B-140899, OCT. 19, 1959

B-140899, OCT. 19, 1959

TO AMERICAN TYPE FOUNDERS CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1959, PROTESTING TO THE CONTRACTING OFFICER, RARITAN ARSENAL, METUCHEN, NEW JERSEY, AGAINST THE REJECTION OF YOUR BID ON ITEM NO. 3, SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. ORD-28-024-59-698, AND THE AWARD OF A CONTRACT THEREFOR TO ANOTHER SOURCE OF SUPPLY.

IT IS YOUR CONTENTION, IN SUBSTANCE, THAT THE SPECIFICATIONS MADE A PART OF THE INVITATION WERE RESTRICTIVE; ALSO THAT THEY DID NOT SET FORTH THE ESSENTIAL CHARACTERISTICS AND FUNCTIONS OF THE DESIRED EQUIPMENT, NOR STATE THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT.

AN EXAMINATION OF THE RECORD BEFORE US DISCLOSES THAT UNDER THE SUBJECT INVITATION BIDS WERE SOLICITED ON THE THREE ITEMS OF EQUIPMENT SPECIFIED THEREIN. OF THE THREE BIDS RECEIVED ON ITEM NO. 3, TWO PROPOSALS COMPLIED WITH THE SPECIFICATIONS AND AWARD WAS MADE TO THE LOWER OF THE TWO RESPONSIVE BIDDERS. UPON EVALUATION OF THE BIDS IT WAS DETERMINED BY THE PROCURING AGENCY THAT THE EQUIPMENT YOU PROPOSED TO FURNISH WAS DEFICIENT IN THAT ITS PRESS SPEED WAS 6,000 SHEETS PER HOUR RATHER THAN 7,000 SHEETS PER HOUR; THE DIMENSION OF THE FEED PILE WAS 16 1/2 INCHES RATHER THAN 36 INCHES; AND, THAT THE DELIVERY PILE WAS 16 1/2 INCHES RATHER THAN 20 INCHES. THE ABOVE STATED MINIMUM REQUIREMENTS SET FORTH IN THE SPECIFICATIONS WERE FOUND TO BE NECESSARY TO MEET THE BASIC NEEDS OF THE PROCURING AGENCY BECAUSE OF THE VOLUME OF PRINTING FREQUENTLY UNDERTAKEN. IN VIEW OF THE EXTENT OF THE DIFFERENCES AS TO PRODUCTION RATE AND DIMENSIONS BETWEEN THE SPECIFICATIONS MADE A PART OF THE INVITATION AND THOSE OF THE PRESS YOU OFFERED, IT WAS CONCLUDED THAT SUCH DEFICIENCIES WERE MATERIAL AND NOT MINOR DEVIATIONS WHICH COULD BE WAIVED. FOR THOSE REASONS YOUR BID PROPERLY WAS REJECTED AS BEING NONRESPONSIVE.

WITH RESPECT TO YOUR CONTENTION THAT THE SPECIFICATIONS OF THE INVITATION WERE RESTRICTIVE, INITIALLY, IT MAY BE POINTED OUT THAT TWO OF THE THREE BIDS RECEIVED OFFERED EQUIPMENT WHICH COMPLIED WITH THE MINIMUM REQUIREMENTS. MOREOVER, WITH RESPECT TO THE SPECIFICATIONS IT IS NOTED THAT THEY DO NOT CALL FOR A PATENTED OR PROPRIETARY ARTICLE; THAT THEY SET FORTH ONLY THE BASIC NEEDS AS TO SPEED, SIZE, AND CAPACITY OF THE UNIT AND ITS COMPONENT PARTS; AND, THAT THEY STIPULATE EQUIPMENT EQUAL TO "HARRIS MODEL 122A" WILL BE ACCEPTABLE. IN VIEW OF THE FOREGOING WE CANNOT AGREE WITH YOUR CONTENTION THAT THE SPECIFICATIONS WERE RESTRICTIVE OR THAT THEY FAILED TO STIPULATE THE ESSENTIAL "CHARACTERISTICS AND FUNCTIONS" REQUIRED TO BE INCORPORATED INTO THE DESIRED UNIT. ALSO, IN OUR OPINION THE SPECIFICATIONS REASONABLY INDICATE "THE JOB TO BE DONE, THE WORK NECESSARY TO BE ACCOMPLISHED," BY THE EQUIPMENT DESCRIBED IN THE INVITATION.

THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY, IN SUBSTANCE, POSES THE QUESTION WHETHER YOUR OFFER, WHICH WAS THE LOWEST, WOULD SERVE THE ACTUAL NEEDS OF THE GOVERNMENT. DETERMINATION OF THE ACTUAL NEEDS OF THE GOVERNMENT AND THE DRAFTING OF SPECIFICATIONS WHICH AFFORD A BASIS FOR FAIR COMPETITIVE BIDDING ON THOSE NEEDS ARE FUNCTIONS OF THE ADMINISTRATIVE OFFICERS RATHER THAN THE GENERAL ACCOUNTING OFFICE. IN THE ABSENCE OF FAVORITISM, BAD FAITH, OR A COMPLETE DISREGARD OF INDISPUTABLE FACTS, EXERCISE OF THE DISCRETION VESTED IN PROCUREMENT OFFICIALS AS TO SUCH MATTERS WILL NOT BE QUESTIONED BY THIS OFFICE.

IN THE APPLICATION OF THOSE PRINCIPALS TO THE SUBJECT CASE WE FEEL THAT THE EVALUATION OF THE ADMINISTRATIVE OFFICE CONSTITUTES A BONA FIDE DETERMINATION ADEQUATELY SUPPORTED BY SUBSTANTIAL EVIDENCE. IN THAT REGARD IT MAY BE OBSERVED THAT THE UNITED STATES IS NOT REQUIRED TO PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT THE LOWEST PRICE WHEN, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, THE ACTUAL NEEDS OF THE GOVERNMENT WOULD NOT BE MET.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE.