B-157726, JAN. 28, 1966, 45 COMP. GEN. 462

B-157726: Jan 28, 1966

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THE DESIGN CRITERIA IN THE BRAND NAME OR EQUAL PROCUREMENT RESTRICTING COMPETITION IS INCONSISTENT WITH THE PRINCIPLES UNDERLYING 10 U.S.C. 2305 AND ASPR 1-1206 THAT "EQUAL" BIDS SHALL NOT BE REJECTED BECAUSE OF "MINOR DIFFERENCES IN DESIGN. THE INTENDED NONRESTRICTIVE CHARACTER OF THE INVITATION IS CONVERTED INTO A SOLE-SOURCE PROCUREMENT. IF THE DESIGN FEATURES ARE NECESSARY TO THE MINIMUM NEEDS OF THE GOVERNMENT. IT WAS REPORTED THAT BIDS WERE SOLICITED FROM 30 PROSPECTIVE BIDDERS ON A BRAND NAME OR EQUAL PURCHASE DESCRIPTION. ARE INTENDED AND REQUIRED ONLY FOR ITEM NUMBER 1. AN AMENDMENT TO THE INVITATION WAS ISSUED ON DECEMBER 9. BIDDERS ARE CAUTIONED. ARE INTENDED AND REQUIRED ONLY FOR ITEM NUMBER "SYSTEM B" RECORDERS (4 EACH) (BELOW).

B-157726, JAN. 28, 1966, 45 COMP. GEN. 462

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - DESIGN V. PERFORMANCE CRITERIA UNDER AN INVITATION CONTAINING THE BRAND NAME OR EQUAL CLAUSE PRESCRIBED BY PARAGRAPH 1-1206.3 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION, BUT IMPOSING A DESIGN RATHER THAN A PERFORMANCE CRITERIA, A CONTRACT AWARD TO THE SOLE BIDDER, THE BRAND NAME MANUFACTURER, WOULD BE IMPROPER, THE DESIGN CRITERIA IN THE BRAND NAME OR EQUAL PROCUREMENT RESTRICTING COMPETITION IS INCONSISTENT WITH THE PRINCIPLES UNDERLYING 10 U.S.C. 2305 AND ASPR 1-1206 THAT "EQUAL" BIDS SHALL NOT BE REJECTED BECAUSE OF "MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE," AND THE STIPULATION THAT A BIDDER IN ADDITION TO OFFERING AN EQUIVALENT COMMERCIAL PRODUCT MUST DUPLICATE THE DESIGN FEATURES OF THE BRAND NAME GOING BEYOND THE PURPOSE CONTEMPLATED BY THE REGULATION, THE INTENDED NONRESTRICTIVE CHARACTER OF THE INVITATION IS CONVERTED INTO A SOLE-SOURCE PROCUREMENT; HOWEVER, IF THE DESIGN FEATURES ARE NECESSARY TO THE MINIMUM NEEDS OF THE GOVERNMENT, THE PROCUREMENT SHOULD BE NEGOTIATED.

TO NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, ADMINISTRATOR, JANUARY 28, 1966:

BY LETTERS DATED NOVEMBER 17, 1965, AND JANUARY 11, 1966, THE ACTING DIRECTOR OF PROCUREMENT AND THE DIRECTOR OF PROCUREMENT, RESPECTIVELY, FURNISHED REPORTS ON THE PROTEST OF THE CONSOLIDATED ELECTRODYNAMICS CORPORATION (CEC) AGAINST THE AWARD OF ANY CONTRACT UNDER INVITATION FOR BIDS NO. CC-31-6, ISSUED ON AUGUST 27, 1965, BY THE JOHN F. KENNEDY SPACE CENTER FOR 14 HIGH-PERFORMANCE WIDEBAND TAPE RECORDER SYSTEMS. IT WAS REPORTED THAT BIDS WERE SOLICITED FROM 30 PROSPECTIVE BIDDERS ON A BRAND NAME OR EQUAL PURCHASE DESCRIPTION, SUBJECT TO PERFORMANCE SPECIFICATIONS MADE A PART OF THE INVITATION AS A TECHNICAL EXHIBIT. SPECIFICALLY, PAGE 3 OF THE INVITATION CONTAINED THE FOLLOWING SPECIAL NOTICE TO BIDDERS:

