B-112329, MARCH 3, 1953, 32 COMP. GEN. 384

B-112329: Mar 3, 1953

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BIDS - SPECIFICATIONS - PARTICULAR MAKE WHERE INVITATION FOR BIDS CONTAINS SPECIFICATIONS WHICH WHEN COMPARED WITH THE SPECIFICATIONS OF ONE OF THE BIDDER'S PRODUCTS IMPELS THE CONCLUSION THAT IF NOT WRITTEN AROUND THE PRODUCT WERE DRAWN FROM ITS KNOWN CHARACTERISTICS AND FEATURES SO AS TO PRECLUDE OTHER COMPANIES FROM SUBMITTING RESPONSIVE BIDS. THE INVITATION FOR BIDS SHOULD BE ADVERTISED UNDER SPECIFICATIONS WHICH WILL PERMIT OTHER BIDDERS SUFFICIENT LATITUDE TO MEET THE MINIMUM. 1953: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21. TO YOU RELATIVE TO THE PROTEST OF THE WILSHIRE POWER SWEEPER COMPANY AGAINST THE USE OF SPECIFICATIONS FOR POWER SWEEPERS WITH INVITATION NUMBER 1170 ON THE GROUND THAT SUCH SPECIFICATIONS ARE HIGHLY DISCRIMINATORY IN THAT THEY WERE BASED UPON SPECIFICATIONS FOR A SWEEPER PRODUCED BY A PARTICULAR MANUFACTURER.

B-112329, MARCH 3, 1953, 32 COMP. GEN. 384

BIDS - SPECIFICATIONS - PARTICULAR MAKE WHERE INVITATION FOR BIDS CONTAINS SPECIFICATIONS WHICH WHEN COMPARED WITH THE SPECIFICATIONS OF ONE OF THE BIDDER'S PRODUCTS IMPELS THE CONCLUSION THAT IF NOT WRITTEN AROUND THE PRODUCT WERE DRAWN FROM ITS KNOWN CHARACTERISTICS AND FEATURES SO AS TO PRECLUDE OTHER COMPANIES FROM SUBMITTING RESPONSIVE BIDS, THE INVITATION FOR BIDS SHOULD BE ADVERTISED UNDER SPECIFICATIONS WHICH WILL PERMIT OTHER BIDDERS SUFFICIENT LATITUDE TO MEET THE MINIMUM, NOT MAXIMUM, REQUIREMENTS OF THE PROCUREMENT AGENCY.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, MARCH 3, 1953:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1953, FORWARDING CERTAIN ENCLOSURES IN RESPONSE TO OFFICE LETTER OF JANUARY 2, 1953, TO YOU RELATIVE TO THE PROTEST OF THE WILSHIRE POWER SWEEPER COMPANY AGAINST THE USE OF SPECIFICATIONS FOR POWER SWEEPERS WITH INVITATION NUMBER 1170 ON THE GROUND THAT SUCH SPECIFICATIONS ARE HIGHLY DISCRIMINATORY IN THAT THEY WERE BASED UPON SPECIFICATIONS FOR A SWEEPER PRODUCED BY A PARTICULAR MANUFACTURER.

THE RECORD FORWARDED WITH YOUR LETTER SHOWS THAT BY INVITATION NUMBER 931 ISSUED SEPTEMBER 8, 1952, BY THE PURCHASING AGENT OF YOUR DEPARTMENT, BIDS WERE REQUESTED FOR FURNISHING ONE POWER SWEEPER, 48 INCH CAPACITY, DOUBLE BRUSH, FOR LARGE INDUSTRIAL AREAS, WILSHIRE MODEL 1000, OR EQUAL. BIDDERS WERE ADVISED THAT THE SWEEPER SHOULD BE STURDILY CONSTRUCTED; OPERATED BY MEANS OF AN AIR-COOLED GASOLINE ENGINE OF NOT LESS THAN 8 HORSEPOWER; EQUIPPED WITH DIRT-COLLECTING SYSTEM OF SUITABLE CAPACITY AND GUTTER BRUSH ATTACHMENT; THAT EACH BIDDER SHOULD SUBMIT AN ILLUSTRATION AND FULL DESCRIPTION OF THE POWER SWEEPER PROPOSED TO BE FURNISHED; AND THAT IN THE EVENT MORE THAN ONE TYPE OR MODEL WAS SHOWN, TO STATE THE MODEL NUMBER IN THE SPACE PROVIDED THEREFOR.

