B-164332, DEC. 5, 1968

B-164332, DEC. 5, 1968

TO APACHE FLOORING COMPANY:

REFERENCE IS MADE TO THE LETTERS OF APRIL 4, 1968, MAY 13, 1968, OCTOBER 24, 1968, AND OTHER CORRESPONDENCE PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. FPNFH-Y-27534S1-A-3 1-68, ISSUED ON FEBRUARY 15, 1968, BY THE PROCUREMENT OPERATIONS DIVISION, FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION.

THE SOLICITATION WAS FOR A FEDERAL SUPPLY SCHEDULE CONTRACT FOR FSC GROUP 72, PART 1, SECTION B, HOUSEHOLD FURNISHINGS, CLASS 7200, FLOOR TILE, FOR THE PERIOD MARCH 15, 1968, THROUGH MARCH 14, 1969.

THE VARIOUS TYPES OF TILE REQUIRED WERE DIVIDED INTO FIVE AGGREGATE GROUPS AND THE MINIMUM NUMBER OF COLORS FOR EACH GROUP WERE SPECIFIED AS FOLLOWS:

MINIMUM

"ITEM GROUP TILE DESIGNATION NUMBER

I 31-47 THRU 31-49 ASPHALT 9 INCHES X 9 INCHES ---------- 13*

II 31-50 THRU 31-52 ASPHALT 12 INCHES X 12 INCHES -------- 13* III 31-53 AND 31-54 VINYL ASBESTOS 9 INCHES X 9 INCHES --- 14

12 INCHES X 12 INCHES ---------------- 14

IV 31-55 AND 31-56 ALL VINYL, MARBLEIZED

9 INCHES X 9 INCHES ------------------ 14

12 INCHES X 12 INCHES ---------------- 14

V 31-57 AND 31-58 ALL VINYL, TERRAZZO

9 INCHES X 9 INCHES ------------------ 14

12 INCHES X 12 INCHES ---------------- 14

"*BIDDERS BIDDING ON ASPHALT TILE UNDER FED. SPEC. SS-T-312 MUST INCLUDE THE FOLLOWING COLORS WITHIN THE MINIMUM SHOWN ABOVE, WHICH COLORS GSA IS COMMITTED TO SUPPORT THE MILITARY ESTABLISHMENTS:

"1. BLACK BASIC COLOR WITH WHITE MARBLEIZING.

"2. RED BASIC COLOR WITH WHITE AND GOLD MARBLEIZING.

"3. LIGHT GREEN BASIC COLOR WITH WHITE AND/OR OTHER MARBLEIZING.

"4. GREEN BASIC COLOR WITH WHITE MARBLEIZING.'

THE FOLLOWING PURCHASE DESCRIPTION APPLICABLE TO THE FIVE GROUPS OF TILE APPEARS ON PAGE 9:

"MARBLEIZED AND MOTTLED FLOOR TILE COVERED HEREUNDER SHALL BE IN ACCORDANCE WITH FED. SPEC. SS-T-312, DATED JUNE 2, 1966. -MARBLEIZED AND MOTTLED TILE- MEANS ANY STANDARD TILE (SOLD COMMERCIALLY AT THE SAME PRICE) THAT IS VEINED, SPOTTED, OR CLOUDED WITH IRREGULAR OR RANDOM MARKINGS SIMILAR TO THE IMITATION OF MARBLE. THE TERMS MARBLEIZED AND MOTTLED ARE USED INTERCHANGEABLY TO MEAN THE SAME. HOWEVER, MARBLEIZED AND MOTTLED TILE DOES NOT INCLUDE TILE WITH CHIP OR CHIP-LIKE MARKINGS OF A RELATIVELY UNIFORM OR REPEATED GEOMETRIC PATTERN.'

PARAGRAPH 9 ON PAGE 7 OF THE INVITATION ENTITLED "LIST OF COLORS OFFERED" PROVIDES THAT:

"BIDDERS ARE REQUESTED TO ATTACH TO THEIR BID A LIST OF ALL TILE BEING OFFERED FOR EACH ITEM, SHOWING MANUFACTURER'S NAME AND COLOR NUMBER AND COLOR NAME.'

