B-167224, JUL. 15, 1969

B-167224: Jul 15, 1969

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BID PROTEST - RESTRICTIVE SPECIFICATIONS DECISION TO ADMINISTRATOR OF VETERANS AFFAIRS DENYING PROTEST OF SYSTEMS ENGINEERING AGAINST AWARD TO HARDCO SCIENTIFIC COMPANY FOR FURNISHING A WATER SYSTEM FOR RABBIT RACKS ON BASIS THAT ALLEGATIONS OF INADEQUATE PREPARATION TIME FOR QUOTATIONS AND THAT GRATUITIES AND EXHORBITANT PROFIT MAY BE INVOLVED ARE UNSUPPORTED. WITH RESPECT TO SPECIFICATIONS SINCE SPECIFIC DESIGN FEATURES ARE UNIQUE TO THE BRAND-NAME ITEM. JOHNSON: REFERENCE IS MADE TO THE LETTER OF JUNE 24. THE PROCUREMENT WAS NEGOTIATED PURSUANT TO THE SMALL PURCHASE AUTHORITY IN 41 U.S.C. 252 (C) (3) AND FEDERAL PROCUREMENT REGULATIONS (FPR) 1-3.602 (A). OFFERORS WERE REQUESTED TO FURNISH QUOTATIONS TO THE ISSUING OFFICE ON OR BEFORE THE CLOSE OF BUSINESS ON MARCH 31.

B-167224, JUL. 15, 1969

BID PROTEST - RESTRICTIVE SPECIFICATIONS DECISION TO ADMINISTRATOR OF VETERANS AFFAIRS DENYING PROTEST OF SYSTEMS ENGINEERING AGAINST AWARD TO HARDCO SCIENTIFIC COMPANY FOR FURNISHING A WATER SYSTEM FOR RABBIT RACKS ON BASIS THAT ALLEGATIONS OF INADEQUATE PREPARATION TIME FOR QUOTATIONS AND THAT GRATUITIES AND EXHORBITANT PROFIT MAY BE INVOLVED ARE UNSUPPORTED. HOWEVER, WITH RESPECT TO SPECIFICATIONS SINCE SPECIFIC DESIGN FEATURES ARE UNIQUE TO THE BRAND-NAME ITEM, IN FUTURE PROCUREMENTS MATTER SHOULD BE REVIEWED TO OBTAIN REASONABLE COMPETITION.

TO MR. JOHNSON:

REFERENCE IS MADE TO THE LETTER OF JUNE 24, 1969, WITH ATTACHMENTS, FROM THE DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF MEDICINE AND SURGERY, VETERANS ADMINISTRATION, REFERENCE 134G, FURNISHING OUR OFFICE WITH A REPORT IN REGARD TO THE PROTEST FROM SYSTEMS ENGINEERING (SE), NAPA, CALIFORNIA.

BY LETTER DATED JUNE 3, 1969, ADDRESSED TO THE GENERAL SERVICES ADMINISTRATION, BUT APPARENTLY INTENDED FOR OUR OFFICE, SE PROTESTED AGAINST THE AWARD OF A CONTRACT FOR FURNISHING ONE "AUTOMATIC WATERING SYSTEM 3469-1, FURNISHED AND INSTALLED BY CONTRACTOR IN ACCORDANCE WITH ATTACHED SPECIFICATIONS AND DRAWING" FOR NINE 8-CAGE MOBILE RABBIT RACKS UNDER A REQUEST FOR QUOTATIONS ISSUED ON MARCH 19, 1969, BY THE SUPPLY OFFICER (SO), VETERANS ADMINISTRATION (VA) HOSPITAL, LITTLE ROCK, ARKANSAS. THE PROCUREMENT WAS NEGOTIATED PURSUANT TO THE SMALL PURCHASE AUTHORITY IN 41 U.S.C. 252 (C) (3) AND FEDERAL PROCUREMENT REGULATIONS (FPR) 1-3.602 (A). OFFERORS WERE REQUESTED TO FURNISH QUOTATIONS TO THE ISSUING OFFICE ON OR BEFORE THE CLOSE OF BUSINESS ON MARCH 31, 1969.

THE WATER SYSTEM WAS DESCRIBED AS FOLLOWS: "TO BE FIELDSTONE CORP., HARDCO SCIENTIFIC DIV. SYSTEM 3469-1 OR EQUAL, AND IN ACCORDANCE WITH ATTACHED HARDCO DRAWING 4838-1, DATED 2-17-69 BIDDING ON: ------------ --- ---- MFGR NAME BRAND: --------------------- MODEL: ---------------- -

THE REQUEST FOR QUOTATIONS WAS SENT TO THREE PROSPECTIVE OFFERORS INCLUDING SE AND TWO CONCERNS SUBMITTED QUOTATIONS. SE DID NOT SUBMIT A QUOTATION ON THIS SOLICITATION.

