B-138859, AUGUST 18, 1959, 39 COMP. GEN. 101

B-138859, AUGUST 18, 1959, 39 COMP. GEN. 101

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - NEGOTIATED PROCUREMENT A SPECIFICATION WHICH REQUIRES THE USE OF A PARTICULAR MANUFACTURER'S REGULARLY PRODUCED ITEM OR A MAJOR COMPONENT ON THE BASIS THAT THE ITEM FURNISHED IN PREVIOUS PROCUREMENTS MET THE NEEDS OF THE CONTRACTING AGENCY, WITHOUT ANY ADMINISTRATIVE DETERMINATION AS TO WHETHER ANOTHER MANUFACTURER'S PRODUCT EMBODYING DIFFERENT DESIGN FEATURES MAY BE EQUALLY SUITABLE TO THE AGENCY NEEDS, IS SO RESTRICTIVE AS TO PREVENT THE COMPETITION REQUIRED UNDER ADVERTISED PROCUREMENT PROCEDURES, EVEN THOUGH OTHER MANUFACTURERS MAY DUPLICATE THE ITEM OR COMPONENT. SPECIFICATIONS WHICH DESCRIBE A PARTICULAR MANUFACTURER'S PRODUCT BY ITS EXACT CHARACTERISTICS IN DETAILED DRAWINGS ARE NOT DIFFERENT FROM SPECIFICATIONS WHICH INDICATE A PRODUCT BY BRAND NAME AND MODEL NUMBER AND, THEREFORE, IT IS REQUIRED THAT THE PHRASE "OR EQUAL" OR WORDS OF SIMILAR IMPORT MUST BE ADDED TO THE DESCRIPTION AND THAT BIDS WHICH OFFER PRODUCTS WHICH WILL PERFORM THE JOB JUST AS WELL MUST BE CONSIDERED FOR AWARD ON AN EQUAL BASIS. A LAPSE OF MORE THAN SIX MONTHS BETWEEN THE DATE OF INITIATION OF A NEGOTIATED PROCUREMENT, WHICH WAS AUTHORIZED UNDER 10 U.S.C. 2304 (A) (2), ON THE BASIS THAT THE PUBLIC EXIGENCY WOULD NOT PERMIT THE DELAY INCIDENT TO AN ADVERTISED PROCUREMENT AND THE DATE OF THE CONTRACT AWARD, TOGETHER WITH THE FACT THAT A PERIOD OF 30 DAYS WAS ALLOWED FOR SUBMISSION OF PROPOSALS, COMPARES FAVORABLY INDICATES THAT THE PUBLIC EXIGENCY EXCEPTION MAY NOT HAVE BEEN PROPERLY INVOKED; HOWEVER, IN VIEW OF THE FACT THAT MUCH OF THE DELAY WAS DUE TO THE CAREFUL REVIEW AFTER PROTEST OF THE AWARD AND IN VIEW OF THE ADVANCED STATE OF COMPLETION OF WORK UNDER THE CONTRACT, OBJECTION WILL NOT BE RAISED TO THE NEGOTIATED PROCUREMENT.

TO THE SECRETARY OF THE AIR FORCE, AUGUST 18, 1959:

WE REFER TO LETTERS OF APRIL 2, JUNE 8, JUNE 18, JULY 8, AND AUGUST 4, 1959, SIGNED BY VARIOUS MEMBERS OF YOUR STAFF CONCERNING REQUEST FOR QUOTATION NO. ENG-11-184-/NEG-59-A-129) AND INVITATION FOR BIDS NO. DA ENG -11-184-59-A-736-JD, MAY 29, 1959, BOTH ISSUED BY THE CORPS OF ENGINEERS FOR THE PROCUREMENT RESPECTIVELY OF 160 AND 150 SNOWPLOWS FOR THE DEPARTMENT OF THE AIR FORCE.

