B-164993, NOVEMBER 21, 1968, 48 COMP. GEN. 345

B-164993: Nov 21, 1968

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IS BASED ON A DESIRE FOR A SUPERIOR PRODUCT AND NOT ON THE MINIMUM NEEDS OF THE GOVERNMENT AND. ELIMINATE RESTRICTIVE FEATURES THAT MIGHT LIMIT THE ACCEPTABILITY OF A PRODUCT WERE DISREGARDED. BIDDERS WERE TO INSERT THE DESK MANUFACTURER'S NAME. EIGHT BIDS WERE RECEIVED AND OPENED ON JUNE 17. "EIGHT BIDDERS WERE FOUND TO HAVE SUBMITTED RESPONSIVE BIDS.'. IT IS REPORTED THAT A "PREAWARD SURVEY" WAS CONDUCTED AND THAT THIS CONSISTED OF VISITS TO SEVERAL OF THE DESK MANUFACTURERS AND DISCUSSIONS WITH BIDDERS. IT WAS DETERMINED ON JUNE 25. WE HAVE CONCLUDED THAT THE SPECIFICATIONS WERE RESTRICTIVE AND THAT NO AWARD SHOULD HAVE BEEN MADE UNDER THE INVITATION. WHILE WE ARE UNABLE TO DIRECT THAT CORRECTIVE ACTION BE TAKEN BECAUSE THE CONTRACT HAS BEEN COMPLETELY PERFORMED.

B-164993, NOVEMBER 21, 1968, 48 COMP. GEN. 345

CONTRACTS - SPECIFICATIONS - MINIMUM NEEDS REQUIREMENT - ERRONEOUSLY STATED AN AWARD TO THE SEVENTH HIGHEST BIDDER OUT OF EIGHT BIDDERS SUBMITTING RESPONSIVE BIDS TO AN INVITATION FOR DESKS THAT INCORPORATED UNESSENTIAL, RESTRICTIVE PROPRIETARY SPECIFICATIONS, IS BASED ON A DESIRE FOR A SUPERIOR PRODUCT AND NOT ON THE MINIMUM NEEDS OF THE GOVERNMENT AND, THEREFORE, THE REQUIREMENTS OF PARAGRAPH 1-1201 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) THAT INVITATIONS STATE MINIMUM NEEDS, DESCRIBE SUPPLIES AND SERVICES SO AS TO ENCOURAGE COMPETITION, AND ELIMINATE RESTRICTIVE FEATURES THAT MIGHT LIMIT THE ACCEPTABILITY OF A PRODUCT WERE DISREGARDED. TO ASSURE THE FULL AND FREE COMPETITION CONTEMPLATED BY PARAGRAPH 1-1206.1 (A) OF ASPR, FUTURE ADVERTISED SPECIFICATIONS FOR DESKS SHOULD ACCURATELY REFLECT ONLY ACTUAL MINIMUM NEEDS.

TO THE SECRETARY OF THE NAVY, NOVEMBER 21, 1968:

BY LETTER DATED SEPTEMBER 18,1968, WITH ENCLOSURES, THE ACTING DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND, FURNISHED A REPORT ON THE PROTEST OF THE BUSINESS SERVICES CORPORATION AGAINST THE REJECTION OF ITS LOW BID OF $11,110 AND THE AWARD OF A CONTRACT TO THE BAIRD SEATING COMPANY, INC., AT THE PRICE OF $14,476 UNDER INVITATION FOR BIDS NO. N00161-68-B-0447.

