B-167947, DEC. 31, 1969

B-167947, DEC. 31, 1969

SPECIFICATIONS--RESTRICTIVE--PARTICULAR MAKE--SALIENT CHARACTERISTICS IN CONNECTION WITH INVITATION TO PURCHASE TERMINALS, SUPERIOR CONTINENTAL CORPORATION PART NO. F-2F-G, OR EQUAL, WHERE AWARD WAS NOT MADE TO LOW BIDDER ON BASIS OF UNFAVORABLE EVALUATION REPORT, INVITATION WAS LEGALLY DEFECTIVE AND NO AWARD SHOULD HAVE BEEN GIVEN SINCE BRAND NAME OR EQUAL DESIGNATION WAS INCLUDED AS ADMINISTRATIVE CONVENIENCE TO PARTICULARIZE MINIMUM REQUIREMENT FOR TERMINAL AND WAS INCONSISTENT WITH 10 U.S.C. 2305 (B) REQUIRING PURCHASE DESCRIPTIONS TO SET FORTH SALIENT "ESSENTIAL CHARACTERISTICS AND FUNCTIONS" OF ITEM DESIRED IN TERMS PERMITTING BROADEST COMPETITIVE BASE CONSISTENT WITH GOVERNMENT'S NEEDS; CONSEQUENTLY, CONTRACT SHOULD BE CANCELED AND PROCUREMENT READVERTISED WITH SPECIFICATIONS IN ACCORDANCE WITH OPINION EXPRESSED HEREIN.

TO GENERAL HEDLUND:

REFERENCE IS MADE TO LETTERS DATED OCTOBER 15 AND 17, 1969, AND LETTER DATED DECEMBER 8, 1969, WITH ENCLOSURES, FROM YOUR ASSISTANT COUNSEL, FURNISHING A REPORT ON THE PROTEST OF THE CHANNELL COMMERCIAL CORPORATION AGAINST THE MAKING OF ANY AWARD OTHER THAN TO THAT CORPORATION UNDER INVITATION FOR BIDS (IFB) NO. DSA-400-70-B-0047, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER (DGSC), RICHMOND, VIRGINIA. IFB NO. -0047 IS A READVERTISEMENT OF THE PROCUREMENT PREVIOUSLY COVERED BY IFB NO. DSA-400- 69-B-2518, WHICH WAS CANCELED.

