B-146326, AUGUST 3, 1961, 41 COMP. GEN. 76

B-146326: Aug 3, 1961

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WHICH REQUIRED SOME COMMON-USE ITEMS TO BE OF A CERTAIN MODEL OR EQUAL WHEN THESE ITEMS HAVE BEEN ADEQUATELY DESCRIBED IN GOVERNMENT SPECIFICATIONS. UNDER WHICH A BID COULD BE EVALUATED EVEN THOUGH THE BIDDER WAS UNABLE TO COMPLY WITH THE DESCRIPTIVE DATA REQUIREMENTS OF THE "OR EQUAL" PROVISION IS AN INVITATION WHICH IS UNNECESSARILY RESTRICTIVE. IS A LEGALLY DEFECTIVE INVITATION. AN "OR EQUAL" PROVISION IN AN INVITATION ISSUED INCIDENT TO AN ADVERTISED MILITARY PROCUREMENT WHICH DID NOT CONTAIN SUFFICIENT INFORMATION FOR BIDDERS WHO HAD NOT PREVIOUSLY BEEN AWARDED CONTRACTS FOR THE ITEMS TO ASCERTAIN THE MATERIAL CHARACTERISTICS OF THE MODEL SERVES NO USEFUL PURPOSE AND APPEARS TO HAVE BEEN INCLUDED IN AN ATTEMPT TO MEET THE LANGUAGE OF THE COMPETITIVE BID REQUIREMENT WHILE DISREGARDING ITS SPIRIT.

B-146326, AUGUST 3, 1961, 41 COMP. GEN. 76

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - DESCRIPTIVE DATA - ABILITY TO FURNISH - BIDS - DISCARDING ALL BIDS - INVITATION DEFECTS A BRAND NAME OR EQUAL INVITATION ISSUED INCIDENT TO AN ADVERTISED PROCUREMENT WHICH DID NOT CONTAIN SUFFICIENT INFORMATION FOR BIDDERS WHO HAD NOT PREVIOUSLY BEEN AWARDED CONTRACTS FOR THE ITEMS TO ASCERTAIN THE MATERIAL CHARACTERISTICS OF THE MODEL, WHICH REQUIRED SOME COMMON-USE ITEMS TO BE OF A CERTAIN MODEL OR EQUAL WHEN THESE ITEMS HAVE BEEN ADEQUATELY DESCRIBED IN GOVERNMENT SPECIFICATIONS, AND UNDER WHICH A BID COULD BE EVALUATED EVEN THOUGH THE BIDDER WAS UNABLE TO COMPLY WITH THE DESCRIPTIVE DATA REQUIREMENTS OF THE "OR EQUAL" PROVISION IS AN INVITATION WHICH IS UNNECESSARILY RESTRICTIVE, DOES NOT APPRISE ALL BIDDERS OF THE REQUIREMENTS SO THAT THEY CAN COMPETE ON AN EQUAL BASIS AND, THEREFORE, IS A LEGALLY DEFECTIVE INVITATION. AN "OR EQUAL" PROVISION IN AN INVITATION ISSUED INCIDENT TO AN ADVERTISED MILITARY PROCUREMENT WHICH DID NOT CONTAIN SUFFICIENT INFORMATION FOR BIDDERS WHO HAD NOT PREVIOUSLY BEEN AWARDED CONTRACTS FOR THE ITEMS TO ASCERTAIN THE MATERIAL CHARACTERISTICS OF THE MODEL SERVES NO USEFUL PURPOSE AND APPEARS TO HAVE BEEN INCLUDED IN AN ATTEMPT TO MEET THE LANGUAGE OF THE COMPETITIVE BID REQUIREMENT WHILE DISREGARDING ITS SPIRIT. A BRAND NAME OR EQUAL INVITATION ISSUED INCIDENT TO AN ADVERTISED MILITARY PROCUREMENT WHICH INCLUDED CERTAIN COMMON-USE SUBITEMS THAT HAVE BEEN ADEQUATELY DESCRIBED IN GOVERNMENT SPECIFICATIONS WITHOUT THE REFERENCE TO A BRAND NAME IS REGARDED AS AN IMPROPER USE OF THE BRAND NAME OR EQUAL PROCUREMENT UNDER PARAGRAPH 1-1202 OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH REQUIRES THE USE OF EXISTING SPECIFICATIONS UNLESS THEY DO NOT MEET THE PARTICULAR NEEDS OF THE PROCURING AGENCY. THE DESCRIPTIVE DATA REQUIREMENTS OF AN "OR EQUAL" PROVISION IN AN ADVERTISED MILITARY PROCUREMENT UNDER WHICH A BID WAS CONSIDERED RESPONSIVE TO SOME OF THE ITEMS EVEN THOUGH THE BIDDER WAS UNABLE TO COMPLY WITH THE DESCRIPTIVE DATA REQUIREMENT BECAUSE HE WAS UNABLE TO OBTAIN THE ESSENTIAL CHARACTERISTICS OF THE ITEM AND SUBMITTED HIS BID ON THE BASIS OF THE MODEL INDICATES THAT THE CONTRACTING OFFICERS WERE COGNIZANT OF THE REQUIREMENTS OF THE MODEL WITHOUT THE NECESSITY FOR ADDITIONAL DESCRIPTIVE DATA SO THAT THE DESCRIPTIVE DATA REQUIREMENTS MADE THE INVITATION UNDULY RESTRICTIVE. ALTHOUGH BIDS WHICH HAVE BEEN PREPARED IN GOOD FAITH SHOULD NOT BE DISREGARDED AFTER OPENING EXCEPT FOR THE MOST COGENT REASONS, THE GOOD FAITH OF BIDDERS WHO PREPARED BIDS WHICH HAVE BEEN OPENED BEFORE A DETERMINATION WAS MADE THAT THE INVITATION WAS AMBIGUOUS, MISLEADING AND PREJUDICIAL CANNOT RENDER A DEFECTIVE INVITATION VALID.

