B-152861, APRIL 10, 1964, 43 COMP. GEN. 680

B-152861, APRIL 10, 1964, 43 COMP. GEN. 680

CONTRACTS - SPECIFICATIONS - FEDERAL SPECIFICATIONS - DEVIATION JUSTIFICATION A DEVIATION FROM THE FEDERAL SPECIFICATIONS IN AN INVITATION FOR SWEEPERS TO INCLUDE AN ADDED REQUIREMENT THAT IS ERRONEOUSLY CONSIDERED A PERMISSIBLE OPTION, BUT SUBSEQUENTLY APPROVED IN ACCORDANCE WITH PARAGRAPH 1202.50 OF THE ARMY PROCUREMENT PROCEDURE, IS NOT AN ARBITRARY OR CAPRICIOUS DEVIATION UNDULY RESTRICTING COMPETITION, BUT IS A DEVIATION FROM THE FEDERAL SPECIFICATIONS THAT IS JUSTIFIED IN ORDER TO MEET THE PARTICULAR NEEDS OF THE PROCURING ACTIVITY, AND HAVING THE PRIME RESPONSIBILITY FOR DETERMINING WHETHER OR NOT A BID PRICE IS REASONABLE, THE CONTRACTING OFFICER'S DETERMINATION THAT THE PRICE OF THE SOLE BIDDER WAS REASONABLE, WHICH IS SUPPORTED BY THE EVIDENCE, DOES NOT REQUIRE THE ASSUMPTION THAT THE SOLE BIDDER DID NOT FEAR COMPETITION FROM OTHER BIDDERS.

TO THE ELGIN SWEEPER COMPANY, APRIL 10, 1964:

WE HAVE RECEIVED YOUR LETTERS OF NOVEMBER 7 AND NOVEMBER 15, 1963, PROTESTING THE PROPOSED AWARD OF A CONTRACT BY FT. MYER, VIRGINIA, DEPARTMENT OF THE ARMY, FOR A WAYNE MANUFACTURING COMPANY MODEL 2-880 STREET SWEEPER WITH A 4 CUBIC YARD HOPPER CAPACITY, FROM SHAFFER EQUIPMENT AND SUPPLY COMPANY, THE SOLE BIDDER UNDER INVITATION FOR BIDS (IFB) MDW 44 -040-64-7. THE SUBJECT IFB, WHICH INCORPORATED FEDERAL SPECIFICATION 00-S -875A, DATED MAY 29, 1962, TITLED "SWEEPER, ROTARY, SELF-PROPELLED, (STREET TYPE)," WITH CERTAIN MODIFICATIONS, WAS ISSUED ON OCTOBER 23, 1963, TO 17 FIRMS. AT THE SAME TIME THE INVITATION WAS SUBMITTED TO THE MILITARY DISTRICT OF WASHINGTON FOR REVIEW OF THE IFB'S COMPLIANCE WITH REGULATIONS. PARAGRAPHS A. THROUGH P. ON PAGES 3 AND 4 OF THE IFB MODIFIED THE FEDERAL SPECIFICATION IN SEVERAL RESPECTS, INCLUDING THE FOLLOWING:

COMPONENT PARTS OF SWEEPER SHALL CONFORM WITH THE FOLLOWING OPTIONS IN ACCORDANCE WITH PARAGRAPH 6.1 OF FEDERAL SPECIFICATION NO. 00-S 875A:

1. SIDE GUTTER BROOMS: SHALL BE POSITIONED AHEAD OF FRONT WHEELS. * * *

ON OCTOBER 30, YOU WROTE TO THE PURCHASING AND CONTRACTING OFFICE AT FT. MYER TO OBJECT TO CERTAIN OF THE MODIFICATIONS, INCLUDING THE ONE QUOTED ABOVE. THIS LETTER WAS FORWARDED TO THE MILITARY DISTRICT OF WASHINGTON WHICH DECIDED THAT THE PARTICULAR NEEDS OF FT. MYER WERE NOT SO UNIQUE AS TO JUSTIFY ALL OF THE RESTRICTIVE DEVIATIONS FROM THE FEDERAL SPECIFICATION WHICH WERE CONTAINED IN THE PARAGRAPHS OF THE IFB TO WHICH YOU HAD OBJECTED. HOWEVER, THE DISTRICT CONCLUDED THAT THAT PORTION OF PARAGRAPH I. WHICH REQUIRED THE SIDE GUTTER BROOMS TO BE POSITIONED IN FRONT OF THE FORWARD WHEELS OF THE VEHICLE WAS JUSTIFIED.

