B-162600, DEC. 27, 1967

B-162600: Dec 27, 1967

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CANCELLATION OF INVITATION ON BASIS THAT SPECIFICATIONS WERE INADEQUATE FOR COMPETITIVE PROCUREMENT MUST BE UPHELD ON THE BASIS OF THE ADMINISTRATIVE JUSTIFICATION. HOWEVER IN THE FUTURE PROCUREMENTS OF THE BRAND NAME FILTERS ON A SOLE SOURCE BASIS SHOULD NOT BE MADE UNLESS THE ITEMS MEET THE TESTS TO WHICH OTHER FILTERS OFFERED ARE SUBJECTED. REEXAMINATION WITH A VIEW TO DRAFTING SPECIFICATIONS WHICH WILL PERMIT COMPETITION ON BASIS OF AN ACCURATE EVALUATION IS RECOMMENDED. TO DECONTAMINATION INC.: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26. IN WHICH YOU ALLEGE THAT THE SPECIFICATIONS CONTAINED IN INVITATION DSA120-67-B-4273 ARE UNDULY RESTRICTIVE. THAT AN ATTEMPT IS BEING MADE BY THE ABOVE MENTIONED ACTIVITY TO CIRCUMVENT ACCEPTING YOUR BID IN ORDER TO PURCHASE AT A NONCOMPETITIVE PRICE FROM ANOTHER FIRM.

B-162600, DEC. 27, 1967

BIDS - SPECIFICATIONS - RESTRICTIVE DECISION TO DECONTAMINATION, INC., SECOND LOW BIDDER, CONCERNING PROTEST TO RESTRICTIVE SPECIFICATIONS IN INVITATION BY DEFENSE PERSONNEL SUPPORT CENTER FOR FILTERS FOR MEDICAL AND NONMEDICAL USES. CANCELLATION OF INVITATION ON BASIS THAT SPECIFICATIONS WERE INADEQUATE FOR COMPETITIVE PROCUREMENT MUST BE UPHELD ON THE BASIS OF THE ADMINISTRATIVE JUSTIFICATION. HOWEVER IN THE FUTURE PROCUREMENTS OF THE BRAND NAME FILTERS ON A SOLE SOURCE BASIS SHOULD NOT BE MADE UNLESS THE ITEMS MEET THE TESTS TO WHICH OTHER FILTERS OFFERED ARE SUBJECTED. REEXAMINATION WITH A VIEW TO DRAFTING SPECIFICATIONS WHICH WILL PERMIT COMPETITION ON BASIS OF AN ACCURATE EVALUATION IS RECOMMENDED.

TO DECONTAMINATION INC.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1967, TO THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC), PHILADELPHIA, PENNSYLVANIA, IN WHICH YOU ALLEGE THAT THE SPECIFICATIONS CONTAINED IN INVITATION DSA120-67-B-4273 ARE UNDULY RESTRICTIVE, AND THAT AN ATTEMPT IS BEING MADE BY THE ABOVE MENTIONED ACTIVITY TO CIRCUMVENT ACCEPTING YOUR BID IN ORDER TO PURCHASE AT A NONCOMPETITIVE PRICE FROM ANOTHER FIRM.

ACCORDING TO THE ADMINISTRATIVE REPORT THE SPECIFICATION CONTAINED IN INVITATION DSA120-67-B-4273 IS AN INTERIM FEDERAL SPECIFICATION, DATED APRIL 13, 1965, WHICH WAS MODIFIED FOR THIS SOLICITATION BY DEFENSE MEDICAL PURCHASE DESCRIPTION NO. 5. IT COVERS SERVERAL DIFFERENT KINDS OF MICROPOROUS BACTERIAL FILTERING DISKS IN 12 NOMINAL PORE SIZES, WHICH ARE USED FOR MEDICAL AND NONMEDICAL PURPOSES. THE TWO FILTERS SOLICITED UNDER THE ABOVE INVITATION WERE FOR NONMEDICAL PURPOSES. IN 1963 DPSC'S PREDECESSOR, THE DEFENSE MEDICAL SUPPLY CENTER (DMSC), GAINED MANAGEMENT RESPONSIBILITY FOR FILTERS USED BY THE SERVICES FOR OTHER THAN MEDICAL PURPOSES. TECHNICAL INFORMATION TRANSFERRED TO DMSC FOR THE NONMEDICAL ITEMS CONSISTED ONLY OF PART NUMBERS OF MILLIPORE CORPORATION, THE ONLY KNOWN ACCEPTABLE SUPPLIER. IN APRIL 1965, WHEN THE INTERIM FEDERAL SPECIFICATION WAS PROMULGATED BY DMSC, THE CHARACTERISTICS OF THE MILLIPORE FILTERS WERE WRITTEN INTO THE SPECIFICATIONS, INCLUDING TEST METHODS PRIMARILY OBTAINED FROM MILLIPORE.