BIDS WERE OPENED ON MARCH 1, 1968. KENTILE FLOORS, INCORPORATED, WAS THE LOW BIDDER FOR GROUPS I, III AND IV AND APACHE FLOORING COMPANY WAS THE ONLY BIDDER ON GROUPS II AND V. AWARDS UNDER THE INVITATION WERE MADE TO KENTILE FOR GROUPS I, III AND IV AND TO APACHE FOR GROUPS II AND V.

KENTILE SUBMITTED THE LIST OF COLORS OFFERED WITH ITS BID AS REQUESTED BY PARAGRAPH 9 ON PAGE 7 OF THE INVITATION. UNDER GROUP IV KENTILE OFFERED 15 DIFFERENT TYPES OF TILE IN ITS LIST OF COLORS OFFERED. THE MINIMUM COLOR REQUIREMENT FOR THIS GROUP WAS 14 COLORS.

APACHE URGES THAT KENTILE'S BID FOR GROUP IV IS NONRESPONSIVE SINCE EC-40 BIRCH AND EC-41 TEAK, WHICH WERE INCLUDED IN KENTILE'S LIST OF COLORS OFFERED FOR GROUP IV, ARE CLASSIFIED AS WOODGRAIN TYPES OF TILE WHICH DO NOT MEET THE REQUIREMENT IN THE PURCHASE DESCRIPTION FOR MARBLEIZED AND MOTTLED TILE. APACHE'S REPRESENTATIVE DRAWS THE CONCLUSION THAT SINCE THE WOODGRAIN TILE MUST BE EXCLUDED FROM CONSIDERATION, KENTILE HAS NOT COMPLIED WITH THE REQUIREMENT THAT A BIDDER MUST OFFER A MINIMUM OF 14 COLORS FOR GROUP IV.

THIS OFFICE HAS RECEIVED LETTERS FROM THREE PRIVATE INDUSTRY CONCERNS ADVISING THAT THESE FIRMS CONSIDER WOODGRAIN AS A SEPARATE PATTERN FROM MARBLEIZED.

WITH RESPECT TO GROUP III, APACHE CONTENDS THAT THE 12 INCH BY 12 INCH VINYL ASBESTOS TILE OFFERED BY KENTILE FOR THIS GROUP DOES NOT MEET THE REQUIREMENT IN THE PURCHASE DESCRIPTION THAT THE TILE OFFERED SHALL BE "STANDARD TILE (SOLD COMMERCIALLY AT THE SAME PRICE).' APACHE ADVISES THAT KENTILE CHARGES A PREMIUM IF 12-INCH BY 12-INCH VINYL ASBESTOS TILE IS ORDERED IN QUANTITIES OF LESS THAN 200 CARTONS. THE ALTERNATE CONTENTION IS THAT IF THE "SOLD COMMERCIALLY AT THE SAME PRICE" REQUIREMENT IS WAIVED AS A MINOR INFORMALITY, THE INVITATION MUST BE CONSIDERED AS BEING MISLEADING AND THEREFORE LEGALLY DEFECTIVE. OUR DECISION, B-146326, AUGUST 3, 1961, 41 COMP. GEN. 76, HAS BEEN CITED BY APACHE IN SUPPORT OF THIS ALTERNATE ARGUMENT.

UNDER GROUP III SEVEN CATEGORIES OF KENTILE'S TILE WERE OFFERED IN ITS LIST OF COLORS COMPRISING MARBLEIZED, ARCHITECTURAL SERIES, ARCHITECTURAL MARBLES, AVANTI, WOODGRAIN, CORKTONE AND ARCHITECTURAL CRITERION.

