B-143105, AUG. 18, 1960

B-143105, AUG. 18, 1960

TO BRANSON ENGINEERING CO.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1960, REQUESTING RECONSIDERATION OF OUR DECISION OF JULY 15, 1960, REJECTING YOUR PROTEST IN THE MATTER OF A CONTRACT WHICH WAS AWARDED TO THE AMERICAN PRODUCTION COMPANY UNDER INVITATION FOR BIDS NO. 155-/3-3/-3054-60 ISSUED APRIL 4, 1960, BY THE GENERAL STORES SUPPLY OFFICE, PHILADELPHIA,PENNSYLVANIA, AN AGENCY OF THE DEPARTMENT OF THE NAVY.

WITH RESPECT TO YOUR PRESENT CONTENTIONS, IT IS OUR OPINION THAT THE BID SPECIFICATION ADEQUATELY COVERED THE SUBJECT OF THE MATERIAL WHICH MIGHT BE USED IN THE CONSTRUCTION OF THE DISPENSING FAUCETS FOR THE JUGS WHICH THE GOVERNMENT PROPOSED TO PURCHASE. IT IS TRUE THAT IT REQUIRED ONLY THAT THE FAUCETS BE APPROVED BY THE PUBLIC HEALTH SERVICE AND THAT THEY BE CONSTRUCTED BY USING ANY SUITABLE MATERIAL APPROVED BY THE PUBLIC HEALTH SERVICE. THERE IS, OF COURSE, AN ELEMENT OF SUBJECTIVITY IN THAT REGARD BUT THIS WOULD NOT WARRANT THE CONCLUSION THAT THE SPECIFICATION WAS INDEFINITE AND AMBIGUOUS OR THAT IT DID NOT PROVIDE A MEANS BY WHICH BIDDERS COULD COMPETE ON A COMMON BASIS.

THE GENERAL STORES SUPPLY OFFICE BELIEVED THAT THE MATERIAL USED IN THE CONSTRUCTION OF THE FAUCETS FOR THE JUGS SHOULD NOT BE A DECIDING FACTOR IN THE MAKING OF AN AWARD, PROVIDED THAT BIDDERS AGREED TO FURNISH EQUIPMENT WHICH WOULD OTHERWISE MEET THE REQUIREMENTS OF THE SPECIFICATIONS AND THAT THE FAUCETS AS WELL AS THE COMPLETE JUGS WOULD PASS INSPECTION BY THE PUBLIC HEALTH SERVICE. IT WAS DESIRED TO SECURE THE MAXIMUM AMOUNT OF COMPETITION BY OFFERING TO CONSIDER ALL BIDS FOR INSULATED JUGS WHICH WOULD MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT, INCLUDING THE USE OF EQUIPMENT WHICH WOULD COMPLY FULLY WITH THE ORDINANCE AND CODE REGULATING EATING AND DRINKING ESTABLISHMENTS, RECOMMENDED IN 1943 BY THE PUBLIC HEALTH SERVICE FOR ADOPTION BY STATES, MUNICIPALITIES AND COUNTIES.

THE ORDINANCE AND CODE RECOMMENDATIONS DO NOT SPECIFY EXACT KINDS OF ACCEPTABLE MATERIAL WHICH MIGHT BE USED IN THE CONSTRUCTION OF RESTAURANT EQUIPMENT AND WE BELIEVE THAT THE GENERAL STORES SUPPLY OFFICE WAS JUSTIFIED IN CONSIDERING THAT NO RESPONSIBLE BIDDER SHOULD BE DISQUALIFIED WHO OFFERED TO FURNISH EQUIPMENT MEETING OTHER DETAILED REQUIREMENTS OF THE SPECIFICATION AND AGREED WITHOUT QUALIFICATION TO PRODUCE A FAUCET COMPONENT WHICH WOULD BE APPROVED BY THE PUBLIC HEALTH SERVICE. IT HAD BEEN PREVIOUSLY ASCERTAINED THAT THERE WERE IN EXISTENCE AT LEAST FOUR KINDS OF DISPENSING FAUCETS WHICH MET SANITATION REQUIREMENTS AND IT WAS ENTIRELY POSSIBLE THAT OTHER ACCEPTABLE FAUCETS HAD BEEN IN COMMERCIAL PRODUCTION WHICH ALSO MET SUCH REQUIREMENTS, ALTHOUGH MADE OF DIFFERENT MATERIALS. THE FAILURE TO SPECIFY ACCEPTABLE TYPES OF MATERIAL FOR THE FAUCET CONSTRUCTION MAY HAVE TENDED TO INFLUENCE SOME BIDDERS TO QUOTE ONLY ON THE BASIS OF FURNISHING JUGS EQUIPPED WITH FAUCETS OF THE SAME TYPES USED IN THEIR CURRENT COMMERCIAL PRODUCTION INSTEAD OF INVESTIGATING WHETHER OR NOT THEY COULD QUOTE LOWER PRICES AND USE DIFFERENT MATERIALS. HOWEVER, IT IS APPARENT THAT THE METHOD USED IN INVITING BIDS ON THIS PARTICULAR PROCUREMENT IS NOT LEGALLY OBJECTIONABLE ON THE BASIS, AS YOU SUGGEST, THAT THE CONSTRUCTION FACTOR WAS SUBJECTIVE BECAUSE IT DEPENDED UPON THE APPROVAL OF THE PUBLIC HEALTH SERVICE.