WITH RESPECT TO THE NEGOTIATED PROCUREMENT, IT IS REPORTED IN ENCLOSURES TO A LETTER SIGNED BY THE ASSISTANT SECRETARY OF THE ARMY ( LOGISTICS), DATED APRIL 21, 1959, THAT THE CHICAGO PROCUREMENT OFFICE, CORPS OF ENGINEERS, RECEIVED FROM THE AIR FORCE, MILITARY INTERDEPARTMENTAL PURCHASE REQUESTS ( MIPR) NO. 40-604-8-50B-671, DATED JUNE 18, 1958, FOR 10 SNOWPLOWS AND NO. 40-604-9-50B-819, DATED AUGUST 18, 1958, FOR (AS SUBSEQUENTLY AMENDED) 150 SNOWPLOWS IN ACCORDANCE WITH SPECIFICATION NO. MIL-S-26850C-/USAF) DATED MAY 16, 1958. THE SPECIFICATION REQUIRES EQUIPMENT PURSUANT TO DRAWINGS REFERENCED THEREIN COVERING A CHASSIS AS MANUFACTURED BY OSHKOSH MOTOR TRUCK, INC., AND PLOW UNITS AS MANUFACTURED BY FRINK SNOW PLOW, INC., WAUSAU IRON WORKS AND SICARD INDUSTRIES, INC. THE REPORT FROM THE ARMY STATES THAT IN A CONFERENCE BETWEEN REPRESENTATIVES OF THE CORPS OF ENGINEERS AND THE AIR FORCE, THE LATTER STATED,"THIS WAS THE ONLY EQUIPMENT THAT WOULD DO THE JOB.' A MEMORANDUM DATED FEBRUARY 19, 1959, SIGNED BY THE DIRECTOR OF RESEARCH AND DEVELOPMENT, USAF, ENCLOSED WITH THE ARMY REPORT STATES:

THE AIR FORCE HAS REVIEWED THE SPECIFICATION USED IN THE PROCUREMENT OF 160 SNOW PLOWS BY RFQ. ENG-11-184 (NEG. 59-A-129) TO SPECIFICATION MIL-S -26850C ( USAF), AND HAS DETERMINED THAT THIS SPECIFICATION SETS OUT AND REPRESENTS THE MINIMUM REQUIREMENTS OF THE AIR FORCE FOR SNOW PLOWS TO BE USED IN CLEARING SNOW FROM AIR FIELD RUNWAYS.

THE MIPR'S INDICATED THAT THE REQUIREMENT FOR THE SNOWPLOWS WAS URGENT. IN ADDITION, A LETTER DATED AUGUST 27, 1958, FROM THE DIRECTOR, SUPPLY AND SERVICES, MEMPHIS AIR FORCE DEPOT, ALSO ENCLOSED WITH THE ARMY REPORT STATES:

1. THE SNOWPLOWS TO BE PROCURED ON SUBJECT MIPR'S ARE URGENTLY REQUIRED BY THE AIR FORCE. NON-RECEIPT OF THESE SNOWPLOWS PRIOR TO THE COMING WINTER SEASON WILL SERIOUSLY HAMPER FLIGHT OPERATIONS AT AIR FORCE BASES. THE MOST SERIOUS EFFECTS WOULD BE FELT BY NEW ACTIVATIONS WITHIN THE STRATEGIC AIR COMMAND, WHERE THERE HAS BEEN NO PRIOR REQUIREMENT. AIRCRAFT WILL BE SUBJECT TO GROUNDING AS A RESULT OF HEAVY SNOWFALL AT THESE LOCATIONS NOW LACKING THIS EQUIPMENT IF DELIVERY IS NOT TIMELY.

2. IN VIEW OF THE ABOVE, IT IS REQUESTED THAT URGENT HANDLING BE AFFORDED SUBJECT MIPR'S AS PROVIDED BY AFPI, PARAGRAPH 3-202.2 3 III.

THE CITED AFPI PROVISION RELATES TO THE PUBLIC EXIGENCY EXCEPTION TO THE GENERAL REQUIREMENT THAT SUPPLIES AND SERVICES BE ACQUIRED THROUGH THE USE OF COMPETITIVE BID PROCEDURES. IN VIEW OF THE STATED URGENCY, THE CONTRACTING OFFICER DETERMINED THAT THE PROCUREMENT SHOULD BE NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (2) WHICH AUTHORIZES NEGOTIATION WHEN "THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING.'

