B-179744, FEB 13, 1974, 53 COMP GEN 586

B-179744: Feb 13, 1974

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PERFORMANCE CRITERIA IN A BRAND NAME OR EQUAL FORMALLY ADVERTISED PROCUREMENT THE USE OF A NONFUNCTIONAL DESIGN RATHER THAN A PERFORMANCE CRITERIA IS UNDULY RESTRICTIVE AND INCONSISTENT WITH THE PRINCIPLES UNDERLYING 10 U.S.C. 2305 AND PARAGRAPH 1-1206 OF THE ARMED SERVICES PROCUREMENT REGULATION. BIDS - DISCARDING ALL BIDS - COMPELLING REASONS ONLY THE FACT THAT SPECIFICATIONS ARE INADEQUATE. OR OTHERWISE DEFICIENT IS NOT A COMPELLING REASON. SINCE THE CONTRADICTION BETWEEN SALIENT CHARACTERISTICS AND BRAND NAME PRODUCT ALONE IS NOT A COMPELLING REASON FOR CANCELLATION. THERE WAS NO COGENT AND COMPELLING REASON TO JUSTIFY CANCELLATION OF THE INVITATION AND AS THE CANCELLATION WAS PREJUDICIAL TO THE COMPETITIVE SYSTEM AS AN AWARD UNDER THE INITIAL SOLICITATION WOULD HAVE SERVED THE NEEDS OF THE GOVERNMENT.

B-179744, FEB 13, 1974, 53 COMP GEN 586

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - DESIGN V. PERFORMANCE CRITERIA IN A BRAND NAME OR EQUAL FORMALLY ADVERTISED PROCUREMENT THE USE OF A NONFUNCTIONAL DESIGN RATHER THAN A PERFORMANCE CRITERIA IS UNDULY RESTRICTIVE AND INCONSISTENT WITH THE PRINCIPLES UNDERLYING 10 U.S.C. 2305 AND PARAGRAPH 1-1206 OF THE ARMED SERVICES PROCUREMENT REGULATION, THUS PREVENTING AWARD FOR A PRODUCT THAT ADMITTEDLY MEETS GOVERNMENT REQUIREMENTS. BIDS - DISCARDING ALL BIDS - COMPELLING REASONS ONLY THE FACT THAT SPECIFICATIONS ARE INADEQUATE, AMBIGUOUS, OR OTHERWISE DEFICIENT IS NOT A COMPELLING REASON, ABSENT A SHOWING OF PREJUDICE, TO CANCEL AN INVITATION AND, THEREFORE, THE INVITATION FOR RADIOGRAPHIC POLYESTER FILM, CANCELED TO CORRECT SALIENT CHARACTERISTICS, SHOULD BE REINSTATED, SINCE THE CONTRADICTION BETWEEN SALIENT CHARACTERISTICS AND BRAND NAME PRODUCT ALONE IS NOT A COMPELLING REASON FOR CANCELLATION. BIDS - DISCARDING ALL BIDS - REINSTATEMENT WHERE THE READVERTISING OF A PROCUREMENT WOULD CREATE AN AUCTION ATMOSPHERE, BECAUSE ALL PRIOR BIDDERS WOULD PARTICIPATE IN THE RESOLICITATION AND ALL BIDDERS WOULD MOST LIKELY OFFER THE PRODUCTS PREVIOUSLY OFFERED, BUT AT REDUCED PRICES, THERE WAS NO COGENT AND COMPELLING REASON TO JUSTIFY CANCELLATION OF THE INVITATION AND AS THE CANCELLATION WAS PREJUDICIAL TO THE COMPETITIVE SYSTEM AS AN AWARD UNDER THE INITIAL SOLICITATION WOULD HAVE SERVED THE NEEDS OF THE GOVERNMENT, THE ORIGINAL INVITATION FOR BIDS SHOULD BE REINSTATED.

