B-167052, SEP. 19, 1969

B-167052: Sep 19, 1969

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WHERE JUSTIFICATION FOR PARTICULAR REQUIREMENTS FOR PRODUCT ARE NOT TRIVIAL OR IMMATERIAL FACT THAT BIDDER MAY BE UNABLE TO MEET THE REQUIREMENTS IS NOT SUFFICIENT TO WARRANT CONCLUSION THAT SPECIFICATIONS ARE RESTRICTIVE. SINCE GREAT WEIGHT TO TECHNICAL FINDINGS OF GOVERNMENT NEEDS IS REQUIRED AND FINDINGS DO NOT SEEM UNJUSTIFIED. PROCUREMENT OF ITEM WAS NOT AN "OR EQUAL" BUT WHICH REQUIRED USE OF PARTICULAR INGREDIENT CONTAINED IN STANDARD PATENTED ITEM. THEREFORE IT IS SUGGESTED THAT PROCURING ACTIVITY CONSIDER DEVELOPMENT OF PERFORMANCE TYPE SPECIFICATIONS FOR DETERGENTS WITH VIEW TO DEVELOPING GREATER COMPETITION WITHOUT LOWERING STANDARDS NECESSARY FOR INTERESTS OF GOVERNMENT. INC.: THERE WAS REFERRED TO OUR OFFICE FOR CONSIDERATION YOUR LETTER OF MAY 21.

B-167052, SEP. 19, 1969

BID PROTEST - RESTRICTIVE SPECIFICATIONS DECISION DENYING PROTEST OF HUNTINGTON LABORATORIES, INC., CONCERNING PROCUREMENT POLICIES AND SPECIFICATIONS FOR A PATENTED PRODUCT INVOLVED IN SOLICITATION FOR SURGICAL DETERGENT BY DEFENSE PERSONNEL SUPPORT CENTER. WHERE JUSTIFICATION FOR PARTICULAR REQUIREMENTS FOR PRODUCT ARE NOT TRIVIAL OR IMMATERIAL FACT THAT BIDDER MAY BE UNABLE TO MEET THE REQUIREMENTS IS NOT SUFFICIENT TO WARRANT CONCLUSION THAT SPECIFICATIONS ARE RESTRICTIVE. SINCE GREAT WEIGHT TO TECHNICAL FINDINGS OF GOVERNMENT NEEDS IS REQUIRED AND FINDINGS DO NOT SEEM UNJUSTIFIED, AWARD NEED NOT BE DISTURBED. HOWEVER, PROCUREMENT OF ITEM WAS NOT AN "OR EQUAL" BUT WHICH REQUIRED USE OF PARTICULAR INGREDIENT CONTAINED IN STANDARD PATENTED ITEM, IT WOULD BE DIFFICULT FOR ANY OTHER THAN PATENTEE OR LICENSEE TO SUBMIT RESPONSIVE BID. THEREFORE IT IS SUGGESTED THAT PROCURING ACTIVITY CONSIDER DEVELOPMENT OF PERFORMANCE TYPE SPECIFICATIONS FOR DETERGENTS WITH VIEW TO DEVELOPING GREATER COMPETITION WITHOUT LOWERING STANDARDS NECESSARY FOR INTERESTS OF GOVERNMENT.

TO HUNTINGTON LABORATORIES, INC.:

THERE WAS REFERRED TO OUR OFFICE FOR CONSIDERATION YOUR LETTER OF MAY 21, 1969, WITH ENCLOSURE, TO THE HONORABLE VANCE HARTKE, UNITED STATES SENATOR, RELATIVE TO THE PROCUREMENT POLICIES AND SPECIFICATION FOR A PATENTED PRODUCT INVOLVED IN A SOLICITATION FOR SURGICAL DETERGENT (DSA 120-69-R-2473) ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA.

