B-157303, JAN. 20, 1966

B-157303, JAN. 20, 1966

TO C AND M INDUSTRIAL ASSOCIATES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1965, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST CERTAIN PROCUREMENT PRACTICES UNDER INVITATION FOR BIDS NO. MDW 44-040-65-65, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT MYER, VIRGINIA.

THE ESSENCE OF YOUR PROTEST IS CENTERED ON YOUR CONTENTION THAT THE AWARD MADE IN THIS PROCUREMENT WAS AT A PRICE YOU CONSIDER "EXCESSIVE AND NOT IN THE BEST INTEREST OF THE GOVERNMENT OR PRUDENT SPENDING OF THE TAXPAYER DOLLAR.' MOREOVER, YOU CONTEND THAT THE SPECIFICATIONS WERE RENDERED RESTRICTIVE BY VIRTUE OF SUBSEQUENT AMENDMENTS, WHICH YOU SAY ELIMINATED THE ENTIRE INDUSTRY FROM BIDDING WITH THE EXCEPTION OF BIG JOE MANUFACTURING COMPANY.

THE SUBJECT INVITATION, ISSUED ON JUNE 2, 1965, AS AMENDED, REQUESTED BIDS FOR FURNISHING ONE TRUCK, FORKLIFT, LIFTING AND TIERING, 2000 LB. CAPACITY, PER ATTACHED SPECIFICATIONS. IN RESPONSE TO SUCH INVITATION, ONLY ONE BID WAS RECEIVED, THAT BEING FROM BIG JOE MANUFACTURING COMPANY. IT IS ADMINISTRATIVELY REPORTED THAT THE ITEM OFFERED MET THE SPECIFICATIONS, THE BIDDER WAS KNOWN TO BE RESPONSIBLE AND THE BID IN THE AMOUNT OF $2,950 WAS RESPONSIVE AND CONSIDERED REASONABLE. IN THIS RESPECT IT IS REPORTED THAT THE BID WAS LESS THAN THE GOVERNMENT ESTIMATE OF $3,000 FOR THIS PROCUREMENT. ACCORDINGLY, AWARD WAS MADE ON JUNE 21, 1965, THE BID OPENING DATE, FOR THE "BIG OE" STACKER UNDER CONTRACT NO. DA 44-040-MDW-3102. YOU CONTEND THAT IF YOU HAD SUBMITTED A BID ON BEHALF OF CROWN CONTROLS CORPORATION, YOUR BID WOULD HAVE BEEN $2,250 OR LESS, AND YOU ALSO ALLEGE THAT THE BIG JOE EQUIPMENT HERE INVOLVED HAS BEEN ADVERTISED IN RECENT TRADE MAGAZINES AT A PRICE OF $2,395, WHICH INCLUDES A SUBSTANTIAL COMMISSION FOR THE DEALER OR DISTRIBUTOR, AND YOU CONJECTURE THAT MODIFICATIONS TO THIS ADVERTISED EQUIPMENT TO MEET THE SPECIFICATIONS WOULD BE LESS THAN $300, THUS IMPLYING THAT THE GOVERNMENT PAID AN EXCESSIVE PRICE IN THIS PROCUREMENT.

WHILE IT IS TRUE THAT BIG JOE ADVERTISES A STACKER SELLING FOR $2,395, AS YOU CONTEND, A REVIEW OF THE ADVERTISEMENT IN THE RECORD BEFORE US ALSO SHOWS THE SAME ADVERTISEMENT TO STATE THAT BIG JOE HAS OVER 100 MODELS RANGING IN PRICE FROM $199, AND, MOREOVER, IT IS REPORTED THAT THE STACKER PURCHASED IN THE INSTANT PROCUREMENT CONTAINS SPECIAL FEATURES WHICH ARE NOT STANDARD EQUIPMENT. WHEN ADDED TO THE BASIC PRICE OF THE MACHINE, THE CONTRACTOR'S COST BREAKDOWN TOTALED $3,990 AS THE COMMERCIAL SELLING PRICE. THEREFORE, THE BID AND AWARDED CONTRACT PRICE OF $2,950 DOES NOT APPEAR EXCESSIVE AS YOU ALLEGE.

