B-164160, MAY 28, 1968

B-164160: May 28, 1968

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TO BAY STATE NOVELTY COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 27. CLOSING DATE WAS POSTPONED TO APRIL 29. THREE BIDS WERE RECEIVED. JOHNSON AND JOHNSON WAS LOW AT $5.91 NET PER PACKAGE. IN VIEW OF ADVICE RECEIVED FROM THE DIRECTORATE OF MEDICAL MATERIAL THAT THE CURRENT SPECIFICATION REPRESENTED THE MINIMUM REQUIREMENT OF THE MILITARY MEDICAL SERVICES AND THERE WAS NO KNOWN REASON WHY OTHER COMPANIES COULD NOT MANUFACTURE THIS ITEM IN ONE OF THE THREE PERMITTED ALTERNATE METHODS OF CONSTRUCTION. THE INVITATION WAS OPENED AS SCHEDULED. YOU CONTEND THAT THE INVITATION IN QUESTION IS RESTRICTIVE BECAUSE THERE IS A LIMITED SOURCE OF SUPPLIERS AND THAT THE SOLE SOURCE (APPARENTLY JOHNSON AND JOHNSON.

B-164160, MAY 28, 1968

TO BAY STATE NOVELTY COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 27, 1968, ADDRESSED TO THIS OFFICE, PROTESTING THE OPENING AND REQUESTING THAT OPENING BE DELAYED OF INVITATIONS FOR BIDS NO. DSA-100-68-B-1511, ISSUED ON MARCH 28, 1968, BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION CALLED FOR BIDS TO BE OPENED ON APRIL 17, 1968, BUT AT THE REQUEST OF A POTENTIAL BIDDER FOR ADDITIONAL TIME TO DEVELOP A SPECIFICATION ITEM, CLOSING DATE WAS POSTPONED TO APRIL 29, 1968. THE SUBJECT INVITATION SOUGHT THE MANUFACTURE AND DELIVERY OF 34,200 PACKAGES OF WASHCLOTHS, HOSPITAL, PATIENT, DISPOSABLE, 500S, TO SIX DESTINATIONS, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-W-36241A (DM), DATED SEPTEMBER 14, 1964, WITH DEVIATIONS LISTED.

THREE BIDS WERE RECEIVED. OF THE TWO RESPONSIVE OFFERS, JOHNSON AND JOHNSON WAS LOW AT $5.91 NET PER PACKAGE, TOTALING $202,122, WHICH PRICE COMPARES FAVORABLY TO PRICES QUOTED ON A PRIOR PROCUREMENT UNDER THE SAME SPECIFICATIONS. IN VIEW OF ADVICE RECEIVED FROM THE DIRECTORATE OF MEDICAL MATERIAL THAT THE CURRENT SPECIFICATION REPRESENTED THE MINIMUM REQUIREMENT OF THE MILITARY MEDICAL SERVICES AND THERE WAS NO KNOWN REASON WHY OTHER COMPANIES COULD NOT MANUFACTURE THIS ITEM IN ONE OF THE THREE PERMITTED ALTERNATE METHODS OF CONSTRUCTION, THE INVITATION WAS OPENED AS SCHEDULED. HOWEVER, BECAUSE OF YOUR PROTEST, AWARD HAS BEEN WITHHELD PENDING OUR CONSIDERATION OF SAME.

YOU CONTEND THAT THE INVITATION IN QUESTION IS RESTRICTIVE BECAUSE THERE IS A LIMITED SOURCE OF SUPPLIERS AND THAT THE SOLE SOURCE (APPARENTLY JOHNSON AND JOHNSON, ALTHOUGH YOU DO NOT IDENTIFY THE SOLE SOURCE) IS LIMITING THE NUMBER OF COMPANIES TO WHICH THEY WILL QUOTE PRICES AND AS A CONSEQUENCE IS CREATING A LIMITED COMPETITIVE BIDDING SYSTEM.