TESTS WERE PROVIDED FOR SEVERAL CHARACTERISTICS OF THE FILTERS. HOWEVER, PARTICLE SIZE TESTING WAS NOT PROVIDED IN THE SPECIFICATION FOR SEVERAL PORE SIZES OF THE NONMEDICAL FILTERS SINCE DMSC DID NOT HAVE AND COULD NOT OBTAIN INFORMATION AS TO THE AVAILABILITY OF STANDARD SIZE INANIMATE PARTICLES OR ORGANISMS CORRESPONDING IN SIZE TO THE NOMINAL PORE SIZES OF THESE FILTERS.

THE FILTERS ON WHICH BIDS WERE SOLICITED BY INVITATION FOR BIDS DSA 120- 67-B-4273 WERE TWO SUCH FILTERS, ONE BEING FSN-6640-967-0501, TYPE I, STYLE A, CLASS 5, GRADE C, WHITE (NOMINAL PORE SIZE .8 MICRONS) AND THE OTHER BEING FSN-6640-967-0488, TYPE I, STYLE A, CLASS 2, GRADE C, WHITE (NOMINAL PORE SIZE 5 MICRONS). YOUR FIRM WAS SECOND LOW BIDDER ON FSN- 6640-967-0501 (MILLIPORE WAS THE LOW BIDDER ON FSN-6640-967 0488) AND AS PART OF THE DETERMINATION OF RESPONSIBILITY, DPSC REQUESTED AND RECEIVED PRE-AWARD SAMPLES FOR TESTING IN ORDER TO DETERMINE THE ABILITY OF YOUR FIRM TO PRODUCE AN ACCEPTABLE FILTER. YOUR SAMPLE PASSED THE REFRACTIVE INDEX TEST BUT DID NOT PASS THE WATER FLOW TEST. SINCE NO PARTICLES WERE AVAILABLE TO TEST PARTICLE RETENTION OF FILTERS OF THE NOMINAL PORE SIZE OF .8 MICRONS, YOUR FILTER WAS TESTED WITH ORGANISMS WITH A NOMINAL PORE SIZE OF 1.2 MICRONS, WHICH YOUR SAMPLE FAILED TO RETAIN. THIS INDICATES THAT THEY WOULD NOT RETAIN ORGANISMS WITH A PORE SIZE OF .8. WHILE THESE TESTS WERE IN PROGRESS, DPSC NEGOTIATED AN EMERGENCY PURCHASE OF THE SAME FILTER, BUT THIS DID NOT SUPERSEDE THE QUANTITY ADVERTISED. WE ASSUME THAT THIS IS THE PROCUREMENT REFERRED TO IN YOUR LETTER OF SEPTEMBER 26, 1967, WHERE YOU STATED THAT YOU WERE REQUESTED TO QUOTE A PRICE ON 1200 BOXES OF THE SAME MATERIAL COVERED BY THE INVITATION.

