B-120579, NOVEMBER 18, 1954, 34 COMP. GEN. 227

B-120579, NOVEMBER 18, 1954, 34 COMP. GEN. 227

BIDS - ACCEPTANCE OR REJECTION - BIDDER'S QUALIFICATIONS THE SELECTION OF THE LOWEST RESPONSIBLE BIDDER TO BE AWARDED A CONTRACT REQUIRES CONSIDERATION OF THE BIDDER'S OVER-ALL ABILITY TO SUCCESSFULLY FULFILL THE CONTRACT REQUIREMENTS AS WELL AS HIS FINANCIAL RELIABILITY AND, THERE, ADMINISTRATIVE REJECTION OF A BID TO FURNISH ADJUSTABLE PLATFORM STOOLS CONTAINING A MECHANISM NEVER MANUFACTURED OR TESTED WAS JUSTIFIED WHERE THE SUITABILITY OF SUCH MECHANISM WAS SUBJECT TO REASONABLE DOUBT.

ACTING COMPTROLLER GENERAL WEITZEL TO INDUSTRIAL METAL FABRICATING COMPANY, NOVEMBER 18, 1954:

REFERENCE IS MADE TO YOUR ATTORNEY'S LETTER OF SEPTEMBER 20, 1954, REQUESTING RECONSIDERATION OF OFFICE DECISION TO YOU OF SEPTEMBER 13, 1954, 34 COMP. GEN. 122, WHEREIN IT WAS HELD THAT THERE EXISTS NO LEGAL BASIS FOR TAKING EXCEPTION TO THE ACTION OF THE POST OFFICE DEPARTMENT IN AWARDING A CONTRACT TO LE JOHN MANUFACTURING COMPANY, HUNTINGTON, WEST VIRGINIA, PURSUANT TO INVITATION NO. 2689, ISSUED MAY 19, 1954, AND COVERING A PROPOSED PURCHASE OF 12,000 ADJUSTABLE PLATFORM STOOLS.

PREVIOUSLY, BY INVITATION NO. 2293, ISSUED ON MARCH 9, 1954, THE POST OFFICE DEPARTMENT REQUESTED BIDS ON THE SAME QUANTITY OF ADJUSTABLE PLATFORM STOOLS. THAT INVITATION WAS CONSIDERED LEGALLY DEFECTIVE IN OFFICE DECISION OF APRIL 23, 1954, B-119456, 33 COMP. GEN. 524, FOR THE REASON THAT THE DESCRIPTION OF THE ADJUSTING MECHANISM WAS IDENTICAL TO THAT OF A PATENTED DEVICE OBTAINABLE ONLY FROM THE ADJUSTO EQUIPMENT COMPANY, TOLEDO, OHIO, AND BECAUSE THE SUBMISSION OF ALTERNATE BIDS WAS NOT PERMITTED.

THE SPECIFICATIONS MADE A PART OF THE INVITATION OF MAY 19, 1954, SO FAR AS THEY RELATE TO THE REQUIREMENT OF AN ADJUSTING MECHANISM, WERE PURPOSELY MADE AS GENERAL AS POSSIBLE IN ORDER TO PERMIT A MAXIMUM AMOUNT OF COMPETITION AMONG PROSPECTIVE BIDDERS. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, WITH THE BID OF YOUR COMPANY, IN THE NET AMOUNT OF $216,711, AND THE BID OF LE JOHN MANUFACTURING COMPANY, IN THE NET AMOUNT OF $235,815, BEING THE TWO LOWEST RECEIVED. THE STOOL PROPOSED TO BE FURNISHED BY LE JOHN MANUFACTURING COMPANY WAS TO INCLUDE THE " ADJUSTO" MECHANISM, WHEREAS YOU PROPOSED TO INCORPORATE A NEW TYPE OF ADJUSTING MECHANISM WHICH HAD NEVER BEEN CONSTRUCTED OR TESTED.

