B-136023, AUG. 8, 1958

B-136023: Aug 8, 1958

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IS RESTRICTIVE. A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER OF MAY 6. IT IS STATED THAT THE REGULAR COMMERCIAL PRODUCTS OF THREE OF YOUR COMPETITORS WERE WRITTEN INTO THE SPECIFICATION IN THREE SEPARATE CLASSES. IT IS FURTHER STATED: "WE HAVE SHOWN CONCLUSIVELY THAT THE STANDARD COMMERCIAL PRODUCTION IN EACH CLASS OF EACH OF OUR THREE COMPETITORS HAS BEEN MINUTELY FOLLOWED IN THE PRESENT INTERIM SPECIFICATION. WHO HAVE USED WELKEE PRODUCTS WITH SATISFACTION FOR SO MANY YEARS. IN RESPONSE TO YOUR ALLEGATION THAT THE SPECIFICATION IS PRECLUSIVE. AT LEAST TWO BIDS WERE RECEIVED ON EVERY ITEM EXCEPT KEY RACK (PANEL) TYPE IV. EQUIPPED WITH 10 AND 28 HOOKS WHICH WAS BID SOLELY BY THE ALADDIN HARDWARE COMPANY.

B-136023, AUG. 8, 1958

TO P. O. MOORE, INC.:

WE REFER TO YOUR TELEGRAMS OF MAY 2 AND MAY 8, 1958, AND YOUR LETTERS OF MAY 6 AND MAY 9, 1958, WITH ENCLOSURES, PROTESTING THAT INTERIM FEDERAL SPECIFICATION AA-C-0030B/GSA-FSS), APPLICABLE TO AN INVITATION ON FEDERAL SUPPLY SCHEDULE CLASS 71, PART V, SUPPLEMENT 2, IS RESTRICTIVE.

THE INVITATION ISSUED APRIL 17, 1958, SOLICITS BIDS FOR VARIOUS TYPES OF KEY CABINETS IN ACCORDANCE WITH THE ABOVE-CITED SPECIFICATION. IN A LETTER OF MAY 1, 1958, TO THE ASSOCIATE COMMISSIONER, GSA, A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER OF MAY 6, IT IS STATED THAT THE REGULAR COMMERCIAL PRODUCTS OF THREE OF YOUR COMPETITORS WERE WRITTEN INTO THE SPECIFICATION IN THREE SEPARATE CLASSES. IT IS FURTHER STATED:

"WE HAVE SHOWN CONCLUSIVELY THAT THE STANDARD COMMERCIAL PRODUCTION IN EACH CLASS OF EACH OF OUR THREE COMPETITORS HAS BEEN MINUTELY FOLLOWED IN THE PRESENT INTERIM SPECIFICATION.

"THIS OBVIOUSLY PUTS P. O. MOORE AT A GREAT DISADVANTAGE AND IT DEPRIVES THE GOVERNMENT AGENCIES, WHO HAVE USED WELKEE PRODUCTS WITH SATISFACTION FOR SO MANY YEARS, OF BEING ABLE TO BUY EXTENSIONS TO THEIR PRESENT SYSTEMS FROM THE SCHEDULE.

"IN ORDER TO COMPETE, TELKEE WOULD BE OBLIGED TO RETOOL TO MANUFACTURE PRODUCTS PATTERNED AFTER STANDARD COMMERCIAL PRODUCTION OF EACH OF THE THREE COMPETITORS.'

IN RESPONSE TO YOUR ALLEGATION THAT THE SPECIFICATION IS PRECLUSIVE, THE ADMINISTRATIVE REPORT ON THE MATTER STATES THAT, IN RESPONSE TO THE INVITATION, AT LEAST TWO BIDS WERE RECEIVED ON EVERY ITEM EXCEPT KEY RACK (PANEL) TYPE IV. CLASS A, EQUIPPED WITH 10 AND 28 HOOKS WHICH WAS BID SOLELY BY THE ALADDIN HARDWARE COMPANY, WHICH APPEARS TO HAVE SOME CONNECTION WITH YOUR FIRM. IT IS FURTHER STATED THAT WHILE YOUR FIRM DID NOT BID ON ANY ITEM IN THE INVITATION, THE SPECIFICATION REFLECTS SIZES, CAPACITIES AND OTHER CHARACTERISTICS OF KEY CABINETS AND SYSTEMS REQUIRED BY GOVERNMENT AGENCIES AND PRODUCED BY COMPETITIVE SUPPLIERS INCLUDING YOUR FIRM. THE ADMINISTRATIVE REPORT CONCLUDES THAT SINCE THE CABINETS AND SYSTEMS CAN BE PROCURED COMPETITIVELY UNDER THE SPECIFICATION, IT CANNOT BE REGARDED AS PRECLUSIVE.

WITH REFERENCE TO YOUR STATEMENT THAT THE STANDARD COMMERCIAL PRODUCTS OF THREE OF YOUR COMPETITORS WERE WRITTEN INTO THE SPECIFICATION, THE ADMINISTRATIVE REPORT APPENDS A CHART SHOWING MINIMUM CAPACITIES SPECIFIED FOR RESPECTIVE TYPES, CLASSES AND STYLES OF CABINETS AND THE CAPACITIES OF THE PRODUCTS OFFERED BY THE VARIOUS SUPPLIERS. THESE CHARTS INDICATE THAT THE MINIMUM CAPACITY SPECIFIED IN EACH INSTANCE WAS THE CAPACITY OF THE SMALLEST REGULAR COMMERCIALLY PRODUCED UNIT CONSIDERED ACCEPTABLE FOR THE PARTICULAR TYPE, CLASS AND STYLE OF CABINET OR SYSTEM. WHILE IT IS TRUE THAT IN SOME INSTANCES THE MINIMUM CAPACITY SPECIFIED EQUALS THAT OF THE PRODUCT PRODUCED BY ONE OF YOUR COMPETITORS AND IS LESS THAN THE CAPACITY OF YOUR OWN EQUIVALENT PRODUCT, IT IS ALSO TRUE THAT, IN OTHER INSTANCES, THE MINIMUM CAPACITY SPECIFIED IS EQUAL TO THE CAPACITY OF YOUR OWN PRODUCT AND IS LESS THAN THE CAPACITY OF THE EQUIVALENT PRODUCT PRODUCED BY ONE OR MORE OF YOUR COMPETITORS.

IN 32 COMP. GEN. 384, 387, IT IS STATED:

"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. * * *"

IT HAS ALSO BEEN CONSISTENTLY HELD THAT THE DRAFTING OF PROPER SPECIFICATIONS IS THE PROVINCE OF THE CONTRACTING AGENCY RATHER THAN OF OUR OFFICE BUT THAT IT IS WITHIN OUR JURISDICTION TO DETERMINE WHETHER THE SPECIFICATIONS ARE SO RESTRICTIVE AS TO PROHIBIT COMPETITIVE BIDDING. COMP. GEN. 554. SINCE IT APPEARS FROM THE FOREGOING THAT THE SPECIFICATIONS HAVE BEEN DELIBERATELY DRAFTED TO PERMIT ALL RESPONSIBLE PRODUCERS TO BID THEIR REGULAR COMMERCIAL PRODUCTS, AND IN THE ABSENCE OF ANY SHOWING THAT THE SPECIFICATIONS REFLECT MORE THAN THE MINIMUM NEEDS OF THE GOVERNMENT, THERE IS NO BASIS UPON WHICH WE MAY CONCLUDE THAT THE PROCUREMENTS MAY NOT PROPERLY BE EFFECTED UNDER THE TERMS OF THE SPECIFICATIONS.