B-138859, NOV. 17, 1959

B-138859, NOV. 17, 1959

TO THE SECRETARY OF THE AIR FORCE:

WE REFER TO A LETTER OF OCTOBER 6, 1959, SIGNED BY THE ASSISTANT SECRETARY, RESEARCH AND DEVELOPMENT, PROVIDING CERTAIN DATA REQUESTED BY OUR LETTER OF AUGUST 28, 1959, AND ALSO REQUESTING RECONSIDERATION OF OUR DECISION B-138859, AUGUST 18, 1959.

IN OUR DECISION OF AUGUST 18, 1959, WE HELD THAT IN THE PROCUREMENT OF SNOWPLOWS BY THE DEPARTMENT OF THE AIR FORCE THE SPECIFICATIONS COULD NOT BE SO RESTRICTED AS TO EXCLUDE THE DRIVE SYSTEM EMPLOYED BY THE WALTER MOTOR TRUCK COMPANY, ONE OF THE SMALL NUMBER OF REGULAR PRODUCERS OF THAT TYPE OF PRODUCT, IN THE ABSENCE OF A DETERMINATION THAT THE EXCLUDED COMPONENT COULD NOT MEET THE GOVERNMENT'S REQUIREMENTS EQUALLY AS WELL AS THAT ADVERTISED. SINCE NO SUCH DETERMINATION HAS BEEN MADE, WE CONCLUDED THAT THE SPECIFICATIONS WERE NOT DRAWN TO PERMIT FULL AND FREE COMPETITION CONSISTENT WITH THE NEEDS OF THE GOVERNMENT AS REQUIRED BY 10 U.S.C. 2305 (A).

BY LETTER OF AUGUST 27, 1959, OSHKOSH MOTOR TRUCK, INC., ONE OF THE PARTIES IN INTEREST, REQUESTED THAT WE RECONSIDER OUR DECISION ON THE BASIS THAT THE WALTER DRIVE COMPONENT DESIGN COULD NOT, WITHOUT MAJOR ENGINEERING AND DESIGN CHANGES, SATISFACTORILY ACCOMMODATE THE ROTARY SNOWPLOW USED ON THE VEHICLE BY THE AIR FORCE.

OUR LETTER OF AUGUST 28, 1959, TO WALTER REQUESTED THEIR COMMENTS ON THE MATTER RAISED IN THE OSHKOSH LETTER TOGETHER WITH ANY PROPOSED SOLUTION TO THE PROBLEM POSED. BY LETTER OF THE SAME DATE, WE ALSO REQUESTED COMMENTS WITH RESPECT TO THE OSHKOSH LETTER FROM THE DEPARTMENT OF THE AIR FORCE. WE REQUESTED THAT THE ANSWERS BE EXPEDITED BECAUSE OF THE NECESSITY FOR OBTAINING SNOWPLOWS TO BE USED DURING THE WINTER OF 1959-1960. THAT URGENCY WAS DISSIPATED BY THE SUBSEQUENT EMERGENCY PROCUREMENT FROM OSHKOSH OF THE NUMBER OF SNOWPLOWS WHICH COULD BE DELIVERED FOR USE DURING THE COMING WINTER SEASON.

IN THE LETTER OF OCTOBER 6 IT IS STATED THAT IN ORDER TO PERFORM THE EVALUATION NECESSARY TO PERMIT COMMENT ON THE POINTS RAISED IN THE OSHKOSH REQUEST FOR RECONSIDERATION, THE AIR FORCE REQUESTED COMPLETE ENGINEERING DATA FROM WALTER ON ITS PROPOSED EQUIPMENT, BUT THAT ONLY PRELIMINARY DATA WERE RECEIVED. BASED ON SUCH PRELIMINARY DATA IT WAS DETERMINED THAT THE WALTER 54,000 POUND GVW MODEL HSUL VEHICLE PROPOSED THEREIN WILL NOT MEET MINIMUM AIR FORCE REQUIREMENTS. IT IS OUR UNDERSTANDING THAT NO FURTHER DATA HAVE SINCE BEEN FURNISHED TO THE AIR FORCE BY WALTER.

