B-175504, JUL 3, 1972

B-175504, JUL 3, 1972

BID PROTEST - SPECIFICATIONS - RESTRICTIVE PROCUREMENT DENIAL OF PROTEST BY CRAIN AND DENBO, INC., AGAINST A RULING BY THE ECONOMIC DEVELOPMENT ADMINISTRATION (EDA), CONCERNING THE AWARD OF A CONTRACT FOR WATER SYSTEM PROJECT NO. 03-1-00615 FOR THE CITY OF LUMBERTON, N.C. THE RECORD IN THIS CASE FAILS TO PROVIDE ANY INFORMATION WHICH WOULD SUPPORT PROTESTANT'S CONTENTION THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE, AND, THEREFORE, THE PROTEST MUST BE DENIED.

TO CRAIN AND DENBO, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 16, 1972, WITH ENCLOSURES, PROTESTING A RULING BY THE ECONOMIC DEVELOPMENT ADMINISTRATION (EDA), CONCERNING THE AWARD OF CONTRACT FOR WATER SYSTEM PROJECT NO. 03-1-00615 FOR THE CITY OF LUMBERTON, NORTH CAROLINA. ALTHOUGH THIS IS A PROCUREMENT BY THE CITY OF LUMBERTON, THE PROJECT WAS FUNDED BY EDA WHOSE POLICY IS TO REQUIRE THE SELECTION OF A CONTRACTOR THROUGH OPEN COMPETITIVE BIDDING.

BASE BIDS WERE SOLICITED FOR AN ELECTRO-HYDRAULIC OPERATED SYSTEM. BIDDERS WERE ALSO REQUESTED TO SUBMIT AN ALTERNATIVE DEDUCTIVE BID FOR AN ALL ELECTRIC OPERATED SYSTEM. SIX BIDS WERE RECEIVED FOR THE ELECTRO- HYDRAULIC OPERATED SYSTEM RANGING IN PRICE FROM $823,693 TO $1,020,800. YOUR BID WAS SECOND LOWEST FOR THE ELECTRO-HYDRAULIC OPERATED SYSTEM AND LOWEST FOR THE ALTERNATE ALL ELECTRIC OPERATED SYSTEM. THE PROCURING ACTIVITY DECIDED TO PURCHASE THE ELECTRO HYDRAULIC SYSTEM AND YOUR PROTEST OF THIS DECISION TO EDA WAS DENIED. A PROTEST TO THIS OFFICE FOLLOWED.

YOU ALLEGE THAT THE EQUIPMENT SPECIFICATIONS FOR THE ELECTRO HYDRAULIC OPERATED SYSTEM WERE RESTRICTIVE IN THAT THEY WERE LIMITED TO ONE MANUFACTURER. AS NOTED, SIX BIDS WERE RECEIVED ON THAT SYSTEM, THE SPECIFICATIONS WERE WRITTEN IN DEFINITE TERMS DESCRIBING THE FUNCTION TO BE PERFORMED BY THE EQUIPMENT AND NO BRAND NAMES WERE MENTIONED. FURTHERMORE, SECTION 8 OF THE "GENERAL CONDITIONS" SECTION OF THE PROPOSAL STATES THAT IF BRAND NAMES, ETC., HAD BEEN USED, ANY EQUIPMENT PERFORMING THE FUNCTION WOULD BE CONSIDERED EQUALLY ACCEPTABLE. WE NOTE ALSO THAT NO COMPLAINTS WERE RECEIVED FROM THE OTHER FIVE BIDDERS AND THE FILE INDICATES THAT THE SYSTEM EQUIPMENT IS AVAILABLE FROM MORE THAN ONE MANUFACTURER. IN THE CIRCUMSTANCES, AND HAVING IN MIND THE DISCRETION AFFORDED THE USER IN ESTABLISHING ITS REASONABLE REQUIREMENTS, WE DO NOT FIND THE SPECIFICATIONS UNDULY RESTRICTIVE OF COMPETITION.

YOU NOTE THAT THE GOVERNMENT COULD HAVE PURCHASED THE ALTERNATE ALL ELECTRIC OPERATED SYSTEM FOR APPROXIMATELY $25,000 LESS THAN THE COST OF THE ELECTRO-HYDRAULIC OPERATED SYSTEM. BIDS WERE SOLICITED FOR THE ALTERNATIVE SYSTEM DUE TO THE POSSIBILITY THAT SUFFICIENT FUNDS WOULD NOT BE AVAILABLE FOR THE BASE BID ELECTRO-HYDRAULIC OPERATED SYSTEM. SECTION 16 OF THE "INFORMATION FOR BIDDERS" SECTION OF THE PROPOSAL STATES IN PART:

"IF AT THE TIME THIS CONTRACT IS TO BE AWARDED, THE LOWEST BASE BID SUBMITTED BY A RESPONSIBLE BIDDER DOES NOT EXCEED THE AMOUNT OF FUNDS THEN ESTIMATED BY THE OWNER AS AVAILABLE TO FINANCE THE CONTRACT, THE CONTRACT WILL BE AWARDED ON THE BASE BID ONLY." ***

SUFFICIENT FUNDS WERE AVAILABLE FOR THE ELECTRO-HYDRAULIC OPERATED SYSTEM. THEREFORE, PROCUREMENT OF THE ELECTRO-HYDRAULIC OPERATED SYSTEM WAS CONSISTENT WITH THE PROVISIONS OF THE SOLICITATION. WE RECOGNIZE THAT OTHER USERS HAVE EXPRESSED A PREFERENCE FOR THE ALL ELECTRIC OPERATED SYSTEM. HOWEVER, THE PERTINENT PARTIES IN THIS INSTANCE PROVIDED FOR PROCUREMENT OF THE ELECTRO-HYDRAULIC OPERATED SYSTEM IF SUFFICIENT FUNDS WERE AVAILABLE. WE BELIEVE SUCH SELECTION WAS WITHIN THE REASONABLE DISCRETION OF THE PARTIES CONCERNED AND, FOR THE REASONS ALREADY INDICATED, WE DO NOT FIND THAT SPECIFYING THE TYPE OF SYSTEM WAS UNDULY RESTRICTIVE OF COMPETITION.