B-152560, OCT. 30, 1963

B-152560, OCT. 30, 1963

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 24, 1963, FROM THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, FILE AFSPPCA, PRESENTING FOR CONSIDERATION THE PROTEST OF MAINTENANCE ENGINEERING, INC.,AGAINST THE REJECTION OF THE BID IT SUBMITTED UNDER INVITATION FOR BIDS NO. 22 600-63- 82.

THE INVITATION SOLICITED BIDS FOR THE COLLECTION OF REFUSE FROM PICKUP POINTS ITEMIZED IN A SCHEDULE OF STATIONS WHICH LISTED THE NUMBER AND THE CUBIC-YARD CAPACITY OF THE REFUSE CONTAINERS WHICH THE COLLECTOR WAS TO PROVIDE AT EACH PICKUP POINT. SOME PICKUP POINTS WERE TO HAVE 2-CUBIC- YARD CONTAINERS, OTHERS 3, OTHERS 4, OTHERS 6 AND OTHERS 8. AT SOME PICKUP POINTS, WHERE AN 8-, 10-, OR 12-CUBIC-YARD CONTAINER WAS CALLED FOR, THE SCHEDULE INDICATED THAT IT WAS PERMISSIBLE TO FURNISH TWO 4-CUBIC -YARD CONTAINERS FOR AN 8, TWO 5 CUBIC-YARD CONTAINERS FOR A 10 OR TWO 6- CUBIC-YARD CONTAINERS FOR A 12. IT IS REPORTED THAT PRIOR TO THE ISSUANCE OF THE INVITATION FOR BIDS THE SPACE AVAILABLE FOR THE CONGREGATION OF CONTAINERS WAS STUDIED AND THE SIZES SPECIFIED IN THE INVITATION WERE DETERMINED TO BE THE MINIMUM ACCEPTABLE SIZES FOR THE AVAILABLE SPACE. TECHNICAL PROVISION TP 1-05A PROVIDED IN PERTINENT PART:

"CONTAINERS SHALL BE COMPARABLE IN DESIGN AND FABRICATION TO CONTAINERS MANUFACTURED BY DEMPSTER BROTHERS INC. AND SHALL BE OF SIZE AND CAPACITY AS SHOWN IN THE SCHEDULE OF STATIONS. * * *"

PARAGRAPH 6A OF AMENDMENT 1 TO THE INVITATION FOR BIDS CHANGED "CONTAINERS MANUFACTURED BY DEMPSTER BROTHERS INC.' IN TP 1-05A TO READ "CONTAINERS MANUFACTURED BY DEMPSTER BROTHERS, INC.; LODAL, INC.; LEACH- PACKMASTER; GAR-WOOD INDUSTRY, OR EQUAL.'

THE BID FROM MAINTENANCE ENGINEERING WAS ACCOMPANIED BY A LETTER WHICH STATED "THE SYSTEM WE PROPOSE TO USE HAS CONTAINERS OF 2, 3, AND 4 CUBIC YARD CAPACITIES.' THE BID WAS REJECTED AS NONRESPONSIVE SINCE THE INVITATION REQUIRED THE USE OF LARGER CONTAINERS IN A LARGE NUMBER OF THE AREAS INVOLVED.

MAINTENANCE ENGINEERING HAS CONTENDED THAT THE AMENDMENT OF TP 1-05A HAD THE EFFECT OF DELETING THE ORIGINAL REQUIREMENTS AS TO THE SIZE OF THE CONTAINERS, SINCE ONE OF THE MANUFACTURERS NAMED IN THE AMENDMENT DOES NOT PRODUCE CONTAINERS IN ALL THE SIZES SPECIFIED IN THE SCHEDULE OF STATIONS. FURTHER, IT CONTENDS THAT THE REQUIREMENT FOR LARGER CONTAINERS THAN IT OFFERED IS A MINOR TECHNICALITY WHICH CAN BE SATISFIED BY USING MULTIPLES OF SMALLER UNITS THAT ADD UP TO THE SAME OVER-ALL CAPACITY. ADDITION, SINCE THE OPENING OF BIDS, IT HAS OFFERED AT NO CHANGE IN PRICE TO FURNISH EQUIPMENT WHICH WOULD MEET THE REQUIREMENTS OF THE INVITATION.

AN ANALYSIS OF TP 1-05A, AS AMENDED, DOES NOT BEAR OUT THE PROTESTANT'S CONTENTION THAT THE AMENDMENT CHANGED THE CONTAINER SIZE REQUIREMENTS. THE ORIGINAL REQUIREMENT WAS TWO-FOLD: FIRST, IT REQUIRED THE CONTAINERS TO BE COMPARABLE IN "DESIGN AND FABRICATION" TO THOSE MANUFACTURED BY A SPECIFIED COMPANY AND SECOND, IT REQUIRED THE CONTAINERS TO BE OF THE SIZES SPECIFIED IN THE SCHEDULE OF STATIONS. WHILE THE AMENDMENT ENLARGED UPON THE FIELD OF "DESIGN AND FABRICATION," IT DID NOT DELETE THE REQUIREMENT THAT THE CONTAINERS "SHALL BE OF SIZES AND CAPACITY AS SHOWN IN THE SCHEDULE OF STATIONS.' IN OTHER WORDS, WHILE GREATER LATITUDE WAS PROVIDED AS TO THE PLAN AND STRUCTURE OF THE CONTAINERS, THE RESTRICTION AS TO SIZES CONTINUED AND REMAINED UNCHANGED.

FURTHER, SINCE IT IS INDICATED IN THE REPORT THAT THE REQUIREMENTS FOR SPECIFIC SIZE CONTAINERS ARE REAL REQUIREMENTS BASED ON SPACE LIMITATIONS AND THAT CONDITIONS DO NOT PERMIT THE SUBSTITUTION OF ALTERNATE SIZE CONTAINERS WHERE SUCH OPTION IS NOT PROVIDED IN THE INVITATION, THERE DOES NOT APPEAR TO BE INVOLVED ANYTHING LESS THAN A SUBSTANTIVE REQUIREMENT FOR SPECIFIC SIZE CONTAINERS. A PROPER SITUATION FOR THE WAIVER OF SIZES SPECIFIED IN THE INVITATION IS THEREFORE NOT PRESENT.

WITH RESPECT TO THE OFFER AFTER THE OPENING OF BIDS TO COMPLY WITH THE INVITATION REQUIREMENTS AT NO ADDITIONAL COST, IT WAS STATED IN 17 COMP. GEN. 554, 558-559:

"THESE ARE FUNDAMENTAL RULES GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. AS WAS SAID BY THE COURT IN CITY OF CHICAGO V. MOHR, 216 ILL. 320; 74 N.E. 1056---

" "* * * WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF LAW--- AND CANNOT BE TOO STRONGLY CONDEMNED.'"

IN VIEW OF THE FOREGOING, THE REJECTION OF THE MAINTENANCE ENGINEERING BID DOES NOT APPEAR TO HAVE BEEN IMPROPER.