B-155826, JAN. 21, 1965

B-155826: Jan 21, 1965

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VETERANS ADMINISTRATION: REFERENCE IS MADE TO LETTERS DATED DECEMBER 21 AND 31. WERE DISCUSSED OVER A PERIOD OF YEARS BETWEEN THE HOSPITAL DIRECTOR AND MEMBERS OF THE PROFESSIONAL STAFF. IT WAS DETERMINED THAT OUR BID INVITATION SHOULD PROVIDE FOR THE FOLLOWING: "A. "E. RECEIVERS WERE TO BE POWERED WITH MERCURY CELL BATTERIES. "IN ORDER TO EVALUATE BID INVITATION PROPERLY TO ASSURE THAT THE REQUIREMENTS OF THIS HOSPITAL WILL BE MET. IT WAS NECESSARY TO BE SPECIFIC IN DESCRIBING THE COMPONENTS FOR THE RADIO PAGING SYSTEM.'. TWENTY-ONE FIRMS WERE INVITED TO BID ON THE PAGING SYSTEM. ASKED THAT THE INVITATION BE REVISED TO SET FORTH THE HOSPITAL'S ACTUAL PAGING NEEDS RATHER THAN THE SALIENT POINTS OF A SPECIFIC MANUFACTURER AND PROTESTED THAT THEY WERE PRECLUDED FROM SUBMITTING A BID ON THE EQUIPMENT FOR THE REASON THAT THE SPECIFICATIONS SET FORTH IN THE INVITATION WERE RESTRICTIVE TO ONE MANUFACTURER AS PER 15 SPECIFICALLY CITED PROVISIONS OF THE SPECIFICATIONS.

B-155826, JAN. 21, 1965

TO THE HONORABLE WILLIAM J. DRIVER, ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO LETTERS DATED DECEMBER 21 AND 31, 1964, WITH ENCLOSURES, FROM THE CONTRACTING OFFICER, VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND, REQUESTING THE VIEWS OF OUR OFFICE CONCERNING THE PROTESTS OF MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., MARCO, INC., AND METRO-TEL CORPORATION AS SUCH PROTESTS RELATE TO IFB NO. 65-43, ISSUED NOVEMBER 6, 1964, FOR A WIRELESS SELECTIVE RADIO PAGING SYSTEM AT THE HOSPITAL.

IN HIS LETTER OF DECEMBER 21, 1964, THE CONTRACTING OFFICER MAKES THE FOLLOWING STATEMENT:

"* * * THE REQUIREMENTS, MEETING THE NEEDS OF THIS HOSPITAL, WERE DISCUSSED OVER A PERIOD OF YEARS BETWEEN THE HOSPITAL DIRECTOR AND MEMBERS OF THE PROFESSIONAL STAFF. FROM THESE MEETINGS AND A NUMBER OF DEMONSTRATIONS BY VARIOUS COMPANIES, IT WAS DETERMINED THAT OUR BID INVITATION SHOULD PROVIDE FOR THE FOLLOWING:

"A. MUST BE AS OPERATOR-FREE AS POSSIBLE TO CONSERVE MANPOWER; THEREFORE, THE ENCODER SHOULD BE DESIGNED TO AUTOMATICALLY SEQUENCE FOUR PAGE CALLS.

"B. THE SYSTEM MUST BE CAPABLE OF SELECTING AS MANY AS 200 PAGES TO PROVIDE CURRENT REQUIREMENTS AND FUTURE ADDITIONS TO THE SYSTEM.

"C. THE WEIGHT OF THE RECEIVERS MUST NOT EXCEED NINE OUNCES IN ORDER TO PREVENT EXCESSIVE WEAR TO UNIFORMS WORN BY PROFESSIONAL PERSONNEL. ADDITION, THE RECEIVER SHOULD NOT EXCEED 6 INCHES BY 2 3/8 INCHES BY 1 INCH, PLUS OR MINUS 1/4 INCH.