TO THE SECRETARY OF THE ARMY, AUGUST 3, 1961:

WE HAVE A LETTER OF JULY 21, 1961, SIGNED BY THE ASSISTANT SECRETARY, INSTALLATIONS AND LOGISTICS, TRANSMITTING REPORTS AND OTHER DATA IN CONNECTION WITH A PROTEST BY DRESSER ELECTRONICS AGAINST THE PROPOSED REJECTION OF ITS LOW BID SUBMITTED PURSUANT TO INVITATION NO. SC-36-039-61 -561-54 ISSUED MAY 4, 1961, BY THE ARMY SIGNAL SUPPLY AGENCY.'

THE INVITATION CALLED FOR BIDS ON 21 ITEMS. ITEM NOS. 1, 6, 11, AND 16 EACH SPECIFIED A TYPE OF ELECTRONIC EQUIPMENT SHELTER IN VARIOUS QUANTITY RANGES IN ACCORDANCE WITH STATED SIGNAL CORPS DOCUMENTS AND MODELS ON DISPLAY, WITH LISTED EXCEPTIONS. UNDER EACH OF THESE ITEMS THERE WERE LISTED FROM 51 TO 72 SPECIFIC SUBITEMS INDICATING EQUIPMENT TO BE FURNISHED WITH AND INCLUDED IN THE SHELTER. THE OTHER 17 ITEMS CALLED FOR DRAWINGS, MANUSCRIPTS, DOCUMENTS AND SIMILAR MATERIALS.

BIDS WERE OPENED ON JUNE 5, 1961. THEN OF THE 174 FIRMS SOLICITED SUBMITTED BIDS. OF THE TEN, ONE FIRM HAD PREVIOUSLY MANUFACTURED THE ITEMS UNDER A CONTRACT WITH THE SIGNAL CORPS AND ANOTHER, GENERAL DYNAMICS/1ELECTRONICS ( STROMBERG-1CARLSON), HAD AN EXISTING CONTRACT TO MANUFACTURE THOSE ITEMS. NEITHER OF THESE FIRMS WAS LOW. THE LOW BID ON ITEM NOS. 1, 6, AND 11 WAS SUBMITTED BY DRESSER ELECTRONICS AND ON ITEM NO. 16 BY THE YORK BODY AND EQUIPMENT COMPANY.