HARDCO SCIENTIFIC COMPANY'S PRICE FOR THE SYSTEM WAS $1,466.20 WITH A DISCOUNT OF 1 PERCENT 10 DAYS. HOELTGE, INCORPORATED, QUOTING ON THE BRAND NAME SPECIFIED, SUBMITTED A QUOTE OF $1,612. THE GOVERNMENT'S ESTIMATE FOR THE ITEM WAS $1,400.

ON APRIL 4, 1969, SE SENT A TELEGRAM TO THE VA HOSPITAL AT LITTLE ROCK REQUESTING THAT NO AWARD BE MADE UNTIL AFTER THE PROCURING ACTIVITY RECEIVED SE'S SPECIAL DELIVERY LETTER. SE'S LETTER TO THE SUPPLY OFFICER DATED APRIL 4, 1969, STATED THAT THE SPECIFICATIONS EXCLUDED FREE COMPETITION AND THAT THE OPENING DATE OF MARCH 31, 1969, DID NOT ALLOW ADEQUATE TIME FOR POSTAL TRANSIT AND BID PREPARATION. BY LETTER DATED APRIL 8, 1969, THE CONTRACTING OFFICER ADVISED SE AS FOLLOWS: "AS THE JOB DID NOT LEND ITSELF TO FIXED SPECIFICATION BUT RATHER A SYSTEM TO FILL A REQUIRED NEED, WE ISSUED THE QUOTATION REQUEST ON AN OR EQUAL BASIS AND INCLUDED DESCRIPTION OF A SATISFACTORY SYSTEM. AS ALWAYS, IN THIS TYPE OF PURCHASE, WE CONSIDER ALL OFFERS ADEQUATELY MEETING THE NEEDS OF THE GOVERNMENT. WE CERTAINLY REALIZED THAT YOUR SYSTEM WOULD NOT MATCH THE DETAIL DESCRIPTION OF THE HARDER NO. 3469-1 NO MORE THAN THEIR EQUIPMENT WOULD MATCH YOURS. HOWEVER, EITHER SYSTEM MIGHT FULLY MEET THE NEEDS OF THE GOVERNMENT.' THE CONTRACTING OFFICER'S LETTER ALSO ADVISED SE THAT AN AWARD FOR THIS SOLICITATION HAD BEEN MADE ON APRIL 3, 1969.

SE'S LETTER OF JUNE 3, 1969, URGES THAT THE SPECIFICATIONS, PARTICULARLY PARAGRAPH 3.1.7, MADE IT IMPOSSIBLE FOR A COMPETITOR TO SUBMIT AN "OR EQUAL" OFFER. THE LETER OF JUNE 3 URGES THAT THE TIME BETWEEN THE ISSUANCE OF THE SOLICITATION AND THE OPENING OF PROPOSALS WAS NOT ADEQUATE FOR THE PREPARATION AND TRANSIT OF QUOTATIONS. THE LETTER OF JUNE 3 ALSO ADVISES THAT SE SUSPECTS THAT ONLY ONE "BID" WAS RECEIVED AND THAT "GRATUITIES AND EXHORBITANT PROFIT" MAY BE INVOLVED.

VA'S LETTER TO OUR OFFICE OF JUNE 24, 1969, ADVISES THAT "HAD AN CARE CORPORATION, A REPRESENTATIVE OF SYSTEMS ENGINEERING, REQUESTED A TIME EXTENSION PRIOR TO MARCH 31, THE CONTRACTING OFFICER COULD HAVE EXTENDED THE DATE.' VA'S LETTER STATES THAT THERE IS NO INDICATION OF ANY GRATUITIES OR EXHORBITANT PROFIT. VA'S LETTER FURTHER ADVISES THAT THE EQUIPMENT HAS BEEN DELIVERED AND THE ESTIMATED DATE FOR COMPLETION OF THE INSTALLATION IS JUNE 27, 1969.

IN VIEW OF THE UNSUPPORTED NATURE OF SE'S CONTENTIONS REGARDING INADEQUATE PREPARATION TIME FOR QUOTATIONS AND THAT GRATUITIES AND EXHORBITANT PROFIT ARE INVOLVED, WE FIND THAT THESE CONTENTIONS DO NOT CONSTITUTE A BASIS FOR QUESTIONING THE VALIDITY OF THE AWARD MADE.

