B-162475, MAR. 19, 1968

B-162475, MAR. 19, 1968

TO CHICAGO PNEUMATIC TOOL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 4, 1968, REQUESTING TO BE ADVISED OF THE TYPE OF SAFEGUARDS INCLUDED IN THE COMPETITIVE BIDDING SYSTEM TO PROTECT PROSPECTIVE CONTRACTORS, SUCH AS YOUR COMPANY, FROM ALLEGED INJUSTICES BY THE PURCHASING OFFICERS OF THE GOVERNMENT. SPECIFICALLY, YOU STATE THAT THE PURCHASE OF AN ITEM WITH A CHARACTERISTIC WHICH YOU ALLEGE IS PROPRIETARY TO THE MANUFACTURER OF THE BRAND-NAME ITEM, BY THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, UNDER INVITATION FOR BIDS NO. N00228-68-B-0002, INCORPORATING A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION, WAS AN INJUSTICE TO YOUR FIRM. YOU CONTEND THEREFORE THAT THE PROCUREMENT SHOULD PROPERLY HAVE BEEN NEGOTIATED ON A SOLE-SOURCE BASIS WITH THE BRAND-NAME MANUFACTURER. YOUR PROTEST UNDER THE REFERENCED INVITATION WAS DENIED BY OUR DECISION B-162475, JANUARY 8, 1968, AND AFFIRMED FEBRUARY 12, 1968.

IT HAS LONG BEEN RECOGNIZED THAT THE LAWS AND REGULATIONS GOVERNING PROCUREMENT BY FORMAL ADVERTISING ARE SOLELY FOR THE PROTECTION OF THE GOVERNMENT, AND DO NOT CONFER ANY ENFORCEABLE RIGHTS ON BIDDERS. PERKINS V LUKENS STEEL CO., 310 U.S. 113; FRIEND V LEO, 221 F.2D 96.

HOWEVER, WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE PROCUREMENT AGENCY. IT ALSO HAS BEEN HELD THAT THE FORMAL ADVERTISING STATUTE REQUIRES THAT EVERY EFFORT BE MADE TO DRAW SPECIFICATIONS IN SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE GOVERNMENT'S ACTUAL NEEDS. IT IS WELL ESTABLISHED THAT THE GOVERNMENT DOES NOT VIOLATE EITHER THE LETTER OR SPIRIT OF THE STATUTE MERELY BECAUSE ONLY ONE BIDDER CAN SUPPLY ITS NEEDS, PROVIDED THE SPECIFICATIONS ARE REASONABLE AND NECESSARY FOR THE PURPOSE INTENDED. 34 COMP. GEN. 336; 45 ID. 365. AS TO THIS PROCUREMENT, WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE BRAND NAME OR EQUAL DESCRIPTION WAS NOT BASED UPON A BONA FIDE DETERMINATION OF THE PRESENT NEED OF THE USING ACTIVITY FOR A VACUUM PUMP HAVING A "SEPARATE FLYWHEEL.' CLEARLY, IN THE ORDERLY CONDUCT OF ITS BUSINESS, THE GOVERNMENT AS A BUYER MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE SUCH DISCRETIONARY AUTHORITY TO PRESCRIBE ITS NEEDS WITH ONE OF ITS POTENTIAL SUPPLIERS WHO IS UNABLE TO ADAPT ITS PRODUCT TO THE NEEDS OF THE GOVERNMENT. IN THESE CIRCUMSTANCES, THE ACCEPTANCE OF YOUR VACUUM PUMP WITHOUT A "SEPARATE FLYWHEEL" COULD ONLY HAVE BEEN ACCOMPLISHED BY A WAIVER OF THE ADVERTISED SPECIFICATIONS. THIS WOULD HAVE BEEN PATENTLY IMPROPER UNDER THE LONG-ESTABLISHED RULES GOVERNING THE NONWAIVER OF MAJOR DEVIATIONS TO ADVERTISED SPECIFICATIONS. SEE 30 COMP. GEN. 179; 17 ID. 554.

WE MUST THEREFORE ADVISE THAT NO FURTHER ACTION WITH RESPECT TO THIS PROCUREMENT WILL BE TAKEN BY OUR OFFICE. HOWEVER, YOUR ATTENTION IS DIRECTED TO THE LAST PARAGRAPH OF OUR LETTER OF FEBRUARY 12, 1968, TO YOU, WHICH APPEARS TO BE PERTINENT TO YOUR PRESENT INQUIRY AS TO THE ,SAFEGUARDS" INCLUDED IN THE COMPETITIVE BIDDING SYSTEM.