IN THE MATTER OF GAF CORPORATION; MINNESOTA MINING AND MANUFACTURING COMPANY, FEBRUARY 13, 1974:

ON JUNE 22, 1973, THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC) ISSUED INVITATION FOR BIDS (IFB) NO. DSA120-73-B-3736. THE IFB SOLLICITED BIDS ON FIVE SIZES OF RADIOGRAPHIC FILM IN VARYING ESTIMATED QUANTITIES, FOR DELIVERY ON AN F.O.B. DESTINATION BASIS. THE PROCUREMENT CONTEMPLATED A 1 -YEAR REQUIREMENTS TYPE CONTRACT WITH AWARD TO BE MADE ON AN "ALL OR NONE BASIS" FOR ALL FIVE SIZES OF FILM.

THE TECHNICAL REQUIREMENTS APPLICABLE TO THE SOLICITED SUPPLIES WERE DESCRIBED IN DEFENSE MEDICAL PURCHASE DESCRIPTION NO. 1, DATED 14 DECEMBER 1971, ATTACHED TO THE SOLICITATION. UNDER THE HEADING "DESCRIPTION" ON PAGE 1 OF THE PURCHASE DESCRIPTION, THE GOVERNMENT'S REQUIREMENTS WERE STATED, IN PART, AS FOLLOWS:

SHALL BE KODAK'S RP X-OMAT FILM, DUPONT'S CRONEX 4 FILM, GAF'S HR 2000 FILM, 3M'S TYPE R FILM OR EQUAL.

THE SALIENT CHARACTERISTICS OF THE REQUIRED FILM WERE SPECIFIED ON PAGES 1 AND 2 OF THE PURCHASE DESCRIPTION, AND CERTAIN TESTS WERE PRESCRIBED ON PAGES 4 AND 5 FOR DETERMINING COMPLIANCE WITH THE STATED REQUIREMENTS. THE FOLLOWING PORTIONS OF THE PURCHASE DESCRIPTION ARE PERTINENT TO THE PROTESTED CANCELLATION:

MATERIAL. THE FILM SHALL CONSIST OF A TRANSPARENT BLUE-TINTED POLYESTER BASE, COATED WITH EMULSION ON BOTH SIDES. THE MATERIALS SHALL BE SUITABLE IN ALL RESPECTS FOR THE PURPOSE INTENDED. A CLEAR BASE SHALL NOT BE ACCEPTABLE.

THE FILM SHALL CONSIST OF A BLUE-TINTED OPTICALLY-HOMOGENEOUS, TRANSPARENT POLYESTER BASE, UNIFORMLY COATED WITH A RADIOSENSITIVE EMULSION ON BOTH SIDES.

BASE TINT. THE EMULSION SHALL BE REMOVED (FROM) BOTH SIDES OF A SHEET OF FRESH FILM USING CHLORINE BLEACH. THE BASE SHALL THEN BE EXAMINED FOR BLUE TINT. A CLEAR BASE SHALL NOT BE ACCEPTABLE.

THREE OF THE FOUR BRAND NAME MANUFACTURERS RESPONDED TO THE SOLICITATION. THE LOW BID SUBMITTED WAS THAT OF GAF CORPORATION (GAF) AND THE SECOND LOWEST WAS THAT OF MINNESOTA MINING AND MANUFACTURING COMPANY (3M). THE HIGHEST BID WAS THAT OF EASTMAN KODAK COMPANY. ITS BID WAS DETERMINED TO BE NONRESPONSIVE DUE TO CERTAIN EXCEPTIONS TAKEN TO MATERIAL SOLICITATION CLAUSES AND TO SPECIFICATION REQUIREMENTS NOT RELATED TO THOSE QUOTED ABOVE. DUPONT DID NOT SUBMIT A BID UNDER THIS IFB. THEREFORE, IT APPEARED THAT ONLY GAF AND 3M HAD SUBMITTED BIDS RESPONSIVE TO THE SOLICITATION.

