B-162113, FEBRUARY 6, 1968, 47 COMP. GEN. 409

B-162113: Feb 6, 1968

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WHICH INCORPORATED BY REFERENCE A BRAND NAME OR EQUAL CLAUSE WAS RESTRICTIVE OF COMPETITION WHERE UNDER THE FIRST RFP ONLY ONE OFFER WAS RECEIVED IN RESPONSE TO LIMITED COMPETITION THAT DID NOT MEET THE COMPETITION CONTEMPLATED BY 10 U.S.C. 2304 (G) AND. ALTHOUGH THE AWARD WILL NOT BE DISTURBED. 1968: REFERENCE IS MADE TO LETTER KDI. THE RECORD INDICATES THAT THE CONTRACT WAS NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (11) AND NATIONAL AERONAUTICS AND SPACE ADMINISTRATION PROCUREMENT REGULATION (NABA PR) 3.211. WAS ISSUED TO FIVE FIRMS SELECTED FROM A TOTAL SOURCE LIST OF 72 FIRMS CONSIDERED CAPABLE OF SUPPLYING ONE EACH OF THE ITEM DESCRIBED. WAS ISSUED TO 19 PROSPECTIVE CONTRACTORS FOR THE PURCHASE OF TWO SIMILAR SOLAR SIMULATORS IDENTIFIED IN THE SOLICITATION.

B-162113, FEBRUARY 6, 1968, 47 COMP. GEN. 409

CONTRACTS - NEGOTIATION - COMPETITION - ADEQUATE THE NEGOTIATION PURSUANT TO 10 U.S.C. 2304 (A) (11) OF ONE CONTRACT UNDER TWO REQUESTS FOR PROPOSALS (RFP), WHICH INCORPORATED BY REFERENCE A BRAND NAME OR EQUAL CLAUSE WAS RESTRICTIVE OF COMPETITION WHERE UNDER THE FIRST RFP ONLY ONE OFFER WAS RECEIVED IN RESPONSE TO LIMITED COMPETITION THAT DID NOT MEET THE COMPETITION CONTEMPLATED BY 10 U.S.C. 2304 (G) AND, THEREFORE, CONSTITUTED A SOLE-SOURCE PROCUREMENT, AND WHERE THE REJECTION OF THE ONLY OTHER PROPOSAL UNDER THE SECOND RFP FOR FAILURE TO MEET THE SALIENT CHARACTERISTICS OF THE BRAND-NAME ITEM INDICATED PREFERENCE FOR THE BRAND NAME. ALTHOUGH THE AWARD WILL NOT BE DISTURBED, PERFORMANCE SPECIFICATIONS SHOULD BE DRAFTED IN ORDER TO OBTAIN, WHETHER BY ADVERTISING OR NEGOTIATION, ADEQUATE AND EFFECTIVE COMPETITION IN THE FUTURE.

TO THE ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, FEBRUARY 6, 1968:

REFERENCE IS MADE TO LETTER KDI, DATED NOVEMBER 14, 1967, FROM THE DIRECTOR OF PROCUREMENT, FURNISHING A REPORT REQUESTED BY OUR OFFICE ON AUGUST 3, 1967, WITH REGARD TO THE PROTEST OF THE AEROSPACE CONTROLS CORPORATION (AEROSPACE) AGAINST THE AWARD OF CONTRACT NO. NAS-22276, UNDER REQUESTS FOR PROPOSALS NOS. 2-7-15-75563-01 AND 2-7-15-71593-01, ISSUED BY THE GEORGE C. MARSHALL SPACE FLIGHT CENTER, HUNTSVILLE, ALABAMA.

THE RECORD INDICATES THAT THE CONTRACT WAS NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (11) AND NATIONAL AERONAUTICS AND SPACE ADMINISTRATION PROCUREMENT REGULATION (NABA PR) 3.211, WHICH AUTHORIZE THE AGENCY TO NEGOTIATE, WITHOUT FORMAL ADVERTISING, FOR THE PROCUREMENT OF PROPERTY DETERMINED TO BE FOR EXPERIMENTAL, DEVELOPMENT, OR RESEARCH WORK.

