B-173683, NOV 29, 1971

B-173683, NOV 29, 1971

BID PROTEST - RESTRICTIVE SPECIFICATIONS - NO COMPETITION DECISION DENYING PROTEST AGAINST THE ALLEGED UNDUE RESTRICTION ON COMPETITION DUE TO SPECIFICATIONS ON AN IFB ISSUED BY THE DEFENSE SUPPLY AGENCY FOR 83,520 SURGICAL SCRUB BRUSHES. A DETERMINATION BY THE DEFENSE MEDICAL MATERIEL BOARD CONCERNING ANY ASPECT OF PROFESSIONAL MEDICAL END ITEMS CONSTITUTES A TECHNICAL OR SCIENTIFIC DECISION AS TO THE MINIMUM NEEDS OF THE GOVERNMENT AND GAO MUST CONCLUDE THAT THE IFB SPECIFICATIONS WILL FULFILL THE ACTUAL NEEDS OF THE GOVERNMENT. FURTHER, GAO HAS APPROVED IN THE PAST PROCUREMENTS REQUIRING COMPONENTS OF A SYSTEM TO BE COMPATIBLE, NOTWITHSTANDING THE DETERMINATION TO ELIMINATE THE ACCEPTABILITY OF A BRUSH WITH A U-SHAPED BACK IS INCONSISTENT WITH THE FACT THAT DISPENSERS CAPABLE OF DISPENSING THAT BRUSH WERE IN USE AT SEVERAL MILITARY INSTALLATIONS. FINALLY, THE FACT THAT AT LEAST TWO MANUFACTURERS ARE EXPECTED TO SUBMIT BIDS ON THE INSTANT PROCUREMENT SERVES TO MITIGATE PROTESTANT'S ARGUMENT CONCERNING NO COMPETITION.

TO OWENS BRUSH COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 1, 1971, WITH ENCLOSURES, AND PRIOR CORRESPONDENCE, PROTESTING THAT INVITATION FOR BIDS (IFB) NO. DSA 120-71-B-2395, ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE PERSONNEL SUPPORT CENTER (DPSC), PHILADELPHIA, PENNSYLVANIA, IS UNDULY RESTRICTIVE.

THE IFB, ISSUED ON APRIL 13, 1971, SOLICITED BIDS FOR 83,520 SURGICAL SCRUB BRUSHES, FEDERAL STOCK NO. 7920-772.5935, IN ACCORDANCE WITH AN ATTACHED MANDATORY MILITARY SPECIFICATION DATED MARCH 1, 1971. DUE TO COMPLAINTS BY OWENS THAT THE SPECIFICATIONS WERE RESTRICTIVE, DPSC REQUESTED AND RECEIVED BRUSH SAMPLES FROM THREE MANUFACTURERS, INCLUDING OWENS. A TECHNICAL EVALUATION OF THE SAMPLES AND A REVIEW OF THE SPECIFICATIONS BY DPSC RESULTED IN THE ISSUANCE OF MODIFICATION 0001 TO THE IFB ON JULY 14, 1971, WHICH EFFECTED, AMONG OTHERS, THE FOLLOWING REVISIONS TO THE SPECIFICATIONS:

"3.2 *** AT THE END OF THE PARAGRAPH, ADD 'THE BRUSH SHALL BE SUITABLE FOR DISPENSING FROM THE DISPENSER REFERENCED IN 6.1.'

"3.2.1 BLOCK. IN THE THIRD SENTENCE, DELETE 'A BACK AREA OF 4 5/16 INCHES 1/16 INCH BY 1 1/16 INCHES OR - 1/16 INCH,' AND SUBSTITUTE 'A BACK AREA OF 4 3/8 INCHES BY 1 3/4 INCHES, MAXIMUM, 3 5/8 INCHES BY 1 7/16 INCHES, MINIMUM.' AFTER THE THIRD SENTENCE, ADD 'A U-SHAPED BACK SHALL NOT BE ACCEPTABLE.'

"6.1 INTENDED USE. FOLLOWING THE FIRST SENTENCE, ADD 'THE BRUSH SHALL ALSO BE SUITABLE FOR USE IN FSN: 7920-121-7712, DISPENSER, BRUSH, SCRUB, WALL MOUNTED.'"