HAVING SUBMITTED THE LOW BID, A PREAWARD SURVEY OF GAF WAS INITIATED ON JULY 25, 1973. THE REQUEST FOR SURVEY PUT FORTH DPSC'S BELIEF THAT GAF WAS OFFERING A NEW FILM WHICH HAD NOT PREVIOUSLY BEEN SUPPLIED TO THE GOVERNMENT AND A SPECIAL CHECK WAS REQUESTED TO ASSURE THAT GAF WAS FAMILIAR WITH THE SPECIFICATION REQUIREMENTS.

AS A RESULT OF THE SURVEY, IT WAS DISCOVERED THAT GAF'S HR 2000 FILM, SPECIFICALLY LISTED AS A BRAND NAME PRODUCT IN THE PURCHASE DESCRIPTION, AND OFFERED BY GAF IN RESPONSE TO THE SOLICITATION, FAILED TO COMPLY WITH THE ABOVE-QUOTED PURCHASE DESCRIPTION REQUIREMENTS RELATING TO BLUE-TINTED BASE, IN THAT THE OFFERED FILM UTILIZED A CLEAR BASE WHICH DID NOT MEET THE "BASE TINT" TEST REQUIREMENT OF THE PURCHASE DESCRIPTION. ON THIS BASIS, THE SURVEY REPORT FOUND GAF UNSATISFACTORY AS TO TECHNICAL CAPABILITY, PRODUCTION CAPABILITY AND ABILITY TO MEET THE REQUIRED SCHEDULE. ACCORDINGLY, THE REPORT RECOMMENDED THAT NO AWARD BE MADE TO GAF. IN FORWARDING THE PRE-AWARD SURVEY REPORT TO THE PURCHASING OFFICE, THE QUALITY ASSURANCE BRANCH OF DPSC ALSO RECOMMENDED THAT GAF NOT BE CONSIDERED AN ACCEPTABLE SOURCE FOR THE SOLICITED SUPPLIES.

ON AUGUST 21, 1973, THE CONTRACTING OFFICER REQUESTED THE DIVISION OF TECHNICAL OPERATIONS TO DETERMINE WHETHER THE PURCHASE DESCRIPTION REQUIREMENT FOR FILM CONSISTING OF A BLUE-TINTED BASE (TO THE EXCLUSION OF A CLEAR BASE) REFLECTED THE GOVERNMENT'S MINIMUM ESSENTIAL NEEDS, OR WHETHER FILM OF THE TYPE REPRESENTED BY GAF'S HR 2000, CONSISTING OF A CLEAR BASE BUT COATED WITH A BLUE-TINTED EMULSION, SATISFACTORILY MET THE GOVERNMENT'S REQUIREMENTS. THE PURPOSE OF THIS INQUIRY WAS NOT TO DETERMINE THE POSSIBLITY OF ACCEPTING GAF'S HR 2000 FILM AS OFFERED, BUT TO DETERMINE WHETHER THE AWARD SHOULD BE MADE TO 3M OR WITHHELD ENTIRELY, WITH ALL BIDS TO BE REJECTED AND THE SOLICITATION CANCELED. IF IT WAS DETERMINED THAT ONLY THE BLUE-TINTED BASE FILM, AS REQUIRED BY THE PURCHASE DESCRIPTION, SATISFIED THE GOVERNMENT'S NEEDS, DPSC INTENDED TO MAKE AWARD TO 3M. OTHERWISE, CONSIDERATION WAS TO BE GIVEN TO POSSIBLE CANCELLATION OF THE SOLICITATION.