WE ARE NOW IN RECEIPT OF A LETTER OF OCTOBER 23, 1959, FROM WALTER SUBMITTING A STATEMENT FROM THE MANUFACTURER OF THE ROTARY PLOW TO THE EFFECT THAT THE ROTARY SNOWPLOW UNIT CAN BE MOUNTED ON THE WALTER HSUL CHASSIS WITH ONLY MINOR CHANGES IN THE VEHICLE AND WITH CHANGES IN THE ROTARY UNIT WHICH WOULD NOT REQUIRE LEAD TIME BEYOND THAT NEEDED TO OBTAIN MATERIALS AND PRODUCE THE PARTS. IT APPEARS, HOWEVER, THAT THE DATA FURNISHED YOUR DEPARTMENT UP TO NOW ARE NOT ADEQUATE TO PERMIT A DEFINITIVE EVALUATION OF THE PRODUCT PROPOSED TO BE FURNISHED, AND FURTHER THAT THE DATA WHICH HAVE BEEN RECEIVED DO NOT TAKE INTO ACCOUNT REFINEMENTS REQUIRED IN THE VEHICLES BY THE AIR FORCE SUCH AS THE 330 HORSE-POWER MILITARY ENGINE AND THE ALLISON TRANSMISSION.

IN VIEW OF THE CONCLUSIONS REACHED BY YOUR DEPARTMENT CONCERNING THE WALTER VEHICLE ON THE BASIS OF THE DATA WHICH HAVE BEEN MADE AVAILABLE UP TO THIS TIME AND THE LACK OF ANY IMMEDIATE PROSPECT FOR THE RECEIPT OF MORE DEFINITIVE DATA, IT DOES NOT APPEAR THAT THE NORMAL PROCUREMENT SCHEDULE FOR SNOWPLOWS SHOULD BE HELD UP FURTHER TO PERMIT WALTER MORE TIME TO FURNISH ADDITIONAL DATA. IF AND WHEN WALTER SUBMITS DEFINITIVE DATA ESTABLISHING THAT THE PROPOSED VEHICLE OF THEIR MANUFACTURE IS AT LEAST EQUAL, SO FAR AS THE PURPOSES OF THE AIR FORCE ARE CONCERNED, TO THAT NOW BEING PROCURED BY THE AIR FORCE, THE REQUIREMENT OF OUR DECISION OF AUGUST 18, 1959, CAN BE MET BY ENLARGING THE SPECIFICATION TO PERMIT CONSIDERATION OF THE WALTER PRODUCT IN THE NEXT REGULAR PROCUREMENT CYCLE. IN OTHER WORDS, WHILE THE SPECIFICATION SHOULD BE ENLARGED TO PERMIT THE SUBMISSION OF A RESPONSIVE BID BASED ON THE USE OF THE DRIVE SYSTEM EMPLOYED IN WALTER VEHICLES WHEN THAT FIRM HAS SUBMITTED DEFINITIVE DATA ESTABLISHING THAT IT CAN PROVIDE A VEHICLE EQUAL OR SUPERIOR TO THAT CURRENTLY BEING PROCURED, SUCH SPECIFICATION CHANGE SHOULD BE MADE EFFECTIVE FROM THE EARLIEST PRACTICABLE DATE WITHOUT INTERFERING WITH THE NORMAL PROCUREMENT SCHEDULE. SEE 38 COMP. GEN. 610.

IN THE LETTER OF OCTOBER 6, 1959, TWO STATEMENTS IN OUR DECISION OF AUGUST 18, 1959, ARE QUESTIONED. THE FIRST OF THESE IS CONTAINED IN THE LAST SENTENCE OF THE FOLLOWING PARAGRAPH:

