B-130149, SEP. 9, 1957

B-130149: Sep 9, 1957

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED DECEMBER 20. HAVE ALSO BEEN RECEIVED AND CONSIDERED. THERE WERE TRANSMITTED COPIES OF YOUR LETTERS OF THE SAME DATES TO THE DISTRICT OF COLUMBIA PROCUREMENT OFFICER. YOU CONTEND THAT THE SPECIFICATIONS FOR LIGHT STANDARDS ARE RESTRICTIVE AND PRACTICALLY ELIMINATE COMPETITION OR LIMIT IT TO TWO MANUFACTURERS (GENERAL ELECTRIC CORPORATION AND UNION METAL MANUFACTURING COMPANY) FOR "THE ENTIRE STREET LIGHTING BUSINESS OF THE DISTRICT.'. - WHICH ARE OCTAGONAL BUT NOT FLUTED. YOU ARE PRECLUDED FROM OBTAINING AN AWARD SINCE THE SPECIFICATIONS CALL FOR FLUTED STANDARDS. THAT THE MAST ARM ATTACHMENT SPECIFIED IS AN EXACT COPY OF A PATENTED DEVICE MANUFACTURED BY THE UNION METAL MANUFACTURING COMPANY.

B-130149, SEP. 9, 1957

TO KERRIGAN IRON WORKS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED DECEMBER 20, 1956, AND YOUR LETTER OF DECEMBER 21, ACKNOWLEDGED JANUARY 2, 1957, PROTESTING AGAINST THE PROVISIONS OF INVITATIONS NOS. 19075'S AND 19417-W ISSUED BY THE DISTRICT OF COLUMBIA GOVERNMENT FOR THE PROCUREMENT OF STREET LIGHTING EQUIPMENT. YOUR LETTERS OF JANUARY 3, FEBRUARY 15, AND FEBRUARY 26, 1957, HAVE ALSO BEEN RECEIVED AND CONSIDERED. WITH YOUR LETTERS OF DECEMBER 21, 1956, AND JANUARY 3, 1957, THERE WERE TRANSMITTED COPIES OF YOUR LETTERS OF THE SAME DATES TO THE DISTRICT OF COLUMBIA PROCUREMENT OFFICER.

IN YOUR LETTERS, YOU CONTEND THAT THE SPECIFICATIONS FOR LIGHT STANDARDS ARE RESTRICTIVE AND PRACTICALLY ELIMINATE COMPETITION OR LIMIT IT TO TWO MANUFACTURERS (GENERAL ELECTRIC CORPORATION AND UNION METAL MANUFACTURING COMPANY) FOR "THE ENTIRE STREET LIGHTING BUSINESS OF THE DISTRICT.' SPECIFICALLY, YOU STATE IN SUBSTANCE THAT ALTHOUGH YOUR LIGHTING STANDARDS --- WHICH ARE OCTAGONAL BUT NOT FLUTED--- WOULD BE SATISFACTORY FOR THE PURPOSES INTENDED, YOU ARE PRECLUDED FROM OBTAINING AN AWARD SINCE THE SPECIFICATIONS CALL FOR FLUTED STANDARDS; THAT THE MAST ARM ATTACHMENT SPECIFIED IS AN EXACT COPY OF A PATENTED DEVICE MANUFACTURED BY THE UNION METAL MANUFACTURING COMPANY; AND THAT THE SPECIFICATIONS USE THE TERMS "OCTAFLUTE" AND "MONATUBE," WHICH TERMS ARE TRADE-MARKS OF THE UNION METAL MANUFACTURING COMPANY.

IN RESPONSE TO A REQUEST BY THIS OFFICE, THE PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA HAS FURNISHED PERTINENT PAPERS AND HIS VIEWS IN THE MATTER UNDER DATE OF FEBRUARY 7, 1957. IN VIEW OF THE INFORMATION FURNISHED BY YOU AND BY THE DISTRICT OF COLUMBIA GOVERNMENT, THE APPROPRIATE DIVISION OF OUR OFFICE HAS CONDUCTED A RATHER EXTENSIVE INVESTIGATION OF THE MATTER, INCLUDING PERSONAL INTERVIEWS WITH REPRESENTATIVES OF YOUR COMPANY AND OFFICIALS OF THE DISTRICT OF COLUMBIA.