SOLICITATION NO. -75563-01, DATED MARCH 8, 1967, WAS ISSUED TO FIVE FIRMS SELECTED FROM A TOTAL SOURCE LIST OF 72 FIRMS CONSIDERED CAPABLE OF SUPPLYING ONE EACH OF THE ITEM DESCRIBED, AS OLLOWS: "SIMULATOR, SOLAR, SPECTROSUN MOD. X-75LS W/CONTROL PANEL 3XENON SHORT ARC LAMPS, BEAM HEIGHT 48 INCHES FROM FLOOR, INTENSITY CAPABILITY FROM 25 TO 155 MILLIWATTS PER SQUARE CENTIMETER, ILLUMINATION AREA 24 INCHES X 24 INCHES, INTENSITY DISTRIBUTION UNIFORMITY PLUS/MINUS 3 PERCENT AS MEASURED BY A ONE SQUARE CENTIMETER MONITOR. * * *"

SOLICITATION NO. -71593-01, DATED MARCH 9, 1967, WAS ISSUED TO 19 PROSPECTIVE CONTRACTORS FOR THE PURCHASE OF TWO SIMILAR SOLAR SIMULATORS IDENTIFIED IN THE SOLICITATION, IN PART AS FOLLOWS: ,THE FOLLOWING SPECTROLAB ITEM OR EQUAL: "SOLAR SIMULATOR, X-25 -SPECTROSUN WITH ACCESSORIES WHICH INCLUDE (S) FILTER SET FOR CLOSE SPECTRAL MATCH AND (E) ELECTRONIC BEAM HEIGHT ADJUSTMENT. (FSC 6625 BL00001).'

ARTICLE NO. XIII OF BOTH SOLICITATIONS ADVISED PROSPECTIVE OFFERORS OF THE INCORPORATION BY REFERENCE OF THE "BRAND-NAME OR EQUAL" STANDARD CLAUSE BY ATTACHMENT NO. II THERETO.

WE NOTE THAT IN VIEW OF THE SIMILARITY OF THE ITEMS COVERED BY THE TWO SOLICITATIONS WHICH WERE ISSUED ONLY ONE DAY APART, BOTH SOLICITATIONS WERE ASSIGNED TO ONE CONTRACTING OFFICIAL PRIOR TO THE DUE DATE FOR RECEIPT OF PROPOSALS UNDER EACH SOLICITATION, BECAUSE OF THE POSSIBILITY OF COMBINING THE TWO PROCUREMENTS INTO ONE CONTRACT.

IN VIEW OF AN URGENT NEED FOR THE ONE ITEM COVERED BY SOLICITATION NO. - 75563-01, IT WAS DETERMINED THAT THE PROCUREMENT WOULD NOT BE PUBLICIZED IN THE COMMERCE BUSINESS DAILY, AS GENERALLY REQUIRED BY NASA PR 1.1003-1, BECAUSE THE DELAYS INCIDENT TO SUCH AN ACTION WOULD ADVERSELY AFFECT THE MISSION OF THE PROCUREMENT ACTIVITY. SEE NASA PR 1.1003-2 (C) (IV).

ONE RESPONSE WAS RECEIVED UNDER SOLICITATION NO. -75563-01 FROM SPECTROLAB, A DIVISION OF TEXTRON ELECTRONICS, INC., IN THE AMOUNT OF $54,196.50. INASMUCH AS SPECTROLAB PROPOSED TO FURNISH ITS SPECTROSUN X- 75LS SOLAR SIMULATOR -- THE ITEM DESCRIBED IN THE SOLICITATION -- ITS TECHNICAL PROPOSAL WAS CONSIDERED BY THE PROCUREMENT ACTIVITY TO BE ACCEPTABLE.

