B-148500, AUG. 20, 1963

B-148500, AUG. 20, 1963

TO MR. R. B. RITCHIE:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 22, 1963, REQUESTING RECONSIDERATION OF YOUR PREVIOUS COMPLAINT AGAINST THE UTILIZATION OF A "BRAND NAMES" CLAUSE IN INVITATIONS FOR BIDS ON GOVERNMENT CONSTRUCTION PROJECTS. WE EXPLAINED OUR POSITION RELATING TO THE USE OF BRAND NAME OR EQUAL DESCRIPTIONS FOR CONSTRUCTION MATERIALS AND EQUIPMENT IN A LETTER TO YOU OF JUNE 11, 1962, AND YOU HAVE SUGGESTED THAT THE MATTER SHOULD BE GIVEN FURTHER CONSIDERATION FOR THE FOLLOWING REASONS:

1. IN CONNECTION WITH THE CASE REFERRED TO IN YOUR ORIGINAL COMPLAINT, WHICH INVOLVED A PROPOSED CONTRACT FOR CONSTRUCTION AT THE MANASSAS NATIONAL BATTLEFIELD PARK, VIRGINIA, YOU UNDERSTAND THAT THE SPECIFIED BRAND NAME ITEM OF HARDWARE WAS FOUND TO BE UNSUITABLE FOR THE PROJECT AND A SUBSTITUTION HAD TO BE MADE "IN SPITE OF THE POSITIVE PROVISIONS OF THE CONTRACT THAT NO MODIFICATIONS WOULD BE CONSIDERED AFTER BID OPENING.'

2. UNLIKE THE NATIONAL PARK SERVICE PROJECT, THE RECORD SHOWS THAT ONLY ONE BID WAS RECEIVED IN RESPONSE TO INVITATION FOR BIDS NO. 123-R7 63, ISSUED ON MAY 10, 1963, BY THE FOREST SERVICE, REGION 7, UPPER DARBY, PENNSYLVANIA, WHICH REQUESTED BIDS FOR THE FURNISHING OF ALL LABOR AND MATERIALS TO INSTALL A 10,000-GALLON WATER TANK, A SUBMERSIBLE WATER PUMP AND 1,671 FEET OF WATER PIPE AT THE BRANDYWINE RECREATION AREA LOCATED IN PENDLETON COUNTY, WEST VIRGINIA. YOU CONTEND THAT AT LEAST TWO BIDS WOULD HAVE BEEN SUBMITTED EXCEPT FOR THE RESTRICTIVE BRAND NAME PROVISION, AND THAT WORK OF SUCH NATURE IN THE PARTICULAR AREA HAS BEEN ATTRACTING CONSIDERABLY MORE COMPETITION THAN JUST ONE OR EVEN TWO BIDS.

IN OUR LETTER TO YOU OF JUNE 11, 1962, IT WAS SHOWN AS OUR POSITION THAT PROCUREMENT OF SUPPLIES OR EQUIPMENT BY BRAND NAME OR EQUAL DESCRIPTIONS IS GENERALLY UNDESIRABLE AND SHOULD BE RESERVED FOR EXCEPTIONAL CASES. WAS ALSO INDICATED AS OUR BELIEF THAT, ALTHOUGH THE PREPARATION OF SPECIFICATIONS FOR A CONSTRUCTION PROJECT MAY PRESENT A SPECIAL PROBLEM, A REASONABLE ATTEMPT NEVERTHELESS SHOULD BE MADE TO INSURE THAT THE ADVERTISED SPECIFICATIONS FOR THE PROJECT DO NOT CONTAIN ANY UNNECESSARY RESTRICTIONS WITH RESPECT TO DESCRIPTIONS OF THE DESIRED TYPES OF MATERIALS, SUPPLIES OR EQUIPMENT WHICH ARE TO BE INCORPORATED IN THE CONSTRUCTION WORK. WE REMAIN OF THE OPINION, HOWEVER, THAT BRAND NAME OR EQUAL DESCRIPTIONS PROPERLY MAY BE USED FOR CONSTRUCTION MATERIALS AND EQUIPMENT IF IT APPEARS THAT THEIR USE IS BASED UPON REASONABLE GROUNDS SUCH AS THAT IT WOULD BE IMPRACTICAL OR UNECONOMICAL TO PREPARE DETAILED DESCRIPTIONS OF THE PARTICULAR ITEMS.

