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B-137691, AUG. 17, 1960

B-137691 Aug 17, 1960
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YOU PROTEST AGAINST THE USE OF A "BRAND NAME OR EQUAL" CLAUSE IN A NUMBER OF INVITATIONS FOR BIDS ISSUED BY THE GENERAL SERVICES ADMINISTRATION UNDER WHICH ABIDDER OFFERING OTHER THAN THE NAMED BRAND IS REQUIRED TO ACCOMPANY HIS BID WITH A DESCRIPTION OF THE ITEM OFFERED AND A STATEMENT SHOWING IN DETAIL THE DIFFERENCES BETWEEN THE ITEM OFFERED AND THE NAMED BRAND. WE ARE ENCLOSING. IT MAY BE STATED THAT THE CLAUSE IS BEING USED PURSUANT TO THE PROVISIONS OF THE FEDERAL PROCUREMENT REGULATIONS. THE GENERAL SERVICES ADMINISTRATION HAS DISTRIBUTED FOR AGENCY COMMENT A PROPOSED NEW CLAUSE WHICH WOULD ELIMINATE THE NEED FOR PROVIDING DESCRIPTIONS OF COMPONENTS DESCRIBED IN THE PURCHASE DESCRIPTION BY BRAND NAME OR EQUAL WHERE THE ITEM ITSELF IS DESCRIBED BY DETAILED SPECIFICATIONS.

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B-137691, AUG. 17, 1960

TO MORRISON STEEL PRODUCTS, INC.:

BY YOUR UNDATED LETTER, RECEIVED AUGUST 5, 1960, YOU PROTEST AGAINST THE USE OF A "BRAND NAME OR EQUAL" CLAUSE IN A NUMBER OF INVITATIONS FOR BIDS ISSUED BY THE GENERAL SERVICES ADMINISTRATION UNDER WHICH ABIDDER OFFERING OTHER THAN THE NAMED BRAND IS REQUIRED TO ACCOMPANY HIS BID WITH A DESCRIPTION OF THE ITEM OFFERED AND A STATEMENT SHOWING IN DETAIL THE DIFFERENCES BETWEEN THE ITEM OFFERED AND THE NAMED BRAND.

IN YOUR LETTER YOU PROTEST AGAINST THE REQUIREMENT FOR LISTING IN DETAIL THE DIFFERENCES BETWEEN THE ITEM OFFERED AND THE NAMED BRAND; IN ADDITION YOU PROTEST AGAINST THE USE OF "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS GENERALLY. AS YOU INDICATE, YOUR WASHINGTON REPRESENTATIVE, MR. FRED A. ROHRS, HAS PREVIOUSLY PROTESTED AGAINST THE USE OF THE CLAUSE. WE ARE ENCLOSING, FOR YOUR INFORMATION, A COPY OF OUR LETTER OF APRIL 14, 1960, IN RESPONSE TO A PROTEST INITIATED BY MR. ROHRS IN HIS CAPACITY AS REPRESENTATIVE OF S. J. MEEKS' SON, WHICH CONTAINS A FULL DISCUSSION OF THE MATTER. IN ADDITION, IT MAY BE STATED THAT THE CLAUSE IS BEING USED PURSUANT TO THE PROVISIONS OF THE FEDERAL PROCUREMENT REGULATIONS.

THE GENERAL SERVICES ADMINISTRATION HAS DISTRIBUTED FOR AGENCY COMMENT A PROPOSED NEW CLAUSE WHICH WOULD ELIMINATE THE NEED FOR PROVIDING DESCRIPTIONS OF COMPONENTS DESCRIBED IN THE PURCHASE DESCRIPTION BY BRAND NAME OR EQUAL WHERE THE ITEM ITSELF IS DESCRIBED BY DETAILED SPECIFICATIONS, AND WHICH WOULD ALSO ELIMINATE IN ALL CASES THE NEED FOR DESCRIBING IN DETAIL THE DIFFERENCES BETWEEN THE NAMED BRAND AND THE ITEM OFFERED. AS TO THE USE OF "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS IN GENERAL WE HAVE ALWAYS TAKEN THE POSITION THAT THEY SHOULD BE USED ONLY WHERE IT WOULD BE IMPRACTICABLE TO PROVIDE DETAILED SPECIFICATIONS. SINCE THE DRAFTING OF SPECIFICATIONS IS PRIMARILY WITHIN THE JURISDICTION OF THE AGENCY FOR WHOM THE PROCUREMENT IS BEING MADE, IT FOLLOWS THAT THE DETERMINATION OF PRACTICABILITY LIES ALSO WITHIN SUCH JURISDICTION. SUGGEST, THEREFORE, THAT INSTANCES WHERE THE REPLACEMENT OF "BRAND NAME OR EQUAL" DESCRIPTIONS BY DETAILED SPECIFICATIONS WOULD, IN YOUR JUDGMENT, BE PRACTICABLE SHOULD BE BROUGHT PROMPTLY TO THE ATTENTION OF THE PROCURING AGENCY.

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