B-161704, SEP. 26, 1967

B-161704: Sep 26, 1967

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CONCERNING ALLEGATION THAT USE OF BRAND NAME OR EQUAL SPECIFICATIONS FOR AUTOMATIC POWER TRANSFER EQUIPMENT WERE RESTRICTIVE. ALLEGING THAT RESTRICTIVE BRAND NAME OR EQUAL SPECIFICATIONS WERE UTILIZED BY THE UNITED STATES INFORMATION AGENCY CONTRACT AND PROCUREMENT DIVISION IN INVITATION FOR BIDS NO. 67-210-04 (CN). NINE BIDS WERE RECEIVED. 466.70 WAS SECOND LOW AMONG THOSE RESPONDING TO ALL FIVE ITEMS OF THE INVITATION. WAS FOURTH LOW. IN ADDITION THE TRANSFER SWITCHES WERE DESCRIBED BY SUCH CHARACTERISTICS AS VOLTAGE. THIS PORTION OF THE SPECIFICATIONS IS NOT CHALLENGED. THE PROTESTING BIDDER STATES THAT THE SPECIFICATIONS ALSO DESCRIBE MECHANICAL DESIGN FEATURES OF TRANSFER SWITCHES MANUFACTURED BY ASCO WHICH ARE NOT COMMON TO ITS COMPETITORS' PRODUCTS.

B-161704, SEP. 26, 1967

BIDS - SPECIFICATIONS - RESTRICTIVE DECISION TO DIRECTOR, U.S.I.A. CONCERNING ALLEGATION THAT USE OF BRAND NAME OR EQUAL SPECIFICATIONS FOR AUTOMATIC POWER TRANSFER EQUIPMENT WERE RESTRICTIVE. THE USE OF A BRAND NAME OR EQUAL SPECIFICATION DESCRIBING THE MECHANICAL DESIGN FEATURES OF TRANSFER SWITCHES MANUFACTURED BY ONE FIRM INCIDENT TO A PROCUREMENT OF POWER TRANSFER EQUIPMENT WHEN RECENT PROCUREMENTS OF SIMILAR EQUIPMENT BY OTHER AGENCIES FOR USE IN CRITICAL SITUATIONS DID NOT RESTRICT THE SPECIFICATIONS TO ONE MANUFACTURER TENDS TO INDICATE THAT SUCH SPECIFICATIONS, RESULTING IN SEVERELY LIMITING COMPETITION, NEED NOT BE USED TO SATISFY THE AGENCY NEEDS. WHILE THE USE OF THE SPECIFICATIONS DOES NOT MAKE THE AWARD ILLEGAL, AGENCY REQUIREMENTS SHOULD BE REEVALUATED TO SEE IF THE NEEDS CANNOT BE MET BY MORE GENERALLY STATED SPECIFICATIONS.

TO MR. MARKS:

WE REFER TO A LETTER DATED JULY 18, 1967, FROM COHN, RIEMER AND POLLACK, COUNSELLORS AT LAW, IN BEHALF OF R.G. RUSSELL COMPANY, INCORPORATED, ALLEGING THAT RESTRICTIVE BRAND NAME OR EQUAL SPECIFICATIONS WERE UTILIZED BY THE UNITED STATES INFORMATION AGENCY CONTRACT AND PROCUREMENT DIVISION IN INVITATION FOR BIDS NO. 67-210-04 (CN), ISSUED MARCH 29, 1967, TO PROCURE AUTOMATIC POWER TRANSFER EQUIPMENT.

AT BID OPENING, APRIL 20, 1967, NINE BIDS WERE RECEIVED. THE BID OF THE PROTESTING FIRM, R. G. RUSSELL, AT $11,466.70 WAS SECOND LOW AMONG THOSE RESPONDING TO ALL FIVE ITEMS OF THE INVITATION, AND THAT OF THE SUCCESSFUL BIDDER, GENERAL ELECTRIC SUPPLY, AT $14,859.00, WAS FOURTH LOW. THE INVITATION CALLED FOR THREE AUTOMATIC TRANSFER SWITCHES, A CONTROL PANEL, AND A BATTERY CHARGER SET SPECIFIED AS AUTOMATIC SWITCH COMPANY (ASCO) MODEL NUMBERS OR EQUAL. IN ADDITION THE TRANSFER SWITCHES WERE DESCRIBED BY SUCH CHARACTERISTICS AS VOLTAGE, AMPERE RATING PER POLE AND THE PERCENTAGE REDUCTION OF POWER SUPPLY NEEDED TO TRIGGER THE TRANSFER OPERATION. THIS PORTION OF THE SPECIFICATIONS IS NOT CHALLENGED. HOWEVER, THE PROTESTING BIDDER STATES THAT THE SPECIFICATIONS ALSO DESCRIBE MECHANICAL DESIGN FEATURES OF TRANSFER SWITCHES MANUFACTURED BY ASCO WHICH ARE NOT COMMON TO ITS COMPETITORS' PRODUCTS. FOR EXAMPLE, INSTEAD OF PERMITTING A CHOICE OF METHOD FOR ACCOMPLISHING THE THROWING OPERATION OF THE SWITCH, THE SPECIFICATIONS REQUIRE THAT ACCEPTABLE SWITCHES "SHALL BE OPERATED BY A SINGLE SOLENOID MOMENTARILY ENERGIZED.'