TWO PROPOSALS WERE RECEIVED IN RESPONSE TO SOLICITATION NO. -71593 01. AEROSPACE OFFERED TO SUPPLY THE TWO UNITS FOR A TOTAL PRICE OF $40,343, AND SPECTROLAB OFFERED TO FURNISH BOTH UNITS FOR $54,320. SUBSEQUENT TO EVALUATION OF THE TWO PROPOSALS, THE PROCUREMENT ACTIVITY CONCLUDED THAT AEROSPACE WAS NONRESPONSIVE TO THE SOLICITATION SINCE THE ITEM IT OFFERED AS "EQUAL" TO THE REFERENCED BRAND-NAME ITEM DEVIATED SUBSTANTIALLY FROM FOUR OF THE SALIENT FEATURES SET FORTH IN THE PURCHASE DESCRIPTION. SPECTROLAB'S PROPOSAL UNDER SOLICITATION NO. -71593-01 WAS CONSIDERED TO BE ACCEPTABLE SINCE IT OFFERED TO FURNISH ITS BRAND-NAME ITEM AS SPECIFIED.

DURING THE TIME THE TWO PROPOSALS SUBMITTED IN RESPONSE TO SOLICITATION NO. -71593-01 WERE BEING EVALUATED, A NEED AROSE FOR AN ADDITIONAL SOLAR SIMULATOR. ACCORDINGLY, NEGOTIATIONS WERE CONDUCTED WITH SPECTROLAB TO INCREASE THE QUANTITY FROM TWO TO THREE UNITS. THEREAFTER, WHEN IT BECAME EVIDENT THAT SPECTROLAB HAD SUBMITTED THE ONLY ACCEPTABLE PROPOSAL UNDER EACH SOLICITATION, FURTHER NEGOTIATIONS WERE CONDUCTED WITH THAT FIRM ALONE WHICH CULMINATED IN THE AWARD OF THE CONTRACT COVERING BOTH SOLICITATION REQUIREMENTS FOR THE PURCHASE OF ONE SPECTROSUN X-75LS SOLAR SIMULATOR AND THREE SPECTROSUN X-25 SOLAR SIMULATORS.

BY LETTER DATED JULY 20, 1967, AEROSPACE PROTESTED AGAINST THE AWARD OF THE CONTRACT TO SPECTROLAB ON THE GROUNDS THAT IT HAD NOT BEEN GIVEN AN OPPORTUNITY TO COMPETE FOR THE AWARD OF A CONTRACT UNDER SOLICITATION NO. -75563-01, AND BECAUSE THE REJECTION OF ITS PROPOSAL UNDER SOLICITATION NO. -71593-01 WAS IMPROPER. AEROSPACE HAS ALSO CONTENDED THAT THE EQUIPMENT IT HAD OFFERED UNDER THE LATTER SOLICITATION WOULD HAVE PERFORMED EQUALLY WELL AS THE BRAND-NAME ITEM AND, IN THE ALTERNATIVE, THAT IT HAD NOT BEEN GIVEN AN OPPORTUNITY TO MODIFY ITS PROPOSAL, THROUGH NEGOTIATION, TO MAKE IT FULLY RESPONSIVE TO THE MINIMUM NEEDS OF THE GOVERNMENT. IN ADDITION, AEROSPACE CHALLENGED THE USE OF A "BRAND-NAME OR EQUAL" TYPE PURCHASE DESCRIPTION IN BOTH SOLICITATIONS ON THE BASIS THAT IT WAS INDICATIVE OF EFFORTS BY THE PROCUREMENT ACTIVITY TO EXCLUDE OR DISCOURAGE SOURCES OF SUPPLY OTHER THAN THE MANUFACTURER OF THE BRAND-NAME ARTICLE. WE NOTE AGAIN THAT THE PROCUREMENT AGENCY'S SOURCE LIST CONSISTED OF 72 FIRMS CAPABLE OF SUPPLYING THE ITEM. SPECIFICALLY, AEROSPACE STATED AS FOLLOWS: "WE TAKE EXCEPTION TO THE DESCRIPTION OF THE ARTICLE TO BE PURCHASED, -SPECTROSUN.- THIS IS A TRADE NAME USED BY SPECTROLAB DIVISION OF TEXTRON, AND AS WAS SHOWN ON THE SUBSEQUENT PROCUREMENT WHICH SHALL BE DISCUSSED IN THIS LETTER, ITS ADOPTION FORCES OTHER MANUFACTURERS TO COMPLY WITH ALL FACETS OF THE TRADE-NAMED DESIGN OR RUN THE RISK OF BEING -TECHNICALLY UNACCEPTABLE.- NOWHERE IN THE NASA LETTER DO WE SEE JUSTIFICATION FOR THE -SPECTROSUN- DESCRIPTION, WE CALL ATTENTION TO THE FACT THAT PROTESTED PROCUREMENTS USED THIS NOMENCLATURE, AND WE DO NOT BELIEVE THE NASA LETTER MEETS THE REQUIREMENTS OF THE GOVERNMENT * * *.'

