B-165041, OCT. 22, 1968

B-165041: Oct 22, 1968

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BLACK COMPANY INC.: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10. YOU PROTEST THAT THE TYPE OF TOWER REQUIRED BY THE SPECIFICATIONS IS ONLY MADE BY THE WIDE-LITE CORPORATION. THEREFORE YOU CONTEND THAT THE SPECIFICATIONS ARE RESTRICTIVE. THE INVITATION CONTAINED THE STANDARD "BRAND NAME OR EQUAL" CLAUSE PRESCRIBED BY SECTION 1-1.307-6 OF THE FEDERAL PROCUREMENT REGULATIONS AND BIDS ON THE TOWER AND FLOODLIGHT REQUIREMENTS OF THE SPECIFICATIONS WERE REQUESTED ON THE BASIS OF BEING SIMILAR OR EQUAL TO THE WIDE-LITE MODELS CITED IN THE SCHEDULE. THE EVALUATION OF BIDS AND THE DETERMINATION OF EQUALITY OF THE PRODUCT OFFERED IS THE RESPONSIBILITY OF THE GOVERNMENT AND IS BASED ON INFORMATION FURNISHED BY THE BIDDER.

B-165041, OCT. 22, 1968

TO RALPH B. BLACK COMPANY INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10, 1968, WITH ENCLOSURES, PROTESTING AGAINST THE ALLEGED RESTRICTIVE SPECIFICATIONS CONTAINED IN INVITATION FOR BIDS NO. GA600-1978, ISSUED BY THE BUREAU OF INDIAN AFFAIRS, NAVAJO AREA OFFICE, GALLUP, NEW MEXICO.

THE INVITATION, ISSUED ON JULY 25, 1968, SOLICITED BIDS FOR FOOTBALL FIELD LIGHTING AT THE BUREAU OF INDIAN AFFAIRS HIGH SCHOOL, FORT WINGATE, NEW MEXICO. WHILE YOU DID NOT SUBMIT A BID UNDER THE INVITATION, YOU PROTEST THAT THE TYPE OF TOWER REQUIRED BY THE SPECIFICATIONS IS ONLY MADE BY THE WIDE-LITE CORPORATION, AND THEREFORE YOU CONTEND THAT THE SPECIFICATIONS ARE RESTRICTIVE.

IN THIS CONNECTION, THE INVITATION CONTAINED THE STANDARD "BRAND NAME OR EQUAL" CLAUSE PRESCRIBED BY SECTION 1-1.307-6 OF THE FEDERAL PROCUREMENT REGULATIONS AND BIDS ON THE TOWER AND FLOODLIGHT REQUIREMENTS OF THE SPECIFICATIONS WERE REQUESTED ON THE BASIS OF BEING SIMILAR OR EQUAL TO THE WIDE-LITE MODELS CITED IN THE SCHEDULE. UNDER THAT CLAUSE, THE EVALUATION OF BIDS AND THE DETERMINATION OF EQUALITY OF THE PRODUCT OFFERED IS THE RESPONSIBILITY OF THE GOVERNMENT AND IS BASED ON INFORMATION FURNISHED BY THE BIDDER. THE PROCURING AGENCY JUSTIFIED THE USE OF THE BRAND NAME OR EQUAL SPECIFICATION AS FOLLOWS: "THE BUREAU'S NAVAJO AREA OFFICE ENGINEERING STAFF ADVISES THAT AT THE TIME OF PREPARATION OF THE SOLICITATION IT WAS AWARE OF THE FOLLOWING FIVE MANUFACTURERS OF SIMILAR LIGHT TOWERS IN ADDITION TO THE WIDE-LITE CORPORATION:

"MILLERBERND MFG. CO., WINSTED, MINNESOTA

DRESSER-IDECO CO., COLUMBUS, OHIO

ROHN MFG. CO., PEORIA, ILLINOIS

STEWART-TRAMOR PRODUCTS CO., TULSA, OKLAHOMA

BETHLEHEM STEEL CO., BETHLEHEM, PENNSYLVANIA "OF THE SIX SOURCES KNOWN TO THEM, THEY HAD ONLY WIDE-LITE SALES BROCHURES FROM WHICH TO OBTAIN SUFFICIENT ENGINEERING DATA TO SATISFY THE ENGINEERING STAFF OF ITS CAPABILITY TO WITHSTAND WIND LOADS OF UP TO 100 MILES PER HOUR. ENGINEERING DATA WAS AVAILABLE ON TUBULAR POLES OF SIMILAR WIND LOAD CAPABILITY. "AS TIME WAS OF THE ESSENCE IN THIS SOLICITATION, THE FOOTBALL SEASON BEING SO CLOSE, IT WOULD NOT PERMIT THE BUREAU TO OBTAIN COMPARABLE DATA IN ADVANCE FROM OTHER SOURCES. WIDE-LITE WAS SELECTED AS A STANDARD IN THIS SOLICITATION ON THE BASIS OF THE CONSIDERATIONS MENTIONED.'

HOWEVER, IT NOW APPEARS THAT YOUR PROTEST HAS BECOME ACADEMIC. BY LETTER OF OCTOBER 9, 1968, THE DEPARTMENT OF THE INTERIOR ADVISED OUR OFFICE THAT THE CONTRACTING OFFICER OF THE BUREAU OF INDIAN AFFAIRS, NAVAJO AREA OFFICE, HAS DETERMINED THAT DUE TO THE LATENESS OF THE SEASON THE NEED FOR THE REQUIREMENT HAS LESSENED, AND THAT NO AWARD WILL BE MADE UNDER THE INVITATION. WE ARE FURTHER ADVISED THAT THE PROCUREMENT WILL BE READVERTISED AT A LATER DATE. IN VIEW OF THIS INFORMATION, WE ARE CLOSING OUR FILE WITHOUT FURTHER ACTION.