R. G. RUSSELL CONTENDS THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE SINCE THEY EXCLUDE FROM CONSIDERATION AUTOMATIC TRANSFER SWITCHES UTILIZING A SINGLE PHASE MOTOR OR TWO SOLENOIDS IN LIEU OF A SINGLE SOLENOID.

RUSSELL HAS SUBMITTED COPIES OF SPECIFICATIONS FOR AUTOMATIC TRANSFER SWITCHES USED BY THE GENERAL SERVICES ADMINISTRATION, THE VETERANS ADMINISTRATION, AND THE FEDERAL AVIATION AGENCY. THESE SPECIFICATIONS EMPHASIZE PERFORMANCE REQUIREMENTS RATHER THAN MECHANICAL CHARACTERISTICS. FOR EXAMPLE, THE FAA SPECIFICATIONS REQUIRE THE SWITCH MANUFACTURER TO FURNISH A TEST REPORT FROM A NATIONALLY RECOGNIZED, INDEPENDENT TEST LABORATORY CERTIFYING THAT THE AUTOMATIC TRANSFER SWITCHES OFFERED WILL SATISFY SUCH PERFORMANCE CRITERIA AS WITHSTANDING A STATED ELECTRICAL OVERLOAD WITHOUT FAILURE, OPERATING FOR 6,000 CONSECUTIVE POWER TRANSFERS WITHOUT FAILURE OR ARC OVER AND REMAINING WITHIN CERTAIN TEMPERATURE RISE LIMITATIONS WHEN UNDER A FULL LOAD.

IT IS OUR OPINION THAT THE USE OF PERFORMANCE ORIENTED SPECIFICATIONS WHERE PRACTICAL WILL BEST PROTECT BOTH THE GOVERNMENT'S INTEREST IN OBTAINING ITS MINIMUM NEEDS AT FAVORABLE PRICES AND INDUSTRY'S INTEREST IN INSURING THAT ALL MANUFACTURERS HAVE AN OPPORTUNITY TO COMPETE FOR GOVERNMENT PURCHASES. IN 45 COMP. GEN. 462, A CASE CONCERNING A SOLICITATION ISSUED TO PROCURE WIDEBAND TAPE RECORDER SYSTEMS ON A BRAND NAME OR EQUAL BASIS, THE SPECIFICATIONS "PRESCRIBED DETAIL DESIGN APPROACHES USED EXCLUSIVELY BY THE BRAND NAME MANUFACTURER TO ACCOMPLISH CERTAIN FUNCTIONAL RESULTS.' WE VIEWED THE CASE AS CONFINED TO THE QUESTION "WHETHER THE IMPOSITION OF DESIGN CRITERIA, AS DISTINGUISHED FROM PERFORMANCE CRITERIA, IN A BRAND NAME OR EQUAL PROCUREMENT CONSTITUTES AN IMPROPER RESTRICTION ON COMPETITION.'

IN DETERMINING THAT THE BRAND NAME OR EQUAL SPECIFICATIONS WERE UNNECESSARILY RESTRICTIVE OF COMPETITION, WE CONCLUDED:

"* * * THE OVERRIDING CONSIDERATION IN DETERMINING EQUALITY OR SIMILARITY OF ANOTHER COMMERCIAL PRODUCT TO A BRAND NAME COMMERCIAL PRODUCT IS WHETHER ITS PERFORMANCE CAPABILITIES CAN BE REASONABLY EQUATED TO THE BRAND NAME REFERENCED. IN OTHER WORDS, WHETHER THE EQUAL PRODUCT CAN DO THE SAME JOB IN A LIKE MANNER AND WITH THE DESIRED RESULTS SHOULD BE THE DETERMINATIVE CRITERIA RATHER THAN WHETHER CERTAIN FEATURES OF DESIGN OF THE BRAND NAME ARE ALSO PRESENT IN THE EQUAL- PRODUCT. * * *.'

