B-136991, OCTOBER 10, 1958, 38 COMP. GEN. 291

B-136991, OCTOBER 10, 1958, 38 COMP. GEN. 291

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE A SPECIFICATION WHICH REQUIRES THE FURNISHING OF EQUIPMENT OF A PARTICULAR MANUFACTURER "OR EQUAL" WITHOUT DESCRIBING THE PARTICULAR FEATURES CONSIDERED ESSENTIAL TO THE NEEDS OF THE PROCUREMENT AGENCY, ALTHOUGH THE TYPE OF EQUIPMENT IS STANDARD IN THE TRADE AND THE AGENCY AS THE RESULT OF PREVIOUS PROCUREMENT COULD HAVE DESCRIBED ITS ACTUAL NEEDS WITH PARTICULARITY, IS RESTRICTIVE OF COMPETITION AND THE PROCUREMENT SHOULD BE READVERTISED UNDER REVISED SPECIFICATIONS WHICH WOULD PERMIT MORE BIDDERS A FAIR OPPORTUNITY TO MEET THE SPECIFICATIONS. NEITHER AN ADMINISTRATIVE DETERMINATION THAT THE SAMPLE OFFERED PURSUANT TO A SPECIFICATION WHICH CALLED FOR AN ARTICLE OF A SPECIFIED MANUFACTURER "OR EQUAL" WAS NOT EQUAL TO THE ARTICLE SPECIFIED, NOR THE REFUSAL OF THE PROCUREMENT AGENCY TO GRANT THE BIDDER ADDITIONAL TIME TO SUBMIT ANOTHER SAMPLE IN VIEW OF THE SHORT DELIVERY SCHEDULE FURNISHES A BASIS FOR LEGAL OBJECTION OR INDICATES ANY IMPROPRIETY.

TO THOMAS B. NOLAN, DEPARTMENT OF THE INTERIOR, OCTOBER 10, 1958:

REFERENCE IS MADE TO LETTER OF AUGUST 21, 1958, FROM THE ACTING DIRECTOR, FURNISHING A REPORT IN RESPONSE TO OUR LETTER OF AUGUST 7, 1958, TO YOU, RELATIVE TO THE PROTEST OF THE INSTRUMENTS CORPORATION AGAINST THE TERMS AND PROVISIONS OF INVITATION FOR BIDS NO. 2619 AND TO THE REJECTION OF ITS BID FOR FURNISHING TRACING TABLES TO YOUR AGENCY.

THE INVITATION, AS AMENDED BY ADDENDUMS NOS. 1 AND 2, DATED MAY 29 AND JUNE 4, 1958, REQUESTED BIDS, TO BE OPENED JUNE 11, 1958, FOR FURNISHING TO THE FOUR DESTINATIONS INDICATED, AS ITEMS NOS. 1, 2, 3 AND 4, A TOTAL OF 100 " UNIVERSAL FOOT-READING TRACING IT AND LOMB CATALOG NO. 53-14-76- 02, OR EQUAL," DELIVERY THEREOF TO BE MADE WITHIN 240 DAYS. THE INVITATION CONTAINED THE FOLLOWING PROVISIONS REGARDING CUTS AND DESCRIPTION AND SAMPLES OF INSTRUMENTS PROPOSED TO BE FURNISHED:

CUTS AND DESCRIPTION: EACH BIDDER SHALL FURNISH WITH HIS BID CUTS AND DESCRIPTION OF THE EQUIPMENT HE PROPOSES TO FURNISH. FAILURE TO SUBMIT CUTS AND DESCRIPTION AS REQUESTED SHALL BE SUFFICIENT REASON FOR THE REJECTION OF THE BID.

SAMPLES: AFTER BIDS ARE OPENED THE RIGHT IS RESERVED TO REQUIRE ANY OR ALL BIDDERS TO SUBMIT SAMPLES OF THE ITEMS THEY PROPOSE TO SUPPLY. THE FAILURE OF A BIDDER TO SUBMIT A SAMPLES WITHIN 20 CALENDAR DAYS FROM THE DATE OF RECEIPT OF A NOTICE TO FURNISH A SAMPLE SHALL BE DEEMED A SUFFICIENT REASON FOR THE REJECTION OF THE BID.

