B-137691, APR. 14, 1960

B-137691, APR. 14, 1960

TO S. J. MEEKS' SON:

WE REFER AGAIN TO YOUR LETTERS OF FEBRUARY 23 AND 25, AND MARCH 7, 1960, PROTESTING AGAINST THE USE OF A NEW "BRAND NAME" CLAUSE IN GENERAL SERVICES ADMINISTRATION VEHICLE PROCUREMENTS INCLUDING INVITATIONS NOS. FN -3G-24921-A-2-24-60, FN-3M-25005-A, AND FN-3N-25733 A-3-24-60.

THE CLAUSE TO WHICH YOU REFER READS AS FOLLOWS:

"GOVERNMENT-SPECIFIED BRAND NAMES. (FOR THE PURPOSE OF THIS CLAUSE REFERENCES TO "BRAND NAME" SHALL MEAN BRAND NAME AND/OR MODEL NUMBER.) (A) IF ARTICLES HAVE BEEN IDENTIFIED IN THIS INVITATION BY A "BRAND NAME OR EQUAL" DESCRIPTION, SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF ARTICLES THAT WILL BE SATISFACTORY. BIDDERS ARE NOT EXPECTED TO FURNISH EXACT DUPLICATES BUT ONLY ARTICLES WHICH ARE EQUAL, INSOFAR AS THE GOVERNMENT'S NEEDS ARE CONCERNED, TO THE REFERENCED BRAND NAME ARTICLES. BIDS OFFERING ARTICLES OTHER THAN BRAND NAME ARTICLES REFERENCED IN THIS INVITATION WILL BE CONSIDERED: PROVIDED, THAT, SUCH OFFERED ARTICLES ARE CLEARLY IDENTIFIED IN THE BIDS AND BIDDERS FURNISH WITH THEIR BIDS (1) DESCRIPTIVE MATERIAL, INCLUDING CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER GRAPHIC MATERIAL, WHICH WILL CLEARLY SHOW THE CHARACTERISTICS OF THE ARTICLES OFFERED, AND (2) A STATEMENT SHOWING IN DETAIL THE DIFFERENCES BETWEEN THE ARTICLES OFFERED AND THOSE REFERENCED IN THE INVITATION. FAILURE TO FURNISH THE INFORMATION REQUIRED BY (1) AND (2) ABOVE WILL REQUIRE REJECTION OF THE BIDS.'

YOU CONTEND THAT SUCH CLAUSE SHOULD NOT BE USED BECAUSE:

"1. IT RESTRICTS COMPETITIVE BIDDING.

2. FORCES BUSINESS TO ASSUME WORK THAT SHOULD BE DONE BY THE BUYER (GOVERNMENT)

3. TIME ELEMENT PROHIBITS CHECKING OUT DETAILS

4. CHASSIS MANUFACTURERS WILL USE ONLY THE BRAND NAMED.

5. INFORMATION IS NOT READILY AVAILABLE.

6. SUBCONTRACTORS ARE SMALL BUSINESS AND NOT ORGANIZED TO HANDLE IN THE PRESCRIBED METHOD.

7. NO QUESTIONNAIRE IS FURNISHED AS A GUIDE FOR PRIME CONTRACTORS COVERING THE SUBCONTRACTORS MERCHANDISE.'

YOU FURTHER CONTEND THAT THE GENERAL SERVICES ADMINISTRATION SHOULD, WITH RESPECT TO THE PROCUREMENT OF VEHICLES, AT LEAST REPLACE THE "BRAND NAME" CLAUSE QUOTED ABOVE WITH THAT PREVIOUSLY USED, WHICH DESCRIBED AS DESIRABLE, BUT DID NOT REQUIRE, THE FURNISHING OF A DETAILED LIST OF DIFFERENCES BETWEEN THE PRODUCT OFFERED AS EQUAL AND THAT IDENTIFIED BY BRAND NAME.

