B-123812, DEC. 30, 1955
Highlights
IT WAS CONTENDED BY THE UNION. THAT THE SUPPLIER IN QUESTION WAS ENABLED TO DETERMINE THE SUCCESS OR FAILURE OF ANY ONE BIDDER AND THAT THIS THREATENED TO NARROW COMPETITION. THE PROTESTANT WAS ADVISED IN OUR LETTER OF DECEMBER 6. THAT THE SPECIFICATIONS INVOLVED SET FORTH THE ACTUAL AND BONA FIDE NEEDS OF THE MARINE CORPS AND THE FACT THAT ONE OF THE FUNDAMENTAL REQUIREMENTS OF THE SPECIFICATIONS CAN BE MET ONLY BY A PATENTED PROPRIETARY STAY DOES NOT FURNISH A SUFFICIENT LEGAL BASIS FOR OUR OFFICE TO HOLD THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION. WHICH WILL BE FURNISHED TO CAP CONTRACTORS WITH THAT DEPARTMENT AS GOVERNMENT-FURNISHED MATERIAL. ON THE BASIS OF TESTIMONY WHICH WAS GIVEN BEFORE THE SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS IN CONNECTION WITH ITS INVESTIGATION OF TEXTILE PROCUREMENT IN THE MILITARY SERVICES.
B-123812, DEC. 30, 1955
TO THE HONORABLE SECRETARY OF THE NAVY:
UNDER DATE OF DECEMBER 6, 1955, WE FORWARDED TO YOU A COPY OF OUR LETTER OF THE SAME DATE TO UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, RELATIVE TO ITS PROTEST REGARDING INVITATION FOR BID NO. 1154-C FOR THE MANUFACTURE OF 10,000 FROM SERVICE CAPS UNDER MILITARY SPECIFICATION NO. F-20268.
THE PROTEST CONCERNED THAT PART OF THE SPECIFICATION CALLING FOR A PATENTED PROPRIETARY STAY WHICH ALLEGEDLY DID NOT GIVE POTENTIAL BIDDERS AN OPPORTUNITY TO QUOTE UPON STAYS HAVING SIMILAR PROPERTIES WHICH MIGHT MEET THE NEEDS OF THE SERVICE, AS A RESULT OF WHICH THE THE PATENT HOLDER HAD CHARGED A PREMIUM PRICE FOR HIS PATENTED ITEM TO PROSPECTIVE BIDDERS. IT WAS CONTENDED BY THE UNION, THEREFORE, THAT THE SUPPLIER IN QUESTION WAS ENABLED TO DETERMINE THE SUCCESS OR FAILURE OF ANY ONE BIDDER AND THAT THIS THREATENED TO NARROW COMPETITION, PRODUCED AN INEQUALITY AMONG PROSPECTIVE SUPPLIERS, AND INCREASED THE PRICE OF CAPS TO THE GOVERNMENT.
ON THE BASIS OF A REPORT WHICH THE QUARTERMASTER GENERAL OF THE MARINE CORPS SUBMITTED TO OUR OFFICE UNDER DATE OF JULY 15, 1955, THE PROTESTANT WAS ADVISED IN OUR LETTER OF DECEMBER 6, 1955, THAT THE SPECIFICATIONS INVOLVED SET FORTH THE ACTUAL AND BONA FIDE NEEDS OF THE MARINE CORPS AND THE FACT THAT ONE OF THE FUNDAMENTAL REQUIREMENTS OF THE SPECIFICATIONS CAN BE MET ONLY BY A PATENTED PROPRIETARY STAY DOES NOT FURNISH A SUFFICIENT LEGAL BASIS FOR OUR OFFICE TO HOLD THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION, ESPECIALLY SINCE THE PATENT HOLDER HAS LICENSED THE USE OF THE PATENT BY ALL GOVERNMENT CONTRACTORS.
IT RECENTLY HAS COME TO OUR ATTENTION THAT THE QUARTERMASTER CORPS, DEPARTMENT OF THE ARMY, HAS CONTRACTED FOR THE PURCHASE OF STAYS OF THE TYPE IN QUESTION AT .0385 CENTS EACH AND GROMMETS--- ALSO REQUIRED BY THE SPECIFICATIONS--- AT .09589 CENTS EACH, WHICH WILL BE FURNISHED TO CAP CONTRACTORS WITH THAT DEPARTMENT AS GOVERNMENT-FURNISHED MATERIAL. ON THE BASIS OF TESTIMONY WHICH WAS GIVEN BEFORE THE SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS IN CONNECTION WITH ITS INVESTIGATION OF TEXTILE PROCUREMENT IN THE MILITARY SERVICES, IT HAS BEEN ESTIMATED THAT A SAVING OF UP TO 46 1/2 CENTS PER CAP MAY BE REALIZED IN FUTURE PROCUREMENTS BY THE DEPARTMENT OF THE ARMY AS THE RESULT OF THIS PROCEDURE.
IN VIEW OF THE INDICATED SAVINGS TO THE GOVERNMENT UNDER THE POLICY ADOPTED BY THE DEPARTMENT OF THE ARMY, AND THE SERIOUS QUESTIONS REGARDING FREEDOM OF COMPETITION IN MILITARY CAP PROCUREMENTS RAISED BY THE EVIDENCE PRESENTED IN THE CONGRESSIONAL INVESTIGATION REFERRED TO, IT IS SUGGESTED THAT YOU MAY WISH TO HAVE RECONSIDERED THE POSITION OF THE MARINE CORPS AS SET FORTH IN ITS REPORT OF JULY 15, 1955, REFERRED TO ABOVE.