WE ARE ADVISED IN THE NOVEMBER 14, 1967, REPORT THAT AEROSPACE IS LISTED ON THE PROCUREMENT ACTIVITY'S SOURCE LIST OF 72 FIRMS BUT, IN VIEW OF THE LARGE NUMBER OF POTENTIAL SUPPLIERS AND IN ACCORDANCE WITH NASA PR 3.802- 2, THE PROCUREMENT ACTIVITY REQUESTED PROPOSALS FROM ONLY FIVE POTENTIAL SOURCES.

ALTHOUGH THE CITED REGULATION PROVIDES FOR THE SCREENING OF EXCESSIVELY LARGE SOURCE LISTS AND THE FURNISHING OF PROPOSAL REQUESTS TO A REPRESENTATIVE NUMBER OF SOURCES TO ASSURE EFFECTIVE COMPETITION, WE BELIEVE THAT SOLICITATION NO. -75563-01 WAS UNDULY RESTRICTIVE OF EFFECTIVE COMPETITION. THAT SOLICITATION, UNLIKE SOLICITATION NO. 71593- 01, PROVIDED FOR THE FURNISHING OF A BRAND-NAME ITEM ONLY, AND WHILE A "BRAND-NAME OR EQUAL" CLAUSE WAS INCORPORATED BY REFERENCE, SUCH CLAUSE WAS LARGELY INEFFECTUAL SINCE NO "OR EQUAL" ITEM WAS SOLICITED AS CONTEMPLATED BY THE FIRST SENTENCE OF PARAGRAPH (A) OF THE CLAUSE PRESCRIBED BY NASA PR 1.206-3 (B). WHILE IT MAY BE SAID THAT "COMPETITION" COULD BE SATISFIED THROUGH THE SOLICITATION OF FIVE PRESELECTED SOURCES OF SUPPLY,"COMPETITION" AS ENVISAGED BY 10 U.S.C. 2304 (G) AND NASA PR 1.301 (A) IS EFFECTIVE ONLY WHEN A REASONABLE NUMBER OF QUALIFIED AND INTERESTED SOURCES OF SUPPLY ARE AFFORDED AN EQUAL OPPORTUNITY TO SATISFY THE GOVERNMENT'S REQUIREMENTS. NASA PR 1.1201 (A) AND 1.1206-1 (A) PROVIDE, IN PERTINENT PART, IN THIS REGARD, AS FOLLOWS:

"1.1201 GENERAL.

"/A) PLANS, DRAWINGS, SPECIFICATIONS OR PURCHASE DESCRIPTIONS FOR PROCUREMENTS SHALL STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND DESCRIBE THE SUPPLIES AND SERVICES IN A MANNER WHICH WILL ENCOURAGE MAXIMUM COMPETITION AND ELIMINATE, INSOFAR AS IS POSSIBLE, ANY RESTRICTIVE FEATURES WHICH MIGHT LIMIT ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCT, OR THE PRODUCTS OF A RELATIVELY FEW SUPPLIERS. * * *

"1.1206-1 GENERAL.