THE ORIGINAL INVITATION, IFB NO. -2518, REQUESTED BIDS FOR FURNISHING 3,500 TERMINALS, FSN 5940-930-4891, SUPERIOR CONTINENTAL CORPORATION PART NO. F-3F-G, OR EQUAL. THREE BIDS WERE RECEIVED ON IFB NO. -2518. THE CHANNELL COMMERCIAL CORPORATION DID NOT BID DIRECTLY BUT THE PRUZAN COMPANY, CHANNELL'S DISTRIBUTOR, SUBMITTED A BID AS A DEALER TO SUPPLY CHANNELL COMMERCIAL CORPORATION'S PART NO. PTBD-3. IT IS REPORTED THAT THE BID OF PRUZAN AND DESCRIPTIVE LITERATURE WERE FORWARDED BY THE DGSC, RICHMOND, VIRGINIA, TO THE UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, FOR EVALUATION PURPOSES AND TO DETERMINE WHETHER CHANNELL PART NO. PTBD-3 WAS EQUAL TO SUPERIOR CONTINENTAL CORPORATION'S PART NO. F-3F- G, THE BRAND NAME SPECIFIED IN IFB NO. -2518. THE RECORD INDICATES THAT THE ELECTRONICS COMMAND DETERMINED THAT CHANNELL'S PART NO. PTBD-3 WAS NOT EQUAL TO SUPERIOR'S PART NO. F-3F-G. THE DECISION THAT PART NO. PTBD-3 WAS NOT EQUAL TO PART NO. F-3F-G CONSIDERED THE BASIC DESIGN OF THE TWO ITEMS AND IT WAS NOTED THAT PART NO. PTBD-3, BUILT IN CYLINDRICAL SHAPE WITH THE STAKE BEING AN INTEGRAL PART OF THE UNIT, REQUIRED SPANNER WRENCHES FOR ACCESS AND WAS NOT EASILY AND READILY ADAPTABLE TO ANY BUT PEDESTAL USE. IN ITS REPORT THE ELECTRONICS COMMAND POINTED OUT THAT SUPERIOR'S PART NO. F-3F-G, WHICH HAS A SEPARATE STAKE AND A RECTANGLE HOUSING THAT CAN BE OPENED BY THE REMOVAL OF ONE WASHER-NUT, DOES NOT REQUIRE SPECIAL TOOLS FOR ACCESS, CAN BE READILY ADAPTED TO EITHER STAKE OR POLE MOUNTING AND WHERE STAKE MOUNTED HAS ADDITIONAL STRENGTH FROM THE USE OF THE SEPARATE STAKE. THE ELECTRONICS COMMAND, HOWEVER, ALSO ADVISED THE CENTER AT THAT TIME THAT AN ERROR HAD BEEN MADE IN IFB NO. 2518, IN THAT THE WRONG SUPERIOR PART NUMBER (F-3F-G) WAS USED WITH FSN 5940-930-4891, AND THAT THE CORRECT SUPERIOR PART NUMBER FOR THAT FEDERAL STOCK NUMBER WAS F-2F-G. IT IS REPORTED THAT THE TWO SUPERIOR PARTS NUMBERS DESCRIBE THE SAME BASIC ITEM EXCEPT THAT SUPERIOR PART NO. F-3F-G IS LARGER WITH A GREATER CAPACITY THAN SUPERIOR PART NO. F 2F-G. ACCORDINGLY, IFB NO. -2518 WAS CANCELED AND THE PROCUREMENT READVERTISED ON JULY 21, 1969, UNDER THE SUBJECT INVITATION FOR BIDS NO. DSA-400-70-B-0047, WHICH PROVIDED FOR A BID OPENING DATE OF AUGUST 18, 1969.

TWO BIDS WERE RECEIVED IN RESPONSE TO IFB NO. -0047. THE LOWEST BID IN THE AMOUNT OF $11.16 PER UNIT WAS SUBMITTED BY THE CHANNELL COMMERCIAL CORPORATION AND IT OFFERED TO FURNISH ITS OWN PART NO. PT 320. THE ONLY OTHER BID IN THE AMOUNT OF $15.50 PER UNIT WAS SUBMITTED BY THE SUPERIOR CONTINENTAL CORPORATION AND IT OFFERED TO FURNISH ITS OWN PART NO. F-2F-G. IT IS REPORTED THAT SINCE CHANNELL'S DESCRIPTIVE LITERATURE DESCRIBING ITS PART NO. PT-320 SHOWED IT TO BE OF THE SAME BASIC DESIGN AS ITS PART NO. PTBD-2, WHICH THE PRUZAN COMPANY OFFERED TO FURNISH UNDER CANCELED IFB NO. -2518, THE DGSC BELIEVED THAT THE COMMENTS PREVIOUSLY FURNISHED BY THE UNITED STATES ARMY ELECTRONICS COMMAND IN CONNECTION WITH IFB NO. -2518 WERE ALSO APPLICABLE TO CHANNELL'S BID UNDER IFB NO. 0047. ACCORDINGLY, THE CONTRACTING OFFICER WAS ADVISED BY DGSC THAT CHANNELL'S BID UNDER IFB NO. -0047 WAS NOT ACCEPTABLE SINCE ITS PART NO. PT-320 WAS NOT EQUAL TO SUPERIOR'S PART NO. F-2F-G, THE CITED BRAND NAME. ON SEPTEMBER 9, 1969, CONTRACT NO. DSA-400-70-C-1137 WAS AWARDED TO THE SUPERIOR CONTINENTAL CORPORATION AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER.

