B-163196, FEB. 29, 1968

B-163196: Feb 29, 1968

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WHERE CONTRACTING AGENCY REPORTS THAT ARTICLE FURNISHED BY LOW BIDDER WAS NOT EQUAL TO BRAND NAME ITEM IN PERFORMANCE BID MUST BE REGARDED AS HAVING BEEN REJECTED AS NONRESPONSIVE BECAUSE OF MINOR DIFFERENCES NOT AFFECTING PRICE OR SUITABILITY. ALLEGATION THAT SPECIFICATIONS WERE UNDULY RESTRICTIVE MUST BE DENIED. TO VULCAN BINDER AND COVER COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28. BIDS WERE REQUESTED FOR FURNISHING 3. IT IS REPORTED THAT THE BID SAMPLE SUBMITTED BY YOU SHOWED THAT THE BINDER METALS INCORPORATED A SPLIT PRONG AND ONE LOCKING DEVICE. THE BACKBONE POCKET WAS NOT CONSIDERED TO BE PRACTICAL BECAUSE OF THE CENTER BACKBONE HINGE AND BECAUSE THE STATED FILLER CAPACITY COULD NOT BE INSERTED IN ONE LIFT.

B-163196, FEB. 29, 1968

BIDS - BRAND NAME OR EQUAL DECISION TO VULCAN BINDER AND COVER CO. DENYING PROTEST AGAINST REJECTION OF BID FOR FURNISHING GPO BINDERS WITH MCBEE SWING HINGE OR EQUAL LOCKING DEVICES FOR USE OF NAVY AND AWARD TO MCBEE. WHERE CONTRACTING AGENCY REPORTS THAT ARTICLE FURNISHED BY LOW BIDDER WAS NOT EQUAL TO BRAND NAME ITEM IN PERFORMANCE BID MUST BE REGARDED AS HAVING BEEN REJECTED AS NONRESPONSIVE BECAUSE OF MINOR DIFFERENCES NOT AFFECTING PRICE OR SUITABILITY, THEREFORE, ALLEGATION THAT SPECIFICATIONS WERE UNDULY RESTRICTIVE MUST BE DENIED.

TO VULCAN BINDER AND COVER COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28, 1967, PROTESTING AGAINST THE REJECTION OF YOUR BID ON JACKET 284-438 ISSUED BY THE GOVERNMENT PRINTING OFFICE (GPO).

UNDER DATE OF DECEMBER 11, 1967, BIDS WERE REQUESTED FOR FURNISHING 3,500 BINDERS. THE SPECIFICATIONS REQUIRED THE MANUFACTURE OF 4-PRONG BINDERS WITH MCBEE'S SWING HINGE OR EQUAL LOCKING DEVICES ON EACH END AND COUNTERSUNK LABEL HOLDER CENTERED ON BACKBONE OF BINDER. YOUR COMPANY SUBMITTED THE LOW BID IN THE AMOUNT OF $11,833.50 AND OFFERED TO FURNISH A BURKHARDT LOOSELEAF PRONG BINDER. MCBEEINFORMATION STORAGE PRODUCTS SUBMITTED THE NEXT LOW BID IN THE AMOUNT OF $12,075 AND OFFERED TO FURNISH THE BINDER SPECIFIED. IT IS REPORTED THAT THE BID SAMPLE SUBMITTED BY YOU SHOWED THAT THE BINDER METALS INCORPORATED A SPLIT PRONG AND ONE LOCKING DEVICE. IN ADDITION, THE BACKBONE POCKET WAS NOT CONSIDERED TO BE PRACTICAL BECAUSE OF THE CENTER BACKBONE HINGE AND BECAUSE THE STATED FILLER CAPACITY COULD NOT BE INSERTED IN ONE LIFT.

IT IS FURTHER REPORTED THAT THE USING AGENCY, THE DEPARTMENT OF THE NAVY, HAS DETERMINED THAT YOUR PRODUCT, THE BURKHARDT LOOSELEAF PRONG BINDER, IS TECHNICALLY UNACCEPTABLE FOR THE FOLLOWING REASONS: "A. IT APPEARS THAT THERE IS NO PRACTICAL WAY VULCAN BINDER COULD INSTALL A COUNTERSUNK LABEL HOLDER WITH A WINDOW CENTERED ON THE BACKBONE IN ACCORDANCE WITH SPECIFICATIONS OF THIS HINGE-TYPE BINDER. "B. WITH THE BURKHARDT TYPE BINDER, THE METHOD OF OPENING THE ELEMENT FORCES THE SPINE IN AN INVERTED -V- POSITION. THIS TENDS TO RESTRICT THE MAKING OF PAGE CHANGES EASILY IN THE EXTREME FRONT OR BACK, AS THE PRONGS OPEN TO ONLY ONE-HALF OF THE BINDER CAPACITY, WHICH IS UNACCEPTABLE SINCE THERE IS AN AVERAGE OF 200 PAGE CHANGES EACH MONTH. "C. EXAMINATION OF THE BURKHARDT SPLIT-RING PRONG SHOWS A TENDENCY TO BE EASILY BENT OUT OF ALIGNMENT; WHEREAS THE FULL-RING MCBEE TYPE IS MORE RIGID. THIS RIGIDITY IS AN IMPORTANT FEATURE AS THE BINDER IS USED ON SHIPBOARD AS WELL AS SHORE-BASED ACTIVITIES AND IS SUBJECT TO HARSH TREATMENT. "D. THE MCBEE DOUBLE LOCKING DEVICE ASSURES THAT THE PAGES WILL REMAIN INTACT IF THE BINDER IS DROPPED. THE BURKHARDT BINDER HAS BUT A SINGLE LOCKING DEVICE.'