THE ESTABLISHMENT OF SPECIFICATION REQUIREMENTS, INCLUDING DATA OR INFORMATION TO BE FURNISHED BY THE BIDDER WITH HIS BID, IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING AGENCY. IT IS OUR FUNCTION ONLY TO INSURE THAT THE PROCUREMENTS ARE MADE IN ACCORDANCE WITH LAW. EXCEPT TO THE EXTENT THAT A REQUIREMENT IS IMPOSED DIRECTLY OR INDIRECTLY BY LAW, OR IS IN CONFLICT WITH THE LAW, WE CANNOT DIRECT THE TERMS AND CONDITIONS WHICH ARE TO BE INCLUDED IN AN INVITATION FOR BIDS.

WHILE IT HAS ALWAYS BEEN OUR POSITION THAT THE PRACTICE SHOULD BE AVOIDED WHEREVER POSSIBLE (38 COMP. GEN. 380), WE HAVE RECOGNIZED THAT GOVERNMENT PROCUREMENTS MAY BE ADVERTISED ON A "BRAND NAME OR EQUAL" BASIS IN THOSE SITUATIONS WHERE DETAILED SPECIFICATIONS DESCRIBING THE MINIMUM REQUIREMENTS OF THE GOVERNMENT CANNOT BE PROPERLY STATED. 5 COMP. GEN. 835. WE HAVE FOUND THAT ADVERTISING UNDER "BRAND NAME OR EQUAL" SPECIFICATIONS TENDS TO ENGENDER MORE BID PROTESTS AND GREATER ADMINISTRATIVE DIFFICULTIES THAN PROCUREMENTS ON ANOTHER BASIS. SUCH DIFFICULTIES UNDOUBTEDLY STEM FROM THE INNATE AMBIGUITY AND UNCERTAINTY AS TO THE PARTICULAR FEATURES, DIMENSIONS, OR OTHER CHARACTERISTICS OF THE NAMED ARTICLE WHICH ARE REQUIRED BY THE GOVERNMENT.

IN A LETTER OF JANUARY 2, 1959, WE COMMENTED AT THE REQUEST OF THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, ON A PROPOSED SECTION OF GSA REGULATIONS WHICH, AS SUBMITTED, PROPOSED THE USE OF THE PROVISION WHICH YOU APPARENTLY FAVOR. WE NOTED THAT SUCH PROVISION WAS INCONSISTENT WITH OTHER PROVISIONS ALREADY IN USE, INCLUDING ONE PROVIDED FOR UNDER GSA REGULATIONS (GS 5-1 203.06D) WHICH REQUIRES THAT THE BIDDER STATE THE DIFFERENCES BETWEEN THE ARTICLE OFFERED AND THAT SPECIFIED. FURTHER, WE HAVE NOTED THAT WHERE ARTICLES ARE PROCURED ON A "BRAND NAME OR EQUAL" BASIS, QUESTIONS MAY WELL ARISE UNDER THE ENSUING CONTRACT AS TO EXACTLY WHAT THE BIDDER IS REQUIRED TO FURNISH AND THE GOVERNMENT IS OBLIGATED TO ACCEPT. SEE 38 COMP. GEN. 345. WE BELIEVE THAT THIS DIFFICULTY CAN BE MINIMIZED IF THE EXACT NATURE OF THE "OR EQUAL" ARTICLE IS DESCRIBED IN THE BID; HOWEVER, WE AGREE THAT IF A BIDDER FURNISHES AN ADEQUATE DESCRIPTION OF THE ARTICLE OFFERED IT SHOULD BE UNNECESSARY FOR HIM TO BEAR THE BURDEN OF PARTICULARIZING THE DIFFERENCES BETWEEN IT AND THE NAMED BRAND.