AFTER A REVIEW BY THE DEFENSE SUPPLY AGENCY HEADQUARTERS (DSAH) OF THE INTERIM FEDERAL SPECIFICATIONS AND THE PURCHASE DESCRIPTION USED FOR THIS PROCUREMENT, IT WAS DISCOVERED THAT THE SPECIFICATION DID NOT PRESCRIBE A TEST FOR DETERMINING NOMINAL PORE SIZE OR PARTICLE RETENTION QUALITIES OF THESE FILTERS AND THAT THERE WAS NO METHOD KNOWN TO BE AVAILABLE BY WHICH PORE SIZE OR PARTICLE RETENTION COULD BE DETERMINED FOR THESE FILTERS. DSAH CONCLUDED THAT THE SPECIFICATION WAS INADEQUATE FOR COMPETITIVE PROCUREMENT AND THAT IN ORDER TO INSURE THAT THE USER'S FILTRATION NEEDS WERE MET FOR THESE PORE SIZES THERE WAS NO ALTERNATIVE EXCEPT TO PROCURE, BY PART NUMBERS, FILTERS OF THE MILLIPORE CORPORATION, THE ONLY SUPPLIER KNOWN BY THE USER TO HAVE SUPPLIED SATISFACTORY FILTERS IN THE PAST. ACCORDINGLY, DPSC WAS INSTRUCTED TO CANCEL INVITATION FOR BIDS DSA-120-67- B-4273 AND TO PROCURE THE FILTERS, AS WELL AS ANY OTHER FILTERS FOR WHICH ADEQUATE TEST METHODS DID NOT EXIST, BY THE MILLIPORE PART NUMBERS UNTIL SUCH TIME AS APPROPRIATE TESTS CAN BE DEVELOPED. THIS OFFICE HAS BEEN INFORMED THAT A REQUEST FOR QUOTATIONS WILL BE ISSUED FOR THE ABOVE MENTIONED FILTERS.

UNDER THE PROVISIONS OF 10 U.S.C. 2304 (A) (10) PURCHASES AND CONTRACTS MAY BE NEGOTIATED IF IT IS IMPRACTICABLE TO OBTAIN COMPETITION FOR THE PROPERTY OR SERVICES. IN LINE WITH THIS AUTHORITY PARAGRAPH 3-210.2 OF ASPR SETS FORTH CERTAIN CIRCUMSTANCES UNDER WHICH THE AUTHORITY TO NEGOTIATE MAY BE USED. FOR EXAMPLE, UNDER SUBPARAGRAPH (I) IT IS STATED THAT CONTRACTS MAY BE NEGOTIATED WHERE THE SUPPLIES CAN BE OBTAINED FROM ONLY ONE PERSON OR FIRM, WHICH THE PROCURING ACTIVITY ALLEGES IS THE SITUATION IN THE PRESENT CASE, AND UNDER SUBPARAGRAPH (XIII) NEGOTIATION IS PERMITTED WHEN IT IS IMPOSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS FOR SOLICITATION OF BIDS.

