B-166084, OCT. 10, 1969

B-166084, OCT. 10, 1969

SPECIFICATIONS--RESTRICTIVE--PROPRIETARY ITEM, PROCESS, ETC. NAVY SPECIFICATION OF PROPRIETARY PLUG-RECEPTACLE UNIT UNDER INVITATION FOR ELECTRICAL DISTRIBUTION SYSTEM WAS UNDULY RESTRICTIVE OF COMPETITION. EVEN ACCEPTING ADMINISTRATIVE REPORT THAT SUCH UNIT INCORPORATED "SPECIAL QUALITIES" REPRESENTING GOVT. MINIMUM NEEDS, AND EVEN HAD SPECIFIED UNIT BEEN ONLY ACCEPTABLE ONE KNOWN, BRAND NAME "OR EQUAL" SPECIFICATION WOULD HAVE AFFORDED BIDDERS THE "FREE AND FULL COMPETITION" REQUIRED BY 10 U.S.C. 2305 (A) AND (B). ALTHOUGH DETERMINATION WHETHER SPECIFICATION MEETS GOVT. NEEDS IS PRIMARILY WITHIN JURISDICTION OF PROCURING AGENCY, ONCE SPECIFICATIONS HAVE BEEN FORMULATED, IT IS GENERAL ACCOUNTING OFFICE'S DUTY TO DETERMINE WHETHER THEY ARE UNDULY RESTRICTIVE OF COMPETITION. HOWEVER, SINCE CONTRACT HAS BEEN AWARDED AND PARTIALLY PERFORMED, REMEDIAL ACTION IS PRECLUDED.

TO OCEAN ELECTRIC CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 5, 1969, PROTESTING AGAINST THE REQUIREMENT FOR A PROPRIETARY ITEM UNDER INVITATION FOR BIDS NO. N62470-68-B-0735, ISSUED BY THE ATLANTIC DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, NAVAL STATION, NORFOLK, VIRGINIA.

THE INVITATION WAS FOR THE CONSTRUCTION OF AN ELECTRICAL DISTRIBUTION SYSTEM FOR THE NAVAL AMPHIBIOUS BASE, LITTLE CREEK, NORFOLK, VIRGINIA. SECTION 16B OF THE SPECIFICATIONS, REGARDING EXTERIOR ELECTRICAL WORK, INCLUDED SECTION 16B.14, TO WHICH YOUR PROTEST IS DIRECTED. SECTION 16B.14, AS AMENDED, PROVIDED IN PART:

"16B.14 NEW PIER RECEPTACLES AND PLUGS SHALL BE AS MANUFACTURED BY THE LOCKHEED-CALIFORNIA COMPANY, A DIVISION OF LOCKHEED AIRCRAFT CORPORATION, OF BURBANK, CALIFORNIA 91503

"16B.14.1 RECEPTACLES SHALL BE PART NO. G-166 -RECEPTACLE ASSEMBLY CABLED POWER TRANSFER - SHORE TO SHIP AND SHIP TO SHIP.- * * *

"16B.14.2 PLUGS SHALL BE PART NO. G-157 -PLUG, POWER TRANSFER - SHORE TO SHIP AND SHIP TO SHIP.- * * *"

YOUR TELEGRAM OF FEBRUARY 5, 1969, PROTESTED AGAINST THIS PROVISION AS BEING RESTRICTIVE OF COMPETITION SINCE IT REQUIRED A PROPRIETARY ITEM. YOU REQUESTED THAT THE SPECIFICATION BE AMENDED TO PERMIT BIDDERS TO FURNISH THE BRAND NAME ITEM "OR EQUAL.'

THIS OFFICE BY LETTER OF FEBRUARY 11, 1969, REQUESTED THAT THE NAVY FURNISH US WITH AN ADMINISTRATIVE REPORT IN CONNECTION WITH THIS PROTEST. THE REPORT, DATED JULY 16, 1969, AND SUPPLEMENTED BY LETTER, WITH ENCLOSURES, DATED SEPTEMBER 19, 1969, FROM THE NAVAL FACILITIES ENGINEERING COMMAND, STATES IN PERTINENT PART:

"THE SUBJECT CONTRACT (ENCLOSURE (1) ( WAS AWARDED TO E. C. ERNST, INC. IN THE LUMP SUM AMOUNT OF $873,991.00 ON 13 FEBRUARY 1969. THE COMPLETION DATE ESTABLISHED BY THE CONTRACT WAS 12 AUGUST 1970 AND THE WORK IS APPROXIMATELY 20 PERCENT COMPLETE AT THIS TIME. THE PROTESTANT, OCEAN ELECTRIC CORPORATION, WAS A PROSPECTIVE BIDDER ON THE CONTRACT.

"THE PRODUCT SPECIFIED BY PARAGRAPH 16B.14 IS A THREE PHASE, 400 AMPERE, 450/480 VOLT QUICK DISCONNECT PLUG-RECEPTACLE, INCORPORATING AUTOMATIC INTERLOCK FACILITIES TO PREVENT ARCING AND ATTENDANT FIRES SHOULD THE UNIT BE SEPARATED WHILE IN OPERATION. THE FOLLOWING IS A LIST OF THE SPECIAL QUALITIES OF THIS UNIT:

(1) IT DOES NOT REQUIRE FORCE TO MATE - ONLY MINIMAL INSERTION AND EXTRACTION FORCES ARE REQUIRED.