REQUEST FOR QUOTATION NO. ENG-11-84-/NEG-59-A-129) COVERING THE 160 SNOWPLOW REQUIREMENT WAS ISSUED OCTOBER 13, 1958. (THE DELAY BETWEEN PREPARATION OF THE SECOND MIPR AND DATE OF ISSUANCE OF THE RFQ WAS CAUSED IN LARGE PART, ACCORDING TO AN ENCLOSURE TO THE LETTER OF JUNE 8, BY THE NEED TO REPRODUCE CERTAIN OF THE 1,700 DRAWINGS INCORPORATED IN THE SPECIFICATION BY REFERENCE.) PROPOSALS WERE TO BE OPENED NOVEMBER 12, 1958. THE REQUEST WAS SENT TO 19 FIRMS; FOUR OFFERS WERE RECEIVED IN REPLY, TWO OF WHICH WERE DETERMINED TO BE NONRESPONSIVE. ONE OF THE FIRMS SUBMITTING A NONRESPONSIVE OFFER, WALTER MOTOR TRUCK COMPANY, PROTESTED THE PROCUREMENT. BY A TELEPHONE CALL ON NOVEMBER 12, FROM HEADQUARTERS USAF, THE CORPS OF ENGINEERING WAS REQUESTED TO WITHHOLD FURTHER ACTION ON THE PROCUREMENT BECAUSE OF THE PROTEST. THIS REQUEST WAS CONFIRMED BY A TELETYPE MESSAGE OF DECEMBER 19, 1958. IN ACCORDANCE THEREWITH, ACTION ON THE PROCUREMENT WAS HELD UP BY THE CORPS OF ENGINEERS.

BY TELETYPE DATED JANUARY 12, 1959, FROM HEADQUARTERS USAF, THE CONTRACTING OFFICER WAS AUTHORIZED TO PROCEED WITH THE AWARD. HOWEVER, ON JANUARY 14, 1959, THE ASSISTANT SECRETARY OF THE AIR FORCE ( MATERIAL) REQUESTED THAT THE AWARD BE WITHHELD PENDING HIS REVIEW, WHICH WAS APPARENTLY COMPLETED BY JANUARY 23, 1959, WHEN THE AIR FORCE MIPR OFFICER IN CHICAGO WAS ADVISED BY HEADQUARTERS USAF, TO AUTHORIZE THE CORPS OF ENGINEERS TO PROCEED AS EXPEDITIOUSLY AS POSSIBLE WITH THE AWARD. FURTHER DELAY WAS INCURRED PENDING A REVIEW OF THE MATTER BY THE SECRETARY OF THE AIR FORCE. FINALLY, ON FEBRUARY 5, 1959, THE CORPS OF ENGINEERS WAS REQUESTED TO CANCEL ALL HOLD ORDERS AND TO MAKE AN ALL-OUT EFFORT TO PROCURE THE SNOWPLOWS.

MEANWHILE PURSUANT TO A REQUEST (APPARENTLY PROMPTED BY THE LARGE NUMBER OF DELAYS) FROM THE CONTRACTING OFFICER DATED JANUARY 15, 1959, THE AIR FORCE LIAISON OFFICE, BY MEMORANDUM OF JANUARY 20 VERIFIED THAT THE PROCUREMENT WAS STILL URGENT. THE LATTER MEMORANDUM STATES IN PART:

1. THE FACT THAT DELIVERY OF SUBJECT SNOWPLOWS CAN NOT BE EFFECTED BEFORE APRIL 1959 WILL IN NO WAY MODERATE THE AIR FORCE REQUIREMENT THAT DELIVERY OF THESE PLOWS BE CONSUMMATED AT THE EARLIEST POSSIBLE DATE.

2. SHIPPING INSTRUCTIONS FOR FIRST GROUP OF SUBJECT UNITS WILL BE DIRECTED TO THE FAR NORTH OF THE WESTERN HEMISPHERE. AN INITIAL DELIVERY IN APRIL 1959, ACCOMPANIED BY A SUITABLE TRANSPORTATION PRIORITY, WILL NOT BE OUT OF LINE WITH THE USE OF THESE PLOWS AT DESIGNATED SITE.

3. JUST RECENTLY THIS OFFICE HAS RECEIVED A COMMUNICATION FROM HQ USAF AND HQ AIR DEFENSE COMMAND (COPIES ATTACHED) STATING THAT EARLIEST POSSIBLE DELIVERY OF SUBJECT SNOWPLOWS IS REQUIRED AND THAT SCHEDULE "A," AS REFERRED TO IN THE CONTRACT, BE ADHERED TO.

ACCORDINGLY, NEGOTIATIONS WERE RESUMED WITH THE RESPONSIVE OFFERORS AND AWARD WAS MADE TO OSHKOSH ON MARCH 2, 1959. WE UNDERSTAND THAT THIS NEGOTIATION PERIOD MIGHT HAVE BEEN SHORTER BUT FOR THE FREQUENT AND CAREFUL REVIEW AT SEVERAL STAGES PROMPTED BY THE WIDE DEGREE OF INTEREST IN THE PROCUREMENT.

