B-164222, AUG. 26, 1968

B-164222, AUG. 26, 1968

TO FISHER BERKELEY CORPORATION:

WE REFER TO YOUR LETTER OF APRIL 30, 1968, PROTESTING AGAINST AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. DADA03-68-B-1715, WHICH WAS ISSUED BY FITZSIMONS GENERAL HOSPITAL, DENVER, COLORADO, IN PROCURING AN AUTOMATIC NURSES CALL SYSTEM.

YOUR FIRST CONTENTION IS THAT FROM ALL INFORMATION YOU HAVE BEEN ABLE TO OBTAIN, YOU BELIEVE THE SPECIFICATIONS ARE PROPRIETARY AND RESTRICTIVE AND MAKE IT POSSIBLE FOR ONLY ONE SUPPLIER TO BID. ASIDE FROM THE ALLEGATION THAT YOU BELIEVE ONLY ONE SUPPLIER CAN MEET THE SPECIFICATIONS, YOU DO NOT PRESENT ANY INFORMATION AS TO WHY YOU CONSIDER THE INVITATION RESTRICTIVE, OR WHAT ELEMENT OR ELEMENTS IN THE INVITATION MAKE THEM SO.

THE RECORD DISCLOSES THAT TWO PRIOR INVITATIONS FOR THIS PROCUREMENT WERE CANCELLED IN ORDER TO ELIMINATE SPECIFICATION FEATURES WHICH MIGHT LIMIT PROCUREMENT TO ONE MANUFACTURER. THE REVISED SPECIFICATIONS IN THEIR PRESENT FORM WERE EVALUATED BY THE TECHNICAL ADVISOR, COMBINED MAINTENANCE BRANCH, WALTER REED ARMY MEDICAL CENTER,WHO CONCLUDED THAT THE STANDARD DESIGNS OF SEVERAL MANUFACTURERS WOULD MEET THE SPECIFICATIONS. THIS CONCLUSION IS CONFIRMED BY THE RECEIPT OF FOUR RESPONSIVE BIDS, QUOTING ON THREE MANUFACTURERS' SYSTEMS, AS FOLLOWS: NAME OF BIDDER NAME OF MANUFACTURER PRICE -------------- -------------------- ----- ETS-HOKIN CORP. DUKANE $172,184.00 AUDIO EQUIPMENT CO. STANDARD ELECTRIC 204,840.00 RELIABLE ELECTRIC CO. DUKANE 164,710.00 MOTOROLA COMMUNICATIONS

AND ELECTRONICS, INC. MOTOROLA 157,421.00 CONCERNING THE NUMBER OF BIDDERS REQUIRED TO REFUTE A CHARGE OF RESTRICTIVE SPECIFICATIONS, OUR DECISION OF AUGUST 7, 1967, B-161654, STATED: "* * * THUS, SINCE IT IS REPORTED THAT AT LEAST TWO QUALIFIED REPROCESSORS OF MOS2 POWDER ARE IN A POSITION TO FURNISH MATERIAL COMPLYING WITH THE SPECIFICATIONS WE ARE OF THE VIEW THAT THE SPECIFICATIONS ARE NOT UNDULY RESTRICTIVE IN THAT IT APPEARS THEY WERE DESIGNED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT.'

IT IS THE POSITION OF THE PROCURING AGENCY IN THE INSTANT CASE THAT ITS NEED IS FOR A MODERN AUTOMATIC NURSES CALL SYSTEM, AND THAT THE LIFETIME OF NURSES CALL SYSTEMS (FIFTEEN TO TWENTY YEARS) MAKES IT ECONOMICALLY INFEASIBLE TO INCLUDE ALL SYSTEMS ON THE MARKET REGARDLESS OF THE STATE OF THE ART AND THE PERFORMANCE OF SOME OF SUCH SYSTEMS. IN VIEW THEREOF, IT WOULD APPEAR THAT THE SPECIFICATIONS ARE DESIGNED TO MEET THE AGENCY'S ACTUAL NEEDS, AND SINCE THE BIDS RECEIVED INDICATE THAT AT LEAST THREE MANUFACTURERS ARE ABLE TO MEET THE SPECIFICATION REQUIREMENTS, WE CANNOT CONCLUDE THAT THE SPECIFICATIONS UNDULY RESTRICTED COMPETITION.

YOUR SECOND CONTENTION IS THAT THE AUTOMATIC NURSES CALL SYSTEM SHOULD BE PROCURED BY NEGOTIATION, SINCE THAT METHOD WOULD RESULT IN A SUBSTANTIAL SAVING TO THE GOVERNMENT. WHILE THIS CONCLUSION MIGHT BE PROPER IF THE SPECIFICATIONS HAD IN FACT PRECLUDED ALL BUT ONE BIDDER FROM COMPLYING, THE FACT THAT FOUR RESPONSIVE BIDS WERE RECEIVED, TWO OF WHICH WERE SUBSTANTIALLY BELOW THE GOVERNMENT ESTIMATE OF $171,000, WOULD APPEAR TO INDICATE THAT FAIR AND REASONABLE PRICES WERE BID. UNDER THE CIRCUMSTANCES, AND SINCE THE PROVISIONS OF 10 U.S.C. 2304 (A) REQUIRE USE OF FORMAL ADVERTISING WHEN FEASIBLE, WE MUST CONCLUDE THAT ITS USE HERE WAS PROPER.

LASTLY, YOU SET FORTH YOUR STANDARD FOR SUCCESSFUL PROCUREMENT BY STATING: "WE BELIEVE THAT THE BEST INTERESTS OF THE GOVERNMENT AND USING AUTHORITY CAN BE SERVED BY A SPECIFICATION WHICH AT LEAST THREE MANUFACTURERS REGULARLY IN THE BUSINESS OF MAKING THIS TYPE OF EQUIPMENT CAN MEET WITH THEIR STANDARD PRODUCTS.'

SINCE THREE MANUFACTURERS, NAMELY MOTOROLA, DUKANE AND STANDARD ELECTRIC, APPEAR TO HAVE BEEN ABLE TO MEET THE SPECIFICATIONS WITHOUT EXCEPTION, IT WOULD ALSO APPEAR THAT THE SPECIFICATIONS MEET THE CRITERIA YOU HAVE ADVANCED.