IT IS REPORTED THAT ON SEPTEMBER 17, 1969, A REPRESENTATIVE OF CHANNELL TELEPHONED THE GOVERNMENT BUYER TO ASCERTAIN THE STATUS OF ITS BID AND THAT AT THAT TIME THE BUYER ADVISED CHANNELL'S REPRESENTATIVE THAT THE BID HAD BEEN REJECTED BECAUSE THE PART NUMBER BID UPON WAS NOT CONSIDERED TO BE EQUAL TO THE PART NUMBER CITED IN THE INVITATION. THE STATED INEQUALITY RELATED TO THE METHOD OF ACCESS TO THE TERMINAL HOUSING AND THE FACT THAT THE CITED SUPERIOR PART COULD ALSO BE POLE MOUNTED WHEREAS THE CHANNELL PART WAS STRICTLY FOR PEDESTAL USE. CHANNELL'S REPRESENTATIVE WAS ALSO ADVISED AT THAT TIME THAT A CONTRACT FOR FURNISHING THE TERMINALS WAS AWARDED TO SUPERIOR ON SEPTEMBER 9, 1969.

CHANNELL'S ATTORNEY CONTENDS THAT PART NO. PT-320 IS, IN ALL SALIENT CHARACTERISTICS AND ESSENTIAL FUNCTIONS, SUITABLE TO THE NEEDS OF THE GOVERNMENT AS THE BRAND NAME PART SPECIFIED IN IFB NO. -0047. THE ATTORNEY MAINTAINS THAT WHAT THE DGSC IS TRYING TO OBTAIN IS A PRODUCT PURPORTEDLY MEETING A RURAL ELECTRIFICATION ADMINISTRATION (REA) SPECIFICATION WITHOUT EXPRESSLY INCORPORATING THAT SPECIFICATION IN THE INVITATION FOR BIDS. IN HIS BRIEF THE ATTORNEY TAKES EXCEPTION TO THE CONTRACTING OFFICER'S STATEMENT IN PARAGRAPH 4 OF HIS REPORT, TO THE EFFECT THAT THE CHANNELL PART WAS STRICTLY PEDESTAL USE AND NOT A POLE MOUNTED UNIT. IN CONNECTION WITH THE FOREGOING, THE ATTORNEY STATES THAT HAD THE INVITATION FOR BIDS CALLED FOR A POLE-MOUNTED UNIT, CHANNELL WOULD HAVE BID ACCORDINGLY.

IT IS REPORTED THAT WHEN THE PROTEST OF THE CHANNELL COMMERCIAL CORPORATION WAS RECEIVED BY THE PROCURING ACTIVITY, THE SUPERIOR CONTINENTAL CORPORATION, AS THE CURRENT CONTRACTOR, WAS ADVISED THAT A PROTEST HAD BEEN RECEIVED AND REQUESTED TO DELAY PRODUCTION UNDER ITS CONTRACT IF IT COULD DO SO AT NO COST TO THE GOVERNMENT. SUPERIOR AGREED TO A 10-DAY DELAY AT NO COST TO THE GOVERNMENT AND THE RECORD INDICATES THAT IT HAS SINCE EXTENDED THIS TIME TO DECEMBER 31, 1969.

IFB NO. -0047 REQUESTED BIDS FOR FURNISHING 3,500 TERMINALS IN ACCORDANCE WITH THE FOLLOWING NOMENCLATURE:

"FSN 5940-930-4891

TERMINAL

SUPERIOR CONTINENTAL CORP

P/N F-2F-G OR EQUAL

UNIT PACKAGE 1 EACH

BRAND NAME OR EQUAL

BIDDING ON:

MANUFACTURER'S NAME -------------------- BRAND ---------- NO. ----

CAUTION: THE BIDDER/OFFEROR SHOULD ASCERTAIN THE DESCRIPTIVE

MATERIAL THAT MAY BE REQUIRED WITH HIS BID/OFFER IN ACCORDANCE

WITH PARAGRAPH (C) OF THE 'BRAND NAME OR EQUAL' CLAUSE CONTAINED

IN SECTION H OF THE SCHEDULE."

PAGE 18 OF THE INVITATION CONTAINED THE CLAUSE REQUIRED BY PARAGRAPH 1- 1206.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) INFORMING BIDDERS THAT THE "BRAND NAME OR EQUAL" DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE BUT NOT RESTRICTIVE AND WAS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WOULD BE SATISFACTORY, AND THAT BIDS OFFERING "EQUAL PRODUCTS" WOULD BE CONSIDERED IF IT WAS DETERMINED THAT SUCH PRODUCTS WERE EQUAL IN ALL "MATERIAL" RESPECTS TO THE REFERENCED BRAND NAME PRODUCT.