IN THE REPORT OF THE PRESIDENT OF THE BOARD OF COMMISSIONERS IT IS STATED THAT TO DATE ALL SUSPENSION TYPE LIGHTING STANDARDS IN THE DISTRICT OF COLUMBIA ARE OF AN EIGHT-SIDED FLUTED DESIGN INITIALLY SELECTED AND APPROVED BY THE FINE ARTS COMMISSION. INVITATION NO. 19075'S SPECIFIED FLUTED LIGHTING STANDARDS BUT AS A RESULT OF YOUR PROTEST ALL BIDS RECEIVED ON THAT INVITATION WERE REJECTED. AFTER RECEIVING YOUR PROTEST, THE BOARD OF COMMISSIONERS CONSIDERED THE MATTER IN ITS MEETING OF AUGUST 30, 1956, AND ISSUED A STATEMENT OF POLICY RELATING TO THE FUTURE PURCHASE OF LIGHTING STANDARDS, INCLUDING THE FOLLOWING SENTENCE:

"IN VIEW OF THE INTEREST OF THE COMMISSION OF FINE ARTS IN THE USE OF FLUTED POLES, ESPECIALLY IN THE MONUMENTAL AREAS OF THE DISTRICT OF COLUMBIA, THE COMMISSIONERS DECIDED THAT FLUTED POLES SHOULD CONTINUE TO BE USED IN SUCH MONUMENTAL AREAS AND FOR REPLACEMENTS IN EXISTING LINES OF FLUTED POLES, BUT THAT IN NEW INSTALLATIONS OUTSIDE OF MONUMENTAL AREAS BIDS BE SOLICITED ON OCTAGONAL, FLUTED (OCTOFLUTE), AND ROUND STEEL AND ALUMINUM POLES.'

THE NEW INVITATION NO. 19417-W WAS ISSUED ON DECEMBER 14, 1956, IN ACCORDANCE WITH THE QUOTED STATEMENT OF POLICY, INVITING BIDS ON TWO GROUPS OF LIGHTING STANDARDS, INCLUDING SPECIFIED PARTS SUCH AS BRACKETS AND LUMINAIRES, GROUP 1 COVERING FLUTED STEEL, ROUND STEEL, OCTAGONAL STEEL, FLUTED ALUMINUM, ROUND ALUMINUM, OR OCTAGONAL ALUMINUM, AND GROUP 2 --- FOR USE IN MONUMENTAL AREAS AND REPLACING FLUTED STANDARDS--- COVERING ONLY FLUTED STEEL AND FLUTED ALUMINUM STANDARDS.

IT IS REPORTED THAT AS A RESULT OF YOUR PROTEST AGAINST THE NEW INVITATION, THE OPENING DATE WAS EXTENDED FROM DECEMBER 28, 1956, TO JANUARY 4, 1957, AND BY ADDENDUM NO. 2 ALL CHANGES IN THE SPECIFICATIONS REQUESTED BY YOU WERE PERMITTED EXCEPT IN THE DESIGN OF MOUNTING BRACKETS AND IN THE REQUIREMENT FOR FLUTED STANDARDS UNDER GROUP 2.

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

IT APPEARS THAT BIDS WERE FIRST REQUESTED ON COMPLETE STANDARDS AS UNITS IN INVITATION NO. 18941'S ISSUED MAY 16, 1956, SUCH ACTION HAVING BEEN TAKEN BECAUSE OF THE FACT THAT IN RESPONSE TO A PRIOR INVITATION ISSUED FEBRUARY 3, 1954, THE GENERAL ELECTRIC COMPANY VOLUNTARILY SUBMITTED AN AGGREGATE BID FOR POLES AND LUMINAIRES, QUOTING A REDUCED PRICE FOR AN OVERALL AWARD, THUS INDICATING THAT REDUCED BIDS MIGHT BE OBTAINED ON FUTURE PROCUREMENTS BY REQUESTING BIDS ON COMPLETE STANDARDS. IN THE INSTANT MATTER, BIDS WERE INVITED ON COMPLETE STANDARDS AND ALSO ON STANDARDS AND LUMINAIRES SEPARATELY.

WITH RESPECT TO THE CONTENTION IN YOUR LETTER OF FEBRUARY 26, 1957, THAT YOUR BID INCLUDED A LOWER PRICE FOR WESTINGHOUSE LUMINAIRES THAN THE PRICE QUOTED BY THE WESTINGHOUSE ELECTRIC COMPANY FOR IDENTICAL LUMINAIRES, IT APPEARS THAT WHEN THE DISCOUNTS OFFERED ARE CONSIDERED, THE WESTINGHOUSE PRICE FOR LUMINAIRES WAS SUBSTANTIALLY LOWER THAN YOUR BID.