THE INVITATION, ISSUED ON MAY 17, 1968, BY THE UNITED STATES NAVAL ACADEMY, REQUESTED BIDS FOR 110 TRADITIONAL STYLE OFFICE DESKS IN ACCORDANCE WITH SPECIFICATIONS SET FORTH THEREIN. IN ADDITION TO OFFERING A PRICE, BIDDERS WERE TO INSERT THE DESK MANUFACTURER'S NAME, BRAND NAME AND MODEL NUMBER OF THE DESKS OFFERED. EIGHT BIDS WERE RECEIVED AND OPENED ON JUNE 17, 1968, AND IT APPEARED THAT THE BUSINESS SERVICES CORPORATION OFFERED TO FURNISH COLE STEEL'S MADISON BRAND NO. 1762NCF-SF DESKS AT A UNIT PRICE OF $101, LESS 2 PERCENT FOR PAYMENT IN 20 DAYS. THE GENERAL FIREPROOFING COMPANY OFFERED ITS GENERALAIRE DESK NO. A1960F-3 FOR $105.75 PER UNIT AND BALTIMORE STATIONERY CO. OFFERED THE SAME MODEL DESK FOR $109.70. GLOVER SCHOOL AND OFFICE EQUIPMENT, INC., PROPOSED TO FURNISH ALL STEEL'S MODEL NO. 6629 FOR $113.74 AND EXECUTIVE INTERIORS, INC., OFFERED THE SAME MODEL DESK FOR $123.90. THE BAIRD SEATING COMPANY, INC., OFFERED THE LYON METAL PRODUCTS DESK, TRADITIONAL BRAND NO. 10-0140, AT A UNIT PRICE OF $131.60. M.S. GINN AND COMPANY OFFERED A CORRY- JAMESTOWN DESK, NO. 5560, AT $131.10 AND LUCAS BROTHERS OFFERED A STEELCASE MODEL NO. 14021 DESK AT $138.

THE INVITATION DID NOT REQUIRE BIDDERS TO FURNISH DATA ON THEIR PROPOSED DESKS TO SHOW COMPLIANCE WITH THE SPECIFICATIONS AND, AS REPORTED BY THE NAVAL ACADEMY,"EIGHT BIDDERS WERE FOUND TO HAVE SUBMITTED RESPONSIVE BIDS.' IT IS REPORTED THAT A "PREAWARD SURVEY" WAS CONDUCTED AND THAT THIS CONSISTED OF VISITS TO SEVERAL OF THE DESK MANUFACTURERS AND DISCUSSIONS WITH BIDDERS. AFTER SOME PERIOD OF INTRAAGENCY DISCUSSION OF THE RESPECTIVE MERITS OF THE DESKS OFFERED, IT WAS DETERMINED ON JUNE 25, 1968, TO MAKE AWARD TO THE BAIRD SEATING COMPANY AS THE LOWEST CONFORMING BIDDER EVEN THOUGH SIX OTHER BIDDERS HAD OFFERED LOWER PRICES PRESUMABLY IN COMPLIANCE WITH THE SPECIFICATIONS.

UPON REVIEW OF THIS PROCUREMENT, WE HAVE CONCLUDED THAT THE SPECIFICATIONS WERE RESTRICTIVE AND THAT NO AWARD SHOULD HAVE BEEN MADE UNDER THE INVITATION. WHILE WE ARE UNABLE TO DIRECT THAT CORRECTIVE ACTION BE TAKEN BECAUSE THE CONTRACT HAS BEEN COMPLETELY PERFORMED, OUR CONSIDERATION OF THE PROTEST IS SET OUT BELOW FOR THE FUTURE GUIDANCE OF PROCUREMENT OFFICIALS.

BUSINESS SERVICES PROTESTED TO THE CONTRACTING OFFICER CONTENDING THAT THE SPECIFICATIONS INCORPORATED IN THE INVITATION WERE CLEARLY PROPRIETARY SPECIFICATIONS WRITTEN AROUND A DESK MANUFACTURED BY THE LYON METAL PRODUCTS COMPANY, AND THAT PARAGRAPH 1-1201 OF THE ARMED SERVICE PROCUREMENT REGULATION (ASPR) WAS DISREGARDED IN MAKING THE AWARD TO THE BAIRD SEATING COMPANY, THE BIDDER PROPOSING TO FURNISH DESKS MANUFACTURED BY THE LYON METAL PRODUCTS COMPANY. ASPR 1-1201, CITED BY THE PROTESTANT, PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) PLANS, DRAWINGS, SPECIFICATIONS, DESCRIPTIONS FOR PROCUREMENTS SHALL STATE ONLY TO 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. * * *

IN REPLY TO ITS ALLEGATIONS, BUSINESS SERVICES WAS ADVISED BY THE CONTRACTING OFFICER THAT THE COLE STEEL (MADISON 1762NCF-SF) DESK OFFERED BY IT WAS REJECTED DUE TO FAILURE TO MEET THE SPECIFICATIONS IN THE FOLLOWING AREAS:

(1) 2.1 TOP CONSTRUCTION. NOT "SANDWICH" CONSTRUCTION; I.E., MELAMINE TOP SHEET, MIDDLE STEEL SHEET, BUT NOT INDIVIDUAL CHANNEL RIBS SPOT WELDED ON BOTTOM OF MIDDLE SHEET VICE FULL BOTTOM SHEET.