THE ABOVE MENTIONED SOLICITATION WAS ISSUED ON MARCH 10, 1969, AND CALLED FOR THE PURCHASE OF 14,384 BOTTLES OF DETERGENT, SURGICAL, 7-1/2 PERCENT POVIDONE-IODINE, 1 GAL. (3.78 LITERS) FSN 6505-994-7224. TWO OFFERS WERE RECEIVED IN RESPONSE TO THE SOLICITATION, ONE FROM THE PURDUE-FREDERICK CO., AND THE OTHER FROM YOUR FIRM. YOUR OFFER SPECIFIED PHOSPHATE ESTER IODINE COMPLEX AS THE ACTIVE INGREDIENT AND REQUESTED A DEVIATION FROM THE PURCHASE DESCRIPTION WHICH CALLED FOR POVIDONE-IODINE AS THE ACTIVE INGREDIENT. THE DEVIATION WAS NOT GRANTED AND YOUR OFFER WAS REJECTED FOR FAILURE TO OFFER THE SPECIFICATION ITEM. YOU WERE ADVISED THAT THE ITEM BEING PROCURED REQUIRED POVIDONE-IODINE COMPLEX TO BE THE ACTIVE INGREDIENT AND SINCE THE PRODUCT, .S.I., OFFERED BY YOUR FIRM CONTAINED PHOSPHATE ESTER IODINE COMPLEX AS THE ACTIVE INGREDIENT, IT REPRESENTED A NEW ITEM OF SUPPLY. YOU WERE FURTHER ADVISED THAT ALL NEW MEDICAL ITEMS FOR USE BY THE THREE MEDICAL SERVICES WERE INITIALLY EVALUATED BY THE DEFENSE MEDICAL MATERIEL BOARD (HEREAFTER REFERRED TO AS THE BOARD) AND THAT YOU SHOULD APPLY TO THE BOARD FOR EVALUATION OF YOUR PRODUCT.

IT IS YOUR CONTENTION THAT THE SPECIFICATIONS ARE WRITTEN AROUND ONE PARTICULAR PRODUCT, WHICH IS PATENTED, TO THE EXCLUSION OF ALL OTHER PRODUCTS, AND THAT YOUR PRODUCT IS NOT ONLY MORE ECONOMICAL BUT IS AS GOOD IF NOT BETTER THAN THE PRODUCT OFFERED BY PURDUE-FREDERICK WHICH HAS BEEN ADOPTED AS A STANDARD ITEM IN THE FEDERAL SUPPLY CATALOG.

A REVIEW OF THE RECORDS OF THE BOARD SHOWS THAT YOU FIRST PRESENTED G.S.I. TO THE BOARD FOR EVALUATION IN JULY 1965 AND WERE ADVISED THAT THE BOARD DID NOT DESIRE TO STANDARDIZE G.S.I., BUT THAT MILITARY INSTALLATIONS DESIRING TO USE THIS ITEM COULD PROCURE IT LOCALLY SINCE G.S.I. WAS LISTED ON THE FEDERAL SUPPLY SCHEDULE. AGAIN IN AUGUST 1967 AND FEBRUARY 1968 YOUR FIRM SUBMITTED G.S.I. TO THE BOARD AND IN BOTH INSTANCES THE BOARD REFUSED TO CATALOG G.S.I. AS A STANDARD ITEM. MARCH 1968 HEXA-GERM, A HEXACHLOROPHENE BASED DETERGENT, WAS SUBMITTED TO THE BOARD AND THE BOARD ALSO REFUSED TO LIST IT IN THE FEDERAL SUPPLY CATALOG. IT WAS EXPLAINED THAT WHILE NEITHER G.S.I. NOR HEXA GERM WERE CONSIDERED TO BE PROFESSIONALLY UNACCEPTABLE, AND THAT IN FACT MILITARY MEDICAL ACTIVITIES WERE FREE TO PURCHASE THESE ITEMS ON A LOCAL BASIS, THE TOTAL MILITARY REQUIREMENTS FOR THE PRODUCTS HAD NOT BEEN SUFFICIENT NOR WAS IT ANTICIPATED THAT THEY WOULD BE SUFFICIENT TO WARRANT CENTRAL PROCUREMENT CATALOGING AND STOCKING IN THE DEPARTMENT OF DEFENSE (DOD) SUPPLY DISTRIBUTION SYSTEM. IT WAS ALSO POINTED OUT THAT G.S.I. HAD A SHORTER SHELF LIFE AND A GREATER LOSS OF IODINE AT LOWER TEMPERATURES THAN FREQUENTLY INCURRED IN DOD'S SUPPLY STORAGE. IT IS YOUR CONTENTION THAT THERE IS NO VALID REASON FOR THE BOARD'S REFUSAL TO STANDARDIZE YOUR PRODUCTS.