IN THE REPORT OF THE PRESIDENT OF THE BOARD OF COMMISSIONERS, IT IS STATED:

"WE WOULD LIKE TO POINT OUT THAT WHILE THE BASIS FOR REJECTING THE LOW AGGREGATE BID OF KERRIGAN IRON WORKS, INC., FOR GROUPS 1 AND 2 IS FAILURE TO COMPLY WITH THE FLUTED DESIGN REQUIREMENTS UNDER GROUP 2, THIS FIRM ALSO TOOK EXCEPTION TO SEVERAL OTHER SPECIFICATION REQUIREMENTS UNDER BOTH OF THESE GROUPS. THESE DEPARTURES FROM THE SPECIFICATIONS INCLUDE:

"1. A FLAT CAST POLE CAP, AS ILLUSTRATED ON THEIR DRAWING NO. 3 509, INSTEAD OF THE ORNAMENTAL POLE CAP SHOWN ON DISTRICT DRAWING NO. 2A, WHICH FORMED A PART OF OUR SPECIFICATIONS;

"2. KERRIGAN'S STANDARD POLE PLATE WITHOUT CABLE GUIDE, AS ILLUSTRATED ON THEIR DRAWING NO. 3-555, WHICH MEANS THE CABLE WILL REST ON THE SHARP EDGE OF THE POLE WHEN IT PASSES THROUGH THE APERTURE FOR THE CABLE. OUR SPECIFICATIONS REQUIRE A POLE PLATE WITH THE CABLE GUIDE AS ILLUSTRATED ON DISTRICT DRAWING NO. 2A. THIS PLATE IS NOT COVERED BY PATENT NO. 2,195,012 OR ANY OTHER EXISTING PATENT IRRESPECTIVE OF STATEMENTS CONTAINED IN THE LETTER FROM KERRIGAN IRON WORKS, DATED JANUARY 3, 1957, WHICH ACCOMPANIED THEIR BID. HOWEVER, THE MAST ARM MOUNTING BRACKET ILLUSTRATED ON OUR DRAWING NO. 3, WHICH ALSO FORMS A PART OF THE SPECIFICATIONS UNDER THIS INVITATION, IS COVERED BY THE PATENT REFERRED TO, ALTHOUGH IT IS OUR UNDERSTANDING THAT THIS PATENT WILL EXPIRE ON MARCH 26, 1957. THIS FACT WAS NOT KNOWN BY THE DISTRICT AT THE TIME SPECIFICATIONS WERE WRITTEN, NOR WAS THIS PARTICULAR DRAWING REFERRED TO BY KERRIGAN IRON WORKS, INC., IN THEIR LETTER OF DECEMBER 21, 1956. THIS LATTER DRAWING APPLIES ONLY TO ITEM 2 IN GROUP 1, WHICH CALLS FOR LIGHTING STANDARDS FOR USE IN ALLEYS. THE CABLE GUIDE INCORPORATED THEREIN PROVIDES PROTECTION FOR THE CABLE, FACILITATES WIRING AND PERMITS STANDARDIZATION SINCE IT IS IN USE ON ALL ALLEY POLES IN THE DISTRICT, WHICH MEANS LOWER COST IN THE MAINTENANCE OF INVENTORIES OF REPAIR PARTS AND MINIMIZES STOCKS TO BE CARRIED BY REPAIRMEN FOR REPAIRS OR REPLACEMENTS OF PARTS ON ALLEY POLES IN THE DISTRICT. THIS ITEM IS A VERY SMALL PART OF A LIGHTING STANDARD, AND IT IS OUR UNDERSTANDING THAT IT IS COMMON PRACTICE FOR MANUFACTURERS HOLDING PATENTS TO SELL SUCH SMALL PARTS TO THEIR COMPETITORS OR TO PERMIT THEM TO MANUFACTURE THESE SMALL ITEMS UNDER A LICENSE OR OTHER ARRANGEMENT. IN THIS CONNECTION, IT IS SIGNIFICANT TO NOTE THAT PFAFF AND KENDALL TAKES NO EXCEPTION TO THIS REQUIREMENT IN THEIR BID UNDER THIS INVITATION. ALSO, THE COMPTROLLER GENERAL OF THE UNITED STATES, IN HIS DECISION 34:336, STATES, "INVITATIONS FOR BIDS AND SPECIFICATIONS WHICH SET OUT THE MINIMUM NEEDS