AFTER A REVIEW OF THE PURCHASE DESCRIPTION BUT BEFORE A REPLY WAS RECEIVED FROM THE TECHNICAL SERVICES BRANCH, THE CONTRACTING OFFICER DECIDED THAT GAF'S FILM DID NOT MEET THE REQUIREMENTS FOR FILM CONSISTING OF A TRANSPARENT BLUE-TINTED BASE, COATED WITH A RADIO SENSITIVE EMULSION ON BOTH SIDES, BECAUSE GAF'S FILM WAS CONSTRUCTED OF A CLEAR BASE COATED WITH A BLUE-TINTED EMULSION. THE CONTRACTING OFFICER'S CONCLUSION WAS REINFORCED BY THE EMPHASIS PLACED UPON THE SALIENT CHARACTERISTICS IN THE IFB AND THE BLUE-TINT TEST REQUIREMENT. THEREFORE, THE CONTRACTING OFFICER DETERMINED THAT FROM A TECHNICAL AND LEGAL VIEWPOINT GAF'S OFFER TO FURNISH ITS HR 2000 FILM WOULD NOT CONFORM TO THE SPECIFICATION AND COULD NOT BE CONSIDERED FOR AWARD.

HOWEVER, ON SEPTEMBER 6, 1973, THE TECHNICAL SERVICES BRANCH NOTIFIED THE PURCHASING OFFICE THAT A DETERMINATION HAD BEEN MADE THAT FILM CONSISTING OF A CLEAR BASE COATED WITH A BLUE-TINT EMULSION WOULD MEET THE NEEDS OF THE GOVERNMENT EQUALLY AS WELL AS FILM WITH A BLUE-TINTED BASE. GIVEN THIS NEW INFORMATION, THE REQUIREMENTS AS SET FORTH IN THE PURCHASE DESCRIPTION WERE CONSIDERED TO BE UNDULY RESTRICTIVE. A WRITTEN STATEMENT TO THIS EFFECT WAS ISSUED ON OCTOBER 1, 1973, BY THE DEFENSE MEDICAL MATERIEL BOARD.

MEANWHILE, ON SEPTEMBER 7, 1973, THE CONTRACTING OFFICER EXECUTED A DETERMINATION AND FINDINGS STATING THAT THE SPECIFICATIONS APPLICABLE TO THE PENDING PROCUREMENT DID NOT ADEQUATELY DESCRIBE THE GOVERNMENT'S REQUIREMENTS, AND BASED THEREON, IT WAS DETERMINED THAT THE SOLICITATION SHOULD BE CANCELED. GAF WAS NOTIFIED OF THE CANCELLATION AND WAS INFORMED THAT, FOLLOWING REVISION OF THE SPECIFICATION, IT WOULD BE RESOLICITED. EACH OF THE OTHER COMPANIES SUBMITTING A BID WAS ISSUED A SIMILAR LETTER ON THE SAME DATE.

FOLLOWING CANCELLATION OF THE SOLICITATION, THE PURCHASE DESCRIPTION WAS REVISED AND REDESIGNATED DEFENSE MEDICAL PURCHASE DESCRIPTION NO. 2, DATED OCTOBER 3, 1973. AS REVISED, THE PURCHASE DESCRIPTION IDENTIFIES THE BRAND NAME FILM PRODUCTS PREVIOUSLY SPECIFIED, INCLUDING GAF'S HR 2000 FILM. HOWEVER, THE SALIENT CHARACTERISTICS OF THE FILM HAD BEEN MODIFIED TO INDICATE THAT THE FILM SHALL CONSIST OF A TRANSPARENT BLUE-TINTED POLYESTER BASE OR A CLEAR COLORLESS POLYESTER BASE WITH A BLUE-TINTED SURFACE COAT, UNIFORMLY COATED ON BOTH SIDES WITH A RADIOGRAPHIC EMULSION. THIS REVISED PURCHASE DESCRIPTION WOULD BE UTILIZED IN RESOLICITING THE CANCELED PROCUREMENT AND IN FUTURE PROCUREMENTS OF THE RADIOGRAPHIC FILM DESCRIBED ABOVE.

