B-161080, SEPTEMBER 20, 1967, 47 COMP. GEN. 175

B-161080, SEPTEMBER 20, 1967, 47 COMP. GEN. 175

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - "OR EQUAL" NOT SOLICITED THE REJECTION OF THE LOW BID TO FURNISH A CABLE IN ACCORDANCE WITH MILITARY SPECIFICATIONS THAT ARE BASED ON A SOLE SOURCE BRAND NAME CABLE BECAUSE THE OFFERED CABLE REQUIRED THE USE OF ADAPTERS AND CONNECTORS TO MAKE IT INTERCHANGEABLE WITH THE BRAND NAME CABLE IN USE, WHERE BIDDERS HAD NOT BEEN INFORMED OF THE INTERCHANGEABILITY REQUIREMENT AND THE REJECTED CABLE POSSESSED CHARACTERISTICS SIMILAR TO THE BRAND NAME AND WOULD PERFORM EQUALLY AS WELL, WAS ERRONEOUS AND RECOURSE SHOULD HAVE BEEN MADE TO A BRAND NAME "OR EQUAL" CLAUSE TO OVERCOME THE DIFFICULTIES IN DRAFTING DETAILED SPECIFICATIONS. THEREFORE, DUE TO THE FAILURE TO ADVISE BIDDERS OF THE NEED FOR THE INTERCHANGEABILITY OF CABLES OR THE LOGISTIC PROBLEM THAT WOULD RESULT FROM THE PROCUREMENT OF OTHER THAN THE BRAND NAME, THE ADVERTISED SPECIFICATIONS ARE INCONSISTENT WITH THE FULL AND FREE COMPETITION REQUIRED BY 10 U.S.C. 2305 (A) AND THE INVITATION SHOULD BE CANCELED.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 20, 1967:

REFERENCE IS MADE TO LETTERS, WITH ENCLOSURES, DATED MAY 3 AND JULY 14, 1967, FROM THE DIRECTOR OF PROCUREMENT AND PRODUCTION, UNITED STATES ARMY MATERIEL COMMAND, FURNISHING OUR OFFICE WITH REPORTS RELATIVE TO THE PROTEST OF THE ANDREW CORPORATION UNDER INVITATION FOR BIDS NO. DAAG05-67- B-0589, ISSUED BY THE UNITED STATES ARMY NORTHWEST PROCUREMENT AGENCY, MISSILE AND ELECTRONIC BRANCH, OAKLAND, CALIFORNIA.

THE INVITATION WAS ISSUED ON JANUARY 11, 1967, TO TWENTY-SIX POTENTIAL SUPPLIERS AND REQUESTED BIDS FOR FURNISHING AND COMMERCIALLY PACKAGING AND PACKING ITEM 1--101,000 FEET OF CABLE, DESCRIBED ON PAGE 10 OF THE SCHEDULE, AS FOLLOWS: "FSN: 6145-752-2490 CABLE, RADIO FREQUENCY, SEMI- RIGID: JETDS TYPE NO. RG-233/U, JACKETED, NOMINAL IMPEDANCE 50 OHMS, CLASS N, TYPE 1, SIZE 1-5/8 INCH IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-C -22931 REV. A WITH SUPPLEMENT 1A DATED 26 JUNE 1964 AND MIL-C-22931/3A DATED 27 MARCH 1964. PRON: C9-7-08146-01 C9-AI"

BIDDERS WERE FURTHER REQUESTED TO QUOTE A PRICE FOR ITEM 2, WHICH PROVIDES FOR SPECIAL MILITARY PACKAGING AND PACKING REQUIREMENTS. AWARD OF ITEM 2 WAS SUBJECT TO THE RIGHT RESERVED TO THE GOVERNMENT, IN ACCORDANCE WITH THE CLAUSE ENTITLED "OPTIONAL PACKAGING AND PACKING REQUIREMENTS," TO MAKE AWARD ON THE BASIS OF THE COMMERCIAL PACKAGING AND PACKING INCLUDED IN THE PRICE OF ITEM 1 IF DETERMINED UPON EVALUATION TO BE IN THE GOVERNMENT'S BEST INTEREST. THE DESIRED DELIVERY SCHEDULE WAS STATED TO BE 120 CALENDAR DAYS FROM RECEIPT OF A CONTRACT WITH A MAXIMUM ACCEPTABLE DELIVERY SCHEDULE OF 180 CALENDAR DAYS AFTER RECEIPT OF THE CONTRACT.

BY FEBRUARY 13, 1967, THE SCHEDULED OPENING DATE, THREE BIDS WERE RECEIVED, OPENED AT THE SPECIFIED TIME, AND RECORDED, AS FOLLOWS:

BIDDER ITEM NO. 1 ITEM NO. 2

ANDREW CORPORATION $1.42 PER FOOT $0.04 PER FOOT

($143,420) ($4,040)

(DELIVERY 100 DAYS)

PHELPS DODGE ELECTRONIC $1.70 PER FOOT $0.01 PER FOOT

PRODUCTS CORPORATION ($171,700) ($1,717)

(DELIVERY 180 DAYS)

PRODELIN, INC. $2.66 PER FOOT N/C

($268,660) (DELIVERY 180 DAYS)

A TECHNICAL EVALUATION OF THE BIDS INDICATED THAT PHELPS DODGE OFFERED RG -233/U CABLE BEARING FSN: 6145-752-2490 IN ACCORDANCE WITH THE REFERENCED SPECIFICATIONS. THE PRODELIN, INC., BID INDICATED THAT IT WAS QUOTING ON RG-258/U CABLE (PRODELIN CATALOG 64-1625), IN ACCORDANCE WITH MIL-C- 22931/3A. SIMILARLY, THE LETTER AND LITERATURE ACCOMPANYING THE ANDREW CORPORATION BID INDICATED THAT IT PROPOSED TO FURNISH ITS CATALOG ITEM, TYPE LJ7-50A, HELIAX COAXIAL CABLE, WHICH WAS DESCRIBED AS A MODIFIED RG- 319/U CABLE (SUBSEQUENTLY DESIGNATED AS RG-378/U BY THE NAVY) IN ACCORDANCE WITH MIL-C-22931/7A, IN LIEU OF THE SPECIFIED RG-233/U CABLE.