ACCORDING TO DOD DIRECTIVE NUMBER 5154.18 DATED MAY 26, 1965, WHICH ESTABLISHED THE BOARD, THE BOARD IS RESPONSIBLE FOR ITEM TYPE CLASSIFICATION OF ALL NEW MEDICAL MATERIEL ITEMS FOR ENTRY INTO THE DOD SUPPLY SYSTEM. IN THIS ROLE THE BOARD IS REQUIRED TO EVALUATE ALL NEW OR IMPROVED ITEMS OF MEDICAL MATERIEL PROPOSED AS STANDARD ITEMS FOR ENTRY INTO THE DOD SUPPLY SYSTEM AND MUST OBTAIN APPROVAL OF THE MILITARY DEPARTMENTS FOR THE ITEM TYPE CLASSIFICATION OF SUCH ITEMS. EACH TIME YOUR FIRM REQUESTED THAT G.S.I. OR HEXA-GERM BE LISTED AS A STANDARD ITEM YOUR REQUEST WAS FORWARDED TO THE THREE MEDICAL SERVICES AND HAD ANY ONE OF THE THREE SERVICES APPROVED EITHER ITEM IT WOULD HAVE BEEN LISTED AS A STANDARD ITEM. HOWEVER, NONE OF THE MEDICAL SERVICES APPROVED EITHER ITEM FOR LISTING ON ANY OF YOUR REFERRALS. IT WAS EXPLAINED THAT THE PURPOSE OF "STANDARDIZATION" , OR TYPE CLASSIFICATION FOR STOCK LISTING, IS TO MAKE AVAILABLE TO THE MILITARY MEDICAL SERVICES THROUGHOUT THE WORLD COMMERCIALLY AVAILABLE MEDICAL ITEMS WHICH, IN THE PROFESSIONAL JUDGMENT OF THE MEDICAL SERVICES, BEST MEET THE MEDICAL NEEDS OF THE SERVICES. WHEN AN ITEM IS STOCK-LISTED IT WILL BE CENTRALLY PROCURED, STORED IN DEPOTS, AND ISSUED WORLD WIDE. THE CRITERIA FOR LISTING AS A STANDARD ITEM ARE: (1) THE ITEM MUST BE ONE WHICH WILL BE WIDELY USED, (2) DO THE PARTICULAR JOB CALLED FOR AND, (3) STAND UP UNDER THE VARIED CONDITIONS OF STORAGE TO BE ANTICIPATED IN A WORLD-WIDE OPERATION.