WITH RESPECT TO THE PROCUREMENT OF GOODS ON A "BRAND NAME OR EQUAL" BASIS, ASPR 1-1206.2 (B) PROVIDES IN PART:

"'BRAND NAME OR EQUAL' PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCTS WHICH ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. * * *" IN OUR DECISION REPORTED AT 48 COMP. GEN. 441 (1968), WE HAD OCCASION TO QUOTE ON PAGE 444 FROM B-157857, JANUARY 26, 1966, THE FOLLOWING WELL- ESTABLISHED RULE:

"' * * * BIDDERS OFFERING "EQUAL" PRODUCTS SHOULD NOT HAVE TO GUESS AT THE ESSENTIAL QUALITIES OF THE BRAND NAME ITEM. UNDER THE REGULATIONS THEY ARE ENTITLED TO BE ADVISED IN THE INVITATION OF THE PARTICULAR FEATURES OR CHARACTERISTICS OF THE REFERENCED ITEM WHICH THEY ARE REQUIRED TO MEET. AN INVITATION WHICH FAILS TO LIST ALL THE CHARACTERISTICS DEEMED ESSENTIAL, OR LISTS CHARACTERISTICS WHICH ARE NOT ESSENTIAL, IS DEFECTIVE. 41 COMP. GEN. 242, 250-51; B-154611, AUGUST 28, 1964. SEE, ALSO, 38 COMP. GEN. 345 AND B-157081, OCTOBER 18, 1965.'"

A MATTER PRELIMINARY TO A CONSIDERATION OF THE ISSUE RAISED BY THE PROTEST IS THE ABSENCE OF A LIST OF THE SALIENT CHARACTERISTICS OF THE BRAND NAME PRODUCT REFERENCED IN THE INVITATION. IN THIS CONNECTION, THE CONTRACTING OFFICER STATES IN HIS REPORT THAT THE SUBJECT PROCUREMENT WAS THE FIRST PURCHASE BY DGSC OF THE TERMINAL IN QUESTION ALTHOUGH THE ITEM BECAME A DGSC-MANAGED ITEM AS OF SEPTEMBER 1968; THAT THE ITEM HAD BEEN PREVIOUSLY SERVICE MANAGED BY THE UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, DGSC'S ONLY RECORDED USER, AND THAT THE FUNCTION OF MANAGEMENT AND PROCUREMENT OF THE ITEM WAS TRANSFERRED TO DGSC THROUGH AN AUTOMATED SYSTEM; AND THAT THE INFORMATION CODED IN THE RECORDS OF DGSC AT THE TIME OF THE TRANSFER SHOWED THAT THERE WAS NO SPECIFICATION REFERENCE FOR THE ITEM AND THAT ONLY ONE MANUFACTURER, SUPERIOR, WAS CODED IN AS A SOURCE FOR THE ITEM. THE CONTRACTING OFFICER ALSO REPORTS THAT IN THE COURSE OF THE REVIEW OF THE PROCUREMENT IT WAS ASCERTAINED THAT ALTHOUGH PURCHASE OF THE ITEM IS NEW TO DGSC, IT IS AN ITEM FOR WHICH REA HAS DEVELOPED A SPECIFICATION FOR THE REQUIRED TERMINAL SEVERAL YEARS AGO. THE LATEST REVISION OF THAT SPECIFICATION IS NUMBER PE-51 DATED APRIL 1968.

