B-127356, MAR. 27, 1956

B-127356, MAR. 27, 1956

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO THE PROTEST OF C. ALLEN FULMER OF THE C. ALLEN FULMER COMPANY AGAINST THE AWARD OF A CONTRACT TO A HIGHER BIDDER FOR A QUANTITY OF HONING STONES COVERED BY INVITATION FOR BIDS NO. 383-335 56 OPENED SEPTEMBER 28, 1955, AT THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA.

IT APPEARS FROM THE INVITATION FOR BIDS THAT BIDS WERE REQUESTED ON FURNISHING HONING TOOL EQUIPMENT TO BE EQUAL TO AND INTERCHANGEABLE WITH MICROMATIC HONE CORPORATION. IT WAS STATED IN REPORT DATED FEBRUARY 27, 1956, FROM REAR ADMIRAL SWART TO SENATOR SPARKMAN THAT THIS REPRESENTED A STANDARD ITEM DESCRIPTION OF HONING STONES WHICH WAS READILY IDENTIFIABLE THROUGH COMMERCIAL CATALOGS AND IS RECOGNIZED THROUGHOUT THE HONING TOOL INDUSTRY AND THAT IT WAS BELIEVED THAT THE ADVERTISED DESCRIPTION OF THE STONES BY THE GOVERNMENT WAS SUFFICIENT TO ENABLE BIDDERS TO SUBMIT BIDS WITHOUT ANY NEED ON THE GOVERNMENT'S PART TO FURNISH DISPLAY SAMPLES FOR USE BY PROSPECTIVE BIDDERS.

IT IS RECOGNIZED THAT IN CERTAIN CASES DIFFICULTIES MAY BE EXPERIENCED IN DESCRIBING WHAT IS DESIRED IN INVITATIONS FOR BIDS AND THAT IN SUCH CASES THE NAME OF THE MAKE OF THE ITEM IN AN INVITATION TO BID FOLLOWED BY QUALIFYING WORDS SUCH AS "OR EQUAL" OR "SIMILAR AND EQUAL" IS FREQUENTLY USED IN GOVERNMENTAL PRACTICE. IT HAS BEEN HELD IN NUMEROUS DECISIONS OF OUR OFFICE, HOWEVER, THAT INVITATIONS FOR BIDS AND SPECIFICATIONS SHOULD, SO FAR AS POSSIBLE, REFLECT THE NEEDS OF THE GOVERNMENT FOR THE SERVICE TO BE PERFORMED, WITHOUT REFERENCE TO THE PRODUCT OF ANY PARTICULAR MANUFACTURER AND THAT THE NAMING OF A PARTICULAR MAKE OF ARTICLE EVEN WITH QUALIFYING WORDS SUCH AS ABOVE INDICATED SHOULD BE AVOIDED WHEN IT IS POSSIBLE TO DESCRIBE THE NEEDS OF THE GOVERNMENT IN SPECIFICATIONS WITH SUFFICIENT CLARITY TO APPRISE PROSPECTIVE BIDDERS OF WHAT IS REQUIRED.

IN THE PRESENT INSTANCE, IT IS UNDERSTOOD FROM INFORMATION RECEIVED INFORMALLY FROM YOUR DEPARTMENT THAT THE LOWEST RESPONSIVE BIDDER DID NOT OFFER MICROMATIC EQUIPMENT BUT OFFERED EQUIPMENT CONSIDERED EQUAL TO THAT EQUIPMENT. IT IS UNDERSTOOD ALSO THAT A PURCHASE DESCRIPTION HAD NOT BEEN WRITTEN DESCRIBING THE GOVERNMENT'S NEEDS IN THIS MATTER AND THAT IT IS THE PRACTICE OF YOUR DEPARTMENT TO IDENTIFY ITEMS OF EQUIPMENT BY USING BRAND NAMES TOGETHER WITH THE WORDS "OR EQUAL" OR "SIMILAR AND EQUAL" IF A DESCRIPTION CAN NOT BE WRITTEN BECAUSE OF TECHNICALLY INVOLVED CONSTRUCTION OR OTHER SUFFICIENT REASONS. SEE NAVY PROCUREMENT DIRECTIVE 1-304A-3, WHICH ALSO PROVIDES THAT THE USE OF BRAND NAMES WITH THE WORDS "OR EQUAL" OR "SIMILAR OR EQUAL" IS AUTHORIZED AS AN EXPEDIENT ONLY AND THAT "REPEATED USE OF THIS PRACTICE FOR THE PURCHASE OF ANY ITEM INDICATES A NEED FOR A SPECIFICATION.' IT DOES NOT APPEAR THAT THE NEEDS OF THE GOVERNMENT IN THIS PROCUREMENT WERE DIFFICULT TO DESCRIBE. THEREFORE, THE QUESTION ARISES AS TO WHETHER THE GOVERNMENT'S REQUIREMENTS COULD NOT HAVE BEEN STATED IN SUFFICIENT DETAIL TO INFORM ALL PROSPECTIVE BIDDERS AS TO WHAT WAS NEEDED, WITHOUT REFERENCE TO A PARTICULAR MANUFACTURER'S PRODUCT. AS COMPETITION DOES NOT APPEAR TO HAVE BEEN UNNECESSARILY RESTRICTED, THE AWARD MADE IN THIS CASE WILL NOT BE QUESTIONED. IT IS SUGGESTED HOWEVER THAT ADMINISTRATIVE MEASURES BE TAKEN TO THE END THAT FUTURE INVITATIONS ISSUED BY YOUR DEPARTMENT AVOID REFERENCE TO A PARTICULAR MAKE OF EQUIPMENT WHEN THE FACTS DO NOT JUSTIFY SUCH A PROCEDURE AND THAT THE PRACTICE BE AVOIDED WHENEVER IT IS POSSIBLE TO DO SO. ..END :