B-146097, SEP. 13, 1961

B-146097, SEP. 13, 1961

TO ALFRED KULGMANN, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 9, 1961, PROTESTING THE INCLUSION OF A CERTAIN REQUIREMENT IN INVITATION NO. 3 PI-5067, WHICH WAS ISSUED BY THE FEDERAL PRISON INDUSTRIES, INC., ON MAY 11, 1961, COVERING THE PROCUREMENT OF HOG BRISTLES FOR MANUFACTURING PAINT AND VARNISH BRUSHES. RECEIPT ALSO IS ACKNOWLEDGED OF A COPY OF YOUR LETTER DATED JUNE 28, 1961, TO THE FEDERAL PRISON INDUSTRIES, INC., IN REGARD TO THIS MATTER.

IT APPEARS THAT IN RESPONSE TO THE INVITATION YOU SUBMITTED A BID OFFERING TO FURNISH VARIOUS SIZES, TYPES, QUANTITIES, ETC., OF THE HOG BRISTLES SPECIFIED AT THE PRICES SET FORTH IN YOUR BID. UPON THE RECEIPT, OPENING AND EVALUATION OF ALL BIDS THAT WERE SUBMITTED, CERTAIN AWARDS WERE MADE BY THE FEDERAL PRISON INDUSTRIES, INC., ON THE BASIS OF THE LOWEST ACCEPTABLE BIDS FOR THE RESPECTIVE ITEMS REQUIRED. THE AWARD ACTION TAKEN AS WELL AS CERTAIN REQUIREMENTS SET FORTH IN THE INVITATION HAS PROMPTED YOUR PROTEST.

IN YOUR LETTERS DATED JUNE 9 AND JUNE 28, 1961, YOU OBJECT BASICALLY TO THAT PART OF THE INVITATION WHICH PROVIDES, IN EFFECT, THAT THE BRISTLES HAD TO BE DELIVERED IN THEIR PACKAGINGS OR WRAPPINGS AS RECEIVED FROM THE COUNTRY OF ORIGIN. YOU TAKE THE POSITION THAT THIS REQUIREMENT EXCLUDES BRISTLES WHICH ARE PROCESSED IN THIS COUNTRY BUT MAKES AVAILABLE FOR ACCEPTANCE THE SAME BRISTLES THAT ARE PROCESSED IN CERTAIN OTHER COUNTRIES. YOU CONTEND THAT THE QUESTION AS TO WHERE THE BRISTLES ARE PROCESSED SHOULD NOT BE A DETERMINING FACTOR.

SPECIFICALLY, THAT PART OF THE REQUIREMENTS TO WHICH YOU OBJECT WAS SET FORTH IN PARAGRAPH (2) UNDER "NOTE" OF THE INVITATION AND PROVIDED, IN PERTINENT PART, THAT:

"* * * BRISTLE OFFERED ARE TO BE ORIGINAL TYPE (NOT MIXED) IN THEIR PACKAGES OR WRAPPINGS AS RECEIVED FROM COUNTRY OF ORIGIN; AND * * *.'