"D. THE ENCODER SHOULD BE MANUFACTURED OF SOLID STATE CIRCUITRYIN ORDER TO REDUCE ITS SIZE TO FIT INTO A LIMITED SPACE ON DESK TOP AT THE TELEPHONE OPERATOR'S STATION.

"E. RECEIVERS WERE TO BE POWERED WITH MERCURY CELL BATTERIES, HAVING A LIFE EXPECTANCY OF APPROXIMATELY 1000 HOURS IN ORDER TO REDUCE MAINTENANCE AND COST.

"IN ORDER TO EVALUATE BID INVITATION PROPERLY TO ASSURE THAT THE REQUIREMENTS OF THIS HOSPITAL WILL BE MET, IT WAS NECESSARY TO BE SPECIFIC IN DESCRIBING THE COMPONENTS FOR THE RADIO PAGING SYSTEM.'

TWENTY-ONE FIRMS WERE INVITED TO BID ON THE PAGING SYSTEM. BY LETTER OF DECEMBER 3, 1964, MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., ASKED THAT THE INVITATION BE REVISED TO SET FORTH THE HOSPITAL'S ACTUAL PAGING NEEDS RATHER THAN THE SALIENT POINTS OF A SPECIFIC MANUFACTURER AND PROTESTED THAT THEY WERE PRECLUDED FROM SUBMITTING A BID ON THE EQUIPMENT FOR THE REASON THAT THE SPECIFICATIONS SET FORTH IN THE INVITATION WERE RESTRICTIVE TO ONE MANUFACTURER AS PER 15 SPECIFICALLY CITED PROVISIONS OF THE SPECIFICATIONS. MOTOROLA'S REQUEST WAS DENIED ON DECEMBER 8, 1964, BY THE CONTRACTING OFFICER. IN LETTER OF DECEMBER 11, 1964, THAT FIRM, WHILE ENCLOSING LITERATURE PURPORTING TO SHOW THAT IT COULD SUPPLY EQUIPMENT PROVIDING THE PAGING SERVICE REQUIRED AND PERSONAL UNITS MEETING THE SIZE, WEIGHT, BATTERY AND OPERATIONAL REQUIREMENTS SPECIFIED IN THE INVITATION, AGAIN PROTESTS THAT IT IS PROHIBITED FROM MAKING A VALID RESPONSE TO THE TECHNICAL REQUIREMENTS OF THE INVITATION AND REQUESTS THAT NO AWARD BE MADE THEREUNDER PENDING A MORE COMPLETE EVALUATION OF THE HOSPITAL'S TECHNICAL REQUIREMENTS AND OPERATIONAL NEEDS.

FOUR FIRMS, MARCO, INC., GENERAL ELECTRIC COMPANY, METRO-TEL CORPORATION, AND HENRY O. BERMAN COMPANY, INC., SUBMITTED BIDS WHICH WERE OPENED AS SCHEDULED ON DECEMBER 14, 1964. BOTH MARCO AND GENERAL ELECTRIC PROTESTED THAT THE SPECIFICATIONS WERE RESTRICTIVE AND GENERAL ELECTRIC'S BID, THE HIGHEST OF THOSE SUBMITTED AT $15,975, OFFERED A VHF AND FM SYSTEM RATHER THAN AN AM SYSTEM CALLED FOR BY THE SPECIFICATIONS. MARCO'S BID OF $13,463.50, LESS 1/2 PERCENT FOR PAYMENT IN 20 DAYS, ON THE SYSTEM CALLED FOR WAS SECOND LOW BUT IT WAS DECLARED NON-RESPONSIVE FOR THE REASON THAT DESCRIPTIVE LITERATURE WAS NOT FURNISHED AS A PART OF THE BID IN ACCORDANCE WITH THE SPECIFIC REQUIREMENTS OF THE DESCRIPTIVE LITERATURE CLAUSE SET FORTH UNDER PARAGRAPH NO. 12 OF THE INVITATION'S TERMS AND CONDITIONS PURSUANT TO THE PROVISIONS OF PARAGRAPH 1-2.202-5 OF THE FEDERAL PROCUREMENT REGULATIONS. WHILE MARCO ALLEGES IN ITS LETTER OF DECEMBER 28, 1964, THAT DESCRIPTIVE LITERATURE ON THE EQUIPMENT COVERED BY ITS BID HAD BEEN PREVIOUSLY FURNISHED TO CERTAIN OF THE HOSPITAL'S PERSONNEL, THE CONTRACTING OFFICER ASSERTS THAT MARCO DID NOT FURNISH HIS OFFICE WITH SUCH LITERATURE. SINCE THE INVITATION'S DESCRIPTIVE LITERATURE CLAUSE PROVIDES THAT A BIDDER MUST FURNISH DESCRIPTIVE LITERATURE "AS A PART OF THE BID" TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH,WE CONCUR IN THE CONTRACTING OFFICER'S DETERMINATION THAT MARCO'S BID WAS NONRESPONSIVE IN THAT RESPECT. HOWEVER, IN ITS LETTER DATED DECEMBER 14, 1964, AND ACCOMPANYING ITS BID, MARCO PROTESTED THE SPECIFICATIONS AS BEING RESTRICTIVE TO ONE MANUFACTURER AND THUS INFERENTIALLY CONCEDED THAT ITS OFFERED EQUIPMENT WOULD NOT MEET THE TECHNICAL SPECIFICATIONS. AT THE SAME TIME IT GUARANTEED THAT ITS EQUIPMENT WOULD MEET THE OPERATIONAL REQUIREMENTS OF ANY VA HOSPITAL.