THE LETTER OF APRIL 2 FROM THE DEPUTY, PROCUREMENT AND PRODUCTION, INDICATES THAT SPECIFICATION NO. MIL-S-26850C, USAF, DATED MAY 16, 1958 (SUPERSEDED BY MIL-S-26850D, OCTOBER 7, 1958, WHICH IS SUBSTANTIALLY IDENTICAL), COVERS A SNOWPLOW HAVING A GROSS VEHICLE WEIGHT OF 54,000 LBS. INCLUDING A TRUCK CHASSIS, ASSOCIATED DISPLACEMENT BLADES, A UNIVERSAL BLADE MOUNTING ATTACHMENT, AND A HIGH SPEED LARGE CAPACITY ROTARY PLOW WITH AUXILIARY ENGINE. THE LETTER FURTHER STATES THAT IN FOUR PRIOR PROCUREMENTS OF VEHICLES OF A SIMILAR SIZE AND NATURE UNDER CONTRACTS AWARDED BETWEEN NOVEMBER 2, 1955, AND JUNE 27, 1957, EMPLOYING BROADER SPECIFICATIONS. OSHKOSH VEHICLES WERE PURCHASED IN EACH CASE. IT IS STATED, FURTHER, THAT IN OCTOBER OF 1957 OSHKOSH AND SICARD, FRINK, AND WAUSAU OFFERED DRAWINGS, MANUFACTURING DATA, AND LICENSE-FREE USE OF PATENTS WITHOUT COST TO THE GOVERNMENT FOR THE TRUCK CHASSIS AND RELATED ATTACHMENTS. IT WAS THEN DETERMINED THAT THIS INFORMATION COULD BE USED AS COMPETITIVE PROCUREMENT DATA.

IT IS OUR UNDERSTANDING THAT, WITH RESPECT TO THE TRUCK, THE DRAWINGS AND OTHER DATA MADE A PART OF THE SPECIFICATIONS PRESCRIBED IN DETAIL A DRIVE- SYSTEM (INCLUDING AXLE ASSEMBLIES AND TRANSFER CASE) AS MANUFACTURED BY OSHKOSH AND THAT ONLY A TRUCK HAVING EXACTLY SUCH DRIVE SYSTEM COULD MEET THE SPECIFICATIONS. A LETTER OF APRIL 2 FROM THE AIR FORCE ALSO STATES THAT THE SPECIFICATIONS ARE NEVERTHELESS NOT UNDULY RESTRICTIVE BECAUSE:

1. THE VEHICLE MEETS THE MINIMUM NEEDS OF THE AIR FORCE.

2. THE GOVERNMENT OWNS THE MANUFACTURING DRAWINGS AND REPRODUCTION RIGHTS.

3. THE COMPONENTS AND ASSEMBLIES OF THE VEHICLE CALLED FOR ARE AVAILABLE ON THE OPEN MARKET.

4. THOSE RELATIVELY FEW PARTS OF THE VEHICLE NOT PROCURABLE ON THE OPEN MARKET CAN BE FABRICATED OR ASSEMBLED BY ANY REGULAR SUPPLIER OF VEHICLES OF THIS TYPE.

AN ENCLOSURE TO AN AIR FORCE LETTER OF JUNE 8 SETS OUT IN SUBSTANCE THE FOLLOWING ADDITIONAL REASONS FOR NOT REGARDING THE SPECIFICATIONS AS UNDULY RESTRICTIVE:

1. ALL PATENTS COVERING COMPONENTS ARE AVAILABLE TO THE GOVERNMENT FOR LICENSE-FREE USE.

2. THE VEHICLE ENGINE IS MILITARY STANDARD CONFORMING TO MIL-E 11275.

3. TWO RESPONSIVE OFFERS WERE RECEIVED AND ANOTHER MANUFACTURER INDICATED HE DID NOT SUBMIT AN OFFER ONLY BECAUSE OF THE NUMBER OF ORDERS ALREADY ON HAND.

4. WHEN THE SPECIFICATION WAS COORDINATED WITH THE SNOWPLOW INDUSTRY, COMPANIES OTHER THAN OSHKOSH OFFERED NO OBJECTIONS TO THE USE OF THE DRAWINGS AND ONE PRODUCER INDICATED THE DATA ARE ADAPTABLE FOR ASSEMBLY IN ONE OF ITS DIVISIONS.