THE SPECIFICATIONS IN ATTACHED TECHNICAL EXHIBIT NR. K-EF3-65-12A (MAY 12, 1965) AND APPENDIX 1 THERETO, PRESCRIBES THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT FOR ITEMS NOS. 1 THRU 3 BELOW, OTHER THAN INCLUSION OF SEVERAL SPECIALLY REQUIRED SPECIFICATION CHARACTERISTICS, THE TECHNICAL EXHIBIT REFLECTS THOSE REQUIRED SALIENT PHYSICAL, FUNCTIONAL AND OTHER CHARACTERISTICS OF THE BRAND NAME AND MODEL NUMBER REFERENCED IN THE SCHEDULE OF ITEMS BELOW. (NOTE: THE SYSTEM COMPONENTS DESCRIBED IN PARAGRAPHS 7D, 7E, 9, 10 AND 11 OF THE TECHNICAL EXHIBIT, ARE INTENDED AND REQUIRED ONLY FOR ITEM NUMBER 1,"SYSTEM B" RECORDERS (4 EACH) (BELOW).

ITEMS 1, 2 AND 3 REQUESTED BIDS AS FOLLOWS:

CHART 1. SYSTEM, RECORDER, MAGNETIC TAPE, HIGH PERFORMANCE INSTRUMENTATION 4 EA

(MOUNTED IN GOVERNMENT FURNISHED EQUIPMENT ENCLOSURES) MODEL FR

1400, OR EQUAL, AS MANUFACTURED BY AMPEX CORPORATION, REDWOOD CITY,

CALIFORNIA, AND CONFORMING TO THE REQUIREMENTS FOR "SYSTEM B"

IN TECHNICAL EXHIBIT K-EF3-65-12A (MAY 12, 1965) AND APPENDIX 1

THERETO. EACH "SYSTEM B" SHALL BE PROVIDED WITH THE FOLLOWING:

A. 1 EACH SYSTEM B AS DEFINED IN PARAGRAPH 1B OF THE TECHNICAL

EXHIBIT.

B. 4 EACH STANDARD BAND FM RECORD MODULES AS DEFINED IN

PARAGRAPH 7D OF THE TECHNICAL EXHIBIT.

C. 4 EACH STANDARD BAND FM REPRODUCE MODULES AS DEFINED IN

PARAGRAPH 7D OF THE TECHNICAL EXHIBIT.

D. 1 EACH PULSE CODE MODULATION RECORD MODULE AS DEFINED IN

PARAGRAPH 7E OF THE TECHNICAL EXHIBIT.

E. 1 EACH PULSE CODE MODULATION REPRODUCE MODULE AS DEFINED IN

PARAGRAPH 7E OF THE TECHNICAL EXHIBIT.

F. 1 EACH BULK TAPE DEGAUSSER AS DEFINED IN PARAGRAPH 9 OF THE

TECHNICAL EXHIBIT.

G. 1 EACH VOICE MONITOR AS IN PARAGRAPH 10 OF THE TECHNICAL

EXHIBIT.

H. 1 EACH REMOTE CONTROL UNIT AS DETAILED IN PARAGRAPH 11 OF

THE TECHNICAL EXHIBIT.

BIDDING ON:

MANUFACTURER'S NAME --------------------------------------------

BRAND ------------------------- NO. ---------------------------- 2. SYSTEM, RECORDER MAGNETIC TAPE, HIGH PERFORMANCE INSTRUMENTATION, 6 EA

(MOUNTED IN GOVERNMENT FURNISHED EQUIPMENT ENCLOSURE) MODEL

FR1400/600, OR EQUAL, AS MANUFACTURED BY AMPEX CORPORATION, REDWOOD

CITY, CALIFORNIA, AND CONFORMING TO THE REQUIREMENTS FOR "SYSTEM

B" IN TECHNICAL EXHIBIT NR. K-EF3-65-12A (MAY 12, 1965) AND

APPENDIX 1 THERETO.

