B-156995, NOV. 30, 1965

B-156995, NOV. 30, 1965

TO PAUL H. WERRES COMPANY, INCORPORATED:

WE REFER TO YOUR LETTER OF OCTOBER 13, 1965, AND THE PRIOR CORRESPONDENCE PROTESTING AGAINST THE AWARD MADE UNDER INVITATION FOR BIDS NO. AII-18-109 -65-32 COVERING THE PROCUREMENT OF A FLOOR-MOUNTED POWER-OPERATED CONVEYER LINE FOR THE UNITED STATES ARMY AG PUBLICATIONS CENTER, BALTIMORE, MARYLAND.

THE INVITATION WAS ISSUED ON APRIL 26, 1965. ON MAY 18, 1965, BEFORE BIDS WERE SCHEDULED TO BE OPENED, YOUR FIRM, REPRESENTING RAPIDS-STANDARD EQUIPMENT, PROTESTED SEVERAL REQUIREMENTS OF THE SPECIFICATIONS, WHICH YOU MAINTAINED WERE RESTRICTIVE. THESE CONCERNED THE BELT WIDTH, THE SPACING OF THE ROLLER TUBING CENTERS, AND THE SEALING OF THE BALL BEARINGS. AMENDMENT WAS ISSUED TO CHANGE THE SPECIFICATIONS IN ACCORDANCE WITH YOUR SUGGESTIONS, AND THE BID OPENING DATE WAS RE-SCHEDULED TO JUNE 4, 1965. ON MAY 25, 1965, YOU WROTE TO THE CONTRACTING OFFICE THAT THE REQUIREMENT IN PARAGRAPH 3.2 OF THE SPECIFICATION FOR REVERSIBLE ACCUMULATION WAS UNDULY RESTRICTIVE AND WITHOUT A PERFORMANCE SUBSTANTIATION. THIS FEATURE REQUIRED THAT THE MACHINE OPERATE AND ACCUMULATE MATERIAL IN EITHER DIRECTION. THE CONTRACTING OFFICER NOTIFIED THE USING ACTIVITY OF YOUR OBJECTION, BUT THE USER REQUESTED THAT THE REVERSIBLE FEATURE REMAIN IN THE SPECIFICATION, AND NO FURTHER CHANGES WERE MADE. ON JUNE 4, 1965, ONE BID WAS RECEIVED AND OPENED, FROM MATHEWS CONVEYER COMPANY IN THE AMOUNT OF $5,487, AND ON JUNE 7, 1965, AWARD WAS MADE TO MATHEWS AT THE BID PRICE. (WE UNDERSTAND THAT THE WORK HAS BEEN COMPLETED.)

THE CONTRACTING OFFICER STATES THAT THE REVERSIBLE ACCUMULATION CONVEYER IS OF GREAT ADVANTAGE IN THE EVENT OF OVERLOADING OR STOPPAGE; THAT A CONVEYER WITH THIS FEATURE MAY ACCOMMODATE BOTH INCOMING AND OUTGOING SHIPMENTS AND THUS SERVE IN LIEU OF TWO CONVEYER LINES, WHICH RESULTS IN A SUBSTANTIAL SAVINGS TO THE GOVERNMENT; AND THAT IT RESULTS IN A BETTER REGULATION OF FLOW OF MATERIAL AND A MORE ECONOMIC UTILIZATION OF FLOOR SPACE.

THE CONTRACTING OFFICER ESTIMATES THE ADDITIONAL COST FOR REVERSING CAPABILITY ON THE EQUIPMENT PROCURED AS APPROXIMATELY $50, AND HE REPORTS THAT AT LEAST TWO FIRMS IN ADDITION TO MATHEWS COULD READILY OFFER REVERSIBLE ACCUMULATION BUT DID NOT BID FOR OTHER REASONS. HE SAYS THAT THE PRICE PAID FOR THE EQUIPMENT WAS DETERMINED TO BE REASONABLE BY APPLYING "THE GENERAL RULE OF THUMB" PRICE OF $40 PER LINEAL FOOT FOR THE 130-FOOT LONG CONVEYER WHICH WAS SPECIFIED.

