B-162607, MAR. 1, 1968

B-162607, MAR. 1, 1968

BIDS - BRAND NAME OR EQUAL DECISION TO VIC MANUFACTURING CO. AFFIRMING DECISION OF NOV. 30, 1967, DENYING PROTEST AGAINST REJECTION OF LOW BID FOR FURNISHING DRY CLEANING MACHINE TO NAVY. DETERMINATION THAT ITEM OFFERED BY ONLY BIDDER DID NOT EQUAL BRAND NAME SPECIFIED SUCH DETERMINATION MUST BE CONCURRED IN BY COMP. GEN.

TO VIC MANUFACTURING COMPANY:

REFERENCE IS MADE TO A COPY OF YOUR LETTER OF DECEMBER 5, 1967, TRANSMITTED TO OUR OFFICE BY THE HONORABLE WALTER F. MONDALE, UNITED STATES SENATE, STATING CERTAIN OBJECTIONS TO OUR DECISION B-162607 DATED NOVEMBER 30, 1967, TO YOU, DENYING YOUR PROTEST AGAINST THE REJECTION OF YOUR LOW BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. N00151-67-B- 1270, ISSUED BY THE PHILADELPHIA NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA.

THE RECORD INDICATES THAT THE BID OF YOUR FIRM -- THE ONLY BID RECEIVED UNDER THE INVITATION -- WAS FOUND TO BE NONRESPONSIVE TO THE INVITATION FOR BIDS INASMUCH AS IT OFFERED TO FURNISH A DRY CLEANING MACHINE WITH A LOAD CAPACITY OF 8 POUNDS, WHEREAS THE INVITATION CALLED FOR A DRY CLEANING MACHINE WITH A 12-POUND LOAD CAPACITY. THE MACHINE OFFERED BY YOUR FIRM WAS NOT CONSIDERED "EQUAL TO" THE MACHINE SPECIFIED IN THE INVITATION BECAUSE OF ITS SMALLER LOAD CAPACITY. IT IS REPORTED THAT A DRY CLEANING MACHINE HAVING A LOAD CAPACITY OF 12 POUNDS WAS REQUIRED BECAUSE OF THE TYPE OF VESSEL ON WHICH IT WAS TO BE INSTALLED, NAMELY AN LST. ALTHOUGH THE BID OF YOUR FIRM WAS BASED ON FURNISHING A DRY CLEANING MACHINE WITH AN 8-POUND LOAD CAPACITY WHICH, ON THE FACE OF THE BID, WAS APPARENTLY NOT EQUAL TO THE BRAND NAME WHICH COVERED A MACHINE WITH A LOAD CAPACITY OF 12 POUNDS, YOUR BID WAS NEVERTHELESS REFERRED TO THE DESIGN DIVISION, PHILADELPHIA NAVAL SHIPYARD, FOR TECHNICAL EVALUATION. THE DETERMINATION WAS MADE THAT THE MACHINE OFFERED BY YOUR FIRM WAS NOT EQUAL TO THE BRAND NAME SPECIFIED IN THE INVITATION FOR BIDS. WE CONCURRED IN THAT DETERMINATION SINCE IT WAS OBVIOUS THAT AN 8-POUND LOAD MACHINE OFFERED BY YOUR FIRM WAS NOT EQUAL TO A 12-POUND LOAD MACHINE, THE TYPE SPECIFIED IN IFB-1270. THE PROCUREMENT WAS THEREAFTER SOLICITED ON A NEGOTIATED BASIS WHICH CULMINATED IN AN AWARD TO THE BRAND-NAME MANUFACTURER WHO OFFERED TO MEET THE EXACT REQUIREMENTS OF THE NAVY.

