B-147393, NOVEMBER 28, 1961, 41 COMP. GEN. 348

B-147393: Nov 28, 1961

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BIDS - DISCARDING ALL BIDS - READVERTISEMENT JUSTIFICATION BOTH THE REJECTION OF THE BIDS OF SEVERAL BIDDERS FOR FAILURE TO FURNISH THE DESCRIPTIVE MATERIAL AND DETAILED STATEMENTS SHOWING THE DIFFERENCE BETWEEN THE ARTICLES THEY OFFERED AND THE SINGLE BRAND NAME SPECIFIED IN THE INVITATION AND THE DENIAL OF THE BIDDER'S REQUEST FOR PERMISSION TO FURNISH THE OMITTED DATA AFTER BID OPENING WERE PROPER ADMINISTRATIVE ACTIONS UNDER THE TERMS OF THE INVITATION WHICH SPECIFIED THAT FAILURE TO FURNISH INFORMATION WOULD REQUIRE REJECTION OF THE BIDS. ALTHOUGH INCLUSION OF A SINGLE BRAND NAME OR EQUAL PROVISION IN AN INVITATION WAS INTENDED TO BE DESCRIPTIVE RATHER THAN RESTRICTIVE. WHICH SHOWS THAT OF 35 PROSPECTIVE BIDDERS CONTACTED ONLY NINE SUBMITTED BIDS AND FOUR OF THESE BIDS WERE REQUIRED TO BE REJECTED AS NONRESPONSIVE SOLELY BECAUSE OF THE ADDITIONAL REQUIREMENTS OF THE BRAND NAME CLAUSE.

B-147393, NOVEMBER 28, 1961, 41 COMP. GEN. 348

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - INFORMATION--- CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE- -- BIDS - DISCARDING ALL BIDS - READVERTISEMENT JUSTIFICATION BOTH THE REJECTION OF THE BIDS OF SEVERAL BIDDERS FOR FAILURE TO FURNISH THE DESCRIPTIVE MATERIAL AND DETAILED STATEMENTS SHOWING THE DIFFERENCE BETWEEN THE ARTICLES THEY OFFERED AND THE SINGLE BRAND NAME SPECIFIED IN THE INVITATION AND THE DENIAL OF THE BIDDER'S REQUEST FOR PERMISSION TO FURNISH THE OMITTED DATA AFTER BID OPENING WERE PROPER ADMINISTRATIVE ACTIONS UNDER THE TERMS OF THE INVITATION WHICH SPECIFIED THAT FAILURE TO FURNISH INFORMATION WOULD REQUIRE REJECTION OF THE BIDS. ALTHOUGH INCLUSION OF A SINGLE BRAND NAME OR EQUAL PROVISION IN AN INVITATION WAS INTENDED TO BE DESCRIPTIVE RATHER THAN RESTRICTIVE, THE RECORD, WHICH SHOWS THAT OF 35 PROSPECTIVE BIDDERS CONTACTED ONLY NINE SUBMITTED BIDS AND FOUR OF THESE BIDS WERE REQUIRED TO BE REJECTED AS NONRESPONSIVE SOLELY BECAUSE OF THE ADDITIONAL REQUIREMENTS OF THE BRAND NAME CLAUSE, SHOWS THAT THE ACTUAL EFFECT WAS RESTRICTIVE; THEREFORE, THE SINGLE BRAND NAME OR EQUAL INVITATION FOR AN ITEM STANDARD TO THE TRADE AND PREVIOUSLY PURCHASED BY THE PROCUREMENT AGENCY LISTING ANOTHER BRAND NAME DOES NOT MEET THE FULL AND FREE COMPETITIVE REQUIREMENTS OF AN ADVERTISED PROCUREMENT. AN INVITATION WITH A SINGLE BRAND NAME OR EQUAL CLAUSE WHICH RESULTED IN RESTRICTING COMPETITION FOR A MORE OR LESS STANDARD ITEM PREVIOUSLY PROCURED UNDER AN INVITATION LISTING BRAND NAME OF ANOTHER MANUFACTURER SHOULD BE CANCELED AND THE PROCUREMENT READVERTISED WITH A LESS RESTRICTIVE PURCHASE DESCRIPTION AND WITHOUT REFERENCE TO THE PRODUCT OF ONE PARTICULAR MANUFACTURER; HOWEVER, IF URGENT NEEDS OF THE AGENCY PRECLUDE DEVELOPMENT OF PROPER SPECIFICATIONS IN TIME TO PERMIT FORMAL ADVERTISING, CONSIDERATION MAY BE GIVEN TO NEGOTIATING THE PROCUREMENT FOR SUCH MATERIAL AS IS CURRENTLY NEEDED.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, NOVEMBER 28, 1961:

