B-148922, SEP. 4, 1962

B-148922, SEP. 4, 1962

TO SHAYNE BROS., INC.:

FURTHER REFERENCE IS MADE TO LETTER DATED MAY 16, 1962, AND SUBSEQUENT CORRESPONDENCE, FROM DIMOND AND THORMAN IN YOUR BEHALF, CONCERNING THE INVITATION FOR BIDS FOR TRASH, DEBRIS AND GARBAGE REMOVAL SERVICE AT CERTAIN NAVAL ACTIVITIES IN THE POTOMAC RIVER NAVAL COMMAND.

AN EXAMINATION OF THE RECORD NOW BEFORE THIS OFFICE INDICATES THAT THE AREA PUBLIC WORKS OFFICER, IN AN EFFORT TO OBTAIN MORE COMPETITION FOR THE SERVICE IN QUESTION, DELETED FROM THE SPECIFICATIONS AT ONE LOCATION THE 30 CUBIC FOOT REQUIREMENT ON TWO INDIVIDUAL CONTAINERS. IT IS REPORTED THAT YOUR COMPANY, THE SUCCESSFUL PAST BIDDER AT THREE OF THE FOUR ACTIVITIES IN YOUR PROTEST FOR A PERIOD OF FOUR TO NINE YEARS, NOTING THIS CHANGE, PROTESTED AND, AT THE SAME TIME, PROTESTED THE OTHER ITEMS WHICH WERE UNCHANGED FROM PREVIOUS YEARS' SPECIFICATIONS UNDER WHICH YOUR COMPANY HAD BEEN THE SUCCESSFUL LOW BIDDER. IT ALSO IS REPORTED THAT THE AREA PUBLIC WORKS OFFICER'S EXPERIENCE THROUGH THE PAST NINE YEARS INDICATES THAT THERE HAVE BEEN NO PROBLEMS WITH RESPECT TO ANY OF THE SPECIFICATIONS WHICH CONSTITUTE THE BASIS OF YOUR COMPLAINTS.

THE ADMINISTRATIVE OFFICE ADVISES THAT RESULTS OF THE BIDDING FOR TRASH, DEBRIS AND GARBAGE REMOVAL SERVICES IN THE AREA PUBLIC WORKS OFFICE, CHESAPEAKE AREA, UNDER THE AWARDS JUST MADE HAVE RESULTED IN SAVINGS OF APPROXIMATELY $37,750 A YEAR. YOUR COMPANY WAS THE SUCCESSFUL LOW BIDDER AT THREE OF THE SMALLER INSTALLATIONS, INCLUDING ONE ON WHICH PROTEST WAS MADE, BUT WAS UNSUCCESSFUL LOW BIDDER AT THE LARGER INSTALLATIONS, INCLUDING THE NATIONAL NAVAL MEDICAL CENTER WHERE THE SUCCESSFUL LOW BID FOR FISCAL YEAR 1963 WAS $14,004 A YEAR LESS THAN YOUR COMPANY'S LOW BID FOR FISCAL YEAR 1962, AND WAS $1,884 LESS THAN YOUR BID FOR FISCAL YEAR 1963. WE ALSO UNDERSTAND THAT YOUR COMPANY SUBMITTED A BID ON SIMILAR SPECIFICATIONS TO THOSE ON WHICH YOU HAD BID AND OBTAINED THE CONTRACT FOR NINE YEARS, EXCEPT FOR THE AFOREMENTIONED PROVISION SPECIFYING THE 30 CUBIC YARD CONTAINERS.

WITH RESPECT TO THE REMOVAL OF BUILDING MATERIALS, WE ARE INFORMED THAT IN THE PAST IT HAS BEEN THE ADMINISTRATIVE PRACTICE TO INCLUDE SMALL AMOUNTS OF BUILDING MATERIALS (5 FEET IN LENGTH OR LESS) AS TRASH. ORDER TO PREVENT SIMILAR OBJECTIONS IN THE FUTURE, WE ARE INFORMED THIS WILL BE SPELLED OUT IN THE SPECIFICATIONS. HOWEVER, IN THE ABSENCE OF ANY PROBLEMS WITH THE SUCCESSFUL CONTRACTORS UNDER THE RECENTLY AWARDED CONTRACT, IT IS ADMINISTRATIVELY PROPOSED IN ALL OTHER RESPECTS TO MAINTAIN SUBSTANTIALLY THE SAME FORM OF INVITATIONS FOR BIDS AS USED FOR FISCAL YEAR 1963.

WE CONSISTENTLY HAVE TAKEN THE POSITION THAT IT IS THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OR SERVICES MEET THOSE SPECIFICATIONS. FURTHERMORE, WHETHER SPECIFICATIONS ARE ADEQUATE TO MEET THE NEEDS OF AN AGENCY IS A QUESTION WHICH IS PRIMARILY WITHIN THE JURISDICTION OF SUCH AGENCY; AND IN ANY GIVEN PROCUREMENT THIS QUESTION MAY WELL BE SUBJECT TO A DIFFERENCE OF OPINION. WHERE SUCH DIFFERENCE OF OPINION EXISTS, HOWEVER, THIS OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY OPINION IS IN ERROR AND THAT A CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATIONS WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE A VIOLATION OF LAW. 17 COMP. GEN. 554; 40 COMP. GEN. 294. IN ADDITION, THE DECISIONS OF THIS OFFICE, WITHOUT EXCEPTION, ARE TO THE EFFECT THAT THE UNITED STATES IS NOT TO BE PLACED IN THE POSITION OF HAVING A BIDDER DICTATE AS TO ITS REQUIREMENTS. 16 COMP. GEN. 38.

AS STATED ABOVE, THE REPORT FROM THE DEPARTMENT OF THE NAVY REFERRED TO ABOVE INDICATES THAT THROUGH THE PAST NINE YEARS THERE HAVE BEEN NO PROBLEMS WITH RESPECT TO MOST OF THE SPECIFICATIONS OF WHICH YOU COMPLAIN, AND THAT BY DELETING FROM THE SPECIFICATIONS AT ONE LOCATION THE 30 CUBIC FOOT REQUIREMENT ON TWO INDIVIDUAL CONTAINERS THE AREA PUBLIC WORKS OFFICER WAS ABLE TO BROADEN THE AREA OF COMPETITION WHICH ACTION REPORTEDLY RESULTED IN AN APPRECIABLE SAVINGS TO THE GOVERNMENT.

ACCORDINGLY, WE PRECEIVE NO BASIS FOR HOLDING THAT THE CONTRACT AWARDED IS LEGALLY INVALID.

YOUR ATTORNEY'S LETTERS OF JULY 18 AND 25, 1962, CONCERNING PERFORMANCE OF THE PRESENT CONTRACTOR AS NOT BEING IN CONFORMITY WITH THE SPECIFICATIONS IS BEING FORWARDED TO THE DEPARTMENT OF THE NAVY FOR APPROPRIATE ATTENTION, AND ANY FUTURE COMPLAINT WITH RESPECT TO THIS PHASE OF THE MATTER SHOULD BE ADDRESSED TO THE CONTRACTING OFFICIALS OF THE DEPARTMENT.