OF THE GOVERNMENT * * * ARE NOT RESTRICTIVE OF COMPETITION MERELY BECAUSE THEY INCLUDE ARTICLES WHICH CAN BE MANUFACTURED ONLY UNDER A PATENTED PROCESS. * * * IT SHOULD BE POINTED OUT THAT THE GOVERNMENT OF THE UNITED STATES CANNOT BE LIMITED IN ITS PROCUREMENT ONLY TO THOSE ITEMS WHICH ARE NOT PATENTED OR AS TO WHICH NO PATENTED PROCESSES OR DEVICES ARE INVOLVED IN THEIR MANUFACTURE. AS A MATTER OF FACT, IF THE DEPARTMENTS OR AGENCIES OF THE GOVERNMENT WERE TO BE RESTRICTED TO THE PURCHASE OF ONLY NON- PATENTED ARTICLES ITS SOURCES OF SUPPLY OF NEEDED ARTICLES WOULD INDEED BE LIMITED, ESPECIALLY IN THE PRESENT DAY OR MODERN FIELD OF COMMERCIAL MANUFACTURE.'

"3. DRAWING NO. 3-509 OF KERRIGAN IRON WORKS, INC., INDICATES THAT THE SHAFT IS WELDED TO THE ANCHOR BASE ONLY AT THE EXTREME TOP OF THE ANCHOR BASE. DRAWING NO. 2A, WHICH FORMS A PART OF DISTRICT SPECIFICATIONS, INDICATES THAT CONTINUOUS CIRCUMFERENTIAL WELDS ARE TO BE MADE AT THE EXTREME BOTTOM OF THE SHAFT ON THE INSIDE OF THE SHAFT AND AT THE TOP OF THE BASE 2 INCHES ABOVE THE BOTTOM OF THE SHAFT. THIS INSURES POSITIVE LOCKING OF THE SHAFT IN THE BASE THROUGH A TELESCOPING ARRANGEMENT, SECURED AT BOTH ENDS OF THE TELESCOPE BY CONTINUOUS WELDS.

"4. KERRIGAN STIPULATES CERTAIN CATALOG NUMBERS APPLYING TO EACH LIGHTSTANDARD IN HIS BID. HE DOES NOT PROPOSE ANY EXCEPTIONS TO THESE CATALOG NUMBERS. REFERENCE TO HIS CATALOG DISCLOSES THAT HIS STANDARDS ARE PAINTED WITH ONE COAT OF RED OXIDE PRIMER INSIDE AND OUTSIDE. DISTRICT SPECIFICATIONS CALLED FOR CLEANING AND TWO COATS OF PAINT INSIDE AND OUTSIDE. THE TYPE OF PAINT IS ALSO STIPULATED, WHEREAS IN KERRIGAN'S BID AND IN HIS CATALOG, WHICH APPARENTLY APPLIES TO HIS BID, THERE IS NO INDICATION AS TO THE TYPE OF PAINT THAT WILL BE USED. THE FACT THAT KERRIGAN IS OFFERING HIS STANDARD PRODUCTION, AS ILLUSTRATED IN HIS CATALOG, IS EMPHASIZED BY HIS STATEMENT IN HIS LETTER OF JANUARY 3, 1957, WHICH ACCOMPANIES HIS BID AND WHICH STATES,"WE ARE BIDDING OUR STANDARD OCTAGONAL SHAFTS ON ITEMS IN GROUPS II.'"

IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE MINIMUM NEED OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THE BIDS RECEIVED ARE RESPONSIVE TO SUCH SPECIFICATIONS IS PRIMARILY A RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE REQUIRING THE MATERIALS OR EQUIPMENT. 21 COMP. GEN. 1132, 1136. ALSO, THE QUESTION AS TO WHETHER EQUIPMENT SUCH AS HERE INVOLVED IS NECESSARY TO MEET THE REQUIREMENTS OF THE GOVERNMENT IS ONE PRIMARILY FOR DETERMINATION BY THOSE CHARGED WITH OPERATING RESPONSIBILITY. IF THERE ARE REASONABLE AND LEGITIMATE REASONS FOR REQUIRING A PARTICULAR TYPE OR KIND OF A NEEDED ITEM, THE FACT THAT ONLY ONE MANUFACTURER PRODUCES THE PARTICULAR KIND DESIGNATED DOES NOT IN ITSELF MAKE THE INVITATION UNDULY RESTRICTIVE. THIS CASE IT APPEARS THAT FLUTED STANDARDS ARE ACTUALLY MANUFACTURED ONLY BY UNION METAL MANUFACTURING COMPANY, BUT THERE APPEAR TO BE NO RESTRICTIONS ON MANUFACTURE OF SIMILAR STANDARDS BY OTHERS. IT IS CONCLUDED THAT THE REQUIREMENT OF FLUTED STANDARDS FOR USE WITH PRESENTLY INSTALLED STANDARDS OF THAT TYPE, AND FOR USE IN MONUMENTAL AREAS, PROPERLY MAY BE REGARDED AS CONSISTENT WITH THE ACTUAL NEEDS OF THE DISTRICT OF COLUMBIA IN VIEW OF THE SPECIAL SITUATION EXISTING THERE, AND WE CANNOT SAY THAT THE DECISION OF THE COMMISSIONERS IN THAT RESPECT WAS WITHOUT REASONABLE GROUNDS.

IN YOUR LETTER OF JANUARY 3, 1957, TO THE DISTRICT OF COLUMBIA PROCUREMENT OFFICER, YOU QUOTE PART OF A SENTENCE FROM A LETTER DATED OCTOBER 20, 1956, FROM THE SECRETARY OF THE FINE ARTS COMMISSION AS FOLLOWS:

"IN DESIGN, THE FLUTED OR OCTAGONAL CROSS-SECTION IS PREFERRED TO THE ROUND, PLAIN SECTION.'

HOWEVER, IN THE SAME LETTER THE FINE ARTS COMMISSION STATED FURTHER:

"ON THE WHOLE, THE MEMBERS FELT THAT THE LIGHT STANDARDS ON THE ROADWAYS TO THE SOUTH OF THE WASHINGTON MONUMENT WERE MORE SATISFACTORY IN DESIGN THAN THE SAMPLES SET UP OPPOSITE THE COMMERCE DEPARTMENT BUILDING.

"* * * THE MEMBERS CONSIDER THE DESIGN OF THE LIGHTING STANDARDS A MATTER OF THE UTMOST IMPORTANCE TO THE APPEARANCE OF THE CITY OF WASHINGTON.'

IN THE REPORT OF THE PRESIDENT OF THE BOARD OF COMMISSIONERS IT IS STATED:

"THE SAMPLES SET UP OPPOSITE THE COMMERCE DEPARTMENT BUILDING WERE THE OCTAGONAL TYPE FURNISHED BY KERRIGAN IRON WORKS, INC., WHEREAS THE LIGHTING STANDARDS ON THE ROADWAYS SOUTH OF THE WASHINGTON MONUMENT ARE THE FLUTED TYPE.'

SUBSEQUENTLY, IT HAS BEEN STATED BY DISTRICT OF COLUMBIA OFFICIALS THAT THE QUOTED STATEMENT IS ERRONEOUS AND THAT ACTUALLY 16 SAMPLE STANDARDS OF FOUR MANUFACTURERS WERE SET UP ON 14TH STREET OPPOSITE THE COMMERCE DEPARTMENT BUILDING AND VIEWED BY THE FINE ARTS COMMISSION IN SEPTEMBER AND OCTOBER 1955, SUCH STANDARDS BEING OF OCTAGONAL, FLUTED AND ROUND DESIGN. IT APPEARS, THEREFORE, THAT THE COMMISSION'S PREFERENCE FOR THE STANDARDS "SOUTH OF THE WASHINGTON MONUMENT" WAS BASED ON SOME FEATURE OTHER THAN THEIR OCTAGONAL, FLUTED, OR ROUND DESIGN. IN ANY EVENT, THE LEGAL RESPONSIBILITY FOR FIXING THE REQUIREMENTS IS IN THE BOARD OF COMMISSIONERS, AND THE FINE ARTS COMMISSION'S FUNCTION IN THE MATTER SEEMS TO BE ADVISORY ONLY. IT APPEARS THAT THE INSTALLATION OF UNIFORM STREET LIGHTING STANDARDS WAS BEGUN IN THE DISTRICT OF COLUMBIA FOLLOWING THEIR APPROVAL BY THE FINE ARTS COMMISSION IN 1924. THE STANDARDS WERE AGREED UPON BY THE DISTRICT OF COLUMBIA GOVERNMENT, THE ARCHITECT OF THE CAPITOL, THE NATIONAL CAPITAL PARKS, THE BUREAU OF STANDARDS, AND THE PUBLIC UTILITY COMPANY. THEY WERE OF THE UPRIGHT TYPE WITH THE LIGHTS MOUNTED DIRECTLY ON TOP OF THE POLES OR ON ARMS EXTENDING FROM THE POLES. THE POLES WERE CAST IRON AND HAD 16 FLUTED SIDES. STEEL PENDANT TYPE STANDARDS SUCH AS THOSE COVERED BY THE CONTRACT AWARDED TO WESTINGHOUSE ELECTRIC CORPORATION UNDER THE INVITATION HERE IN QUESTION WERE FIRST INSTALLED BY THE DISTRICT OF COLUMBIA GOVERNMENT IN 1949, ALONG ROADWAYS IN AN AREA NEAR THE SOUTH END OF THE 14TH STREET OVERPASS, FOLLOWING THEIR APPROVAL BY THE FINE ARTS COMMISSION. IN ALL, APPROXIMATELY 4,000 OF SUCH PENDANT TYPE STANDARDS HAVE BEEN INSTALLED, ALL OF WHICH WERE MANUFACTURED BY UNION METAL MANUFACTURING COMPANY, CANTON, OHIO, AND PURCHASED FROM DISTRIBUTORS OF THAT COMPANY, WHICH IS THE ONLY MANUFACTURER OF SUCH FLUTED STANDARDS.