YOUR LETTER OF DECEMBER 5, 1967, STATES THAT THERE ARE ONLY TWO SOURCES OF SUPPLY FOR DRY CLEANING MACHINES USING VALCLENE SOLVENT, YOUR FIRM AND THE TURBOCLENE DIVISION, ENGELHARD HANOVIA, INC.; THAT YOUR COMPANY MANUFACTURES ONLY DRY CLEANING MACHINES WITH AN 8-POUND AND 25-POUND LOAD CAPACITY; AND THAT IFB-1270 CALLED FOR A DRY CLEANING MACHINE WITH A LOAD CAPACITY OF 12 POUNDS. YOU CONTEND THAT SINCE YOUR COMPANY DOES NOT MANUFACTURE A DRY CLEANING MACHINE WITH A 12-POUND LOAD CAPACITY IT IS UNABLE TO SUBMIT RESPONSIVE BIDS IN RESPONSE TO INVITATIONS CALLING FOR MACHINES OF THAT LOAD CAPACITY. YOU FURTHER CONTEND THAT THE DRY CLEANING MACHINE WITH THE 12-POUND LOAD CAPACITY HAS NOW BECOME A SOLE-SOURCE ITEM TO BE SUPPLIED ONLY BY TURBOCLENE DIVISION, ENGELHARD HANOVIA, INC.

THE DRAFTING OF SPECIFICATIONS FOR MATERIALS OR SERVICES TO BE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES AND A DETERMINATION AS TO THEIR NEEDS WILL NOT BE QUESTIONED UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE. AS TO THIS PROCUREMENT, WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE SPECIFICATIONS WERE NOT BASED UPON A BONA FIDE DETERMINATION OF THE NEEDS OF THE DEPARTMENT OF THE NAVY. THE EXERCISE OF SUCH DETERMINATION IS VESTED IN THE PROCUREMENT OFFICIALS INVOLVED IN EACH CASE AND, IN THE ABSENCE OF BAD FAITH, IS NOT SUBJECT TO OBJECTION BY OUR OFFICE. CLEARLY, IN THE ORDERLY CONDUCT OF ITS BUSINESS THE GOVERNMENT MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE SUCH DISCRETIONARY AUTHORITY WITH ONE OF ITS POTENTIAL SUPPLIERS OR BE PLACED IN A POSITION OF PERMITTING BIDDERS TO DICTATE SPECIFICATIONS TAILORED TO THEIR PRODUCTS.

IN VIEW OF THE INFORMATION SUBMITTED BY THE CONTRACTING AGENCY DEMONSTRATING THAT THERE EXISTED A BONA FIDE NEED FOR A DRY CLEANING MACHINE WITH A LOAD CAPACITY OF 12 POUNDS, WE FIND NO BASIS TO OBJECT TO THE ADMINISTRATIVE POSITION IN THIS MATTER. IN A SUPPLEMENTAL REPORT TO OUR OFFICE THE PROCUREMENT AGENCY HAS REAFFIRMED ITS POSITION IN THE MATTER.

IN YOUR LETTER OF DECEMBER 5, 1967, YOU STATE THAT IT IS YOUR UNDERSTANDING THAT THE TURBOCLENE DRY CLEANING MACHINE IS NO LONGER BUILT IN THE UNITED STATES AND IS MANUFACTURED IN ENGLAND. IN THIS CONNECTION, THE CONTRACTING OFFICER HAS ADVISED US THAT THE DRY CLEANING MACHINES PROCURED UNDER THE CONTRACT IN QUESTION FROM TURBOCLENE ARE BEING MANUFACTURED IN NEWARK, NEW JERSEY, AND THAT HE HAS BEEN ASSURED THAT THE MACHINES UNDER THE CONTRACT, AND ALL COMPONENTS THEREOF, ARE OF 100 PERCENT AMERICAN MANUFACTURE. IT IS REPORTED THAT TURBOCLENE DOES HAVE A DIVISION IN ENGLAND WHICH MANUFACTURES THE SAME MACHINE BUT THAT SUCH MACHINE IS SOLD ONLY IN THE EUROPEAN MARKET.

IN REGARD TO THE POSSIBILITY THAT THE 12-POUND LOAD DRY CLEANING MACHINE WILL BECOME A SOLE-SOURCE ITEM, WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF THE NAVY THAT THE DEPARTMENT DOES NOT CONTEMPLATE MAKING ANY PROCUREMENTS OF THIS SIZE OF MACHINE IN THE FUTURE.

ACCORDINGLY, UPON REVIEW, OUR DECISION OF NOVEMBER 30, 1967, IS AFFIRMED.