THE CONTRACTING OFFICER SUSPECTED AN ERROR IN THE DRESSER BID BECAUSE IT WAS SO LOW IN COMPARISON WITH THE GOVERNMENT ESTIMATE AND THE PRICES UNDER THE EXISTING CONTRACT. AT THE CONTRACTING OFFICER'S REQUEST DRESSER TWICE VERIFIED THE ACCURACY OF ITS BID.

THE SUBITEMS REFERRED TO ABOVE MAY BE DIVIDED INTO THREE GENERAL CLASSES: (1) TELEPHONE AND POWER ELECTRICAL CABLE ASSEMBLIES, WHICH ARE IDENTIFIED BY STROMBERG-1CARLSON ( GENERAL DYNAMICS/1ELECTRONICS) PART NUMBERS AND ARE REQUIRED TO BE THE NAMED BRAND AND MODEL "OR EQUAL; " (2) ITEMS INCLUDING PICKHEAD AXES, BENCH DUSTING BRUSHES, WASTEPAPER BASKETS, FOLDING CHAIRS, FOAM RUBBER CHAIR CUSHIONS AND SIMILAR COMMON-USE ITEMS WHICH ARE IDENTIFIED BY VARIOUS MAKE AND MODEL NUMBERS AND ARE REQUIRED TO BE THE NAMED BRAND AND MODEL "OR EQUAL; " AND (3) COMMON-USE ITEMS DESCRIBED BY REFERENCE TO GOVERNMENT SPECIFICATIONS.

THE FOLLOWING CLAUSE WAS INCLUDED IN THE TERMS OF THE INVITATION AT PAGE 81: A. BRAND NAME OR EQUAL

AS USED IN THIS CLAUSE, THE TERM "BRAND NAME" INCLUDES IDENTIFICATION OF SUPPLIES BY MAKE AND MODEL.

CERTAIN SUPPLIES CALLED FOR BY THIS INVITATION FOR BIDS ARE IDENTIFIED IN THE SCHEDULE BY A BRAND NAME "OR EQUAL" DESCRIPTION. THIS IDENTIFICATION IS DESCRIPTIVE RATHER THAN RESTRICTIVE. BIDS OFFERING "OR EQUAL" SUPPLIES WILL BE CONSIDERED FOR AWARD IF SUCH SUPPLIES ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL TO THE BRAND NAMED SUPPLIES IN ALL MATERIAL RESPECTS.

BIDDERS MUST CLEARLY INDICATE WHETHER THEIR BIDS ARE BASED ON A BRAND NAME ITEM OR ON AN EQUAL" ITEM BY FURNISHING THE INFORMATION REQUIRED BELOW. IF THE BIDDER DOES NOT IDENTIFY THE BRAND NAME OR DESCRIBE IN FULL THE " OR EQUAL" ITEM WHICH IS OFFERED, AS PROVIDED IN (1) AND (2) BELOW, THE BID WILL BE REJECTED. A BRAND NAME ITEM AS MANUFACTURED BY OTHER THAN THE INDICATED MANUFACTURER IS CONSIDERED AN "OR EQUAL" ITEM AND MUST BE PROCESSED AS SUCH.

(1) IF THE BIDDER PROPOSES TO FURNISH A BRAND NAME ITEM SPECIFIED IN THIS INVITATION FOR BIDS, SUCH BRAND NAME SHALL BE INSERTED IN THE SPACE PROVIDED AFTER EACH ITEM SO DESCRIBED.

(2) IF THE BIDDER PROPOSES TO FURNISH AN "OR EQUAL" ITEM, THE BRAND NAME OF THE ITEM PROPOSED TO BE FURNISHED, IF ANY, SHALL BE INSERTED IN THE SPACE PROVIDED AFTER EACH ITEM SO DESCRIBED, AND IN ADDITION, THE FOLLOWING DESCRIPTIVE DATA MUST BE FURNISHED:

A FULL DESCRIPTION THEREOF, INCLUDING PERTINENT PHYSICAL, MECHANICAL,

ELECTRICAL, AND CHEMICAL DETAILS AND A STATEMENT EXPLAINING THE

DIFFERENCES BETWEEN THE ITEM BEING OFFERED AND ANY ONE OF THE

CORRESPONDING BRAND NAME ITEMS CALLED FOR BY THIS INVITATION FOR

BIDS. (THIS INFORMATION MAY BE SUPPLIED BY SEPARATE ATTACHMENTS

TO THE BID.)