CONCERNING THE FIRST CRITERIA, THE CONTRACTING OFFICER STATES THAT IT IS IMPOSSIBLE TO STOCK ALL ITEMS COMMERCIALLY AVAILABLE, ALTHOUGH THE MEDICAL SERVICES WILL NOT FORCE A DOCTOR TO USE A PARTICULAR PRODUCT. YOU TAKE ISSUE WITH THE BOARD'S FINDING THAT CENTRAL PROCUREMENT OF G.S.I. AND HEXA -GERM IS NOT INDICATED BY LOCAL PROCUREMENT RECORDS. IT IS YOUR VIEW THAT IF THERE IS A NEED FOR CENTRAL PROCUREMENT OF BETADINE (THE TRADE NAME FOR THE POVIDONE-IODINE BASED PRODUCT OFFERED BY PURDUE-FREDERICK) AND PHISO- HEX, A HEXACHLOROPHINE BASED DETERGENT, LISTED IN THE FEDERAL SUPPLY CATALOG AS A STANDARD ITEM, PRODUCTS HAVING THE SAME FUNCTION AS G.S.I. AND HEXA-GERM, THEN THERE IS A NEED FOR CENTRAL PROCUREMENT OF THE LATTER. WE MUST AGREE WITH THE PROCURING ACTIVITY'S VIEW THAT THIS IS FALLACIOUS REASONING, SINCE WE ARE ADVISED THAT THERE ARE MANY SURGICAL DETERGENTS AVAILABLE ON THE COMMERCIAL MARKET THAT HAVE THE SAME FUNCTION AS BETADINE AND PHISO-HEX, AND MAINTENANCE OF A STOCK OF ALL, OR MORE THAN A FEW IN GREATEST ACTUAL DEMAND, WOULD MOST CERTAINLY RESULT IN A PROLIFERATION OF STOCKS WITH PROBABLE SUBSTANTIAL LOSSES FROM LONG-TERM STORAGE OF THE LESS-USED ITEMS. THE FREE OPPORTUNITY ALLOWED ANY DOCTOR NOT DESIRING TO USE A PRODUCT TO PROCURE THE PRODUCT OF HIS CHOICE THROUGH LOCAL PROCUREMENT APPEARS TO BE THE ONLY PRACTICABLE ALTERNATIVE.

CONCERNING THE SECOND CRITERIA FOR LISTING AS A STANDARD ITEM, THAT THE ITEM DO THE PARTICULAR JOB CALLED FOR, THE CONTRACTING OFFICER STATES THAT EACH TIME YOU APPLIED FOR LISTING OF ONE OF YOUR PRODUCTS AS A STANDARD ITEM YOU WERE ADVISED THAT THE DISAPPROVAL WAS NOT TO BE CONSIDERED A PROFESSIONAL DISAPPROVAL. HOWEVER, THE CONTRACTING OFFICER POINTS OUT THAT THIS WAS NOT AN ADMISSION THAT G.S.I. OR HEXA GERM WOULD DO THE PARTICULAR JOB CALLED FOR, BUT MERELY AN ACKNOWLEDGMENT THAT SINCE NO DEMAND HAD BEEN SHOWN FOR THE ITEM, THUS ELIMINATING IT AS AN ITEM FOR CENTRAL PROCUREMENT, THE NEED FOR EVALUATION OF THE PRODUCT AS TO ITS EFFECTIVENESS WAS NOT NEEDED.

CONCERNING THE THIRD CRITERIA FOR LISTING AS A STANDARD ITEM, THAT THE PRODUCT STAND UP TO THE VARIED CONDITIONS OF STORAGE TO BE ANTICIPATED IN A WORLD-WIDE PROCUREMENT, THE PROCURING ACTIVITY STATES THAT IN ORDER FOR A SURGICAL DETERGENT TO BE EFFECTIVE IT MUST CONTAIN A CERTAIN AMOUNT OF AVAILABLE IODINE OR OTHER BASE TO DO THE ANTISEPTIC JOB AND THAT IT BE STABLE ENOUGH SO THAT IT WILL NOT LOSE ITS IODINE OR OTHER BASE. NEITHER SHOULD THE PRODUCT LOSE EFFECTIVENESS BECAUSE OF THE PRESENCE OF SOAP, ALCOHOL, BLOOD, PUS, OR OTHER MATERIALS NORMALLY FOUND NEAR THE WOUND OR OPERATION SITE. IT IS KNOWN THAT POVIDONE IODINE HAS THESE QUALITIES. THE PURCHASE DESCRIPTION FOR THE FINISHED SURGICAL DETERGENT REQUIRES AN ASSAY RANGE OF 0.6 PERCENT TO 0.9 PERCENT AVAILABLE IODINE, WHICH IS TO COME FROM THE 7.5 PERCENT POVIDONE-IODINE IN THE PRODUCT. YOUR FIRM OFFERED AVAILABLE IODINE OF 0.6 PERCENT TO 1.2 PERCENT FURNISHED FROM A PHOSPHATE ESTER IODINE COMPLEX.