SEVERAL OF YOUR OBJECTIONS WERE SATISFIED BY AN AMENDMENT TO THE IFB ISSUED ON NOVEMBER 5, BUT YOU PROTEST BECAUSE THE AMENDMENT FAILED TO ELIMINATE THE REQUIREMENT REGARDING THE POSITION OF THE SIDE BROOMS. YOU CONTEND THAT THE FEDERAL SPECIFICATION CONTAINED NO AUTHORITY PERMITTING THIS MODIFICATION, AND THAT THE RECEIPT OF ONLY ONE BID IS EVIDENCE THAT THE ADDITION OF THIS REQUIREMENT RESULTED IN A RESTRICTIVE FEDERAL SPECIFICATION, AND YOU POINT OUT THAT WHILE PARAGRAPH 6.1 OF THE FEDERAL SPECIFICATION AUTHORIZED THE EXERCISE OF CERTAIN OPTIONS, IT DID NOT PROVIDE FOR SPECIFYING A PARTICULAR POSITION FOR THE SIDE BROOMS, NOR DID IT BY ITS OWN TERMS RESTRICT THE LOCATION OF SUCH BROOMS.

ARMED SERVICES PROCUREMENT REGULATION 1-1202 (A) LAYS DOWN THE BASIC REQUIREMENT THAT FEDERAL SPECIFICATIONS, UNLESS DETERMINED BY THE DEPARTMENT OF DEFENSE TO BE INAPPLICABLE FOR ITS USE, ARE MANDATORY FOR USE IN PROCUREMENT OF SUPPLIES COVERED THEREBY. SECTION 1-1202 (B) LISTS SEVEN EXCEPTIONS TO THAT REQUIREMENT, NONE OF WHICH APPEARS TO BE APPLICABLE TO THIS PROCUREMENT. FINALLY, SECTION 1-1202 (C) PROVIDES THAT WHERE A FEDERAL SPECIFICATION DOES NOT MEET THE ESSENTIAL NEEDS OF A COMMAND, ACTION MAY BE TAKEN IN ACCORDANCE WITH PROCEDURES ESTABLISHED UNDER THE DEFENSE STANDARDIZATION PROGRAM. DEPARTMENT OF DEFENSE DIRECTIVE 4120.3, DATED OCTOBER 15, 1954, AND TITLED DEFENSE STANDARDIZATION PROGRAM, PROVIDES IN PARAGRAPH VII (B) 1 THAT FEDERAL SPECIFICATIONS SHALL BE IMPLEMENTED IN ACCORDANCE WITH APPROVED FEDERAL AND DEPARTMENT OF DEFENSE REGULATIONS AND PROCEDURES. PARAGRAPH VII (D) 2 (B) OF THE DIRECTIVE PROVIDES THAT THE MILITARY DEPARTMENTS SHALL ESTABLISH PROCEDURES TO ASSURE THAT JUSTIFICATION FOR DEVIATIONS FROM FEDERAL SPECIFICATIONS ARE SUBJECTED TO COMPETENT REVIEW BEFORE AUTHORIZATION. IN ACCORDANCE WITH THE ABOVE-REFERENCED DIRECTIVE, PARAGRAPH 1202.50 OF ARMY PROCUREMENT PROCEDURE PROVIDES THAT ALL DEVIATIONS FROM FEDERAL SPECIFICATIONS SHALL BE SUBJECTED TO REVIEW IN ACCORDANCE WITH INSTRUCTIONS OF THE HEAD OF PROCURING ACTIVITY. FROM THE FOREGOING, IT IS CLEAR THAT AUTHORITY DOES EXIST WHEREBY A FEDERAL SPECIFICATION MAY BE CHANGED TO INCLUDE NEW AND ADDITIONAL REQUIREMENTS. THERE REMAINS FOR CONSIDERATION WHETHER THE USE OF SUCH AUTHORITY WAS JUSTIFIED IN THIS CASE.