IN VIEW OF THE FOREGOING, YOUR BID WAS REJECTED AS BEING NONRESPONSIVE AND AWARD WAS MADE TO MCBEE ON DECEMBER 27, 1967.

IN YOUR LETTER OF PROTEST YOU STATE THAT ON PREVIOUS GPO BIDS YOU ATTEMPTED TO PURCHASE SWING HINGE METALS FROM MCBEE AND WERE INFORMED THAT THIS EXCLUSIVE METAL IS NOT AVAILABLE TO ANY OTHER BINDER MANUFACTURER. THEREFORE, YOU CONTEND THAT THIS IS A SOLE-SOURCE SUPPLY ITEM WHICH IS CONTRARY TO GPO'S EXPRESSED DESIRE THAT SPECIFICATIONS ARE REQUIRED TO STATE THE NEEDS OF THE GOVERNMENT IN SUCH TERMS AS TO PERMIT FULL AND FREE COMPETITION. YOU DIRECT ATTENTION TO A GPO BOOKLET ENTITLED "HOW TO DO BUSINESS WITH THE GPO" AND STATE THAT, IN VIEW OF THE PARAGRAPH ENTITLED "BRAND NAME OR EQUAL" APPEARING ON PAGE 4 WHICH SPECIFICALLY PROVIDES THAT "BIDS WILL 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 NOT THE INTENT OF GPO TO RESTRICT ITS NEEDS TO A PARTICULAR NAMED PRODUCT.

SECTION 3709, REVISED STATUTES, REQUIRES THAT ALL PURCHASES OF SUPPLIES, EQUIPMENT AND MATERIALS, EXCEPT IN THE CASE OF EMERGENCY, BE MADE AFTER ADVERTISING FOR COMPETITIVE BIDS. THE NUMEROUS DECISIONS OF THE COURTS AND OF OUR OFFICE HAVE BEEN TO THE EFFECT THAT COMPETITION MUST BE ON AN EQUAL BASIS AND ON COMMON GROUND. THE CONTROLLING ELEMENT IN THE PURCHASE OF SUPPLIES IS THE JOB TO BE DONE OR THE WORK NECESSARY TO BE ACCOMPLISHED. HENCE, THE REQUEST FOR BIDS SHOULD FAIRLY REFLECT THE ACTUAL NEED THROUGH THE SPECIFICATIONS AND THE LOWEST PRICED ARTICLE THAT WILL MEET THE NEEDS IS THAT AUTHORIZED TO BE PURCHASED AT PUBLIC EXPENSE.

WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY. WE HAVE HELD ALSO THAT IN THOSE SITUATIONS WHERE IT IS NOT POSSIBLE TO STATE DETAILED SPECIFICATIONS TO DESCRIBE THE PRODUCT WHICH WILL MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT AND WHERE THERE IS IN EXISTENCE A COMMERCIAL PRODUCT WHICH MEETS THE GOVERNMENT'S MINIMUM REQUIREMENTS, THE PROCUREMENT MAY BE ADVERTISED ON THE BASIS OF THE KNOWN PRODUCT QUALIFIED BY SUCH WORDS AS "OR EQUAL.' 38 COMP. GEN. 291, 294. OF COURSE, UNDER ADVERTISEMENTS FOR BRAND NAME OR EQUAL, AN ACCEPTABLE PRODUCT NEED NOT BE IDENTICAL BUT MUST BE CAPABLE OF MEETING THE SAME STANDARDS OF PERFORMANCE. IN THIS INSTANCE, IT IS REPORTED THAT THE BINDER YOU PROPOSED TO FURNISH WAS NOT EQUAL TO THE MCBEE SWING HINGE IN PERFORMANCE. HENCE, IT DOES NOT APPEAR THAT YOUR BID WAS REJECTED AS NONRESPONSIVE BECAUSE OF MINOR DIFFERENCES IN DESIGN OR FEATURES WHICH DID NOT AFFECT THE SUITABILITY OF THE PRODUCT FOR ITS INTENDED USE.

ACCORDINGLY, ON THE BASIS OF THE RECORD BEFORE OUR OFFICE, WE CANNOT CONCLUDE THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE OF COMPETITION. YOUR PROTEST IS THEREFORE DENIED.