B-170631, OCT. 28, 1970

B-170631: Oct 28, 1970

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SUCH FEATURES ARE PRESUMED TO BE MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT AND WHERE THE SALIENT CHARACTERISTICS REQUIRED AND THE BRANDS NAMED DO NOT HAVE SUCH FEATURES. AN AMBIGUITY IS CREATED WHICH MAY HAVE MISLED BIDDERS AND AN AWARD UNDER SUCH CONDITIONS IS IMPROPER. JOHNSON: REFERENCE IS MADE TO THE INITIAL AND SUPPLEMENTARY REPORTS DATED SEPTEMBER 10 AND 25. WHICH WERE FURNISHED OUR OFFICE BY THE DIRECTOR. AWARD WAS EVENTUALLY MADE TO S&S CARTING CO. WHICH WAS NOT SELF CONTAINED. STATES: " *** I HAVE BEEN NOTIFIED BY THE CONTRACTING OFFICER THAT NEITHER ANCHOR CORPORATION NOR HERCULES GALION PRODUCTS. MANUFACTURE COMPACTION UNITS THAT ARE SELF-CONTAINED. TOO BELIEVE THAT THE CONFLICT IN THE SPECIFICATIONS COULD WELL MISLEAD BIDDERS AS TO WHAT WAS REQUIRED.

B-170631, OCT. 28, 1970

BID PROTEST - AMBIGUOUS SPECIFICATIONS REFERENCE TO PROTEST BY SANITARY HAULAGE CORPORATION AGAINST INVITATION FOR BIDS FOR A SELF-CONTAINED COMPACTION UNIT ISSUED BY VA HOSPITAL, BROOKLYN, NY, AND AWARD TO S&S CARTING CO., INC. WHERE AN IFB, IN ADDITION TO BRAND NAME OR EQUAL REQUIREMENTS, SETS FORTH PARTICULAR DESIGN FEATURES, SUCH FEATURES ARE PRESUMED TO BE MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT AND WHERE THE SALIENT CHARACTERISTICS REQUIRED AND THE BRANDS NAMED DO NOT HAVE SUCH FEATURES, AN AMBIGUITY IS CREATED WHICH MAY HAVE MISLED BIDDERS AND AN AWARD UNDER SUCH CONDITIONS IS IMPROPER; THEREFORE, THE AWARD SHOULD BE CANCELLED.

TO MR. JOHNSON:

REFERENCE IS MADE TO THE INITIAL AND SUPPLEMENTARY REPORTS DATED SEPTEMBER 10 AND 25, 1970, RESPECTIVELY, WHICH WERE FURNISHED OUR OFFICE BY THE DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF MEDICINE AND SURGERY, IN RESPONSE TO THE PROTEST OF SANITARY HAULAGE CORP. AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. 71-5, ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, BROOKLYN, NEW YORK.

AS ORIGINALLY ISSUED, THE IFB REQUIRED A "SELF-CONTAINED" COMPACTION UNIT OF THE TYPE MANUFACTURED BY S. VINCEN BOWLES, INC., OR EQUAL. AMENDMENT 1, WITHOUT CHANGING THE REQUIREMENT FOR A SELF-CONTAINED UNIT, CHANGED THE SPECIFICATIONS TO READ:

"THE UNIT SHALL BE AS MANUFACTURED BY S. VINCEN BOWLES, INC. ANCHOR CORP.; HERCULES GALION PDTS., INC. OR EQUAL."

AWARD WAS EVENTUALLY MADE TO S&S CARTING CO., INC., WHICH OFFERED TO SUPPLY A COMPACTION UNIT APPARENTLY EQUAL TO THOSE MANUFACTURED BY ANCHOR CORP, OR HERCULES GALION PDTS., INC., BUT WHICH WAS NOT SELF CONTAINED.

THE DIRECTOR IN HIS REPORT OF SEPTEMBER 25, 1970, STATES:

" *** I HAVE BEEN NOTIFIED BY THE CONTRACTING OFFICER THAT NEITHER ANCHOR CORPORATION NOR HERCULES GALION PRODUCTS, INC., MANUFACTURE COMPACTION UNITS THAT ARE SELF-CONTAINED; THE SOLICITATION REQUIRED THAT THE COMPACTION UNIT 'SHALL BE SELF-CONTAINED.'"

ON THE BASIS OF THE FOREGOING, THE DIRECTOR CONCLUDED THAT AN AMBIGUITY EXISTED BECAUSE OF THE DIFFERENCE BETWEEN A SALIENT CHARACTERISTIC OF THE EQUIPMENT REQUIRED AND THAT OF THE BRAND NAMES ADDED BY AMENDMENT 1. TOO BELIEVE THAT THE CONFLICT IN THE SPECIFICATIONS COULD WELL MISLEAD BIDDERS AS TO WHAT WAS REQUIRED. IN SUCH A SITUATION, IT CANNOT BE SAID THAT THE IFB ALLOWED FOR THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS AND, WITHOUT SUCH BASIS, AWARD IS IMPROPER. SEE 43 COMP. GEN. 544 (1964).

MOREOVER, IT CANNOT BE MAINTAINED, BY WAY OF REMEDY, THAT THE REQUIREMENT FOR A SELF-CONTAINED UNIT IS IMMATERIAL AND, THEREFORE, WAIVABLE. WHERE AN IFB, IN ADDITION TO A BRAND NAME OR EQUAL REQUIREMENT, SETS FORTH PARTICULAR DESIGN FEATURES, SUCH FEATURES ARE PRESUMED TO BE MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. SEE 44 COMP. GEN. 302, 305 (1964). AS SUCH, THEY CANNOT BE IGNORED.

IN VIEW OF THE FOREGOING, THE AWARD TO S&S CARTING CO., INC., SHOULD BE CANCELED. SINCE IT APPEARS THAT THE NEEDS OF THE GOVERNMENT MAY BE MET BY EQUIPMENT WITH SPECIFICATIONS OTHER THAN AS ORIGINALLY ADVERTISED, WE SUGGEST THAT ALL STEPS NECESSARY BE TAKEN TO ASSURE THAT THE SPECIFICATIONS IN ANY READVERTISEMENT OF THIS PROCUREMENT BE SUCH AS TO ACCURATELY REFLECT THE ACTUAL NEEDS OF YOUR ADMINISTRATION.