"THE DRIVE SYSTEM EMPLOYED BY THE WALTER MOTOR TRUCK COMPANY IS SIGNIFICANTLY DIFFERENT FROM THAT CALLED FOR BY THE SPECIFICATIONS. WHILE IT MAY BE THAT THE WALTER COMPANY COULD, IN FACT, PRODUCE A SNOWPLOW IN COMPLIANCE WITH THE SPECIFICATION, IT APPEARS THAT THE FIRM WOULD BE PUT TO A DISTINCT DISADVANTAGE BY HAVING TO SUPPLY A DRIVE SYSTEM AS PRODUCED BY A COMPETITOR. CERTAINLY IT IS TRUE THAT THE AIR FORCE IS NOT REQUIRED TO PURCHASE SNOWPLOWS UTILIZING A DRIVE SYSTEM WHICH HAS BEEN DETERMINED NOT TO MEET THE AGENCY'S REQUIREMENTS. THE AIR FORCE, HOWEVER, CONCEDES THAT THE WALTER DRIVE SYSTEM MAY WELL BE CAPABLE OF A STANDARD OF PERFORMANCE WHICH WOULD SATISFY SUCH REQUIREMENTS. WE MUST REGARD A SPECIFICATION REQUIRING THE USE OF A PARTICULAR MANUFACTURER'S REGULARLY PRODUCED VEHICLE OR MAJOR COMPONENT THEREOF AS SO RESTRICTIVE AS TO PREVENT THE COMPETITION REQUIRED UNDER ADVERTISED PROCUREMENT PROCEDURES, EVEN THOUGH OTHER MANUFACTURERS MAY BE AUTHORIZED TO DUPLICATE SUCH VEHICLE OR COMPONENT, IN THE ABSENCE OF A DETERMINATION THAT IN FACT NO OTHER TYPE OF VEHICLE OR COMPONENT WOULD MEET THE REQUIREMENTS EQUALLY AS WELL.'

IT IS NOTED THAT MOST USAF EQUIPMENT IS DEVELOPED BY PRIVATE INDUSTRY, NOT BY THE AIR FORCE ITSELF, AND THAT SUCH EQUIPMENT MUST INEVITABLY BEAR TO A GREATER OR LESSER DEGREE CHARACTERISTICS REFLECTING ITS ORIGIN. THIS RESPECT, IT IS STATED, THE CURRENT SPECIFICATIONS FOR SNOWPLOWS ARE TYPICAL AS TO THE DEGREE OF IDENTIFICATION.

IT IS CONTENDED IN THE LETTER OF OCTOBER 6 THAT THE EFFECT OF THE STATEMENT QUOTED FROM OUR DECISION WILL BE TO PREVENT THE AIR FORCE FROM ESTABLISHING DETAILED SPECIFICATIONS ON ANY COMPLEX ITEM IT INTENDS TO PROCURE BY FORMAL ADVERTISING SINCE ANY MANUFACTURER COULD CLAIM THAT THE ,FLAVOR" IN THE MILITARY ITEM IS RESTRICTIVE AND PRECLUDES FULL AND FREE COMPETITION AND THAT ALL THE MARKS OF THE ORIGINAL PRODUCER CAN NEVER BE ELIMINATED FROM ANY DETAILED DESIGN.

WITH RESPECT TO THE INSTANT CASE IT IS STATED THAT THE DRIVE SYSTEM, INCLUDING THE FRONT AND REAR AXLE ASSEMBLIES AND THE TRANSFER CASE, IS THE ONLY COMPONENT OF THE SNOWPLOW UNDER THE EXISTING SPECIFICATION ON WHICH A SIGNIFICANT AMOUNT OF MACHINE TOOLING IS DONE BY THE CURRENT SUPPLIER OF THE VEHICLE AND THAT THIS MACHINING IS ACCOMPLISHED WITH A LIMITED NUMBER OF TYPES OF GENERAL PURPOSE MACHINE TOOLS AND ONE SPECIAL PURPOSE MACHINE TOOL USING SIMPLE JIGS AND FIXTURES. IT IS FURTHER NOTED THAT THE OPERATIONS PERFORMED ON THE SPECIAL PURPOSE MACHINE CAN ALSO BE DONE ON GENERAL PURPOSE MACHINES AND THAT ALL GEARS, FORGINGS AND CASTINGS USED IN THE COMPONENT ARE PURCHASED BY THE SUPPLIER FROM OUTSIDE SOURCES. ADDITION, IT IS STATED THAT THE DRIVE SYSTEM IS OF A CONVENTIONAL DESIGN USED BY ALL SIGNIFICANT MANUFACTURERS IN THE INDUSTRY EXCEPT WALTER IN BUILDING HEAVY DUTY FOUR WHEEL DRIVE TRUCKS FOR ALL PURPOSES INCLUDING SNOWPLOWING.