THE STABILITY TEST FOR THE POVIDONE-IODINE IODOPHOR (COMPLEX OF IODINE WITH A CARRIER WHICH MAKES IODINE AN EFFECTIVE GERMICIDAL AGENT WITHOUT INJURY TO THE SKIN BY SLOWLY RELEASING THE IODINE) IS AS FOLLOWS: "AVAILABLE IODINE STABILITY (1.0 PERCENT SOLUTION). THE STABILITY OF A 1.0 PERCENT AQUEOUS SOLUTION OF POVIDONE-IODINE SHALL BE DETERMINED AT 42 DEGREES C. (107.6 DEGREES F.) AND 52 DEGREES (125.6 DEGREES F.), AND THE LOSS OF AVAILABLE IODINE SHALL NOT EXCEED 3 PERCENT AFTER 10 DAYS AT 42 DEGREES C., 6 PERCENT AFTER 10 DAYS AT 52 DEGREES C., 6 PERCENT AFTER 14 DAYS AT 42 DEGREES C., AND 12 PERCENT AFTER 14 DAYS AT 52 DEGREES C.'

WE WERE FURTHER ADVISED THAT IODINE ITSELF AND IN WATER OR ALCOHOLIC SOLUTION WILL VOLATILIZE AT ROOM TEMPERATURE. THE STABILITY TEST FOR THE IODOPHOR IS INCLUDED TO LIMIT THE DEGREE OF VOLATILIZATION OF THE IODINE FROM THE CARRIER. A SOLUTION CONTAINING 1.0 PERCENT AVAILABLE IODINE CONTAINS 1,000 MILLIGRAMS (1 GRAM) OF IODINE IN EACH 100 CC'S OF SOLUTION. THUS A LOSS OF 3 PERCENT, 6 PERCENT OR 12 PERCENT OF IODINE FROM THE IODOPHOR, REPRESENTS A LOSS OF 30, 60, AND 120 MILLIGRAMS, RESPECTIVELY. IN YOUR OFFER, YOU REQUESTED A DEVIATION FROM THESE REQUIREMENTS FOR YOUR IODINE COMPLEX IODOPHOR AND REQUESTED THAT THE COMPLEX BE TESTED AT ROOM TEMPERATURE ONLY (25 DEGREES C. - 77 DEGREES F.), AND THEN ONLY FOR 10 DAYS, WITH THE ALLOWABLE LOSS OF IODINE NOT TO EXCEED 3 PERCENT.

IN EFFECT, YOUR COMPLEX PERMITS A LOSS OF 30 MILLIGRAMS AT ROOM TEMPERATURE AFTER 10 DAYS STORAGE WHEREAS THE POVIDONE-IODINE CAN BE HEATED AT 107.6 DEGREES F. FOR THE SAME LENGTH OF TIME WITH NO GREATER IODINE LOSS. ADDITIONALLY, THE GRAPH SUBMITTED BY YOUR FIRM IN CONNECTION WITH YOUR INITIAL G.S.I. SUBMITTAL TO THE BOARD IN 1965 INDICATES THAT ALTHOUGH STARTING WITH A HIGHER CONCENTRATION OF IODINE (1.10) THAN REQUIRED, THE CONCENTRATION OF AVAILABLE IODINE IN G.S.I. WAS LESS THAN 0.6 PERCENT WITHIN EIGHT MONTHS WHEN STORED AT 80-85 DEGREES F. THE SPECIFICATIONS REQUIRE 0.75 PERCENT AVAILABLE IODINE.

