B-146302, OCT. 24, 1961

B-146302: Oct 24, 1961

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TO THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A LETTER OF OCTOBER 3. THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR DECISION OF TODAY DENYING THE PROTEST OF MARSHALL WEBB COMPANY. IT IS APPARENT FROM THE STATEMENTS OF THE CONTRACTING OFFICER THAT THE BIDS WERE EVALUATED ON THE BASIS OF THE ESSENTIAL CHARACTERISTICS STATED IN THE DESCRIPTION OF EACH ITEM AND THE INCLUSION OF A SPECIFIED BRAND NAME FOR EACH ITEM WAS UNNECESSARY.

B-146302, OCT. 24, 1961

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER OF OCTOBER 3, 1961, FROM MR. AARON J. RACUSIN, DEPUTY FOR PROCUREMENT AND PRODUCTION, REGARDING THE PROTEST OF MARSHALL WEBB COMPANY, SAN ANTONIO, TEXAS, AGAINST CERTAIN AWARD ACTION TAKEN UNDER INVITATION FOR BIDS NO. 41-615-61-205, ISSUED BY LACKLAND AIR FORCE BASE, TEXAS.

THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR DECISION OF TODAY DENYING THE PROTEST OF MARSHALL WEBB COMPANY.

AS WE POINTED OUT IN THAT DECISION, THE HISTORY OF THE BRAND NAME "OR EQUAL" PROVISION HAS SHOWN THAT NUMEROUS ADMINISTRATIVE AND LEGAL DIFFICULTIES RESULT FROM ITS USE. ASPR 1-1206 (B) RECOGNIZE THIS AND REQUIRES THAT SUCH DESCRIPTION BE USED AS AN INVITATION ONLY AS A LAST RESORT. IN THE PRESENT CASE, IT IS APPARENT FROM THE STATEMENTS OF THE CONTRACTING OFFICER THAT THE BIDS WERE EVALUATED ON THE BASIS OF THE ESSENTIAL CHARACTERISTICS STATED IN THE DESCRIPTION OF EACH ITEM AND THE INCLUSION OF A SPECIFIED BRAND NAME FOR EACH ITEM WAS UNNECESSARY. FUTURE PROCUREMENTS OF THIS TYPE WHERE USE OF A BRAND NAME OR EQUAL IN AN INVITATION MAY POSSIBLY BE REGARDED AS RESTRICTIVE RATHER THAN DESCRIPTIVE BY SOME BIDDERS DESPITE THE DISCLAIMER IN THE INVITATION,THE USE OF SUCH PROVISION SHOULD BE AVOIDED IN ACCORDANCE WITH INSTRUCTIONS IN ASPR 1-1206 (B).

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