(2) THE POSSIBILITY OF CROSS PHASING, WHICH COULD OCCUR USING SINGLE- PHASE PLUG-RECEPTACLES, IS ELIMINATED AS THE LOCKHEED PRODUCT CAN BE ENGAGED IN ONLY ONE WAY.

(3) THE POSSIBILITY OF SINGLE PHASING, WHICH COULD OCCUR USING SINGLE- PHASE PLUG-RECEPTACLES, IS NON-EXISTENT.

(4) THE UNIT IS VERY COMPACT AND MANAGEABLE BY ONE MAN.

(5) IT REQUIRES LESS TIME FOR HOOK-UP AND BREAKAWAY - TWO-THIRDS FEWER CONNECTIONS THAN WITH SINGLE-PHASE PLUG-RECEPTACLES.

(6) IT ELIMINATES DAMAGES CAUSED BY APPLICATION OF EXTREME INSERTION AND EXTRACTION FORCES.

(7) IT IS SAFE, DEPENDABLE, AND DURABLE - LESS SUSCEPTIBLE TO OVER HEATING AND SHORTING.

(8) THE REPLACEMENT OF OR USE OF EXISTING ADAPTER CABLE (CARRIED BY ALL SHIPS AT PRESENT) WILL NOT BE REQUIRED.

(9) THE ADDED SAFETY FEATURE OF AN INTERLOCK SWITCH IN THE RECEPTACLE TO PREVENT ARCING AT THE CONTACTS AND THE POSSIBILITY OF SUBSEQUENT FIRE IN THE EVENT THE UNIT IS DISCONNECTED WHILE IN OPERATION.

"THE NEED FOR IMPROVEMENT IN LIGHT OF THE LONG HISTORY OF UNSATISFACTORY PERFORMANCE IS READILY RECOGNIZED. CAREFUL SCRUTINY OF THE FACTS HAS LED TO THE CONCLUSION BY COGNIZANT TECHNICAL PERSONNEL THAT THE LOCKHEED UNIT IS THE ONLY PLUG-RECEPTACLE PRESENTLY AVAILABLE WHICH PROVIDES ADEQUATE RELIABILITY, SAFETY FEATURES, AND DURABILITY IN THIS IMPORTANT AREA. THE PRESENT TIME THE NAVAL SHIP SYSTEMS COMMAND IS PREPARING A MILITARY SPECIFICATION EMBODYING THE ESSENTIAL CHARACTERISTICS OF THE LOCKHEED UNIT FOR INCLUSION IN ALL NAVAL PROCUREMENT OF SHIP TO SHORE POWER DISTRIBUTION SYSTEMS.'

THE DETERMINATION WHETHER A SPECIFICATION MEETS THE NEEDS OF THE GOVERNMENT IS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. 17 COMP. GEN. 554. OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY IN THIS REGARD ABSENT CLEAR AND CONVINCING EVIDENCE OF ERROR OR THAT THE CONTRACT AWARDED ON THE BASIS OF SUCH SPECIFICATIONS WOULD, BY UNDULY RESTRICTING COMPETITION OR OTHERWISE, BE IN VIOLATION OF LAW. 161836, OCTOBER 4, 1967. HOWEVER, ONCE THE SPECIFICATIONS HAVE BEEN FORMULATED, IT IS THE DUTY OF THIS OFFICE TO DETERMINE WHETHER THEY ARE UNDULY RESTRICTIVE OF COMPETITION. B-145497, MAY 26, 1961.

ARMED SERVICES PROCUREMENTS ARE GOVERNED BY THE POLICY THAT "* * * INVITATIONS FOR BIDS SHALL PERMIT SUCH FREE AND FULL COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY AND SERVICES NEEDED BY THE AGENCY CONCERNED.' 10 U.S.C. 2305 (A). IN ADDITION, 10 U.S.C. 2305 (B) PROVIDES THAT "THE SPECIFICATIONS IN INVITATION FOR BIDS * * * MUST BE SUFFICIENTLY DESCRIPTIVE IN LANGUAGE AND ATTACHMENTS, TO PERMIT FULL AND FREE COMPETITION.' THIS POLICY IS IMPLEMENTED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-101 (I) WHICH STATES THAT INVITATIONS FOR BIDS SHOULD DESCRIBE THE GOVERNMENT'S NEEDS "CLEARLY, ACCURATELY, AND COMPLETELY, BUT AVOIDING UNNECESSARILY RESTRICTIVE SPECIFICATIONS OR REQUIREMENTS WHICH MIGHT UNDULY LIMIT THE NUMBER OF BIDDERS.' SEE ALSO ASPR 1-1201 (A). THEREFORE, WE HAVE HELD THAT WHERE THE PROCURING ACTIVITY RESTRICTS COMPETITION TO A PARTICULAR MANUFACTURER'S PRODUCT, THE AGENCY IS REQUIRED TO JUSTIFY SUCH RESTRICTION. 39 COMP. GEN. 101. THIS OFFICE HAS BEEN RELUCTANT TO SANCTION SOLE-SOURCE PROCUREMENT IN THE ABSENCE OF DEMONSTRABLE PROOF THAT ONLY ONE SOURCE COULD FULFILL THE GOVERNMENT'S MINIMUM NEEDS. 16 COMP. GEN. 318.