THE INFORMATION INDICATED BY THE GRAPH WOULD APPEAR TO BE IN CONFLICT WITH THE STATEMENT IN YOUR LETTER OF AUGUST 23, 1968, TO SENATOR HARTKE, THAT YOUR FIRM HAS STORAGE SAMPLES WHICH SHOW A STABILITY OF TWO YEARS FOR G.S.I. IT WAS POINTED OUT IN THE SAME LETTER THAT YOUR FIRM ALSO HAD STORAGE SAMPLES WHICH SHOW A STABILITY OF FOUR YEARS FOR HEXA-GERM. HOWEVER, WE HAVE NO KNOWLEDGE OF WHAT STANDARD OF STABILITY WAS APPLIED, NOR WAS MENTION MADE OF THE STORAGE CONDITIONS OF THESE SAMPLES. IT CAN ONLY BE PRESUMED THAT THE STORAGE WAS UNDER IDEAL CONDITIONS, WHEREAS WE ARE ADVISED BY THE PROCURING ACTIVITY THAT WHILE THERE IS AN ATTEMPT TO STORE THE ITEMS IN A COOL PLACE PURSUANT TO LABEL INSTRUCTIONS, THIS CANNOT ALWAYS BE DONE ON A WORLD-WIDE BASIS, ESPECIALLY IN SITES SUCH AS VIETNAM WHERE DUE TO LACK OF PROPER STORAGE FACILITIES THE TIEMS MIGHT HAVE TO WITHSTAND TEMPERATURES IN EXCESS OF 100 DEGREES F. CONSEQUENTLY, IT WOULD APPEAR THAT THERE IS AMPLE JUSTIFICATION FOR REQUIRING A PRODUCT WHICH WILL REMAIN STABLE AT TEMPERATURES WHICH MAY NORMALLY BE EXPECTED TO BE ENCOUNTERED.

THE ADMINISTRATIVE REPORT DOES NOT DISCUSS THE STABILITY OR SHELF LIFE OF HEXA-GERM SINCE IT HAS A HEXACHLOROPHENE BASE, RATHER THAN IODINE, AND WAS NOT OFFERED UNDER THE PRESENT PROCUREMENT. THUS, THE ONLY QUESTION CONCERNING HEXA-GERM WOULD BE WHETHER THE BOARD'S DECISION NOT TO LIST IT AS A STANDARD ITEM WAS ARBITRARY OR CAPRICIOUS. THE PRIMARY REASON GIVEN BY THE BOARD FOR ITS REFUSAL TO LIST HEXA-GERM AS A STANDARD ITEM WAS THAT THE LOCAL PROCUREMENT RECORDS DID NOT SUPPORT CENTRAL PROCUREMENT, OF EITHER G.S.I. OR HEXA GERM, WHICH YOU DISPUTE. HOWEVER, THIS OFFICE HAS HELD THAT IN DISPUTES OF FACT BETWEEN A PROTESTANT AND THE PROCUREMENT AGENCY, WE NECESSARILY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE VERSION AS CORRECT.

CONCERNING G.S.I., WHICH WAS OFFERED IN THE PRESENT PROCUREMENT, THE RECORD STRONGLY INDICATES THAT IT DOES NOT HAVE THE STABILITY OR SHELF LIFE REQUIRED BY THE SPECIFICATIONS. WHERE IT IS SHOWN THAT AN ARTICLE OFFERED BY A BIDDER FAILS TO MEET THE SPECIFICATIONS IN SOME SPECIFIC RESPECT, A DETERMINATION THAT SUCH BID SHOULD BE REJECTED WOULD NOT BE QUESTIONED BY OUR OFFICE UNLESS THE FAILURE TO MEET SPECIFICATIONS RELATES TO A TRIVIAL OR IMMATERIAL REQUIREMENT. IN THE PRESENT CASE, HOWEVER, THE PROCURING ACTIVITY REPORTS THAT THE REQUIREMENTS AS TO STABILITY AND SHELF -LIFE ARE ESSENTIAL IN ORDER TO MEET ITS NEEDS.

