B-143105, JUL. 15, 1960

B-143105, JUL. 15, 1960

TO THE BRAMSON ENGINEERING CO.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 1, 1960, REQUESTING READVERTISEMENT OF INVITATION NO. IFB-155-/3-3/-3054-60 ISSUED APRIL 4, 1960, BY GENERAL STORES SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION ADVERTISED A REQUIREMENT OF 500 INSULATED JUGS, WHICH WERE TO CONFORM TO SPECIFICATION MIL-J-21750 (S AND A) DECEMBER 3, 1959. SIX BIDS WERE RECEIVED. THE AMERICAN PRODUCTION COMPANY SUBMITTED A LOW BID OF $31,375, LESS PROMPT PAYMENT DISCOUNT OF 2 PERCENT-30 DAYS. AWARD WAS MADE TO THAT COMPANY ON MAY 17, 1960.

IN YOUR LETTER OF JUNE 1, 1960, YOU STATE THAT THE SPECIFICATION IN THIS CASE WAS AMBIGUOUS IN THAT "THE LEVEL OF FAUCET QUALITY ACCEPTABLE BY THE U.S. PUBLIC HEALTH SERVICE COULD NOT BE PROPHESIED IN COMPUTING THE QUOTATION.' YOU REQUEST THAT THE FAUCETS BE READVERTISED SINCE THE PRESENT SPECIFICATION IS INADEQUATE IN THAT "THERE IS NEITHER IDENTIFICATION OF THE ITEM, NOR A DESCRIPTION ADEQUATELY SPECIFYING ALL THE ESSENTIAL REQUIREMENTS THEREOF, EXCEPT THAT IT SHALL BE APPROVED BY THE PUBLIC HEALTH SERVICE.' YOUR MAIN OBJECTION TO THE DESCRIPTION OF THE FAUCETS IN THE SPECIFICATION IS THAT THE MATERIALS TO BE USED IN THE CONSTRUCTION OF THE FAUCETS REQUIRED ARE NOT CLEARLY SET OUT. YOU ALLEGE THAT YOU HAD INTENDED TO FURNISH A STAINLESS STEEL FAUCET (MANUFACTURER'S COST $11) WHEREAS FAUCETS COULD BE FURNISHED AT A COST OF $1 EACH, DEPENDING ON MATERIALS AND CONSTRUCTION.

PARAGRAPH 3.11 OF THE APPLICABLE SPECIFICATION PROVIDED AS FOLLOWS:

"THE FAUCET SHALL BE APPROVED BY THE PUBLIC HEALTH SERVICE (3.1). THE FAUCET SHALL BE MADE OF ANY SUITABLE MATERIAL APPROVED BY THE PUBLIC HEALTH SERVICE. THE FAUCET SHALL BE OF THE NON-DRIPPING TYPE, DESIGNED TO DISPENSE LIQUIDS IN TWO POSITIONS: SELF-CLOSING IN ONE POSITION AND CONTINUOUS FLOW IN THE OTHER. THE NOZZLE SHALL HAVE A 7/16 INCH OPENING. THE FAUCET HANDLE SHALL BE PROVIDED WITH A BLACK BAKELITE MATERIAL CONFORMING TO MFH OF SPECIFICATION MIL-M-14, OR A BLACK NYLON MATERIAL.

ALL PARTS SHALL BE CONSTRUCTED TO PERMIT MANUAL ASSEMBLING AND DISASSEMBLING WITHOUT THE USE OF TOOLS. THE FAUCET SHALL BE FURNISHED WITH A NUT HAVING A FEMALE THREAD FOR ATTACHMENT AND A WASHER MADE OF SUITABLE MATERIAL (3.2.2). THE NUT SHALL BE CONSTRUCTED TO PERMIT CONNECTING OR DISCONNECTING THE FAUCET FROM THE JUG WITHOUT THE USE OF TOOLS.'

PARAGRAPH 3.2.2 OF THE SPECIFICATION ALSO PROVIDED:

"MATERIALS NOT DEFINITELY SPECIFIED HEREIN SHALL BE NONTOXIC AND, AS APPLICABLE, NON-ABSORBENT, ODORLESS, AND OF A QUALITY SUITABLE FOR THE PURPOSE. SUPPLIER SHALL PROVIDE A LIST OF MATERIALS USED AND SHALL SPECIFY THE COMPOSITION OF EACH MATERIAL.'