CONCERNING YOUR ALLEGATION THAT THE SPECIFICATIONS IN IFB DSA-120 67-B- 4273 ARE UNDULY RESTRICTIVE IN THAT THE CHARACTERISTICS OF MILLIPORE'S FILTER WERE WRITTEN INTO THE SPECIFICATIONS, IT HAS BEEN HELD BY OUR OFFICE IN MANY CASES THAT THE PREPARATION OF SPECIFICATIONS COVERING THE ACTUAL NEEDS OF THE GOVERNMENT IS A RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY INVOLVED, AND WE DO NOT ORDINARILY QUESTION THE TECHNICAL DETAILS WHICH THE AGENCY DETERMINES TO BE NECESSARY. EVEN IF IT BE TRUE THAT THE SUBJECT SPECIFICATION CALLS OUT THE SALIENT CHARACTERISTICS OF MILLIPORE'S FILTERS, AS YOU ALLEGE, IT DOES NOT NECESSARILY FOLLOW THAT THE SPECIFICATION IS IMPROPER IF IN FACT A REASONABLE NEED EXISTS FOR FILTERS HAVING THOSE CHARACTERISTICS. B 139432, JUNE 3, 1959; B-128549, AUGUST 22, 1959. FURTHER, THE DRAFTING OF SPECIFICATIONS BY SUBSTANTIALLY ADOPTING A MANUFACTURER'S DESCRIPTION OF THE PARTICULAR FEATURES OF ITS PRODUCT AMOUNTS IN EFFECT TO A REPRESENTATION THAT EACH OF THE FEATURES HAS BEEN DETERMINED TO BE NECESSARY TO MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT AND IF THIS IS IN FACT THE CASE COMPETITIVE NEGOTIATION WOULD BE THE BETTER COURSE OF ACTION. 33 COMP. GEN. 573, 574; B 155826, JANUARY 21, 1965. OF COURSE, IF IT SHOULD BE DETERMINED THAT IT IS NOT NECESSARY, IN ORDER TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT, THAT THE ITEMS PROCURED CONFORM IN EVERY RESPECT TO THE MANUFACTURER'S DESCRIPTION, THE WORDS "OR EQUAL" OR WORDS OF SIMILAR IMPORT SHOULD BE ADDED TO THE DESCRIPTION AND BIDS OFFERING OTHER PRODUCTS WHICH WILL PERFORM THE JOB AS WELL SHOULD BE CONSIDERED FOR AWARD ON AN EQUAL BASIS. 39 COMP. GEN. 101, 108; 33 COMP. GEN. 524. HOWEVER, IN THE PRESENT CASE IT APPEARS THAT THE SPECIFICATION DOES NOT PROVIDE, AND THE GOVERNMENT DOES NOT KNOW, ANY METHOD OF TESTING OR DETERMINING THE PORE SIZE OR PARTICLE RETAINING CAPABILITIES OF CERTAIN OF THE FILTERS, AND THERE IS NO EVIDENCE THAT THE FILTERS OFFERED BY MILLIPORE ARE ANY BETTER ABLE TO CONFORM TO THE SPECIFICATIONS THAN THOSE OFFERED BY THE LOWER BIDDERS, EXCEPT THAT THE PROCURING ACTIVITY STATES THAT MILLIPORE HAS SATISFACTORILY SUPPLIED THE FILTERS IN PAST PROCUREMENTS. IN THE ABSENCE OF ANY METHOD OF TESTING, THE "SATISFACTORY" PRIOR HISTORY MAY MEAN ONLY THAT NO COMPLAINTS HAVE BEEN MADE BY USERS BECAUSE THEY HAVE NO EFFECTIVE WAY OF TELLING WHETHER THE FILTERS ARE RETAINING PARTICLES OF THE DIMENSIONS FOR WHICH THEY ARE RATED. IN ADDITION, WHILE IT IS REPORTED THAT THE FILTERS OFFERED BY THE LOWER BIDDERS ARE BEING REJECTED FOR FAILURE TO MEET SPECIFICATION REQUIREMENTS, IT IS NOT STATED THAT THE MILLIPORE FILTERS WERE SUBJECTED TO ANY OF THE TESTS REQUIRED OF OTHER BIDDERS, INCLUDING THE REFRACTIVE INDEX, WATER FLOW AND AUTOCLAVABILITY TESTS, AS WELL AS THE IMPROVISED TEST OF THE .8 MICRON FILTER BY USE OF 1.2 MICRON PARTICLES.

IN THE CIRCUMSTANCES OF THIS CASE WE SEE NO BASIS FOR OBJECTING TO THE DETERMINATION OF THE AGENCY TO CANCEL THE PROCUREMENT, AND YOUR PROTEST AGAINST THAT ACTION THEREFORE MUST BE DENIED. WE ARE, HOWEVER, ADVISING THE DEFENSE SUPPLY AGENCY THAT FUTURE PROCUREMENTS OF MILLIPORE'S FILTERS ON A SOLE SOURCE BASIS SHOULD NOT BE MADE UNLESS IT IS DEMONSTRATED THAT THEY WILL MEET THE TESTS TO WHICH THE OTHER FILTERS OFFERED IN THIS PROCUREMENT WERE SUBJECTED. WE ARE ALSO RECOMMENDING A REEXAMINATION OF THE GOVERNMENT'S NEEDS IN THIS AREA WITH A VIEW TO THE PROMULGATION OF SPECIFICATIONS WHICH WILL, IF POSSIBLE, PERMIT COMPETITION ON A BASIS CAPABLE OF ACCURATE EVALUATION OF THE PRODUCTS OFFERED.