B-145373, MAY 9, 1961

B-145373, MAY 9, 1961

TO SHANNON LUMINOUS MATERIALS CO.:

BY LETTER DATED MARCH 14, 1961, WITH ENCLOSURE, YOU REQUESTED THAT WE ADVISE YOU WHETHER THERE ARE ANY ADDITIONAL STEPS THAT COULD BE UNDERTAKEN TO INSURE A FAIR EVALUATION OF YOUR PRODUCTS BY THE DENVER REGIONAL OFFICE, GENERAL SERVICES ADMINISTRATION.

YOUR INQUIRY ARISES OUT OF A PROTEST MADE TO THE PROCUREMENT OFFICE AGAINST THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 9369, ISSUED ON JANUARY 20, 1961, FOR ,CLEANING COMPOUND, LINOLEUM: * * * GENERAL FIREPROOFING VELVOLEUM CLEANER NO. 50 OR EQUAL," AND FOR "PROTECTIVE COATING, LINOLEUM: * * * GENERAL FIREPROOFING VELVOLEUM NO. 100 G-F OR EQUAL.' THE INVITATION CONTAINED THE STANDARD BRAND NAME OR EQUAL CLAUSE PRESCRIBED BY SECTION 1-1.307 6 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), AND A CLAUSE REQUIRING THE SUBMISSION OF SAMPLES PRIOR TO THE OPENING OF BIDS FOR THE PURPOSE OF ESTABLISHING WHETHER THE ITEMS OFFERED MEET THE NEEDS OF THE GOVERNMENT AND WHETHER THE ITEMS COMPLY WITH THE SPECIFICATIONS.

YOU FURNISHED SAMPLES FOR BID EVALUATION PURPOSES. WE HAVE REVIEWED THE FILE PERTAINING TO THIS PROCUREMENT AND WE MUST CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED ON THE BASIS OF A TEST REPORT MADE OF YOUR PRODUCTS BY QUALIFIED PERSONNEL WHEREIN IT WAS CONCLUDED, FOR SUFFICIENT REASONS, THAT YOUR PRODUCTS FAILED TO EQUAL THE BRAND NAME PRODUCTS.

THE DRAFTING OF PROPER SPECIFICATIONS, INCLUDING THE USE OF BRAND NAME OR EQUAL DESCRIPTIONS, TO MEET THE REQUIREMENTS OF THE ORDERING AGENCY AND THE FACTUAL DETERMINATION AS TO WHETHER A GIVEN PRODUCT CONFORMS TO THOSE SPECIFICATIONS ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY CONCERNED. 17 COMP. GEN. 554. THE RECORD REASONABLY ESTABLISHES THAT THE CHARACTERISTICS OF YOUR PRODUCTS DIFFERED IN A DEMONSTRABLE MANNER FROM THE GOVERNMENT'S REQUIREMENTS AND FROM THE BRANDS NAMED. UNDER THESE CIRCUMSTANCES, WE SEE NO BASIS TO QUESTION THE DETERMINATION MADE. HOWEVER, AS TO WHETHER DESIRED PERFORMANCE STANDARDS MAY BE EMPLOYED WITHOUT REFERENCE TO A STANDARD PRODUCT IN PROCURING THE PRODUCTS INVOLVED, OR WHETHER DIFFERENT EVALUATION METHODS MAY BE EMPLOYED TO DETERMINE THE ACCEPTABILITY OF YOUR PRODUCTS, WE MUST ADVISE THAT THIS AGAIN IS A FACTUAL MATTER PROPERLY FOR CONSIDERATION BY THE GENERAL SERVICES ADMINISTRATION. IN THAT CONNECTION, AS YOU ARE AWARE, THE GENERAL SERVICES ADMINISTRATION IS REVIEWING THIS MATTER WITH THE VIEW TO DRAFTING TECHNICAL SPECIFICATIONS FOR THE PRODUCTS HERE INVOLVED SO AS TO AVOID THE NECESSITY OF FUTURE BRAND NAME OR EQUAL PROCUREMENTS.