PARAGRAPH 3.3.2 OF THE SPECIFICATION PROVIDED FURTHER THAT ALL JUGS AND FAUCETS SHALL COMPLY WITH THE SANITARY CONSTRUCTION REQUIREMENTS OF ITEM 9 OF THE ORDINANCE AND CODE REGULATING EATING AND DRINKING ESTABLISHMENTS RECOMMENDED BY THE PUBLIC HEALTH SERVICE. UNDER THE REFERRED-TO ITEM 9 IT IS STATED THAT ALL SURFACES WITH WHICH FOOD OR DRINK COMES IN CONTACT MUST CONSIST OF ,SMOOTH, NOT READILY CORRODIBLE MATERIAL.'

IT IS REPORTED THAT THE PREPARATION OF SPECIFICATION MIL-J-21750 (S AND A) WAS PRECEDED BY A STUDY OF JUGS AND EXTENSIVE TESTS, AND THAT THE SPECIFICATION WAS DEVELOPED TO PERMIT THE WIDEST POSSIBLE LATITUDE TO POTENTIAL SUPPLIERS IN DESIGN AND USE OF MATERIALS. IT WAS NOT INTENDED TO PROHIBIT THE USE OF A PLASTIC FAUCET PROVIDED SUCH FAUCET MEETS SANITATION REQUIREMENTS AND WITHSTANDS OTHER TESTS REQUIRED BY THE SPECIFICATION. THE SPECIFICATION HERE INVOLVED WAS PREPARED IN ACCORDANCE WITH PARAGRAPH 1-305.1 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH PROVIDES THAT SPECIFICATIONS OR PURCHASE DESCRIPTIONS SHALL STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND ELIMINATE, INSOFAR AS POSSIBLE, ANY RESTRICTIVE FEATURES WHICH MIGHT LIMIT ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCTS, OR THE PRODUCTS OF A RELATIVELY FEW SUPPLIERS. THE PREAWARD SURVEY OF THE SUCCESSFUL BIDDER INDICATED THAT IT INTENDED TO UTILIZE FAUCETS (WITH A PRESSED STAINLESS STEEL BODY) MANUFACTURED BY EITHER WYOTT MANUFACTURING COMPANY OR FAUCETS (WITH A CHROMIUM-PLATED CAST BRASS BODY) MANUFACTURED BY TOMLINSON NO-DRIP FAUCET COMPANY. THE PREPRODUCTION SAMPLE OF THE CONTRACTOR RECEIVED JUNE 20, 1960, UTILIZES THE WYOTT FAUCET. IT IS REPORTED THAT NONE OF THE BIDDERS ON THIS PROCUREMENT RAISED THE QUESTION OF AMBIGUITY PRIOR TO OR AT THE TIME OF SUBMISSION OF BIDS.

IT HAS CONSISTENTLY BEEN HELD BY OUR OFFICE THAT THE ESTABLISHMENT OF SPECIFICATIONS TO REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT IS A MATTER PRIMARILY FOR THE ADMINISTRATIVE OFFICE. 36 COMP. GEN. 251. ALSO, OUR OFFICE HAS HELD THAT FULL AND FREE COMPETITION CANNOT BE OBTAINED UNLESS THE INVITATION AND THE SPECIFICATIONS ARE SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. 36 COMP. GEN. 380; 39 ID. 570.

IT WILL BE NOTED THAT THE SPECIFICATION DID NOT PRESCRIBE OR LIMIT THE MATERIALS FROM WHICH THE FAUCETS WERE TO BE MANUFACTURED BUT IT WAS DEFINITE IN THAT THE FAUCETS HAD TO MEET THE SANITATION REQUIREMENTS AND WITHSTAND THE OTHER TESTS REQUIRED BY THE SPECIFICATION. THE FURNISHING OF A PLASTIC FAUCET WHICH YOU INDICATE MIGHT HAVE BEEN ACCEPTABLE WAS NOT PROHIBITED IF IT OTHERWISE MET THE SPECIFICATION. UNDER THESE CIRCUMSTANCES, WE MUST HOLD THAT THE SPECIFICATION WAS SUFFICIENTLY DEFINITE IN ORDER TO PROVIDE FULL AND FREE COMPETITION EVEN THOUGH THE TYPE OF MATERIAL TO BE USED IN MANUFACTURE OF THE FAUCETS WAS NOT SPECIFIED.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS FOR CONCLUDING THAT THE PROCUREMENT IN THIS CASE SHOULD BE READVERTISED.