BIDDING ON:

MANUFACTURER'S NAME --------------------------------------------

BRAND ------------------------- NO. ---------------------------- 3. SYSTEM, RECORDER, MAGNETIC TAPE, HIGH PERFORMANCE 4 EA

INSTRUMENTATION, (MOUNTED IN GOVERNMENT FURNISHED EQUIPMENT ENCLOSURE)

MODEL FR1400/600, OR EQUAL, AS MANUFACTURED BY AMPEX CORPORATION,

REDWOOD CITY, CALIFORNIA, AND CONFORMING TO THE REQUIREMENTS FOR

"SYSTEM A," IN TECHNICAL EXHIBIT NR. K-EF3-65-12A (MAY 12,

1965) AND APPENDIX 1 THERETO.

BIDDING ON:

MANUFACTURER'S NAME --------------------------------------------

BRAND ------------------------- NO. ----------------------------

SUBSEQUENT TO DISCUSSIONS BETWEEN REPRESENTATIVES OF OUR OFFICE AND YOUR AGENCY CONCERNING THE NOVEMBER 17 REPORT, AN AMENDMENT TO THE INVITATION WAS ISSUED ON DECEMBER 9, 1965, TO DELETE THE ABOVE-QUOTED SPECIAL NOTICE TO BIDDERS AND TO SUBSTITUTE THE FOLLOWING:

THE ATTACHED TECHNICAL EXHIBIT NUMBER K-EF3-65-12A REPRESENTS A DESCRIPTION OF THE MINIMUM SALIENT CHARACTERISTICS REQUIRED TO MEET THE NEEDS OF THE GOVERNMENT. BIDDERS ARE CAUTIONED, HOWEVER, THAT IN ADDITION TO STANDARD FEATURES OF THE BASIC AMPEX FR1400 AND FR1400/600 RECORDERS, THE SALIENT CHARACTERISTICS SET FORTH IN THE TECHNICAL EXHIBIT CONTAIN OPTIONAL/ACCESSORY FEATURES NECESSARY FOR THE BASIC BRAND NAMED PRODUCTS TO FULLY MEET THE MINIMUM NEEDS OF THE GOVERNMENT; AND, THEREFORE, THE MODELS FR1400 AND FR1400/600 PLUS OPTIONAL/ACCESSORY FEATURES CONSTITUTE THE BRAND NAMED ITEMS. (NOTE: THE SYSTEM COMPONENTS DESCRIBED IN PARAGRAPH 7D, 7E, 9, 10 AND 11 OF THE TECHNICAL EXHIBIT, ARE INTENDED AND REQUIRED ONLY FOR ITEM NUMBER "SYSTEM B" RECORDERS (4 EACH) (BELOW).

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

THE BID OPENING DATE WAS FIXED AS DECEMBER 21, 1965. THE ONLY BID RECEIVED WAS THAT FROM THE BRAND NAME MANUFACTURER IN THE TOTAL AMOUNT OF $472,142. IT IS PROPOSED TO AWARD THE CONTRACT TO THE AMPEX CORPORATION UNDER THE INVITATION NOTWITHSTANDING THE PROTEST OF CEC THAT THE REQUIREMENTS OF THE INVITATION CAN ONLY BE SATISFIED BY THE FURNISHING OF THE BRAND NAME EQUIPMENT. THE ESSENCE OF CEC'S PROTEST WAS STATED IN ITS TELEGRAM OF SEPTEMBER 23, 1965, TO OUR OFFICE, I.E., THAT CERTAIN OF THE SPECIFICATIONS IN TECHNICAL EXHIBIT K-EF3-65-12A PRESCRIBED DETAIL DESIGN APPROACHES USED EXCLUSIVELY BY THE BRAND NAME MANUFACTURER TO ACCOMPLISH CERTAIN FUNCTIONAL RESULTS. SEE, FOR EXAMPLE, PARAGRAPHS 3S AND 4Q OF THE TECHNICAL EXHIBIT DEALING WITH TAPE WEAR AND TRANSPORT ASSEMBLY, RESPECTIVELY. CEC POINTS OUT THAT IT ACCOMPLISHES THE SAME FUNCTIONAL RESULTS THROUGH DIFFERENT DESIGN APPROACHES WHICH DO NOT AFFECT EITHER THE CAPABILITY OR THE ADAPTABILITY OF ITS EQUIPMENT. HENCE, WE WILL CONFINE OUR DECISION TO THE QUESTION WHETHER THE IMPOSITION OF DESIGN CRITERIA, AS DISTINGUISHED FROM PERFORMANCE CRITERIA, IN A BRAND NAME OR EQUAL PROCUREMENT CONSTITUTES AN IMPROPER RESTRICTION ON COMPETITION. UPON REVIEW AND CONSIDERATION OF APPLICABLE REGULATIONS AND AUTHORITIES, WE HAVE CONCLUDED THAT THE USE OF AMPEX'S DESIGN CRITERIA IN A BRAND NAME OR EQUAL FORMALLY ADVERTISED PROCUREMENT IS INCONSISTENT WITH THE PRINCIPLES UNDERLYING 10 U.S.C. 2305 AND ITS IMPLEMENTATION AT ASPR 1 1206, PRESCRIBING THE PROCEDURES TO BE FOLLOWED IN BRAND NAME OR EQUAL PROCUREMENTS.

