B-116270, DECEMBER 14, 1953, 33 COMP. GEN. 266

B-116270, DECEMBER 14, 1953, 33 COMP. GEN. 266

CONTRACTS - AWARDS - LEGALITY - SPECIFICATIONS - MINIMUM NEEDS OF GOVERNMENT A CONTRACT FOR LITHOGRAPHIC PLATES WHICH WAS AWARDED ON THE BASIS OF SPECIFICATIONS RESULTING FROM A BONA FIDE ATTEMPT TO SET FORTH THE MINIMUM NEEDS OF THE GOVERNMENT IS NOT ILLEGAL, EVEN THOUGH SOMETHING LESS THAN THE SPECIFIED PRODUCT WOULD HAVE SATISFIED THE GOVERNMENT NEEDS, PARTICULARLY WHEN THERE IS CONSIDERED THE LATITUDE OF DISCRETION VESTED IN THOSE CHARGED WITH RESPONSIBILITY FOR PREPARING THE SPECIFICATIONS TOGETHER WITH THE FACT THAT FIVE BIDS WERE RECEIVED WHICH OFFERED COMPLIANCE THEREWITH, AND THAT A PROTESTING LOWER BIDDER COULD HAVE SUBMITTED A RESPONSIVE BID HAD IT CHOSEN TO DO SO. B 116270, AUG. 24, 1953, OVERRULED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, DECEMBER 14, 1953:

I HAVE YOUR LETTER OF NOVEMBER 6, 1953, REQUESTING RECONSIDERATION OF OFFICE DECISION OF AUGUST 24, 1953, B-116270, TO YOU, WHEREIN IT WAS HELD THAT THE CONTRACTS AWARDED TO MCGREGOR AND WERNER, INC., AND TWO OTHER BIDDERS FOR LITHOGRAPHIC PLATES TO BE FURNISHED DURING THE FISCAL YEAR 1954 SHOULD BE CANCELED AND THE NEEDS OF THE GOVERNMENT READVERTISED ON THE BASIS OF SPECIFICATIONS WHICH STATE SUCH NEEDS FULLY AND FAIRLY AND DO NOT EXCLUDE ANY MANUFACTURER OF PLATES WHO CAN MEET THOSE NEEDS. ALSO THERE WAS RECEIVED YOUR LETTER OF SEPTEMBER 22, 1953, TRANSMITTING A COPY OF A LETTER DATED SEPTEMBER 14, 1953, FROM GARDNER, MORRISON AND ROGERS, SUITE 1126 WOODWARD BUILDING, WASHINGTON, D.C., TO YOU, PROTESTING THE DECISION.

THE DECISION WAS BASED UPON THE STATEMENTS IN YOUR LETTER OF JULY 16, 1953, AND THE RECORD FORWARDED WITH THAT LETTER, WHICH INDICATED THAT THE ADVERTISED PURCHASE DESCRIPTION OR SPECIFICATIONS DID NOT SET FORTH THE MINIMUM NEEDS OF THE GOVERNMENT AND THAT HAD SUCH NEEDS BEEN CORRECTLY STATED THE LITHOGRAPHIC PLATES OFFERED BY THE ADDRESSOGRAPH 1MULTIGRAPH CORPORATION WOULD HAVE BEEN ACCEPTABLE. AS IT APPEARED AT THAT TIME THAT THE PURCHASE DESCRIPTION WAS RESTRICTIVE OF THE COMPETITION TO THE PREJUDICE OF THE GOVERNMENT IN THAT HAD ADDRESSOGRAPH'S BID BEEN ACCEPTED THE GOVERNMENT WOULD HAVE SAVED $50,000 OR MORE DURING THE ENTIRE FISCAL YEAR, IT WAS CONCLUDED THAT THE CONTRACTS AWARDED TO THE HIGHER BIDDERS WERE VOIDABLE AS HAVING BEEN ENTERED INTO IN VIOLATION OF THE COMPETITIVE REQUIREMENTS OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 377.

IN RESPECT TO THE DECISION YOU STATE:

ALTHOUGH I RECOGNIZED AT THE TIME OF MY INITIAL SUBMISSION OF THE MATTER TO YOU THAT THE ISSUES INVOLVED REPRESENTED A "BORDER LINE" CASE IN SO FAR THE VALIDITY OF THE PROTEST OF THE ADDRESSOGRAPH-1MULTIGRAPH CORPORATION WAS CONCERNED, I BELIEVE THAT YOUR DECISION WAS PROPER ON THE BASIS OF THE FACTS CONTAINED IN MY LETTER.