THE LOW BID, $13,000 LESS 1/2 PERCENT FOR PAYMENT IN 20 DAYS, WAS SUBMITTED BY METRO-TEL CORPORATION. WHILE A COPY OF THE CONTRACTING OFFICER'S LETTER OF DECEMBER 24, 1964, TO METRO-TEL WAS NOT FORWARDED WITH THE FILE, IT APPEARS FROM THE FOLLOWING EXCERPT FROM THAT FIRM'S PROTEST OF DECEMBER 29, 1964, AGAINST AWARD TO ANY OTHER COMPANY THAT ITS BID WAS REJECTED DUE TO THE EXCESSIVE DIMENSIONS AND WEIGHT OF THE RECEIVER COMPONENT OF ITS SYSTEM:

"DURING OUR TELEPHONE CONVERSATION TODAY IT WAS POINTED OUT THAT BECAUSE; A) OUR RECEIVER WAS SOMEWHAT LARGER THAN THE DIMENSIONS STATED IN THE SPECIFICATIONS AND; B) THE WEIGHT WAS ALSO SOMEWHAT IN EXCESS OF THAT STATED, THEREFORE, METRO-TEL CORP. WOULD NOT GET THE AWARD ALTHOUGH BEING THE LOWEST BIDDER.

"WE FEEL THAT FOR A COMMERCIAL ITEM OF THIS TYPE OUR DEVIATIONS ARE NOT SIGNIFICANT ENOUGH TO CAUSE OUR BID TO BE REJECTED. IT WOULD APPEAR TO BE IN THE BEST INTERESTS OF THE GOVERNMENT THAT OUR BID BE ACCEPTED.'

THE PERTINENT PROVISION OF THE SPECIFICATIONS PROVIDES:

"1. COMBINED WEIGHT OF RECEIVER AND BATTERIES SHALL NOT EXCEED 9 OUNCES, AND SIZE NOT TO EXCEED 6 INCHES BY 2 3/8 INCHES BY 1 INCH PLUS OR MINUS 1/4 INCH.'

THE RECORD BEFORE US DOES NOT SHOW THE WEIGHT OF THE METRO-TEL RECEIVER, HOWEVER, THE UNIT'S CASE SIZE IS STATED TO BE 6 INCHES BY 3 INCHES BY 1 1/2 INCHES WHICH EXCEEDS THE SPECIFICATIONS' MAXIMUM ALLOWABLE WIDTH AND DEPTH DIMENSIONS BY 3/8 INCH AND 1/4 INCH, RESPECTIVELY.