THE PERTINENT PROVISIONS OF ASPR 1-1206 ARE QUOTED BELOW:

1-1206.1 GENERAL.

(A) A PURCHASE DESCRIPTION MAY BE USED IN LIEU OF A SPECIFICATION WHEN AUTHORIZED BY 1-1202 (B) AND, SUBJECT TO THE RESTRICTION ON REPETITIVE USE IN 1-1202 (B) (VII), WHERE NO APPLICABLE SPECIFICATION EXISTS. A PURCHASE DESCRIPTION SHOULD SET FORTH THE ESSENTIAL CHARACTERISTICS AND FUNCTIONS OF THE ITEMS OR MATERIALS REQUIRED. PURCHASE DESCRIPTIONS SHALL NOT BE WRITTEN SO AS TO SPECIFY A PRODUCT, OR A PARTICULAR FEATURE OF A PRODUCT, PECULIAR TO ONE MANUFACTURER AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT MANUFACTURED BY ANOTHER COMPANY, UNLESS IT IS DETERMINED THAT THE PARTICULAR FEATURE IS ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THE PARTICULAR FEATURE WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM. GENERALLY, THE MINIMUM ACCEPTABLE PURCHASE DESCRIPTION IS THE IDENTIFICATION OF A REQUIREMENT BY USE OF BRAND NAME FOLLOWED BY THE WORDS "OR EQUAL.' THIS TECHNIQUE SHOULD BE USED ONLY AS A LAST RESORT WHEN AN ADEQUATE SPECIFICATION OR MORE DETAILED DESCRIPTION CANNOT FEASIBLY BE MADE AVAILABLE IN TIME FOR THE PROCUREMENT UNDER CONSIDERATION. PURCHASE DESCRIPTIONS OF SERVICES TO BE PROCURED SHOULD OUTLINE TO THE GREATEST DEGREE PRACTICABLE THE SPECIFIC SERVICES THE CONTRACTOR IS EXPECTED TO PERFORM.

(B) THE WORDS "OR EQUAL" SHOULD NOT BE ADDED WHEN IT HAS BEEN DETERMINED IN ACCORDANCE WITH (A) ABOVE THAT ONLY A PARTICULAR PRODUCT MEETS THE ESSENTIAL REQUIREMENTS OF THE GOVERNMENT, AS, FOR EXAMPLE, (I) WHERE THE REQUIRED SUPPLIES CAN BE OBTAINED ONLY FROM ONE SOURCE: * * *

1-1206.2 BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS.

(A) PURCHASE DESCRIPTIONS WHICH CONTAIN REFERENCES TO ONE OR MORE BRAND NAME PRODUCTS FOLLOWED BY THE WORDS "OR EQUAL" MAY BE USED ONLY WHEN AUTHORIZED BY 1-1202 (B) AND IN ACCORDANCE WITH 1-1206.3 AND 1 1206.4. THE TERM "BRAND NAME PRODUCT" MEANS A COMMERCIAL PRODUCT DESCRIBED BY BRAND NAME AND MAKE OR MODEL NUMBER OR OTHER APPROPRIATE NOMENCLATURE BY WHICH SUCH PRODUCT IS OFFERED FOR SALE TO THE PUBLIC BY THE PARTICULAR MANUFACTURER, PRODUCER, OR DISTRIBUTOR. WHERE FEASIBLE, ALL KNOWN ACCEPTABLE BRAND NAME PRODUCTS SHOULD BE REFERENCED. WHERE A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IS USED, PROSPECTIVE CONTRACTORS MUST BE GIVEN THE OPPORTUNITY TO OFFER PRODUCTS OTHER THAN THOSE SPECIFICALLY REFERENCED BY BRAND NAME IF SUCH OTHER PRODUCTS WILL MEET THE NEEDS OF THE GOVERNMENT IN ESSENTIALLY THE SAME MANNER AS THOSE REFERENCED.