YOU NOW STATE, HOWEVER, THAT UPON CAREFUL RECONSIDERATION YOU ARE "CONVINCED THAT THE PURCHASE DESCRIPTION SET FORTH IN THE INVITATION, WHICH HAD BEEN DEVELOPED OVER TWO YEARS AGO IN THE ABSENCE OF A FEDERAL SPECIFICATION, WAS A REASONABLE DESCRIPTION OF THE NEEDS OF THE GOVERNMENT WITH RESPECT TO THIS ITEM.' IN SUPPORT OF THAT CONCLUSION YOU ALSO STATE THAT THE PURCHASE DESCRIPTION HAD A REASONABLE RELATION TO THE GOVERNMENT'S NEEDS, THAT ALL MEMBERS OF THE INDUSTRY, INCLUDING ADDRESSOGRAPH, COULD HAVE COMPLIED WITH THE REQUIREMENTS AS DESCRIBED IN THE INVITATION FOR BIDS, AND THAT---

WHEN THE PURCHASE DESCRIPTION WAS FIRST DEVELOPED, THE ADDRESSOGRAPH MULTIGRAPH CORPORATION INDICATED CERTAIN DEVIATIONS THEREFROM IN ITS BID. UPON INQUIRY OF THE CONTRACTING OFFICER, HOWEVER, THE COMPANY INDICATED THAT IT WOULD MEET THE PURCHASE DESCRIPTION. WHILE IT IS TRUE THAT THROUGH OVERSIGHT AWARDS MAY HAVE SUBSEQUENTLY BEEN MADE TO THIS COMPANY ON BIDS WHICH DEVIATED FROM THE PURCHASE DESCRIPTION, THERE IS NO REASON TO BELIEVE THAT THE ADDRESSOGRAPH-1MULTIGRAPH CORPORATION COULD NOT, HAD IT SO DESIRED, HAVE MANUFACTURED A PRODUCT WHICH WOULD HAVE CONFORMED WITH THE PURCHASE DESCRIPTION.

IN YOUR ORIGINAL LETTER OF JULY 16, 1953, YOU STATED THAT THERE WAS NO INDICATION WHATEVER OF ANY DELIBERATE INTENT ON THE PART OF THOSE RESPONSIBLE FOR THE DEVELOPMENT OF THE PURCHASE DESCRIPTION OR SPECIFICATIONS TO PROVIDE FOR MINIMUM REQUIREMENTS SO AS TO PRECLUDE THE ACCEPTANCE OF ADDRESSOGRAPH'S PLATES.

THUS, IT NOW APPEARS THAT, AT THE TIME THE ADVERTISED SPECIFICATIONS WERE PREPARED, A BONA FIDE ATTEMPT WAS MADE TO SET FORTH WHAT WERE THEN CONSIDERED TO BE THE NEEDS OF THE GOVERNMENT. WHILE SUBSEQUENT TO THAT TIME, AND BEFORE ADVERTISING THE PRESENT PROCUREMENT, IT SHOULD HAVE BEEN APPARENT THAT SOMETHING LESS THAN THE SPECIFIED PRODUCT WOULD SATISFY THE GOVERNMENT'S NEEDS IT APPEARS THAT THIS FACT WAS NOT REALIZED BY THE ADMINISTRATIVE OFFICIALS MAKING THE PROCUREMENT DUE CHIEFLY TO THE REASONABLY CLOSE RELATIONSHIP BETWEEN THE NEED AND THE PRODUCT SPECIFIED. CONSIDERING THE LATITUDE OF DISCRETION NECESSARILY VESTED IN THOSE CHARGED WITH RESPONSIBILITY FOR PREPARING THE SPECIFICATIONS, TOGETHER WITH THE FACT THAT FIVE BIDS WERE RECEIVED WHICH OFFERED COMPLIANCE THEREWITH, AND THAT ADDRESSOGRAPH COULD HAVE SUBMITTED A RESPONSIVE BID HAD IT CHOSEN TO DO SO, IT IS MY CONCLUSION THAT WHILE THE PROCUREMENT WAS NOT WHOLLY ABOVE REPROACH, THE RESULTING CONTRACTS ARE NOT ILLEGAL AND YOUR CANCELLATION ACTION SHOULD BE RESCINDED.