B-149665, OCT. 29, 1962

B-149665, OCT. 29, 1962

TO G. H. TENNANT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 8, 1962, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. ATF 66391-A ISSUED BY THE FEDERAL SUPPLY SERVICE, REGION 4, ATLANTA, GEORGIA, ON JULY 18, 1962.

INVITATION NO. ATF-66391 ISSUED ON JUNE 13, 1962, SOLICITED BIDS--- TO BE OPENED JUNE 20, 1962--- FOR FURNISHING ONE TENNANT MODEL 85 POWER SWEEPER (18 HP., GASOLINE) OR EQUAL. THREE BIDS WERE RECEIVED, BEING IN THE AMOUNTS OF $2,623, $2,933.68 AND $3,191,74. THE LOW BID WAS SUBMITTED BY WAYNE MANUFACTURING CO. WHICH OFFERED ITS MODEL 1044. THAT MODEL DID NOT APPEAR TO MEET THE BRAND NAME SPECIFICATIONS SINCE THE ENGINE IN THIS MODEL WAS ONLY 13.6 HP. HOWEVER, AFTER OPENING OF BIDS AND BEFORE ANY AWARD WAS MADE WAYNE PROTESTED AGAINST THE PROPRIETARY NATURE OF THE PROCUREMENT AND POINTED OUT THAT IT WAS CUSTOMARY FOR GENERAL SERVICES ADMINISTRATION TO PURCHASE SWEEPERS BY USING INTERIM FEDERAL SPECIFICATION 00-S-00870A/GSA-FSS) AND THAT IT HAD FURNISHED NUMEROUS SWEEPERS, INCLUDING ITS MODEL 1044, AGAINST THIS INTERIM SPECIFICATION. ALSO, WAYNE CONTENDED THAT ITS MODEL 1044 SWEEPER WAS THE EQUAL OF YOUR MODEL 85 AND WOULD PERFORM ALL THE WORK THAT MIGHT BE REQUIRED OF A MACHINE OF THIS TYPE. THE CONTRACTING OFFICER THEN REJECTED ALL BIDS AND READVERTISED THE REQUIREMENT USING THE CITED INTERIM FEDERAL SPECIFICATION AND CALLING FOR SIZE 48 (48 INCH BRUSH) AND AN ENGINE WITH A MINIMUM OF 14 HP. TWO BIDS WERE RECEIVED IN RESPONSE TO THE NEW INVITATION NUMBERED ATF-66391-A AND ISSUED JULY 18, 1962. THE SWEEPER OFFERED BY THE LOW BIDDER WAS NOT CONSIDERED AS MEETING SPECIFICATIONS. THE OTHER BIDDER (WAYNE) OFFERED ITS MODEL 1054 FOR $3,145 AND WAS AWARDED THE CONTRACT. YOU DID NOT SUBMIT A BID IN RESPONSE TO THE READVERTISEMENT BUT ADDRESSED A LETTER ON JULY 25, 1962, TO THE CONTRACTING OFFICE IN WHICH YOU PROTESTED THE ACTION TAKEN IN REJECTING ALL BIDS UNDER THE FIRST INVITATION AND READVERTISING THE REQUIREMENT. YOUR PROTEST WAS DENIED ON AUGUST 1, 1962, AND AWARD WAS MADE TO WAYNE ON AUGUST 2, 1962.

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. 38 COMP. GEN. 71, 75. THE USE OF "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS FOR PROCUREMENT PURPOSES HAS BEEN LIMITED BY SECTION 1-1.307-5 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). THE USE OF SUCH DESCRIPTIONS IN LIEU OF GOVERNMENT SPECIFICATIONS IS AUTHORIZED, INSOFAR AS HERE MATERIAL, WHEN (1) A SUITABLE GOVERNMENT SPECIFICATION OR STANDARD OR INDUSTRY STANDARDIZATION DOCUMENT APPROVED FOR AGENCY USE IS NOT AVAILABLE AND A WIDELY REORGANIZED COMMERCIAL DESCRIPTION ADOPTED BY TECHNICAL SOCIETIES OR STATE AND LOCAL GOVERNMENTS IS INADEQUATE OR INSUFFICIENT, AND (2) A PURCHASE DESCRIPTION MEETING THE GENERAL REQUIREMENTS CANNOT BE PREPARED FOR REASONS AS OUTLINED THEREIN. THUS, THE ACTION TAKEN BY THE CONTRACTING OFFICE UPON THE PROTEST BY WAYNE THAT INTERIM FEDERAL SPECIFICATIONS SHOULD HAVE BEEN USED IN THE FIRST INVITATION IN LIEU OF A DESCRIPTION BY BRAND NAME OR EQUAL (YOUR MODEL 85 SWEEPER) WAS PROPER SINCE THERE IS NO SHOWING THAT APPLICABLE FEDERAL SPECIFICATIONS WERE INADEQUATE.

