B-161118, JUN. 1, 1967

B-161118: Jun 1, 1967

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INC.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 21. THIS CONTRACT WAS AWARDED PURSUANT TO A SOLICITATION ISSUED ON JANUARY 20. IS STATED AS FOLLOWS: "48 EA. 8 FEET STRAIGHT SECTION MONOCURTAIN TRACK W/SWITCH HILL ROM NO. 30 AE OR EQUAL.'. THE CONTRACTING OFFICER FOUND THAT THE EQUIPMENT OFFERED BY YOUR PROPOSAL WAS NONEQUIVALENT TO THE HILL-ROM ITEM. THAT YOUR PROPOSAL WAS THEREFORE NONRESPONSIVE TO THE SOLICITATION. YOU ALSO CONTEND THAT THE CONTRACTING OFFICER SHOULD HAVE DETERMINED THAT THE ITEM OFFERED BY YOUR FIRM WAS EQUAL IN ALL MATERIAL RESPECTS TO THE HILL-ROM PRODUCT. YOU CONTEND THAT THE NEED OF THE GOVERNMENT IS TO PROVIDE MAXIMUM PRIVACY TO PATIENTS AT MINIMUM COST. THIS DETERMINATION WAS BASED UPON ADVICE FROM OFFICIALS AT THE DAVID GRANT HOSPITAL THAT A SINGLE CURTAIN SYSTEM.

B-161118, JUN. 1, 1967

TO CAPITAL CUBICLE COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 21, 1967, PROTESTING THE AWARD OF CONTRACT NO. F04626-67-C-0307 ON MARCH 3, 1967, TO HILL-ROM COMPANY, INC., BATESVILLE, INDIANA. THIS CONTRACT WAS AWARDED PURSUANT TO A SOLICITATION ISSUED ON JANUARY 20, 1967, BY TRAVIS AIR FORCE BASE, CALIFORNIA. THE SOLICITATION REQUESTED BIDS ON FOUR ITEMS OF BEDSIDE CURTAIN ASSEMBLIES. ITEM 3 OF GROUP III, OF THE INVITATION, THE SUBJECT OF YOUR PROTEST, IS STATED AS FOLLOWS:

"48 EA. 8 FEET STRAIGHT SECTION MONOCURTAIN TRACK W/SWITCH HILL ROM NO. 30 AE OR EQUAL.'

IN RESPONSE TO THE SOLICITATION, YOUR COMPANY SUBMITTED A "QUOTATION" OF $1,900 ON YOUR STANDARD DUAL CURTAIN AND TRACK ASSEMBLY, AS DESCRIBED IN A BROCHURE AND IN DRAWINGS ACCOMPANYING YOUR QUOTATION, TOGETHER WITH AN EXPLANATION THAT YOUR COMPANY DOES NOT FURNISH A "SWITCH.' THE CONTRACTING OFFICER FOUND THAT THE EQUIPMENT OFFERED BY YOUR PROPOSAL WAS NONEQUIVALENT TO THE HILL-ROM ITEM, AND THAT YOUR PROPOSAL WAS THEREFORE NONRESPONSIVE TO THE SOLICITATION.

YOU CONTEND THAT THE DESIGNATION OF THE HILL-ROM ITEM VIOLATED THE INTENT AND PURPOSE OF COMPETITIVE BIDDING BY RESTRICTING BIDS TO THE HILL-ROM COMPANY, THE PROPRIETARY OWNER OF THE DESIGNATED SWITCH. YOU ALSO CONTEND THAT THE CONTRACTING OFFICER SHOULD HAVE DETERMINED THAT THE ITEM OFFERED BY YOUR FIRM WAS EQUAL IN ALL MATERIAL RESPECTS TO THE HILL-ROM PRODUCT. FINALLY, YOU ANALYZE THE GOVERNMENT'S "ORIGINAL NEED" IN THIS PROCUREMENT, AND YOU CONTEND THAT THE NEED OF THE GOVERNMENT IS TO PROVIDE MAXIMUM PRIVACY TO PATIENTS AT MINIMUM COST. YOU SAY THIS COULD BEST BE ACCOMPLISHED BY UTILIZING YOUR DUAL CURTAIN ASSEMBLY, RATHER THAN THE SINGLE CURTAIN SYSTEM WHICH HILL-ROM OFFERED AT A PRICE OF $3,732.