OWENS CONTENDS THAT THE ABOVE-QUOTED SPECIFICATION REVISIONS REPRESENT AN UNDUE RESTRICTION ON COMPETITION. MORE SPECIFICALLY, OWENS BASES ITS PROTEST UPON THE FACT THAT "IT IS OUR UNDERSTANDING THAT THERE IS ONLY ONE BRUSH MANUFACTURER THAT CAN MEET THE SPECIFICATIONS, AS AMENDED, WITH EXISTING MOLDING CAVITIES." CONTINUING IN THIS VEIN, OWENS STATES:

"1. THESE QUOTATIONS WOULD HAVE TO INCLUDE AMORTIZATION OF THE MOLDS, AND THIS SHOULD RESULT IN NON-COMPETITIVE PRICES.

"2. IN ACCORDANCE WITH CLAUSE H10.81 TIME OF DELIVERY OF THE SOLICITATION, DELIVERIES WOULD NEED TO COMMENCE WITHIN 60 DAYS AFTER THE AWARD WAS GIVEN, AND THIS WOULD NOT ALLOW SUFFICIENT TIME TO OBTAIN NEW CAVITIES."

ALSO, OWENS POINTS OUT THAT THE REQUIREMENT THAT THE BRUSHES FIT THE VERTICAL SCRUB BRUSH DISPENSER AND THE STATED UNACCEPTABILITY OF THE U SHAPED BACK OPERATE TO ELIMINATE FROM COMPETITION UNDER THE IFB FIRMS SUCH AS OWENS WHICH MANUFACTURE BRUSHES WITH U-SHAPED BACKS. IN THIS REGARD, OWENS BELIEVES THAT THE DISPENSERS ARE NOT IN SUCH WIDESPREAD USE AS TO JUSTIFY THE QUANTITY OF BRUSHES BEING SOLICITED UNDER THE IFB.

FOR THE REASONS HEREINAFTER STATED, WE MUST DENY THE PROTEST, SINCE WE FIND THAT THE SPECIFICATIONS REPRESENT A VALID AND REASONABLE RESTRICTION ON COMPETITION UNDER THE CIRCUMSTANCES OF THIS PROCUREMENT.

DPSC REPORTS TO OUR OFFICE THAT THE REVISIONS TO THE COMPULSORY SPECIFICATIONS WERE NECESSITATED BY A DEFENSE MEDICAL MATERIEL BOARD (DMMB) DETERMINATION ON APRIL 5, 1971, WHICH DELETED THE PREVIOUSLY ACCEPTABLE U-SHAPED BACK FEATURE FROM THE ESSENTIAL CHARACTERISTICS OF THE STANDARDIZED BRUSH. THE DMMB CONSTITUTES THE INSTRUMENTALITY WITHIN THE DEPARTMENT OF DEFENSE (DOD) RESPONSIBLE FOR MAKING SUCH DETERMINATION. SEE DOD DIRECTIVE 5154.18, MAY 26, 1965. THE DMMB MADE THE DETERMINATION TO REFLECT SEVERAL COMPLAINTS RECEIVED FROM USER INSTALLATIONS THAT BRUSHES WITH THE U-SHAPED BACK WERE DIFFICULT TO DISPENSE WHEN STACKED IN THE PRESCRIBED DISPENSER, WHICH HAD BEEN CLASSIFIED STANDARD BY DMMB IN 1968. OWENS APPEARS TO CONCEDE THIS POINT. WITH RESPECT TO YOUR ALLEGATION THAT THE STANDARDIZATION OF THE DISPENSER IN 1968 WAS ERRONEOUS, WE ARE ADVISED THAT, PRIOR TO STANDARDIZATION, THE DMMB HAD FOR CONSIDERATION THE ONLY TWO KNOWN BRUSH DISPENSERS WHICH THE MILITARY MEDICAL SERVICES BELIEVED TO BE IN EXISTENCE.