"/A) * * * A PURCHASE DESCRIPTION SHOULD SET FORTH THE ESSENTIAL CHARACTERISTICS AND FUNCTIONS OF THE ITEMS OR MATERIALS REQUIRED. PURCHASE DESCRIPTIONS SHALL NOT BE WRITTEN SO AS TO SPECIFY A PRODUCT, OR A PARTICULAR FEATURE OF A PRODUCT, PECULIAR TO ONE MANUFACTURER AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT MANUFACTURED BY ANOTHER COMPANY, UNLESS IT IS DETERMINED THAT THE PARTICULAR FEATURE IS ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THE PARTICULAR FEATURE WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM. GENERALLY, THE MINIMUM ACCEPTABLE PURCHASE DESCRIPTION IS THE IDENTIFICATION OF A REQUIREMENT BY USE OF BRAND NAME FOLLOWED BY THE WORDS -OR EQUAL.- THIS TECHNIQUE SHOULD BE USED ONLY AS A LAST RESORT WHEN AN ADEQUATE SPECIFICATION OR MORE DETAILED DESCRIPTION CANNOT FEASIBLY BE MADE AVAILABLE IN TIME FOR THE PROCUREMENT UNDER CONSIDERATION. * * *"

PARAGRAPH 1.1206-2 OF NASA PR, MADE APPLICABLE TO NEGOTIATED PROCUREMENTS BY 1.1206-5, STATES THAT "WHERE A -BRAND NAME OR EQUAL- PURCHASE DESCRIPTION IS USED, PROSPECTIVE CONTRACTORS MUST BE GIVEN THE OPPORTUNITY TO OFFER PRODUCTS OTHER THAN THOSE SPECIFICALLY REFERENCED BY BRAND NAME IF SUCH OTHER PRODUCTS WILL MEET THE NEEDS OF THE GOVERNMENT IN ESSENTIALLY THE SAME MANNER AS THOSE REFERENCED.'

WE NOTE THAT THE ISSUANCE OF SOLICITATION NO. -75563-01 WAS ON AN EXIGENCY BASIS. HOWEVER, NASA PR 1.1206-5 (B) PROVIDES WITH RESPECT TO THE USE OF THE BRAND-NAME OR EQUAL TYPE PURCHASE DESCRIPTION THAT:

"* * * IF USE OF THE CLAUSE IS NOT PRACTICABLE (AS MAY BE THE CASE IN EXIGENCY PURCHASES), SUPPLIERS SHALL BE SUITABLY INFORMED THAT PROPOSALS OFFERING PRODUCTS DIFFERENT FROM THE PRODUCTS REFERENCED BY BRAND NAME WILL BE CONSIDERED IF THE CONTRACTING OFFICER DETERMINES THAT SUCH OFFERED PRODUCTS ARE EQUAL IN ALL SIGNIFICANT AND MATERIAL RESPECTS TO THE PRODUCTS REFERENCED.'

AS NOTED ABOVE, THE PURCHASE DESCRIPTION IN SOLICITATION NO. 75563 01 CONTEMPLATED THE PURCHASE OF A PARTICULAR BRAND-NAME ITEM TO THE EXCLUSION OF ANY OTHER COMPARABLE ITEM. IN PRACTICAL EFFECT, THEREFORE, SOLICITATION NO. -75563-01 CONSTITUTED A SOLE-SOURCE PROCUREMENT, AND UNDER THE REPORTED FACTS, AS WE INTERPRET THEM, NO BASIS IS APPARENT FOR EXCLUDING OTHER SOURCES OF SUPPLY FROM PARTICIPATING IN A PROCUREMENT WHICH APPARENTLY WAS SUSCEPTIBLE TO COMPETITION.

WE CONCLUDE, THEREFORE, THAT SOLICITATION NO. -75563-01 WAS INCONSISTENT WITH, AND CONTRARY TO, THE PROVISIONS OF THE PROCUREMENT REGULATIONS CITED ABOVE, AND IT SHOULD NOT HAVE BEEN CONSIDERED AS A PROPER BASIS FOR THE AWARD OF A CONTRACT TO SPECTROLAB. HOWEVER, SINCE THE CONTRACT WAS ENTERED INTO ON JUNE 29, 1967, AND IT IS REPORTED THAT THE CONTRACTOR HAS ACCOMPLISHED A SUBSTANTIAL AMOUNT OF WORK THEREUNDER, NO QUESTION WILL BE RAISED BY OUR OFFICE AS TO THIS AWARD.