(2) 2.5 DRAWERS.

(A) DRAWER GLIDES NOT "LARGE RUGGED"; SMALLEST GLIDES FOUND IN ANY OF APPROXIMATELY 12 TYPES OF DESKS INSPECTED.

(B) ALL DRAWERS AND SLIDES DO NOT FIT "FLUSH WITH THE DESK PEDESTAL CASING WHEN FULLY CLOSED" , DICTATION SHELVES PROTRUDE APPROXIMATELY 3/4 INCH AT MINIMUM, AND CENTER DRAWER IS RECESSED APPROXIMATELY 1 INCH WHEN LOCKED.

IN ITS LETTER OF AUGUST 1, 1968, TO OUR OFFICE, BUSINESS SERVICE STATES THAT THE NAVAL ACADEMY'S JUSTIFICATION FOR NOT AWARDING A CONTRACT TO IT SEEMS TO LIE IN THE PHRASE "SANDWICH CONSTRUCTION" AS IT APPLIED TO TOP CONSTRUCTION. IT STATES THAT THIS PHRASE IN ITSELF WOULD APPEAR TO SUPPORT ITS CONTENTION THAT THE SPECIFICATIONS WERE RESTRICTIVE. BUSINESS SERVICES CONTENDS THAT THE TOP CONSTRUCTION OF THE DESK IT OFFERED IS SUCH THAT IT WILL WITHSTAND ABUSE FOR ABOVE THE INTENDED USE OF THE DESKS TO BE PURCHASED. THE NAVAL ACADEMY HAS STATED THAT THE DRAWER GLIDES ON THE DESKS OFFERED BY BUSINESS SERVICES ARE SUBSTANDARD AND THAT THEY ARE SMALLER THAN THAT SPECIFIED IN THE INVITATION. HOWEVER, BUSINESS SERVICES ADVISES THAT THE GLIDES IN ITS DESK WILL WITHSTAND ANY AMOUNT OF WEIGHT AND PROVIDE A SMOOTH GLIDE UNDER FULLY LOADED CONDITIONS, AND THAT IT CAN SEE NO JUSTIFICATION FOR SPECIFYING GLIDE DIAMETER BECAUSE GLIDE DIAMETER IN ITSELF DOES NOT INSURE THE QUALITY WHICH IS DESIRED.

WHILE THE PREPARATION OF SPECIFICATIONS STATING THE NEEDS OF THE GOVERNMENT AND THE FACTUAL DETERMINATION AS TO WHETHER EQUIPMENT OFFERED BY A BIDDER CONFORMS TO THOSE SPECIFICATIONS IS PRIMARILY WITHIN THE DISCRETION OF THE ADMINISTRATIVE AGENCY CONCERNED (38 COMP. GEN. 190; 35 ID. 174), IT IS THE FUNCTION OF THE GENERAL ACCOUNTING OFFICE TO INSURE THAT PROCUREMENTS ARE MADE IN ACCORDANCE WITH APPLICABLE LAW AND THAT THERE IS A PROPER EXERCISE OF THE ADMINISTRATIVE DISCRETION. THE RECORD BEFORE US CONTAINS A LETTER DATED MAY 9, 1968, TO THE NAVAL ACADEMY FROM THE GENERAL SERVICES ADMINISTRATION (GSA), WHICH CONTAINS A LIST OF MODIFICATIONS TO THE NAVAL ACADEMY'S SPECIFICATIONS FOR PEDESTAL DESKS WHICH GSA CONSIDERED EITHER NECESSARY TO PERMIT A DEGREE OF COMPETITION OR WHICH MAY BE USEFUL TO ASSURE THAT THE NAVAL ACADEMY RECEIVES THE DESIRED QUALITY AND CHARACTERISTICS. GSA RECOMMENDED THAT PARAGRAPH 2.1 BE CHANGED BY DELETING THE WORD "SANDWICH" AND SUBSTITUTING THE WORD "FORMED" IN PLACE OF THE WORD "RIB" . THE NAVAL ACADEMY DID NOT FOLLOW THESE RECOMMENDATIONS AND PARAGRAPH 2.1 APPEARED IN THE INVITATION AS FOLLOWS:

2.1 TOP CONSTRUCTION. THE TOP SHALL BE SANDWICH CONSTRUCTION WITH RIB REINFORCEMENTS A MAXIMUM OF 6 INCHES ON CENTERS TO PROVIDE MAXIMUM RIGIDLY. THE TOP SHALL BE FACED WITH A WOODGRAIN MELAMINE PLASTIC SHEET TO BE SELECTED BY THE GOVERNMENT TO MATCH EXISTING FURNITURE. SAMPLES TO BE SUBMITTED FOR SELECTION.