IT APPEARS THAT FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION INCLUDING, AMONG OTHERS, A BID FROM THE WILSHIRE POWER SWEEPER COMPANY ON ITS MODEL 1000 REFERRED TO IN THE INVITATION AND AN ALTERNATE BID ON THE SAME MODEL WITH CERTAIN EXTRA EQUIPMENT ADDED. ALSO, AN ALTERNATE BID WAS RECEIVED FROM THE G. H. TENNANT COMPANY ON ITS " TENNANT MODEL 36 POWER SWEEPER.' IT WAS STATED IN LETTER DATED SEPTEMBER 12, 1952, WHICH APPARENTLY ACCOMPANIED THE BID OF THE G. H. TENNANT COMPANY, THAT THE SAID MODEL 36 WAS POWERED BY A 7.3 HORSEPOWER GASOLINE ENGINE AND WAS CONSTRUCTED WITH HEAVY GAGE TUBULAR STEEL AND THAT OPERATING CONTROLS WITHIN EASY REACH OF THE DRIVER MADE THE MACHINE ESPECIALLY EASY TO OPERATE. BY MEMORANDUM OF SEPTEMBER 25, 1952, TO THE PURCHASING AGENT, THE ASSISTANT POSTMASTER GENERAL RECOMMENDED THE REJECTION OF ALL BIDS RECEIVED IN RESPONSE TO THE INVITATION "AS IT HAS BEEN FOUND NECESSARY TO REVISE THE SPECIFICATIONS.' THEREUPON INVITATION NO. 1170 WAS ISSUED BY THE PURCHASING AGENT ON OCTOBER 1, 1952, CALLING FOR BIDS FOR FURNISHING ONE POWER SWEEPER, INDUSTRIAL TYPE, EQUIPPED WITH NOT LESS THAN A 36 INCH MAIN BRUSH AND 21-INCH ROTARY SIDE SWEEPING BRUSH, TOGETHER TO HAVE AN OVERALL SWEEPING CAPACITY OF 48 INCHES AND TO BE IN ACCORDANCE WITH THE FOLLOWING SPECIFICATIONS:

DRIVE: SWEEPER SHALL BE GASOLINE ENGINE POWER PROPELLED BY A MOTOR NOT LESS THAN 7 H.P. AND WITH PROVISIONS FOR OPERATION IN EITHER FORWARD OR REVERSE DIRECTION. THE DRIVE FROM THE ENGINE TO THE COUNTERSHAFT SHALL BE BY MEANS OF ROLLER CHAIN AND FROM THE COUNTERSHAFT TO THE DRIVE WHEEL BY MEANS OF HARDENED STEEL GEARS. THE DRIVE TO THE BRUSH SHALL BE ROLLER CHAIN. ADEQUATE PROTECTION SHALL BE PROVIDED TO PREVENT THE ENTRY OF DUST INTO THE ROLLER CHAIN OR GEAR CHAMBERS.

STEERING: AN AUTOMOTIVE TYPE STEERING MECHANISM SHALL BE PROVIDED. THE DESIGN OF THE SWEEPER SHALL BE SUCH THAT THE REAR OR FRONT WHEELS CAN BE TURNED TO PROVIDE FOR MANEUVERING THE SWEEPER AS THE SWEEPING OPERATION REQUIRES.

CONTROLS: THE SWEEPER SHALL BE PROVIDED WITH FOOT OPERATED CONTROLS FOR RUNNING FORWARD, STOPPING, REVERSING, AND ACCELERATING. THE REVERSING OF THE SWEEPER SHALL BE ACCOMPLISHED BY THE MEANS OF A DOUBLE ACTING CLUTCH. THE SWEEPER SHALL BE EQUIPPED WITH A HAND OPERATED EMERGENCY BRAKE. THE SWEEPER SHALL BE PROVIDED WITH ELECTRIC BATTERY STARTER, BATTERY AND GENERATOR.

IN YOUR LETTER OF JANUARY 21, 1953, THE CONTENTION OF THE WILSHIRE POWER SWEEPER COMPANY THAT THE SPECIFICATIONS SET OUT IN INVITATION NO. 1170 WERE WRITTEN AROUND A SWEEPER PRODUCED BY A PARTICULAR MANUFACTURER IS DENIED, AND IT IS FURTHER STATED THAT IT WAS UNDERSTOOD THAT SUCH SPECIFICATIONS WERE USED BY THE GENERAL SERVICES ADMINISTRATION WHICH HAD PURCHASED SEVERAL SWEEPERS BASED UPON SUCH SPECIFICATIONS.