IT IS FURTHER CONTENDED THAT THE TEST FOR APPLICATION--- THAT NO OTHER TYPE OF VEHICLE OR COMPONENT WOULD MEET THE GOVERNMENT'S REQUIREMENT EQUALLY WELL--- IS INAPPROPRIATE AND WOULD PLACE THE PROCURING AGENCIES IN A IMPOSSIBLE POSITION SINCE NONE OF THEM WOULD HAVE THE RESOURCES OR TIME TO EXAMINE AND TEST ALL THE VARIOUS COMPONENTS THAT MIGHT BE PROPOSED IN ORDER TO MAKE SUCH A DETERMINATION. A SUBSTITUTE TEST PROPOSED BY THE AIR FORCE FOR APPLICATION IN THIS CASE IS BASED ON THE AVAILABILITY OF THE PARTICULAR COMPONENT TO THE INDUSTRY IN GENERAL. SINCE THE COMPONENTS IN QUESTION ARE AVAILABLE TO THE INDUSTRY, EITHER THROUGH PURCHASE OR MANUFACTURING AT REASONABLE COST AND SINCE PROPRIETARY RIGHTS, THE STATE- OF-THE-ART, SPECIAL MACHINE TOOLS, AND ELABORATE TOOLING ARE NOT RESTRICTIVE FACTORS IN THIS INSTANCE, IT IS CONCLUDED BY YOUR DEPARTMENT THAT THE SPECIFICATIONS ARE NOT SO RESTRICTIVE AS TO PREVENT THE COMPETITION REQUIRED UNDER ADVERTISED PROCUREMENT PROCEDURES. IN SUPPORT OF YOUR POSITION THERE IS QUOTED THE HEADNOTE AT 33 COMP. GEN. 595, AS FOLLOWS:

"SPECIFICATIONS, ACCOMPANYING AN INVITATION FOR BIDS TO FURNISH POSTAGE STAMP DISPENSING MACHINES, WHICH ARE DRAFTED TO ELIMINATE KNOWN UNDESIRABLE FEATURES OF SUCH MACHINES; WHICH DO NOT OVERSTATE THE NEEDS OF THE GOVERNMENT ARE NOT UNDULY RESTRICTIVE, EVEN THOUGH THE SPECIFICATIONS ARE BASED TO A LARGE EXTENT UPON A MACHINE THAT HAS BEEN PREVIOUSLY MANUFACTURED BY ONLY ONE COMPANY, BUT WHICH THROUGH EXPERIENCE AND TESTS HAS BEEN SHOWN TO POSSESS THE CHARACTERISTICS MEETING THE NEEDS OF THE GOVERNMENT.'

IN THE CITED CASE THE PROCURING AGENCY, THE POST OFFICE DEPARTMENT, HAD NEGOTIATED FOR THE PURCHASE OF A SMALL NUMBER OF A GIVEN TYPE OF MACHINE, APPARENTLY, FOR TEST PURPOSES, FROM EACH OF THE TWO KNOWN PRODUCERS. TESTS SHOWED MAJOR DEFICIENCIES IN THE PERFORMANCE OF ONE OF THE MAKES. THE MANUFACTURER OF THAT MAKE ALLEGED THAT SPECIFICATIONS APPLICABLE TO A LATER ADVERTISED PROCUREMENT OF A LARGE NUMBER OF THE MACHINES WERE RESTRICTIVE IN THAT THE FIRM'S MODEL COULD NOT MEET THE SPECIFICATION. STATED ON PAGE 597 IN HOLDING THAT THE SPECIFICATIONS WERE NOT UNDULY RESTRICTIVE:

"THE DEPARTMENTAL SPECIFICATIONS APPEAR TO HAVE BEEN WRITTEN WITH A VIEW TOWARD PERMITTING A MAXIMUM AMOUNT OF COMPETITION AMONG CONCERNS EQUIPPED TO SUPPLY THE NEEDS OF THE GOVERNMENT. OF COURSE, THE CHOICE OF CERTAIN FEATURES WAS NECESSARILY LIMITED BY REASON OF THE FACT THAT ONLY TWO KNOWN TYPES OF THESE MACHINES HAD BEEN DEVELOPED. IN SUM, HOWEVER, THE DRAFTING OF THESE SPECIFICATIONS SEEMS TO HAVE BEEN A QUESTION OF ELIMINATING KNOWN UNDESIRABLE FEATURES RATHER THAN FITTING THE SPECIFICATIONS TO THE PRODUCT OF ONE MANUFACTURER.'

