B-151416, JUN. 26, 1963

B-151416: Jun 26, 1963

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TWO BIDS WERE RECEIVED AND OPENED ON MARCH 26. 892 WAS LOW IN VIEW OF THE $14. THE LOW BID WAS REJECTED FOR THE REASONS DISCUSSED BELOW AND AWARD WAS MADE TO WILMOT CASTLE ON APRIL 9. THE ONLY DATA SPECIFICALLY REQUESTED TO BE FURNISHED WAS A CERTIFICATION OF AVAILABLE STOCKS OF SPARES AND MAINTENANCE PERSONNEL AND DRAWINGS INDICATING THE INTENDED INSTALLATION. IT WAS REJECTED AS NONRESPONSIVE. WE AGREE THAT SUCH ACTION WAS PROPER. IT IS CONTENDED BY AMERICAN THAT THE SPECIFICATION ATTACHED TO THE BID WAS NOT OPPOSED TO THE REQUIREMENTS OF THE FEDERAL SPECIFICATION AND THAT THE ATTACHED SPECIFICATION MATERIAL WAS MEANINGLESS AND SHOULD HAVE BEEN DISREGARDED. AS UNSOLICITED DESCRIPTIVE LITERATURE WHICH WAS NOT INTENDED BY AMERICAN TO QUALIFY THE BID.

B-151416, JUN. 26, 1963

TO THE SECRETARY OF THE NAVY:

BY LETTERS DATED MAY 23 AND JUNE 6, 1963, WITH ENCLOSURES, THE ACTING ASSISTANT CHIEF AND ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, FURNISHED REPORTS WITH RESPECT TO THE PROTEST OF THE AMERICAN STERILIZER COMPANY AGAINST THE AWARD OF A CONTRACT TO THE WILMOT CASTLE COMPANY UNDER INVITATION FOR BIDS NO. 123-322-63, ISSUED ON MARCH 12, 1963, BY THE NAVY PURCHASING OFFICE, LOS ANGELES, CALIFORNIA.

THE INVITATION REQUESTED BIDS FROM 19 SOURCES OF SUPPLY FOR THE NECESSARY LABOR AND MATERIALS TO FURNISH AND INSTALL ONE EACH OF THE FOLLOWING:

"ORTHO VAC POWERCLAVE AUTOCLAVE WITH TWO CARS AND CARRIAGES. TO BE IN STRICT ACCORDANCE WITH FEDERAL SPECIFICATION GG-S-00751C, DATED 1 OCTOBER 1962.'

TWO BIDS WERE RECEIVED AND OPENED ON MARCH 26, 1963, AND AMERICAN'S BID IN THE AMOUNT OF $12,892 WAS LOW IN VIEW OF THE $14,072 BID RECEIVED FROM WILMOT CASTLE. HOWEVER, THE LOW BID WAS REJECTED FOR THE REASONS DISCUSSED BELOW AND AWARD WAS MADE TO WILMOT CASTLE ON APRIL 9, 1963.

THE INVITATION DID NOT REQUIRE THE SUBMISSION OF DESCRIPTIVE LITERATURE, THE ONLY DATA SPECIFICALLY REQUESTED TO BE FURNISHED WAS A CERTIFICATION OF AVAILABLE STOCKS OF SPARES AND MAINTENANCE PERSONNEL AND DRAWINGS INDICATING THE INTENDED INSTALLATION. HOWEVER, AMERICAN VOLUNTARILY ATTACHED TO ITS BID A DOCUMENT ENTITLED "DETAILED SPECIFICATIONS, AMERICAN FLEXAVAC-HIGH VACUUM STERILIZER.' AN EXAMINATION OF SUCH DOCUMENT DISCLOSED THAT THE EQUIPMENT OFFERED BY AMERICAN DID NOT COMPLY WITH PARAGRAPH 3.3.3.1.10.5 OF THE FEDERAL SPECIFICATION WHICH REQUIRES THAT THE "PUMP SHALL BE OF SUFFICIENT CAPACITY TO EVACUATE THE CHAMBER TO 17 MM HG ABSOLUTE PRESSURE * * *," WHEREAS, PAGE 3 OF THE DOCUMENT ATTACHED TO AMERICAN'S BID STATED THAT THE "PRE-VACUUM CYCLE SHALL ESTABLISH A STERILIZING CONDITION AT 27 MM ABSOLUTE OR LESS.' SINCE THE CONTRACTING OFFICER DETERMINED THAT AMERICAN'S BID DEVIATED FROM THE ADVERTISED REQUIREMENTS, IT WAS REJECTED AS NONRESPONSIVE. WE AGREE THAT SUCH ACTION WAS PROPER.