THE PROCUREMENT HAS BEEN PROTESTED BY THE WALTER MOTOR TRUCK COMPANY, AS STATED IN CORRESPONDENCE WITH VARIOUS OFFICES OF THE DEPARTMENT OF DEFENSE AND IN A LETTER OF MARCH 3, 1959, AND FURTHER CORRESPONDENCE WITH US, ON TWO GROUNDS: FIRST, THAT THE CIRCUMSTANCES DID NOT JUSTIFY THE INVOCATION OF THE NEGOTIATING AUTHORITY AND SECOND, THAT THE SPECIFICATIONS ARE SO RESTRICTIVE AS TO PRECLUDE REAL COMPETITION.

AS TO THE FIRST, WE HAVE ALREADY NOTED THAT THE JUSTIFICATION FOR NEGOTIATING THE AWARD RATHER THAN EMPLOYING COMPETITIVE BID PROCEDURES IS THAT THE PUBLIC EXIGENCY WOULD NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. THE PLAIN LANGUAGE OF THE EXCEPTION INDICATES THAT IT IS TO BE INVOKED WHERE THE GOVERNMENT'S INTERESTS WOULD BE PREJUDICED BY THE CONSUMPTION OF TIME NECESSARILY ATTENDING THE PREPARATION AND DISTRIBUTION AND RETURN OF BID FORMS AND THE EVALUATION OF BIDS. SEE IN THIS CONNECTION 38 COMP. GEN. 44 WHEREIN AN ADMINISTRATIVE DETERMINATION THAT THE EXCEPTION IN 10 U.S.C. 2304 (A) (2) WAS PROPERLY FOR APPLICATION WAS MADE ON ONE DAY AND AWARD WAS MADE ON THE NEXT DAY.

WITH RESPECT TO THE PROCUREMENT IN QUESTION, HOWEVER, A CONSIDERABLE TIME WAS TAKEN TO ASSEMBLE AND REPRODUCE THE DRAWINGS INCORPORATED IN THE SPECIFICATION BY REFERENCE AND TO PREPARE THE REQUEST FOR QUOTATION WHICH APPEARS AS COMPLETE AND DETAILED AS ANY INVITATION FOR BIDS. FURTHER, THE TIME GIVEN FOR SUBMISSION OF PROPOSALS (30 DAYS) COMPARES FAVORABLY WITH THE TIME UNDER INVITATION NO. DA-ENG-11-184-59-A-579-JD (14 DAYS) REPRESENTING A PROCUREMENT OF FIVE 54,000 LB. G.V.M. SNOWPLOWS FOR THE DEPARTMENT OF THE NAVY AND INVITATION NO. DA-ENG-11 184-59-A-736-JD (31 DAYS) REPRESENTING A PROCUREMENT OF 150 54,000 LB. G.V.W. SNOWPLOWS FOR THE AIR FORCE WHICH WE COMMENT UPON FURTHER BELOW. AFTER OFFERS ON THE INSTANT PROCUREMENT WERE SUBMITTED, A SIGNIFICANT PERIOD OF TIME PASSED BEFORE AWARD. WE RECOGNIZE THAT MUCH OF THE DELAY IN MAKING THE AWARD AFTER RECEIPT OF PROPOSALS WAS DUE TO THE INSISTENCE OF THE WALTER COMPANY ON THE PROPRIETY OF ITS POSITION. NEVERTHELESS, THE RECORD WITH RESPECT TO TIME CONSUMED IN PROCESSING THE PROCUREMENT BOTH BEFORE AND AFTER THE SOLICITATION FOR QUOTATIONS RAISES A SERIOUS QUESTION AS TO WHETHER NEGOTIATION WAS JUSTIFIED ON THE GROUNDS THAT THE PUBLIC EXIGENCY WOULD NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. IT APPEARS, IN FACT, THAT A CONTRACT PURSUANT TO ADVERTISING MIGHT WELL HAVE BEEN AWARDED IN LESS TIME.