ON APRIL 12, 1968, OR PRIOR TO THE ISSUANCE OF THE INVITATION, THE NAVAL ACADEMY, IN SUBSTANTIATING ITS REQUEST TO PURCHASE DESKS OTHER THAN THOSE UNDER THE GSA SUPPLY SCHEDULE, RECOMMENDED SPECIFICATIONS FOR THE DESKS AND FURTHER ADVISED THAT SUCH RECOMMENDED SPECIFICATIONS WOULD PROVIDE A JUSTIFICATION FOR A SOLE-SOURCE PROCUREMENT. THE JUSTIFICATION FOR A WAIVER STATED, IN PERTINENT PART: 6. BASED ON A CAREFUL CONSIDERATION OF COST, MATERIAL, QUALITY, DESIGN UTILITY, WORKMANSHIP, AND DURABILITY FACTORS, IT HAS BEEN CONCLUDED THAT THE MODEL 10-0140 TRADITIONAL STYLE DESK MANUFACTURED BY THE LYONS METAL COMPANY OFFERS THE BEST BUY OF ALL THE DESKS STUDIED. A MODEL 10-0140 DESK, AMONG SEVERAL OTHERS, HAS BEEN IN USE ON A TEST BASIS IN THE SCIENCE DEPARTMENT FOR SEVERAL WEEKS. ENCLOSURE (2) LISTS THE BASIC SPECIFICATIONS RECOMMENDED FOR USE IN PROCURING APPROXIMATELY 110 SCIENCE DEPARTMENT FACULTY DESKS. THE LYONS DESKS MEET ALL SPECIFICATIONS; THE ALL STEEL 6629 AND 2001-121, ART STEEL 1500 AND 400, COLUMBIA DP60, IMPERIAL P3060, AND STEELCASE 3223 MODELS MEET MOST OF THE SPECIFICATIONS. ALSO LISTED IN ENCLOSURE (2) ARE A NUMBER OF THE FEATURES THAT MAKE THE LYONS DESK SUPERIOR TO ITS COMPETITORS.

AFTER SETTING FORTH THE RECOMMENDED SPECIFICATIONS, THE NAVAL ACADEMY JUSTIFICATION CONCLUDED BY STATING: 7. THE LYONS MODEL 10 0140 DESK MEETS ALL THE FOREGOING SPECIFICATIONS AND HAS THE FOLLOWING SIGNIFICANT ADVANTAGES:

A. TWO-SHEET STEEL TOP WITH BOTTOM SHEET RIBBED ON 3 INCHES CENTERS (WITHOUT QUESTION THE STRONGEST TOP IN THE INDUSTRY IN THE PRICE RANGE CONSIDERED).

B. HONEYCOMB SOUND DEADENERS (THE MOST EFFECTIVE OF ANY DESK EXAMINED).

C. TAPERED TOP EDGE TO MINIMIZE SCRATCHING (THE ONLY DESK WITH THIS FEATURE).

D. WIDER KNEEHOLE SPACE DUE TO EXTRA SLIM PEDESTAL CASINGS.

E. MORE FLOOR CLEARANCE FOR EASE IN CLEANING, ALSO DUE TO EXTRA SLIM PEDESTAL CASINGS.

F. LOCK-IN-TOP RATHER THAN IN CENTER DRAWER (NORMALLY A FEATURE PROVIDED ONLY BY EXPENSIVE DESKS).

G. TAPERED FRONT DRAWER EDGE FOR EASE IN SEATING.

H. 100 PERCENT ACRYLIC PAINT.

I. SUPERIOR FINISH (PROBABLY HAND) OF CORNERS, EDGES, ETC.

IT IS SIGNIFICANT TO NOTE THAT SUCH JUSTIFICATION PRESENTATION REJECTED FROM CONSIDERATION DESKS BUILT BY THE COLE STEEL EQUIPMENT COMPANY, THE GENERAL FIREPROOFING COMPANY, AND THE STEELCASE COMPANY. ANY BIDDER OTHER THAN ONE OFFERING TO FURNISH THE LYON DESK WAS PUT IN THE POSITION OF HAVING ITS BID REJECTED BECAUSE ITS DESK DID NOT HAVE "SANDWICH CONSTRUCTION WITH RIB REINFORCEMENTS.'