THE INSTANT CASE MAY BE COMPARED WITH 33 COMP. GEN. 524, IN WHICH WE FOUND TO BE LEGALLY DEFECTIVE AN INVITATION WHICH REQUIRED THAT ONE PORTION OF AN ITEM BE A PATENTED DEVICE AVAILABLE FROM ONLY ONE MANUFACTURER. IN THAT CASE WE STATED:

"ALTHOUGH THE PATENTED DEVICE HERE IN QUESTION MAY BE THE ONLY DEVICE NOW KNOWN TO YOUR DEPARTMENT WHICH WOULD COMPLY WITH ITS NEEDS, THE EXCLUSION OF ANY OTHER SUITABLE DEVICE THAT POSSIBLY MIGHT EXIST, NECESSARILY IS RESTRICTIVE OF COMPETITION. THIS OFFICE HAS CONSISTENTLY HELD THAT INVITATIONS TO BID SHOULD NOT BE DRAWN AROUND OR NAME PARTICULAR MAKES OR BRANDS UNLESS AN OPPORTUNITY IS ALSO AFFORDED OTHER BIDDERS TO OFFER SUBSTITUTE -OR EQUAL- ITEMS AND THAT FAILURE TO DO THIS CANNOT BE JUSTIFIED ON THE BASIS THAT NO OTHER SATISFACTORY ITEM EXISTS SINCE THE ONLY WAY IT CAN BE DEFINITELY DETERMINED THAT SUCH IS THE CASE WHERE AN ADVERTISED PROCUREMENT IS INVOLVED IS BY ADVERTISING APPROPRIATE SPECIFICATIONS.'

THIS HOLDING WAS LATER EXTENDED TO SPECIFICATIONS WHICH PERMITTED THE FURNISHING OF ONLY ONE PARTICULAR ITEM, REGARDLESS OF WHETHER THE ITEM WAS PROTECTED BY PATENT. B-138859, NOVEMBER 17, 1959.

WE ACCEPT THE CONCLUSION OF THE ADMINISTRATIVE REPORT THAT THE LOCKHEED PRODUCT INCORPORATES CERTAIN "SPECIAL QUALITIES," SUCH AS THE AUTOMATIC INTERLOCK SWITCH, WHICH REPRESENT THE MINIMUM NEEDS OF THE GOVERNMENT. HOWEVER, THERE IS NOTHING IN THE ADMINISTRATIVE REPORT WHICH WOULD HAVE PRECLUDED THE USE OF A BRAND NAME "OR EQUAL" SPECIFICATION WHICH ENUMERATED THE ESSENTIAL "SPECIAL QUALITIES" OR SALIENT CHARACTERISTICS OF THE PLUG-RECEPTACLE UNIT. EVEN THOUGH THE LOCKHEED UNIT MAY HAVE BEEN THE ONLY ACCEPTABLE ONE KNOWN, A BRAND NAME "OR EQUAL" SPECIFICATION WOULD HAVE AFFORDED BIDDERS THE "FREE AND FULL COMPETITION" REQUIRED BY STATUTE. IN THIS REGARD, WE NOTE THAT ASPR 1 1206.1 STATES THAT BRAND NAME "OR EQUAL" CONSTITUTES "THE MINIMUM ACCEPTABLE PURCHASE DESCRIPTION" WHICH IS TO BE USED ONLY WHEN MORE DETAILED DESCRIPTIONS CANNOT FEASIBLY BE MADE AVAILABLE.

WE HAVE BEEN SUPPLIED BY THE NAVAL FACILITIES ENGINEERING COMMAND WITH A COPY OF A MILITARY SPECIFICATION, MIL-C-24368 (SHIPS), DATED AUGUST 15, 1969, FOR USE IN FUTURE PROCUREMENTS OF THE PLUG-RECEPTACLE UNIT. THE USE OF THIS SPECIFICATION IN FUTURE PROCUREMENTS WOULD APPEAR TO BE EVEN MORE IN ACCORD WITH THE COMPETITIVE BIDDING SYSTEM THAN THE USE OF A BRAND NAME "OR EQUAL" SPECIFICATION.

FOR THE REASONS DISCUSSED ABOVE WE CONSIDER THE SUBJECT SPECIFICATIONS TO HAVE BEEN UNDULY RESTRICTIVE OF COMPETITION, BUT AS THE CONTRACT HAS BEEN AWARDED AND IS PARTIALLY COMPLETED, WE ARE PRECLUDED FROM TAKING REMEDIAL ACTION IN THE MATTER.