B-146046, AUG. 9, 1961

B-146046, AUG. 9, 1961

TO ALEXANDER BOSKOFF, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1961, PROTESTING ON BEHALF OF YOUR CLIENT, SQUARE DEAL TRUCKING COMPANY, INCORPORATED, AGAINST THE ALLEGED RESTRICTIVE SPECIFICATIONS MADE A PART OF INVITATION FOR BIDS NO. MDW 44-040-61-25, COVERING REFUSE COLLECTION SERVICES TO BE PERFORMED DURING THE FISCAL YEAR 1962, AT FORT MYER, VIRGINIA. YOU ALLEGE, IN SUBSTANCE, THAT THE REQUIREMENT TO FURNISH 37 CONTAINERS OF 10 CUBIC YARD CAPACITY IS UNREASONABLE, AND LIMITS BIDDING TO THE PRESENT CONTRACTOR, WHICH IS THE ONLY QUALIFIED FIRM IN THE AREA POSSESSING THE NECESSARY CONTAINERS. IT IS REQUESTED THAT, UNDER THOSE CIRCUMSTANCES, WE ADVISE THE PROCUREMENT OFFICIALS THAT THE STATED REQUIREMENTS RENDER THE INVITATION ARBITRARY AND UNDULY RESTRICTIVE.

UPON RECEIPT OF OUR REQUEST FOR A REPORT ON THE FACTS AND CIRCUMSTANCES WHICH PROMPTED YOUR PROTEST, THE POST ENGINEER CONDUCTED A DETAILED SURVEY OF THE REQUIREMENTS OF THE FACILITY, AND DETERMINED THAT AT 4 OF THE 37 LOCATIONS CALLING FOR 10 CUBIC YARD CONTAINERS, TWO CONTAINERS OF 5 CUBIC YARDS COULD BE USED IN THE ALTERNATIVE. IN VIEW THEREOF THE INVITATION WAS AMENDED UNDER DATE OF JUNE 14, 1961, TO PERMIT THE SUBSTITUTION OF TWO 5 CUBIC YARD CONTAINERS AT THE GENERATING POINTS DESIGNATED THEREIN. THE SPECIFICATIONS RELATING TO THE SIZE OF THE CONTAINERS FOR THE REMAINING LOCATIONS WERE NOT DISTURBED BECAUSE OF THE LACK OF SUFFICIENT SPACE, OR FOR OTHER REASONS WHICH ALLEGEDLY RENDERED THE USE OF MULTIPLE CONTAINERS INFEASIBLE.

THE DRAFTING OF SPECIFICATIONS FOR MATERIALS OR SERVICES TO BE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES AND A DETERMINATION AS TO THEIR NEEDS WILL NOT ORDINARILY BE QUESTIONED UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE. AS TO THIS PROCUREMENT, WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE SPECIFICATIONS, AS AMENDED, WERE NOT BASED UPON A BONA FIDE DETERMINATION OF THE PRESENT NEEDS OF THE POST UNDER EXISTING CONDITIONS. THE EXERCISE OF SUCH DETERMINATION IS VESTED IN THE PROCUREMENT OFFICIALS INVOLVED IN EACH CASE AND, IN THE ABSENCE OF BAD FAITH, IS NOT SUBJECT TO JUDICIAL REVIEW. CLEARLY, IN THE ORDERLY CONDUCT OF ITS BUSINESS THE GOVERNMENT MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE SUCH DISCRETIONARY AUTHORITY WITH ONE OF ITS POTENTIAL SUPPLIERS.

WE HAVE BEEN ADVISED INFORMALLY THAT YOUR CLIENT REFRAINED FROM SUBMITTING A BID WHICH WAS RESPONSIVE TO THE COMPLETE INVITATION, AND THAT AWARD OF A CONTRACT HAS BEEN MADE TO THE LOWEST RESPONSIVE BIDDER. IN THE CIRCUMSTANCES WE DO NOT BELIEVE THERE IS ANY JUSTIFICATION, ON THE BASIS OF THE PRESENT RECORD, FOR DISTURBING THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE.

REFERENCE IS ALSO MADE TO YOUR LETTER OF JUNE 27, 1961, WHICH WAS RECEIVED SUBSEQUENT TO THE DATE THE AWARD OF A CONTRACT WAS EXECUTED UNDER THE SUBJECT INVITATION. WHILE THE CONTENTS THEREOF DO NOT APPEAR TO WARRANT ANY ACTION BY THIS OFFICE WITH RESPECT TO THE CURRENT CONTRACT NOW BEING PERFORMED FOR THE NECESSARY SERVICES, A COPY OF YOUR SAID LETTER WILL BE TRANSMITTED TO THE PROCUREMENT OFFICIALS SO THAT THE CONTENTIONS WHICH YOU PRESENT MAY BE TAKEN INTO CONSIDERATION BY THE FACILITY IN THE PREPARATION OF FUTURE INVITATIONS FOR THE SERVICES.