B-141279, JAN. 5, 1960

B-141279, JAN. 5, 1960

TO THE WHITE MOTOR COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX OF NOVEMBER 18, 1959, AND SUBSEQUENT CORRESPONDENCE, RELATIVE TO YOUR PROTEST AGAINST ANY AWARD UNDER INVITATION FOR BIDS NO. ENG-25-066-60-13 DATED OCTOBER 23, 1959, BECAUSE OF ALLEGED RESTRICTIVE SPECIFICATIONS FOR DIESEL-ELECTRIC GENERATING UNITS AND SWITCHGEAR.

THE INVITATION, AS AMENDED, REQUESTED BIDS FOR FURNISHING ALL LABOR, EQUIPMENT AND MATERIALS FOR THE CONSTRUCTION OF WS-107A-1 OPERATIONAL BASE COMPLEXES 549-1 THROUGH 549-9 AT F. E. WARREN AIR FORCE BASE, WYOMING. TECHNICAL SPECIFICATION NO. 29-04 OF THE INVITATION PROVIDED FOR USE OF "CHICAGO PNEUMATIC MODEL 612 CPS DIESEL ELECTRIC-GENERATING UNITS AND SWITCHGEAR SPECIFIED HEREIN, TOGETHER WITH ALL ASSOCIATED EQUIPMENT.'

IN VIEW THEREOF YOU CONTEND AS FOLLOWS: "* * * THIS INVITATION CONTAINED RESTRICTIVE CLAUSES AND, CONTRARY TO PROCUREMENT REGULATIONS, COPY OF WHICH IS ENCLOSED, HAVE RESTRICTED THE SPECIFICATIONS TO ONE ENGINE MANUFACTURER. THIS BECOMES A PROPRIETARY PURCHASE AND ELIMINATES FOUR OR FIVE LARGE ENGINE MANUFACTURERS IN THIS COUNTRY FROM SUBMITTING BIDS TO THE GENERAL CONTRACTORS FOR THE FURNISHING OF THIS EQUIPMENT. THIS, WE FEEL, IS CONTRARY TO THE RULES OF PROCUREMENT BY THE UNITED STATES GOVERNMENT AND INVARIABLY WILL INCREASE THE COSTS OF THIS EQUIPMENT, INASMUCH AS IT ELIMINATES COMPETITIVE BIDDING AS REQUIRED BY THE VARIOUS ACTS OF CONGRESS.'

THE SPECIFICATION IN QUESTION WAS INCLUDED IN THE INVITATION UNDER A DETERMINATION MADE BY THE DEPARTMENT OF THE AIR FORCE IN JUNE 1958 THAT STANDARDIZATION OF CERTAIN EQUIPMENT, INCLUDING DIESEL GENERATING UNITS, THROUGHOUT OPERATIONAL SITES AT INDIVIDUAL MISSILE SQUADRONS WAS REQUIRED TO ACCOMPLISH THESE FOLLOWING OBJECTIVES:

A. TRAINED MILITARY AND CIVILIAN OPERATORS CAN BE UTILIZED WITHOUT RESTRICTION TO ANY OF THE LAUNCH SITES.

B. MINIMUM PARTS STOCK CAN BE MAINTAINED IN VARIETY AND QUANTITY.

C. MAXIMUM RELIABILITY IN CONTINUITY OF EQUIPMENT OPERATIONS CAN BE ACHIEVED.

D. CHECKOUT OF COMPONENT PARTS AND ASSEMBLED MISSILES CAN BE SIMPLIFIED.

THIS DETERMINATION TO STANDARDIZE, WHICH IS ALSO A BASIS FOR NEGOTIATING CONTRACTS PURSUANT TO 10 U.S.C CODE 2304 (A) (13), WAS INITIALLY USED IN CONNECTION WITH SUPPLY PROCUREMENT INVITATION NO. ENG 25-066-59-64 DATED DECEMBER 18, 1958, COVERING, AMONG OTHER ITEMS, DIESEL-ELECTRIC-GENERATING SETS AND SWITCHGEAR EQUIPMENT. SPECIAL CONDITION NO. SC-3 OF THAT INVITATION CONTAINED THE FOLLOWING INFORMATION RESPECTING STANDARDIZATION:

"SC-3. STANDARDIZATION OF INSTALLED EQUIPMENT.