THE CONTRACTING OFFICER DETERMINED THAT WITH RESPECT TO ITEM NO. 6 ALL BIDS WERE NONRESPONSIVE FOR FAILURE TO COMPLY WITH THE ABOVE-QUOTED PROVISION. AS TO ITEMS 1 AND 11, HE FOUND THAT THE DRESSER BID WITH RESPECT TO 34 SUBITEMS FOR THE CABLE ASSEMBLIES HAD OFFERED TO FURNISH A DRESSER MANUFACTURED ITEM "PER MODEL" BUT HAD NOT SUPPLIED THE REQUIRED DESCRIPTIVE DATA. FURTHER, AS TO THESE ITEMS, THE CONTRACTING OFFICER FOUND THAT IN 10 OTHER INSTANCES THE DRESSER BID HAD OFFERED SUBITEMS OF A MANUFACTURE OTHER THAN THE NAMED BRAND AND MODEL AND HAD NOT FURNISHED THE DESCRIPTIVE DATA. WITH RESPECT TO 6 OF THE 10, 2 SUBITEMS OF AXES (SUBITEMS 1-1 AND 11-1), 2 OF CHAIR CUSHIONS (SUBITEMS 1-5 AND 11-22), 1 OF AIR CONDITIONER FILTERS (SUBITEM 11-29) AND 1 OF FLUORESCENT STARTERS (SUBITEM 11-52), THE CONTRACTING OFFICER DETERMINED THAT THE FAILURE TO CONFORM WAS FATAL TO THE BID. ACCORDINGLY, THE CONTRACTING OFFICER HAS PROPOSED TO REJECT THE DRESSER BID AND MAKE AWARD ON ITEMS 1, 11 AND 16 TO YORK BODY AND EQUIPMENT.

DRESSER HAS PROTESTED THIS DETERMINATION ON THE GROUNDS, BASICALLY, THAT MANY OF THE CABLE ASSEMBLIES WERE NOT EXPOSED TO VIEW IN THE MODELS AND THE BIDDERS WERE NOT PERMITTED TO DISASSEMBLE THEM. SINCE NO DRAWINGS OF THEM WERE AVAILABLE TO THE BIDDERS, A FIRM NOT OFFERING THE NAMED MAKE AND MODEL WOULD HAVE TO GUESS CERTAIN DIMENSIONS, TOLERANCES, ETC., AND, IF IT INCLUDED IN ITS BID THE DESCRIPTIVE DATA REQUIRED, WOULD HAVE RISKED REJECTION BECAUSE SIGNIFICANT FACTORS HAD NOT BEEN CORRECTLY GUESSED. THIS REGARD DRESSER STATES THAT UNLESS THE GOVERNMENT WAS PREPARED TO CREATE A PROPRIETARY POSITION IN THE COMPANY NAMED IN THE INVITATION AS A CABLE MANUFACTURER,"THE ONLY ALTERNATIVE FOR A BIDDER WOULD BE TO STATE THAT IT WOULD MAKE THE CABLE "PER THE MODEL.'"

DRESSER REPRESENTATIVES HAVE ALSO POINTED OUT THAT IN SOME INSTANCES THE SUBITEM NAMED IN THE INVITATION DIFFERED FROM THAT ON DISPLAY IN THE MODEL AND THAT IN ANOTHER INSTANCE THE MANUFACTURER NAMED NO LONGER MADE THE EQUIPMENT NAMED IN THE INVITATION. IT IS NOTED THAT SUCH ITEMS AS FLUORESCENT STARTERS AND CERTAIN CHAIRS WERE IDENTIFIED BY DIFFERENT MAKES AND MODELS IN DIFFERENT PARTS OF THE INVITATION, EVEN THOUGH THE SUBITEMS HAD THE SAME USE THROUGHOUT.

