Skip to main content

B-156230, AUG. 25, 1965

B-156230 Aug 25, 1965
Jump To:
Skip to Highlights

Highlights

OUR OFFICE CONSIDERED THE PROPRIETY OF A GOVERNMENT AGENCY'S PURCHASING UNDER A RESTRICTIVE BRAND-NAME REQUIREMENT WHERE THE INTENDED ITEM WAS FOR THE ULTIMATE BENEFIT AND ENJOYMENT OF A NON-GOVERNMENTAL USER. WAS ISSUED BY THE UNITED STATES ENGINEER DISTRICT. 1961) RECITES THAT THE GOVERNMENT WILL RELOCATE APPROXIMATELY 80 MILES OF EXISTING RAILROAD FACILITIES IN EXCHANGE FOR THE RAILROAD'S RELINQUISHMENT OF POSSESSION AND CONTROL OVER A CERTAIN EXISTING RIGHT OF-WAY. ONLY FIVE BRANDS OF RAIL ANCHORS WERE SPECIFICALLY MENTIONED AND APPROVED. WHICH WERE NOT AMONG THE FIVE APPROVED BRANDS. BERWICK CONTENDS THAT THESE ANCHORS ARE IN FACT AN EQUAL TO THOSE SPECIFIED. UPON FURTHER REFLECTION WE ARE CONSTRAINED TO AGREE THAT THE USE OF THIS UNORTHODOX PROCEDURE IN CASES OF THIS NATURE.

View Decision

B-156230, AUG. 25, 1965

TO SECRETARY OF THE ARMY:

IN DECISION B-156230, JUNE 10, 1965, OUR OFFICE CONSIDERED THE PROPRIETY OF A GOVERNMENT AGENCY'S PURCHASING UNDER A RESTRICTIVE BRAND-NAME REQUIREMENT WHERE THE INTENDED ITEM WAS FOR THE ULTIMATE BENEFIT AND ENJOYMENT OF A NON-GOVERNMENTAL USER.

WE PREVIOUSLY POINTED OUT THAT INVITATION FOR BIDS NO. CIVENG-45-164 65- 30, WAS ISSUED BY THE UNITED STATES ENGINEER DISTRICT, WALLA WALLA, WASHINGTON, IN IMPLEMENTATION OF A RELOCATION AGREEMENT BETWEEN THE UNITED STATES AND SPOKANE, PORTLAND AND SEATTLE RAILWAY COMPANY. THE AGREEMENT (CONTRACT NO. DA-45-164-CIVENG-61-104, DATED MAY 17, 1961) RECITES THAT THE GOVERNMENT WILL RELOCATE APPROXIMATELY 80 MILES OF EXISTING RAILROAD FACILITIES IN EXCHANGE FOR THE RAILROAD'S RELINQUISHMENT OF POSSESSION AND CONTROL OVER A CERTAIN EXISTING RIGHT OF-WAY. UNDER ARTICLE I, PARAGRAPH E, (PAGE 3), THE PARTIES AGREED THAT DETAILED PLANS AND SPECIFICATIONS WOULD BE APPROVED BY BOTH PARTIES PRIOR TO COMMENCING WORK AND PURCHASING MATERIALS. WHILE THE RAILWAY SUBSEQUENTLY APPROVED USING AMERICAN RAILWAY ENGINEERING ASSOCIATION SPECIFICATIONS FOR OTHER MATERIALS, ONLY FIVE BRANDS OF RAIL ANCHORS WERE SPECIFICALLY MENTIONED AND APPROVED.

ON FEBRUARY 11, 1965, BERWICK FORGE AND FABRICATING CORPORATION SUBMITTED A BID IN RESPONSE TO THE SUBJECT INVITATION OFFERING TO FURNISH M AND S RAIL ANCHORS, WHICH WERE NOT AMONG THE FIVE APPROVED BRANDS. BERWICK CONTENDS THAT THESE ANCHORS ARE IN FACT AN EQUAL TO THOSE SPECIFIED. THE CONTRACTING OFFICER HOWEVER REJECTED THEIR BID BECAUSE OF THE RAILWAY'S REFUSAL TO ACCEPT THESE ANCHORS. FOLLOWING REJECTION, BERWICK APPEALED TO THIS OFFICE CONTENDING INTER ALIA THAT RESTRICTING BIDDING TO BRAND-NAME ITEMS WOULD UNDERMINE THE STATUTES AND REGULATIONS OF FORMAL ADVERTISING AND CIRCUMVENT PUBLIC POLICY AS SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION 1-101 AND 1-102.

UPON FURTHER REFLECTION WE ARE CONSTRAINED TO AGREE THAT THE USE OF THIS UNORTHODOX PROCEDURE IN CASES OF THIS NATURE, WHILE NOT NECESSARILY OBJECTIONABLE FROM A PURELY LEGAL VIEWPOINT, IS NOT GENERALLY IN THE GOVERNMENT'S BEST INTEREST AND SHOULD BE AVOIDED WHENEVER POSSIBLE. WHERE ESTABLISHED GOVERNMENT FORMS AND FACILITIES ARE USED, BIDDERS LOGICALLY ASSUME THAT THE ITEMS ADVERTISED ARE INTENDED FOR ACTUAL GOVERNMENT CONSUMPTION. IN ASSUMING PURCHASING RESPONSIBILITY, THE GOVERNMENT IS MOTIVATED IN PART BY THE BELIEF THAT IT, RATHER THAN THE NON-GOVERNMENTAL PARTY, WILL OBTAIN LOWER PRICES. HOWEVER, THE ISSUANCE OF A RESTRICTIVE SPECIFICATION IS SELF-DEFEATING SINCE LOWER PRICES CAN GENERALLY ONLY BE REALIZED WHERE MAXIMUM COMPETITION IS OBTAINED.

IN THE PRESENT CASE, HOWEVER, SINCE THE EXECUTED AGREEMENT GIVES THE RAILWAY A VOICE IN SPECIFYING WHICH MATERIALS WILL BE USED IN THE RELOCATION AND THE RAILWAY REMAINS ADAMANT IN ITS REFUSAL TO ACCEPT THE M AND S RAIL ANCHOR, WE BELIEVE THAT THE INTERESTS OF THE GOVERNMENT REQUIRE THAT WE SANCTION THE PROPOSED ACTION IN THIS CASE. NOT ONLY WOULD ANY OTHER DECISION TEND TO UNDERMINE THE EXISTING AGREEMENT AND POSSIBLY CAUSE DELAY, BUT MAY PRACTICALLY HAVE THE EFFECT OF FORCING THE PARTIES INTO PROTRACTED LITIGATION AND/OR MORE EXPENSIVE CONDEMNATION PROCEEDINGS.

GAO Contacts

Office of Public Affairs