AEROSPACE'S PROTEST AGAINST THE REJECTION OF ITS PROPOSAL SUBMITTED IN RESPONSE TO SOLICITATION NO. -71593-01 IS PREDICATED ON THE ARGUMENT THAT ITS OFFERED ITEM WOULD, IN FACT, PERFORM EQUALLY AS WELL AS THE REFERENCED BRAND-NAME ITEM AND THAT THE DETERMINATION MADE BY THE CONTRACTING OFFICER THAT AEROSPACE WAS A NONRESPONSIVE OFFEROR WAS MERELY AN ATTEMPT BY THE PROCUREMENT ACTIVITY "TO EXCLUDE OTHER DESIGNS.'

SINCE SOLICITATION NO. -71593-01 PROVIDED FOR THE PURCHASE OF A SPECIFIED BRAND-NAME ITEM "OR EQUAL," IT WAS INCUMBENT UPON AEROSPACE TO OFFER AN ITEM OF EQUIPMENT WHICH WOULD PERFORM SUBSTANTIALLY AS WELL AS THE REFERENCED BRAND-NAME ITEM, INCLUDING COMPLIANCE WITH THE SALIENT FEATURES OF THE BRAND-NAME ITEM SET FORTH IN THE PURCHASE DESCRIPTION. NASA PR 1.1206-4 (A) PROVIDES, IN PART, THAT "BIDS (PROPOSALS) SHALL NOT BE REJECTED BECAUSE OF MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.' IT IS AXIOMATIC, THEREFORE, THAT A PROPOSAL OFFERING AN ITEM INTENDED TO BE EQUAL TO THE CITED BRAND-NAME ITEM, BUT WHICH, IN THE TECHNICAL JUDGMENT OF THE PROCUREMENT ACTIVITY, IS SUBSTANTIALLY DIFFERENT FROM THE SPECIFIED SALIENT FEATURES, IS NOT IN A COMPETITIVE RANGE INSOFAR AS THE STATUTORY REQUIREMENT FOR NEGOTIATION OPPORTUNITY IS CONCERNED. SEE 10 U.S.C. 2304 (G).

FOUR OF THE SALIENT FEATURES OF THE BRAND-NAME ITEM LISTED UNDER SOLICITATION NO. -71593-01 REQUIRED THAT "OR EQUAL" ITEMS OFFERED IN RESPONSE TO THE SOLICITATION BE (1) COMPLETELY SELF-CONTAINED, (2) EQUIPPED WITH A WATER-COOLED LIGHT COLLECTOR, (3) OF CERTAIN DIMENSIONS, AND (4) WEIGH LESS THAN 900 POUNDS.

WE ARE ADVISED THAT THE CONTRACTING OFFICER'S DETERMINATION TO REJECT AEROSPACE'S PROPOSAL WAS PREDICATED ENTIRELY UPON THE RESULT OF A TECHNICAL EVALUATION OF ITS "OR EQUAL" ITEM WHICH FOUND THAT THE AEROSPACE ITEM DEVIATED SUBSTANTIALLY FROM THE FOUR SALIENT FEATURES OF THE REFERENCED BRAND-NAME ITEM SET FORTH ABOVE. SPECIFICALLY, IT IS REPORTED THAT THE "OR EQUAL" ARTICLE OFFERED BY AEROSPACE INCORPORATED AIR COOLING INSTEAD OF WATER COOLING OF THE LAMP COLLECTOR; THAT IT WAS NOT A "COMPLETELY SELF CONTAINED" UNIT IN THAT IT CONSISTED OF TWO SEPARATE PIECES OF EQUIPMENT WEIGHING 500 POUNDS MORE THAN THE SPECIFIED WEIGHT OF 900 POUNDS; AND THAT SUCH EQUIPMENT SUBSTANTIALLY EXCEEDED THE SIZE SPECIFIED. WE HAVE OFTEN OBSERVED THAT THE DRAFTING OF PROPER SPECIFICATIONS, INCLUDING THE USE OF "BRAND-NAME OR EQUAL" PURCHASE DESCRIPTIONS, TO MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT, AND THE FACTUAL DETERMINATION WHETHER ANY PRODUCT OFFERED THEREUNDER CONFORMS TO THOSE SPECIFICATIONS, ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT ACTIVITY. HOWEVER, WE BELIEVE THAT THE USE OF THE BRAND-NAME SPECIFICATION IN SOLICITATION NO. -71593-01 WAS OF QUESTIONABLE VALIDITY IN THIS INSTANCE. IT SEEMS CLEAR FROM THE RECORD THAT THE BRAND-NAME OR EQUAL SPECIFICATION REFLECTED THE DESIRE OF THE PROCUREMENT ACTIVITY FOR THE BRAND-NAME ITEM ONLY AND THAT THE SALIENT CHARACTERISTICS WERE, IN LARGE MEASURE, FURTHER DESCRIPTIONS OF THE TECHNICAL ASPECTS OF THE BRAND- NAME ITEM.