IT IS REPORTED THAT THE USER OF THE TERMINALS THROUGH THE UNITED STATES ARMY COMMUNICATIONS SUPPLY AGENCY (USACSA), FORT MONMOUTH, NEW JERSEY, HAS REVIEWED ITS REQUIREMENTS FOR THE TERMINAL COVERED BY FSN 5940-930-4891, AND HAS REPORTED THAT IT NEEDS AN ITEM WHICH COMPLIES WITH REA SPECIFICATION PE-51. IN A MEMORANDUM DATED OCTOBER 10, 1969, THE DIRECTOR OF TECHNICAL OPERATIONS, DGSC, HAS INDICATED THE REQUIREMENTS OF THE USER, USACSA, TO BE AS FOLLOWS:

"A. USACSA REQUIRES AN ITEM COMPLYING WITH REA SPEC. NO. PE-51. REA HAS FURNISHED THE INFORMATION THAT THE SUPERIOR ITEM COMPLIES WITH REA SPEC. PE-51 IN HOUSING AND FULLY COMPLIES AS A STAKE MOUNTED INSTALLATION IF THE GALVANIZED STAKE IS USED. USACSA HAS TELEPHONICALLY ADVISED THAT ITS INTEREST IN COMPLIANCE WITH REA SPEC. PE-51 IS IN THE HOUSING AND THAT EITHER A FIBERGLASS OR GALVANIZED STEEL STAKE IS ACCEPTABLE.

"B. FIBERGLASS PEDESTAL FSN 5940-930-4891 AND OTHERS OF THIS TYPE MUST MEET THE FOLLOWING REQUIREMENTS:

"(1) BE UNAFFECTED BY ENVIRONMENT SUCH AS ENCOUNTERED IN TROPICAL, COASTAL AND ARCTIC AREAS: SUPERIOR'S ITEM HAS BEEN TESTED FOR REA APPROVAL AND IS THE ONLY APPROVED HOUSING FOR USE IN BOTH CORROSION AND NON- CORROSION AREAS. REA HAS INFORMALLY ADVISED THAT THE PLASTIC MATERIAL USED IN CHANNELL'S ITEM IS SUBJECT TO CRACKING WHICH REDUCES ITS IMPACT STRENGTH AFTER EXPOSURE TO ULTRA-VIOLET LIGHT.

"(2) BE FLAME RESISTANT. AN IMPORTANT FACTOR IN COMBAT AREAS. SOUTHEAST ASIA, THIS IS ESSENTIAL: BOTH SUPERIOR'S AND CHANNELL'S ITEMS HAVE BEEN REPORTED TO BE SUFFICIENTLY FLAMEPROOF TO MEET REA SPECIFICATION'S FLAME TEST.

"(3) BE ASSEMBLED AND ACCESSED BY A STANDARD MULTIPURPOSE TOOL NOW IN THE TOOL KITS OF CABLE SPLICERS AND INSTALLERS. THIS TOOL IS 7/16 INCH TERMINAL SOCKET WRENCH FSN 5120-930-4911. THIS TOOL IS ALSO USED TO INSTALL TERMINAL BLOCKS FSN 5940-056-4617 AND LOADING COILS FSN 5950 930- 4863 IN PEDESTALS AND READY ACCESS CASES: ACCESS TO THE INTERIOR OF THE SUPERIOR HOUSING IS WITH A STANDARD MULTIPURPOSE TOOL AND ITS ITEM CAN USE COILS AND TERMINAL BLOCKS NOW IN THE SYSTEM. BECAUSE OF ITS CONSTRUCTION, CHANNELL'S ITEM REQUIRES A SPECIAL TOOL TO OPEN IT AND USES SPECIAL TERMINAL BLOCKS NOT NOW STOCKED.

"(4) HAVE WORKING EASE AND CONVENIENCE. THE TERMINAL AND LOADING COIL BRACKET IN THE PEDESTAL SHOULD BE EASILY ADJUSTED OR REMOVED WITH TOOL 5120-930-4911: SUPERIOR'S ITEM HAS A QUICK RELEASE TERMINAL BLOCK SUPPORT WITH A SWIVEL TYPE FEATURE AND KEYHOLE SLOTS FOR MOUNTING TERMINAL BLOCKS. THIS PERMITS FOR MAXIMUM EASE IN TERMINAL BLOCK INSTALLATION, CABLE TERMINATION AND SPLICING. CHANNELL'S ITEMS TERMINAL BLOCK SUPPORT IS STATIONARY AND THE TERMINAL BLOCKS ARE MOUNTED THROUGH HOLES IN THE SUPPORT.