GAF, HOWEVER, PUTS FORTH THE FOLLOWING ARGUMENTS IN RESPONSE TO THE ACTIONS TAKEN BY DPSC:

(A) THE PURCHASE DESCRIPTION APPLICABLE TO THE CANCELED SOLICITATION COULD BE INTERPRETED SO AS TO PERMIT GAF TO OFFER ITS HR 2000 FILM; (B) EVEN IF THE PURCHASE DESCRIPTION WAS TO BE CONSIDERED AMBIGUOUS, THE AMBIGUITY COULD AND SHOULD HAVE BEEN WAIVED BECAUSE IT HAD NO EFFECT ON PRICE, QUALITY OR QUANTITY AND PLACED NO ONE AT A COMPETITIVE ADVANTAGE; (C) IF THE FILM OFFERED BY GAF DID, IN FACT, DEVIATE FROM THE STATED REQUIREMENTS THE DEVIATION WAS NOT A MATERIAL ONE AND SHOULD HAVE BEEN WAIVED; AND (D) CANCELLATION OF THE PROCUREMENT WAS IMPROPER BECAUSE IT WAS PREMATURELY ACCOMPLISHED BEFORE THE GOVERNMENT HAD DETERMINED WHETHER THERE WAS ANY MATERIAL DIFFERENCE BETWEEN FILM WITH A BLUE-TINT BASE WITH A CLEAR EMULSION AND A CLEAR BASE FILM COATED WITH A BLUE-TINTED EMULSION.

GAF POINTS OUT THAT IT ACCOMPLISHES THE REQUIRED FUNCTIONAL RESULTS THROUGH DIFFERENT DESIGN APPROACHES WHICH DO NOT AFFECT EITHER THE CAPABILITY OR THE ADAPTABILITY OF ITS FILM. OUR REVIEW OF THE SALIENT CHARACTERISTICS AS SET FORTH IN THE IFB FAILS TO DISCLOSE ANY DESIGN CRITERIA WHICH CONTAIN ANY FUNCTIONAL SIGNIFICANCE IN THIS PROCUREMENT. THEREFORE, AFTER REVIEWING AND CONSIDERING THE APPLICABLE REGULATIONS AND AUTHORITIES, WE CONCLUDE THAT THE USE OF DESIGN CRITERIA WHICH SERVE NO FUNCTIONAL PURPOSE IN A SITUATION SUCH AS THIS IN BRAND NAME OR EQUAL FORMALLY ADVERTISED PROCUREMENTS IS INCONSISTENT WITH THE PRINCIPLES UNDERLYING 10 U.S.C. 2305 AND ITS IMPLEMENTATION AT ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206, PRESCRIBING THE PROCEDURES TO BE FOLLOWED IN BRAND NAME OR EQUAL PROCUREMENTS.

IT APPEARS FROM THE RECORD THAT THE SPECIFIC DESIGN FEATURES OF THE SALIENT CHARACTERISTICS WERE NOT NECESSARY TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT. ADDITIONALLY, GAF'S HR 2000 FILM IS NOW CONSIDERED TO BE AN ACCEPTABLE ITEM UNDER THE CANCELED IFB, AND WOULD ALSO BE ACCEPTABLE AS A BRAND NAME PRODUCT SHOULD DPSC RESOLICIT FOR THE TYPE OF FILM. THEREFORE, OUR OFFICE IS NOW FACED WITH THE QUESTION OF EITHER TO UPHOLD THE CANCELLATION, AS THE DEFENSE SUPPLY AGENCY (DSA) ARGUES, OR TO RECOMMEND REINSTATEMENT OF THE CANCELED IFB AND HAVE AWARD MADE TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER THEREUNDER, AS URGED BY GAF.

DSA CONTENDS THAT CANCELLATION IS THE ONLY MEANS OF REMEDYING ANY PREJUDICIAL EFFECT THE INCLUSION OF GAF'S PART NUMBER AS A BRAND NAME MAY HAVE HAD UPON GAF AND THE COMPETITIVE BIDDING SYSTEM. TO SUPPORT THIS POSITION, ASSISTANT COUNSEL FOR DSA CITES OUR DECISION B-149824, OCTOBER 12, 1962, WHICH ASSERTS THE PROPOSITION THAT WHEN A SOLICITATION SPECIFIES A BRAND NAME OR EQUAL ITEM WHICH DOES NOT MEET THE SALIENT CHARACTERISTICS SET FORTH, THERE IS AN AMBIGUITY CREATED BY THE TWO DIVERGENT SPECIFICATIONS WHICH DOES NOT PERMIT FULL AND FREE COMPETITION ON AN EQUAL BASIS.