CONCERNING YOUR ALLEGATION THAT THE SPECIFICATIONS IN THIS PROCUREMENT WERE RENDERED RESTRICTIVE BY AMENDMENTS WHICH YOU SAY PRECLUDED YOU FROM ENTERING A BID, THE PROCURING AGENCY HAS CITED DEFINITE NEEDS AT THE FORT MCNAIR COMMISSARY WHICH NECESSITATED CERTAIN AMENDMENTS. FOR EXAMPLE, THE AMENDMENT CHANGING THE LIFT HEIGHT FROM A 94-INCH MINIMUM TO A 124-INCH MINIMUM WAS ISSUED BECAUSE A LIFT HEIGHT OF 94 INCHES RESTRICTED THE USE OF THE WALKIE-STACKER TO ONE SECTION OF THE WAREHOUSE, AND THE AMENDMENT WAS ISSUED TO INSURE THE MOST ECONOMICAL USE OF THE MACHINE IN ALL SECTIONS OF THE WAREHOUSE. THE FULL MAINTENANCE FEATURE OF THE AMENDMENT, WHICH WAS OMITTED FROM THE ORIGINAL SPECIFICATIONS, PROVIDED FOR THE INCLUSION AT NO ADDITIONAL COST FOR ONE YEAR FROM DATE OF DELIVERY, OF A MONTHLY PREVENTIVE MAINTENANCE VISIT, EMERGENCY SERVICE, AND REPLACEMENT OF ALL PARTS AS REQUIRED. MOREOVER, THE REASON FOR THE AMENDMENT CHANGING BATTERY REQUIREMENTS TO PROVIDE FOR HEAVY DUTY INDUSTRIAL TYPE BATTERIES WAS CLEARLY BASED ON THEIR UTILIZATION WITH A WALKIE-STACKER FOR WHICH COMMERCIAL TYPE BATTERIES REQUIRED YEARLY BATTERY REPLACEMENT. AS TO SAFETY REQUIREMENTS, THE RECORD SHOWS THAT THE AMENDMENT REQUIRING A SAFETY DEVICE ON THE OPERATING HANDLE OF THE MACHINE WAS DESIRABLE TO CAUSE THE MACHINE TO REVERSE MOMENTARILY IN THE EVENT IT CONTACTED THE OPERATOR'S BODY. THE AIM OF THIS AMENDMENT STRENGTHENING SPECIFICATION REQUIREMENTS WAS TO PREVENT POSSIBLE INJURY TO THE OPERATOR IN SMALL SPACES AND PREVENT THE POSSIBILITY OF THE WALKIE-STACKER FROM PINNING THE OPERATOR AGAINST IMMOVABLE OBJECTS.

IT THUS APPEARS THAT THESE AMENDMENTS WHICH YOU CLAIM RENDERED THE SPECIFICATIONS RESTRICTIVE IN THIS PROCUREMENT AND ELIMINATED THE ENTIRE INDUSTRY FROM BIDDING WITH THE EXCEPTION OF THE BIG JOE MANUFACTURING COMPANY, WERE BASED ON THE PARTICULAR NEEDS OF THE FORT MCNAIR COMMISSARY. MOREOVER, IT IS REPORTED THAT BIG JOE HAD TO MODIFY ITS MACHINE IN ORDER TO MEET THE SPECIFICATIONS.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY FOR THE ADMINISTRATIVE AGENCIES. 17 COMP. GEN. 554. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368; 33 ID. 586. 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.

IN VIEW OF THE FOREGOING, WE SEE NO LEGAL BASIS FOR OBJECTION TO THE ADMINISTRATIVE ACTION IN THIS MATTER, AND YOUR PROTEST IS DENIED.