B-123812, DEC. 6, 1955

B-123812, DEC. 6, 1955

TO UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION:

FURTHER REFERENCE IS MADE TO COPY OF YOUR LETTER DATED MAY 10, 1955, TO THE MARINE CORPS, PROTESTING INVITATION FOR BID NO. 1154-C FOR THE MANUFACTURE OF 10,000 FRAME SERVICE CAPS UNDER MILITARY SPECIFICATION NO. F-20268. A SIMILAR PROTEST WHICH YOU MADE AGAINST AN AWARD OF A CONTRACT BY THE DEPARTMENT OF THE ARMY UNDER INVITATION TO BID NO. QM-36-030-55-761 WAS THE SUBJECT OF OUR DECISION OF JULY 22, 1955, B-123812, TO YOU.

IN YOUR LETTER OF MAY 10, 1955, YOU STATE THAT THE REQUIREMENT IN THE SPECIFICATION CALLING FOR A PATENTED PROPRIETARY STAY DOES NOT GIVE POTENTIAL BIDDERS AN OPPORTUNITY TO QUOTE UPON STAYS HAVING SIMILAR PROPERTIES WHICH MIGHT MEET THE NEEDS OF THE SERVICE AND THAT EXPERIENCE HAS POINTED UP THE FACT THAT, WHERE THE PATENTED STAY HAS BEEN REQUIRED UNDER PAST PROCUREMENT, THE PATENT HOLDER HAD CHARGED A PREMIUM PRICE FOR HIS PATENTED ITEM TO PROSPECTIVE BIDDERS. THEREFORE, YOU CONTEND THAT THIS SUPPLIER HAS BEEN ABLE TO DETERMINE THE SUCCESS OR FAILURE OF ANY ONE BIDDER ON ANY ITEM WHICH REQUIRED THE STAY, A THREAT WHICH HAS TENDED TO NARROW COMPETITION.

IN RESPONSE TO OUR REQUEST THE MARINE CORPS HAS FURNISHED A REPORT CONCERNING THE VARIOUS STATEMENTS IN YOUR LETTER OF MAY 10, 1955. A COPY OF LETTER DATED MAY 23, 1955, FROM THE COMMANDING GENERAL, MARINE CORPS CLOTHING DEPOT, PHILADELPHIA, PENNSYLVANIA, TO YOU, AND COPY OF YOUR REPLY THERETO DATED MAY 31, 1955, WERE FURNISHED WITH THE REPORT FOR OUR CONSIDERATION.

REGARDING THE INSTANT INVITATION, IT IS REPORTED THAT, SINCE THE TWO LOWEST BIDDERS HAD BEEN PLACED ON THE SUSPENDED BIDDERS LIST BY THE SECRETARY OF THE NAVY ON THE BASIS OF INFORMATION WHICH WAS DEVELOPED BY A COMMITTEE OF THE CONGRESS, IT WAS DETERMINED TO REJECT ALL BIDS AND READVERTISE THE REQUIREMENT AT A LATER DATE.

IT IS STATED IN THE REPORT OF THE MARINE CORPS THAT THE SPECIFICATION TO WHICH YOU OBJECT HAS BEEN IN CONTINUOUS USE OVER THE PAST TEN YEARS AND HAS ENABLED THAT BRANCH OF THE SERVICE TO OBTAIN THE BEST POSSIBLE TYPE OF UNIFORM CAP AND, AS YOU HAVE BEEN ADVISED, THAT THE MARINE CORPS CONTRACTORS ARE PERMITTED UNDER THE LICENSE AGREEMENT WITH THE GOVERNMENT TO MANUFACTURE THE STAY SUPPORT WITHOUT THE PAYMENT OF ROYALTIES WHEN PERFORMING A GOVERNMENT CONTRACT. ALSO, REGARDING THE PRINCIPAL BASIS OF YOUR PROTEST, IT IS STATED THAT THE NEEDS OF THE SERVICE NORMALLY CONSIST OF SUCH QUANTITIES AS TO WARRANT THE SUCCESSFUL BIDDER IN STAMPING THE STAYS ITSELF, OR HAVING THE STAMPING DONE BY A SUBCONTRACTOR OTHER THAN THE PATENT HOLDER. FINALLY, IT IS STATED THAT IT IS THE POLICY OF THE MARINE CORPS TO RESORT TO THE PURCHASE OF PATENTED ITEMS AS COMPONENTS ONLY WHEN IT IS ABSOLUTELY NECESSARY IN ORDER TO OBTAIN AN ACCEPTABLE END PRODUCT, AND THAT THE CORPS IS NOT AWARE OF ANY INJUSTICE TO ANY BIDDER RESULTING FROM USE OF THE SPECIFICATION IN QUESTION.

OF COURSE, THE DUTY AND RESPONSIBILITY OF DETERMINING THE NEEDS OF THE GOVERNMENT AND OF DRAFTING SPECIFICATIONS TO MEET THOSE NEEDS ARE MATTERS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE OFFICE CONCERNED. THIS PARTICULAR CASE THE MARINE CORPS HAS DETERMINED THAT THE SPECIFICATIONS SET FORTH ITS ACTUAL AND BONA FIDE NEEDS WITH RESPECT TO THE PROCUREMENT OF UNIFORM CAPS. IN VIEW OF SUCH DETERMINATION, WHICH MUST BE PRESUMED TO BE CORRECT IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, THE FACT THAT, AS YOU STATE, ONE OF THE FUNDAMENTAL REQUIREMENTS OF THE SPECIFICATIONS CAN BE MET ONLY BY A PATENTED PROPRIETARY STAY DOES NOT FURNISH A SUFFICIENT LEGAL BASIS FOR OUR OFFICE TO HOLD THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION, ESPECIALLY WHERE THE PATENT HOLDER HAS LICENSED THE USE OF THE PATENT BY ALL GOVERNMENT CONTRACTORS.