APPARENTLY, WITH REFERENCE TO THE FIRST POINT AS STATED ABOVE, YOU INTENDED TO REFER TO THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS COVERING THE MANASSAS NATIONAL BATTLEFIELD PARK CONSTRUCTION PROJECT, RATHER THAN TO ANY SUPPOSED RESTRICTION UPON THE GOVERNMENT'S RIGHT TO ISSUE CHANGE ORDERS WHICH COME WITHIN THE GENERAL SCOPE OF THE ORIGINAL CONTRACT. IT IS CONCEIVABLE, OF COURSE, THAT A STATED BRAND NAME ITEM OF HARDWARE OR OTHER CONSTRUCTION MATERIAL MIGHT EVENTUALLY BE FOUND TO BE UNSUITABLE FOR A PARTICULAR TYPE OF CONSTRUCTION, BUT THIS WOULD NOT REQUIRE A CONCLUSION THAT SPECIFICATIONS SHOULD IN ALL CASES BE WRITTEN WITHOUT EMPLOYING BRAND NAME OR EQUAL DESCRIPTIONS.

WITH RESPECT TO THE BRANDYWINE RECREATION AREA PROJECT, THE RECORD NOW SHOWS THAT YOU OBJECTED SPECIFICALLY TO THAT PART OF THE SPECIFICATION FOR THE SUBMERSIBLE WATER PUMP WHICH STATES THAT ,THE PUMP SHALL BE A MULTI- STAGE SUBMERSIBLE TYPE SIMILAR TO DEMING MODEL NO. 3AM31, 230 VOLT, SINGLE PHASE, 60 CYCLE, CAPABLE OF DELIVERING SUSTAINED MINIMUM OF 15 O.P.M. AGAINST APPROXIMATELY 412 FEET OF HEAD AND A SUSTAINED MAXIMUM OF 20 O.P.M. AT 200 FEET OF HEAD.'

YOU CONTENDED THAT THE WORDS "SIMILAR TO DEMING MODEL NO. 3AM31" CAUSED THE SPECIFICATIONS TO BE UNDULY RESTRICTIVE OF COMPETITION AND GAVE TO THE DEMING COMPANY AN UNFAIR ADVANTAGE OVER OTHER PUMP MANUFACTURERS; ALSO THAT THE RESTRICTIVE CHARACTER OF THE DESCRIPTION FOR THE DESIRED TYPE OF PUMP PLACED AN INTOLERABLE BURDEN ON BIDDERS WHO WERE REQUIRED TO SUBMIT A STATEMENT SHOWING IN DETAIL THE DIFFERENCES BETWEEN THEIR OFFERED EQUIPMENT AND THE SPECIFIED MODEL. YOU SUGGESTED, AND WE AGREE, THAT THE IMPORTANT FACTOR, SO FAR AS THE NEEDS OF THE GOVERNMENT ARE CONCERNED, IS THE PERFORMANCE OF THE PUMP. HOWEVER, IT DOES NOT NECESSARILY FOLLOW THAT THE NAMING OF A PARTICULAR MANUFACTURER'S PRODUCT WAS, IN FACT, UNDULY RESTRICTIVE OF COMPETITION AMONG ELIGIBLE CONSTRUCTION CONTRACTORS OR UNFAIR TO OTHER PUMP MANUFACTURERS. NEITHER DO WE CONSIDER THAT IT WOULD HAVE BEEN EXTREMELY DIFFICULT FOR A BIDDER TO SHOW THE ESSENTIAL DIFFERENCES BETWEEN THE DEMING MODEL AND A PUMP OF A DIFFERENT MANUFACTURE WHICH HE PROPOSED TO FURNISH.