YOU ASSERT THAT THE FEDERAL SPECIFICATION, AS MODIFIED, IS RESTRICTIVE. THIS ASSERTION MAY BE TRUE TO THE EXTENT THAT THE SPECIFICATION MAY HAVE PRECLUDED YOUR SUBMITTING A RESPONSIVE BID WITHOUT CHANGING YOUR COMMERCIAL OR STANDARD EQUIPMENT TO COMPLY WITH THAT SPECIFICATION. THIS SENSE, OF COURSE, ALL SPECIFICATIONS ARE RESTRICTIVE SINCE THE REQUIREMENTS THEY NECESSARILY ESTABLISH, WHETHER REASONABLE OR NOT, PRECLUDE THE PURCHASE OF NONCONFORMING ITEMS. HOWEVER, THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED. 36 COMP. GEN. 251, 252. THEREFORE, THE LEGAL QUESTION PRESENTED IS WHETHER OR NOT THE DEVIATION FROM THIS FEDERAL SPECIFICATION (ASSUMING IT TO HAVE BEEN PROPERLY AUTHORIZED) RENDERED IT UNDULY RESTRICTIVE, I.E., RESTRICTIVE TO THE POINT OF PREVENTING THE PECUNIARY BENEFITS WHICH WE BELIEVE TO FLOW FROM FREE AND OPEN COMPETITION.

THE CONTRACTING OFFICER REPORTS TO THIS OFFICE THAT WITHOUT THE SUBJECT MODIFICATION, THE FEDERAL SPECIFICATION WOULD NOT COMPORT WITH THE ACTUAL NEEDS OF FT. MYER. SHE STATES THAT THERE ARE SIXTY-FIVE AREAS OF APPROXIMATELY TWENTY SQUARE FEET EACH AT INSIDE STREET CORNERS ADJACENT TO VARIOUS BUILDINGS AND AT PARKING LOTS, AND THAT THESE AREAS WOULD NOT BE ACCESSIBLE TO A SWEEPER OTHER THAN ONE WITH FRONT GUTTER BROOMS. SUCH AREAS WOULD HAVE TO BE HAND SWEPT. APPROXIMATELY 4.8 MANHOURS PER SWEEPING CIRCUIT OF FT. MYER WOULD BE REQUIRED FOR HAND SWEEPING. AVERAGE OF TEN CIRCUITS PER WEEK ARE COMPLETED DUE TO THE CURRENT CONSTRUCTION PROGRAM. SHE CONTENDS THAT HAND SWEEPING AREAS THAT ARE INACCESSIBLE TO STREET SWEEPING MACHINES WOULD REQUIRE AN ANNUAL EXPENDITURE OF $5,300.