BY LETTER DATED FEBRUARY 15, 1967, THE PROCURING ACTIVITY REQUESTED THE UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, TO DETERMINE WHETHER THE CABLE OFFERED BY ANDREW WAS TECHNICALLY ACCEPTABLE UNDER THE SPECIFICATIONS. IN THIS REGARD, THE CONTRACTING OFFICER ADVISES IN HIS INITIAL REPORT DATED APRIL 24, 1967, THAT IT WAS RECOGNIZED THAT "WHILE CERTAIN CHARACTERISTICS WERE PERHAPS SUPERIOR TO THOSE DESCRIBED BY THE GOVERNMENT IN THE SUBJECT IFB, SOME OF THOSE CHARACTERISTICS MAY NOT HAVE FITTED THE REQUIREMENTS OF THE USER.' BY LETTER DATED FEBRUARY 27, 1967, THE UNITED STATES ARMY ELECTRONICS COMMAND ADVISED THAT THE CABLE OFFERED BY ANDREW WAS NOT ACCEPTABLE FOR THE FOLLOWING REASONS.

"1. THE RADIO FREQUENCY CABLE OFFERED BY ANDREW CORPORATION, THEIR PART NUMBER IJ7-50A HELIAX COAXIAL CABLE IN LIEU OF CABLE RG-233/U IS NOT ACCEPTABLE AS THE ANDREW CABLE IS NEIIHER PHYSICALLY OR MECHANICALLY INTERCHANGEABLE WITH RG-233/U CABLE.

"2. SUBJECT IFB IS FOR THE PROCUREMENT OF FSN 6145-752-2490 WHICH IS FOR RG-233/U ONLY. THE RG-233/U CABLE IS BEING PROCURED FOR A SPECIFIC APPLICATION WHERE THE CABLE AND CONNECTORS DESIGNED FOR THE CABLE ARE ALREADY IN USE IN EXISTING END EQUIPMENT. THE SAME CONNECTORS CANNOT BE USED ON THE ANDREW CABLE.'

ON THE BASIS OF THIS REPLY, THE CHIEF, CONTRACT ENGINEERING BRANCH, DETERMINED IN A LETTER DATED MARCH 1, 1967, THAT THE ANDREW CABLE WAS NOT ACCEPTABLE UNDER THE INVITATION. THIS ACTION FOLLOWED A SIMILAR DETERMINATION ON MARCH 30, 1967, WITH RESPECT TO THE BID OF PRODELIN, INC., WHEREIN THAT BID WAS REJECTED BECAUSE IT TOOK EXCEPTION BY OFFERING RG-258/U, WHICH "IS IN ACCORDANCE WITH MIL-C-2293/3A BUT VARIES FROM THE REQUIRED RG-233/U CABLE IN OUTSIDE DIMENSIONS.'

BY LETTER DATED MARCH 3, 1967, ANDREW INDICATED AN INTENTION TO PROTEST THE ACTION TAKEN BY THE PROCURING ACTIVITY. IN VIEW OF THIS ADVICE, THE CHIEF, CONTRACT ENGINEERING BRANCH, NORTHWEST PROCUREMENT AGENCY, REVIEWED AND REAFFIRMED HIS EVALUATION OF NONRESPONSIVENESS WHICH WAS CONCURRED IN BY THE UNITED STATES ARMY ELECTRONICS COMMAND. ON MARCH 13, 1967, A MEETING WAS HELD WITH ANDREW TO EXPLAIN THE GOVERNMENT'S POSITION AND THE REASONS FOR THE REJECTION OF ITS BID. THEREAFTER, BY TELEGRAM DATED MARCH 15, 1967, FORMAL PROTEST AGAINST ANY AWARD TO PHELPS DODGE WAS FILED BY ANDREW WITH OUR OFFICE AND AWARD HAS BEEN WITHHELD PENDING RESOLUTION OF THE PROTEST.

BY LETTER DATED MARCH 23, 1967, AND SUBSEQUENT CORRESPONDENCE TO OUR OFFICE, ANDREW HAS QUESTIONED THE REJECTION OF ITS BID ON TWO GROUNDS: (1) THAT THE ANDREW-TYPE IJ7-50A CABLE IS IN MATERIAL COMPLIANCE WITH THE SPECIFICATIONS AND THEREFORE RESPONSIVE; (2) AND, ALTERNATIVELY, THAT IF THE ANDREW BID IS DETERMINED TO BE NONRESPONSIVE, SUCH ACTION IS ATTRIBUTABLE TO THE RESTRICTIVE NATURE OF THE SPECIFICATIONS.