FINALLY, DRESSER MAKES THIS CONTENTION:

* * * PRIOR TO THE BID OPENING, TELEPHONE CONSERVATIONS WERE HELD WITH MR. CHARLES L. BROOKS, COMMODITY PROCUREMENT BRANCH 54, OF THE UNITED STATES ARMY SIGNAL SUPPLY AGENCY, RELATIVE TO THE PROPER RESPONSE TO BRAND NAME SUBITEMS IN CASES WHERE DRESSER WAS PLANNING TO MAKE THE ITEMS ITSELF. * * * MR. BROOKS, WHO WAS OFFICIALLY DESIGNATED AS THE BIDDERS' CONTRACT ON THIS PROCUREMENT (SEE PAGE NUMBER 1 OF THE SUBJECT IFB) DEFINITELY INSTRUCTED DRESSER REPRESENTATIVES TO QUOTE ON THE SUBITEMS AS FOLLOWS: " DRESSER ELECTRONICS PER MODEL.' ENCLOSURES (A) AND (B) CONSTITUTE SIGNED AFFIDAVITS OF THE DRESSER PERSONNEL INVOLVED IN THESE CONVERSATIONS.

A PRINCIPAL PURPOSE OF THE COMPETITIVE BIDDING STATUTES IS TO OBTAIN FOR THE GOVERNMENT THE BENEFITS OF FULL AND FREE COMPETITION. 40 COMP. GEN. 348. THIS REQUIRES THAT THE PROCUREMENT BE ADVERTISED ON AS BROAD A BASIS AS POSSIBLE CONSISTENT WITH THE LEGITIMATE NEEDS OF THE USING AGENCY. OUR JUDGMENT THE INFORMATION AVAILABLE IS INSUFFICIENT TO DETERMINE ALL OF THE MATERIAL CHARACTERISTICS OF THE NAMED MAKE AND MODEL. BIDDERS OTHER THAN THOSE WHO HAD PREVIOUSLY BEEN AWARDED CONTRACTS COULD NOT OBTAIN PRIOR TO BIDDING THE NECESSARY INFORMATION FROM DRAWINGS, DISASSEMBLY OF THE UNITS IN THE MODELS OR PROCUREMENT OF SAMPLES ON THE OPEN MARKET. THEY WERE LEFT, THEREFORE, WITH THE ALTERNATIVE OF OFFERING THE NAMED BRAND OR OF DIVINING THE ESSENTIAL QUALITIES OF THAT BRAND BY SOME MEANS BEYOND OUR COMPREHENSION. IN SUCH CASE, THE " OR EQUAL" PROVISION SERVES NO USEFUL PURPOSE AND APPEARS TO HAVE BEEN INCLUDED IN AN ATTEMPT TO MEET THE LANGUAGE OF THE COMPETITIVE BID REQUIREMENT WHILE DISREGARDING ITS SPIRIT. CF. 38 COMP. GEN. 636.

THE COMMON-USE SUBITEMS, ALSO REQUIRED BY THE TERMS OF THE INVITATION TO BE OF A GIVEN MAKE AND MODEL " OR EQUAL," INCLUDE SUCH PRODUCTS AS PICKHEAD AXE, BENCH DUSTING BRUSH, WASTEPAPER BASKET, FOLDING CHAIR, FOAM RUBBER CHAIR CUSHION, ELECTRON TUBE EXTRACTOR, FIRST AID KIT, PIN STRAIGHTENER, DRAIN PLUG WRENCH, INCANDESCENT LAMP, FLUORESCENT LAMP, FLUORESCENT LAMP STARTER, ELECTRIC LANTERN, EXTENSION CORD, MEASURING TAPE, SCREWS, WASHERS, IN-OUT BASKET, ARMLESS ROTARY CHAIR, ELECTRIC SPACE HEATER, PENCIL SHARPENER, AND AIR CONDITIONING FILTER. A CURSORY EXAMINATION REVEALS NOT ONLY THAT THESE ARE ITEMS WHICH ARE RELATIVELY EASY TO DESCRIBE WITHOUT REFERENCE TO BRAND, BUT THE ALMOST WITHOUT EXCEPTION THEY ARE OF TYPES COVERED BY ONE OR MORE FEDERAL OR MILITARY SPECIFICATIONS. WE HAVE NOT COMPARED THE EXACT SUBITEMS IN THE INVITATION WITH THOSE SPECIFICATIONS, BUT IT SEEMS MOST UNLIKELY THAT ALL, OR EVEN MOST, OF THE FORMER ARE SO UNIQUE THAT THE USE OF THE SPECIFICATIONS IS INCOMPATABLE WITH THEIR PROCUREMENT.