IT IS CONTENDED BY AMERICAN THAT THE SPECIFICATION ATTACHED TO THE BID WAS NOT OPPOSED TO THE REQUIREMENTS OF THE FEDERAL SPECIFICATION AND THAT THE ATTACHED SPECIFICATION MATERIAL WAS MEANINGLESS AND SHOULD HAVE BEEN DISREGARDED, PURSUANT TO ASPR 2-202.5 (F), AS UNSOLICITED DESCRIPTIVE LITERATURE WHICH WAS NOT INTENDED BY AMERICAN TO QUALIFY THE BID. HOWEVER, UNDER WELL-ESTABLISHED PRINCIPLES OF LAW, THE SPECIFICATION ATTACHED TO THE BID WAS AN INTEGRAL PART THEREOF AND WOULD TAKE PRECEDENCE OVER THE FEDERAL SPECIFICATION MADE PART OF THE INVITATION. 36 COMP. GEN. 535, 539. THE RECORD CONTAINS A REPRINT OF AN ARTICLE ON "HIGH-VACUUM STERILIZERS" FROM THE CANADIAN MEDICAL ASSOCIATION JOURNAL OF OCTOBER 14, 1961. THIS ARTICLE STATES THAT THE SUCCESS OF NEW STERILIZING EQUIPMENT IS DEPENDENT ON A NUMBER OF CRITICAL FACTORS, ONE OF WHICH IS THAT THE INITIAL VACUUM MUST BE SUCH THAT THE ABSOLUTE PRESSURE IN THE CHAMBER CAN BE REDUCED BELOW 20 MM HG BEFORE ADMISSION OF STEAM. SINCE THIS AUTHORITATIVE ARTICLE SUPPORTS THE ADMINISTRATIVE ACTION TAKEN, WE HAVE NO ALTERNATIVE OTHER THAN TO ACCEPT IT AS CONCLUSIVE. AMERICAN'S BID AS QUALIFIED BY THE SPECIFICATION MATERIAL ATTACHED THERETO OBVIOUSLY DEVIATED IN A MATERIAL RESPECT FROM THE GOVERNMENT'S ADVERTISED CHAMBER EVACUATION REQUIREMENTS. SUCH DEVIATION CLEARLY AFFECTED THE QUALITY AND PRICE OF THE EQUIPMENT OFFERED AND MAY NOT BE WAIVED AS AN INFORMALITY. 30 COMP. GEN. 179; 36 ID. 705; 40 ID. 432.

WE THEREFORE CONCLUDE THAT REJECTION OF AMERICAN'S BID AS NONRESPONSIVE WAS PROPER UNDER THE CIRCUMSTANCES.

