B-161786, SEP. 5, 1967

B-161786, SEP. 5, 1967

BIDS - SPECIFICATIONS - RESTRICTIVE DECISION TO VECCO INSTRUMENTS, INC., CONCERNING PROTEST AGAINST SPECIFYING A PARTICULAR TYPE OF SYSTEM IN A BRAND NAME OR EQUAL INVITATION BY AEROSPACE MEDICAL DIV., BROOKS AIR FORCE BASE, AS RESTRICTING COMPETITION BECAUSE ONLY ONE CORPORATION MADE SUCH TYPE EQUIPMENT. THE USE IN A BRAND NAME OR EQUAL INVITATION OF A REQUIREMENT FOR A CYCLOIDAL GAS ANALYZER BECAUSE THAT TYPE WAS NECESSARY FOR RESEARCH TO PROTECT LIVES IN SPACE CABINS AND FLIGHT SIMULATORS WILL NOT BE OBJECTED TO. SINCE STANDARD SPECIFICATIONS WERE NOT AVAILABLE AND SINCE INFORMATION TO DRAFT DETAILED PURCHASE DESCRIPTION WAS NOT AVAILABLE, PARTICULAR DESCRIPTIVE REQUIREMENT IN BRAND NAME OR EQUAL SPECIFICATION IS WARRANTED. ALSO DETERMINATION TO SPECIFY CYCLODIAL GAS ANALYZER WAS NOT ARBITRARILY CHOSEN TO RESTRICT COMPETITION. RECORD ALSO INDICATES THAT AT LEAST ONE OTHER MANUFACTURE PRODUCES THE TYPE OF ANALYZER. THEREFORE, SINCE PROTESTANT'S BID WOULD NOT HAVE BEEN LOW EVEN IF RESPONSIVE, PROTEST IS DENIED.

TO VEECO INSTRUMENTS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1967, IN WHICH YOU PROTEST CERTAIN SPECIFICATIONS LISTED IN INVITATION FOR BIDS (IFB) NO. F41698-67-B -1504 ISSUED BY THE AEROSPACE MEDICAL DIVISION, BROOKS AIR FORCE BASE, TEXAS, ON MAY 19, 1967. THE IFB SOLICITED BIDS FOR THE FURNISHING OF ONE CYCLOIDAL RESIDUAL GAS ANALYZER SYSTEM, CONSOLIDATED ELECTRODYNAMICS CORPORATION (CEC), MODEL NUMBER 21-614,OR EQUAL. YOU CONTEND THE SPECIFYING OF AN ANALYZER OF THE CYCLOIDAL TYPE ON A ,BRAND NAME OR EQUAL" BASIS RESTRICTS COMPETITION UNNECESSARILY BECAUSE IT IS ONLY ONE OF THE ,MANY PROVEN WAYS FOR GAS ANALYZERS," AND MOREOVER, PERMITS ONLY ONE COMPANY TO BID ON THE ITEM. YOU DID, HOWEVER, SUBMIT A BID ON AN ANALYZER UTILIZING ANOTHER PRINCIPLE.

A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IS RESORTED TO WHEN AN ADEQUATE SPECIFICATION OR MORE DETAILED DESCRIPTION CAN NOT FEASIBLY BE MADE AVAILABLE IN TIME FOR THE PROCUREMENT UNDER CONSIDERATION. ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.1 (A). WE HAVE HELD THAT THE UTILIZATION OF THIS TECHNIQUE FULLY COMPLIES WITH THE REQUIREMENTS OF THE COMPETITIVE BIDDING SYSTEM SO LONG AS THE NEEDS OF THE AGENCY CAN NOT BE STATED OTHERWISE. 38 COMP. GEN. 380. EVEN A PATENTED ARTICLE MAY BE ADVERTISED ON THIS BASIS IF IT IN FACT IS REPRESENTATIVE OF THE ACTUAL REQUIREMENTS OF THE PURCHASING ACTIVITY. B-161118, JUNE 1, 1967. REVIEWING AN AGENCY'S DETERMINATION OF ITS MINIMUM REQUIREMENTS AS STATED IN THE SPECIFICATIONS IT INCORPORATES INTO AN IFB, WE HAVE BEEN RELUCTANT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE REQUIRING ACTIVITY UNLESS THERE IS CLEAR EVIDENCE THAT THE AGENCY DECISION IS IN ERROR. 17 COMP. GEN. 554. NEVERTHELESS, WE MUST BE CERTAIN THAT THE MATERIAL REQUIREMENTS OF A SPECIFICATION ARE NOT ARBITRARILY DRAWN AROUND THE PRODUCT OF ONE MANUFACTURER. B-152238, OCTOBER 29, 1963.

THE AIR FORCE INFORMS US THAT THE CYCLOIDAL MASS SPECTROMETRY PRINCIPLE IS ESSENTIAL IN PERMITTING THE GOVERNMENT TO MEET ITS AEROSPACE RESEARCH OBJECTIVES BY PROVIDING THE ONLY METHOD OF ACCURATE AND RELIABLE TOTAL ATMOSPHERIC GAS ANALYSIS. THE LATTER REQUIREMENT IS DEEMED NECESSARY TO THE INTENSIVE RESEARCH EFFORTS UNDERWAY TO PROTECT LIVES IN SPACE CABINS AND FLIGHT SIMULATORS. WE ARE ADVISED THE DECISION TO USE THIS PRINCIPLE WAS ARRIVED AT ONLY AFTER EXTENSIVE RESEARCH AND CONSULTATION WITH OTHERS WELL-EXPERIENCED IN THE FIELD. SINCE A STANDARD GOVERNMENT SPECIFICATION FOR A DEVICE UTILIZING THIS PRINCIPLE WAS LACKING, AND IN THE ABSENCE OF SUFFICIENT DATA TO ENABLE A DETAILED PURCHASE DESCRIPTION, A DECISION WAS MADE TO ADVERTISE THE PROCUREMENT ON A "BRAND NAME OR EQUAL" BASIS. THIS DECISION WOULD SEEM TO COMPLY WITH OUR REQUIREMENT THAT THIS SOLICITATION TECHNIQUE BE UTILIZED AS A LAST RESORT. WITH THESE CONSIDERATIONS IN MIND WE CAN NOT SAY THE SPECIFICATION OF A CYCLOIDAL GAS ANALYZER ON A "BRAND NAME OR EQUAL" BASIS WAS ARBITRARILY CHOSEN TO RESTRICT COMPETITION, NOR DOES IT SEEM TO REPRESENT ANYTHING OTHER THAN AN EXPRESSION OF THE BONA FIDE MINIMUM NEEDS OF THE PURCHASING ACTIVITY. MOREOVER, WE ARE INFORMED THAT AT LEAST ONE OTHER COMPANY IS KNOWN TO MANUFACTURE AN ANALYZER UTILIZING THE CYCLOIDAL SPECTROMETRY PRINCIPLE; ALSO THAT THE PRINCIPLE IS NOT COVERED BY ANY KNOWN PATENTS AND COULD BE UTILIZED BY ANY MANUFACTURER WISHING TO DO SO.

IN VIEW OF THE FOREGOING, AND SINCE YOUR BID OF $15,490 WOULD NOT HAVE BEEN LOW EVEN IF IT WERE CONSIDERED AS RESPONSIVE, YOUR PROTEST MUST BE DENIED.