WE HAVE HELD THAT WHERE IT APPEARS THAT AN ADMINISTRATIVE AGENCY HAS MADE A BONA FIDE DETERMINATION OF ITS NEED FOR A PRODUCT CONFORMING TO CERTAIN SPECIFICATIONS WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF SUCH AGENCY. SEE 38 COMP. GEN. 71, 75; B-160502, MAY 2, 1967. WHILE OUR OFFICE WILL 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. 30 COMP. GEN. 368; 33 COMP. GEN. 586; B-164160, MAY 28, 1968. MOREOVER, THE COMPETITIVE BIDDING STATUTES ARE NOT VIOLATED BY THE GOVERNMENT MERELY BECAUSE ONLY ONE COMPANY CAN SUPPLY ITS NEEDS. 45 COMP. GEN. 365, 368; 44 COMP. GEN. 27, 31; B-163994, SEPTEMBER 16, 1968. THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED. 36 COMP. GEN. 251, 252; B-163160, MAY 29, 1968. WHILE AN AGENCY SHOULD BE ALERT TO NEW DEVELOPMENTS AND NEW PRODUCTS WHICH WILL PERMIT THE CARRYING OUT OF ITS FUNCTIONS MORE EFFICIENTLY OR ECONOMICALLY, THE PRIMARY OBJECTIVE OF ITS SPECIFICATIONS MUST BE TO MEET ITS ACTUAL NEEDS RATHER THAN TO INCREASE COMPETITION. B-154590, SEPTEMBER 14, 1964.

IN THE PRESENT CASE, THE PROCUREMENT AGENCY DETERMINED THAT THE DEFICIENCIES IN YOUR BID WERE MATERIAL DEVIATIONS FROM THE SPECIFICATIONS WHICH ARE DRAWN TO MEET ITS MINIMUM NEEDS. SINCE WE ARE REQUIRED TO GIVE GREAT WEIGHT TO SUCH TECHNICAL FINDINGS OF THE GOVERNMENT'S NEEDS, AND WE FIND NO REASON TO CONSIDER SUCH FINDINGS UNJUSTIFIED, THERE IS NO LEGAL BASIS ON WHICH WE MAY DISTURB THE AWARD. ACCORDINGLY, YOUR PROTEST IS DENIED.

HOWEVER, WE DO NOT FEEL THAT THE PRESENT SITUATION IS ENTIRELY SATISFACTORY IN VIEW OF THE FACT THE SPECIFICATIONS CALL FOR THE USE OF A PARTICULAR INGREDIENT, POVIDONE-IODINE, CONTAINED IN THE STANDARD ITEM, WHICH IS PATENTED. SINCE THE PROCUREMENT WAS NOT AN "OR EQUAL" PROCUREMENT, ANY COMPETING BIDDER WOULD HAVE TO SUPPLY SUBSTANTIALLY THE SAME ITEM. MOREOVER, IT APPEARS FROM THE RECORD THAT PURDUE FREDERICK IS THE SOLE LICENSEE OF THIS ITEM. WE ARE OF THE OPINION THAT IN THE PRESENT CASE IT WOULD HAVE BEEN EXTREMELY DIFFICULT FOR ANY OTHER BIDDER TO HAVE SUBMITTED A RESPONSIVE BID. THIS IS SUBSTANTIATED BY THE FACT THAT THERE WAS ONLY ONE RESPONSIVE BIDDER ON THE PRESENT PROCUREMENT (PURDUE- FREDERICK) AND THAT BIDDER HAS BEEN THE ONLY SUPPLIER OF THE ITEM FOR THE EIGHT PURCHASES MADE SINCE 1963.

WE ARE THEREFORE SUGGESTING TO THE PROCURING ACTIVITY THAT CONSIDERATION BE GIVEN TO DEVELOPMENT OF A PERFORMANCE TYPE SPECIFICATION FOR THE DETERGENTS, WITH A VIEW TO DEVELOPING GREATER COMPETITION WITHOUT LOWERING THE STANDARDS NECESSARY FOR THE INTERESTS OF THE GOVERNMENT.