B-166002, FEB. 19, 1969
Highlights
SECRETARY: REFERENCE IS MADE TO A LETTER DATED JANUARY 24. WE ARE ENCLOSING A COPY OF OUR DECISION OF TODAY TO THE PROTESTING COMPANY. WITH RESPECT TO THAT PART OF THE DECISION WHICH SUGGESTS THAT A CONTRACT COULD HAVE BEEN NEGOTIATED WITH THAT COMPANY. THE CONTRACTING OFFICER HAS CONCEDED THAT THE CONTRACT COULD HAVE BEEN NEGOTIATED SINCE MOST OF THE REQUIRED COMPONENTS OF THE REQUIRED LABORATORY SYSTEM ARE THE PRODUCTS OF THE FINNIGAN INSTRUMENTS CORPORATION AND NO OTHER CONCERNS APPEARED TO HAVE SUBMITTED BIDS IN RESPONSE TO THE GOVERNMENT'S ADVERTISEMENT. WE HAVE INDICATED IN OUR DECISIONS THAT. WHEN IT IS DETERMINED THAT BRAND NAME ITEMS ARE THE ONLY TYPES OF EQUIPMENT WHICH MEET THE PARTICULAR REQUIREMENTS OF THE CONTRACTING AGENCY.
B-166002, FEB. 19, 1969
TO MR. SECRETARY:
REFERENCE IS MADE TO A LETTER DATED JANUARY 24, 1969, 127.03/GAC, FROM MR. G. A. CAULEY, CONTRACTING OFFICER, NATIONAL BUREAU OF STANDARDS, FURNISHING CERTAIN INFORMATION IN REGARD TO HIS DENIAL OF A PROTEST SUBMITTED BY ELECTRONIC ASSOCIATES, INCORPORATED, SOUTHEASTERN REGIONAL OFFICE, ROCKVILLE, MARYLAND, CONCERNING INVITATION FOR BIDS NO. B-4924-69, ISSUED DECEMBER 17, 1968, FOR LEASE-PURCHASE OF A GASCHROMATOGRAPH QUADRUPOLE MASS DETECTION SYSTEM AS SUPPLIED BY THE FINNIGAN INSTRUMENTS CORPORATION, PALO ALTO, CALIFORNIA.
WE ARE ENCLOSING A COPY OF OUR DECISION OF TODAY TO THE PROTESTING COMPANY, INDICATING THAT THERE APPEARS TO BE NO PROPER BASIS UPON WHICH WE WOULD BE WARRANTED IN TAKING EXCEPTION TO THE CONTRACT AS AWARDED TO THE FINNIGAN INSTRUMENTS CORPORATION.
WITH RESPECT TO THAT PART OF THE DECISION WHICH SUGGESTS THAT A CONTRACT COULD HAVE BEEN NEGOTIATED WITH THAT COMPANY, THE CONTRACTING OFFICER HAS CONCEDED THAT THE CONTRACT COULD HAVE BEEN NEGOTIATED SINCE MOST OF THE REQUIRED COMPONENTS OF THE REQUIRED LABORATORY SYSTEM ARE THE PRODUCTS OF THE FINNIGAN INSTRUMENTS CORPORATION AND NO OTHER CONCERNS APPEARED TO HAVE SUBMITTED BIDS IN RESPONSE TO THE GOVERNMENT'S ADVERTISEMENT.
AS STATED BY THE COURT OF CLAIMS IN THE JACK STONE COMPANY, INC. V UNITED STATES, 170 CT. CL. 281, AT PAGE 287, OUR OFFICE HAS FOR MANY YEARS EMPHASIZED THE RESTRICTIVE IMPACT ON COMPETITIVE BIDDING OF USING BRAND NAMES WITHOUT ADDING "OR EQUAL" AND THE BETTER PRACTICE OF SPECIFYING, IF POSSIBLE, THE REQUIREMENTS WITHOUT ANY REFERENCE TO BRAND NAMES AT ALL. ALSO, AT VARIOUS TIMES, WE HAVE INDICATED IN OUR DECISIONS THAT, WHEN IT IS DETERMINED THAT BRAND NAME ITEMS ARE THE ONLY TYPES OF EQUIPMENT WHICH MEET THE PARTICULAR REQUIREMENTS OF THE CONTRACTING AGENCY, THE CONTRACT SHOULD BE NEGOTIATED RATHER THAN AWARDED PURSUANT TO FORMAL ADVERTISING PROCEDURES.
WHERE, AS IN THE INSTANT CASE, ADVERTISING RESULTS IN RECEIPT OF ABID ONLY FROM THE BRAND NAME MANUFACTURER, CONSIDERATION SHOULD BE GIVEN TO COMPLETING THE PROCUREMENT UNDER NEGOTIATION PROCEDURES.