THE POSITION OF THE WALTER MOTOR TRUCK COMPANY WITH RESPECT TO THE RESTRICTIVE NATURE OF THE SPECIFICATIONS IS THAT NO REAL COMPETITION WAS POSSIBLE BECAUSE ANY MANUFACTURER OTHER THAN OSHKOSH WOULD HAVE TO RETOOL ITS ASSEMBLY LINE IN ORDER TO PRODUCE THE OSHKOSH TYPE OF DRIVE SYSTEM. IT IS ARGUED THAT FROM A PRACTICAL STANDPOINT THIS NECESSITY WOULD PREVENT COMPETITION BOTH AS TO PRICE AND TIME OF DELIVERY. WALTER FURTHER CONTENDS THAT THE MERE FACT THAT MORE THAN ONE RESPONSIBLE OFFER WAS RECEIVED WOULD NOT NECESSARILY REQUIRE A DETERMINATION THAT THE SPECIFICATIONS WERE NOT RESTRICTIVE. IN SUPPORT OF THIS CONCLUSION THERE IS CITED OUR DECISION AT 20 COMP. GEN. 903 IN WHICH WE HELD THAT A SPECIFICATION UNDER A FORMALLY ADVERTISED PROCUREMENT WHICH LIMITED COMPETITION TO A FEW AND EXCLUDE ANY OTHERWISE QUALIFIED SUPPLIERS WAS IN CONTRAVENTION OF THE PUBLIC PROCUREMENT STATUTES.

IT SHOULD BE NOTED THAT THE SPECIFICATION USED IN REQUEST FOR QUOTATION NO. ENG-11-184) NEG-59-A-129) IS SUBSTANTIALLY THE SPECIFICATION APPLICABLE TO INVITATION FOR BIDS NO. DA-ENG-11-184-59-A 736-JD ISSUED MAY 29, 1959, FOR PROCUREMENT OF AN ADDITIONAL QUANTITY OF 150 54,000 LB. G.V.W. SNOWPLOWS FOR THE AIR FORCE. THE INVITATION APPEARS TO HAVE BEEN ISSUED PURSUANT TO SMALL BUSINESS RESTRICTED ADVERTISING PROCEDURE WHICH UNDER SECTION 1-706.5 (B) ASPR IS TO BE CONDUCTED IN THE MANNER PRESCRIBED FOR FORMAL ADVERTISING EXCEPT THAT BIDS AND AWARDS ARE RESTRICTED TO SMALL BUSINESS CONCERNS. THE WALTER MOTOR TRUCK COMPANY BY LETTER OF JUNE 4, 1959, AND ADDITIONAL CORRESPONDENCE, HAS PROTESTED AGAINST ANY AWARD PURSUANT TO THAT INVITATION ON THE GROUND THAT THE SPECIFICATIONS ARE SO RESTRICTIVE AS TO PREVENT FULL AND FREE COMPETITION. RESPONSIBLE OFFICIALS OF THE AIR FORCE HAVE DETERMINED THAT THE REPORTS SUBMITTED WITH RESPECT TO THE SPECIFICATION UNDER THE REQUEST FOR PROPOSALS ARE EQUALLY APPLICABLE TO THOSE INCLUDED IN THE INVITATION FOR BIDS AND, THEREFORE, THAT NO ADDITIONAL REPORT WITH RESPECT TO THE LATTER IS DEEMED NECESSARY. IT IS REPORTED IN AN ENCLOSURE TO THE LETTER OF AUGUST 4 THAT UPON BID OPENING ON JULY 15, 1959, IT WAS FOUND THAT BIDS ON THE FULL AMOUNT OF THE PROCUREMENT HAD BEEN RECEIVED FROM OSHKOSH AND ONE OTHER FIRM; THE LATTER, WHOSE BID WAS LOW, WAS, HOWEVER, DETERMINED TO BE INELIGIBLE FOR AWARD BECAUSE IT DID NOT QUALIFY AS A SMALL BUSINESS. TWO BIDS WERE RECEIVED ON THE 60 SNOWPLOWS IN THE PROCUREMENT TO BE EQUIPPED WITH BANK ROTARY SNOW REMOVAL UNITS, BUT THE PRICES ON THESE WERE TOO HIGH TO MERIT CONSIDERATION FOR AWARD.