CERTAIN PARALLELS EXIST BETWEEN THE SITUATION INVOLVED IN THE CITED CASE AND THAT NOW UNDER CONSIDERATION. IN EACH INSTANCE THERE WERE A LIMITED NUMBER OF KNOWN PRODUCERS AND THE SPECIFICATIONS AS WRITTEN PRECLUDED CONSIDERATION OF THE STANDARD PRODUCT OF ONE. HOWEVER, WE DEEM IT OF GREATER SIGNIFICANCE THAT IN THE EARLIER CASE THE PRODUCTS OF BOTH KNOWN PRODUCERS WERE TESTED BEFORE THE SPECIFICATIONS WERE WRITTEN AND THOSE SPECIFICATIONS ELIMINATED FROM CONSIDERATION A BID ON THE STANDARD PRODUCT OF ONE OF THE MANUFACTURERS ONLY TO THE EXTENT OF FEATURES FOUND UNDESIRABLE IN THE COURSE OF THE TESTING PROCESS.

A SITUATION MORE ANALOGOUS TO THAT UNDER CONSIDERATION IS PRESENTED AT 33 COMP. GEN. 524. IN THAT CASE IT WAS ALLEGED THAT THE SPECIFICATIONS WERE RESTRICTIVE BECAUSE THE REQUIREMENT FOR A COMPONENT (WHICH ACCOUNTED FOR APPROXIMATELY TEN PERCENT OF THE COST) DESCRIBED IN THE SPECIFICATIONS, ALTHOUGH NOT MENTIONED BY NAME, COULD BE MET ONLY BY A PATENTED ARTICLE. THE PROCURING AGENCY CONTENDED THAT THE SPECIFICATIONS WERE NOT RESTRICTIVE BECAUSE THE PATENTED COMPONENT REPRESENTED ONLY A PART OF THE ITEM UNDER PROCUREMENT AND BECAUSE THE PATENT HOLDER WAS WILLING TO MAKE THE MANUFACTURED COMPONENT AVAILABLE TO OTHER BIDDERS AT A STATED PRICE. WE STATED AT PAGE 527:

"THE QUESTION PRESENTED, HOWEVER, IS NOT WHETHER THE DETERMINATION AS TO THE FUNCTIONAL REQUIREMENTS OF THE STOOL IS OBJECTIONABLE BUT WHETHER THE SUBJECT SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION. DEPARTMENT'S DETERMINATION THAT A PARTICULAR PATENTED MECHANISM COMPLIES WITH ALL ITS REQUIREMENTS DOES NOT JUSTIFY WRITING SPECIFICATIONS WHICH GO BEYOND ITS NECESSARY FUNCTIONAL REQUIREMENTS. ALTHOUGH THE PATENTED DEVICE HERE IN QUESTION MAY BE THE ONLY DEVICE NOW KNOWN TO YOUR DEPARTMENT WHICH WOULD COMPLY WITH ITS NEEDS, THE EXCLUSION OF ANY OTHER SUITABLE DEVICE THAT POSSIBLY MIGHT EXIST, NECESSARILY IS RESTRICTIVE OF COMPETITION. THIS OFFICE HAS CONSISTENTLY HELD THAT INVITATIONS TO BID SHOULD NOT BE DRAWN AROUND OR NAME PARTICULAR MAKES OR BRANDS UNLESS AN OPPORTUNITY IS ALSO AFFORDED OTHER BIDDERS TO OFFER SUBSTITUTE "OR EQUAL" ITEMS AND THAT FAILURE TO DO THIS CANNOT BE JUSTIFIED ON THE BASIS THAT NO OTHER SATISFACTORY ITEM EXISTS SINCE THE ONLY WAY IT CAN BE DEFINITELY DETERMINED THAT SUCH IS THE CASE WHERE AN ADVERTISED PROCUREMENT IS INVOLVED IS BY ADVERTISING APPROPRIATE SPECIFICATIONS.'