YOU INQUIRE WHETHER A USER WOULD WANT TO REVERSE AN ENTIRE LINE OF ITEMS SIMPLY TO RETURN AND REMOVE ONE BOX. IN ANY EVENT, YOU CONTEND THAT THE REVERSIBLE ACCUMULATION FEATURE REPRESENTS A REQUIREMENTS WHICH IS NOT CURRENTLY NEEDED BY USING ACTIVITIES, BUT WHICH FEATURE RESULTS IN RESTRICTING COMPETITION TO ONE FIRM, THUS CAUSING THE GOVERNMENT TO PAY AN UNREASONABLY HIGH PRICE FOR THE EQUIPMENT.

ALSO, YOU NOTE THAT ONE BID WAS RECEIVED AND THAT THE CONTRACTING OFFICER MADE NO INQUIRY WITH ANY OTHER CONVEYER MANUFACTURER PRIOR TO BID OPENING CONCERNING THE REVERSIBLE ACCUMULATION FEATURE. IT IS YOUR CONCLUSION THAT THE GOVERNMENT WILL CONTINUE TO RECEIVE ONLY ONE BID IF IT CONTINUES TO SPECIFY THIS FEATURE. YOU ASK THAT THE AWARD BE SET ASIDE; THAT THE ARMY BE DIRECTED TO REVIEW THE REQUIREMENT FOR THE REVERSIBLE ACCUMULATION FEATURE; AND THAT IT BE DIRECTED TO DRAFT A SPECIFICATION IN COORDINATION WITH THE CONVEYER INDUSTRY TO REFLECT THE TRUE NEEDS OF THE GOVERNMENT.

YOUR INITIAL OBJECTION TO THE SPECIFICATIONS CONCERNED CERTAIN DESIGN FEATURES (BELT WIDTH, ROLLER SPACING AND SEALING OF BALL BEARINGS). ARMY DETERMINED THAT THE EQUIPMENT COULD BE MANUFACTURED UNDER A BROADENED SPECIFICATION. ACCORDINGLY, THE SPECIFICATIONS WERE CHANGED. IN THIS CONNECTION, THE RULE IS THAT A SPECIFICATION SHOULD BE DRAFTED TO PERMIT THE BROADEST FIELD OF COMPETITION MEETING THE NEEDS OF THE AGENCY. SEE 38 COMP. GEN. 610, 611. THUS AN AGENCY SHOULD NOT SPECIFY DESIGN FEATURES WHICH REQUIRE THE USE OF A PARTICULAR MANUFACTURER'S PRODUCT WHERE THE PRODUCTS OF OTHER MANUFACTURERS WOULD SERVE AS WELL. 39 COMP. GEN. 101. YOUR PRESENT OBJECTION, HOWEVER, IS AGAINST THE USE OF A CONVEYER WHICH IS CAPABLE OF PERFORMING IN REVERSE. A SPECIFICATION IS NOT RESTRICTIVE MERELY BECAUSE IT REQUIRES A PERFORMANCE FEATURE WHICH ONE MANUFACTURER OR EVEN MOST MANUFACTURERS ARE UNABLE OR UNWILLING TO MEET. THE GOVERNMENT IS NOT REQUIRED TO BUY EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET ITS NEEDS. 36 COMP. GEN. 251, 252.

WE SEE NO REASON TO QUESTION WHY AN AWARD WAS MADE SOON AFTER THE BIDS WERE OPENED. INFORMATION WAS AT HAND TO INDICATE THAT THE SOLE BIDDER OFFERED A REASONABLE PRICE, AND THE BIDDER'S QUALIFICATIONS WERE KNOWN.

ACCORDINGLY, WE CANNOT SAY THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE OR THAT AN IMPROPER AWARD WAS MADE. YOUR PROTEST MUST BE DENIED.

HOWEVER, BY LETTER OF TODAY, WE ARE FORWARDING TO THE SECRETARY OF THE ARMY YOUR LETTER OF OCTOBER 13, 1965, SUGGESTING THE DESIRABILITY OF COORDINATING SPECIFICATIONS FOR THIS EQUIPMENT WITH INDUSTRY PRIOR TO THE ISSUANCE OF ANY FUTURE INVITATIONS.