GAF, ON THE OTHER HAND, CONTENDS THAT B-149824, SUPRA, IS INAPPLICABLE TO THE PRESENT SITUATION. IT IS OUR OPINION THAT THE LATTER CONTENTION IS CORRECT. IN B-149824, SUPRA, THE AMBIGUITY RESULTED FROM A DIFFERENCE OF OPINION BETWEEN THE CONTRACTING OFFICER AND THE QUARTERMASTER GENERAL AS TO THE USE OF SALIENT CHARACTERISTICS AND A BRAND NAME OR EQUAL STIPULATION TO DESCRIBE THE ARTICLE TO BE PROCURED. THE BRAND NAME PRODUCT LISTED DID NOT HAVE THE SAME FEATURES AS THE PRODUCT OFFERED BY THE COMPANY THAT RECEIVED THE AWARD. FURTHER, IF THE LESSER PRODUCT WAS WHAT WAS ACTUALLY DESIRED, THE BRAND NAME COMPANY WOULD HAVE OFFERED ANOTHER OF ITS PRODUCTS INSTEAD OF THE MODEL LISTED AS A BRAND NAME. THEREFORE, THE AMBIGUITY RESULTED FROM THE DIFFERENCE OF OPINION AS TO WHAT CONSTITUTED AN ACCEPTABLE "OR EQUAL" PRODUCT. GIVEN THESE SPECIFIC CIRCUMSTANCES, THE AMBIGUITY WAS FOUND TO HAVE BEEN PREJUDICIAL IN THAT THE ADVERTISEMENT DID NOT PERMIT FULL AND FREE COMPETITION ON AN EQUAL BASIS. IN THE INSTANT PROCUREMENT, HOWEVER, THERE DOES NOT APPEAR TO HAVE BEEN SUCH A PREJUDICIAL AMBIGUITY. THE PRODUCT OFFERED BY GAF MET ALL OF THE ESSENTIAL PERFORMANCE CHARACTERISTICS AND REQUIREMENTS. MOREOVER, THE PRODUCT OFFERED WAS ONE OF THE BRAND NAME ITEMS CALLED OUT IN THE SOLICITATION. THE ONLY SHORTCOMING OF THE HR 2000 FILM WAS THAT IT FAILED TO MEET THE BLUE-TINTED BASE REQUIREMENT. THIS REQUIREMENT, HOWEVER, WAS A DESIGN REQUIREMENT WHICH, AS WE PREVIOUSLY HAVE STATED, WAS NEITHER ESSENTIAL TO MEET THE GOVERNMENT'S ACTUAL NEEDS, NOR WAS IT PROPER TO USE SUCH A DESIGN CRITERIA.

THEREFORE, IN ORDER TO SANCTION THE CANCELLATION OF THE IFB AND THE RESOLICITATION AS RECOMMENDED BY DSA, IT MUST BE ESTABLISHED THAT THE IMPROPER SALIENT CHARACTERISTICS HAD A PREJUDICIAL EFFECT ON THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM.

THE AUTHORITY TO CANCEL AN INVITATION AFTER BIDS ARE OPENED IS CONTAINED IN ASPR 2-404.1 AS FOLLOWS:

(A) THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM DICTATES THAT AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIVE BID, UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION***.