MILITARY SPECIFICATIONS MIL-W-36241A (DM), ISSUED SEPTEMBER 14, 1964, FOR WASHCLOTHS, HOSPITAL, PATIENT, DISPOSABLE, PROVIDED FOR FURNISHING THREE ALTERNATE TYPES OF WASHCLOTHS AS FOLLOWS:

I. MESH

II. SCRIM SANDWICHED BETWEEN PLIES OF CELLULOSE WADDING AND III. NONWOVEN MATERIAL RE-ENFORCED BY A RANDOM WEB OF THREADS.

THE HISTORY OF PROCUREMENTS UNDER THIS SPECIFICATION REVEALS THAT PRIOR TO JANUARY 31, 1967, THREE DIFFERENT COMPANIES WERE AWARDED FIVE CONTRACTS FOR THE ITEM IN QUESTION. AS A RESULT OF COMPLAINTS RECEIVED FROM THE MILITARY MEDICAL USERS TO THE EFFECT THAT THE WASHCLOTHS FURNISHED UNDER TYPE II CONSTRUCTION WADDED UP AND MATERIAL CAME OFF ON THE FACES AND BODIES OF PATIENTS BECAUSE OF THE DISINTEGRATION IN WATER, THE SPECIFICATION WAS REVISED BY SPECIFICATION DATA SHEET NO. 4, DATED JANUARY 31, 1967, WHICH, AMONG OTHER REVISIONS, ADDED THE FOLLOWING TO THE PHYSICAL REQUIREMENTS:

ABRASION RESISTANCE TEN PERCENT, MAXIMUM

(PERCENT LOSS, ACCELERATOR METHOD) (ALL THREE TYPES) RESULTS

SHALL BE EXPRESSED AS

PERCENT LOSS OF WEIGHT,

AND SPECIFIED THAT ABRASION RESISTANCE SHOULD BE DETERMINED BY USING THE ACCELERATOR METHOD IN A SPECIFIED MANNER.

AFTER THE ISSUANCE OF SPECIFICATION DATA SHEET NO. 4 A CONTRACT, INCLUDING SAID SPECIFICATION, WAS AWARDED TO WEST POINT PEPPERELL, INC., ON APRIL 7, 1967. THEREAFTER, THE USERS OF WASHCLOTHS OF TYPE III CONSTRUCTION COMPLAINED THAT THE WASHCLOTHS BECAME SLIMY WHEN ALCOHOL WAS USED BECAUSE THEY HAD AN ALCOHOL SOLUBLE MATERIAL THEREIN AND THEY HAD AN OFFENSIVE ODOR. AS A RESULT OF SAID COMPLAINTS, SPECIFICATION DATA SHEET NO. 5 WAS ISSUED ON FEBRUARY 13, 1968, WHICH REQUIRED THE MATERIAL TO BE ODOR FREE AND LIMITED ISOPROPYL ALCOHOL EXTRACTABLE MATERIAL TO 1.25 PERCENT. SUBSEQUENT TO THE ISSUANCE OF SPECIFICATION DATA SHEETS 4 AND 5, A REQUEST FOR PROPOSALS, INCLUDING THOSE REVISIONS, WAS ISSUED ON MARCH 26, 1968, ON WHICH FIVE OFFERS WERE RECEIVED, TWO OF WHICH WERE FOUND TO BE RESPONSIVE. UNITEX PRODUCTS, INC., WAS THE LOW RESPONSIVE OFFEROR, USING JOHNSON AND JOHNSON MATERIAL OF THE TYPE I VARIETY.

WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE AGENCY ON WHOSE BEHALF THE PROCUREMENT IS MADE. COMP. GEN. 554. WHILE IT IS THE DUTY OF OUR OFFICE TO DETERMINE WHETHER SPECIFICATIONS AS WRITTEN ARE UNDULY RESTRICTIVE OF COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. COMP. GEN. 368; 33 ID. 586. THE GOVERNMENT IS NOT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED. 36 COMP. GEN. 251.

WHILE AN AGENCY SHOULD NOT DESIGN SPECIFICATIONS WHICH REQUIRE THE USE OF A PARTICULAR MANUFACTURER'S PRODUCT WHERE THE PRODUCTS OF OTHER MANUFACTURERS WOULD SERVE AS WELL (39 COMP. GEN. 101) IT IS WELL ESTABLISHED THAT THE GOVERNMENT DOES NOT VIOLATE EITHER THE LETTER OR THE SPIRIT OF THE COMPETITIVE BIDDING STATUTES MERELY BECAUSE ONLY ONE FIRM CAN SUPPLY ITS NEEDS, PROVIDED THE SPECIFICATIONS ARE REASONABLE AND NECESSARY FOR THE PURPOSE INTENDED. 34 COMP. GEN. 336; 45 ID. 365.