"A. THE AIR FORCE MAY AT A FUTURE DATE CONTRACT FOR THE CONSTRUCTION OF ADDITIONAL SITES, INCLUDING INSTALLED EQUIPMENT,SIMILAR TO THAT BEING PROCURED HEREUNDER AND IN THE SAME GENERAL LOCATION. IN ORDER TO ACHIEVE, IN THE INTEREST OF NATIONAL DEFENSE, THE UTMOST OPERATIONAL EFFICIENCY AND RELIABILITY, IT MAY BE NECESSARY AT SUCH ADDITIONAL SITES TO REQUIRE THAT CERTAIN INSTALLED EQUIPMENT LISTED BELOW BE OF THE SAME MAKE AND MODEL (HEREIN REFERRED TO AS ,STANDARDIZED" INSTALLED EQUIPMENT) AS ARE FURNISHED BY THE CONTRACTOR HEREUNDER.

"DIESEL ENGINE GENERATOR SETS AND SWITCHGEAR EQUIPMENT

"IN SUCH CASES THE INVITATION FOR BIDS FOR THE FURNISHING OF EQUIPMENT TO BE INSTALLED AT SUCH ADDITIONAL SITES WILL SPECIFY BY MAKE AND MODEL THE ITEMS WHICH HAVE BEEN SELECTED FOR SUCH STANDARDIZATION. THIS NOTICE IS NOT TO BE CONSIDERED AS A COMMITMENT THAT (1) THE GOVERNMENT SHALL PROCURE ANY SUCH ADDITIONAL EQUIPMENT OR (2) THAT, IF IT DOES SO, IT WILL NECESSARILY STANDARDIZE ON ANY OR ALL OF THE INSTALLED EQUIPMENT DESIGNATED ABOVE.

"B. THE CONTRACTOR, TO THE EXTENT HE IS PROCURING DIRECTLY SUCH STANDARDIZED EQUIPMENT, SHALL ADVISE ALL PROSPECTIVE SUPPLIERS FROM WHOM HE IS SOLICITING PRICE QUOTATIONS OF THE INFORMATION CONTAINED IN SUBPARAGRAPH A, AND SHALL REQUIRE HIS SUBCONTRACTORS, INCLUDING LOWER TIER SUBCONTRACTORS, TO THE EXTENT SUCH SUBCONTRACTORS ARE PROCURING STANDARDIZED INSTALLED EQUIPMENT UNDER THIS CONTRACT, TO GIVE LIKE NOTICE TO THEIR SUPPLIERS OF SUCH EQUIPMENT.'

WHILE YOU SUBMITTED A BID UNDER THAT INVITATION, AWARD WAS MADE TO THE CHICAGO PNEUMATIC TOOL COMPANY AS THE LOWEST RESPONSIVE RESPONSIBLE BIDDER.