THE DEPARTMENT OF AGRICULTURE HAD INDICATED THAT IT IS FAMILIAR WITH THE DECISIONS OF OUR OFFICE WHICH HAVE DECLARED THE USE OF BRAND NAME DESCRIPTIONS IN INVITATIONS FOR BIDS TO BE GENERALLY UNDESIRABLE. HOWEVER, THE DEPARTMENT BELIEVES THAT THE DESCRIPTIONS WHICH THE FOREST SERVICE HAS USED IN THIS AND SIMILAR CASES ARE FULLY JUSTIFIED AND NOT CONTRARY TO ESTABLISHED REGULATIONS AND PROCEDURES. IT IS CONTENDED BY THE DEPARTMENT THAT IT WOULD NOT HAVE BEEN PRACTICAL TO PREPARE A DETAILED SPECIFICATION FOR THE SUBMERSIBLE WATER PUMP IN THE CASE OF INVITATION FOR BIDS NO. 123-R7-63 BECAUSE MANY SMALL OPERATORS HAVE REFUSED TO BID ON WORK FOR THE FOREST SERVICE WHEN EXPENSIVE EQUIPMENT IS DESCRIBED BY FEDERAL SPECIFICATIONS INCLUDED BY REFERENCE, OR WHEN LENGTHY TECHNICAL SPECIFICATIONS ARE USED.

INVITATION NO. 123-R7-63 CONCERNED A RELATIVELY SMALL JOB IN A REMOTE AREA AND THE PROJECT WAS PART OF AN ACCELERATED PUBLIC WORKS PROGRAM UNDER WHICH CONTRACTORS ARE REQUIRED TO USE LOCAL UNEMPLOYED LABOR TO THE EXTENT THAT QUALIFIED LABORERS ARE AVAILABLE. AS A GENERAL RULE, OUTSIDE CONTRACTORS ARE NOT INTERESTED IN BIDDING ON THESE SMALL JOBS AND THE CONTRACTS ARE AWARDED TO SMALL BUSINESS OPERATORS WHO PREFER THAT THE SPECIFICATIONS BE STATED IN TERMS WITH WHICH THEY ARE FAMILIAR AND SHOWING EXACTLY WHAT EQUIPMENT WOULD BE ACCEPTABLE. THE PROJECTS ARE PURPOSELY SELECTED FOR CONTRACTING WHICH IT IS HOPED COULD BE HANDLED BY LOCAL RESIDENTS AND IT HAS BEEN DETERMINED ADMINISTRATIVELY THAT, FROM A PRACTICAL STANDPOINT, IT SHOULD BE UNNECESSARY TO PROVIDE DETAILED SPECIFICATIONS FOR MAJOR ITEMS OF EQUIPMENT TO BE INCORPORATED IN THE CONSTRUCTION WORK, WHERE THE NEEDS OF THE GOVERNMENT MAY BE ADEQUATELY SET FORTH BY USING THE SO-CALLED BRAND NAME OR EQUAL DESCRIPTIONS.

THE DEPARTMENT OF AGRICULTURE DOES NOT AGREE WITH YOUR CONTENTION THAT THE USE OF A BRAND NAME OR EQUAL DESCRIPTION IN THIS CASE DISCOURAGED BIDDING EXCEPT FOR THE POSSIBILITY THAT YOU MIGHT HAVE SUBMITTED A BID IF THE SPECIFICATIONS DID NOT REQUIRE THE FURNISHING OF A PUMP SIMILAR TO THE DEMING MODEL, OR A DETAILED EXPLANATION OF THE DIFFERENCES BETWEEN THAT MODEL AND WATER PUMPS OF OTHER MANUFACTURERS WHICH BIDDERS MAY HAVE BELIEVED TO BE ACCEPTABLE. IN THIS CONNECTION IT IS REPORTED THAT THE SUCCESSFUL BIDDER FURNISHED AND INSTALLED A STANDARD MAKE OF PUMP OTHER THAN THE NAMED BRAND.

IN VIEW OF THE FOREGOING, WE FIND NO REASONABLE BASIS FOR CONCLUDING THAT THE SPECIFICATION FOR THE SUBMERSIBLE WATER PUMP, MADE A PART OF INVITATION FOR BIDS NO. 123-R7-63, WAS IMPROPER IN ANY RESPECT. IT IS REGRETTED THAT YOU ELECTED NOT TO BID APPARENTLY BECAUSE OF YOUR STRONG OBJECTIONS TO THE USE OF BRAND NAME OR EQUAL DESCRIPTIONS. HOWEVER, THE GOVERNMENT IS NOT TO BE PLACED IN A POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS OR THE REQUIREMENTS FOR THE CONSIDERATION OF EQUIPMENT OFFERED AS SIMILAR TO OR EQUAL TO A SPECIFIED ACCEPTABLE TYPE.