THE BIDS WERE OPENED ON MAY 28, 1954, BUT IT WAS FOUND THAT THE TWO LOWEST BIDDERS HAD FAILED TO MEET THE CONDITIONS OF THE INVITATION IN THAT COMPLETE DRAWINGS AND OTHER DATA REQUESTED BY PARAGRAPH 8 OF THE SPECIFICATIONS WERE NOT SUBMITTED. UPON EXAMINATION OF THE DRAWINGS AND OTHER DATA SUBMITTED BY YOU ON JUNE 23, 1954, THE CHIEF INDUSTRIAL ENGINEER OF THE POST OFFICE DEPARTMENT EXPRESSED THE OPINION THAT A STOOL MANUFACTURED IN ACCORDANCE WITH THE PROPOSED DESIGN WOULD BE MECHANICALLY INFERIOR AND CONSTITUTE A SAFETY HAZARD. IT WAS BELIEVED BY THAT OFFICIAL THAT THE SEAT OF THE STOOL WOULD REMAIN IN A RAISED POSITION ABOVE THE POINT WHERE THE LOCKING CAMS CEASED TO LOCK THE PEDESTAL SECURELY IN A SAFE-USE POSITION, AND THAT THE ACTION OF THE ADJUSTING MECHANISM DURING THE LOWEST PHASE OF THE OPERATING CYCLE, REQUIRING DOWNWARD PRESSURE BY THE OPERATOR, WOULD PERMIT THE SEAT TO BE LEFT INADVERTENTLY IN A PARTIALLY LOWERED POSITION, THEREBY CREATING AN ADDITIONAL SAFETY HAZARD.

YOUR ATTORNEY CONTENDED THAT THE EVIDENCE OF THE CASE IS TOTALLY INADEQUATE TO SUPPORT ANY SUCH FINDINGS AND THAT THE POST OFFICE DEPARTMENT REASONABLY COULD NOT HAVE REJECTED YOUR BID WITHOUT AFFORDING YOU AN OPPORTUNITY TO SUBMIT A MODEL FOR THOROUGH TESTING. FURTHER, YOUR ATTORNEY CONTENDED, IN EFFECT THAT, IF THE EQUIPMENT WHICH YOU PROPOSED TO FURNISH PROVIDED IN ANY RESPECT TO BE MECHANICALLY INFERIOR OR A SAFETY HAZARD, THE FAULT WOULD BE ATTRIBUTABLE PRIMARILY TO THE GENERALITY OF THE BID SPECIFICATIONS OR, IN OTHER WORDS, TO THE ABSENCE OF SPECIFIED DETAILED PROVISIONS AS TO HOW THE ADJUSTING MECHANISM SHOULD BE CONSTRUCTED, INCLUDING NECESSARY SAFETY FEATURES.

AS ABOVE INDICATED, THE CIRCUMSTANCES OF THE CASE DO NOT APPEAR TO WARRANT THE RAISING OF ANY OBJECTION BY THIS OFFICE IN REGARD TO THE GENERALITY OF THE SPECIFICATIONS. WHAT WAS HERE CONTEMPLATED WAS THE SECURING OF THE MAXIMUM AMOUNT OF COMPETITION, ALTHOUGH IT APPEARED FROM TESTS PREVIOUSLY MADE THAT THERE EXISTED ONLY ONE SATISFACTORY TYPE OF ADJUSTING MECHANISM. IF IT DEVELOPED THAT ANY NEW DEVICES HAD BEEN MANUFACTURED WHICH THE DEPARTMENT HAD NOT TESTED BEFORE THE INVITATION WAS ISSUED, AND IF BIDS INCORPORATING ANY SUCH NEW DEVICES WERE LOWER THAN THE OTHER BIDS RECEIVED, THE DEPARTMENT WOULD THEN DETERMINE WHETHER THEY MET THE MINIMUM REQUIREMENTS OF THE POSTAL SERVICE.