IT IS YOUR CONTENTION THAT THE USE OF THE INTERIM FEDERAL SPECIFICATION ON THE READVERTISEMENT ELIMINATED YOU FROM BIDDING AND ELIMINATED COMPETITION BECAUSE THE SIZE 48 (48-INCH BROOM) SWEEPER SPECIFIED IS PRODUCED ONLY BY ONE FIRM, NAMELY, WAYNE. YOU SUGGEST THAT, IF AS INDICATED, THE CONTRACTING OFFICE WAS DESIROUS OF GETTING A 14-HP. ENGINE IT DID NOT HAVE TO SPECIFY A "SIZE 48" BUT THEY COULD HAVE DESIGNATED SIZE 42 UNDER THE SPECIFICATIONS AND MODIFIED THE SPECIFICATIONS BY REQUIRING AN ENGINE OF NOT LESS THAN 14 HP. IN THIS MANNER YOU COULD HAVE OFFERED YOUR MODEL 85 WHICH HAS A 42-INCH BROOM AND AN 18-HP. ENGINE.

PARAGRAPH 1.2.1 OF INTERIM FEDERAL SPECIFICATION OO-S-00870A/GSA FSS) ISSUED JULY 1, 1957, COVERING SELF-PROPELLED ROTARY SWEEPERS, PROVIDES, AMONG OTHER THINGS, AS FOLLOWS:

"1.2.1 TYPES, CLASSES, AND SIZES.--- THE ROTARY SWEEPERS COVERED BY THIS SPECIFICATION SHALL BE OF THE FOLLOWING TYPES, CLASSES, AND SIZES AS SPECIFIED (SEE 6.2):

TABLE

TYPE I.--- GASOLINE-ENGINE DRIVEN, RIDER TYPE.

SIZE 24.--- MAIN BRUSH SWEEPING SWATH 24-INCHES MINIMUM.

SIZE 28.--- MAIN BRUSH SWEEPING SWATH 28-INCHES MINIMUM.

SIZE 36.--- MAIN BRUSH SWEEPING SWATH 36-INCHES MINIMUM.

SIZE 42.--- MAIN BRUSH SWEEPING SWATH 42-INCHES MINIMUM.

SIZE 48.--- MAIN BRUSH SWEEPING SWATH 48-INCHES MINIMUM.'

THE REQUIREMENTS OF SIZE 42 AND SIZE 48 SWEEPERS ARE SET OUT IN PARAGRAPHS 3.2.4 AND 3.2.5 AND ARE AS FOLLOWS:

"3.2.4 SIZE 42.--- THE MAIN BROOM OF SIZE 42 SWEEPER SHALL SWEEP A 42- INCH MINIMUM SWATH. THE EFFECTIVE CAPACITY OF THE DIRT HOPPER SHALL NOT BE LESS THAN 12 CUBIC FEET. THE SWEEPER SHALL BE POWERED BY AN ENGINE OF NOT LESS THAN 8 HORSEPOWER. THE SWEEPER SHALL BE CAPABLE OF SWEEPING AND CLEANING NOT LESS THAN 60,000 SQUARE FEET PER HOUR ON A SMOOTH SURFACE. THE SWEEPER SHALL MEET THE PERFORMANCE TEST IN SECTION 4.

"3.2.5 SIZE 48.--- THE MAIN BROOM OF SIZE 48 SWEEPER SHALL SWEEP A 48- INCH MINIMUM SWATH. THE EFFECTIVE CAPACITY OF THE DIRT HOPPER SHALL NOT BE LESS THAN 15 CUBIC FEET. THE SWEEPER SHALL BE POWERED BY AN ENGINE OF NOT LESS THAN 14 HORSEPOWER. THE SWEEPER SHALL BE CAPABLE OF SWEEPING AND CLEANING NOT LESS THAN 100,000 SQUARE FEET PER HOUR ON A SMOOTH SURFACE. THE SWEEPER SHALL MEET THE PERFORMANCE TEST IN SECTION 4.'