INITIALLY, WE NOTE THAT, WHILE THE PROTESTANT HAS FRAMED ITS CONTENTIONS IN THE ALTERNATIVE, THE QUESTION OF WHETHER THE ANDREW BID IS IN MATERIAL COMPLIANCE WITH THE SUBJECT SPECIFICATIONS CAN BE RESOLVED ONLY UPON A DETERMINATION WHETHER THE SPECIFICATIONS INVITED, RATHER THAN, RESTRICTED, FULL AND FREE COMPETITION. IN THIS REGARD, IT IS WELL ESTABLISHED THAT THE FORMULATION AND DRAFTING OF SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT, AND THE CONSEQUENT DETERMINATION OF WHETHER A GIVEN PRODUCT CONFORMS TO THE SPECIFICATIONS, ARE PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY. 17 COMP. GEN. 554; 38 ID. 190. HERE, WE MAY AGREE, AS PROTESTANT POINTS OUT, THAT NUMEROUS DECISIONS OF OUR OFFICE RECOGNIZE THAT IN RESOLVING QUESTIONS OF SPECIFICATION CONFORMANCE, THE CONTRACTING OFFICER MAY WAIVE MINOR VARIANCES WHEN SUCH ACTION WOULD NOT PREJUDICE THE RIGHTS OF OTHER BIDDERS. SUCH DEVIATIONS MUST BE MINOR IN CHARACTER AND NOT MATTERS OF SUBSTANCE AFFECTING THE PRICE, QUANTITY, OR QUALITY OF THE ARTICLE OFFERED. HOWEVER, THE DETERMINATION OF THE MATERIALITY OF A PARTICULAR SPECIFICATION DEVIATION NECESSARILY PROCEEDS ON THE ASSUMPTION THAT THE SPECIFICATIONS ARE NOT, IN FACT, RESTRICTIVE OF COMPETITION. IN THE ABSENCE OF THE OBJECTION THAT SPECIFICATIONS ARE RESTRICTIVE, IT IS CLEAR, IN CONTRAST TO PROTESTANT'S SUGGESTION, THAT DEVIATIONS RELATING TO DIMENSIONS OR THE DESIGN ASPECTS OF THE PRODUCT OFFERED MAY BE MATERIAL IF SUCH REQUIREMENTS CONSTITUTE A LEGITIMATE EXPRESSION OF THE GOVERNMENT'S MINIMUM NEEDS. SEE 40 COMP. GEN. 458; B- 146698, SEPTEMBER 26, 1961.

AT THIS POINT, IT IS NECESSARY, HOWEVER, TO EMPHASIZE THAT THE NONACCEPTABILITY OF THE ANDREW CABLE IS NOT BASED ON WHAT MAY PROPERLY BE TERMED TECHNICAL DEFICIENCIES. WITH RESPECT TO THE TECHNICAL CAPABILITIES OF ITS CABLE, ANDREW HAS MAINTAINED, IN ITS LETTER OF MARCH 23, 1967, HAT: "* * * THIS CABLE WAS OFFERED BY ANDREW CORPORATION SINCE IT IS MATERIALLY EQUIVALENT TO RG-233/U AND IN MATERIAL COMPLIANCE WITH MIL-C-22931/3A, AND IS WELL RECOGNIZED IN THE ELECTRONICS INDUSTRY, AS WELL AS IN GOVERNMENT PROCUREMENT, AS A REGULARLY AVAILABLE COMPETITIVE PRODUCT CAPABLE OF PERFORMING AN EQUAL FUNCTION TO RG-233/U. MORE SPECIFICALLY, IT IS THE BELIEF OF THE UNDERSIGNED THAT IJ7-50A (RG-378/U) HELIAX COAXIAL CABLE, A SEMI FLEXIBLE RADIO FREQUENCY COAXIAL CABLE HAVING A CORRUGATED ALUMINUM OUTER CONDUCTOR AND AIR DIELECTRIC WITH A POLYETHYLENE JACKETING MATERIAL, MEETS THE SPECIFIC REQUIREMENTS FOR THE USE CONTEMPLATED BY PROCUREMENT UNDER DAAG05-67-B-0589. THIS CABLE CERTAINLY IS AN ELECTRICAL EQUIVALENT TO RG-233/U AND POSSESSES SUBSTANTIALLY SIMILAR MECHANICAL CHARACTERISTICS TO RG-233/U. IF A FINDING OF NON RESPONSIVENESS WERE TO REST ON THE FACT THAT IJ7-50A HELIAX HAS A SLIGHTLY LARGER OUTSIDE DIAMETER, OR THE FACT THAT IJ7-50A HELIAX IS CORRUGATED, SUCH A DETERMINATION WOULD BE ERRONEOUS SINCE THE DIFFERENCES ARE NON-ESSENTIAL TO THE FUNCTIONAL REQUIREMENTS OF THE EQUIPMENT TO BE PURCHASED UNDER THE SUBJECT INVITATION.

* * * * * * * "* * * THE ONLY APPARENT DISTINCTION THAT CAN BE DRAWN BETWEEN IJ7-50A HELIAX (RG 378/U) AND RG-233/U IS THE SLIGHTLY LARGER OUTSIDE DIAMETER DUE TO THE CORRUGATION CONFIGURATION OF THE OUTER CONDUCTOR. AS HAS BEEN NOTED PREVIOUSLY, THE CORRUGATIONS PERMIT EASIER FLEXING WHILE SIMULTANEOUSLY OFFERING HIGHER CRUSH RESISTANCE THAN SMOOTH TUBING. THE SPECIFICATIONS OF THE SUBJECT PROCUREMENT, THEN, BAR A REGULARLY AVAILABLE COMPETITIVE PRODUCT CAPABLE OF PERFORMING AN EQUAL FUNCTION TO THAT ADVERTISED, BASED SOLELY ON NON-ESSENTIAL MECHANICAL DIFFERENCES, WITHOUT REGARD TO THE FUNCTIONAL REQUIREMENTS OF THE EQUIPMENT TO BE PURCHASED.'

THE PROCURING ACTIVITY ACKNOWLEDGES THAT THE ANDREW CABLE IS MATERIALLY EQUIVALENT TO THE REQUESTED RG-233/U CABLE, IN THAT IT POSSESSES SIMILAR MECHANICAL CHARACTERISTICS AND EXCEPT FOR A MINOR ELECTRICAL DIFFERENCE IS OTHERWISE ELECTRICALLY EQUIVALENT TO THE RG 233/U CABLE. IN THIS RESPECT, THE CONTRACTING OFFICER STATES IN HIS REPORT OF APRIL 24, 1967, THAT:

"A. PROTESTOR'S ALLEGATION IS CORRECT IF BY -FUNCTIONAL REQUIREMENTS' CONDUCTION OF RF CURRENT IS MEANT. IF -FUNCTIONAL REQUIREMENTS' INCLUDES DIRECT SUBSTITUTION FOR RG-233/U AND IJ7-50A WITHOUT ADDITIONAL APPROPRIATE ADAPTERS, THE ALLEGATION IS NOT CORRECT. * * *"