REFERRING TO YOUR CONTENTION THAT THE SOLICITATION VIOLATED THE DEMANDS OF THE COMPETITIVE BIDDING PROCESS THE AIR FORCE REPORTS THAT IN FORMULATING THE SOLICITATION THE CONTRACTING OFFICER ACCEPTED THE DETERMINATION BY COGNIZANT PERSONNEL OF THE DAVID GRANT HOSPITAL THAT THE DESIGN FEATURES OF THE HILL-ROM PRODUCT MOST NEARLY SATISFIED ITS MINIMUM REQUIREMENTS FOR BEDSIDE HOSPITAL CURTAIN ASSEMBLIES. THIS DETERMINATION WAS BASED UPON ADVICE FROM OFFICIALS AT THE DAVID GRANT HOSPITAL THAT A SINGLE CURTAIN SYSTEM, SUCH AS THE HILL-ROM SYSTEM, WOULD FULFILL THE REQUIREMENTS OF PRIVACY AND ALSO SAVE UP TO 50 PERCENT ON CURTAIN INVENTORY AND LAUNDRY EXPENSE. ADDITIONALLY, THERE WOULD BE FEWER CURTAINS TO STORE, HANDLE, AND REPAIR. SINCE A STANDARD GOVERNMENT SPECIFICATION FOR HOSPITAL CURTAINS WAS LACKING, AND AFTER TAKING INTO CONSIDERATION THE RELATIVELY LOW DOLLAR VALUE OF THE PROCUREMENT AND THE TECHNICAL JUSTIFICATION SUBMITTED BY THE HOSPITAL FOR THE SPACE-SAVING FEATURES OF THE HILL-ROM COMPANY ITEM, THE PROCURING AGENCY DECIDED TO ADVERTISE THE REQUIREMENT ON A "BRAND NAME OR EQUAL" BASIS, AS PERMITTED BY THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.1 (A). UNDER THE CIRCUMSTANCES WE ARE INCLINED TO AGREE THAT USE OF A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION WAS APPROPRIATE.

WITH RESPECT TO WHETHER IT WAS PROPER TO DESIGNATE A PROPRIETARY ITEM, SUCH AS THE HILL-ROM ASSEMBLY, AS THE "BRAND NAME" IN THE PURCHASE DESCRIPTION, WE ARE ADVISED THAT THE CONTRACTING OFFICER WAS NOT AWARE THAT THE TRACK SWITCH FEATURE WAS PROPRIETARY TO HILL-ROM AT THE TIME THE INVITATION WAS ISSUED. HOWEVER, THE DECISIONS OF OUR OFFICE HAVE CONSISTENTLY HELD THAT IT IS PERMISSIBLE TO SPECIFY A PATENTED DEVICE ON A "BRAND NAME OR EQUAL BASIS" SO LONG AS THE PATENTED DEVICE IS, IN FACT, REPRESENTATIVE OF THE ACTUAL NEEDS OF THE PURCHASING AGENCY. THE AIR FORCE REPORT ON THE SUBJECT PROCUREMENT MAKES IT CLEAR THAT A SINGLE CURTAIN ASSEMBLY WAS CONSIDERED AN ESSENTIAL REQUIREMENT, SINCE ONLY ONE CURTAIN INSTEAD OF THE TWO IN THE CONVENTIONAL DUAL CURTAIN BEDSIDE ASSEMBLY WOULD BE NEEDED, AND THAT A MONOCURTAIN ASSEMBLY SUCH AS THAT OFFERED BY HILL-ROM WOULD ENABLE SUBSTANTIAL PROJECTED SAVINGS ON CURTAIN INVENTORY AND MAINTENANCE EXPENSES. WE MUST AGREE THAT SUCH SAVINGS ARE PROPER FACTORS FOR CONSIDERATION IN DETERMINING WHETHER SIMILAR ITEMS OF DIFFERENT DESIGN WHICH PERFORM THE SAME FUNCTION WILL MEET THE GOVERNMENT'S MINIMUM NEEDS, AND IN THE ABSENCE OF EVIDENCE THAT THE AMOUNT OF SUCH SAVINGS CANNOT REASONABLY BE EXPECTED TO EXCEED THE DIFFERENCE IN COST OVER THE EXPECTED LIFE OF THE ASSEMBLIES IN THE INSTANT PROCUREMENT WE SEE NO VALID BASIS ON WHICH WE CAN DISAGREE WITH THE PROCURING AGENCY'S DETERMINATION THAT IT NEEDED A SINGLE CURTAIN ASSEMBLY.