THE FORMER CLAUSE FAVORED BY YOU IS SUBJECT TO THE OBJECTION THAT A PROVISION IN AN INVITATION WHICH MAKES THE FURNISHING OF SOMETHING "DESIRABLE" IS RELATIVELY MEANINGLESS, SINCE THERE IS NO INDICATION AS TO THE CONSEQUENCES OF A FAILURE TO CONFORM WITH THE DESIRED PERFORMANCE. A BID IS TO BE REJECTED BECAUSE THE INFORMATION IS NOT FURNISHED, THEN CERTAINLY THE BIDDERS SHOULD BE SO ADVISED BY SPECIFIC LANGUAGE. WHERE THE MATTER TO BE FURNISHED IS FOR THE PURPOSE OF DETERMINING WHETHER OR NOT THE OFFERED ITEMS MAY BE ACCEPTED AS "EQUAL" TO A NAMED BRAND, A BID FAILING TO FURNISH SUFFICIENT INFORMATION TO ENABLE SUCH A DETERMINATION TO BE MADE SHOULD BE REJECTED, NOT MERELY FOR THE FAILURE TO FURNISH THE REQUESTED MATTER BUT BECAUSE OF THE BIDDER'S FAILURE TO ESTABLISH THE NECESSARY EQUALITY.

IN YOUR LETTER OF FEBRUARY 23 YOU CONTEND THAT THE USE OF THE QUOTED "BRAND NAME" CLAUSE IS RESTRICTIVE OF COMPETITION BECAUSE OF A TENDENCY ON THE PART OF PRIME CONTRACTORS TO PREFER THE USE OF THE NAMED BRAND IN ORDER TO ELIMINATE THE REQUIREMENT TO PROVIDE THE LIST OF DIFFERENCES BETWEEN THE NAMED ARTICLE AND A POSSIBLE "OR EQUAL.' FURTHER, YOU NOTE THAT THE REQUIREMENT IMPOSES AN ONEROUS TASK ON THE SUPPLIERS WHICH MAY NOT BE EQUIPPED TO HANDLE AND WHICH MAY NOT BE POSSIBLE OF COMPLETION PRIOR TO BID OPENING BECAUSE OF LACK OF TIME OR THE UNAVAILABILITY OF DETAILED SPECIFICATIONS ON THE "BRAND NAME" ARTICLE. FINALLY, IT IS YOUR CONTENTION THAT THE DUTY IMPOSED UPON THE BIDDER IS ONE THAT SHOULD PROPERLY BE ASSUMED BY THE GOVERNMENT.

AS INDICATED ABOVE, OUR JURISDICTION IN THIS AREA IS SOMEWHAT LIMITED, AND IN THIS INSTANCE WE DO NOT BELIEVE THAT ANY INTERFERENCE ON OUR PART WOULD BE JUSTIFIED IN THE ABSENCE OF A SHOWING THAT THE SPECIFICATIONS DO NOT TRULY REPRESENT THE ACTUAL NEEDS OF THE GOVERNMENT AND THUS THAT THE REQUIREMENTS IMPOSED ARE UNDULY RESTRICTIVE OF COMPETITION.

WE CAN SEE THAT IN A CASE SUCH AS THIS, WHERE THE BRAND-NAME SPECIFICATION IS USED ONLY WITH RESPECT TO A COMPONENT OF THE ITEM BEING PURCHASED RATHER THAN AS A SPECIFICATION FOR THE ACTUAL ITEM ITSELF, THERE WOULD BE A NATURAL TENDENCY FOR A PROSPECTIVE BIDDER, NOT HIMSELF INTERESTED IN THE MANUFACTURE OF THE COMPONENT, TO OFFER THE NAMED COMPONENT RATHER THAN RUN THE RISK OF HAVING HIS BID REJECTED BECAUSE A SUBSTITUTE COMPONENT WOULD NOT BE ACCEPTED AS EQUAL. THIS WOULD APPEAR TO BE TRUE TO SOME EXTENT REGARDLESS OF THE FORM OF THE INVITATION REQUIREMENTS.

WE ARE ADVISED BY LETTER OF MARCH 14, 1960, FROM THE COMMISSIONER OF FEDERAL SUPPLY SERVICE, THAT THE QUESTIONED PROVISION IS NOW UNDER EXAMINATION FOR POSSIBLE REVISION AND THAT YOUR COMMENTS WILL BE GIVEN DETAILED CONSIDERATION IN CONNECTION WITH THIS EXAMINATION. OUR VIEWS AS HEREIN EXPRESSED WILL ALSO BE BROUGHT TO THE ATTENTION OF THE COMMISSIONER.