WE FEEL THIS STATEMENT IS APPLICABLE TO THE FACTS OF THE PRESENT CASE, WHERE RUSSELL HAS PROTESTED THE INCLUSION IN THE SPECIFICATIONS OF DESIGN FEATURES PECULIAR TO ASCO TRANSFER SWITCHES. AS NOTED, PERFORMANCE ORIENTED SPECIFICATIONS FOR TRANSFER SWITCHES ARE BEING USED BY A NUMBER OF FEDERAL AGENCIES. FOR THOSE AGENCIES, AT LEAST, THE PERFORMANCE TYPE SPECIFICATIONS APPEAR TO RESULT IN PROCUREMENTS WHICH SATISFY THE GOVERNMENT'S NEEDS WITHOUT SPECIFYING THE CHARACTERISTICS OF ANY PARTICULAR BRAND OF SWITCH.

ON THE OTHER HAND, THE PROTESTED SPECIFICATIONS CLOSELY PARALLEL THE ACTUAL DESIGN FEATURES OF ASCO SWITCHES. IN PARTICULAR, THE REQUIREMENT FOR A SINGLE SOLENOID OPERATOR APPEARS TO EXCLUDE THE REGULAR PRODUCT OF ANY OTHER MANUFACTURER. IN THIS CONNECTION, WE NOTE THAT SPECIFICATIONS RECENTLY ADVERTISED FOR AN EMERGENCY POWER SYSTEM TO BE INSTALLED IN WALTER REED MEDICAL CENTER DID NOT SO RESTRICT THE DESIGN OF THE OPERATOR USED IN THE AUTOMATIC TRANSFER SWITCHES DESPITE THE OBVIOUS CRITICAL NEED FOR AN UNINTERRUPTED POWER SUPPLY IN THE MEDICAL CENTER. SEE B-161282, JULY 20, 1967.

FURTHER, FPR 1-1.307-1 (B) PROHIBITS THE USE OF SPECIFICATIONS WHICH "SPECIFY A PRODUCT HAVING FEATURES WHICH ARE PECULIAR TO THE PRODUCT OF ONE MANUFACTURER, PRODUCER OR DISTRIBUTOR," UNLESS IT IS DETERMINED THE FEATURES ARE ESSENTIAL TO THE GOVERNMENT'S NEEDS. IN 43 COMP. GEN. 481 WE HELD THAT SPECIFICATIONS DRAWN TO FAVOR ONE MANUFACTURER'S STANDARD COMMERCIAL STREET CLEANER OVER ITS COMPETITORS WERE IMPROPER AS IN CONTROVENTION OF FPR 1-1.307-1 (B).

THE DRAFTING OF PROPER SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY. 17 COMP. GEN. 554. HOWEVER, THIS OFFICE HAS A DUTY TO INSURE THAT SPECIFICATIONS DRAFTED BY PROCURING ACTIVITIES ARE ADEQUATE TO PERMIT COMPETITION TO THE FULLEST PRACTICABLE EXTENT UNDER THE CIRCUMSTANCES. 38 COMP. GEN. 190. CLEARLY, THE GREATER COMPETITION WHICH IS ONE OF THE CHIEF PURPOSES OF THE LAWS AND REGULATIONS DEALING WITH GOVERNMENT PROCUREMENT CAN BE BETTER ACHIEVED BY THE USE OF MORE GENERALLY STATED SPECIFICATIONS WHETHER OF THE PERFORMANCE OR DESIGN TYPE. THE USE OF SUCH GENERAL SPECIFICATIONS, AS ALREADY NOTED, BY SEVERAL FEDERAL AGENCIES IN SUCH CRITICAL AREAS AS HOSPITALS AND FLIGHT CONTROL AND NAVIGATION FACILITIES WHICH OBVIOUSLY REQUIRE A RELIABLE, UNINTERRUPTED SOURCE OF ELECTRIC POWER, TENDS STRONGLY TO INDICATE THAT THE KIND OF SPECIFICATIONS USED IN THIS CASE, RESULTING IN SEVERELY LIMITED COMPETITION NEED NOT BE EMPLOYED TO SATISFY THE AGENCY'S LEGITIMATE NEEDS.

WHILE WE DO NOT THINK THE CIRCUMSTANCES NECESSARILY REQUIRE A CONCLUSION THAT THE PROCUREMENT WAS ILLEGALLY AWARDED, THERE IS AMPLE EVIDENCE TO WARRANT A CAREFUL REEVALUATION BY YOUR OFFICE OF THE NEED FOR SPECIFYING DESIGN CHARACTERISTICS WHICH APPARENTLY CAN BE MET BY THE REGULAR PRODUCT OF ONLY A SINGLE MANUFACTURER.