THUS, IT CAN BE SEEN THAT ALL RESPONSIVE BIDDERS UNDER THE SUPPLY INVITATION HAD THE SAME COMPETITIVE OPPORTUNITY TO RECEIVE STANDARDIZATION OF ITS EQUIPMENT FOR POSSIBLE FUTURE PROCUREMENTS PROVIDED THEY SUBMITTED THE LOWEST RESPONSIVE BID. THE ADVANTAGE THUS ACCRUING TO THE SUCCESSFUL BIDDER SO FAR AS FUTURE STANDARDIZED PROCUREMENTS WERE CONCERNED RESULTED DIRECTLY FROM OPEN COMPETITIVE BIDDING. CONSIDERING ALSO THAT THE EQUIPMENT COULD HAVE BEEN PROCURED AND STANDARDIZED UNDER NEGOTIATION, AS DISTINGUISHED FROM COMPETITIVE, PROCEDURES, IT SEEMS APPARENT THAT THE SUPPLY PROCUREMENT WAS ENTIRELY PROPER. THE PROVISION IN THE INSTANT CONSTRUCTION INVITATION AS TO WHICH YOU TAKE EXCEPTION FURTHER IMPLEMENTED THE STANDARDIZATION RESULTING FROM THE PRIOR INVITATION UNDER WHICH CHICAGO PNEUMATIC WAS THE SUCCESSFUL BIDDER. WE FAIL TO SEE IN WHAT MANNER IT CAN BE SAID THAT THE INSTANT STANDARDIZATION PROVISION IS RESTRICTIVE OF COMPETITION OR IS OTHERWISE CONTRARY TO LAW OR REGULATION. FURTHER, IT IS OUR VIEW THAT THE STANDARDIZATION OF DIESEL-ELECTRIC- GENERATING SETS IN THE INSTANT INVITATION REPRESENTED A BONA FIDE PROCUREMENT DETERMINATION THAT ONLY THE CHICAGO PNEUMATIC EQUIPMENT MET THE REQUIREMENTS OF THE GOVERNMENT CONSIDERING THE OBJECTIVES SOUGHT TO BE ACCOMPLISHED THEREBY.

THE REQUIREMENT IN SECTION 2-201 (D) OF THE ARMED SERVICES PROCUREMENT REGULATION FOR THE USE OF THE WORDS "OR EQUAL" TO QUALIFY BRAND NAMES OF COMMERCIAL PRODUCTS HAS NO APPLICATION HERE WHERE THE DESCRIPTIVE SPECIFICATION REFERS TO A PROPRIETARY PRODUCT WHICH HAS BEEN STANDARDIZED AS A RESULT OF COMPETITIVE PROCEDURES. FURTHER, TO REQUIRE THE USE OF THE WORDS "OR EQUAL" IN THE INSTANT SPECIFICATION WOULD, IN EFFECT, DEFEAT THE STANDARDIZATION ACTION THERETOFORE ACCOMPLISHED.

THE DETERMINATION TO STANDARDIZE EQUIPMENT, ESPECIALLY THROUGH COMPETITIVE BID PROCEDURES, WHEN SUPPORTED, AS HERE, BY ADMINISTRATIVE FINDINGS MADE UNDER SECTION 3-213/2 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION, MUST BE REGARDED AS FINAL BY OUR OFFICE. SEE, ALSO, 10 U.S.C. 2310.

WHILE NOT ENTIRELY RELEVANT HERE, WE HAVE BEEN ADVISED INFORMALLY THAT CONSIDERATION WAS BEING GIVEN TO THE DELETION OF THE CHICAGO PNEUMATIC EQUIPMENT FROM THE SPECIFICATIONS BY APPROPRIATE ADDENDUM PRIOR TO BID OPENING AND TO PROCURE GENERATOR AND SWITCHGEAR ITEMS SEPARATELY AT A LATER DATE. HOWEVER, AFTER FURTHER CONSIDERATION IT WAS DETERMINED BY THE OFFICE OF THE CHIEF OF ENGINEERS THAT SUCH ACTIONS WERE NOT ADMINISTRATIVELY FEASIBLE BECAUSE THE EXTREME URGENCY OF THE CONSTRUCTION PROJECT WOULD NOT PERMIT ANY FURTHER DELAY WHICH WOULD HAVE BEEN OCCASIONED HAD SUCH CHANGES BEEN MADE. ON THE BASIS OF OUR REVIEW, WE BELIEVE THAT THE ACTION TAKEN WAS PROPER UNDER THE CIRCUMSTANCES.

ACCORDINGLY, ON THE PRESENT RECORD, OUR OFFICE IS NOT REQUIRED TO OBJECT TO THE AWARD OF A CONTRACT TO MARTIN K. EBY COMPANY ON DECEMBER 4, 1959, UNDER INVITATION NO. ENG-25-066-60-13, WHICH INCLUDES THE REQUIREMENT FOR STANDARDIZATION OF THE CHICAGO PNEUMATIC PRODUCT.