B-154616, SEP. 17, 1964

B-154616: Sep 17, 1964

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TO DANZANSKY AND DICKEY: REFERENCE IS MADE TO YOUR LETTER DATED JUNE 30. IT APPEARS THAT THE PROCUREMENT IN QUESTION WAS A NEGOTIATED SMALL PURCHASE BY GENERAL SERVICES ADMINISTRATION REGION 5. IT IS REPORTED THAT IN RESPONSE TO THE REQUEST FOR QUOTATIONS. THAT SINCE OCTAGON PROCESS DID NOT FURNISH EVIDENCE THAT ITS OFFERED ITEM WAS EQUAL TO THE SPECIFIED BRAND NAME. A SAMPLE OF KLEARALL 99 WAS REQUESTED. THAT THE SAMPLE WAS TESTED IN GENERAL SERVICES ADMINISTRATION LABORATORIES. THAT THE SAMPLE WAS DETERMINED NOT TO BE EQUAL TO FINE ORGANICS FO-128 SINCE ITS SPECIFIC GRAVITY WAS NOT UP TO THE REQUIRED STANDARD. IT IS STATED IN BEHALF OF OCTAGON PROCESS THAT NEITHER THE REQUEST FOR PROPOSALS NOR THE FEDERAL SUPPLY CATALOGUE SET OUT ANY SPECIFIC GRAVITY REQUIREMENT FOR THIS PRODUCT AND THAT THE ONLY DESCRIPTION GIVEN WAS FOR FO-128 OR EQUAL.

B-154616, SEP. 17, 1964

TO DANZANSKY AND DICKEY:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 30, 1964, WITH ENCLOSURES, PROTESTING IN BEHALF OF OCTAGON PROCESS, INCORPORATED, THE AWARD OF A CONTRACT TO FINE ORGANICS, INCORPORATED, FOR SOLVENT CLEANER FOR ELECTRICAL MACHINERY AND PARTS UNDER GENERAL SERVICES ADMINISTRATION REQUISITION NO. IWCH-53840.

IT APPEARS THAT THE PROCUREMENT IN QUESTION WAS A NEGOTIATED SMALL PURCHASE BY GENERAL SERVICES ADMINISTRATION REGION 5, MADE PURSUANT TO THE PROCEDURES SET FORTH IN SUBPART 1-3.6 OF THE FEDERAL PROCUREMENT REGULATIONS. THE REQUEST FOR QUOTATIONS DESCRIBED THE ITEM BEING PROCURED AS:

"STOCK NO. 6850-619-7715

SOLVENT CLEANER FOR ELECTRICAL MACHINERY AND PARTS.

FAST DRYING WATER-WHITE LIQUID. PACKAGED IN 54 GALLON NON RETURNABLE DRUMS. FO-128 AS MANUFACTURED BY FINE ORGANICS, INC., 205 MAIN STREET, LODI, NEW JERSEY OR EQUAL.'

IT IS REPORTED THAT IN RESPONSE TO THE REQUEST FOR QUOTATIONS, OCTAGON PROCESS OFFERED ITS PRODUCT, KLEARALL 99 AT $52.92 PER DRUM; THAT SINCE OCTAGON PROCESS DID NOT FURNISH EVIDENCE THAT ITS OFFERED ITEM WAS EQUAL TO THE SPECIFIED BRAND NAME, A SAMPLE OF KLEARALL 99 WAS REQUESTED; THAT THE SAMPLE WAS TESTED IN GENERAL SERVICES ADMINISTRATION LABORATORIES; AND THAT THE SAMPLE WAS DETERMINED NOT TO BE EQUAL TO FINE ORGANICS FO-128 SINCE ITS SPECIFIC GRAVITY WAS NOT UP TO THE REQUIRED STANDARD.

IT IS STATED IN BEHALF OF OCTAGON PROCESS THAT NEITHER THE REQUEST FOR PROPOSALS NOR THE FEDERAL SUPPLY CATALOGUE SET OUT ANY SPECIFIC GRAVITY REQUIREMENT FOR THIS PRODUCT AND THAT THE ONLY DESCRIPTION GIVEN WAS FOR FO-128 OR EQUAL. IT FURTHER IS STATED THE ONLY INFORMATION AVAILABLE TO OCTAGON PROCESS CONCERNING FO-128 WAS CONTAINED IN A TECHNICAL DATA SHEET ISSUED BY FINE ORGANICS WHICH INDICATED A SPECIFIC GRAVITY OF 0.97 FOR FO- 128.

IT APPEARS FROM THE RECORD THAT THE STANDARD OF FO-128 USED BY THE TESTING LABORATORY HAD A SPECIFIC GRAVITY OF 0.975 AND SINCE THE SAMPLE OF KLEARALL 99 TESTED AT 0.972, IT WAS CONSIDERED AS FAILING THE TEST AND WAS NON-CONFORMING. A SAMPLE OF FO-128 TESTED AT THE SAME TIME HAD A SPECIFIC GRAVITY OF 0.984.

IT ALSO IS CONTENDED THAT THE MERE FACT THAT THE SPECIFIC GRAVITY OF KLEARALL 99 IS NOT THE SAME AS FO-128 DOES NOT MEAN THAT KLEARALL 99 IS NOT THE "EQUAL" OF FO-128 AND THAT THERE HAS BEEN NO DETERMINATION THAT KLEARALL 99 IS NOT THE EQUAL OF FO-128 INSOFAR AS THE CHEMICAL COMPOSITION AND THE SUITABILITY OF KLEARALL 99 FOR THE USE INTENDED ARE CONCERNED.

THE "OR EQUAL" PROVISION HAS LONG BEEN CONSTRUED TO MEAN THAT ANY ALTERNATE ITEM OFFERED MUST EQUAL THE SPECIFIED PRODUCT WITH RESPECT TO SUITABILITY FOR THE PURPOSE INTENDED. 38 COMP. GEN. 291, 294; B 136389, JULY 23, 1958. AS ALREADY NOTED, NO INDICATION WAS GIVEN THAT THE SPECIFIC GRAVITY OF THE BRAND NAME ITEM WAS A SALIENT FEATURE OF THE PROCUREMENT ITEM. THIS FAILURE TO DELINEATE THE CHARACTERISTIC AS A SOLVENT FEATURE WHILE EMPLOYING IT IN SUCH FASHION IN DETERMINING PRODUCT ACCEPTABILITY IS CLEARLY CONTRARY TO THE PROVISIONS OF FPR 1 1.307-4 (H). SEE ALSO 41 COMP. GEN. 242.

WE ARE INFORMED THAT THIS SMALL PURCHASE HAS ALREADY BEEN COMPLETED AND THE ITEM ENTERED IN STOCK. THEREFORE, FURTHER CONSIDERATION OF THE VALIDITY OF THIS PARTICULAR PROCUREMENT WOULD SERVE NO USEFUL PURPOSE. HOWEVER, WE HAVE BEEN ADVISED THAT AS A RESULT OF THIS PROCUREMENT THE GENERAL SERVICES ADMINISTRATION PROPOSES TO PROVIDE, FOR THE USE OF ITS REGIONAL OFFICES, A LIST OF THE SALIENT CHARACTERISTICS OF THE NAMED BRAND WHICH WILL HAVE TO BE SET FORTH IN ANY FUTURE PROCUREMENT OF THIS ITEM ON A BRAND NAME OR EQUAL BASIS. IN ADDITION, THE AGENCY IS PRESENTLY PREPARING AN INTERIM FEDERAL SPECIFICATION WHICH SHOULD OBVIATE THE NEED FOR PROCUREMENT BY BRAND NAME.