WE ARE NOT UNAWARE OF THE OBVIOUS DISTINCTION BETWEEN THE TWO SITUATIONS- -- THAT IN THE CURRENT MATTER LICENSE-FREE USE OF ANY PATENT APPLICABLE TO THE COMPONENT HAS SPECIFICALLY BEEN GRANTED. NOR DO WE INTEND TO IGNORE THE STATEMENT APPEARING AT 33 COMP. GEN. 595, 596, AS FOLLOWS: "IN THE DECISION OF APRIL 23, 1954, 33 COMP. GEN. 524, TO WHICH YOU REFER, IT WAS HELD THAT AN INVITATION FOR BIDS FOR THE PURCHASE OF PLATFORM STOOLS ISSUED BY YOUR DEPARTMENT WAS LEGALLY DEFECTIVE. HOWEVER, THAT CONCLUSION WAS RENDERED SOLELY ON THE GROUND THAT THE SPECIFICATIONS WERE DRAWN SO AS TO REQUIRE THE USE OF A PATENTED ADJUSTING DEVICE FOR THE STOOL WITHOUT AFFORDING BIDDERS AN OPPORTUNITY TO OFFER SUBSTITUTE "OR EQUAL" ITEMS. THAT IS NOT THE SITUATION HERE.'

WHILE MUCH EMPHASIS IS PLACED ON THE FACT THAT THE COMPONENT IN QUESTION IS PATENTED, WE BELIEVE THE SAME CONCLUSION IS REQUIRED WHERE THE SPECIFICATIONS PERMIT THE USE OF ONLY ONE PARTICULAR UNIT, WHETHER OR NOT IT IS PROTECTED BY PATENT, WITHOUT REGARD TO WHETHER OR NOT SUCH LIMITATION ACCURATELY EXPRESSES ON THE BROADEST BASIS THE ACTUAL REQUIREMENTS OF THE GOVERNMENT, PARTICULARLY WHERE A COMPETITIVE ADVANTAGE MAY THEREBY BE OBTAINED BY ONE OR SOME OF THE PROSPECTIVE CONTRACTORS.

SEE ALSO IN THIS CONNECTION 32 COMP. GEN. 384, 387, IN WHICH WE STATED:

"THE GOVERNMENT ADVERTISING STATUTES CONSISTENTLY HAVE BEEN HELD TO REQUIRE THAT EVERY EFFORT SHOULD BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE ADVERTISED SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE MINIMUM NEEDS REQUIRED, NOT THE MAXIMUM DESIRED. SEE W. A. SCOTT V. UNITED STATES, 44 C.CLS. 524; UNITED STATES V. BROOKRIDGE FARM, 111 FED.2D 461; 15 COMP. GEN. 949; 16 ID. 225. THEREFORE, UNLESS IT CAN BE ESTABLISHED CONCLUSIVELY THAT THERE ARE NO OTHER MANUFACTURERS WHO CAN OR POSSIBLY COULD FURNISH A POWER SWEEPER MEETING THE MINIMUM NEEDS OF YOUR DEPARTMENT THE INSTANT PROCUREMENT SHOULD BE READVERTISED UNDER REVISED SPECIFICATIONS WHICH WOULD PERMIT OTHER BIDDERS SUFFICIENT LATITUDE TO MEET THE SPECIFIED REQUIREMENTS.'

WE ARE OF THE OPINION THAT THE CRITERION YOU PROPOSE--- THE AVAILABILITY OF THE PARTICULAR COMPONENT TO THE INDUSTRY IN GENERAL--- IS INCONSISTENT WITH THE FOREGOING AND CANNOT BE ADOPTED.