WE HAVE RECOGNIZED THE NECESSITY AT TIMES OF PROCURING ON A NAMED BRAND OR EQUAL BASIS. IT IS ALSO RECOGNIZED, HOWEVER, THAT SUCH BASIS IS GENERALLY UNDESIRABLE AND SHOULD BE RESERVED FOR EXCEPTIONAL CASES WHERE THE NEEDS OF THE GOVERNMENT CANNOT OTHERWISE BE ADEQUATELY DESCRIBED. COMP. GEN. 291, 294; ID. 380, 383; 5 ID. 835, 837. SEE ALSO PARAGRAPH 1- 1206 (B), ARMED SERVICES PROCUREMENT REGULATION, STATING THE TECHNIQUE SHOULD BE USED ONLY AS A LAST RESORT. IN THIS CASE THE GOVERNMENT'S NEEDS WITH RESPECT TO MOST, IF NOT ALL, OF THESE ITEMS NOT ONLY CAN BE, BUT ALREADY HAVE BEEN, ADEQUATELY DESCRIBED WITHOUT REFERENCE TO BRAND NAME. THE EXISTING SPECIFICATIONS, FURTHER, ARE REQUIRED TO BE USED BY THE TERMS OF ASPR 1-1202 UNLESS DETERMINED NOT TO MEET THE PARTICULAR NEEDS.

FURTHERMORE, AS POINTED OUT BY DRESSER, PAGE 1 OF THE INVITATION CONTAINS THE FOLLOWING NOTE:

ALL MATTERS DEALING WITH THIS SOLICITATION SHOULD BE DIRECTED IN WRITING TO CHARLES L. BROOKS, COMMODITY PROCUREMENT BRANCH 54 TELEPHONE KINGSLEY 6 -3250 EXT. 8019 * * *.

AT A MEETING HELD IN OUR OFFICE ON JUNE 30, 1961, ATTENDED BY MR. BROOKS AND OTHER REPRESENTATIVES OF THE DEPARTMENT OF THE ARMY, MR. BROOKS CONCEDED IN EFFECT THAT HE COULD HAVE MISLEAD THE DRESSER REPRESENTATIVES WHO CONTACTED HIM REGARDING THE MANNER IN WHICH THEIR BID SHOULD BE PREPARED BY ADVISING THAT THEY SHOULD BID ACCORDING TO THE MODELS ON DISPLAY AT FT. MONMOUTH. ON THIS POINT, IN THE REPORT PREPARED BY THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, HEADQUARTERS, DEPARTMENT OF THE ARMY, FORWARDED WITH THE ASSISTANT SECRETARY'S LETTER, IT IS STATED:

* * * THE ADVICE RENDERED BY GOVERNMENT EMPLOYEES IN THIS REGARD MAY HAVE UNFAIRLY MISLEAD DRESSER. HOWEVER, IF THE PROCEDURE ADVISED WAS ACCEPTABLE THEN OTHER BIDDERS WHO WERE NOT SO INFORMED MAY HAVE BEEN PREJUDICED BY NOT BEING AFFORDED AN EQUAL OPPORTUNITY. * * *

IT IS ALSO SIGNIFICANT TO NOTE THAT, ALTHOUGH THE SIGNAL CORPS HAS DETERMINED THAT DRESSER'S BID IS NONRESPONSIVE ON CERTAIN OF THE ITEMS INVOLVED, ITS OFFICIAL REPORT IN THE CASE TAKES THE POSITION THAT ALL THE ITEMS ON WHICH DRESSER BID " DRESSER MANUFACTURE PER MODEL" ITS BID MAY BE CONSIDERED RESPONSIVE BECAUSE THE " SIGNAL CORPS ENGINEERS, BEING COMPLETELY AWARE OF THE ITEMS IN THE MODEL, REQUIRED NO ADDITIONAL DATA.' WE CAN ONLY CONCLUDE THAT, IF SUCH A METHOD OF BIDDING WAS SUFFICIENT TO MEET THE NEEDS OF THE CORPS, THEN THE APPLICATION OF THE DESCRIPTIVE DATA REQUIREMENTS OF THE " OR EQUAL" CLAUSE TO THE ITEMS IN QUESTION RENDERED THE INVITATION UNDULY RESTRICTIVE. A FURTHER CONSIDERATION IS THE ALLEGATION THAT, SINCE ALL OF THE MATERIAL CHARACTERISTICS OF THE MODELS ON DISPLAY COULD NOT BE DETERMINED WITHOUT DISASSEMBLING THEM, WHICH WAS NOT PERMITTED, AND NO DRAWINGS OF THE MODELS WERE AVAILABLE, IT WAS IMPOSSIBLE FOR BIDDERS WHO HAD NOT PREVIOUSLY MANUFACTURED SIMILAR EQUIPMENT TO MEET THE REQUIREMENTS OF THE DESCRIPTIVE DATA CLAUSE ON THOSE ITEMS WHICH INCLUDED SUCH CONCEALED CHARACTERISTICS.