REGARDING THE LANGUAGE USED IN THIS PART OF THE INVITATION, THE FEDERAL PRISON INDUSTRIES, NC., REPORTS THAT QUALITY IS IMPERATIVE IN THE MANUFACTURE OF BRUSHES THAT ARE BEING USED BY THE VARIOUS FEDERAL AGENCIES. THE INDUSTRIES REPORTS FURTHER THAT EFFORTS HAVE BEEN MADE TO USE SOME MIXED TYPE BRISTLES IN THE PAST BUT THAT SUCH EFFORTS HAVE BEEN UNSUCCESSFUL AND THAT SOME BRUSHES WHICH HAVE BEEN RETURNED AS UNSUITABLE UNDER INVITATIONS OF THIS KIND WERE FOUND UPON EXAMINATION TO BE MADE FROM MIXED RAW MATERIAL. THE FEDERAL PRISON INDUSTRIES, INC., STATES THAT LONG EXPERIENCE BY ITS FACTORY HAS PROVEN CONCLUSIVELY THAT WHEN WELL KNOWN ESTABLISHED BRANDS OF BRISTLES SHIPPED INTO THIS COUNTRY FROM ORIGINAL NATIVE SOURCES ARE MIXED WITH INFERIOR MATERIALS THE QUALITY IS SUBSTANTIALLY LESSENED. ON THIS BASIS, IT BECOMES OBVIOUS THAT THE INDUSTRIES INSERTED THIS PARTICULAR PROVISION IN THE INVITATION TO ASSURE, INSOFAR AS POSSIBLE, AGAINST ANY PROCESSING OF THE BRISTLES BY MIXING INFERIOR MATERIALS WITH WELL KNOWN ESTABLISHED BRANDS. IN FACT, FEDERAL PRISON INDUSTRIES, INC., HAS ADVANCED THE OPINION THAT THEY FEEL THAT IT WOULD NOT BE NECESSARY FOR ANY PROCESSING AT ALL TO TAKE PLACE IN THE UNITED STATES. WHILE THE USE IN THE INVITATION OF THE LANGUAGE IN QUESTION WOULD NOT NECESSARILY BE AN ABSOLUTE GUARANTEE OF THE DELIVERY OF THE QUALITY OF BRISTLES DESIRED, THERE CAN BE NO DOUBT THAT THE INDUSTRIES FELT SUCH A FORM OF ADVERTISING WOULD BE MORE LIKELY TO ACCOMPLISH THAT END RESULT. FURTHERMORE, WHILE SAMPLES WERE REQUIRED TO BE SUBMITTED WITH THE BIDS AND ANY CONTRACT AWARDED REQUIRED THAT THE BRISTLES DELIVERED MUST BE EQUAL IN ALL RESPECTS TO THE SAMPLE SUBMITTED, IT APPEARS THAT THE INDUSTRIES ALSO INCLUDED THE QUESTIONED PROVISION IN THE INVITATION FOR BIDS TO AVOID THE NECESSITY OF EXPENDING TIME AND MONEY IN MAKING DETAILED INSPECTIONS OF THE BRISTLES TO DETERMINE THAT THEY CONFORMED TO THE SAMPLES AND OTHERWISE MET THE SPECIFICATIONS. THUS, INSOFAR AS APPEARS FROM THE RECORD BEFORE US, SUCH LANGUAGE MAY NOT BE HELD TO HAVE RENDERED THE INVITATION UNDULY RESTRICTIVE. THERE APPEARS TO BE SIGNIFICANT THE FACT THAT 12 BIDS WERE RECEIVED IN RESPONSE TO INVITATION NO. 3-PI-5067, WHICH RESULTED IN AWARDS TO SIX DIFFERENT COMPANIES. IN THIS REGARD, IT IS ALSO NOTED THAT YOU ACTUALLY RECEIVED AN AWARD FOR TWO ITEMS OF KOREAN BOILED SOFT BRISTLES--- 100 POUNDS, TWO AND ONE-FOURTH INCH, AND 5 POUNDS OF FIVE-INCH LENGTHS.

IT IS, OF COURSE, NOT WITHIN THE PROVINCE OF OUR OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT OR TO FORMULATE BASES UPON WHICH BID PRICES PROPERLY WILL BE CONSIDERED AND EVALUATED UNDER GIVEN INVITATIONS. THESE MATTERS FALL SQUARELY WITHIN THE FUNCTIONS OF THE DEPARTMENTS AND AGENCIES CONCERNED AND WHEN A SPECIFICATION LENDS ITSELF TO OPEN COMPETITION, AS REQUIRED BY APPLICABLE STATUTES, AND IT IS SHOWN THAT THE GOVERNMENT'S INTERESTS ARE FULLY PROTECTED OUR OFFICE WILL NOT INTERVENE. IN THIS REGARD, WE FIND NO ABUSE OF THE AUTHORITY OF THE FEDERAL PRISON INDUSTRIES, INC., IN THE USE OF THE LANGUAGE SET FORTH IN PARAGRAPH (2) UNDER "NOTE" OF THE INVITATION.

ACCORDINGLY, WE MUST CONCLUDE THAT THE FORM IN WHICH INVITATION NO. 3-PI- 5067 WAS ISSUED AND THE AWARD ACTION TAKEN BY THE FEDERAL PRISON INDUSTRIES, INC., THEREUNDER, IS NOT SUBJECT TO LEGAL ..END :