IT IS OUR UNDERSTANDING, ON THE BASIS OF THE INFORMATION FURNISHED BY ALL OF THE INTERESTED PARTIES, THAT THE SNOWPLOWS TO BE MANUFACTURED UNDER THE SPECIFICATION ARE, EXCEPT FOR THE DRIVE SYSTEM WHICH IS COMPRISED PRIMARILY OF AXLE ASSEMBLIES AND TRANSFER CASE, MADE UP OF COMPONENTS AVAILABLE TO THE INDUSTRY IN GENERAL. IT IS ALSO OUR UNDERSTANDING THAT SNOWPLOWS OF THIS TYPE ARE NOT MANUFACTURED ON AN ASSEMBLY LINE BASIS IN THE SAME MANNER AS PASSENGER AUTOMOBILES BUT RATHER ARE TO A LARGE EXTENT INDIVIDUALLY BUILT SO THAT DIFFERENCES BETWEEN THE MANUFACTURER'S USUAL PRODUCT AND THE SPECIFICATION WOULD NOT NORMALLY ENTAIL THE SAME DIFFICULTY WHICH COULD BE EXPECTED TO ARISE IF THE MANUFACTURER OF ONE TYPE OF POPULAR AUTOMOBILE WERE TO READJUST HIS ASSEMBLY LINE TO PRODUCE A COMPETITIVE MODEL. WE ARE FURTHER ADVISED, HOWEVER, THAT THE DRIVE ASSEMBLY COMPONENTS ARE EITHER PRODUCED BY THE SNOWPLOW MANUFACTURER, ARE MADE FOR HIM FROM HIS DIES, OR ARE MACHINED BY OR FOR HIM FROM STOCK BLANKS. IN ANY CASE, WE UNDERSTAND THAT THE MAJOR PARTS OF A DRIVE ASSEMBLY FOR TRUCKS OF THIS SIZE ARE UNIQUE TO THE PARTICULAR SNOWPLOW MANUFACTURER.

ENCLOSURES TO THE LETTERS OF JULY 8 AND AUGUST 4, 1959, CONCEDE THE POSSIBILITY THAT THE WALTER DRIVE SYSTEM MAY BE CAPABLE OF MEETING THE GOVERNMENT'S ACTUAL REQUIREMENTS FOR THE USES CONTEMPLATED. THE POSITION OF THE AIR FORCE WITH RESPECT TO THE MATTER APPEARS TO BE THAT, HAVING DETERMINED ON THE BASIS OF EXPERIENCE THAT A PARTICULAR PRODUCT IS WELL SUITED TO ITS REQUIREMENTS, THE DEPARTMENT CAN LIMIT ITS SUBSEQUENT PROCUREMENTS TO THAT PRODUCT OR TO A SUBSTANTIALLY IDENTICAL PRODUCT WITHOUT A SUBSTANTIVE DETERMINATION THAT NO OTHER PRODUCT WILL EQUALLY SATISFY ITS ACTUAL REQUIREMENTS. MORE SPECIFICALLY, THE AIR FORCE HAS PROCURED THE OSHKOSH VEHICLE IN THE PAST AND FOUND IT SUITED TO ITS PURPOSES. SINCE THE BLUEPRINTS AND LICENSE-FREE USE OF PATENTS ARE AVAILABLE TO ANY BIDDER, IT IS CONTENDED THAT THE DEPARTMENT MAY, WITHIN THE LAWS GOVERNING FORMAL ADVERTISING, LIMIT A SUBSEQUENT PROCUREMENT TO THE OSHKOSH PRODUCT OR A COPY THEREOF, WITHOUT REGARD TO WHETHER ANOTHER VEHICLE EMBODYING DIFFERENT DESIGN FEATURES MAY BE EQUALLY SUITABLE.

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. 17 COMP. GEN. 554. APPLICABLE STATUTES AND REGULATORY PROVISIONS REQUIRE THAT MAXIMUM COMPETITION BE OBTAINED WITHIN SUCH ESTABLISHED REQUIREMENTS. SEE 32 COMP. GEN. 384, 387, STATING IN PART:

THE GOVERNMENT ADVERTISING STATUTES CONSISTENTLY HAVE BEEN HELD TO REQUIRE THAT EVERY EFFORT SHOULD BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE ADVERTISED SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION * * *

SEE ALSO 16 COMP. GEN. 171.