SHE ALSO STATES THAT FT. MYER IS A CONGESTED AREA DUE TO ITS SIZE AND CLOSE PROXIMITY TO ARLINGTON NATIONAL CEMETERY. THE POST ENGINEER REPORTS THAT STREET SWEEPER BROOMS OPERATING AT FT. MYER ENCOUNTER SOME OF THE DENSEST TRAFFIC CONDITIONS OF ANY INSTALLATION IN THIS AREA, DUE TO EXTREMELY HEAVY FUNERAL COMMITMENTS TO ARLINGTON NATIONAL CEMETERY, TO HONOR CEREMONIES FOR VISITING DIGNITARIES, AND TO SPECIAL CEREMONIES OF THE 3RD INFANTRY AND OTHER SPECIAL REQUIREMENTS FOR REVIEWS AT FORT MYER. THE CONTRACTING OFFICER AND POST ENGINEER SAY THAT WHILE PERFORMING HIS DUTIES, AN OPERATOR OF A STREET SWEEPER CANNOT SEE WHERE HIS VEHICLE IS GOING WHEN THE SIDE BROOMS ARE IN BACK OF THE FRONT WHEELS AS WELL AS HE CAN WHEN THEY ARE POSITIONED AHEAD OF THOSE WHEELS AND AT THE FRONT OF THE VEHICLE, AS IS THE CASE IN THE WAYNE MACHINE. THEY CONCLUDE THAT BECAUSE OF THE CONSTANT AND EXCESSIVE FLOW OF TRAFFIC, BOTH PEDESTRIAN AND VEHICULAR, UNUSUALLY SEVERE SAFETY PRECAUTIONS ARE REQUIRED, AND THAT THESE PRECAUTIONS ARE NOT ADEQUATELY PROVIDED BY A SWEEPER WITH SIDE GUTTER BROOMS PLACED BEHIND THE FRONT WHEELS.

ASSUMING THAT THE ABOVE STATEMENTS ACCURATELY REFLECT THE SITUATION EXISTING AT FT. MEYER, AND WE HAVE NO EVIDENCE THAT THEY DO NOT, THIS OFFICE CANNOT CONCLUDE THAT THE DETERMINATION THAT THE PARTICULAR NEEDS OF THE PROCURING ACTIVITY JUSTIFIED A DEVIATION FROM THE FEDERAL SPECIFICATION WAS ARBITRARY OR CAPRICIOUS. CF. B-122751, DATED APRIL 26, 1955, WHERE THE ADMINISTRATIVE REPORT FAILED TO ESTABLISH ANY NECESSARY RELATION BETWEEN A RESTRICTIVE REQUIREMENT IN THE AGENCY'S SPECIFICATIONS AND SAFE TRAFFIC CONDITIONS, OR THAT TRAFFIC CONDITIONS AT THAT ACTIVITY WERE IN ANY WAY UNIQUE; AND B-152422, DATED DECEMBER 5, 1963, 43 COMP. GEN. 481, WHERE THE ADMINISTRATIVE AGENCY SUPPLIED VIRTUALLY NO EVIDENCE TO SUPPORT ITS CONCLUSION THAT THE RESTRICTIVE SPECIFICATIONS REFLECTED ITS ACTUAL REQUIREMENTS.

HOWEVER, WE DO NOTE THAT THE CONTRACTING OFFICER CONSIDERED THE ADDED REQUIREMENT THAT THE SIDE BROOMS BE POSITIONED IN FRONT OF THE VEHICLE, NOT AS A DEVIATION BUT AS AN OPTION AVAILABLE AT HER DISCRETION. THIS IS CLEARLY NOT THE INTENT OF THE FEDERAL SPECIFICATION, WHICH NOT ONLY IS SILENT AS TO THE DESIRABILITY OF ALTERNATE POSITIONS FOR THE SIDE BROOMS, BUT ALSO CONTAINS A LIST IN PARAGRAPH 6.1 OF THE SPECIFIC OPTIONS AVAILABLE TO THE CONTRACTING OFFICER, FROM WHICH AN OPTION REGARDING SIDE BROOMS IS NOTICEABLY ABSENT. NEVERTHELESS, THE RECORD SHOWS THAT THE IFB WAS SENT TO THE HEAD OF THE PROCURING ACTIVITY FOR REVIEW, AND THAT AFTER YOUR PROTEST, THE MODIFICATIONS TO THE FEDERAL SPECIFICATION CONTAINED IN THE IFB WERE REVIEWED AS DEVIATIONS, AND APPROVED ONLY AFTER DUE CONSIDERATION. THEREFORE, IT APPEARS THAT THE AUTHORITY TO PERMIT DEVIATIONS WAS EXERCISED SUBSEQUENT TO APPROPRIATE REVIEW AND IN A MANNER WHICH HAS NOT BEEN CLEARLY SHOWN TO BE CONTRARY TO REGULATIONS.