THE LANGUAGE QUOTED FROM THE DECISION OF AUGUST 18, 1959, IS NOT INTENDED TO SUGGEST A REQUIREMENT THAT THE PROCURING AGENCY SCOUR THE NATION TO INSURE AGAINST THE POSSIBILITY THAT THERE EXISTS AN ALTERNATE EQUAL ARTICLE OR COMPONENT WHICH MAY BE EXCLUDED BY THE SPECIFICATION. NOR IS IT INTENDED TO IMPOSE UPON THE AGENCY THE BURDEN OF ACQUIRING ON ITS OWN INITIATIVE THE NECESSARY DATA, ETC., TO DETERMINE WHETHER SUCH POSSIBLE ALTERNATIVE EXISTS.

THE SITUATION HERE PRESENTED IS THAT WALTER IS ONE OF A SMALL NUMBER OF REGULAR PRODUCERS OF THIS TYPE OF VEHICLE. THE DRIVE SYSTEM EMPLOYED BY WALTER IN THE VEHICLE TYPE HAS BEEN IN USE FOR A NUMBER OF YEARS. SNOWPLOWS INCORPORATING THAT DRIVE SYSTEM HAVE BEEN TESTED BY THE DEPARTMENT OF THE AIR FORCE ON MORE THAN ONE OCCASION. VEHICLES INCORPORATING THE DRIVE SYSTEM HAVE BEEN PROCURED BY OR ON BEHALF OF THE AIR FORCE FOR OTHER USES. WALTER HAD BEEN BIDDING ITS PRODUCT, ALBEIT UNSUCCESSFULLY, FOR SEVERAL YEARS UNDER SPECIFICATIONS SUFFICIENTLY BROAD TO PERMIT ITS TYPE OF DRIVE SYSTEM. FURTHER, WALTER HAD INDICATED A STRONG INTEREST IN PARTICIPATING IN THE PROCUREMENT AND IN SUBMITTING A SNOWPLOW OF ITS MANUFACTURE FOR TESTING.

WE RECOGNIZE THE RIGHT OF A PROCURING AGENCY TO DEVELOP OR OBTAIN DETAILED SPECIFICATIONS IN CONNECTION WITH A PROCUREMENT. WE ALSO RECOGNIZE THAT IN SOME SITUATIONS IT MAY BE DIFFICULT IF NOT IMPOSSIBLE TO INSURE THAT ONE OR A SMALL NUMBER OF POSSIBLE SOURCES ARE NOT FAVORED BY THE SPECIFICATIONS BY REASON OF A SIMILARITY BETWEEN THEIR REGULAR COMMERCIAL PRODUCT AND THE SPECIFICATIONS, OR THAT ONE OR A SMALL NUMBER ARE NOT PUT TO A DISADVANTAGE BECAUSE OF DIFFERENCES BETWEEN THEIR PRODUCT AND THE SPECIFICATIONS. AS STATED IN THE MEMORANDUM ENCLOSED WITH THE LETTER OF OCTOBER 6, THE DIFFERENCE WHICH HAS ARISEN WITH RESPECT TO THIS MATTER IS ONE OF DEGREE RATHER THEN KIND. FOR THAT REASON WE FEEL THAT NO GENERAL RULE OF LAW CAN BE ESTABLISHED FOR APPLICATION IN THIS KIND OF SITUATION BUT RATHER THAT THE QUESTION MUST BE DECIDED ON A CASE BY CASE BASIS.

NEVERTHELESS, WE DEEM CERTAIN FACTORS TO BE SIGNIFICANT IN DETERMINING WHETHER THE SPECIFICATIONS SHOULD BE CONSIDERED RESTRICTIVE. THE FIRST OF THESE IS THE DEGREE OF COMPETITIVE DISADVANTAGE WHICH MAY BE IMPOSED UPON A REGULAR PRODUCER BY THE SPECIFICATIONS. EVEN THOUGH NO SPECIAL TOOLING IS NEEDED TO PERMIT COMPLIANCE WITH THE SPECIFICATIONS, CHANGES REQUIRED IN ITS PRODUCTION LINE OR IN THE SPECIAL SKILLS NORMALLY UTILIZED BY THE MANUFACTURER MAY PLACE SUCH PRODUCER AT A COMPETITIVE DISADVANTAGE. THE SECOND FACTOR IS THE NUMBER OF REGULAR PRODUCERS OF THE PARTICULAR PRODUCT. WHERE THE TYPE OF ARTICLE IS PRODUCED BY A RELATIVELY LARGE NUMBER OF MANUFACTURERS IT MAY BECOME A PRACTICAL IMPOSSIBILITY TO DRAW DETAILED SPECIFICATIONS BROAD ENOUGH TO EXCLUDE ANY MATERIAL COMPETITIVE ADVANTAGE. THIS IS PARTICULARLY TRUE WHERE THE DEGREE OF VARIATION AMONG PRODUCERS IS RELATIVELY LARGE. ON THE OTHER HAND, WHERE THE NUMBER OF PRODUCERS IS SMALL OR THE VARIATION AMONG BRANDS SLIGHT, THE TASK BECOMES MORE PRACTICAL OF ACCOMPLISHMENT.