TURNING TO THE INVITATION DESCRIPTION OF THE EQUIPMENT ADVERTISED, WE NOTE THAT THE ITEM DESCRIPTION REFERS TO THE TRADE NAME FOR THE STERILIZER MODELS PRODUCED BY WILMOT CASTLE. THE USE OF THE TRADE NAME HERE WITHOUT THE USE OF THE QUALIFYING TERM "OR EQUAL" INTRODUCED A RESTRICTIVE CHARACTER TO THE PROCUREMENT. WE HAVE OFTEN HELD THAT SPECIFICATIONS MUST BE DRAWN WITH REGARD TO THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND MAY NOT REFLECT MERE ADMINISTRATIVE PREFERENCES FOR PARTICULAR MAKE OR BRAND. 16 COMP. GEN. 318, 33 ID. 524; ID. 567. NEITHER MAY SPECIFICATIONS GENERALLY BE LIMITED TO PARTICULAR MAKES OR BRANDS UNLESS OPPORTUNITY IS AFFORDED OTHER BIDDERS TO OFFER EQUIVALENT ITEMS BY DESCRIBING THE ESSENTIAL REQUIREMENTS AND BY INCLUDING THE NAME OF ONE OR MORE COMMERCIAL PRODUCTS FOLLOWED BY THE WORDS "OR EQUAL.' 5 COMP. GEN. 835; 13 ID. 357; 16 ID. 171; 33 ID. 524. ASPR 1-1206.1. THE ADMINISTRATIVE REPORT STATES THAT THE PURCHASE REQUISITION--- WHICH DESCRIBED THE PROCUREMENT AS URGENT --- INCLUDED THE TRADE NAME AND, IN PREPARING THE INVITATION, THE BUYER RETAINED THE FIRST SENTENCE OF THE DESCRIPTION OF THE TYPE OF STERILIZER BEING REQUISITIONED IN THE MISTAKEN BELIEF THAT THIS WAS NORMAL TRADE PHRASEOLOGY RATHER THAN A TRADE NAME. IN THAT CONNECTION, WE NOTE THAT THE MEMORANDUM FORWARDING THE REQUISITION STATED THAT THE "SPECIFICATIONS ARE DESCRIPTIVE RATHER THAN RESTRICTIVE.' HOWEVER, THIS STATEMENT WAS NOT CARRIED FORWARD INTO THE INVITATION.

IT IS NOT CLEAR WHETHER THE TRADE NAME ARTICLE IS IN STRICT COMPLIANCE WITH THE FEDERAL SPECIFICATION OR WHETHER EITHER THE TRADE NAME ARTICLE OR ONE IN STRICT COMPLIANCE WITH THE FEDERAL SPECIFICATION WOULD HAVE BEEN ACCEPTABLE. IF THE "ORTHO VAC POWERCLAVE" WAS THE ONLY ARTICLE WHICH WOULD HAVE MET THE NEEDS OF THE GOVERNMENT, THE PROCEDURES PRESCRIBED BY ASPR 1-206.1 (B) SHOULD HAVE BEEN FOLLOWED. ON THE OTHER HAND, IF AN ARTICLE SIMILAR TO "ORTHO VAC" WAS DESIRED AND NO APPLICABLE SPECIFICATION EXISTED, A PURCHASE DESCRIPTION FOLLOWED BY THE WORDS ,OR EQUAL" SHOULD HAVE BEEN USED (ASPR 1-1206.2). BUT NEITHER OF THOSE SITUATIONS ARE PRESENTED HERE. INSTEAD, THROUGH INTERNAL INADVERTENCE, THE TRADE NAME WAS USED IN THE PURCHASE DESCRIPTION AS INDICATIVE OF THE GOVERNMENT'S NEEDS--- THOUGH FOLLOWED BY A REFERENCE TO A FEDERAL SPECIFICATION WHICH APPEARS TO BE APPLICABLE TO THE INSTANT PROCUREMENT. UNDOUBTEDLY, THIS INADVERTENCE RESTRICTED COMPETITION SINCE ONLY 2 OF 19 SOURCES SOLICITED RESPONDED TO THE INVITATION.

WHILE WE FEEL THAT THE INVITATION DID NOT PERMIT THE BROADEST COMPETITION PERMISSIBLE WITHIN THE NEEDS REASONABLY REQUIRED BUT APPARENTLY WAS RESTRICTED TO ONLY THE ONE-NAMED SOURCE (10 U.S.C. 2305 (A) AND (B) (, WE DO NOT BELIEVE THAT IT WOULD BE IN THE GOVERNMENT'S BEST INTERESTS TO CANCEL THE AWARD. THE FILE CLEARLY ESTABLISHES THE URGENCY OF THE PROCUREMENT AND THE FACT THAT AS OF MAY 15, 1963, WILMOT CASTLE COMPLETED 60 PERCENT OF THE STERILIZER AND EXPENDED OVER $8,000 IN ITS FABRICATION.

WE RECOMMEND, HOWEVER, THAT APPROPRIATE MEASURES BE TAKEN TO AVOID A REPETITION OF THE INSTANT PROCUREMENT.

THE ENCLOSURES TO THE LETTERS OF MAY 23 AND JUNE 6, 1963, WITH THE EXCEPTION OF THE CONTRACTING OFFICERS' STATEMENTS OF FACT, ARE RETURNED.