WE ARE FURTHER ADVISED THAT, WHILE THE ANDREW CABLE MAY EXCEED THE GOVERNMENT'S MINIMUM NEEDS WITH RESPECT TO FLEXING AND CRUSH RESISTANCE, THESE FACTORS ARE IRRELEVANT IN VIEW OF THE REJECTION OF THE ANDREW BID ON THE BASIS OF DIFFERENCES IN THE OVERALL DIAMETERS AND THE OUTER CONDUCTOR SURFACE CHARACTERISTICS OF THE RESPECTIVE CABLES. IN THIS RESPECT, THE RECORD INDICATES THE DIFFERENCES BETWEEN RG-233/U AND THE ANDREW CORPORATION IJ7-50A, AS FOLLOWS:

IJ7-50A RG-233/U

O.D. OF OUTER CONDUCTOR 1.830 INCHES 1.625 INCHES

OVERALL O.D. OF CABLE 2.00 INCHES 1.765 INCHES

SURFACE OF OUTER CONDUCTOR CORRUGATED SMOOTH

THESE DIFFERENCES ARE STATED TO BE "QUITE ESSENTIAL CONSIDERATIONS" BECAUSE EACH CABLE MANUFACTURER OFFERS CONNECTORS AND ADAPTERS UNIQUE TO ITS PRODUCT. THESE FITTINGS ARE UNIQUE IN THE SENSE THAT THE CABLE ACCOMMODATION, OR REAR END, OF THE CONNECTOR MUST BE SPECIALLY DESIGNED TO FIT THE EXACT CONFIGURATION OF EACH MANUFACTURER'S CABLE. HOWEVER, WE UNDERSTAND THAT THE INTERFACES, OR MATING ENDS, OF EACH MANUFACTURER'S CONNECTORS MUST CONFORM TO CERTAIN UNIFORM INDUSTRY STANDARDS. THUS, THE CONTRACTING OFFICER IN HIS REPORT OF APRIL 24, 1967, ADVISES THAT, "ANDREW CORPORATION CABLE IJ7-50A IS CAPABLE OF PERFORMING AN EQUAL FUNCTION WHEN EQUIPPED WITH CONNECTORS SUITABLE TO ITS SIZE AND CONFIGURATION.' IT IS CLEAR THERFORE THAT THE REJECTION OF THE ANDREW BID, AND FOR THAT MATTER THE BID OF PRODELIN, INC., WHILE EXPRESSED IN TERMS OF SIZE VARIANCE WAS ATTRIBUTABLE TO THE REQUIREMENTS FOR INDIVIDUALIZED CABLE CONNECTORS WHICH WERE NOT STATED TO BE AN ADVERTISED SPECIFICATION REQUIREMENT.

TURNING NOW TO THE CONTENTION THAT THE SPECIFICATIONS ARE RESTRICTIVE, ANDREW, INITIALLY POINTS OUT THAT THE DETAILS OF PHYSICAL DIMENSIONS AND PERFORMANCE CHARACTERISTICS CONTAINED IN PARAGRAPHS 6.2 OF MIL-C 22913/7A AND MIL-C-22931/3A RESPECTIVELY, ARE MERELY DESCRIPTIVE OF COMMERCIALLY AVAILABLE CABLES, BUT THAT THE USE OF THE ITEM DESCRIPTION IN THE INVITATION DESIGNATES THE CABLE OF ONE SOURCE OF SUPPLY, THAT IS, PHELPS DODGE. THE CONTRACTING OFFICER CONCEDES THAT THE INVITATION CALLS FOR A CABLE MANUFACTURED EXCLUSIVELY BY PHELPS DODGE. IN THIS REGARD, WE NOTE THAT SPECIFICATION, MIL-C-22931/A DATED MARCH 27, 1964, REFERENCED IN THE INVITATION, IS A GENERAL SPECIFICATION WHICH COVERS VARIOUS CLASSES, SIZES, AND TYPES OF SEMIRIGID RADIO FREQUENCY CABLE. OF RELEVANCE TO OUR CONSIDERATION HERE, PARAGRAPH 1.2.2 LISTS THREE TYPES OF CABLES: TYPE I-- SMOOTH OUTER CONDUCTOR; TYPE II--CORRUGATED OUTER CONDUCTOR; TYPE III-- BRAIDED OUTER CONDUCTOR. SUPPLEMENT 1A DATED JUNE 26, 1964, TO THIS SPECIFICATION, LISTS THE DETAIL SPECIFICATIONS FOR USE IN CONNECTION WITH THE GENERAL SPECIFICATION. FOR THE 1-5/8-INCH CABLE REQUESTED IN THE INVITATION SCHEDULE, THE SUPPLEMENT LISTS TWO DETAILED SPECIFICATIONS: MIL -C-22931/3--CABLE, SEMIRIGID, RADIO FREQUENCY, CLASS N, TYPE I, SIZE 1-5/8 INCH; AND MIL-C-22931/7--CABLE, SEMIRIGID, RADIO FREQUENCY, CLASS N, TYPE II, SIZE 1-5/8 INCH. MIL-C-22931/3 DATED JANUARY 4, 1962, WAS SUPERSEDED BY SPECIFICATION MIL-C-22931/3A DATED MARCH 27, 1964, REFERENCED IN THE INVITATION SCHEDULE. PARAGRAPH 6.2 OF THIS DETAILED SPECIFICATION LISTS IN TABLE II THREE SMOOTH OUTER CONDUCTOR, JACKETED, COMMERCIAL CABLES KNOWN TO MEET THE PERFORMANCE REQUIREMENTS OF THE CLASS N, TYPE 1-5/8-INCH CABLES; THAT IS, RG-233/U, DESIGNATED IN THE INVITATION AND MANUFACTURED BY PHELPS DODGE; RG-258/U MANUFACTURED BY PRODELIN; AND RG-249/U, WHICH IS ALSO MANUFACTURED BY PHELPS DODGE BUT IS NOT RELEVANT HERE. SIMILARLY, MIL C-22931/7A DATED MARCH 27, 1964, SUPERSEDING MIL-C-22931/7 (SHIPS), DATED JANUARY 2, 1962, DESIGNATES IN PARAGRAPH 6.2, RG-319/U AS A JACKETED, COMMERCIAL CABLE WITH A CORRUGATED OUTER CONDUCTOR KNOWN TO MEET THE PERFORMANCE REQUIREMENTS OF CLASS N, TYPE II, SIZE 1-5/8-INCH CABLES. THE ANDREW OFFER OF A MODIFIED RG-319/U DIFFERS FROM MIL-C 22931/7A IN THAT THE OUTER CONDUCTOR, LIKE THE PHELPS DODGE OUTER CONDUCTOR, IS MADE OF ALUMINUM RATHER THAN COPPER AS DESIGNATED IN THE SPECIFICATION. RECOGNIZING THAT THE USE OF MILITARY SPECIFICATIONS ARE MANDATORY (ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1202), IT IS CLEAR THAT ANY RESTRICTIVE ELEMENT INTRODUCED INTO A PARTICULAR CABLE PROCUREMENT IS NOT ATTRIBUTABLE TO THE SPECIFICATIONS AS DRAFTED BUT RATHER DEPENDS, IN THE INSTANT CASE, UPON THE PROPRIETY OF THE EXCLUSIVE SELECTION OF DETAIL SPECIFICATION MIL-C-22931/3A, AND THE FURTHER DESIGNATION OF RG-233/U CABLE UNDER A FEDERAL STOCK NUMBER WHICH FURTHER REFERENCES AND IDENTIFIES RG-233/U CABLE.