(B) "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. * * *

1.1206.4 BID EVALUATION AND AWARD--- "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS.

(A) BIDS OFFERING PRODUCTS WHICH DIFFER FROM BRAND NAME PRODUCTS REFERENCED IN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION SHALL BE CONSIDERED FOR AWARD WHERE THE CONTRACTING OFFICER DETERMINES IN ACCORDANCE WITH THE TERMS OF THE CLAUSE IN 1-1206.3 (B) THAT THE OFFERED PRODUCTS ARE EQUAL IN ALL MATERIAL RESPECTS TO THE PRODUCTS REFERENCED. BIDS SHALL NOT BE REJECTED BECAUSE OF MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.

ESSENTIALLY, THE "OR EQUAL" PROVISION IN AN ADVERTISED PURCHASE DESCRIPTION IS FOR THE PURPOSE OF MAXIMIZING AND EQUALIZING COMPETITION WHERE ORDINARILY NONE WOULD EXIST DUE TO THE GOVERNMENT'S NEEDS FOR THE PARTICULAR ESSENTIAL CHARACTERISTICS OF A PRODUCT OF ONE MANUFACTURER. THROUGH THE DEVICE OF "BRAND NAME OR EQUAL," RESPONSIVE BIDS MAY BE SUBMITTED BY THOSE FIRMS WHICH OFFER THEIR COMMERCIAL PRODUCTS WHICH, IN THEIR OPINIONS, ARE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCT REFERENCED. THE REGULATIONS, QUOTED ABOVE, WHEN DEALING WITH THE VARIOUS ASPECTS OF "BRAND NAME OR EQUAL" PROCUREMENTS, SPEAK GENERALLY OF THE ACCEPTABILITY OF "EQUAL" PRODUCTS IF THEY MEET THE NEEDS OF THE GOVERNMENT IN "ESSENTIALLY THE SAME MANNER AS THOSE REFERENCED; " IF DETERMINED "TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME; " AND THAT "EQUAL" BIDS SHALL NOT BE REJECTED BECAUSE OF "MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.' THE FOREGOING STRONGLY SUGGESTS THAT THE OVERRIDING CONSIDERATION IN DETERMINING EQUALITY OR SIMILARITY OF ANOTHER COMMERCIAL PRODUCT TO A NAME BRAND COMMERCIAL PRODUCT IS WHETHER ITS PERFORMANCE CAPABILITIES CAN BE REASONABLY EQUATED TO THE BRAND NAME REFERENCED. IN OTHER WORDS, WHETHER THE EQUAL PRODUCT CAN DO THE SAME JOB IN A LIKE MANNER AND WITH THE DESIRED RESULTS SHOULD BE THE DETERMINATIVE CRITERIA RATHER THAN WHETHER CERTAIN FEATURES OF DESIGN OF THE BRAND NAME ARE ALSO PRESENT IN THE "EQUAL" PRODUCT. WE RECOGNIZE, OF COURSE, THAT THE GOVERNMENT IS NOT REQUIRED TO PURCHASE AN "EQUAL" PRODUCT IF IT BE DETERMINED THAT SUCH PRODUCT WILL NOT MEET THE GOVERNMENT'S ADVERTISED REQUIREMENTS. HOWEVER, WE FEEL THAT A SPECIFICATION--- SUCH AS IS EXEMPLIFIED BY THE TECHNICAL EXHIBIT--- WHICH REQUIRES THE USE OF CERTAIN BRAND NAME DESIGN CHARACTERISTICS IS SO RESTRICTIVE AS TO PREVENT THE COMPETITION REQUIRED UNDER ADVERTISED PROCEDURES. WHILE THE REFERENCE IN THE INVITATION OF THE BRAND NAME OR EQUAL MAY HAVE BEEN INTENDED TO BE DESCRIPTIVE RATHER THAN RESTRICTIVE, WE FEEL THAT THE ACTUAL EFFECT WAS CONTRARY TO THE INTENTION. THIS IS EVIDENCED, IN PART, BY THE FACT THE BRAND NAME MANUFACTURER WAS THE SOLE BIDDER UNDER THE INVITATION. WE HAVE OFTEN HELD THAT UNDER ADVERTISEMENTS FOR "BRAND NAME OR EQUAL" AN ACCEPTABLE PRODUCT NEED ONLY BE SIMILAR AND NOT IDENTICAL TO THE BRAND NAMED. 38 COMP. GEN. 380. IN 38 COMP. GEN. 291, 294, WE STATED:

* * * IT IS RECOGNIZED THAT IN CERTAIN CASES DIFFICULTIES MAY BE EXPERIENCED IN DESCRIBING WHAT IS DESIRED IN INVITATIONS FOR BIDS AND THAT IN SUCH CASES THE USE OF THE NAME OF THE MAKER OF AN ITEM IN AN INVITATION TO BID, FOLLOWED BY THE WORDS "OR EQUAL," HAS BEEN APPROVED, BUT WITH THE UNDERSTANDING THAT IT SHOULD BE LIMITED TO EXCEPTIONAL CASES. WE HAVE CONSTRUED THE TERM "OR EQUAL," WHEN USED IN THIS SENSE, TO MEAN THAT AN ALTERNATE ITEM MUST BE EQUAL TO THE PRODUCT SPECIFIED, INSOFAR AS THE NEEDS OF THE AGENCY ARE CONCERNED, BUT NOT NECESSARILY AN EXACT DUPLICATE THEREOF IN DETAIL OR PERFORMANCE. B-124587, DECEMBER 5, 1955; A-65465, NOVEMBER 9, 1935. HOWEVER, THE NAMING OF A PARTICULAR MAKE OF ARTICLE EVEN WITH QUALIFYING WORDS AS "OR QUAL" SHOULD BE AVOIDED WHEN IT IS REASONABLY POSSIBLE TO DESCRIBE THE NEEDS OF THE GOVERNMENT IN SPECIFICATIONS WITH SUFFICIENT CLARITY TO APPRISE PROSPECTIVE BIDDERS OF WHAT IS REQUIRED. SEE 10 COMP. GEN. 555.

IN LIKE VEIN, IT WAS STATED IN DECISION B-155826 DATED JANUARY 21, 1965, TO THE ADMINISTRATOR OF VETERANS AFFAIRS THAT:

WHILE THE PREPARATION OF SPECIFICATIONS STATING THE MINIMUM NEEDS OF THE GOVERNMENT AND FACTUAL DETERMINATIONS AS TO WHETHER EQUIPMENT OFFERED CONFORMS TO THOSE SPECIFICATIONS IS PRIMARILY WITHIN THE DISCRETION OF THE ADMINISTRATIVE AGENCY CONCERNED, THE PUBLIC ADVERTISING STATUTES HAVE CONSISTENTLY BEEN HELD TO REQUIRE THAT EVERY EFFORT SHOULD BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE NEEDS REASONABLY REQUIRED, NOT THE MAXIMUM DESIRED, AND WITHOUT INCLUDING DETAILS BY REASON OF PERSONAL PREFERENCE OR WHICH ARE PECULIAR TO THE PRODUCT OF A SINGLE FIRM. SEE 32 COMP. GEN. 384 AND 41 ID. 348. GENERAL, THE DRAFTING OF SPECIFICATIONS BY SUBSTANTIALLY ADOPTING A MANUFACTURER'S DESCRIPTION OF THE PARTICULAR FEATURES OF ITS PRODUCT PRESENTS SERIOUS PROBLEMS SINCE IT AMOUNTS IN EFFECT TO A REPRESENTATION THAT EACH OF SUCH DETAILS HAVE BEEN DETERMINED BY RESPONSIBLE AUTHORITY TO BE NECESSARY TO MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT. IF THAT IS IN FACT THE CASE AND SUCH DETAILS MAY BE FOUND ONLY IN THE PRODUCT OF THE ONE MANUFACTURER, THEN CONSIDERATION OF NEGOTIATION OF THE PROCUREMENT IS INDICATED, OTHERWISE THE PURPOSES OF THE COMPETITIVE BIDDING PROCESS ARE LARGELY DEFEATED AND THE SUSPICION OF PARTIALITY CANNOT BE AVOIDED.