IT APPEARS THAT BIDS FOR FURNISHING THE ENTIRE QUANTITY OF TRACING TABLES CALLED FOR UNDER THE INVITATION WERE RECEIVED FROM THREE CONCERNS IN AMOUNTS AS FOLLOWS:

CHART

BIDDER AMOUNT BAUSCH AND LOMB OPTICAL CO.--------------------------- $57,736.00 GORDON ENTERPRISES-------------------------------------- 56,432.38 THE INSTRUMENTS CORPORATION----------------------------- 43,882.06

BAUSCH AND LOMB'S BID, OF COURSE, INDICATED THAT IT PROPOSED TO FURNISH THE FIRM'S TRACING TABLE DESCRIBED IN THE INVITATION. GORDON ENTERPRISES INDICATED THAT IT PROPOSED TO FURNISH ITS MODEL NO. 117GE, AND THE INSTRUMENTS CORPORATION ITS MODEL NO. 5112.

BY LETTER OF JUNE 19, 1958, THE ASSISTANT PROCUREMENT OFFICER OF YOUR AGENCY, AFTER ADVISING THE INSTRUMENTS CORPORATION THAT IT HAD SUBMITTED THE LOW BID, REQUESTED THAT IT FURNISH PROMPTLY THE CUTS AND DESCRIPTION OF ITS INSTRUMENT AND THAT IT ALSO FURNISH, WITHIN 20 CALENDAR DAYS,"A SAMPLE OF THE 5112 TRACING TABLE, IDENTICAL TO THE INSTRUMENTS YOU PROPOSE TO FURNISH IF AWARDED A SUBSEQUENT CONTRACT.'

A SAMPLE INSTRUMENT, TOGETHER WITH CUTS AND DESCRIPTION, WAS DELIVERED TO THE PROCUREMENT OFFICER OF YOUR AGENCY BY A REPRESENTATIVE OF THE BIDDER ON JULY 10, 1958, WITH AN EXPLANATORY LETTER OF THE SAME DATE. IN THE LETTER, THE BIDDER STATED THAT SINCE IT HAD BEEN "CAUGHT" WITHOUT TRACING TABLE IN STOCK, IT HAD BEEN NECESSARY TO MANUFACTURE THE SAMPLE IN GREAT HASTE AND THAT IT WAS NOT, THEREFORE, TRULY REPRESENTATIVE OF THE TABLES WHICH IT PROPOSED TO FURNISH,"ALTHOUGH IT MEETS REQUIREMENTS OF YOUR SPECIFICATIONS.' THE BIDDER REQUESTED THAT IT BE ALLOWED AN ADDITIONAL 40 DAYS WITHIN WHICH TO SUBMIT A SAMPLE INSTRUMENT INCORPORATING THE LATEST IMPROVEMENTS IN THE INDUSTRY, IF THAT WAS DESIRED. IN THIS CONNECTION, THE BIDDER STATED THAT IT CONSIDERED THE SPECIFICATIONS TO BE RESTRICTIVE IN PROVIDING THAT A SAMPLE OF THE TRACING TABLES PROPOSED TO BE FURNISHED HAD TO BE SUBMITTED WITHIN 20 DAYS FROM THE AGENCY'S REQUEST THEREFOR, IN THAT THE REQUIREMENT "COULD ONLY BE FULFILLED BY ONE MANUFACTURER WHO WOULD REASONABLY BE EXPECTED TO HAVE THE EXACT TABLE DESIRED IN STOCK.'

BY LETTER OF JULY 24, 1958, THE EXECUTIVE OFFICER OF THE GEOLOGICAL SURVEY ADVISED THE BIDDER THAT THE SAMPLE INSTRUMENT SUBMITTED WITH THE ABOVE LETTER HAD BEEN REJECTED BY THE AGENCY'S BRANCH OF RESEARCH AND DESIGN AND FOUND NOT TO BE EQUAL TO THE BAUSCH AND LOMB CATALOG NO. 53 14- 76-02 SPECIFIED IN THE INVITATION FOR THE REASONS DETAILED IN THE AGENCY'S LETTER; ALSO, THAT SINCE ITS REQUEST FOR 40 ADDITIONAL DAYS WITHIN WHICH TO SUBMIT A FURTHER SAMPLE WAS CONSIDERED UNREASONABLE, ITS BID WAS REJECTED.