WHILE WE ARE ADVISED THAT CONSIDERATION IS PRESENTLY BEING GIVEN TO MODIFYING THE SPECIFICATIONS, IT IS PROTESTANT'S POSITION THAT, IN ORDER TO PROVIDE ALL MANUFACTURERS AN OPPORTUNITY TO COMPETE, THE INVITATION SHOULD PERMIT BIDS IN ACCORDANCE WITH MIL-C-22931/3A, MIL-C 22931/7A,"OR EQUAL.' IN THIS RESPECT, WE OBSERVE THAT THE MERE FACT THAT A PARTICULAR BIDDER IS UNABLE TO MEET THE GOVERNMENT'S SPECIFICATIONS IS NOT DETERMINATIVE OF THE QUESTION WHETHER A PARTICULAR SPECIFICATION IS RESTRICTIVE. 30 COMP. GEN. 368; 36 ID. 251; 33 ID. 586. HOWEVER, IT IS EQUALLY WELL ESTABLISHED THAT THE EXPRESSION OF THE GOVERNMENT'S REQUIREMENTS MUST REFLECT THE ACTUAL AND LEGITIMATE MINIMUM NEEDS OF THE PROCURING ACTIVITY RATHER THAT A MERE PREFERENCE OR DESIRE FOR ONE MANUFACTURER'S PRODUCT OVER ANOTHER. AS WE STATED IN OUR DECISION AT 32 COMP. GEN. 384, 387, AS FOLLOWS:

"THE GOVERNMENT ADVERTISING STATUTES CONSISTENTLY HAVE BEEN HELD TO REQUIRE THAT EVERY EFFORT SHOULD BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE ADVERTISED SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE MINIMUM NEEDS REQUIRED, NOT THE MAXIMUM DESIRED. * * *" WE BELIEVE THAT THE PROTESTANT'S RELIANCE ON THE PRINCIPLES ENUNCIATED IN OUR DECISIONS DEALING WITH THE USE OF THE BRAND NAME OR EQUAL CLAUSE IS ENTIRELY APPROPRIATE. WE AGREE, AS THE CONTRACTING OFFICER POINTS OUT, THAT RECOURSE TO THE "OR EQUAL" CLAUSE (SEE 38 COMP. GEN. 380) IS NOT PROPER WHEN THE INVITATION ADEQUATELY DESCRIBES THE MINIMUM REQUIREMENTS OF THE GOVERNMENT. HOWEVER, AUTHORIZATION TO USE THE CLAUSE IS INTENDED TO OVERCOME PRACTICAL DIFFICULTIES ENCOUNTERED IN DRAFTING DETAILED SPECIFICATIONS, AND THE ABSENCE OF THE CLAUSE DOES NOT INSURE THAT THE MAXIMUM COMPETITION CONSISTENT WITH THE AGENCY'S NEEDS HAS BEEN ACHIEVED. 5 COMP. GEN. 835, 837. IN THIS LATTER REGARD, WE DRAW YOUR ATTENTION TO OUR DECISION AT 39 COMP. GEN. 101, 108, WHEREIN WE STATED THAT:

"A PROCUREMENT MAY BE MADE UNDER ADVERTISING PROCEDURES ON THE BASIS OF A PARTICULAR MANUFACTURER'S MODEL. IT IS REQUIRED IN SUCH CIRCUMSTANCES, HOWEVER, THAT THE WORDS -OR EQUAL- OR WORDS OF SIMILAR IMPORT BE ADDED TO THE DESCRIPTION AND THAT BIDS OFFERING OTHER PRODUCTS WHICH WILL PERFORM THE JOB AS WELL MUST BE CONSIDERED FOR AWARD ON AN EQUAL BASIS. 38 COMP. GEN. 380; 33 COMP. GEN. 524. WE CAN SEE NO REAL DIFFERENCE BETWEEN ADVERTISING FOR A PRODUCT BY ITS BRAND NAME AND MODEL NUMBER AND BY DETAILED DRAWINGS WHICH, ALTHOUGH THEY MAY NOT INDICATE NAME OR MODEL NUMBER, DESCRIBE SUCH MODEL BY ITS EXACT CHARACTERISTICS.'

