B-172454, MAY 7, 1971

B-172454, MAY 7, 1971

BID PROTEST - PROPRIETARY SPECIFICATIONS DENYING PROTEST OF WAYNE MANUFACTURING CO., AGAINST THE AWARD OF A CONTRACT UNDER AN IFB ISSUED BY USCG TRASUPCEN, GOVERNMENT ISLAND, ALAMEDA, CALIF., FOR A ROTARY, SELF-PROPELLED SWEEPER TO G.H. TENANT COMPANY, SOLE BIDDER. THE REQUIREMENT THAT THE SWEEPER BE PLUMBED FOR A SCRUBBER, TENNANT BEING THE SOLE MANUFACTURER OF THE SCRUBBING ATTACHMENT, REFLECTS THE LEGITIMATE NEEDS OF THE GOVERNMENT AND WILL EFFECTUATE A SAVINGS IN THAT A SEPARATE SCRUBBING UNIT NEED NOT BE PURCHASED. TO SO DESIGN THE PROCUREMENT IS WITHIN THE AUTHORITY OF THE CONTRACTING AGENCY.

TO WAYNE MANUFACTURING CO.

REFERENCE IS MADE TO A COPY OF YOUR LETTER OF MARCH 30, 1971, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. 31- 1088-71, ISSUED BY THE SUPPLY OFFICER, USCG TRASUPCEN, GOVERNMENT ISLAND, ALAMEDA, CALIFORNIA.

THE IFB WAS ISSUED MARCH 16, 1971, SOLICITING BIDS FOR ONE "FSN 3825 806- 8184, SWEEPER, ROTARY, SELF-PROPELLED (STREET TYPE) IN ACCORDANCE WITH FEDERAL SPECIFICATION NUMBER 00-S-870C, DTD 20 OCT 70 AND SPECIFIC REQUIREMENTS LISTED BELOW IN COMPLIANCE WITH PARAGRAPH 6.2 OF ABOVE SPECIFICATION *** TYPE 1, SIZE 42." PARAGRAPH 6.2 OF FEDERAL SPECIFICATION NO. 00-S-870C, ORDERING DATA, PROVIDES, "PURCHASERS SHOULD SELECT THE PREFERRED OPTIONS PERMITTED HEREIN AND INCLUDE THE FOLLOWING INFORMATION IN PROCUREMENT DOCUMENTS." THERE THEN FOLLOWS A LIST OF PERMISSIBLE OPTIONS FOR THE SWEEPER. THE IFB REFERENCED ITEM (T) OF THIS PARAGRAPH WHICH READS: "WHEN SCRUBBER ASSEMBLY IS REQUIRED (SEE 3.12)." PARAGRAPH 3.12, SCRUBBER OPERATION, OF THE CITED SPECIFICATION PROVIDES THAT "WHEN SPECIFIED (SEE 6.2.1), SIZES 42 AND 48 SWEEPERS SHALL BE EQUIPPED TO OPERATE AS AN AUTOMATIC SCRUBBER VACUUM UNIT WITH AN ATTACHMENT ASSEMBLY." HOWEVER, IN REFERENCING ITEM (T), THE IFB STATED: "MUST BE PLUMBED FOR SCRUBBER TO BE PURCHASED AT LATER DATE."

WHILE THE WAYNE MANUFACTURING CO., BUEHRER, INC., AND G. H. TENNANT COMPANY WERE SOLICITED, ONLY TENNANT SUBMITTED A BID IN THE AMOUNT OF $4,224.

WAYNE PROTESTS THE USE OF THE CITED SPECIFICATION AS PROPRIETARY, AND POINTS OUT THE DISCREPANCY BETWEEN THE LANGUAGE USED IN OPTION (T) OF THE IFB AND THAT USED IN PARAGRAPH 3.12 OF THE SPECIFICATION. WE HAVE BEEN ADVISED THAT AWARD HAS BEEN POSTPONED PENDING RESOLUTION OF THE PROTEST. SPECIFICALLY, WAYNE PROTESTS THAT THE PHRASEOLOGY EMPLOYED IN THE IFB DOES NOT CONFORM TO THE CITED FEDERAL SPECIFICATION AND THAT THE SPECIFICATION AUTHORIZES PURCHASE OF A SCRUBBER ATTACHMENT OPTION, NOT PLUMBING FOR A SCRUBBER TO BE PURCHASED AT A LATER DATE. UPON REVIEW, WE BELIEVE THAT THE SPECIFICATION AS ADVERTISED PERMITS THE PROCUREMENT OF A SWEEPER PLUMBED FOR A SCRUBBER. SPECIFICATION PARAGRAPH 3.12 PROVIDES THAT "SWEEPERS SHALL BE EQUIPPED TO OPERATE AS AN AUTOMATIC SCRUBBER-VACUUM UNIT WITH AN ATTACHMENT ASSEMBLY." WHILE THE LANGUAGE UTILIZED BY THE COAST GUARD IS NOT IDENTICAL TO PARAGRAPH 6.2(T) OF THE FEDERAL SPECIFICATIONS, THE IMPORT IS SUBSTANTIALLY THE SAME SINCE THERE IS LITTLE DIFFERENCE BETWEEN THE PHRASE "MUST BE PLUMBED" AND THE ABOVE-UNDERSCORED LANGUAGE. WE ARE ADVISED THAT SINCE TENNANT IS THE SOLE MANUFACTURER OF THE SCRUBBING ATTACHMENT, THE SWEEPER UNIT MUST BE SPECIALLY FITTED WITH AN EXTRA HYDRAULIC ASSEMBLY, OR BE PLUMBED, TO INCORPORATE THE SCRUBBER UNIT. THUS, TO BE EQUIPPED TO OPERATE ALSO AS A SWEEPER-SCRUBBER, THE SWEEPER UNIT MUST BE PLUMBED.

OUR OFFICE HAS CONSISTENTLY HELD THAT THE DRAFTING OF SPECIFICATIONS TO REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY. 36 COMP. GEN. 251, 252 (1956). OUR OFFICE HAS BEEN INFORMED BY THE COAST GUARD THAT IT HAS A NEED FOR A SWEEPER-SCRUBBER WHICH CAN SWEEP 687,000 SQUARE FEET AND SCRUB 180,000 SQUARE FEET; THAT THE PURCHASE PRICE OF A SEPARATE SCRUBBING MACHINE WOULD BE APPROXIMATELY TWICE THAT OF A SCRUBBING ATTACHMENT; AND THAT THE MOST EFFECTIVE COST APPROACH ENTAILS PURCHASE OF THE SCRUBBER UNIT. HOWEVER, DUE TO BUDGETARY CONSIDERATIONS, THE COAST GUARD HAS BEEN LIMITED TO PROCURING A PART OF THE TOTAL NEED UNTIL FURTHER APPROPRIATIONS ARE AVAILABLE. WHILE THE MINIMUM REQUIREMENT REMAINS THE SWEEPER PLUS SCRUBBER OPTION, WE DO NOT FIND THE ACTUAL PROCUREMENT OBJECTIONABLE SINCE WE HAVE BEEN ADVISED THAT PURCHASE OF A PLUMBED SWEEPER IN ANTICIPATION OF THE SCRUBBER OPTION WILL EFFECTUATE A SAVINGS TO THE GOVERNMENT IN THAT IT IS LESS EXPENSIVE THAN LATER SUBMITTING A STANDARD SWEEPER UNIT FOR TOTAL MODIFICATION.

THEREFORE, THE PROTEST IS DENIED.