IN ITS LETTERS OF AUGUST 1, 1958, TO US AND TO YOUR AGENCY, WITH REFERENCE TO THE MATTER, THE INSTRUMENTS CORPORATION REITERATES ITS CONTENTION THAT THE SAMPLE INSTRUMENT WHICH IT SUBMITTED WAS EQUAL TO THE BAUSCH AND LOMB MODEL AND THAT, IN ANY EVENT, IT SHOULD HAVE BEEN ALLOWED ADDITIONAL TIME WITHIN WHICH TO SUBMIT A SAMPLE MODIFIED TO MEET THE OBJECTIONS SET FORTH IN THE AGENCY'S LETTER OF JULY 24, SINCE, AS THE BIDDER CONTENDS, THE 20-DAY LIMITATION WAS UNREASONABLE WHEN CONSIDERED IN THE LIGHT THAT THE SUCCESSFUL BIDDER WAS GIVEN 240 DAYS WITHIN WHICH TO DELIVER THE SUPPLIES.

WE FIND NO BASIS FOR QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT THE INSTRUMENT OFFERED BY THE INSTRUMENTS CORPORATION WAS NOT THE "EQUAL" OF THE ARTICLE SPECIFIED. NOR, UNDER THE TERMS OF THE INVITATION, DO WE FIND THAT THERE WAS ANY IMPROPRIETY IN THE REFUSAL OF FURTHER TIME TO PERMIT SUBMISSION OF A SECOND SAMPLE--- ALTHOUGH THERE MAY BE SOME QUESTION AS TO WHETHER THE REQUEST FOR SUBMISSION OF A SAMPLE PRIOR TO EXAMINATION OF THE BIDDER'S DESCRIPTIVE LITERATURE MAY NOT HAVE BEEN LIKELY TO SUBJECT THE BIDDER TO UNNECESSARY EXPENSE. HOWEVER, THERE WOULD APPEAR TO BE A SERIOUS QUESTION AS TO WHETHER THE SPECIFICATIONS, BY CALLING FOR A DESIGNATED PROPRIETARY ARTICLE, OR EQUAL, WERE UNNECESSARILY RESTRICTIVE OF COMPETITION, OR WERE JUSTIFIED BY ANY VALID NEED OF THE SERVICE.

AS YOU WELL KNOW, THE DESIRE ON THE PART OF YOUR AGENCY FOR A PARTICULAR MAKE OF TRACING TABLE IS NOT OF ITSELF SUFFICIENT JUSTIFICATION FOR THE PURCHASE THEREOF TO THE EXCLUSION OF OTHER MAKES, IF EQUALLY ADAPTABLE TO THE NEEDS OF THE SERVICE. 16 COMP. GEN. 171, 173. IT IS RECOGNIZED THAT IN CERTAIN CASES DIFFICULTIES MAY BE EXPERIENCED IN DESCRIBING WHAT IS DESIRED IN INVITATIONS FOR BIDS AND THAT IN SUCH CASES THE USE OF THE NAME OF THE MAKER OF AN ITEM IN AN INVITATION TO BID, FOLLOWED BY THE WORDS "OR EQUAL," HAS BEEN APPROVED, BUT WITH THE UNDERSTANDING THAT IT SHOULD BE LIMITED TO EXCEPTIONAL CASES. WE HAVE CONSTRUED THE TERM "OR EQUAL," WHEN USED IN THIS SENSE, TO MEAN THAT AN ALTERNATE ITEM MUST BE EQUAL TO THE PRODUCT SPECIFIED, INSOFAR AS THE NEEDS OF THE AGENCY ARE CONCERNED, BUT NOT NECESSARILY AN EXACT DUPLICATE THEREOF IN DETAIL OR PERFORMANCE. 124587, DECEMBER 5, 1955; A-65465, NOVEMBER 9, 1935. HOWEVER, THE NAMING OF A PARTICULAR MAKE OF ARTICLE EVEN WITH QUALIFYING WORDS AS "OR EQUAL" SHOULD BE AVOIDED WHEN IT IS REASONABLY POSSIBLE TO DESCRIBE THE NEEDS OF THE GOVERNMENT IN SPECIFICATIONS WITH SUFFICIENT CLARITY TO APPRISE PROSPECTIVE BIDDERS OF WHAT IS REQUIRED. SEE 10 COMP. GEN. 555.