WE ARE OF THE VIEW THAT THE SOLICITATION AS DRAFTED AND RELEASED TO COMPETITION DID NOT PERMIT EFFECTIVE PARTICIPATION BY ANY OF THE 72 FIRMS LISTED FOR PROCUREMENT OF THE ITEM. IF THE EQUIPMENT OFFERED BY THE BRAND -NAME MANUFACTURER WAS THE ONLY EQUIPMENT WHICH WOULD MEET THE MINIMUM NEEDS OF THE GOVERNMENT, AND IF SUCH RESTRICTED NEED COULD HAVE BEEN JUSTIFIED UNDER NASA PR 3.210 AS "IMPRACTICABLE TO OBTAIN COMPETITION," RESORT SHOULD HAVE BEEN MADE TO THAT AUTHORITY RATHER THAN TO BRAND-NAME OR EQUAL PROCUREMENT.

WE HAVE BEEN INFORMALLY ADVISED BY YOUR ADMINISTRATION THAT THE ITEM PROCURED WAS A RELATIVELY SIMPLE PIECE OF EQUIPMENT WHICH WAS AN OFF THE- SHELF ITEM INSOFAR AS THE BRAND-NAME MANUFACTURER WAS CONCERNED.

IN VIEW THEREOF, AND THE FACT THAT THERE WERE 72 POTENTIAL SOURCES OF SUPPLY OF SOLAR SIMULATORS, WE SUGGEST THE POSSIBILITY THAT THE PROCUREMENT WAS AMENABLE TO FORMAL ADVERTISING PROCEDURES. IN THIS REGARD, NASA PR 3.101 (A) PROVIDES THAT "PROCUREMENT/S) SHALL BE MADE BY FORMAL ADVERTISING WHENEVER SUCH METHOD IS FEASIBLE AND PRACTICABLE UNDER THE EXISTING CONDITIONS AND CIRCUMSTANCES, EVEN THOUGH NEGOTIATION MAY BE AUTHORIZED UNDER SUBPART 2 OF THIS PART (CIRCUMSTANCES PERMITTING NEGOTIATION).'

ACCORDINGLY, AND IN VIEW OF THE FACT THAT THE RECORD BEFORE US IS QUITE INDICATIVE OF THE COMPETITIVE NATURE OF THESE SOLAR SIMULATORS AND OF THE FACT THAT PERFORMANCE SPECIFICATIONS COULD BE DRAFTED TO ENCOURAGE EFFECTIVE COMPETITION, WE SUGGEST THAT THESE PROCUREMENTS BE REVIEWED TO ASCERTAIN THE MEANS WHEREBY ADEQUATE AND EFFECTIVE COMPETITION MIGHT BE OBTAINED IN THE FUTURE FOR THESE END ITEMS WHETHER UNDER FORMAL ADVERTISING OR PURSUANT TO NEGOTIATION PROCEDURES AS CONTEMPLATED BY 10 U.S.C. 2304 (G) AND THE IMPLEMENTING REGULATIONS.