THE SECOND STATEMENT IN OUR DECISION OF AUGUST 18, QUESTIONED IN THE LETTER OF OCTOBER 6, APPEARS IN THE FIRST TWO SENTENCES OF THE FOLLOWING PARAGRAPH:

"A PROCUREMENT MAY BE MADE UNDER ADVERTISING PROCEDURES ON THE BASIS OF A PARTICULAR MANUFACTURER'S MODEL. IT IS REQUIRED IN SUCH CIRCUMSTANCES, HOWEVER, THAT THE WORDS "OR EQUAL" OR WORDS OF SIMILAR IMPORT BE ADDED TO THE DESCRIPTION AND THAT BIDS OFFERING OTHER PRODUCTS WHICH WILL PERFORM THE JOB AS WELL MUST BE CONSIDERED FOR AWARD ON AN EQUAL BASIS. 38 COMP. GEN. 380; 33 COMP. GEN. 524. WE CAN SEE NO REAL DIFFERENCE BETWEEN ADVERTISING FOR A PRODUCT BY ITS BRAND NAME AND MODEL NUMBER AND BY DETAILED DRAWINGS WHICH, ALTHOUGH THEY MAY NOT INDICATE NAME OR MODEL NUMBER, DESCRIBE SUCH MODEL BY ITS EXACT CHARACTERISTICS.'

AS INDICATED ABOVE, SNOWPLOWS OF THIS TYPE AND SIZE WERE FIRST PROCURED UNDER GENERAL PERFORMANCE-TYPE SPECIFICATIONS. THE CURRENT SPECIFICATIONS RELATING TO THE VEHICLE REPRESENT THE PRODUCT FURNISHED UNDER THE EARLIER SPECIFICATIONS AS MODIFIED BY THE MANUFACTURER IN THE LIGHT OF PRODUCTION EXPERIENCE. NOTWITHSTANDING THAT THE SPECIFICATIONS IN THEIR PRESENT FORM NO LONGER REPRESENT THE USUAL COMMERCIAL PRODUCT OF THE MANUFACTURER IN ITS ENTIRETY, THE PRODUCT CALLED FOR THEREUNDER IS GEARED TO THE PARTICULAR MANUFACTURER'S PRODUCTION LINE AND TO A DRIVE SYSTEM UNIQUE TO THAT MANUFACTURER. WE MUST, THEREFORE, REGARD THE REFUSAL TO CONSIDER BIDS ON AN "OR EQUAL" BASIS AS FAVORING THAT PRODUCER WITH A COMPETITIVE ADVANTAGE AND THIS WAS THE BASIS FOR THE ABOVE STATEMENT IN OUR DECISION OF AUGUST 18.

IN VIEW OF THE FOREGOING, WE ADHERE TO THE POSITION STATED IN OUR DECISION OF AUGUST 18 THAT THE SPECIFICATIONS MUST BE REGARDED AS IN CONTRAVENTION OF THE PURPOSE OF 10 U.S.C. 2305 (A) UNLESS THEY ARE BROADENED TO PERMIT CONSIDERATION OF A BID OFFERING A VEHICLE EMPLOYING THE WALTER TYPE OF DRIVE SYSTEM IN THE ABSENCE OF A DETERMINATION THAT A VEHICLE EMPLOYING SUCH DRIVE SYSTEM WOULD NOT SERVE THE PURPOSE OF THE AIR FORCE EQUALLY AS WELL AS A VEHICLE ACCEPTABLE UNDER THE SPECIFICATIONS IN THE PRESENT FORM.