ALSO FOR APPLICATION IS OUR HOLDING IN B-162534, NOVEMBER 3, 1967, WHERE WE SAID:

"THIS OFFICE IS UNAWARE OF ANY STATUTE OR REGULATION WHICH WOULD RESTRICT A PRINCIPAL SUPPLIER OF A MAJOR PIECE OF EQUIPMENT FROM BIDDING ON A GOVERNMENT CONTRACT FOR FURNISHING AND INSTALLING SUCH EQUIPMENT. IMPOSE SUCH A RESTRICTION WITHOUT EXPRESS STATUTORY AUTHORITY WOULD CONFLICT DIRECTLY WITH THE FUNDAMENTAL PRINCIPLE OF PROCUREMENT LAW THAT BIDS BE SOLICITED FROM ALL QUALIFIED SOURCES TO ASSURE FULL AND FREE COMPETITION.'

IN OUR OPINION, YOUR ALLEGATION THAT JOHNSON AND JOHNSON IS LIMITING THE NUMBER OF COMPANIES TO WHOM THEY QUOTE PRICES IS NOT SUPPORTED BY THE FACTS OF RECORD SINCE ON THE MARCH 26, 1968, SOLICITATION UNITEX PRODUCTS, INC., USING JOHNSON AND JOHNSON MATERIAL, QUOTED LOWER PRICES THAN DID JOHNSON AND JOHNSON. IN THESE CIRCUMSTANCES WE FIND NO BASIS TO CONCLUDE THAT SUPPLY OF THE ITEM IS SO LIMITED AS TO CREATE A SOLE SOURCE SITUATION. IN ANY EVENT, THE RESTRICTIONS EMBODIED IN THE SPECIFICATIONS APPEAR TO BE ADEQUATELY JUSTIFIED, AND PROCUREMENT ON A SOLE SOURCE BASIS, IF NECESSARY, WOULD NOT BE IMPROPER.

IN ADDITION, THE REPORTED FACTS INDICATE THAT OTHER SUPPLIERS IN THE INDUSTRY APPARENTLY BELIEVE THAT UNDER THE REVISED REQUIREMENTS THEY MIGHT BE ABLE TO MEET SPECIFICATIONS SINCE FIVE BIDDERS, ON THE PRIOR SOLICITATION, AND THREE IN THE CURRENT ONE, UNDERTOOK THE TROUBLE AND EXPENSE OF PREPARING BIDS, AND ONE, AS STATED ABOVE, OBTAINED A POSTPONEMENT OF THE OPENING FOR THE PURPOSE OF DEVELOPING A CONFORMING PRODUCT. THE FACT THAT MOST OR ALL OF THE BIDS SUBMITTED BY THE VARIOUS BIDDERS, OTHER THAN JOHNSON AND JOHNSON, DID NOT MEET THE REQUIREMENTS DOES NOT ESTABLISH THAT THE REQUIREMENTS DO NOT REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT, OR THAT THE SPECIFICATION IS SO RESTRICTIVE THAT AN AWARD UNDER THE INVITATION WOULD BE IMPROPER. IN THIS REGARD, IT IS ADMINISTRATIVELY REPORTED THAT THERE ARE AT LEAST THREE KNOWN FIRMS WHO ARE PRESENTLY DOING RESEARCH ON THEIR TYPES OF CONSTRUCTION SO AS TO HAVE THEIR PRODUCTS CONFORM TO THE EXISTING SPECIFICATION.

FOR THE FOREGOING REASONS, WE FIND NO LEGAL BASIS TO QUESTION THE PROPOSED AWARD TO JOHNSON AND JOHNSON AS THE LOWEST BIDDER MEETING THE REQUIREMENTS OF THE SPECIFICATIONS. YOUR PROTEST IS THEREFORE DENIED.