B-153404, JUL. 23, 1964

B-153404, JUL. 23, 1964

TO THE SECRETARY OF THE NAVY:

WE ARE ENCLOSING A COPY OF OUR LETTER OF TODAY TO CHAMPION MACHINERY COMPANY RELATIVE TO ITS PROTEST AGAINST THE ACTION OF THE BOSTON NAVAL SHIPYARD IN AWARDING A CONTRACT TO HOBART MANUFACTURING COMPANY FOR A FLOOR-TYPE FOOD MIXING MACHINE UNDER IFB NO. 111-91-64, ISSUED OCTOBER 22, 1963. THIS MATTER WAS THE SUBJECT OF A REPORT FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, DATED MARCH 17, 1964, FILE R1.2.

WHILE IT IS OUR OPINION THAT IN THE LIGHT OF THE REPORTED FACTS AND CIRCUMSTANCES THE AWARD TO HOBART MANUFACTURING COMPANY SHOULD NOT BE DISTURBED, YOU MAY WISH TO CONSIDER THE ADVISABILITY OF REVIEWING PROCEDURES IN THE AREA WHICH GAVE RISE TO THIS PROTEST.

YOU WILL NOTE THAT ALTHOUGH THERE IS A FEDERAL SPECIFICATION OO-M-38B, FOR FOOD MIXING MACHINES, SUCH SPECIFICATION WAS NOT USED IN THE PROCUREMENT. INSTEAD, THE INVITATION SPECIFIED MODEL M-802, TALL COLUMN, AS MANUFACTURED BY THE HOBART MANUFACTURING COMPANY, OR EQUAL, WHICH MACHINE WAS PURCHASED FROM THE MANUFACTURER AT A PRICE CONSIDERABLY HIGHER THAN THAT ASKED FOR THE CHAMPION MACHINERY COMPANY PRODUCT. WHILE THE CHAMPION MACHINERY COMPANY MACHINE APPARENTLY MET THE REQUIREMENTS OF FEDERAL SPECIFICATION 00-M-38B, IT WAS NOT CONSIDERED RESPONSIVE TO THE INVITATION INASMUCH AS IT DID NOT POSSESS THE PRESCRIBED TALL COLUMN FEATURE OF THE HOBART MODEL. IT IS REPORTED THAT THIS FEATURE WAS CONSIDERED ESSENTIAL BY THE REQUISITIONING ACTIVITY AS IT PERMITTED THE CHANGING OF MIXING BOWLS WITHOUT REMOVING THE BEATER, AND SINCE THE FEDERAL SPECIFICATION DID NOT CONTAIN THIS REQUIREMENT, THE CONTRACTING OFFICER DECIDED TO FORMALLY ADVERTISE THE REQUISITION USING A COMMERCIAL DESCRIPTION WITH THE STANDARD "BRAND NAME OR EQUAL" CLAUSE. IN DOING SO HE FAILED TO FOLLOW THE DIRECTION OF ASPR 1-1206.2 (B) THAT THE DESCRIPTION SHOULD SET FORTH THE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.

