B-161884, AUG. 25, 1967

B-161884: Aug 25, 1967

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BIDDER WHO PROTESTS USE OF "BRAND NAME OR EQUAL" SPECIFICATIONS AS RESTRICTIVE AND DETERMINATION THAT PRODUCT DID NOT MEET SPECIFICATIONS MUST HAVE PROTEST DENIED SINCE AGENCY JUSTIFICATION FOR USE OF BRAND NAME OR EQUAL SPECIFICATIONS MEETS CRITERIA FOR SUCH USE AS PRESCRIBED IN FPR 1 -1.307-6 AND FURTHER RECORD SHOWS THAT BIDDER'S PRODUCT DID NOT COMPLY WITH SPECIFICATION IS SUPPORTED. SPECIFICATION IS NOT RESTRICTIVE. SECRETARY: REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 23. BIDS WERE OPENED ON JUNE 19. AMENDMENT NO. 1 TO THE INVITATION (WHICH WE NOTE WAS SIGNED AND ACKNOWLEDGED ON JUNE 14. BY YOU) WAS ISSUED "TO INCORPORATE BRAND NAME OR EQUAL CLAUSE FOR THE MATERIAL LISTED UNDER PARAGRAPH 2-04 OF THE TECHNICAL SPECIFICATIONS.'.

B-161884, AUG. 25, 1967

BIDS - SPECIFICATIONS - RESTRICTION DECISION TO SUPERIOR MAINTENANCE CORPORATION PROTESTING RESTRICTIVE BRAND NAME OR EQUAL SPECIFICATIONS FOR WALL COVERING FOR DOG KENNEL UNITS FOR ANIMAL LABORATORY FOR FOOD AND DRUG ADMINISTRATION. BIDDER WHO PROTESTS USE OF "BRAND NAME OR EQUAL" SPECIFICATIONS AS RESTRICTIVE AND DETERMINATION THAT PRODUCT DID NOT MEET SPECIFICATIONS MUST HAVE PROTEST DENIED SINCE AGENCY JUSTIFICATION FOR USE OF BRAND NAME OR EQUAL SPECIFICATIONS MEETS CRITERIA FOR SUCH USE AS PRESCRIBED IN FPR 1 -1.307-6 AND FURTHER RECORD SHOWS THAT BIDDER'S PRODUCT DID NOT COMPLY WITH SPECIFICATION IS SUPPORTED. ALSO IN ABSENCE OF EVIDENCE THAT SPECIFICATION PRECLUDED ALL BUT SUCCESSFUL BIDDER, SPECIFICATION IS NOT RESTRICTIVE.

TO MR. JOHN F. LARSEN, SECRETARY:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 23, 1967, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. FMB-9137152-65, PROC 67106/F), ISSUED BY THE FOOD AND DRUG ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.

THE INVITATION, ISSUED ON MAY 26, 1967, SOLICITED BIDS FOR FURNISHING ALL THE LABOR, MATERIALS AND SUPPLIES REQUIRED FOR SANDBLASTING AND INSTALLATION OF A SPECIAL WALL FINISH FOR DOG KENNEL UNITS WITHIN THE SPECIAL PHARMACOLOGICAL ANIMAL LABORATORY FACILITIES, IN ACCORDANCE WITH ATTACHED SPECIFICATIONS. BIDS WERE OPENED ON JUNE 19, 1967. PARAGRAPH 2- 04A OF THE TECHNICAL SPECIFICATIONS, RELATING TO THE MATERIALS TO BE USED FOR THE SPECIAL WALL FINISHES INVOLVED, SPECIFIED THAT:

"A. THE SPECIAL WALL COVERING SHALL BE -LIQUID TILE,- THE STANDARD COMMERCIAL PRODUCT OF -EVERSHIELD PRODUCTS, INC., JOPPA, MARYLAND, AREA CODE 301-679-555.- "