THE HIGHEST BID RECEIVED ON THE CALLED FOR AM SYSTEM AND WHICH IS RECOMMENDED BY THE HOSPITAL FOR AWARD, WAS ADMITTED BY HENRY O. BERMAN COMPANY, INC., IN THE AMOUNT OF $15,499 LESS 2 PERCENT FOR PAYMENT IN 20 CALENDAR DAYS. ON PAGE FOUR OF THE INVITATION BERMAN LISTS THE SYSTEM WHICH IT PROPOSES TO FURNISH AS THE PAGEMASTER NO. 500MANUFACTURED BY BOGEN COMMUNICATIONS DIVISION, LEAR SIEGLER, INC. WITHOUT LISTING ALL THE SIMILARITIES AND POINTS OF IDENTITY BETWEEN THE PAGEMASTER ,500" SYSTEM AND THE SPECIFICATIONS SET FORTH IN THE INVITATION, IT APPEARS THAT THE CONCLUSION MAY REASONABLY BE REACHED THAT SUCH SPECIFICATIONS WERE WRITTEN TO A LARGE DEGREE AROUND THE PAGEMASTER "500" SYSTEM AND INCORPORATES THOSE FEATURES ITEMIZED IN MOTOROLA'S PROTEST AS BEING RESTRICTIVE TO ONE MANUFACTURER.

WHILE THE PREPARATION OF SPECIFICATIONS STATING THE MINIMUM NEEDS OF THE GOVERNMENT AND FACTUAL DETERMINATIONS AS TO WHETHER EQUIPMENT OFFERED CONFORMS TO THOSE SPECIFICATIONS IS PRIMARILY WITHIN THE DISCRETION OF THE ADMINISTRATIVE AGENCY CONCERNED, THE PUBLIC 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, AND WITHOUT INCLUDING DETAILS BY REASON OF PERSONAL PREFERENCE OR WHICH ARE PECULIAR TO THE PRODUCT OF A SINGLE FIRM. SEE 32 COMP. GEN. 384 AND 41 ID. 358. GENERAL, THE DRAFTING OF SPECIFICATIONS BY SUBSTANTIALLY ADOPTING A MANUFACTURER'S DESCRIPTION OF THE PARTICULAR FEATURES OF ITS PRODUCT PRESENTS SERIOUS PROBLEMS SINCE IT AMOUNTS IN EFFECT TO A REPRESENTATION THAT EACH OF SUCH DETAILS HAVE BEEN DETERMINED BY RESPONSIBLE AUTHORITY TO BE NECESSARY TO MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT. IF THAT IS IN FACT THE CASE AND SUCH DETAILS MAY BE FOUND ONLY IN THE PRODUCT OF THE ONE MANUFACTURER, THEN CONSIDERATION OF NEGOTIATION OF THE PROCUREMENT IS INDICATED, OTHERWISE THE PURPOSES OF THE COMPETITIVE BIDDING PROCESS ARE LARGELY DEFEATED AND THE SUSPICION OF PARTIALITY CANNOT BE AVOIDED.