THE FILE DOES NOT INDICATE THAT A REVIEW WAS MADE OF THE PROPOSED DEVIATION FROM THE FEDERAL SPECIFICATION PRIOR TO ISSUANCE OF THE INVITATION FOR BIDS. SUCH PROCEDURE DOES NOT APPEAR TO FULLY CORRESPOND WITH THE INTENT OF DEPARTMENT OF DEFENSE DIRECTIVE 4120.3, REFERRED TO IN OUR ENCLOSED LETTER TO CHAMPION MACHINERY COMPANY, WHICH PROVIDES IN PARAGRAPH VII (D) 2 (B) THAT THE MILITARY DEPARTMENTS SHALL ESTABLISH PROCEDURES TO ASSURE THAT JUSTIFICATION FOR DEVIATIONS FROM FEDERAL SPECIFICATIONS ARE SUBJECTED TO COMPETENT REVIEW "BEFORE AUTHORIZATION.' WE ARE INCLINED TO THE VIEW THAT THE PROMULGATION OF A FEDERAL OR MILITARY SPECIFICATION IS TO BE CONSIDERED AS A DELIBERATE AND CONSIDERED DETERMINATION THAT ARTICLES CONFORMING THERETO WILL ADEQUATELY SERVE THE NEEDS OF ALL DEPARTMENTS AND AGENCIES CONCERNED. THE FAILURE TO USE EXISTING SPECIFICATIONS IN PROCUREMENTS AND IMPOSITION OF NEW OR ADDITIONAL FEATURES AND REQUIREMENTS NOT CONTAINED THEREIN IS THEREFORE ESPECIALLY SUSCEPTIBLE TO QUESTION BY POTENTIAL SUPPLIERS AS AN EFFORT EITHER TO PROCURE ARTICLES IN EXCESS OF WHAT IS NECESSARY TO MEET THE GOVERNMENT'S NEEDS, OR TO RESTRICT COMPETITION FOR THE BENEFIT OF ONE, OR TO THE DETRIMENT OF ANOTHER, PROSPECTIVE SUPPLIER. WE THEREFORE BELIEVE THAT DEVIATIONS FROM OR THE NON-USE OF AN APPLICABLE FEDERAL OR MILITARY SPECIFICATION SHOULD BE AUTHORIZED ONLY UPON A CONVINCING SHOWING OF COMPELLING NEEDS. SEE IN THIS CONNECTION OUR DECISION OF APRIL 10, 1964, B-152861, AND FORWARDING LETTER OF THAT DATE TO THE SECRETARY OF ARMY, COPIES ATTACHED.

THE ESTABLISHMENT OF A UNIFORM STANDARDIZATION AND CATALOGING SYSTEM FOR PROCUREMENT BY BOTH MILITARY AND CIVILIAN AGENCIES OF THE GOVERNMENT HAS BEEN AN OBJECTIVE PURSUED CONSISTENTLY BY THE CONGRESS FOR MANY YEARS, FOSTERED ALSO BY RECOMMENDATIONS OF THE HOOVER COMMISSION ON REORGANIZATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND BY SEVERAL PRESIDENTIAL DIRECTIVES. LEGISLATIVE INTEREST IN THE PROGRAM CULMINATED IN THE ENACTMENT OF THE DEFENSE CATALOGING AND STANDARDIZATION ACT OF JULY 1, 1952, P.L. 436, 82D CONGRESS, NOW EMBODIED IN SECTIONS 2451-2456 OF TITLE 10, U.S.C. WHILE THE AGENCY CREATED BY THAT ACT TO CARRY OUT ITS PROVISIONS WAS ABOLISHED BY REORGANIZATION PLAN NO. 6 OF 1953, 67 STAT. 638, ALL THE FUNCTIONS OF THE AGENCY WERE THEREBY TRANSFERRED TO THE SECRETARY OF DEFENSE, WHO REMAINS RESPONSIBLE FOR ITS EFFECTIVE IMPLEMENTATION AND OBSERVANCE.

SECTION 4 (B) OF THE ACT, NOW 10 U.S.C. 2451 (C), REQUIRES THAT THE SECRETARY SHALL, TO THE HIGHEST DEGREE PRACTICABLE, STANDARDIZE ITEMS USED THROUGHOUT THE DEPARTMENT OF DEFENSE BY DEVELOPING AND USING SINGLE SPECIFICATIONS, ELIMINATING OVERLAPPING AND DUPLICATE SPECIFICATIONS, AND REDUCING THE NUMBER OF SIZES AND KINDS OF ITEMS THAT ARE GENERALLY SIMILAR. IN CONFORMITY TO THE POLICY THERE STATED, THE SECRETARY HAS IN ASPR 1-1201 (A) DIRECTED THAT "* * * SPECIFICATIONS OR PURCHASE DESCRIPTIONS FOR PROCUREMENTS SHALL STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND DESCRIBE THE SUPPLIES AND SERVICES IN A MANNER WHICH WILL ENCOURAGE MAXIMUM COMPETITION AND ELIMINATE, INSOFAR AS IS POSSIBLE, ANY RESTRICTIVE FEATURES WHICH MIGHT LIMIT ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCT, OR THE PRODUCTS OF A RELATIVELY FEW SUPPLIERS. * * "