(B) WHEN IT IS DETERMINED PRIOR TO AWARD BUT AFTER OPENING THAT THE REQUIREMENTS OF 1-1203 (RELATING TO THE AVAILABILITY AND IDENTIFICATION OF SPECIFICATIONS) HAVE NOT BEEN MET, THE INVITATION FOR BIDS SHALL BE CANCELED. INVITATIONS FOR BIDS MAY BE CANCELED AFTER OPENING BUT PRIOR TO AWARD WHEN SUCH ACTION IS CONSISTENT WITH (A) ABOVE AND THE CONTRACTING OFFICER DETERMINES IN WRITING THAT -

(I) INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION

IN THIS CASE, ASPR 2-404.1(B)(1) WAS CITED AS AUTHORITY FOR THE CANCELLATION ACTION.

WHILE WE RECOGNIZE THAT THE CONTRACTING OFFICER IS AFFORDED BROAD AUTHORITY TO REJECT ALL BIDS AND READVERTISE AND ORDINARILY WE WILL NOT QUESTION SUCH ACTION (B-178134, MAY 29, 1973, AND CASES CITED THEREIN), WE BELIEVE THE CANCELLATION OF THE IFB IN THIS INSTANCE WAS NOT BASED ON A "COMPELLING REASON." AS STATED IN THE MASSMAN CONSTRUCTION CO. V. UNITED STATES, 102 CT. CL. 699, 719 (1945): TO HAVE A SET OF BIDS DISCARDED AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITOR'S PRICES IS A SERIOUS MATTER, AND IT SHOULD NOT BE PERMITTED EXCEPT FOR COGENT REASONS.

THE MERE UTILIZATION IN AN IFB OF INADEQUATE, AMBIGUOUS OR OTHERWISE DEFICIENT SPECIFICATIONS IS NOT, ABSENT A SHOWING OF PREJUDICE, A "COMPELLING REASON" TO CANCEL AN IFB AND READVERTISE. THE REJECTION OF ALL BIDS AFTER THEY HAVE BEEN OPENED TENDS TO DISCOURAGE COMPETITION BECAUSE IT RESULTS IN MAKING ALL BIDS PUBLIC WITHOUT AWARD, WHICH IS CONTRARY TO THE INTERESTS OF THE LOW BIDDER, AND BECAUSE REJECTION OF ALL BIDS MEANS THAT BIDDERS HAVE EXTENDED MANPOWER AND MONEY IN PREPARATION OF THEIR BIDS WITHOUT THE POSSIBILITY OF ACCEPTANCE. 52 COMP. GEN. 285 (1972). MOREOVER, AS A GENERAL PROPOSITION, IT IS OUR VIEW THAT CANCELLATION AFTER BIDS ARE OPENED IS INAPPROPRIATE WHEN AN AWARD UNDER A SOLICITATION WOULD SERVE THE ACTUAL NEEDS OF THE GOVERNMENT. 49 COMP. GEN. 211 (1969); 48 ID. 731 (1969).

THE RESPONSIVENESS OF GAF'S BID ON ITS HR 2000 FILM DEPENDS ON WHETHER THE FILM AS OFFERED CONFORMS TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION. GAF'S HR 2000 FILM WAS LISTED AS ONE OF THE FOUR BRAND NAME PRODUCTS SPECIFICALLY ACCEPTABLE UNDER THE IFB. MOREOVER, AS HAS BEEN STATED ABOVE, DPSC HAS DETERMINED THAT GAF'S HR 2000 FILM DOES INDEED CONFORM TO THE ESSENTIAL REQUIREMENTS OF TH IFB. THERE IS, HOWEVER, A DISCREPANCY BETWEEN A BRAND NAME PRODUCT LISTED AND ONE OF THE SALIENT CHARACTERISTICS. BY DEFINITION, SALIENT CHARACTERISTICS ARE DESCRIPTIVE OF CERTAIN FEATURES OF THE BRAND NAMED PRODUCTS PARTICULARLY REQUIRED BY THE GOVERNMENT TO MEET ITS FUNCTIONAL NEEDS. THE RECORD BEFORE US DOES NOT SUPPORT THE ESSENTIALITY OF THE BLUE-TINT REQUIREMENT INSOFAR AS FILM FUNCTION IS CONCERNED. INDEED, DSA ADMITS THAT THIS REQUIREMENT IS NONFUNCTIONAL AND GAF'S HR 2000 FILM, WHICH HAS A BLUE-TINTED EMULSION, MEETS ITS NEEDS.