REFERENCE IS MADE TO LETTER OF OCTOBER 25, 1961, FROM MR. R. E. MULARI, CHIEF, MATERIAL CONTRACTS BRANCH, AVIATION FACILITIES SERVICE, IN RESPONSE TO OUR REQUEST FOR A REPORT RELATIVE TO REJECTION OF CERTAIN BIDS UNDER INVITATION FOR BIDS NO. 87-2-116B1, ISSUED ON AUGUST 17, 1961.

INTERNATIONAL ELECTRICAL DISTRIBUTORS, YONKERS, NEW YORK, BY LETTER OF OCTOBER 12, 1961, PROTESTED REJECTION OF ITS LOW BID FOR ITEMS 2A, B, C AND 3B, C. THE RUSGREEN MANUFACTURING COMPANY, DETROIT, MICHIGAN, WHOSE PRODUCTS WERE OFFERED BY INTERNATIONAL, ALSO PROTESTED REJECTION OF INTERNATIONAL'S BID.

THE INVITATION REQUESTED BIDS ON THREE ITEMS OF OUTDOOR TYPE POTHEADS, SPECIFYING UNDER EACH ITEM A PARTICULAR G AND W ELECTRIC SPECIALTY COMPANY MODEL NUMBER, OR EQUAL. ITEM NO. 2 PROVIDED AS FOLLOWS:

CHART

2. POTHEAD, FOR 4/C (3/C NO. 6 INSULATED AND 1/C NO. 8 BASE) 5000

VOLT; OUTDOOR TYPE, SHAPE B, COMPLETE WITH CONDUIT COUPLING FOR

2 1/2 INCHES CONDUIT WITH STUFFING BOX (SHALL BE FIELD DRILLED)

AND CLAMPS FOR SECURING AND GROUNDING STEEL TAPE ARMOR AND SHIELDING

ON NONLEAD CABLE, G AND W STYLE 3D SERIAL LUGS, EQUIPPED WITH

STYLE 4 BRACKETS," NOVOID A" INSULATING-COMPOUND OR EQUAL IN

INDIVIDUAL MELTING PAILS; G AND W NO. T4404B, OR EQUAL.

(A) 50 EACH $----------- $-------------

(B) 150 EACH $----------- $-------------

(C) 300 EACH $----------- $-------------

ITEMS 1 AND 3 PROVIDED SIMILAR REQUIREMENTS FOR POTHEADS HAVING SLIGHTLY DIFFERENT CONFIGURATIONS.

PARAGRAPH 46 OF THE SUPPLEMENTAL GENERAL PROVISIONS, AS REQUIRED BY FPR 1 -1.307-6, STATES THAT INCLUSION OF BRAND NAME IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF ARTICLES THAT WILL BE SATISFACTORY. THIS PARAGRAPH FURTHER REQUIRES BIDDERS OFFERING OTHER THAN THE BRAND NAME SPECIFIED TO FURNISH DESCRIPTIVE MATERIAL AND A STATEMENT SHOWING IN DETAIL THE DIFFERENCES BETWEEN THE ARTICLES OFFERED AND THE BRAND NAME SPECIFIED AND STATED THAT FAILURE TO INCLUDE THIS INFORMATION WILL REQUIRE REJECTION OF THE BIDS.

MR. MULARI ADVISED THAT THERE ARE NO FEDERAL SPECIFICATIONS, INTERIM FEDERAL SPECIFICATIONS, OR MILITARY SPECIFICATIONS WHICH DESCRIBE THE FAA'S REQUIREMENTS FOR POTHEADS. THE PREVIOUS YEAR'S PROCUREMENT OF POTHEADS DESCRIBED ARTICLES OF THE ESCO MANUFACTURING COMPANY, BUT THE SUCCESSFUL BIDDER OFFERED PRODUCTS OF THE G AND W ELECTRIC SPECIALTY COMPANY. THE G AND W POTHEADS PROVED SATISFACTORY AND WERE THE ONLY BRAND NAME ARTICLES MENTIONED IN THE CURRENT INVITATION.