IN THE LIGHT OF THE POLICY EXPRESSED BOTH IN THE STATUTE AND IN THE REGULATIONS, WE BELIEVE THAT EVERY DEVIATION FROM OR EXCEPTION TO A PRESCRIBED STANDARDIZED SPECIFICATION TENDS TO WEAKEN THE STANDARDIZATION PROGRAM AND DEFEAT ITS OBJECTIVES. FOR THESE REASONS WE RECOMMEND THAT THE PROCEDURES OF YOUR DEPARTMENT FOR IMPLEMENTATION OF THE PROVISIONS REFERRED TO SHOULD BE REVIEWED AND STRENGTHENED TO PREVENT TOO EASY APPROVAL OF ANY DEVIATION FROM STANDARDIZED SPECIFICATIONS WHICH A REQUISITIONING ACTIVITY MAY DESIRE.

SINCE THE RECEIPT OF THE REPORT OF THE ASSISTANT CHIEF FOR PURCHASING, WE HAVE RECEIVED A FURTHER COMPLAINT FROM THE CHAMPION MACHINERY COMPANY, ENCLOSING A COPY OF ITS LETTER DATED MAY 1, 1964, TO THE SUPPLY OFFICER, NAVAL AIR STATION, PENSACOLA, FLORIDA, WITH REFERENCE TO IFB NO. 204-62-64 ISSUED BY THAT INSTALLATION. IT APPEARS FROM THIS THAT THE INVITATION EFFECTIVELY RESTRICTED THE PROCUREMENT TO THE HOBART "TALL COLUMN" MIXER BY ADDING TO THE FEDERAL SPECIFICATION (00-M-38B AND AMENDMENT NO. 1) THE ADDITIONAL REQUIREMENT THAT BOWLS WITH CONTENTS SHALL BE REMOVABLE WITHOUT REMOVAL OF THE AGITATOR. IT IS ALSO POINTED OUT THAT AN INTERIM FEDERAL SPECIFICATION NO. 00-M-0038C WAS ISSUED MARCH 2, 1964, WHICH WOULD PERMIT THE ADDITION OF A REQUIREMENT FOR AN AUTOMATIC POWER LIFT, AND ALSO FOR A TIMER. IT DOES NOT APPEAR, HOWEVER, THAT ANY PROVISION IS MADE FOR SUCH A REQUIREMENT AS WAS INCLUDED IN THE INVITATION REFERRED TO.

IN VIEW OF THE RECENT DATE OF THE REVISED INTERIM SPECIFICATION REFERRED TO, AND OF THE FACT THAT THE PROCUREMENT WHICH IS THE SUBJECT OF THIS PROTEST WAS INSTITUTED IN OCTOBER 1963, IT MUST BE ASSUMED EITHER THAT THE AGENCY WHICH ISSUED THE SPECIFICATION CONSIDERED THE FEATURE OF THE HOBART TALL COLUMN MIXER WHICH IS BEING REQUIRED BY THE NAVY INSTALLATIONS REFERRED TO AND REFUSED TO INCLUDE IT AS EITHER A MANDATORY OR OPTIONAL REQUIREMENT, OR THAT THE DIRECTIVE CONTAINED IN ASPR 1-1202 (D) WAS NOT COMPLIED WITH, OR THAT THE COORDINATION OF STANDARDIZATION ACTIVITIES BETWEEN THE GENERAL SERVICES ADMINISTRATION AND THE DEPARTMENT OF DEFENSE REQUIRED BY 10 U.S.C. 2456 IS DEFECTIVE. IN ANY EVENT, AS WE READ THE PROVISIONS OF ASPR 1-1202, THERE APPEARS TO BE NO JUSTIFICATION FOR CONTINUED FAILURE TO USE EITHER THE BASIC FEDERAL SPECIFICATION OR THE LATEST INTERIM REVISION THEREOF.

WE ARE FORWARDING A COPY OF THIS LETTER TO THE SECRETARY OF DEFENSE FOR CONSIDERATION BY HIM OF FURTHER REGULATORY CLARIFICATION AND STRENGTHENING OF THE PERTINENT PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION.

THE BIDS OF CHAMPION MACHINERY COMPANY AND HOBART MANUFACTURING COMPANY, TOGETHER WITH MILITARY SPECIFICATION MIL-M-18900C (SHIPS) AND FEDERAL SPECIFICATION 00-M-38B ARE RETURNED AS REQUESTED.