THE PURCHASE DESCRIPTIONS HERE INCLUDED A BRAND NAME OR EQUAL STIPULATION AND A REFERENCE TO A TECHNICAL EXHIBIT WHICH COVERED THE SALIENT CHARACTERISTICS OF THE BRAND NAME. THE INVITATION PROVIDED THAT THE BRAND NAME MODELS "PLUS" THE OPTIONAL/ACCESSORY FEATURES LISTED IN THE TECHNICAL EXHIBIT AS SALIENT CHARACTERISTICS CONSTITUTE THE BRAND NAME ITEMS. THIS, IN OUR OPINION, CREATED AN AMBIGUITY INSOFAR AS INTERESTED "OR EQUAL" BIDDERS WERE CONCERNED. NOT ONLY DID THE INVITATION REQUIRE AS TO "EQUAL" BIDS PERFORMANCE EQUALITY BUT ALSO COMPLETE COMPLIANCE WITH DESIGN, ETC., SPECIFICATIONS WHICH WERE, IN PART, MODIFICATIONS OF THE BRAND NAMES REFERENCED. IN OTHER WORDS, AN EQUAL BIDDER TO BE RESPONSIVE WOULD HAVE TO OFFER ITS EQUIVALENT COMMERCIAL PRODUCT WHICH ALSO HAD TO DUPLICATE THE DESIGN FEATURES WHICH WERE ADDITIONAL OPTIONS TO THE BRAND NAMES REFERENCED. WE FEEL THAT THIS TYPE OF BRAND NAME OR EQUAL STIPULATION GOES BEYOND THAT CONTEMPLATED BY THE REGULATIONS. SUCH AN INVITATION WAS NOT CONDUCIVE TO GOOD ADVERTISING PROCEDURES DESIGNED TO PERMIT THE BROADEST FIELD OF COMPETITION OBTAINABLE TO MEET THE GOVERNMENT'S NEEDS AND, IN ALL PROBABILITY, OPERATED TO PRECLUDE THE SUBMISSION OF COMPETITIVE BIDS FOR OTHER COMMERCIAL EQUIPMENT WHICH WOULD HAVE MET THE GOVERNMENT'S NEEDS. WE FEEL THAT THE BRAND NAME OR EQUAL STIPULATION, WHEN CONSIDERED TOGETHER WITH THE ABOVE-QUOTED SPECIAL NOTICE, HAD THE EFFECT OF CONVERTING THE INTENDED NONRESTRICTIVE CHARACTER OF THE INVITATION INTO ONE CALLING FOR A SOLE-SOURCE BID. WE THINK IT REASONABLE TO CONCLUDE FROM THE RECORD THAT NO OTHER MANUFACTURER WOULD REDESIGN ITS COMMERCIAL PRODUCT SO AS TO OFFER A "CHINESE" COPY OF THE AMPEX PRODUCT DESCRIBED IN THE INVITATION. UNDER THE "BRAND NAME OR EQUAL" CONCEPT, THE GOVERNING COMPETITIVE REQUIREMENT IS TO ENCOURAGE THE SUBMISSION OF BIDS OFFERING COMPARABLE, SIMILAR EQUIPMENT WHICH, IN ALL MATERIAL RESPECTS AFFECTING PERFORMANCE, MEET THE NEEDS OF THE GOVERNMENT. CF. 39 COMP. GEN. 101; 43 ID. 761. SEE THE APPEAL OF GREENLEAF MFG. CO., ASBCA NO. 3833. THIS RESULT WAS NOT OBTAINED UNDER THE INVITATION AS ISSUED AND AS AMENDED.

IT APPEARS FROM THE RECORD THAT THE SALIENT CHARACTERISTICS OF THE BRAND NAME EQUIPMENT, INCLUDING DESIGN FEATURES, ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT. IF THAT BE A FACT, WE DIRECT YOUR ATTENTION TO THE ABOVE-QUOTED PORTION OF DECISION B-155826 WHEREIN RESORT TO NEGOTIATION PROCEDURES IS INDICATED.

ACCORDINGLY, WE MUST ADVISE, IN VIEW OF THE RESTRICTIVE CHARACTER OF THE INVITATION PURCHASE DESCRIPTION, THAT NO PROPER AWARD MAY BE MADE TO AMPEX UNDER THE INVITATION. CF. 44 COMP. GEN. 302.

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