IT IS THE CONTRACTING OFFICER'S POSITION THAT THE SPECIFICATION REQUIREMENTS PROVIDE COMPLETE PROCUREMENT INFORMATION WHICH ENABLES ANY INTERESTED PARTY TO FABRICATE THE ADVERTISED CABLE IN ACCORDANCE WITH THE SPECIFIED REQUIREMENTS, AND THE FACT THAT ONE FIRM IS A SOLE SOURCE AT ANY ONE POINT IN TIME DOES NOT RENDER THE PROCCUREMENT UNDULY RESTRICTIVE, CITING 44 COMP. GEN. 27. IN THAT CASE, THE PROTESTANT ALLEGED THAT THE INVITATION SPECIFICATION CONTAINED RESTRICTIVE, PROPRIETARY FEATURES OF ONE MANUFACTURER'S PRODUCT THEREBY ELIMINATING ALL OTHERS FROM COMPETITION. THE PROPRIETARY FEATURE THERE INVOLVED REPRESENTED A "TECHNOLOGICAL ADVANCE" OVER OTHER EQUIPMENTS PREVIOUSLY OFFERED. FURTHER, THE RECORD INDICATED THAT BECAUSE OF THE COMPETITIVE FORCES ACTIVE IN THE TRADE A DESIRABLE, NONPATENTED FEATURE WOULD NORMALLY BE INCORPORATED INTO THE ITEMS OF A NUMBER OF MANUFACTURERS, AND THAT AT THE TIME THE INVITATION WAS PREPARED IT WAS NOT KNOWN THAT THE NEW FEATURE WAS PROPRIETARY TO ONE MANUFACTURER. ON THIS BASIS, WE WERE ADVISED THAT SOLE -SOURCE PROCUREMENT COULD NOT BE JUSTIFIED AT THE TIME THE INVITATION WAS DRAWN. IT WAS IN THIS CONTEXT, AND IN RESPONSE TO THE PROTESTANT'S OBJECTION THAT THE INVITATION WAS "A CLEVER SALES DEVICE" RATHER THAN AN ATTEMPT TO FOSTER COMPETITION, THAT WE OBSERVED THAT:

"* * * THE QUESTION OF WHETHER A COMPANY IS AT ANY POINT IN TIME A SOLE SOURCE OF A GIVEN ITEM IS DIFFICULT TO RESOLVE, SINCE ANOTHER FIRM MAY HAVE PRIVATE INTENTIONS TO ENTER THE MARKET AT THE FIRST OPPORTUNITY, OR ONE MAY BE WILLING TO ALTER ITS COMMERCIAL OR STANDARD EQUIPMENT IN ORDER TO COMPETE FOR A PARTICULAR PROCUREMENT OR BUSINESS. * * *"

HERE, THE EXPRESSION OF THE GOVERNMENT'S NEEDS FOR CABLE ARE CLEARLY DISTINGUISHABLE. THERE IS NO SUGGESTION OF TECHNOLOGICAL ADVANTAGE, OR THAT THE SPECIFICATIONS ARE "EQUAL TO THE HIGHEST STANDARDS PRESENTLY OBTAINABLE" (30 COMP. GEN. 368, 369) SINCE IT IS ACKNOWLEDGED THAT THE ANDREW CABLE PERFORMS AN EQUAL FUNCTION TO THAT OF THE PHELPS DODGE CABLE, AND FURTHER THAT THIS EQUALITY IS MAINTAINED WHEN EACH CABLE IS FITTED WITH ITS OWN CONNECTORS. MOREOVER, THE PAST PROCUREMENT HISTORY OF THE CABLE PROVIDED BY THE UNITED STATES ARMY ELECTRONICS COMMAND INDICATES AWARD TO PHELPS DODGE IN EVERY INSTANCE AND THUS NEGATES THE VALIDITY OF ANY SUGGESTION THAT COMPETITIVE FORCES ARE, OR WILL BECOME, ACTIVE. WITH RESPECT TO THE OBSERVATION THAT COMPLETE PROCUREMENT INFORMATION PERMITTING MANUFACTURE IS AVAILABLE, IT SHOULD BE NOTED THAT EVEN IF OTHER FIRMS ARE AUTHORIZED TO MANUFACTURE A PRODUCT, SUCH FACT--STANDING ALONE-- IS NOT IN ITSELF A SUFFICIENT REASON FOR DESIGNATING ONE MANUFACTURER TO THE EXCLUSION OF ANOTHER. SEE ESPECIALLY 45 COMP. GEN. 462, 468; ALSO SEE 39 ID. 101, 107; B-153796, JUNE 25, 1964.

CONSIDERING SPECIFICALLY THE JUSTIFICATION FOR THE "MINIMUM NEEDS" DETERMINATION IN THE INSTANT MATTER, THE SELECTION OF THE PHELPS DODGE CABLE IS BASED ON INTERCHANGEABILITY AND LOGISTICS RELATING TO THE USE OF THE CABLE FOR REPLACEMENT PURPOSES. IN THIS RESPECT, ANDREW HAS QUESTIONED THE INTENDED USE OF THE CABLE TO BE PROCURED, AND CHALLENGED THE RELEVANCY OF THE INTERCHANGEABILITY FACTOR ON THE GROUNDS THAT ONE MANUFACTURER'S CABLE WITH APPROPRIATE CONNECTORS IS, IN FACT, INTERCHANGEABLE WITH ANOTHER MANUFACTURER'S CABLE SIMILARLY EQUIPPED. FURTHER, IT IS MAINTAINED THAT THE COST OF CONNECTORS AND ADAPTERS IN RELATION TO THE COST OF THE CABLE CANNOT SUBSTANTIATE A LOCKED-IN PURCHASING SITUATION WHICH WOULD ALWAYS RESULT IN A SOLE SOURCE PROCUREMENT.

