B-154487, AUG. 3, 1964

B-154487: Aug 3, 1964

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

DEFENSE SUPPLY AGENCY: REFERENCE IS MADE TO LETTER DSAH-G OF JULY 17. HAS BEEN CANCELED AND THAT THE PROCUREMENT IS TO BE READVERTISED UNDER INVITATION DSA 4-65-104. A COPY OF WHICH WAS FURNISHED WITH THE LETTER. THE NEW INVITATION IS SOLICITING BIDS ON TWO ITEMS OF ELECTRICAL CONTACT BRUSHES DESIGNATED AS ITEMS "A" AND "B" AND REFERENCED AS FSN 5977-615- 5885 AND FSN 5977-615-5888. THE ITEM DESCRIPTION IS EXACTLY THE SAME FOR BOTH ITEMS. DGSC DRAWING 64C13-1 REV B DTD 6 JULY 1964 IS ATTACHED FOR IDENTIFICATION OF MANUFACTURER'S PART NUMBER ONLY. THE HIGH ALTITUDE AERONAUTICAL GENERATORS REFERENCED IN THE ITEM DESCRIPTION WERE MANUFACTURED BY THE CORPORATE PREDECESSOR OF LEAR SIEGLER. THE REPORT OF THE CONTRACTING OFFICER ACCOMPANYING THE NEW INVITATION STATES THAT THE INVITATION DOES NOT CONTAIN SUFFICIENT DATA TO PERMIT PROCUREMENT FROM ALL BRUSH MANUFACTURERS WHO MAY DESIRE TO PRODUCE THE ITEMS BECAUSE THE BALANCE OF THE INFORMATION IS PROPRIETARY TO LEAR SIEGLER.

B-154487, AUG. 3, 1964

TO VICE ADMIRAL JOSEPH M. LYLE, DIRECTOR, DEFENSE SUPPLY AGENCY:

REFERENCE IS MADE TO LETTER DSAH-G OF JULY 17, 1964, FROM THE ASSISTANT COUNSEL, ADVISING THAT INVITATION DSA 4-64-2376, WHICH LEAR SIEGLER, INC., PROTESTED AGAINST, HAS BEEN CANCELED AND THAT THE PROCUREMENT IS TO BE READVERTISED UNDER INVITATION DSA 4-65-104, A COPY OF WHICH WAS FURNISHED WITH THE LETTER.

THE NEW INVITATION IS SOLICITING BIDS ON TWO ITEMS OF ELECTRICAL CONTACT BRUSHES DESIGNATED AS ITEMS "A" AND "B" AND REFERENCED AS FSN 5977-615- 5885 AND FSN 5977-615-5888, RESPECTIVELY. EXCEPT FOR THE REFERENCED NUMBERS AND REFERENCES TO DIFFERENT DRAWING SUBNUMBERS, THE ITEM DESCRIPTION IS EXACTLY THE SAME FOR BOTH ITEMS. THE ITEM DESCRIPTION FOR ITEM "A" STATES:

"BRUSH, ELECTRICAL CONTACT: 500 AMP, AERONAUTICAL, HIGH ALTITUDE; DGSC DRAWING 64C13-1 REV B DTD 6 JULY 1964 IS ATTACHED FOR IDENTIFICATION OF MANUFACTURER'S PART NUMBER ONLY. ITEMS FURNISHED MUST BE IDENTICAL IN ALL RESPECTS TO ITEMS PREVIOUSLY FURNISHED BY THE GENERAL ELECTRIC CORP, OR STACKPOLE CARBON CO., INC., OR LEAR SIEGLER, INC., DIRECTLY OR INDIRECTLY TO THE GOVERNMENT UNDER THIS FEDERAL STOCK NUMBER FOR USE IN MD3/C26 HIGH ALTITUDE GENERATORS. THE ITEMS MUST BE SUPPLIED BY EITHER GENERAL ELECTRIC COMPANY, STACKPOLE CARBON CO., INC., OR LEAR SIEGLER, INC.'

THE HIGH ALTITUDE AERONAUTICAL GENERATORS REFERENCED IN THE ITEM DESCRIPTION WERE MANUFACTURED BY THE CORPORATE PREDECESSOR OF LEAR SIEGLER.

THE REPORT OF THE CONTRACTING OFFICER ACCOMPANYING THE NEW INVITATION STATES THAT THE INVITATION DOES NOT CONTAIN SUFFICIENT DATA TO PERMIT PROCUREMENT FROM ALL BRUSH MANUFACTURERS WHO MAY DESIRE TO PRODUCE THE ITEMS BECAUSE THE BALANCE OF THE INFORMATION IS PROPRIETARY TO LEAR SIEGLER, INC. SINCE LEAR SIEGLER DOES NOT MANUFACTURE THE BRUSHES AND THEY HAVE BEEN MANUFACTURED BY THE GENERAL ELECTRIC COMPANY OR STACKPOLE CARBON COMPANY, INC., THE INVITATION HAS BEEN RESTRICTED TO THOSE THREE COMPANIES AND TO BRUSHES IDENTICAL TO THOSE PREVIOUSLY FURNISHED DIRECTLY OR INDIRECTLY BY THOSE COMPANIES FOR USE IN THE DESIGNATED GENERATORS.

IN VIEW OF THE RESTRICTIVE NATURE OF THE INVITATION, THERE IS NO AUTHORITY FOR SUCH A PROCUREMENT BY FORMAL ADVERTISING. THE NAMING OF PARTICULAR PRODUCTS IN AN ADVERTISEMENT FOR BIDS TO THE EXCLUSION OF ALL OTHERS OF SIMILAR OR EQUAL MAKE OR EQUALITY IS NOT A COMPLIANCE WITH THE PROVISIONS OF THE FORMAL ADVERTISING STATUTES. 5 COMP. GEN. 835; 13 ID. 357; 33 ID. 524; AND 39 ID. 101. MOREOVER, THERE WOULD BE AN APPARENT VIOLATION OF 10 U.S.C. 2305 (B) WHICH REQUIRES THAT THE SPECIFICATIONS IN INVITATIONS FOR BIDS BE SUFFICIENTLY DESCRIPTIVE IN LANGUAGE AND ATTACHMENTS TO PERMIT "FULL AND FREE COMPETITION.' HOWEVER, WE WOULD HAVE NO OBJECTION IF THE PROCUREMENT WERE CONSUMMATED UNDER A REQUEST FOR PROPOSALS AND THE CONTRACT WERE AWARDED BY NEGOTIATION UNDER AN APPROPRIATE EXCEPTION IN 10 U.S.C. 2304.