RELATIVE TO THE REASON FOR USING BRAND NAME SPECIFICATIONS IN THE PRESENT INSTANCE, THE CONTRACTING OFFICER STATES IN HIS ADMINISTRATIVE FINDING OF AUGUST 19, 1958:

THE SURVEY, THROUGH THE YEARS, HAS PURCHASED AND TESTED TRACING TABLES MANUFACTURED BY THE INSTRUMENTS CORPORATION, BAUSCH AND LOMB OPTICAL COMPANY, WILLIAMSON COMPANY OF ENGLAND AND THE ZEISS COMPANY OF GERMANY, WE HAVE ALSO TESTED A TRACING TABLE MANUFACTURED BY THE ABRAMS INSTRUMENT COMPANY. OF ALL THE TRACING TABLES TESTED TO DATE THE SURVEY HAS NOTED A MARKED SUPERIORITY IN THE BAUSCH AND LOMB TRACING TABLE IN FULFILLING THE EXACTING DEMANDS MADE UPON THE INSTRUMENT BY THE SURVEY MAPPING PROCESS. FOR THIS REASON THE BAUSCH AND LOMB TRACING TABLE CATALOG NO. 53-14-76-02, OR EQUAL, WAS SPECIFIED IN THE INVITATION FOR BIDS.

SINCE A TRACING TABLE OF THE TYPE BEING PROCURED APPEARS TO BE A MORE OR LESS STANDARD ARTICLE IN THE TRADE, WITH WHICH, AS A RESULT OF ITS EXPERIENCE OVER THE YEARS, THE GEOLOGICAL SURVEY HAS BECOME THOROUGHLY FAMILIAR, IT IS NOT UNDERSTOOD WHY IT WOULD NOT HAVE BEEN POSSIBLE, OR PRACTICAL, TO DESCRIBE THE ACTUAL NEEDS TO THE SURVEY WITH RESPECT TO A TRACING TABLE IN SPECIFICATIONS WHICH SET FORTH THE PARTICULAR FEATURES IN SUCH AN INSTRUMENT THAT THE AGENCY DEEMED NECESSARY. THIS WOULD HAVE ENABLED PROSPECTIVE BIDDERS THE BETTER TO DETERMINE WHETHER THEY COULD MEET THE NEEDS OF THE AGENCY, AND WHAT, IF ANY, MODIFICATIONS MIGHT BE CALLED FOR IN THEIR STANDARD OR CUSTOMARY PRODUCTION MODELS, AND COMPETITION IN THE PROCUREMENT PRESUMABLY WOULD HAVE BEEN BROADENED. THIS CONNECTION, IT IS NOTED THAT, WHILE INVITATIONS WERE SENT TO 14 PROSPECTIVE BIDDERS, ONLY THREE BIDS WERE RECEIVED IN RESPONSE THERETO, ONE OF WHICH WAS FROM THE MANUFACTURER OF THE PARTICULAR MAKE OF INSTRUMENT SPECIFIED AND ANOTHER OF WHICH, THAT OF THE INSTRUMENTS CORPORATION, WAS FOUND NONRESPONSIVE BY REASON OF VARIOUS DEFICIENCIES AS TO REQUIREMENTS WHICH APPARENTLY COULD HAVE BEEN STATED IN THE INVITATION BUT WERE NOT.

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 NEEDS REASONABLY REQUIRED, NOT THE MAXIMUM DESIRED. SEE 32 COMP. GEN. 384, 387, CITING COURT CASES. FOR THE REASONS HEREINABOVE INDICATED, WE DO NOT FEEL THAT THE INVITATION INVOLVED MAY BE SAID TO HAVE MET THESE REQUIREMENTS.

ACCORDINGLY, IN THE ABSENCE OF A DEFINITE FINDING BY YOUR AGENCY THAT SUCH COURSE OF ACTION WOULD NOT BE IN THE INTERESTS OF THE GOVERNMENT, THE INSTANT PROCUREMENT SHOULD BE READVERTISED UNDER REVISED SPECIFICATIONS WHICH WOULD PERMIT OTHER BIDDERS A FAIR OPPORTUNITY TO MEET THE SPECIFIED REQUIREMENTS, OR TO DETERMINE WHETHER OR NOT THEY COULD DO SO. ..END :