THERE IS DISAGREEMENT OR UNCERTAINTY AS TO WHETHER THE 1949 APPROVAL BY THE COMMISSION WAS INTENDED TO APPLY ONLY TO THE AREA ABOVE REFERRED TO OR TO FUTURE INSTALLATIONS IN OTHER AREAS AS WELL; ALSO, AS TO WHAT CONSTITUTES THE "MONUMENTAL AREA.' HOWEVER, IT APPEARS TO BE AGREED THAT THE FINE ARTS COMMISSION OCCUPIES ONLY AN ADVISORY POSITION AS TO THE TYPE OF LIGHTING EQUIPMENT PURCHASED BY THE DISTRICT OF COLUMBIA. SECTION 7- 701 OF THE DISTRICT OF COLUMBIA CODE, 1951 EDITION, PROVIDES THAT "EACH LAMP-POST AND ITS EQUIPMENT SHALL BE OF A DESIGN AND QUALITY ACCEPTABLE TO THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA.'

IT IS REPORTED THAT BY MEMORANDUM OF NOVEMBER 8, 1956, FOLLOWING RECEIPT OF A LETTER DATED OCTOBER 11, 1956, FROM THE CHAIRMAN OF THE FINE ARTS COMMISSION, EXPRESSING DISSATISFACTION WITH CERTAIN FEATURES OF THE LIGHTING STANDARDS BEING INSTALLED, THE DISTRICT OF COLUMBIA ENGINEER COMMISSIONER DIRECTED THE FORMATION OF A COMMITTEE TO DETERMINE THE MOST SUITABLE TYPE OF LIGHTING STANDARDS AND LUMINAIRES FOR USE IN THE DISTRICT OF COLUMBIA, INCLUDING THE MONUMENTAL AREA, AND THAT SUCH COMMITTEE HAS BEEN FORMED. OUR OFFICE IS SUGGESTING TO THE PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA THAT THE COMMITTEE SHOULD INCLUDE AT LEAST ONE REPRESENTATIVE OF MANUFACTURERS OR DISTRIBUTORS OTHER THAN THOSE PRIMARILY INTERESTED IN USING THE PRODUCT OF THE UNION METAL MANUFACTURING COMPANY.

FOR THE REASONS ABOVE INDICATED, IT IS NOT ESTABLISHED THAT THE SPECIFICATIONS IN QUESTION WERE IN FACT UNDULY RESTRICTIVE AND NOT JUSTIFIED BY THE EXISTENCE OF REASONABLE NEEDS OF THE DISTRICT OF COLUMBIA IN THE LIGHT OF THE SPECIAL USES OR LOCATIONS FOR WHICH THE LIGHTING STANDARDS ARE INTENDED AND THE SPECIFIC STATUTORY AUTHORITY OF THE COMMISSIONERS. SEE 30 COMP. GEN. 368. ACCORDINGLY, THERE APPEARS NO PROPER BASIS FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE DISTRICT OF COLUMBIA GOVERNMENT IN ACCEPTING THE LOWEST RESPONSIBLE BID CONFORMING TO THE SPECIFICATIONS.