A CAREFUL COMPARISON OF THE REVISED SPECIFICATIONS WITH THE DESCRIPTIVE ADVERTISING MATTER ACCOMPANYING THE BIDS OF THE G. H. TENNANT COMPANY DISCLOSES SO MANY POINTS OF IDENTITY AND CLOSE SIMILARITY OF LANGUAGE AS TO IMPEL THE CONCLUSION THAT IF THE SPECIFICATIONS WERE NOT WRITTEN AROUND THE SWEEPER PRODUCED BY THAT COMPANY THEY WERE DRAWN FROM KNOWN CHARACTERISTICS AND FEATURES OF ITS PRODUCTS. FURTHERMORE, WHILE YOU STATE THAT A POWER SWEEPER COMPLYING WITH SUCH SPECIFICATIONS HAS CERTAIN ADVANTAGES OVER ALL OTHER SWEEPERS, IT IS NOTED THAT THE ADVANTAGES REFERRED TO ARE THE SAME AS THOSE CLAIMED BY THE G. H. TENNANT COMPANY FOR ITS SWEEPER. THE SPECIFICATIONS THUS APPEAR TO HAVE BEEN DRAWN WITH PARTICULAR REFERENCE TO THAT COMPANY'S SWEEPER AND IN SUCH A MANNER AS TO PRECLUDE ALL OTHER COMPANIES FROM SUBMITTING RESPONSIVE BIDS THEREUNDER.

IF THE SPECIFICATIONS SO DRAWN ARE NOT UNNECESSARILY RESTRICTIVE BUT ARE CONSISTENT WITH THE ACTUAL NEEDS OF YOUR DEPARTMENT, CONSIDERING THE OBVIOUS ADVANTAGE TO A SOLE SOURCE BIDDER IN BEING AFFORDED THE OPPORTUNITY OF QUOTING WITHOUT FEAR OF REAL COMPETITION, THE CONTRACT SHOULD HAVE BEEN NEGOTIATED WITH TENNANT ON A BASIS THAT WOULD HAVE INSURED A FAIR AND REASONABLE PRICE TO THE GOVERNMENT RATHER THAN ADVERTISED ON A BASIS THAT NOT ONLY SERVED NO USEFUL PURPOSE BUT MIGHT HAVE RESULTED IN A HIGHER PRICE.

IT IS NOT ESTABLISHED BY THE RECORD BEFORE THIS OFFICE, HOWEVER, THAT THE TENNANT SWEEPER IS THE ONLY POWER SWEEPER WHICH WOULD MEET THE MINIMUM NEEDS OF YOUR DEPARTMENT. IT MAY BE THAT THAT SWEEPER POSSESSES SEVERAL SUPERIOR OR MORE DESIRABLE CHARACTERISTICS THAN THE SWEEPERS OFFERED BY THE OTHER COMPANIES INVOLVED BUT THE ADVERTISED MATTER OF EACH OF THE COMPANIES CLAIMS SUPERIORITY OF ITS TYPE OF SWEEPER AND UNDOUBTEDLY EACH TYPE DOES HAVE CERTAIN INDIVIDUAL ADVANTAGES OVER THE OTHER TYPES. APPROPRIATE OFFICIALS OF THE GENERAL SERVICES ADMINISTRATION CONTACTED WITH REFERENCE TO THIS MATTER, WHILE ADMITTING THAT SIMILAR SPECIFICATIONS WERE USED BY THAT AGENCY IN AT LEAST ONE INSTANCE AT THE REQUEST OF THE REQUISITIONING AGENCY, ADVISED REPRESENTATIVES OF THIS OFFICE INFORMALLY THAT THEY ARE NOT AWARE OF ANY REASON WHY THE SWEEPERS OFFERED BY THE OTHER BIDDERS WOULD NOT ADEQUATELY AND SATISFACTORILY MEET THE ACTUAL NEEDS OF YOUR DEPARTMENT. AS ADDITIONAL EVIDENCE THAT TENNANT DOES NOT PRODUCE THE ONLY SWEEPER MEETING THE SERVICE REQUIREMENTS OF THE GOVERNMENT, THERE IS ON FILE IN THIS OFFICE NEGOTIATED CONTRACT NO. DA-11- 184-ENG-10049 DATED JANUARY 2, 1952, UNDER WHICH THE DEPARTMENT OF THE ARMY PURCHASED FROM THE WILSHIRE POWER COMPANY, 45 SWEEPERS, MODEL 1000.

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 WITHIN THE MINIMUM NEEDS REQUIRED, NOT THE MAXIMUM DESIRED. SEE W. A. SCOTT V. UNITED STATES, 44 C.CLS. 524; UNITED STATES V. BROOKRIDGE FARM, 111 FED. 2D 461; 15 COMP. GEN. 949; 16 ID. 225. THEREFORE, UNLESS IT CAN BE ESTABLISHED CONCLUSIVELY THAT THERE ARE NO OTHER MANUFACTURERS WHO CAN OR POSSIBLY COULD FURNISH A POWER SWEEPER MEETING THE MINIMUM NEEDS OF YOUR DEPARTMENT THE INSTANT PROCUREMENT SHOULD BE READVERTISED UNDER REVISED SPECIFICATIONS WHICH WOULD PERMIT OTHER BIDDERS SUFFICIENT LATITUDE TO MEET THE SPECIFIED REQUIREMENTS.