THIRTY-FIVE PROSPECTIVE BIDDERS WERE INVITED TO BID BY INVITATION NO. 87- 2-116B1 AND NINE BIDS WERE RECEIVED. TWO BIDDERS OFFERED ARTICLES OF THE BRAND NAME REFERENCED, THREE OFFERED PRODUCTS OF ESCO, AND FOUR OFFERED PRODUCTS OF THE RUSGREEN MANUFACTURING COMPANY. ALL FOUR BIDDERS OFFERING RUSGREEN POTHEADS FAILED TO FURNISH THE REQUIRED DESCRIPTIVE DATA AND WERE REJECTED AS BEING NONRESPONSIVE.

BY LETTERS OF OCTOBER 11, 1961, TO FAA AND TO OUR OFFICE, RUSGREEN FURNISHED DETAILED DRAWINGS OF THE THREE TYPES OF POTHEADS OFFERED BY THE LOWEST BIDDER, INTERNATIONAL ELECTRICAL DISTRIBUTORS, TOGETHER WITH A STATEMENT ON EACH DRAWING THAT THE ARTICLE OFFERED DOES NOT DIFFER IN DIMENSIONS, WORKMANSHIP OR MATERIAL FROM THE REFERENCED BRAND NAME. RUSGREEN REQUESTED THAT THE DRAWINGS BE ACCEPTED AS COMPLIANCE WITH PARAGRAPH 46 OF THE SUPPLEMENTAL GENERAL PROVISIONS.

UNDER THE EXPRESS TERMS OF THE INVITATION, WE FIND NO REASON TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT THE FOUR BIDS WHICH DID NOT INCLUDE DESCRIPTIVE DATA WERE TECHNICALLY NONRESPONSIVE. NOR DO WE FIND A BASIS FOR ALLOWING THOSE FOUR BIDDERS TO AMEND THEIR BIDS AFTER OPENING BY FURNISHING THE OMITTED DESCRIPTIVE DATA. HOWEVER, THERE IS A SERIOUS QUESTION WHETHER THE SPECIFICATIONS, BY CALLING FOR ONLY ONE BRAND NAME, OR EQUAL, WERE UNNECESSARILY RESTRICTIVE OF COMPETITION OR WERE JUSTIFIED BY ANY VALID NEED OF THE GOVERNMENT.

A MERE DESIRE ON THE PART OF AN AGENCY FOR A PARTICULAR MANUFACTURER'S PRODUCT IS NOT OF ITSELF SUFFICIENT JUSTIFICATION FOR PURCHASE OF THAT PRODUCT TO THE EXCLUSION OF OTHER PRODUCTS THAT ARE EQUALLY ADAPTABLE TO THE NEEDS OF THE GOVERNMENT. 16 COMP. GEN. 171, 173. WE HAVE RECOGNIZED THAT IN A CERTAIN CASE IT MAY BE DIFFICULT TO DESCRIBE WHAT IS DESIRED, BUT WE HAVE ALSO FOUND THAT THE HISTORY OF THE BRAND NAME OR EQUAL PROVISION INDICATES THAT ADMINISTRATIVE AND LEGAL DIFFICULTIES MAY REGULARLY BE EXPECTED IN CONNECTION WITH ITS USE. SEE 38 COMP. GEN. 380, 384; A-65465, NOVEMBER 9, 1935. FOR THIS REASON, THE NAMING OF A PARTICULAR BRAND NAME EVEN WITH THE QUALIFYING WORDS "OR EQUAL" SHOULD BE AVOIDED WHEN IT IS REASONABLY POSSIBLE TO DESCRIBE THE NEEDS OF THE GOVERNMENT IN SPECIFICATIONS OF SUFFICIENT CLARITY TO APPRISE BIDDERS OF THOSE REQUIREMENTS. SEE 10 COMP. GEN. 555; FPR 1-1.307-5 (A).