THE DRIVE SYSTEM EMPLOYED BY THE WALTER MOTOR TRUCK COMPANY IS SIGNIFICANTLY DIFFERENT FROM THAT CALLED FOR BY THE SPECIFICATIONS. WHILE IT MAY BE THAT THE WALTER COMPANY COULD, IN FACT, PRODUCE A SNOWPLOW IN COMPLIANCE WITH THE SPECIFICATION, IT APPEARS THAT THE FIRM WOULD BE PUT TO A DISTINCT DISADVANTAGE BY HAVING TO SUPPLY A DRIVE SYSTEM AS PRODUCED BY A COMPETITOR. CERTAINLY IT IS TRUE THAT THE AIR FORCE IS NOT REQUIRED TO PURCHASE SNOWPLOWS UTILIZING A DRIVE SYSTEM WHICH HAS BEEN DETERMINED NOT TO MEET THE AGENCY'S REQUIREMENTS. THE AIR FORCE, HOWEVER, CONCEDES THAT THE WALTER DRIVE SYSTEM MAY WELL BE CAPABLE OF A STANDARD OF PERFORMANCE WHICH WOULD SATISFY SUCH REQUIREMENTS. WE MUST REGARD A SPECIFICATION REQUIRING THE USE OF A PARTICULAR MANUFACTURER'S REGULARLY PRODUCED VEHICLE OR MAJOR COMPONENT THEREOF AS SO RESTRICTIVE AS TO PREVENT THE COMPETITION REQUIRED UNDER ADVERTISED PROCUREMENT PROCEDURES EVEN THOUGH OTHER MANUFACTURERS MAY BE AUTHORIZED TO DUPLICATE SUCH VEHICLE OR COMPONENT, IN THE ABSENCE OF A DETERMINATION THAT IN FACT NO OTHER TYPE OF VEHICLE OR COMPONENT WOULD MEET THE REQUIREMENTS EQUALLY AS WELL.

A PROCUREMENT MAY BE MADE UNDER ADVERTISING PROCEDURES ON THE BASIS OF A PARTICULAR MANUFACTURER'S MODEL. IT IS REQUIRED IN SUCH CIRCUMSTANCES, HOWEVER, THAT THE WORDS "OR EQUAL" OR WORDS OF SIMILAR IMPORT BE ADDED TO THE DESCRIPTION AND THAT BIDS OFFERING OTHER PRODUCTS WHICH WILL PERFORM THE JOB AS WELL MUST BE CONSIDERED FOR AWARD ON AN EQUAL BASIS. 38 COMP. GEN. 380; 33 COMP. GEN. 524. WE CAN SEE NO REAL DIFFERENCE BETWEEN ADVERTISING FOR A PRODUCT BY ITS BRAND NAME AND MODEL NUMBER AND BY DETAILED DRAWINGS WHICH, ALTHOUGH THEY MAY NOT INDICATE NAME OR MODEL NUMBER, DESCRIBE SUCH MODEL BY ITS EXACT CHARACTERISTICS.

IT MAY BE DIFFICULT TO SET UP SATISFACTORY TEST CONDITIONS FOR THIS KIND OF EQUIPMENT BUT, ON THE OTHER HAND, THERE MUST BE SOME VALID REASON FOR CONCLUDING THAT A REGULARLY AVAILABLE COMPETITIVE PRODUCT, AS IN THIS CASE, WILL NOT EQUALLY MEET THE GOVERNMENT'S REQUIREMENTS. IN POINT OF FACT, UNLESS IT CAN BE DETERMINED THAT THE WALTER DRIVE SYSTEM IS NOT SUBSTANTIALLY EQUAL IN OVER-ALL PERFORMANCE TO THE OSHKOSH DRIVE SYSTEM, THERE WOULD APPEAR TO BE NO LEGAL JUSTIFICATION FOR NOT DRAFTING THE SPECIFICATIONS SO AS TO PERMIT THE FURNISHING OF EITHER SYSTEM.

IN ACCORDANCE WITH THE FOREGOING, WE CANNOT CONCLUDE THAT THE SPECIFICATIONS AS PRESENTLY DRAWN PERMIT THE FULL AND FREE COMPETITION, CONSISTENT WITH THE NEEDS OF THE GOVERNMENT, REQUIRED BY 10 U.S.C. 2305 (A).

WITH RESPECT TO THE NEGOTIATED PROCUREMENT, WHILE CONSIDERABLE DOUBT EXISTS AS TO WHETHER A PUBLIC EXIGENCY MAY PROPERLY HAVE BEEN SAID TO EXIST WITHIN THE CONTEMPLATION OF THE APPLICABLE STATUTORY PROVISIONS, WE WILL NOT OBJECT TO FULFILLMENT OF THAT CONTRACT IN VIEW OF THE ADVANCED STATE OF COMPLETION OF WORK THEREUNDER. CF. 30 COMP. GEN. 190 ..END :