B-175253, JUN 1, 1972

B-175253, JUN 1, 1972

BID PROTEST - REQUEST FOR RECONSIDERATION DENIED DECISION AFFIRMING A PRIOR DENIAL OF A PROTEST BY DENISON MATTRESS FACTORY AGAINST THE AWARD OF A CONTRACT UNDER AN IFB ISSUED BY THE U.S. NAVAL AIR STATION, MILLINGTON, TENN; FOR THE PROCUREMENT OF HOSPITAL MATTRESSES ON A "BRAND NAME OR EQUAL" BASIS. SINCE PROTESTANT HAS NOT FURNISHED ANY FACTUAL OR LEGAL BASIS FOR MODIFYING THE ORIGINAL DECISION AS TO THE ACCEPTABILITY OF "EQUAL" MODELS UNDER BRAND NAME OR EQUAL PROCUREMENTS, THAT DECISION MUST BE AFFIRMED. FURTHER, STATEMENTS AS TO THE REASONABLENESS OF THE SPECIFICATIONS SHOULD BE DIRECTED TO THE PROCURING ACTIVITY, NOT GAO.

TO DENISON MATTRESS FACTORY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1972, REQUESTING RECONSIDERATION OF OUR APRIL 25 DECISION DENYING YOUR PROTEST UNDER INVITATION FOR BIDS (IFB) N00639-72-B-0029, ISSUED BY THE U.S. NAVAL AIR STATION, MILLINGTON, TENNESSEE FOR THE PROCUREMENT OF HOSPITAL MATTRESSES ON A "BRAND NAME OR EQUAL" BASIS.

IN OUR DECISION, WE HELD, AMONG OTHER THINGS, THAT THE IFB WAS NOT DEFECTIVE, AS YOU ALLEGED, FOR FAILING TO LIST FEATURES OF THE SIMMONS MODEL MST-190 WHICH THE PROCURING ACTIVITY DID NOT CONSIDER DESCRIPTIVE OF ITS ESSENTIAL NEEDS. WE POINTED OUT THAT ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.2(B) REQUIRES THE LISTING OF ONLY THE SALIENT CHARACTERISTICS OF THE REFERENCED BRAND NAME, AND THAT THE DECISIONS OF THIS OFFICE HAVE HELD THAT ANY "EQUAL" MODEL NEED ONLY COMPLY WITH SUCH LISTED FEATURES.

YOU NOW INDICATE YOUR DISAGREEMENT WITH OUR EXPLANATION OF THE CONCEPT OF "BRAND NAME OR EQUAL" BIDDING, AND STATE THAT YOU DO NOT BELIEVE THE PROCURING ACTIVITY IS NOT INTERESTED IN THE UNSPECIFIED FEATURES OF THE BRAND NAME PRODUCT. HOWEVER, SINCE YOU HAVE NOT FURNISHED THIS OFFICE WITH ANY FACTUAL OR LEGAL BASIS FOR MODIFYING OUR POSITION IN THIS MATTER, WE MUST AFFIRM OUR PRIOR CONCLUSIONS ON THE ACCEPTABILITY OF "EQUAL" MODELS UNDER BRAND NAME OR EQUAL PROCUREMENTS.

CONCERNING YOUR STATEMENT THAT THE SIMMONS COMPANY SHOULD HAVE SUPPLIED THE PROCURING ACTIVITY WITH DETAILED SPECIFICATIONS ON ALL COMPONENTS OF ITS REFERENCED MODEL FOR YOUR EXAMINATION, ASPR 1 1206.2(C) PROVIDES THAT AN APPLICABLE COMMERCIAL CATALOG DESCRIPTION MAY BE USED IN A BRAND NAME OR EQUAL PURCHASE DESCRIPTION WHEN NECESSARY TO DESCRIBE ADEQUATELY THE ITEM REQUIRED, AND THAT THE CONTRACTING OFFICER WILL INSURE THAT A COPY OF ANY REFERENCED CATALOG IS AVAILABLE ON REQUEST FOR REVIEW BY BIDDERS. SINCE THE CONTRACTING OFFICER DID NOT ELECT TO USE THE SIMMONS CATALOG DESCRIPTION IN THE SUBJECT IFB, WE DO NOT BELIEVE THE GOVERNMENT WAS REQUIRED TO FURNISH YOU WITH THE OPPORTUNITY TO REVIEW SUCH CATALOG. ANY EVENT, IT IS OUR UNDERSTANDING THAT YOU WANTED THE INFORMATION IN THE MISTAKEN BELIEF THAT YOUR "EQUAL" MODEL HAD TO STRICTLY CONFORM TO THE UNLISTED FEATURES OF THE SIMMONS PRODUCT. CONSEQUENTLY, WE CANNOT CONCLUDE THAT YOU WERE PREJUDICED BY NOT BEING SUPPLIED WITH DETAILED SPECIFICATIONS OF THE UNLISTED FEATURES OF THE BRAND NAME MODEL.

YOU ALSO STATE THAT THE PROCURING ACTIVITY SHOULD HAVE SPECIFIED A GREATER DEGREE OF FIRE PROTECTION FOR THE MATTRESSES, AND THAT THE AGENCY SHOULD HAVE CONSULTED THE NATIONAL BUREAU OF STANDARDS IN THIS MATTER. FURTHER, YOU MAINTAIN THAT A TRADE ASSOCIATION WAS ADVISED BY "REPRESENTATIVES OF THE FEDERAL GOVERNMENT" THAT THE TYPE OF FIRE PROTECTION SPECIFIED IN THE SUBJECT IFB WAS INADEQUATE.

BASED ON THE RECORD BEFORE US AT THE TIME OUR DECISION WAS RENDERED, WE COULD NOT CONCLUDE THAT THE SPECIFICATIONS WERE UNREASONABLE OR DID NOT REFLECT THE AGENCY'S ACTUAL MINIMUM NEEDS. WHILE YOU NOW ADVANCE ADDITIONAL MATTERS FOR OUR CONSIDERATION, THE MATTRESSES UNDER THE SUBJECT CONTRACT WERE SCHEDULED FOR DELIVERY AT THE USING ACTIVITY IN APRIL, AND WE THEREFORE DO NOT BELIEVE IT WOULD NOW BE APPROPRIATE TO DISTURB THE AWARD EVEN IF WE ASSUME, FOR THE PURPOSE OF DISCUSSION, THAT YOUR TECHNICAL POSITION IS CORRECT IN THIS MATTER. WE THEREFORE SUGGEST THAT YOU MAY WISH TO CONVEY THE OPINIONS OF ANY OTHER REPRESENTATIVES OF FEDERAL AGENCIES CONCERNING ADEQUATE FLAMEPROOFING OF HOSPITAL MATTRESSES TO THE PROCURING ACTIVITY FOR ITS CONSIDERATION IN FUTURE PROCUREMENTS.

ALTHOUGH WE SHARE YOUR CONCERN THAT FAVORITISM MUST BE AVOIDED BY THE PROCURING AGENCIES OF THE GOVERNMENT, WE DO NOT BELIEVE THE FACTS OF THE SUBJECT CASE ESTABLISH IMPROPER CONDUCT BY THE NAVY IN THIS MATTER. WILL, OF COURSE, CONSIDER AND INVESTIGATE ANY FUTURE PROCUREMENT OF FEDERAL AGENCIES WHERE YOU BELIEVE IMPROPER PRACTICES HAVE BEEN FOLLOWED.

FOR THE REASONS SET FORTH ABOVE, OUR DECISION OF APRIL 25, 1972, MUST BE AFFIRMED.