B-169432, MAY 5, 1970

B-169432, MAY 5, 1970

CONTRACTS--SPECIFICATIONS--MINIMUM NEEDS REQUIREMENT--ABILITY TO MEET PROTEST OF AWARD OF CONTRACT FOR THREE TRACTORS WITH CUTTING MOWERS AHEAD OF TRACTOR WHEELS, ON BASIS THAT REQUIREMENTS ARE UNNECESSARILY RESTRICTIVE, PROHIBITING EFFECTIVE COMPETITION, IS DENIED SINCE ESTABLISHMENT OF SPECIFICATIONS REFLECTING ACTUAL GOVERNMENT NEEDS IS PRIMARILY PROCURING AGENCY'S RESPONSIBILITY AND WHILE AGENCY SHOULD NOT DESIGN SPECIFICATIONS REQUIRING USE OF PARTICULAR MANUFACTURER'S PRODUCT WHERE OTHER MANUFACTURERS' PRODUCTS WOULD SERVE AS WELL, GOVERNMENT DOES NOT VIOLATE COMPETITIVE BIDDING STATUTES MERELY BECAUSE ONLY ONE FIRM CAN SUPPLY ITS NEEDS, PROVIDED SPECIFICATIONS ARE, AS HERE, REASONABLE AND NECESSARY FOR PURPOSE INTENDED. SEE COMP. GEN. DECS. CITED.

TO NATIONAL CAPITAL TORO, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 26, 1970, PROTESTING THE AWARD OF ANY CONTRACT UNDER SOLICITATION NO. 14-10-6-960 INV.-65, ISSUED BY THE DEPARTMENT OF THE INTERIOR, NATIONAL CAPITAL PARKS, NATIONAL PARK SERVICE, ON MARCH 9, 1970.

THE INVITATION REQUESTED BIDS FOR THREE TRACTORS, EQUIPPED WITH GANG MOWERS SO DESIGNED AS TO HAVE ALL CUTTING MOWERS AHEAD OF THE TRACTOR WHEELS.

TWO BIDS WERE OPENED ON MARCH 24, 1970, EACH OFFERING THE JACOBSON MOWER, MODEL F-10. THE BID OF G. L. CORNELL COMPANY WAS LOW AT A PRICE OF $7,914 EACH. YOUR COMPANY DID NOT SUBMIT A BID. BECAUSE OF YOUR PROTEST AWARD HAS BEEN WITHHELD PENDING OUR CONSIDERATION OF SAME.

ESSENTIALLY, YOUR PROTEST IS BASED ON THE GROUND THAT THE REQUIREMENTS FOR THE MOWER UNITS TO BE SO DESIGNED AS TO HAVE ALL CUTTING MOWERS AHEAD OF THE TRACTOR WHEELS, AND THE ADJUSTMENTS TO THE BED KNIFE TO BE DONE BY HAND WITH NO TOOLS REQUIRED, IN UNNECESSARILY RESTRICTIVE AND PROHIBITS EFFECTIVE COMPETITION SINCE THERE IS ONLY ONE SOURCE (APPARENTLY JACOBSON, ALTHOUGH YOU DO NOT IDENTIFY THE SOLE SOURCE) WHICH IS CAPABLE OF MEETING THE SPECIFICATIONS AS ISSUED.

THE REPORT TO THIS OFFICE BY THE DEPARTMENT OF THE INTERIOR STATES THE SPECIFICATIONS IN QUESTION EXPRESS THE MINIMUM NEEDS OF THE GOVERNMENT AND ARE REASONABLY WITHIN THE CAPABILITY OF THE INDUSTRY TO MEET. IN FACT, IT IS STATED THAT YOUR FIRM CAN OFFER A MOWER (MODEL SUPER PRO) WITH THE CUTTING UNITS IN FRONT OF THE TRACTOR WHEELS, EXCEPT THAT SAID MODEL IS LIMITED TO AN 11-FOOT CUTTING SWATH AND THE TRACTOR'S TOP SPEED IS 9 MILES PER HOUR. IN THIS INSTANCE, THE SPECIFICATIONS CALLED FOR A 15-FOOT CUTTING SWATH AND A TRACTOR WITH THE CAPACITY OF SPEEDS UP TO 37 MILES PER HOUR. THE REASON FOR THE REQUIREMENT THAT THE MOWER BLADES BE MOUNTED IN FRONT OF THE TRACTOR WHEELS IS REPORTED TO BE TO PREVENT THE WHEELS FROM MATTING DOWN THE GRASS BEFORE THE BLADES REACH THE GRASS, THUS ELIMINATING THE NECESSITY OF HAVING TO MOW THE MATTED DOWN SECTIONS A SECOND TIME.

WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE AGENCY ON WHOSE BEHALF THE PROCUREMENT IS MADE. COMP. GEN. 544 (1938). WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368 (1951); 33 ID. 586 (1954). THE GOVERNMENT IS NOT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED. 36 COMP. GEN. 251 (1956).

WHILE AN AGENCY SHOULD NOT DESIGN SPECIFICATIONS WHICH REQUIRE THE USE OF A PARTICULAR MANUFACTURER'S PRODUCT WHERE THE PRODUCTS OF OTHER MANUFACTURERS WOULD SERVE AS WELL (39 COMP. GEN. 101 (1959)) IT IS WELL ESTABLISHED THAT THE GOVERNMENT DOES NOT VIOLATE EITHER THE LETTER OR THE SPIRIT OF THE COMPETITIVE BIDDING STATUTES MERELY BECAUSE ONLY ONE FIRM CAN SUPPLY ITS NEEDS, PROVIDED THE SPECIFICATIONS ARE REASONABLE AND NECESSARY FOR THE PURPOSE INTENDED. 34 COMP. GEN. 336 (1955); 45 ID. 365 (1965). ACCEPTANCE OF YOUR CONTENTIONS WOULD RESULT IN THE GOVERNMENT'S BEING UNABLE TO OBTAIN THE BENEFIT OF IMPROVEMENTS IN STANDARD COMMERCIAL ARTICLES UNTIL SUCH IMPROVEMENTS HAD BEEN ADOPTED BY MORE THAN ONE MANUFACTURER.

IN OUR OPINION, THE JUSTIFICATION FOR THE SPECIFICATIONS OBJECTED TO ARE ADEQUATE, AND THE CIRCUMSTANCES PRESENTED DO NOT JUSTIFY A CONCLUSION THAT THE SUPPLY OF THE ITEM IN QUESTION IS SO LIMITED AS TO CREATE A SOLE SOURCE SITUATION. IN ANY EVENT, SINCE THE SPECIFICATIONS APPEAR TO BE JUSTIFIED, PROCUREMENT ON A SOLE SOURCE BASIS, IF NECESSARY, WOULD NOT BE IMPROPER.

FOR THE FORGOING REASONS, WE FIND NO LEGAL BASIS TO QUESTION THE PROPOSED AWARD TO CORNELL AS THE LOWEST BIDDER MEETING THE REQUIREMENTS OF THE SPECIFICATIONS. YOUR PROTEST IS THEREFORE DENIED.