WITH REGARD TO THE PRODUCT "LIQUID TILE" SPECIFIED ABOVE, AMENDMENT NO. 1 TO THE INVITATION (WHICH WE NOTE WAS SIGNED AND ACKNOWLEDGED ON JUNE 14, 1967, BY YOU) WAS ISSUED "TO INCORPORATE BRAND NAME OR EQUAL CLAUSE FOR THE MATERIAL LISTED UNDER PARAGRAPH 2-04 OF THE TECHNICAL SPECIFICATIONS.' THAT BEING THE CASE, PROSPECTIVE BIDDERS WERE NOT RESTRICTED TO THE USE OF THE NAMED "LIQUID TILE" AND COULD HAVE OFFERED AN EQUAL OR SUPERIOR PRODUCT IN THEIR BIDS. IT IS REPORTED THAT AWARD OF CONTRACT UNDER THE INVITATION WAS MADE TO THE BUILDING MAINTENANCE CORPORATION ON JUNE 23, 1967, AND BY LETTER OF THE SAME DATE FROM THE PROCUREMENT OFFICE YOU WERE ADVISED THAT YOUR BID WHICH OFFERED "M.A. BRUDER AND SONS, INC. PLY-TILE -600 LINE,- " IN LIEU OF "LIQUID TILE" NAMED IN THE SPECIFICATIONS, DID NOT MEET THE SPECIFICATION REQUIREMENTS. IN THIS CONNECTION, THE SPECIFICATIONS REQUIRED A 5-COAT SYSTEM OF WALL FINISH. HOWEVER, THE BRUDER CATALOGUE THAT ACCOMPANIED YOUR BID OUTLINED ONLY A 3-COAT SYSTEM AND NO FIBERGLASS ROVING WAS OFFERED AS REQUIRED BY THE SPECIFICATIONS. IN VIEW OF THIS, THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE, AND AWARD WAS MADE TO THE NEXT LOWEST RESPONSIBLE AND RESPONSIVE BIDDER. WE FIND NO BASIS TO DISAGREE WITH THAT DETERMINATION.

YOU CONTEND THAT THE SPECIFICATION IS RESTRICTIVE AND, IN ANY EVENT, YOU OFFERED A PRODUCT EQUAL IN ALL MATERIAL RESPECTS TO THAT REQUESTED BY THE PROCURING AGENCY. IN THIS CONNECTION, THE INVITATION, AS AMENDED, INCORPORATED THE STANDARD "BRAND NAME OR EQUAL" CLAUSE PRESCRIBED BY SECTION 1-1.307-6 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), WHICH WAS MADE PARTICULARLY APPLICABLE TO THE MATERIAL SPECIFIED IN PARAGRAPH 2-04 OF THE SPECIFICATIONS. UNDER THAT CLAUSE, THE EVALUATION OF BIDS AND THE DETERMINATION OF EQUALITY OF THE PRODUCT OFFERED IS THE RESPONSIBILITY OF THE GOVERNMENT AND IS BASED ON INFORMATION FURNISHED BY THE BIDDER. THE PROCURING AGENCY JUSTIFIED THE USE OF THE BRAND NAME OR EQUAL SPECIFICATION AS FOLLOWS:

"* * * IN THAT PARAGRAPH (2-04) WE REFERRED TO THE PRODUCT -LIQUID TILE- WHICH IS THE STANDARD COMMERCIAL PRODUCT OF EVERSHIELD PRODUCTS, INC., JOPPA, MARYLAND. THE PRODUCT MANUFACTURED BY EVERSHIELD CONSISTS OF A FIVE COAT SYSTEM WHICH IS APPLIED TO THE MASONRY WALLS. WHEN THE DOG KENNELS AT SPAL WERE INITIALLY CONSTRUCTED, AN EPOXY COATING WAS APPLIED TO THE WALLS. AFTER A PERIOD OF TIME THIS COATING BEGAN TO FLAKE OFF AND THE FLAKINGS WERE BEING EATEN BY THE DOGS THUS RESULTING IN ADVERSE CONDITIONS OCCURRING IN THE EXPERIMENTS MADE WITH THE DOGS. THE WALLS WERE RECOVERED WITH THIS EPOXY COATING AT A LATER DATE AND THE SAME CONDITIONS THAT OCCURRED WITH THE FIRST COATING REOCCURRED WITH THE SECOND COATING. SINCE THE EXPERIMENTATION WITH THE ANIMALS WAS ADVERSELY AFFECTED BY THE CONSUMPTION OF THE FLAKINGS OF THE PAINT, OUR ENGINEERS CONSULTED WITH REPRESENTATIVES OF THE NATIONAL BUREAU OF STANDARDS, THE GENERAL SERVICES ADMINISTRATION, THE NATIONAL PAINT VARNISH AND LACQUER ASSOCIATION, AND MEMBERS OF THE INDUSTRY IN ORDER TO DETERMINE WHAT COATING COULD BEST BE APPLIED TO THE MASONRY WALLS AND WHICH WOULD ADHERE TO THE WALLS FOR AN EXTENDED PERIOD OF TIME WITHOUT FLAKING. THE MATERIAL RECOMMENDED BY THESE SOURCES WAS THE COATING SYSTEM PRODUCED BY EVERSHIELD PRODUCTS, INC. INFORMATION WAS NOT AVAILABLE TO US AS TO WHETHER A SIMILAR COATING SYSTEM OR AN EQUAL COATING SYSTEM WAS BEING MANUFACTURED BY ANY OTHER COMPANY. THUS WE UTILIZED THIS BRAND NAME PRODUCT AND INCORPORATED THE BRAND NAME OR EQUAL CLAUSE AS PRESCRIBED BY THE FPR. IT MUST BE POINTED OUT THAT OF THE SIX BIDS RECEIVED IN RESPONSE TO OUR IFB, FIVE OF THE BIDDERS OFFERED THE BRAND NAME PRODUCT SPECIFIED.'

WE FEEL THAT THE FOREGOING CONSTITUTES AN ADEQUATE ADMINISTRATIVE JUSTIFICATION OF THE USE AND APPLICATION OF THE CLAUSE AS CONTEMPLATED BY FPR SEC. 1-1.307-4 THROUGH -7.

THE PRIMARY DETERMINATION AS TO WHETHER AN OFFERED PRODUCT COMPLIES WITH SPECIFICATIONS NECESSARILY RESTS WITH THE ADMINISTRATIVE PERSONNEL, SINCE SUCH PERSONNEL HAVE A COMPLETE AND DETAILED KNOWLEDGE OF THE PRODUCT OR EQUIPMENT BEING PROCURED, AS WELL AS OF THE USE OR FUNCTION THEREOF. ENGINEERS AND TECHNICIANS ARE AVAILABLE TO THE ADMINISTRATIVE AGENCY TO EVALUATE THE PRODUCT BEING OFFERED BY REFERENCE TO THE DESCRIPTIVE LITERATURE, SPECIAL TESTS, ETC. SINCE IT IS NOT APPARENT FROM THE RECORD BEFORE US THAT THE ADMINISTRATIVE DETERMINATION IN THIS REGARD WAS ARBITRARY OR CAPRICIOUS OR WITHOUT SUBSTANTIAL BASIS, AND SINCE THE PROCUREMENT OFFICIALS ARE BETTER QUALIFIED THAN OUR OFFICE TO REVIEW AND EVALUATE THE SUFFICIENCY OF OFFERED PRODUCTS TO DETERMINE WHETHER THEY MEET THE QUALITATIVE REQUIREMENTS THAT ARE NEEDED, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY. 17 COMP. GEN. 554; 35 ID. 174. AND MATERIAL NOT FULFILLING PARTICULAR NEEDS TO BE SERVED IS NOT REQUIRED TO BE PURCHASED SOLELY BECAUSE IT CAN BE PURCHASED CHEAPER. 36 COMP. GEN. 251, 252. MOREOVER, IN THE ABSENCE OF EVIDENCE THAT THE SPECIFICATION PRECLUDED ALL BUT THE SUCCESSFUL BIDDER FROM MEETING THE REQUIREMENTS, THE SPECIFICATION MAY NOT BE REGARDED AS RESTRICTIVE OF COMPETITION. B-150210, DECEMBER 11, 1962.