THE RECORD DOES NOT INDICATE THE EXISTENCE OF UNIQUE OR UNUSUAL PROBLEMS TO BE ENCOUNTERED IN THE OPERATION OF A PAGING SYSTEM AT THE HOSPITAL AND THAT INSTITUTION'S NEEDS AS SET FORTH IN THE CONTRACTING OFFICER'S LETTER OF DECEMBER 21 SEEM SOMEWHAT GENERAL IN NATURE. THAT THE SPECIFICATIONS MAY BE UNDULY RESTRICTIVE SEEMS TO BE INDICATED BY THE ABOVE AND OTHER FACTS OF THE CASE WHICH SHOW THAT OF 21 FIRMS SOLICITED ONLY 5 RESPONDED, 3 OF THOSE 5 (ONE NOT SUBMITTING A BID) HAVE PROTESTED THAT THE SPECIFICATIONS ARE RESTRICTIVE, AND THE BID OF ANOTHER (THE LOW BIDDER) WAS DECLARED NONRESPONSIVE BECAUSE IT DID NOT MEET THE SIZE AND WEIGHT REQUIREMENTS FOR THE RECEIVER UNIT, THEREBY LEAVING ONLY ONE UNPROTESTING RESPONDENT TO THE INVITATION--- THE ONE AROUND WHOSE PRODUCT THE SPECIFICATIONS APPEARS TO HAVE BEEN SUBSTANTIALLY DRAFTED. IN THIS CONNECTION IT IS REPORTED THAT IT WAS DETERMINED THAT THE WEIGHT OF THE RECEIVER SHOULD NOT EXCEED 9 OUNCES "IN ORDER TO PREVENT EXCESSIVE WEAR TO UNIFORMS WORN BY PROFESSIONAL PERSONNEL.' THE RECEIVER'S WEIGHT BEING IN EXCESS OF 9 OUNCES IS STATED AS A FACTOR IN THE REJECTION OF THE METRO-TEL LOW BID AND IT IS NOTED THAT THE WEIGHT OF THE RECEIVER UNIT OFFERED BY GENERAL ELECTRIC IS LISTED AS 10 OUNCES AND, HENCE, IS ALSO IN EXCESS OF THE PRESCRIBED 9 OUNCES MAXIMUM ALLOWABLE WEIGHT. THE ADMINISTRATIVE REPORT DOES NOT SHOW BY WHAT ACTUAL TESTS, IF ANY, THE MAXIMUM ALLOWABLE RECEIVER WEIGHT WAS DETERMINED. ALTHOUGH SIGNIFICANT WEIGHT DIFFERENCES IN RECEIVER UNITS MAY PROPERLY BE A FACTOR IN PARTICULAR SITUATIONS FOR CONSIDERATION IN THE EVALUATION OF BIDS, THE RECORD CONTAINS NOTHING TO SUBSTANTIATE THE INDICATED JUDGMENT THAT A 9 OUNCES RECEIVER WEIGHT IS THE TRANSITION POINT BETWEEN NORMAL AND EXCESSIVE WEAR ON THE HOSPITAL EMPLOYEES' PROFESSIONAL UNIFORMS SO AS TO WARRANT THE EXCLUSION ON THAT BASIS OF PRODUCTS OF OTHER MANUFACTURERS WHICH MAY BE SLIGHTLY OVER SUCH WEIGHT.

CONCERNING THE CASE DIMENSIONS (6 INCHES BY 2 3/8 INCHES BY 1 INCH PLUS 1/4 INCHES) SPECIFIED FOR THE RECEIVER UNIT WHICH, COMBINED WITH THE WEIGHT ELEMENT, ARE THE PERTINENT FACTORS INDICATED IN THE DECISION FOR NOT MAKING AWARD TO THE LOW BIDDER, IT IS NOTED THAT THE DESCRIPTIVE LITERATURE FURNISHED ON THE PAGEMASTER "500" PACKAGE LISTS THE DIMENSIONS FOR ITS RECEIVER AS 5 3/4 INCHES BY 2 3/4 INCHES BY 1 INCH ALTHOUGH THE RECEIVER COMPONENT TR-270 IS ELSEWHERE DESCRIBED AS BEING 5 3/4 INCHES HIGH BY 2 3/8 INCHES WIDE BY 1 INCH DEEP. IF THE 2 3/4 INCH WIDTH MEASUREMENT IS CORRECT THEN SUCH DIMENSION OF THE RECEIVER UNIT OF THE SYSTEM PROPOSED FOR ACCEPTANCE BY THE HOSPITAL ALSO EXCEEDS BY 1/8 INCH THE ALLOWABLE MAXIMUM WIDTH SET FORTH IN THE SPECIFICATIONS.

IT IS ALSO NOTED THAT THE CONTRACTING OFFICER IN HIS LETTER OF DECEMBER 8, 1964, TO MOTOROLA REMARKED THAT "IT WAS RECOGNIZED BY PERSONNEL CONCERNED WITH DETERMINING THE PAGING NEEDS OF THIS HOSPITAL THAT MOTOROLA HAD PAGING EQUIPMENT WHICH COULD MEET OUR NEEDS.' THE LAST PARAGRAPH OF THAT LETTER, HOWEVER, STATED THAT THE SPECIFIED REQUIREMENTS WERE BASED UPON CAREFUL EVALUATION OF THE NEEDS "AS TO THE TYPE OF EQUIPMENT WHICH WOULD BEST SERVE TO PROVIDE COMMUNICATION * * *.'