IN THE DECISION OF SEPTEMBER 13, 1954, YOU WERE ADVISED TO THE EFFECT THAT THERE EXISTED AN IMMEDIATE NEED FOR THE 12,000 PLATFORM STOOLS, THAT THE DEPARTMENT WAS ALREADY CERTAIN THAT ACCEPTABLE EQUIPMENT COULD BE PROCURED WITHOUT THE NECESSITY OF ENTERING INTO ADDITIONAL EXPERIMENTAL CONTRACTS, AND THAT IT WAS NOT, THEREFORE, OBLIGATED INDEFINITELY TO WITHHOLD THE AWARD PENDING THE RECEIPT AND TEST OF ENTIRELY NEW EQUIPMENT WHICH YOU PROPOSED TO FURNISH BUT WHICH HAD NEVER BEEN ACTUALLY MANUFACTURED.

YOUR ATTORNEY NOW CONTENDS THAT THE DECISION OF SEPTEMBER 13, 1954, CANNOT BE RECONCILED WITH THE PREVIOUS DECISION OF APRIL 23, 1954. HOWEVER, IT IS OBVIOUS THAT THIS OFFICE WOULD NOT HAVE BEEN AUTHORIZED TO REQUIRE THE POST OFFICE DEPARTMENT TO PURCHASE QUESTIONABLE ITEMS OF EQUIPMENT AND NOWHERE IN THE DECISION OF APRIL 23, 1954, IS THERE TO BE FOUND ANY INDICATION TO THE EFFECT THAT THE AWARD UNDER ANY SUBSEQUENT INVITATION FOR BIDS SHOULD BE WITHHELD INDEFINITELY FOR THE PURPOSE OF PERMITTING A LOW BIDDER TO CONSTRUCT AND SUBMIT A TEST MODEL OF EQUIPMENT WHICH HAD NEVER BEEN PREVIOUSLY MANUFACTURED OR TESTED, BUT WHICH WAS STILL IN A DRAWING-BOARD STAGE.

IN THIS CONNECTION, WHILE YOUR ATTORNEY STATES THAT NO QUESTION AS TO YOUR RESPONSIBILITY HAS BEEN RAISED, THE FACT REMAINS OF A TYPE WHICH YOU PROPOSED WOULD BE SATISFACTORY AND THAT, AS OF JUNE 23, 1954, TO APPROXIMATELY ONE MONTH AFTER THE BID OPENING, YOUR COMPANY APPARENTLY HAD NOT YET CONSTRUCTED A TEST MODEL OF AN ADJUSTABLE PLATFORM STOOL STRICTLY IN ACCORDANCE WITH THE DRAWINGS AND OTHER DATA REQUIRED TO BE SUBMITTED WITH YOUR BID. THUS, FOR ALL PRACTICAL PURPOSES, THERE WAS INVOLVED A QUESTION AS TO WHETHER YOUR COMPANY QUALIFIED AS A RESPONSIBLE BIDDER IN THE SENSE THAT IT WAS CAPABLE OF MANUFACTURING A STOOL SUCH AS REQUIRED BY THE POST OFFICE DEPARTMENT.

AS STATED IN 26 COMP. GEN. 676, IT HAS BEEN HELD THAT THE WORD "RESPONSIBLE" IMPORTS SOMETHING MORE THAN PECUNIARY ABILITY AND THAT IN THE SELECTION OF THE LOWEST RESPONSIBLE BIDDER, FEDERAL AND MUNICIPAL OFFICERS ARE REQUIRED TO CONSIDER NOT ONLY THE FINANCIAL RESOURCES BUT ALSO THE FITNESS AND OVER-ALL ABILITY OF THE BIDDER SUCCESSFULLY TO FULFILL THE CONTRACT REQUIREMENTS. ON THAT BASIS, IT WAS CONSIDERED THAT ACCEPTANCE OF THE LOWEST BID WAS NOT REQUIRED IN VIEW OF THE ADMINISTRATIVE DETERMINATION THAT THE INTERESTS OF THE GOVERNMENT WOULD BEST BE SERVED BY ACCEPTING ANOTHER BID WHICH OFFERED EQUIPMENT OF KNOWN DEPENDABILITY AND GENERALLY SUPERIOR QUALITY.

ACCORDINGLY, THE CONCLUSION REACHED IN THE DECISION OF SEPTEMBER 13, 1954, IS BELIEVED TO HAVE BEEN CORRECT.