B-158329, MAR. 31, 1966

B-158329: Mar 31, 1966

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TO WILMOT CASTLE COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 12. THE INVITATION IN QUESTION WAS ISSUED BY THE VETERANS ADMINISTRATION CENTER (CENTER). FIVE COMPANIES WERE REQUESTED TO SUBMIT BIDS. A RESPONSIVE BID FROM THE AMERICAN STERILIZER COMPANY (AMERICAN) AND YOUR PROTEST WERE RECEIVED. AMERICAN WAS AWARDED A CONTRACT BASED ON ITS BID ON DECEMBER 27. IN YOUR LETTER IT IS POINTED OUT THAT "THE AMENDMENTS TO THE INTERIM SPECIFICATIONS CLEARLY MADE THE REQUIREMENTS TO PROPRIETARY THE INVITATION WAS RESTRICTED TO ONE MANUFACTURER * * *.'. IT IS ASSERTED THAT THE WORDING TO THE AMENDED SPECIFICATION WAS TAKEN FROM THE LITERATURE OF THE AMERICAN STERILIZER COMPANY. THE AMENDMENT TO WHICH YOU REFER IS CONCERNED WITH PARAGRAPH 3.3.3.1.9 OF INTERIM FEDERAL SPECIFICATION GG-S-00751E (VA-MED).

B-158329, MAR. 31, 1966

TO WILMOT CASTLE COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 12, 1966, WHICH ENCLOSED A COPY OF A TELEGRAM PROTESTING THE USE OF PROPRIETARY SPECIFICATIONS BY THE VETERANS ADMINISTRATION IN THE ISSUANCE OF INVITATION FOR BIDS (IFB) 66- 14.

THE INVITATION IN QUESTION WAS ISSUED BY THE VETERANS ADMINISTRATION CENTER (CENTER), FARGO, NORTH DAKOTA, ON DECEMBER 3, 1965, FOR ONE INSTALLED RECESS MOUNTED PRE-PROGRAMMED STERILIZER IN ACCORDANCE WITH INTERIM FEDERAL SPECIFICATIONS GG-S-00751E (VA-MED) AS AMENDED. FIVE COMPANIES WERE REQUESTED TO SUBMIT BIDS. ON DECEMBER 22, 1965, THE BID OPENING DATE, A RESPONSIVE BID FROM THE AMERICAN STERILIZER COMPANY (AMERICAN) AND YOUR PROTEST WERE RECEIVED. AMERICAN WAS AWARDED A CONTRACT BASED ON ITS BID ON DECEMBER 27, 1965.

IN YOUR LETTER IT IS POINTED OUT THAT "THE AMENDMENTS TO THE INTERIM SPECIFICATIONS CLEARLY MADE THE REQUIREMENTS TO PROPRIETARY THE INVITATION WAS RESTRICTED TO ONE MANUFACTURER * * *.' FURTHERMORE, IT IS ASSERTED THAT THE WORDING TO THE AMENDED SPECIFICATION WAS TAKEN FROM THE LITERATURE OF THE AMERICAN STERILIZER COMPANY.

THE AMENDMENT TO WHICH YOU REFER IS CONCERNED WITH PARAGRAPH 3.3.3.1.9 OF INTERIM FEDERAL SPECIFICATION GG-S-00751E (VA-MED). ITS PURPOSE WAS TO PROVIDE FOR AN AUTOMATIC PRE-PROGRAMMED OPERATING CONTROL IN LIEU OF THE MANUAL SELECTIVE CONTROL PREVIOUSLY REQUIRED. HOWEVER, WHEN THE AMENDED SPECIFICATIONS WERE WRITTEN THEY SPECIFIED A "COMBINATION TEMPERATURE--- ABSOLUTE PRESSURE RECORDING CONTROLLER" WHICH FEATURE WAS DESCRIPTIVE OF THE STANDARD STERILIZER OFFERED BY AMERICAN.

IN THE REPORT SENT TO THIS OFFICE THE VETERANS ADMINISTRATION ADMITS THAT THE FEATURE INCORPORATED INTO THE AMENDED SPECIFICATIONS WAS ESSENTIALLY AMERICAN STERILIZER-S. THE REASON GIVEN FOR THIS ACTION WAS THAT THE CENTER WHICH DRAFTED THE SPECIFICATIONS HAD ONLY THE LITERATURE OF AMERICAN AVAILABLE FOR PRE-PROGRAMMED STERILIZERS WHEN IT WROTE THE AMENDED SPECIFICATIONS. ALSO, IT IS INDICATED THAT THE STANDARD PRE- PROGRAMMED STERILIZER MANUFACTURED BY YOUR COMPANY WOULD HAVE MET THE NEEDS OF THE CENTER.