THERE IS AN OBVIOUS CONFLICT BETWEEN THE DESIGNATION OF GAF'S HR 2000 FILM AND THE SALIENT CHARACTERISTIC CALLING FOR A BLUE-TINTED BASE. THINK IT WAS REASONABLE FOR GAF, ON THE BASIS OF THE NAME BRAND DESIGNATION, TO CONCLUDE THAT THE PROCURING ACTIVITY HAD DETERMINED THAT ITS DESIGNATED PRODUCT WAS ACCEPTABLE DESPITE THE SALIENT CHARACTERISTIC. ORDINARILY, THIS TYPE OF AMBIGUITY IN THE SPECIFICATIONS WOULD REQUIRE REJECTION OF ALL BIDS AND READVERTISEMENT OF THE PROCUREMENT. HOWEVER, WE DO NOT FIND THAT KIND OF ACTION TO BE CALLED FOR IN THIS INSTANCE.

IT IS OUR OPINION THAT THERE WAS NO REASON TO BELIEVE THAT FIRMS OTHER THAN THE LISTED BRAND NAME MANUFACTURERS WOULD HAVE BID ON A RESOLICITATION OR THAT THE BRAND NAME BIDDERS WOULD HAVE OFFERED ANY DIFFERENT FILM IF THE ERRONEOUS SALIENT CHARACTERISTICS WERE CHANGED TO INCLUDE THE GAF PRODUCT. IN THIS REGARD, WE HAVE OBTAINED INFORMAL ADVICE FROM DSA THAT NO COMPANIES, OTHER THAN THE FOUR BRAND NAME FIRMS LISTED, WERE EITHER SOLICITED OR EXPECTED TO SUBMIT BIDS. FURTHER, IF THE PROCUREMENT WERE RESOLICITED, NO PRODUCTS OTHER THAN THOSE OFFERED IN RESPONSE TO THE ORIGINAL IFB COULD BE EXPECTED TO BE OFFERED. THUS, THE NET EFFECT OF A NEW SOLICITATION WOULD BE TO CREATE AN AUCTION ATMOSPHERE - A SITUATION WHERE THE NEW BIDS WOULD CONSTITUTE RESPONSES TO THE PRIOR EXPOSED BID PRICES RATHER THAN TO ANY SIGNIFICANT CHANGE IN THE SALIENT CHARACTERISTICS. 52 COMP. GEN. 285 SUPRA. WE THEREFORE FEEL THAT THE INCONSISTENCY IN THE SPECIFICATIONS WAS NOT, ON THE RECORD, A COGENT AND COMPELLING REASON TO CANCEL THE SOLICITATION.

IN THE CIRCUMSTANCES, WE CONCLUDE THAT NO "COGENT AND COMPELLING REASON" EXISTED TO JUSTIFY CANCELLATION OF THE INVITATION. THEREFORE, IT IS OUR RECOMMENDATION THAT THE ORIGINAL IFB BE REINSTATED, THE DESIGN CRITERIA FOR A BLUE-TINTED BASE AS OPPOSED TO A BLUE-TINTED EMULSION BE WAIVED, AND AWARD MADE TO THE RESULTING LOW RESPONSIVE, RESPONSIBLE BIDDER.

AS THIS DECISION CONTAINS A RECOMMENDATION FOR CORRECTIVE ACTION TO BE TAKEN, IT IS BEING TRANSMITTED BY LETTERS OF TODAY TO THE CONGRESSIONAL COMMITTEES NAMED IN SECTION 232 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, PUBLIC LAW 91-510, 31 U.S.C. 1172.