A DETERMINATION BY THE DMMB CONCERNING ANY ASPECT OF PROFESSIONAL MEDICAL END ITEMS CONSTITUTES A TECHNICAL OR SCIENTIFIC DECISION AS TO THE MINIMUM NEEDS OF THE GOVERNMENT. SEE 50 COMP. GEN. 209, 212 (1970). IN VIEW THEREOF, OUR OFFICE HAS NO ALTERNATIVE BUT TO CONCLUDE THAT THE IFB SPECIFICATIONS WILL FULFILL THE ACTUAL NEEDS OF THE GOVERNMENT INSOFAR AS THE NECESSITY FOR THE EXCLUSION OF THE BRUSHES WITH THE U-SHAPED BACK FOR USE WITH THE CURRENTLY STANDARDIZED DISPENSER. OUR OFFICE WOULD NEVER REQUIRE A CONTRACTING AGENCY TO PROCURE ANY ITEM WITHOUT INTELLIGENT REFERENCE TO ITS ACTUAL NEEDS. MOREOVER, WE HAVE APPROVED PROCUREMENTS WHERE, AS HERE, A CONTRACTING AGENCY RESTRICTS COMPETITION BY REQUIRING COMPONENTS OF A SYSTEM TO BE COMPATIBLE. SEE 47 COMP. GEN. 701, 703-704 (1968). WE TAKE THIS VIEW EVEN THOUGH IT IS POSSIBLE THAT THE ORIGINAL STANDARDIZATION OF THE DISPENSER MAY HAVE BEEN IN ERROR.

DPSC HAS NO OPTION OTHER THAN TO ADHERE TO THE DETERMINATIONS OF THE DMMB IN EFFECTING THIS PROCUREMENT. SEE 50 COMP. GEN., SUPRA. HOWEVER, DPSC BEARS THE PROCUREMENT RESPONSIBILITY FOR ASSURING THAT MAXIMUM PERMISSIBLE COMPETITION IS OBTAINED. WE NOTE THAT DPSC CONTRACTING OFFICIALS RECOGNIZED THE EXISTENCE OF AT LEAST ONE OTHER DISPENSER IN USE AT MILITARY INSTALLATIONS WHICH CAN EFFECTIVELY ACCOMMODATE AND DISPENSE THE U-SHAPED BACK BRUSH. MOREOVER, THERE APPEAR TO BE OTHER UNIVERSAL-TYPE DISPENSERS AVAILABLE IN THE OPEN MARKET. THEREFORE, IT APPEARS THAT THE DMMB DETERMINATION TO ELIMINATE THE ACCEPTABILITY OF THE BRUSH WITH A U- SHAPED BACK IS INCONSISTENT WITH THE FACT THAT DISPENSERS CAPABLE OF DISPENSING THAT BRUSH WERE IN USE AT MILITARY INSTALLATIONS.

IN THIS REGARD, THE DMMB PRESENTLY IS IN THE PROCESS OF ELIMINATING THE STANDARDIZED DISPENSER BY THE STOCKLISTING OF A BRUSH WITH A U SHAPED BACK AND A DISPENSER WHICH WILL ACCOMMODATE IT. IN CONJUNCTION WITH DPSC, THE DMMB HAS FOR CONSIDERATION THE EXHAUSTION OF CURRENT SUPPLIES OF THE DISPENSER FOLLOWED BY A STANDARDIZATION OF A NEW SURGICAL BRUSH DISPENSER CAPABLE OF DISPENSING ALL TYPES OF SURGICAL BRUSHES CURRENTLY AVAILABLE ON THE MARKET. HOWEVER, DPSC HAS RECENTLY REAFFIRMED ITS CURRENT REQUIREMENTS FOR THE FULL QUANTITY OF BRUSHES SOLICITED UNDER THE IFB SINCE IT IS NOT KNOWN HOW LONG THE STANDARDIZATION, STOCKLISTING AND COORDINATION ACTION OF DPSC AND THE DMMB WILL TAKE. WE EXPECT THAT UPON COMPLETION OF THE COORDINATING ACTIVITY, PROMPT ACTION WILL BE TAKEN TO PERMIT THE PROCUREMENT OF BRUSHES WITH U-SHAPED BACKS IN THE FUTURE.

FURTHER, WE HAVE BEEN ADVISED THAT AT LEAST TWO MANUFACTURERS ARE EXPECTED TO SUBMIT BIDS ON BRUSHES FOR THE IMMEDIATE PROCUREMENT WHICH DPSC TECHNICAL PERSONNEL CONSIDER TO BE COMPATIBLE WITH THE STANDARDIZED DISPENSER. IN VIEW OF THE ABOVE, WITH RESPECT TO YOUR COMPLAINT AS TO THE IMPROPRIETY OF THE DELIVERY SCHEDULE, WE CONCUR WITH THE CONTRACTING OFFICER'S DISPOSITION AND EXPLANATION FURNISHED TO YOU PREVIOUSLY.