IN VIEW OF ANDREW'S ALLEGATIONS, THE CONTRACTING OFFICER REQUESTED THE REQUISITIONING ACTIVITY, UNITED STATES ARMY STRATEGIC COMMUNICATIONS COMMAND, FORT HUACHUCA, ARIZONA (STRATCOM), TO FURNISH FURTHER INFORMATION ESTABLISHING THE FACT THAT RG-233/U CABLE CONSTITUTED THE GOVERNMENT'S MINIMUM NEEDS EXPRESSED IN TERMS OF LOGISTICS AND INTERCHANGEABILITY AND TO ESTABLISH THE INTENDED USE OF THE CABLE. IN ITS RESPONSE BY LETTER DATED JUNE 20, 1967, THE REQUISITIONING ACTIVITY ADVISED GENERALLY, AS FOLLOWS:

"A. THE RG-233/U CABLE AS REQUESTED IS A FORECAST REQUIREMENT OF STOCKPILE ITEMS. THE CABLE WILL BE SUBJECT TO WORLD-WIDE USE AS A REPLACEMENT OR NEW INSTALLATIONS ITEM.

"B. REQUESTS TO BE FILLED FROM THIS STOCKPILE ARE RECEIVED FROM VARIOUS PARTS OF THE WORLD. IT IS REQUESTED BY A FSN WHICH IS TIED TO A MIL SPECIFICATION. IF THIS SPECIFICATION IS GOING TO BE WAIVED OR RELAXED SO THAT CABLES OF DIFFERENT SIZE AND/OR CONFIGURATION CAN BE STOCKPILED, THE REQUESTOR WILL NEVER KNOW EXACTLY WHAT THEY WILL RECEIVE. IF THIS IS THE CASE, CONNECTORS AND/OR ADAPTERS CAN NEVER BE REQUESTED UNTIL THE CABLE HAS BEEN DELIVERED TO THE USER.

"C. WHEN THE CABLE IS DELIVERED, AN UNREASONABLE DELAY WOULD OCCUR IF A NEW REQUEST HAD TO BE INITIATED AND PROCESSED IN ORDER TO OBTAIN A CONNECTOR TO ADAPT THE NEW CABLE INTO THE PRESENT SYSTEM. IN FACT, THIS DELAY WOULD BE MANDATORY AS SHOWN IN PARAGRAPH 1B ABOVE, SINCE THE TYPE OF CONNECTOR REQUIRED WOULD NOT BE KNOWN AND COULD NOT BE ORDERED IN ADVANCE.

"D. IF THE CABLE STOCKPILED IS HELD TO THE TYPE CALLED FOR UNDER THE SPECIFICATION, FITTINGS ARE NORMALLY ON HAND FOR REPLACEMENT PURPOSES. THE CABLE IS TO BE USED FOR NEW INSTALLATIONS, FITTINGS CAN BE ORDERED AT THE SAME TIME AS THE CABLE.'

FURTHER, THE PROCURING ACTIVITY RAISED SPECIFIC QUESTIONS RELATING TO THE USE AND COST OF THE CABLE. THE QUESTIONS AND THE RESPONSES ELICITED FROM THE REQUISITIONING ACTIVITY ARE, IN RELEVANT PARTS, AS FOLLOWS:

QUESTION: DO YOU SPECIFY OR REQUISITION THIS CABLE BY FSN OR JCENS TYPE RG-233/U?

ANSWER: BY FSN.

QUESTION: YEARLY USAGE?

ANSWER:ESTIMATED FORECAST REQUIREMENTS EXCEED 50,000 FEET PER YEAR.

QUESTION: FOR WHAT TYPES OF INSTALLATIONS AND EQUIPMENT IS RG-233/U CABLE USED?

ANSWER: THIS COMMAND'S MAJOR USE OF THE SPECIFIED CABLE IS FOR FIXED- PLANT INSTALLATIONS OF HIGH FREQUENCY RADIO EQUIPMENT.

QUESTION: NUMBER AND AMOUNT OF SUCH EQUIPMENT?

ANSWER: SUBSTANTIAL, BUT EXACT QUANTITIES NOT KNOWN.

QUESTION: HOW WIDE SPREAD IS THIS EQUIPMENT THROUGHOUT THE DOD SUPPLY SYSTEM?

ANSWER: WORLD-WIDE.

QUESTION: IS THIS CABLE TO BE USED FOR NEW INSTALLATIONS OR TO REPLACE EXISTING RG-233/U ABLE?

ANSWER: THE CABLE WILL BE USED FOR NEW INSTALLATIONS, BUT THE PRIMARY USE WILL BE REPLACEMENT.

QUESTION: HOW WIDE SPREAD IS THE USE?

ANSWER: WORLD-WIDE.

QUESTION: IS THE CONNECTOR BUILT IN THE EQUIPMENT OF SUCH A TYPE OR MANNER TO REQUIRE ONLY A SINGLE TYPE OF COAXIAL CABLE?

ANSWER: NO, CONNECTORS BUILT INTO THE EQUIPMENT DO NOT REQUIRE A SINGLE TYPE CABLE.

QUESTION: ARE CONNECTORS ON HAND, OR ARE CONNECTORS FOR ATTACHMENT OF CABLE TO EQUIPMENT PROCURED WHEN ADDITIONAL OR REPLACEMENT CABLE IS PROCURED?

ANSWER: IN SOME CASES CONNECTORS ARE ON HAND. IN OTHER CASES THEY ARE ORDERED ON THE SAME REQUEST WITH THE CABLE.

QUESTION: CAN THE COST OF PROCURING AND MAINTAINING ADDITIONAL TYPE CONNECTORS WHEN COMPARED WITH THE POSSIBLE COST SAVINGS OF PROCURING CABLES OTHER THAN RG-233/U (AS IN THE PRESENT SITUATION) CONSTITUTE A VALID REASON FOR NOT PROCURING OTHER THAN RG-233/U CABLE?

ANSWER: THE ACTUAL COST OF THE CONNECTOR CANNOT BE CONSIDERED A VALID REASON--BUT THE COST IN TIME AND INCONVENIENCE CAN BE CONSIDERABLE AS EXPLAINED IN PARAGRAPH 1C OF THE NARRATIVE ABOVE.