IF THESE ARE THE FACTS, WE MUST CONCLUDE THAT THE INVITATION WAS LEGALLY DEFECTIVE SINCE IN AN ADVERTISED PROCUREMENT THE INVITATION MAY NOT BE UNNECESSARILY RESTRICTIVE, ALL BIDDERS MUST BE APPRISED OF THE REQUIREMENTS TO BE MET AND ALL BIDDERS MUST BE PERMITTED TO COMPETE ON AN EQUAL BASIS. OTHERWISE, THERE IS A FAILURE TO COMPLY WITH SECTION 2305, TITLE 10, U.S.C., WHICH SPECIFICALLY PROVIDES:

* * * THE SPECIFICATIONS AND INVITATIONS FOR BIDS SHALL PERMIT SUCH FREE AND FULL COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY AND SERVICES NEEDED BY THE AGENCY CONCERNED.

(B) THE SPECIFICATIONS AND INVITATIONS FOR BIDS MUST CONTAIN THE NECESSARY LANGUAGE AND ATTACHMENTS, AND MUST BE SUFFICIENTLY DESCRIPTIVE IN LANGUAGE AND ATTACHMENTS, TO PERMIT FULL AND FREE COMPETITION. IF THE SPECIFICATIONS IN AN INVITATION FOR BIDS DO NOT CARRY THE NECESSARY DESCRIPTIVE LANGUAGE AND ATTACHMENTS, OR IF THOSE ATTACHMENTS ARE NOT ACCESSIBLE TO ALL COMPETENT AND RELIABLE BIDDERS, THE INVITATION IS INVALID AND NO AWARD MAY BE MADE. THE STAFF REPORT OF YOUR DEPARTMENT CONCLUDES WITH THE FOLLOWING STATEMENT:

IN VIEW OF THE AMBIGUOUS, MISLEADING AND CONFUSING NATURE OF THE INVITATION AS WELL AS THE UNFAIR AND PREJUDICIAL ADVICE RENDERED BY THE CONTRACTING OFFICER'S REPRESENTATIVES, IT IS THE STAFF CONCLUSION THAT ALL BIDS MUST BE REJECTED IN ORDER TO PROTECT AND MAINTAIN THE INTEGRITY OF THE COMPETITIVE BID SYSTEM. IT IS IN THE PUBLIC INTEREST TO CANCEL THE INVITATION AND REPROCURE THE REQUIREMENT UNDER A CLEAR AND UNAMBIGUOUS IFBS AND/OR RFPS WHICH CLEARLY SETS FORTH THE MINIMUM NEEDS OF THE GOVERNMENT.

FOR THE REASONS STATED HERE WE ARE IN AGREEMENT WITH THIS POSITION. AGREE ALSO THAT, SINCE THE FULL AND FREE COMPETITION REQUIRED BY THE STATUTES HAS NOT BEEN OBTAINED, NO VALID AWARD MAY RESULT FROM THIS INVITATION.

IT IS UNFORTUNATE THAT THE BIDDERS HAVE IN GOOD FAITH PREPARED BIDS WHICH NOW HAVE BEEN EXPOSED. HOWEVER, THE GOOD FAITH OF BIDDERS CANNOT RENDER A DEFECTIVE INVITATION VALID.

THE BIDS AND OTHER PERTINENT DOCUMENTS ENCLOSED WITH THE LETTER OF JULY 21, 1961, OR SUBSEQUENTLY FURNISHED, ARE RETURNED.