HOWEVER, YOUR POINT THAT THE IFB ELICITED A RESPONSE FROM ONLY ONE BIDDER IS WELL TAKEN, ESPECIALLY SINCE THE CONTRACTING OFFICER REPORTS THAT AFTER RECEIVING SHAFFER'S BID, SHE WAS TOLD BY THAT COMPANY'S REPRESENTATIVE THAT WAYNE WAS THE ONLY COMPANY HE KNEW OF WHICH PRODUCED A SWEEPER OF THIS SIZE WITH THE SIDE BROOMS IN THE FORWARD POSITION.

WHETHER A COMPANY IS AT ANY POINT IN TIME THE SOLE SOURCE OF A GIVEN ITEM IS A QUESTION DIFFICULT TO RESOLVE, SINCE ANOTHER FIRM MAY HAVE PRIVATE INTENTIONS TO ENTER THE MARKET AT THE FIRST OPPORTUNITY, OR MAY BE WILLING TO ALTER ITS COMMERCIAL OR STANDARD EQUIPMENT IN ORDER TO COMPETE FOR A PARTICULAR PROCUREMENT. HOWEVER, IF WAYNE IS THE ONLY COMPANY WILLING OR ABLE TO PRODUCE THE ITEM DESCRIBED BY THE MODIFIED FEDERAL SPECIFICATION, THEN IT FOLLOWS THAT SHAFFER, WHICH APPEARS TO BE WAYNE'S ONLY SUPPLIER FOR PROCUREMENTS MADE IN WHICH APPEARS TO BE WAYNE'S ONLY SUPPLIER FOR PROCUREMENTS MADE IN VIRGINIA, MAY HAVE BEEN AFFORDED THE OPPORTUNITY OF QUOTING AN UNREASONABLE PRICE UNDER THE ASSUMPTION THAT IT NEED NOT FEAR COMPETITION FROM OTHER BIDDERS. SEE 32 COMP. GEN. 384, 386. IN THIS CONNECTION, YOUR LETTER OF NOVEMBER 15, 1963, ALLEGES THAT REFERENCE TO A RECENT PROCUREMENT OF SMALLER SWEEPERS BY THE DEPARTMENT OF THE ARMY FROM WAYNE SHOWS THAT A CONSIDERABLE DISCREPANCY EXISTS BETWEEN WAYNE'S PUBLISHED AND ACTUAL SELLING PRICES. PRESUMABLY, THE INFERENCE IS THAT SHAFFER'S INSTANT BID ON THE WAYNE 880 MODEL IS NOT SUFFICIENTLY DISCOUNTED FROM WAYNE'S LISTED PRICE, WHICH THE CONTRACTING OFFICER REPORTS AS $12,650.

THE PRIMARY RESPONSIBILITY FOR DETERMINING WHETHER A BID PRICE IS, OR IS NOT, REASONABLE MUST PROPERLY BE IMPOSED UPON THE CONTRACTING AGENCY. THE CONTRACTING OFFICER REPORTS THAT SHE CONSIDERS THE BID PRICE ON THE WAYNE MODEL 2-880 OF $10,622.22, F.O.B., TO A POINT ON THE EAST COAST, TO BE REASONABLE, AND A REVIEW OF INFORMATION AVAILABLE TO AND GATHERED BY OUR OFFICE FAILS TO ESTABLISH THAT THE CONTRACTING OFFICER'S CONCLUSION IS IN ERROR.

FOR THE FOREGOING REASONS, WE FIND NO LEGAL OBJECTION TO THE CONTRACTING OFFICER'S PROPOSAL TO AWARD THE CONTRACT PURSUANT TO FEDERAL SPECIFICATION 00-S-875A, AS MODIFIED TO REQUIRE A SWEEPER WITH FORWARD POSITIONED SIDE BROOMS. ACCORDINGLY, YOUR PROTEST IS DENIED.