SECTION 2305/A) OF TITLE 10, U.S.C. PROVIDES THAT, WHENEVER FORMAL ADVERTISING IS REQUIRED, THE SPECIFICATIONS AND INVITATIONS FOR BIDS SHALL PERMIT FREE AND FULL COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY NEEDED BY THE AGENCY CONCERNED. CONSISTENT WITH THIS STATUTORY DIRECTION, ASPR 1-1206.1 (A) PROVIDES IN PERTINENT PART:

* * * 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. * * *

HAVING REGARD FOR THESE PROVISIONS OF LAW AND REGULATION, IT IS CLEAR THAT AN AGENCY MAY PURCHASE A SPECIFIC PRODUCT WHEN IT DETERMINES THAT THE FEATURES OF THAT PRODUCT ARE ESSENTIAL TO ITS REQUIREMENTS. HENCE, THE SOLE QUESTION FOR OUR DETERMINATION IS WHETHER THE NAVAL ACADEMY HAS JUSTIFIED ITS ACTION IN PURCHASING THE LYON DESK AT A PRICE WHICH WAS THE SEVENTH HIGHEST BID OUT OF EIGHT BIDS RECEIVED. OF COURSE, WE HAVE NO WAY OF DETERMINING, EXCEPT FROM THE ADMINISTRATIVE REPORT, WHETHER THE PARTICULAR FEATURES OF THE LYON DESK WERE ESSENTIAL TO THE NAVAL ACADEMY'S NEEDS. HOWEVER, THE RECORD BEFORE US DOES NOT ESTABLISH THAT DESKS OTHER THAN THE LYON DESK WOULD NOT HAVE MET THOSE ESSENTIAL NEEDS. RATHER, THE RECORD EVIDENCES AN ADMINISTRATIVE DESIRE FOR A SOMEWHAT SUPERIOR PRODUCT WHICH WAS NOT RELATED TO THE NAVAL ACADEMY'S DEMONSTRATED MINIMUM NEEDS FOR DESKS. CONSIDERING THAT THE OTHER DESKS OFFERED WERE COMMERCIAL MODELS AND THAT THE LYON DESK IS APPARENTLY A SOMEWHAT BETTER COMMERCIAL MODEL, WE DO NOT FIND THAT THE RECORD ESTABLISHES THE EXISTENCE OF UNIQUE OR UNUSUAL REQUIREMENTS WHICH MAY BE MET ONLY BY THE LYON DESK.

IN VIEW OF THE MANY POINTS OF SIMILARITY BETWEEN THE SPECIFICATIONS SET FORTH IN THE INVITATION AND THE COMMERCIAL DESCRIPTION OF THE LYON DESK, TOGETHER WITH THE FACT THAT THE ALLEGATIONS OF UNWARRANTED RESTRICTIVENESS WHICH ARE CONTAINED IN THE PROTEST OF BUSINESS SERVICES ARE NOT CONVINCINGLY OR SUBSTANTIALLY REFUTED BY THE RECORD, WE CONCLUDE THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE AND PRECLUDED THE WIDEST FIELD OF COMPETITION AS REQUIRED BY STATUTE.

SINCE IT APPEARS THAT THE NEEDS OF THE GOVERNMENT COULD HAVE BEEN REASONABLY MET BY DESKS CONFORMING TO SPECIFICATIONS OTHER THAN THOSE ORIGINALLY ADVERTISED, WE SUGGEST THAT ALL NECESSARY STEPS BE TAKEN TO ASSURE THAT FUTURE ADVERTISED SPECIFICATIONS FOR DESKS ACCURATELY REFLECT ONLY THE ACTUAL MINIMUM NEEDS OF THE ACADEMY SO AS TO ASSURE THE FULL AND FREE COMPETITION ENVISAGED BY THE ADVERTISING STATUTE.