THIS OFFICE, HAVING NEITHER A SCIENTIFIC NOR ENGINEERING STAFF, HAS NO WAY OF DETERMINING, EXCEPT FROM ADMINISTRATIVE REPORTS, WHETHER THE TECHNICAL AND PARTICULAR FEATURES OF A MANUFACTURED PRODUCT SUCH AS THAT HERE INVOLVED ARE REASONABLY NECESSARY FOR THE MINIMUM NEEDS TO BE FILLED. IT IS, HOWEVER, A FUNCTION OF THE GENERAL ACCOUNTING OFFICE TO INSURE THAT PROCUREMENTS ARE MADE IN ACCORDANCE WITH APPLICABLE LAW AND THAT THERE IS A PROPER EXERCISE OF ADMINISTRATION DISCRETION AND RESPONSIBILITIES. IT HAS THEREFORE BEEN OUR CONSISTENT POSITION THAT APPROPRIATED FUNDS ARE NOT AVAILABLE FOR THE PURCHASE OF A HIGHER PRICED ITEM MERELY BECAUSE IT IS BETTER, IF A LOWER PRICED ONE IS ADEQUATE FOR THE NEEDS TO BE MET.

IN VIEW OF THE MANY POINTS OF SIMILARITY BETWEEN THE SPECIFICATIONS SET FORTH IN THE INVITATION AND PROVISIONS IN THE DESCRIPTIVE LITERATURE FURNISHED BY BERMAN ON THE PAGEMASTER "500" SYSTEM, TOGETHER WITH THE FACT THAT ALLEGATIONS OF UNWARRANTED RESTRICTIVENESS, WHICH ARE CONTAINED IN PROTESTS RECEIVED FROM MAJOR FIRMS RECOGNIZED AS KNOWLEDGEABLE IN THE PARTICULAR FIELD, ARE NOT CONVINCINGLY OR SUBSTANTIALLY REFUTED BY THE RECORD BEFORE US, WE CANNOT CONCLUDE THAT THE SPECIFICATIONS ARE NOT UNDULY RESTRICTIVE, OR THAT THEY PERMIT THE BROADEST FIELD OF COMPETITION AS REQUIRED UNDER 41 U.S.C. 253/A), OR THAT AN AWARD TO BERMAN UNDER THE CIRCUMSTANCES HERE INVOLVED WOULD NOT CAUSE POSSIBLE INJURY TO THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. ACCORDINGLY, IT IS OUR VIEW THAT THE SPECIFICATIONS SHOULD BE THOROUGHLY AND OBJECTIVELY REEXAMINED IN RELATION TO THE HOSPITAL'S ACTUAL REQUIREMENTS AND, UNLESS IT IS ESTABLISHED CONCLUSIVELY THAT EACH DETAIL PRESCRIBED THEREIN IS REASONABLY ESSENTIAL TO SECURING A PRODUCT MEETING THE HOSPITAL'S MINIMUM NEEDS, NO AWARD SHOULD BE MADE UNDER THE INVITATION. IN THE EVENT AN AWARD UNDER THE INVITATION IS PRECLUDED BY THE FOREGOING, WE SUGGEST THAT IN ANY READVERTISEMENT OF THIS PROCUREMENT ALL NECESSARY STEPS TO BE TAKEN TO ASSURE THAT THE SPECIFICATIONS USED THEREIN SPECIFY NOTHING WHICH IS NOT REQUIRED TO MEET THE ACTUAL MINIMUM NEEDS OF YOUR ADMINISTRATION, OR WHICH MIGHT, FROM ITS PROPRIETARY NATURE OR OTHERWISE, HAVE THE EFFECT ..END :