"(5) THESE FIBERGLASS PEDESTALS SHOULD BE CAPABLE OF BOTH POLE AND STAKE MOUNTING USING A MINIMUM OF COMPONENTS: BECAUSE OF THE DESIGN OF THE SUPERIOR ITEM, IT CAN BE POLE MOUNTED WITH THE USE OF SIMPLE BRACKETS, BOLTS AND WASHERS. THE EXACT METHOD OF POLE MOUNTING OF THE CHANNELL ITEM, IF IT CAN BE ACCOMPLISHED, IS NOT KNOWN BUT IT IS APPARENT FROM THE CYLINDRICAL DESIGN THAT SPECIAL BRACKETS WOULD BE NEEDED."

THE CIRCUMSTANCES OF THIS PROCUREMENT EVIDENCE AN INATTENTIVENESS TO THE APPROACH THAT SHOULD BE FOLLOWED IN THE PREPARATION OF PURCHASE DESCRIPTIONS AND LEADS US TO THE CONCLUSION THAT THE INSTANT INVITATION DID NOT PERMIT THE FULL AND FREE COMPETITION REQUIRED BY 10 U.S.C. 2305 (B). THUS, CONSISTENT WITH THE REQUIREMENTS OF 10 U.S.C. 2305 (B), PURCHASE DESCRIPTIONS ARE TO SET FORTH THE "ESSENTIAL CHARACTERISTICS AND FUNCTIONS" OF THE ITEM REQUIRED IN TERMS THAT PERMIT THE BROADEST COMPETITIVE BASE CONSISTENT WITH THE GOVERNMENT'S NEEDS. MOREOVER, FROM THE STANDPOINT OF AFFORDING POTENTIAL BIDDERS AN EQUAL OPPORTUNITY TO COMPETE, IT SHOULD BE NOTED THAT EVEN WHEN A BRAND NAME OR EQUAL PURCHASE DESCRIPTION IS USED, THE REQUIREMENT FOR AN IDENTIFICATION OF ESSENTIAL CHARACTERISTICS REMAINS. ASPR 1-1206.2 (B). HERE, WE FIND THAT IF THE PROCURING ACTIVITY HAD SOUGHT ADDITIONAL INFORMATION FROM THE USING ACTIVITY PRIOR TO THE ISSUANCE OF THE INVITATION, IT WOULD HAVE THEN DISCOVERED THE EXISTENCE OF A GOVERNMENT SPECIFICATION, REA SPECIFICATION PE-51, FOR THE REQUIRED ITEM WHICH COULD HAVE BEEN USED TO SPELL OUT THE GOVERNMENT'S REQUIREMENTS WITH PARTICULARITY. IN OUR VIEW, THE BRAND NAME OR EQUAL DESIGNATION WAS INCLUDED AS A MATTER OF ADMINISTRATIVE CONVENIENCE TO PARTICULARIZE ITS MINIMUM REQUIREMENT FOR A "TERMINAL." SEE ASPR 1-1206.1 (A) WHICH PROVIDES SPECIFIC GUIDANCE IN THIS AREA BY LISTING CHARACTERISTICS WHICH ARE TO BE CONSIDERED IN EXPRESSING THE GOVERNMENT'S MINIMUM REQUIREMENTS.

UPON REVIEW OF THIS PROCUREMENT, WE CONCLUDE THAT THE INVITATION (IFB NO. -0047) WAS LEGALLY DEFECTIVE AND THAT NO AWARD SHOULD HAVE BEEN MADE UNDER THE INVITATION. SEE B-167944, NOVEMBER 24, 1969, 49 COMP. GEN. ----. ACCORDINGLY, CONTRACT NO DSA-400-70-C-1137 WITH THE SUPERIOR CONTINENTAL CORPORATION SHOULD BE CANCELED AND THE PROCUREMENT READVERTISED UNDER AN INVITATION REFERENCING REA SPECIFICATION PE-51 OR CONTAINING A LIST OF THE SALIENT CHARACTERISTICS OF THE PRODUCT WHICH ARE DEEMED ESSENTIAL TO THE MINIMUM NEEDS OF THE GOVERNMENT.