AS TO YOUR CONTENTION THAT THE AIR FORCE ERRED IN DETERMINING YOUR PRODUCT NONEQUIVALENT TO THE HILL-ROM ITEM, WE HAVE HELD THAT AN ACCEPTABLE PRODUCT UNDER A "BRAND NAME OR EQUAL" SOLICITATION NEED NOT BE IDENTICAL TO THE NAMED BRAND, BUT NEED ONLY CONFORM WITH THE ESSENTIAL FEATURES OF THE "BRAND NAME" ITEM. B-147036, OCTOBER 23, 1961; 38 COMP. GEN. 380. IN FAILING TO OFFER A PRODUCT PROVIDING A MONOCURTAIN ASSEMBLY IT WOULD SEEM TO FOLLOW THAT YOUR PRODUCT FAILED TO MEET THE MOST ESSENTIAL FEATURE WHICH WAS NECESSARY TO ACCOMPLISH THE DESIRED SAVINGS ON CURTAIN INVENTORY, STORAGE AND LAUNDRY EXPENSES. MOREOVER, THE ADMINISTRATIVE REPORT STATES THAT USE OF A DUAL CURTAIN ASSEMBLY WOULD CREATE "SERIOUS OPERATIONAL DIFFICULTIES FOR PERSONNEL OF THE UNIT, WHO WOULD BE UNABLE TO SEE THE HEAD AREA OF A PATIENT'S BED FROM THE HALLWAY.' ADMITTEDLY, THE HILL-ROM ITEM COST FAR MORE THAN YOUR PRODUCT, HOWEVER WE HAVE STATED THAT "THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED.' 136766, NOVEMBER 19, 1958. UNDER THE CIRCUMSTANCES WE MUST UPHOLD THE AIR FORCE'S DETERMINATION OF YOUR PRODUCT'S NONEQUIVALENCE TO THE HILL-ROM ITEM IN THE INSTANT PROCUREMENT.

FINALLY, YOU CONTEND THAT YOUR PRODUCT BEST SERVES THE "ORIGINAL NEED" OF THE GOVERNMENT IN PROVIDING MAXIMUM PRIVACY TO THE PATIENTS AT MINIMUM COST. ADMITTEDLY, YOUR DUAL CURTAIN SYSTEM WOULD SERVE SUCH A NEED. HOWEVER, IT IS THE POSITION OF THE PROCURING ACTIVITY THAT PROVIDING MAXIMUM PRIVACY WAS NOT THE PRIMARY CONCERN IN THIS PROCUREMENT. RATHER, THE CHIEF DEMAND OF THE REQUIRING ACTIVITY WAS THAT OF DECREASING CURTAIN INVENTORY AND MAINTENANCE EXPENSES IN THE USE OF SUCH CURTAINS, AND THAT ONLY REASONABLE, RATHER THAN MAXIMUM, PRIVACY WAS REQUIRED.

IN FAILING TO DESCRIBE IN MORE SPECIFIC DETAIL THOSE FEATURES OF THE HILL -ROM ASSEMBLY WHICH WERE ESSENTIAL TO THE AGENCY'S NEEDS, I.E., A MONOCURTAIN ASSEMBLY TO DECREASE MAINTENANCE AND LAUNDRY COSTS AND PROVIDE A BETTER VIEW OF THE HEAD AREA OF A PATIENT'S BED, THE SOLICITATION APPARENTLY FAILED TO COMPLY WITH ASPR 1-1206.2 (B), THE PROVISIONS OF WHICH REQUIRE THAT WHEN THE ,BRAND NAME OR EQUAL" TECHNIQUE IS UTILIZED THE DESCRIPTION SHOULD SET FORTH THOSE "SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.' WE ARE THEREFORE ADVISING THE AIR FORCE THAT IN FUTURE PROCUREMENTS CARE SHOULD BE TAKEN TO ENSURE ADEQUATE COMPLIANCE WITH THE DIRECTIVE OF ASPR 1-1206.2 (B). HOWEVER, SINCE IT DOES NOT APPEAR THAT YOU WERE MISLED BY SUCH DEFICIENCY IN THE INVITATION, AND IN VIEW OF OUR CONCLUSIONS, AS SET OUT ABOVE, THAT THE PROCUREMENT WAS OTHERWISE PROPER, YOUR PROTEST MUST BE DENIED.