WITH REGARD TO YOUR CONTENTION THAT THE DESIGNATION OF SIZE 48 SWEEPER AS THE ONE TO BE FURNISHED ELIMINATED COMPETITION SINCE WAYNE WAS THE ONLY FIRM THAT PRODUCED THAT SIZE, THE ADMINISTRATIVE OFFICE REPORTS THAT IN ADDITION TO WAYNE ANOTHER FIRM MANUFACTURES A 54-INCH ROTARY, SELF- PROPELLED SWEEPER WHICH MEETS THE REQUIREMENT FOR SIZE 48 SWEEPER WITH A 48-INCH MINIMUM MAIN BRUSH SWEEPING SWATH. YOU CONTEND THAT IF THE MAJOR CRITERION IN SELECTION OF A SWEEPER IS THE HORSEPOWER RATING OF THE ENGINE AS YOU WERE LED TO BELIEVE, THEN THE SPECIFICATION SHOULD IN EFFECT HAVE BEEN MODIFIED TO ALLOW YOU TO SUBMIT A BID ON YOUR SIZE 42 SWEEPER WHICH IS EQUIPPED WITH AN 18-HP. ENGINE. THERE IS, OF COURSE, NO QUESTION BUT THAT UNDER THE FEDERAL PROCUREMENT REGULATIONS EXCEPTIONS TO THE SPECIFICATIONS MAY BE MADE UNDER A PARTICULAR PROCUREMENT WHEN THERE IS A COMPELLING REASON TO DO SO AND THE EXCEPTIONS ARE EFFECTED IN ACCORDANCE WITH THE PROVISIONS OF THE FPR. IN THIS CONNECTION THE ADMINISTRATIVE OFFICE REPORTS THAT "THE TENNANT MACHINE DID NOT, IN FACT, MEET OTHER MAJOR SPECIFICATION REQUIREMENTS, SO ANY BID THAT COMPANY MADE WOULD NOT HAVE BEEN CONSIDERED.'

IT MUST BE REMEMBERED THAT WHEN THE CONTRACTING OFFICE ASCERTAINED THAT THERE WERE FEDERAL SPECIFICATIONS APPLICABLE TO THIS PROCUREMENT IT IMMEDIATELY SELECTED THE SIZE 48 SWEEPER DESCRIBED IN THE SPECIFICATION AS MEETING THE NEEDS OF THE GOVERNMENT. IT MAY BE THAT THE HORSEPOWER RATING OF THE ENGINE WAS REGARDED AS AN IMPORTANT FACTOR IN THE SELECTION BECAUSE OF THE USE OF THE SWEEPER ON RAMPS OR INCLINED SURFACES AND THAT THE WIDTH OF THE SWEEPING BRUSH WAS SECONDARY FACTOR, BUT THAT FACTOR ALONE MIGHT NOT BE SUFFICIENT JUSTIFICATION FOR THE CONTRACTING OFFICER TO REQUEST AN EXCEPTION TO THE FEDERAL SPECIFICATIONS WHEN ADVERTISING THE PROCUREMENT. ALSO, IT IS NOTED FROM THE RECORD BEFORE OUR OFFICE THAT ONE FIRM MANUFACTURES A SIZE 36 SWEEPER WITH AN 18-HP. ENGINE WHICH MIGHT BE REGARDED AS WARRANTING A FURTHER EXCEPTION IN THE SIZE REQUIREMENT. HOWEVER, SUCH ACTION MIGHT RESULT IN A POSSIBLE CHARGE OF FAVORITISM AND THIS WAS ONE OF THE CONSIDERATIONS WHICH PROMPTED THE ADOPTION OF FEDERAL SPECIFICATIONS. THE QUESTION AS TO WHETHER SUCH SPECIFICATIONS ARE UNDULY RESTRICTIVE AND DO NOT AFFORD PROPER COMPETITION IS A MATTER WHICH SHOULD ORDINARILY BE FOR CONSIDERATION BY THE HEAD OF THE AGENCY OR PERSONS TO WHOM THE TASK OF WRITING AND REVISING SPECIFICATIONS HAS BEEN ASSIGNED RATHER THAN FOR CONSIDERATION BY A CONTRACTING OFFICER.

WE FIND NO PROPER BASIS FOR CONCLUDING THAT THE AWARD TO WAYNE WAS IMPROPER.