B-176555, NOV 10, 1972

B-176555, NOV 10, 1972

BID PROTEST - BRAND-NAME ARTICLE - RESTRICTIVE SPECIFICATIONS DECISION DENYING THE PROTEST OF MENDELSON EQUIPMENT COMPANY AGAINST REJECTION OF ITS LOW BID UNDER AN IFB ISSUED BY THE ARCHITECT OF THE CAPITOL FOR TWO POT AND PAN WASH AND RINSE MACHINES. WHERE SPECIFICATIONS IN AN IFB ARE ALMOST A VERBATIM COPY OF THE TECHNICAL LITERATURE ON A BRAND-NAME ARTICLE, THE EFFECT IS TO MAKE EVERY FEATURE LISTED AN ESSENTIAL SALIENT SPECIFICATION, AND THAT EQUIPMENT NOT CONFORMING TO THESE ESSENTIAL FEATURES MUST BE REJECTED, 51 COMP. GEN. 237 (1971). FURTHERMORE, ANY PROTEST BASED UPON AN IMPROPRIETY APPARENT PRIOR TO BID OPENING, E.G. THOSE CONCERNING THE RESTRICTIVENESS OF THE SPECIFICATIONS, MUST BE MADE PRIOR TO BID OPENING, 4 CFR 20.2(A).

TO MENDELSON EQUIPMENT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 30, 1972, AND PRIOR CORRESPONDENCE, CONCERNING THE PROTEST BY YOU AND LITTON UNIT HANDLING SYSTEMS AGAINST THE REJECTION OF THE LOW BID YOU SUBMITTED UNDER INVITATION FOR BIDS (IFB) NO. 7298, ISSUED BY THE ARCHITECT OF THE CAPITOL.

THE IFB SOLICITED BIDS FOR FURNISHING TWO POT AND PAN WASH AND RINSE MACHINES FOR USE IN THE LONGWORTH AND RAYBURN HOUSE OFFICE BUILDING RESTAURANTS. THE EQUIPMENT WAS DESCRIBED ON A BRAND NAME OR EQUAL BASIS (METALWASH MODEL RT-42B OR EQUAL). SECTION 2.01.4 OF THE BRAND NAME OR EQUAL PURCHASE DESCRIPTION REQUIRED THAT THE WASH PUMP HAVE A CAPACITY OF DELIVERING 300 GPM AT 90 FH. SECTION 2.01.15 SPECIFIED THAT THE RINSE WATER HAVE A FLOW RATE OF 18 GPM AT 20 PSI.

BIDDERS WERE REQUIRED TO SUBMIT WITH THE BIDS DESCRIPTIVE LITERATURE OF THE PRODUCTS OFFERED TO MEET THE REQUIREMENTS OF THE IFB. YOUR COMPANY OFFERED THE MODEL VA-2 MANUFACTURED BY HEWITT-ROBINS, A DIVISION OF LITTON. ONE PORTION OF THE DESCRIPTIVE LITERATURE YOU SUBMITTED WITH THE BID STATED THE EQUIPMENT WAS CAPABLE OF DELIVERING 230 GPM AT 90 FH AND ANOTHER PORTION THAT IT WAS CAPABLE OF 260 GPM AT 90 FH. ALSO THE DESCRIPTIVE LITERATURE INDICATED A RINSE FLOW RATE OF 12 GPM AT 15 PSI. SINCE THE OFFERED EQUIPMENT DID NOT COMPLY WITH IFB SECTIONS 2.01.4 AND 2.01.15, THE BID WAS REJECTED AS NONRESPONSIVE. ON JUNE 29, 1972, AWARD WAS MADE TO THE SECOND LOW BIDDER WHO OFFERED THE BRAND NAME PRODUCT SPECIFIED IN THE IFB.

THE GROUNDS OF THE PROTEST BY YOUR COMPANY AND LITTON ARE THAT THE SPECIFICATIONS IN THE IFB DIFFERED FROM THE EXISTING STANDARD FEDERAL SPECIFICATIONS 00-W-1307 FOR COMMERCIAL POT AND PAN WASHING MACHINES AND WERE RESTRICTIVE. LITTON HAS CONTENDED THAT IT IS POSSIBLE TO GET SATISFACTORY CLEANING ACTION FROM UNITS PUMPING LESS THAN 300 GALLONS AND HAS FURNISHED A LIST OF VA HOSPITALS AND MILITARY INSTALLATIONS THROUGHOUT THE COUNTRY USING SUCH UNITS.

WE ARE NOT AWARE OF ANY REQUIREMENT THAT MAKES THE USE OF FEDERAL SPECIFICATIONS MANDATORY UPON THE OFFICE OF THE ARCHITECT OF THE CAPITOL. HOWEVER, THE INFORMATION AS TO THE EXTENSIVE USE OF LITTON EQUIPMENT BY OTHER GOVERNMENT AGENCIES CASTS DOUBT ON THE DETERMINATION THAT THE REQUIREMENT WAS THE MINIMUM THAT COULD BE TOLERATED FROM THE STANDPOINT OF SANITATION AND HEALTH. NEVERTHELESS, OUR OFFICE HAS CONCLUDED THAT WHERE THE SPECIFICATION IN AN IFB WAS ALMOST A VERBATIM COPY OF THE TECHNICAL LITERATURE ON THE BRAND NAME ARTICLE, AS WAS THE SITUATION IN THIS CASE, THE EFFECT WAS TO MAKE EACH AND EVERY FEATURE LISTED AN ESSENTIAL SALIENT CHARACTERISTIC AND EQUIPMENT WHICH DID NOT CONFORM TO THESE ESSENTIAL FEATURES WAS NOT EQUAL IN ALL RESPECTS AND WAS REQUIRED TO BE REJECTED. 51 COMP. GEN. 237 (1971). FURTHER, OUR OFFICE HAS HELD THAT PROTESTS AGAINST THE RESTRICTIVE NATURE OF SPECIFICATIONS SHOULD BE FILED PRIOR TO BID OPENING. B-173743, NOVEMBER 15, 1971. ADDITIONALLY, SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES PUBLISHED IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS STATES THAT "PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING SHALL BE FILED PRIOR TO BID OPENING." MOREOVER, AS THE CONTRACT HAS BEEN PERFORMED, NO CORRECTIVE ACTION IS POSSIBLE AT THIS TIME.