PARAGRAPH 3.1.7 OF THE SPECIFICATIONS STATES AS FOLLOWS: "DISPENSING VALVES SHALL BE OF ALL STAINLESS STEEL CONSTRUCTION. DISPENSING VALVE HEAD SHALL CONTAIN HEMISPERIAL HEADED PLUNGER SEATED IN A CONICAL STAINLESS STEEL SEAT. ANIMAL ACTIVATED PLUNGER SHALL EXTEND 1/8" FROM VALVE BODY AND VALVE SHALL SEAL BY WATER PRESSURE ALONE WITHOUT ASSISTANCE OF SPRINGS, DIAPHRAGMS, ETC. DISPENSERS HEAD SHALL BE CAPABLE OF BEING DISMANTLED WITHOUT TOOLS FOR INTERNAL CLEANING AND SHALL HAVE SMOOTH CONTOUR DESIGN FREE FROM SHARP EDGES, KNURLING OR PROTRUSIONS THAT WOULD COLLECT CONTAMINATION OR BE HARMFUL TO THE ANIMAL. DISPENSING VALVE SHALL BE FREE FROM ANY ADJUSTMENTS FOR CONTROL OF FLOW PRESSURE, ETC.'IN ADDITION, ALL DISPENSING VALVES MUST HAVE A MINIMUM FREE INTERNAL BORE OF 1/8" TO ELIMINATE RESTRICTIONS THAT MIGHT CAUSE CLOGGING AND WATER STOPPAGE.'DISPENSING VALVES MUST NOT LEAK (WHEN NOT ANIMAL ACTIVATED) WITH MINIMUM TEST PRESSURE OF 0.1 P.S.I. FOR A TEST PERIOD OF 10 DAYS.'A WATER SIPHON MUST BE INSTALLED IN THE 1/2" COPPER INCOMING PIPE TO THE PRESSURE TANK (ITEM 2.2.1) TO PREVENT BACK FLOW INTO HOSPITAL SYSTEM IN CASE OF WATER CUTOFF BELOW LEVEL OF PRESSURE TANK.'

FPR 1-3.602 (A) PROVIDES THAT SMALL PURCHASES SHALL BE MADE BY NEGOTIATION, EXCEPT UNDER SPECIAL CIRCUMSTANCES WHERE IT IS CLEARLY IN THE BEST INTEREST OF THE GOVERNMENT TO ACCOMPLISH SUCH PURCHASES BY MORE FORMAL METHODS.

FPR 1-3.603-1 (A) PROVIDES THAT REASONABLE COMPETITION SHALL BE OBTAINED IN MAKING SMALL PURCHASES. REASONABLE COMPETITION IS DEFINED IN THAT SECTION AS MEANING THAT A SUFFICIENT NUMBER OF QUOTATIONS ARE OBTAINED FROM QUALIFIED SOURCES OF SUPPLY TO ASSURE THAT THE PROCUREMENT IS FAIR TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, INCLUDING THE ADMINISTRATIVE COST OF THE PURCHASE.

FPR 1-1.307-8 (C) PROVIDES THAT WITH RESPECT TO SMALL PURCHASES WITHIN OPEN-MARKET LIMITATIONS, THE POLICIES AND PROCEDURES GOVERNING BRAND NAME OR EQUAL DESCRIPTIONS SHALL BE APPLICABLE TO THE EXTENT PRACTICABLE. FPR 1-1.307-4 PROVIDES THAT "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCT WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.

PARAGRAPH 3.1.7 OF THE SPECIFICATIONS SETS FORTH SPECIFIC DESIGN FEATURES. A REVIEW OF THE CONTRACTING OFFICER'S LETTER OF APRIL 8, 1969, AND THE LETTER TO OUR OFFICE FROM YOUR ADMINISTRATION DATED JUNE 24, 1969, INDICATES THAT THE SPECIFIC DESIGN REQUIREMENTS INCLUDED IN THAT PARAGRAPH OF THE SPECIFICATIONS ARE NOT ESSENTIAL TO THE GOVERNMENT'S NEEDS. THE SPECIFIC DESIGN FEATURES APPARENTLY ARE UNIQUE TO THE BRAND NAME ITEM.

IN THE CIRCUMSTANCES, WHILE THE AWARD WILL NOT BE DISTURBED, WE SUGGEST THAT THIS PROCUREMENT BE REVIEWED TO ASCERTAIN MEANS WHEREBY THE "REASONABLE COMPETITION" CONTEMPLATED BY FPR 1-3.603-1 (A) MAY BE OBTAINED IN FUTURE PROCUREMENTS OF THIS ITEM. CF. 47 COMP. GEN. 409.