED IN AN INVITATION. IN ALL SUCH CASES, OF COURSE, IT WOULD BE PREFERABLE IF THE MORE ECONOMICAL METHOD OF MEETING THE GOVERNMENT'S NEEDS WERE RECOGNIZED IN ADVANCE AND INCLUDED IN THE REQUIREMENTS OF THE INVITATION. BUT IF THE POSSIBLE SAVING IS FIRST BROUGHT TO THE ATTENTION OF THE RESPONSIBLE PROCUREMENT OFFICIALS BY THE SUBMISSION OF AN UNRESPONSIVE BID, WE ARE AWARE OF NO PRINCIPLE WHICH REQUIRES THEM TO IGNORE THE PROSPECTIVE SAVING AND MAKE THE AWARD ON THE BASIS OF THE SPECIFICATIONS WHICH HAVE BEEN DEMONSTRATED TO BE UNNECESSARILY RESTRICTIVE AND COSTLY.

IN OUR OPINION, SUCH A SAVING MAY WELL CONSTITUTE A COGENT REASON FOR REJECTING ALL BIDS AND READVERTISING. NECESSARILY IF THE LIKELIHOOD OF SUBSTANTIAL SAVING BE CONSIDERED A JUSTIFIABLE REASON FOR READVERTISING, IT CANNOT BE ARBITRARY OR CAPRICIOUS. THIS IS ONE DISTINCTION BETWEEN THE PRESENT CASE AND THAT REPORTED AT 39 COMP. GEN. 396. IN THAT CASE THE ONLY DIFFERENCES BETWEEN THE FIRST AND SECOND INVITATIONS WERE THE INSERTION IN THE LATTER OF A SPECIFIC PROVISION THAT ALL THREE ITEMS OF THE INVITATION, NAMELY DRAYAGE, STORAGE AND HANDLING OF HOUSEHOLD GOODS, WOULD BE AWARDED TO THE SAME BIDDER, AND A REDUCTION IN THE ESTIMATED QUANTITY OF GOODS TO BE STORED. WE HELD THAT THE FIRST CHANGE WAS SUPERFLUOUS SINCE IT WAS REASONABLY APPARENT THAT ALL THREE ITEMS SHOULD BE AWARDED TO THE SAME BIDDER, AND THAT THE OTHER CHANGE WAS INSUBSTANTIAL IN NATURE. IT SHOULD BE NOTED THAT ALL THREE ITEMS SPECIFIED AN ESTIMATED QUANTITY OF SERVICES TO BE PERFORMED, AND THAT THE ACTUAL QUANTITY OF GOODS TO BE STORED AND PAID FOR BY THE GOVERNMENT WOULD BE THE SAME REGARDLESS OF THE ESTIMATE THEREOF IN THE INVITATION. FURTHER, AND MORE IMPORTANT, THE LOW BIDDER ON THE SECOND INVITATION WAS THE FIFTH HIGHEST BIDDER ON THE FIRST INVITATION, AND THERE WAS NO INDICATION WHEN BIDS UNDER THE FIRST INVITATION WERE REJECTED THAT ANY SUBSTANTIAL SAVING MIGHT RESULT FROM A READVERTISEMENT UNDER THE CHANGED SPECIFICATIONS.

MENTION HAS ALSO BEEN MADE BY SQUARE DEAL OF AN ALLEGED INCONSISTENCY IN THE TRASH COLLECTION CONTRACTS AT FORT MCNAIR AND FORT MYER. AT THE LATTER POST THE INVITATION CALLED FOR 38 10-YARD CONTAINERS, AND SQUARE DEAL'S REQUEST TO BE PERMITTED TO USE TWO 5 YARD CONTAINERS IN PLACE OF EACH 10-YARD CONTAINER WAS REFUSED. THE SHORT ANSWER TO THIS CONTENTION IS THAT TWO 5-YARD CONTAINERS ORDINARILY COST MORE THAN ONE 10-YARD CONTAINER, AND THERE THUS WAS NO INDICATION THAT THE GRANTING OF SQUARE DEAL'S REQUEST WOULD HAVE RESULTED IN ANY LOWER COST TO THE GOVERNMENT. WE REALIZE THAT A COMBINATION OF SMALLER CONTAINERS IN LIEU OF A 5-YARD CONTAINER AS WAS PERMITTED AT FORT MCNAIR MAY ALSO ORDINARILY BE MORE COSTLY, BUT THE FACT REMAINS THAT A MUCH LOWER BID ON THAT BASIS WAS RECEIVED. THE EXPLANATION IS THAT THE REFUSE COLLECTION AT FORT MYER WAS SEPARATED INTO TWO CONTRACTS, ONE FOR DETACHABLE CONTAINER SERVICE ONLY, AND THE OTHER FOR CONVENTIONAL SERVICE ONLY. AT FORT MCNAIR ONLY ONE CONTRACT WAS AWARDED, BY FAR THE GREATEST PART OF WHICH CONSISTED OF CONVENTIONAL SERVICE.

IN VIEW OF THE CIRCUMSTANCES RELATED ABOVE, WE FIND NO REASON TO CONCLUDE THAT THE DETERMINATION BY HEADQUARTERS, MILITARY DISTRICT OF WASHINGTON, TO PERMIT THE USE OF CONTAINERS SMALLER THAN FIVE YARDS AT FORT MCNAIR WAS MADE IN BAD FAITH. THE FACTS DEMONSTRATE A REASONABLE BASIS FOR THE CONCLUSION THAT THE INCREASED COST INVOLVED DID NOT JUSTIFY THE ALLEGEDLY SUPERIOR SERVICE RESULTING FROM THE USE OF 5-YARD CONTAINERS. THE DECISION TO ACCEPT THE USE OF SMALLER CONTAINERS AT A VERY SUBSTANTIAL SAVING WAS, IN OUR OPINION, A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION. ACCORDINGLY, WE CONCLUDE THAT THERE IS NO LEGAL BASIS UPON WHICH WE MAY QUESTION THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.