IT THUS APPEARS THAT THE AMENDED SPECIFICATIONS WERE RESTRICTIVE SINCE ONLY THE STERILIZER OFFERED BY AMERICAN COULD HAVE FULFILLED THE SPECIFICATION REQUIREMENTS WITHOUT MODIFICATIONS, WHEREAS THE ACTUAL NEEDS OF THE CENTER COULD HAVE BEEN FULFILLED WITHOUT THIS RESTRICTIVE WORDING.

ON FEBRUARY 7, 1966, AMERICAN WAS ADVISED BY TELEGRAM TO CEASE ANY FURTHER ACTION IN FULFILLMENT OF ITS CONTRACT OBLIGATION. AT THAT TIME, IT IS REPORTED, ABOUT 60 PERCENT OF THE FABRICATION OF THE STERILIZER TO BE DELIVERED THE WEEK OF APRIL 25, 1966, WAS COMPLETED. IN ADDITION, THE SUBCONTRACTOR WHO IS INSTALLING THE ELECTRICAL AND PLUMBING-STEAMFITTING EQUIPMENT AT THE VETERANS ADMINISTRATION CENTER, FARGO, NORTH DAKOTA, HAD INSTALLED THE MAIN CONDUIT FROM THE BASEMENT SERVICE ROOM TO THE FUTURE STERILIZER LOCATION ON THE SECOND FLOOR, HAD PURCHASED ALL NECESSARY MATERIALS AND HAD COMPLETED ABOUT 50 PERCENT OF THE REQUIRED WORK, INCLUDING COST OF MATERIALS.

SECTION 253 (A) OF TITLE 41, U.S.C. PROVIDES IN PERTINENT PART THAT "INVITATIONS FOR BIDS SHALL PERMIT SUCH FULL AND FREE COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF TYPES OF PROPERTY AND SERVICES NECESSARY TO MEET THE REQUIREMENTS OF THE AGENCY CONCERNED.' FROM THE FACTS PRESENTED IT IS OUR OPINION THAT THE INVITATION ISSUED BY THE VETERANS ADMINISTRATION IN THIS CASE DID NOT COMPLY WITH 41 U.S.C. 253 (A). ALTHOUGH INADVERTENT, THE AMENDED SPECIFICATIONS WERE RESTRICTIVE TO AMERICAN'S STANDARD COMMERCIAL PRE-PROGRAMMED STERILIZER.

IN OUR DECISION OF JANUARY 21, 1965, B-155826, WE STATED:

"* * * IN 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 IDED.'

FROM THE RECORD BEFORE US IT IS CLEAR THAT THE RESTRICTION OF THE SPECIFICATION TO AMERICAN'S PRODUCT WAS NEITHER INTENDED NOR NECESSARY TO FULFILL THE NEEDS OF THE CENTER. WHILE IT IS THEREFORE OUR OPINION THAT THE PROCUREMENT HERE INVOLVED DID NOT PERMIT THE BROADEST COMPETITION COMPATIBLE WITH THE CENTER'S NEEDS, WE DO NOT BELIEVE IT WOULD BE IN THE GOVERNMENT'S BEST INTEREST TO CANCEL THE AWARD, SINCE AMERICAN HAS COMPLETED 60 PERCENT OF THE FABRICATION WORK ON THE STERILIZER, AND ITS SUBCONTRACTOR HAS COMPLETED 50 PERCENT OF THE ELECTRICAL AND PLUMBING- STEAMFITTING WORK. SEE OUR DECISION OF JUNE 26, 1963, B-151416, IN WHICH CASE WE DECLINED, UNDER SIMILAR CIRCUMSTANCES, TO DIRECT CANCELLATION OF A CONTRACT AWARDED TO YOUR COMPANY UNDER AN INVITATION CONTAINING SPECIFICATIONS WHICH WERE RESTRICTIVE TO YOUR COMPANY.

IN VIEW OF THE FOREGOING, NO ACTION IS BEING TAKEN TO REQUIRE CANCELLATION OF THE CONTRACT WITH AMERICAN. HOWEVER, WE HAVE BEEN ADVISED BY THE VETERANS ADMINISTRATION THAT IN THE FUTURE, WHEN DEVIATIONS FROM FEDERAL SPECIFICATIONS ARE SOUGHT THE ACTUAL WORDING OF THE ADVERTISED SPECIFICATIONS WILL BE CHECKED BY THE CHIEF MEDICAL DIRECTOR TO INSURE THAT THEY ARE NOT RESTRICTIVE TO ONE MANUFACTURER'S PRODUCT. THIS CORRECTIVE ACTION SHOULD PREVENT SITUATIONS SUCH AS THE ONE PRESENT HERE, WHICH APPEARS TO HAVE RESULTED FROM APPROVAL OF A DEVIATION FROM THE FEDERAL SPECIFICATIONS BY THE CHIEF MEDICAL DIRECTOR IN ACCORDANCE WITH VAPR 8-1.305-3 BUT WITHOUT THE DIRECTOR HAVING SPECIFIC KNOWLEDGE AS TO HOW THE AMENDED SPECIFICATIONS WOULD READ.