IT IS OUR OPINION THAT ANY DISTINCTION DRAWN BETWEEN NEW AND REPLACEMENT USE OF CABLE IS UNSUBSTANTIAL TO SUPPORT A REQUIREMENT FOR INTERCHANGEABILITY UNDER THE CIRCUMSTANCES OF THIS CASE. THE SUPPLEMENTAL INFORMATION RECEIVED FROM THE REQUISITIONING ACTIVITY INDICATES THAT THE SUBJECT PROCUREMENT IS INTENDED TO MEET STOCKPILE REQUIREMENTS FOR A 2- YEAR PERIOD. MOREOVER, A SPECIFIC REPLACEMENT REQUIREMENT REFLECTING A NEED FOR INTERCHANGEABILITY IS NEGATED BY THE ACKNOWLEDGEMENT THAT THE ANDREW CABLE COULD PERFORM AN EQUAL FUNCTION WITH THE SAME ECONOMY OF FITTINGS AS WOULD THE PHELPS DODGE CABLE; THE ADVICE THAT EXISTING EQUIPMENTS PRESENTLY IN USE DO NOT REQUIRE THE USE OF ANY PARTICULAR MANUFACTURER'S CABLE AS LONG AS IT IS EQUIPPED WITH APPROPRIATE ADAPTERS; AND THE STATEMENT THAT THE COST OF PROCURING AND MAINTAINING ADDITIONAL MANUFACTURER'S CONNECTORS IS NOT A "VALID REASON" FOR NOT PROCURING OTHER TYPES OF CABLE. FURTHER, AN INVESTIGATION INITIATED AT OUR REQUEST BY THE PROCURING ACTIVITY FAILED TO PROVIDE SUFFICIENT INFORMATION FOR OUR OFFICE TO CONSIDER THE POSSIBLE IMPACT OF THE INTRODUCTION OF OTHER THAN RG-233/U CABLE INTO THE SUPPLY SYSTEM ON THE INVENTORY SUPPLY BALANCE OF RELATED CABLE CONNECTORS.

IT APPEARS THAT RECOURSE TO A DISTINCTION BETWEEN THE INTENDED USE OF THE CABLE HAS REFERENCE TO THE LOCATION AND SUPPLY LEVEL OF THE CONNECTORS WITHIN THE SUPPLY SYSTEM IN VIEW OF THE ADVICE THAT "FITTINGS ARE NORMALLY ON HAND FOR REPLACEMENT PURPOSES. IF THE CABLE IS TO BE USED FOR NEW INSTALLATIONS, FITTINGS CAN BE ORDERED AT THE SAME TIME AS THE CABLE.' THIS RESPECT, IT IS MAINTAINED, IN RELIANCE ON 40 COMP. GEN. 458, THAT INTERCHANGEABILITY IS A FACTOR IN THE SENSE THAT THE STOCKING OF CONNECTORS PROVIDES AN IMMEDIATE UTILIZATION OF THE REQUISITIONED CABLE WITHOUT "UNREASONABLE AND INTOLERABLE DELAY.' ALTHOUGH THE CITED CASE INVOLVED THE ISSUE OF RESPONSIVENESS, WE AGREE THAT, IN ADDITION TO THE TYPE OF EQUIPMENT BEING PROCURED,"THE CIRCUMSTANCES IN WHICH THE EQUIPMENT WILL BE UTILIZED, INCLUDING SUCH CONSIDERATIONS AS THE IMPORTANCE OF CONTINUOUS OPERATION, THE AVAILABILITY OF SPARE PARTS AND MAINTENANCE SERVICES, AND SIMILAR FACTORS" ARE RELEVANT TO A DETERMINATION OF THE GOVERNMENT'S LEGITIMATE NEEDS. (40 COMP. GEN. 458, 459). ACCORDING DUE WEIGHT TO THE IMPORTANCE OF CONTINUOUS LOGISTIC SUPPORT, WE CANNOT, HOWEVER, AGREE THAT THE ALLEGATION OF "UNREASONABLE AND INTOLERABLE DELAYS" RESULTING FROM THE INTRODUCTION OF OTHER MANUFACTURER'S CABLES INTO THE SYSTEM IS SUBSTANTIATED ON THE RECORD BEFORE US. IN THIS RESPECT, WE NOTE THAT THE UNREASONABLE DELAY DESCRIBED IS PROMISED ON THE FACT THAT OTHER CABLES WOULD BE INTRODUCED INTO THE SYSTEM UNDER THE SAME FEDERAL STOCK NUMBER. HOWEVER, THERE IS NO QUESTION THAT CONNECTORS AND ADAPTERS COULD BE PROCURED ALMOST SIMULTANEOUSLY WITH THE CABLE EITHER UNDER THE SAME PROCUREMENT ACTION OR UNDER A "CALL-TYPE" OR REQUIREMENTS CONTRACT. THE ASSIGNMENT OF ADDITIONAL FEDERAL STOCK NUMBERS TO ANY ADDITIONAL CABLES AND FITTINGS INTRODUCED INTO THE SYSTEM, WITH APPROPRIATE ADVICE TO THE USER, WOULD REMOVE THE RANDOM SELECTION SUGGESTED IN THE REPORT. APPEARS TO US THAT THE PROBLEM IS ONE OF REQUISITIONING AND PROCUREMENT WHICH IS NOT NECESSARILY RELATED TO THE FORMAL PROCUREMENT BY ADVERTISING OF CABLE ALONE. THIS WOULD SEEM TO BE ESPECIALLY TRUE SINCE THE INVITATION DID NOT ADVISE BIDDERS IN SPECIFIC TERMS OF THE ADMINISTRATIVE DESIRE FOR INTERCHANGEABILITY OR OF THE LOGISTIC PROBLEM THAT WOULD RESULT FROM THE PROCUREMENT OF OTHER THAN PHELPS DODGE CABLE.

FOR THE FOREGOING REASONS, WE MUST CONCLUDE THAT THE ADVERTISED SPECIFICATIONS ARE INCONSISTENT WITH THE FULL AND FREE COMPETITION REQUIRED BY 10 U.S.C. 2305 (A). ACCORDINGLY, THE INVITATION SHOULD BE CANCELED.