THE FAA HAS HAD PREVIOUS EXPERIENCE IN PURCHASING POTHEADS, WHICH APPEAR TO BE MORE OR LESS STANDARD ARTICLES IN THE TRADE, SINCE PRODUCTS LISTED IN THE CATALOGS OF AT LEAST TWO DIFFERENT MANUFACTURERS HAVE BEEN DESCRIBED IN DIFFERENT YEARS AS MEETING THE NEEDS OF THE GOVERNMENT. THIS SITUATION, THE NECESSITY FOR RESORTING TO A DESCRIPTION BY BRAND NAME HAS NOT BEEN ESTABLISHED AND WE FIND IT DIFFICULT TO UNDERSTAND WHY IT WOULD NOT HAVE BEEN POSSIBLE OR PRACTICAL TO DESCRIBE THE ACTUAL NEEDS OF FAA IN A PURCHASE DESCRIPTION BASED ON THE PARTICULAR CHARACTERISTICS DEEMED ESSENTIAL IN THESE PRODUCTS. IN THE PRESENT CASE, ALTHOUGH REFERENCE TO A SINGLE BRAND NAME OR EQUAL MAY HAVE BEEN INTENDED TO BE DESCRIPTIVE INSTEAD OF RESTRICTIVE, WE FEEL THAT THE ACTUAL EFFECT WAS CONTRARY TO THE INTENTION. THIS IS DEMONSTRATED BY THE FACT THAT THIRTY- FIVE PROSPECTIVE BIDDERS WERE CONTACTED BUT ONLY NINE BIDS WERE RECEIVED, OF WHICH FOUR WERE FOUND TO BE NONRESPONSIVE SOLELY BECAUSE OF THE ADDITIONAL REQUIREMENTS OF THE BRAND NAME CLAUSE.

THE ADVERTISING STATUTES HAVE CONSISTENTLY BEEN HELD TO REQUIRE THAT EVERY EFFORT SHOULD BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE 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 STATED, WE FEEL THAT THE INVITATION IN THIS CASE CANNOT BE SAID TO HAVE MET THESE REQUIREMENTS. WITH SPECIFIC REFERENCE TO THE LIMITATIONS ON USE OF BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS IN FPR 1-1.307-5, WE BELIEVE THAT THE PRESENT RECORD DOES NOT SUPPORT THE CONCLUSION THAT THIS PROCUREMENT FALLS WITHIN THOSE NARROWLY DESCRIBED CIRCUMSTANCES IN WHICH BRAND NAME OR EQUAL DESCRIPTIONS MAY BE USED. THEREFORE, IT IS OUR OPINION THAT INVITATION FOR BIDS NO. 87-2-116B1 SHOULD BE CANCELED AND THIS PROCUREMENT SHOULD BE READVERTISED USING LESS RESTRICTIVE PURCHASE DESCRIPTIONS WHICH ACCURATELY REFLECT THE NEEDS OF THE GOVERNMENT WITHOUT REFERENCE TO THE PRODUCTS OF ONE PARTICULAR MANUFACTURER. IN THE EVENT THAT THE URGENCY OF THE NEED FOR THIS MATERIAL PRECLUDES DEVELOPMENT OF PROPER PURCHASE DESCRIPTIONS IN TIME TO ALLOW FORMAL ADVERTISING FOR CURRENT NEEDS, CONSIDERATION SHOULD BE GIVEN TO NEGOTIATING PROCUREMENT OF THE MATERIAL CURRENTLY NEEDED AND DEVELOPING PURCHASE DESCRIPTIONS FOR FUTURE REQUIREMENTS.

WITH REGARD TO FUTURE PROCUREMENTS IN THOSE EXCEPTIONAL CASES IN WHICH IT IS NECESSARY TO INCLUDE A BRAND NAME OR EQUAL CLAUSE IN THE PURCHASE DESCRIPTION, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF FPR 1-1.307-4 (AS EFFECTIVE DECEMBER 1, 1961), WHICH STATE THAT WHERE FEASIBLE, MORE THAN ONE ACCEPTABLE BRAND NAME PRODUCT SHOULD BE REFERENCED. THIS WOULD APPEAR TO BE PARTICULARLY DESIRABLE IN SITUATIONS WHERE SEVERAL DIFFERENT BRANDS OF AN ARTICLE HAVE PREVIOUSLY BEEN PURCHASED AND FOUND TO MEET THE NEEDS OF THE GOVERNMENT, SINCE NO USEFUL PURPOSE IS SERVED BY REQUIRING SUBMISSION OF DETAILED DESCRIPTIVE DATA ON ARTICLES WHICH ARE KNOWN TO MEET THOSE NEEDS. SEE 40 COMP. GEN. 435, 438. ALSO, THE NAMING OF ONE BRAND TO THE EXCLUSION OF OTHERS WHICH ARE KNOWN TO BE ACCEPTABLE TENDS TO DISCRIMINATE IN FAVOR OF THE ONE NAMED.

THE ENCLOSURES RECEIVED WITH THE LETTER OF OCTOBER 25, 1961, ARE RETURNED, AS REQUESTED.