APACHE CONTENDS THAT THE SERIES OF TILES REFERRED TO AS ARCHITECTURAL SERIES, AVANTI AND ARCHITECTURAL CRITERION DO NOT FALL WITHIN THE CATEGORY OF MARBLEIZED AND MOTTLED IN ACCORDANCE WITH THE REQUIREMENTS OF THE PURCHASE DESCRIPTION. IT IS ALSO POINTED OUT BY APACHE THAT THE ARCHITECTURAL SERIES, AVANTI AND ARCHITECTURAL CRITERION ARE CATEGORIES OF TILES WITH CHIP OR CHIP-LIKE MARKINGS WHICH DO NOT FIT WITHIN THE DEFINITION OF MARBLEIZED OR MOTTLED. IT IS URGED THAT THESE CATEGORIES OF TILES SHOULD NOT BE CONSIDERED IN DETERMINING WHETHER KENTILE OFFERED A MINIMUM OF 14 COLORS FOR GROUP III. APACHE URGES THAT THE WOODGRAIN AND CORKTONE SERIES INCLUDED BY KENTILE IN ITS LIST OF COLORS WOULD NOT BE CONSIDERED AS MARBLEIZED AND MOTTLED TILE AS REQUIRED BY THE PURCHASE DESCRIPTION. IT IS URGED THAT KENTILE'S MARBLEIZED CATEGORY OF TILE DOES NOT COMPLY WITH THE REQUIREMENT IN THE PURCHASE DESCRIPTION THAT IT BE STANDARD TILE SOLD COMMERCIALLY AT THE SAME PRICE AND THAT THIS CATEGORY OF TILE SHOULD NOT BE CONSIDERED IN DETERMINING WHETHER KENTILE OFFERED A MINIMUM OF 14 COLORS FOR GROUP III. IT IS ALSO BROUGHT TO OUR ATTENTION THAT IN ANY EVENT A NUMBER OF THE DIFFERENT TILES IN THE VARIOUS CATEGORIES OFFERED BY KENTILE ARE SO SIMILAR IN COLOR THAT THESE TILES CANNOT BE CONSIDERED AS SEPARATE COLORS IN DETERMINING WHETHER KENTILE MEETS THE MINIMUM REQUIREMENT OF 14 COLORS FOR THIS GROUP.

WITH RESPECT TO GROUPS I AND II, IT IS URGED THAT THE REQUIREMENT UNDER THESE GROUPS THAT BIDDERS MUST INCLUDE A TILE HAVING GREEN BASIC COLOR WITH WHITE MARBLEIZING AS PART OF THE MINIMUM NUMBER OF COLORS FOR THESE TWO GROUPS MAKES THE PROCUREMENT RESTRICTIVE SINCE THIS TYPE OF TILE IS MANUFACTURED BY ONLY TWO CONCERNS. THE CONTENTION IS MADE THAT THE MANNER FOR SPECIFYING THE REQUIREMENTS UNDER GROUPS I AND II IS CONTRARY TO THE INTENT OF FEDERAL PROCUREMENT REGULATIONS 1-1.307-1 (B) AND 38 COMP. GEN. 450.

APACHE POINTS OUT THAT UNDER GROUPS I AND II SEPARATE AGGREGATE GROUPS HAVE BEEN ESTABLISHED FOR TILE WITH DIMENSIONS OF 9-INCH BY 9 INCH AND FOR TILE WITH DIMENSIONS OF 12-INCH BY 12-INCH. IT IS BROUGHT TO OUR ATTENTION IN ITS LETTER OF MAY 13, 1968, THAT THE PROCUREMENT MIGHT HAVE BEEN MORE COMPETITIVE IF GROUPS III AND IV WERE DIVIDED INTO SEPARATE AGGREGATE GROUPS FOR THE 9-INCH BY 9-INCH AND 12 INCH BY 12-INCH REQUIREMENTS AS WAS DONE UNDER GROUPS I AND II. WE CONSIDER THE VIEW EXPRESSED IN THE MAY 13, 1968, LETTER AS SUPERSEDING THE POSITION IN THE LETTER OF APRIL 4, 1968, WHICH WAS THAT THE REQUIREMENTS UNDER GROUPS I AND II SHOULD BE COMBINED AND AWARDED IN THE AGGREGATE AS WAS DONE UNDER GROUPS III AND IV.

APACHE ADVISES THAT THE PERIOD OF 11 WORKING DAYS BETWEEN THE ISSUANCE OF THE INVITATION AND BID OPENING WAS NOT ADEQUATE FOR IT TO PROPERLY PREPARE ITS BID.

WITH RESPECT TO THE LIST OF COLORS OFFERED WITH THE BID, PARAGRAPH 9 ON PAGE 7 CLEARLY PROVIDES THAT THE TILE ON THE LIST SHOULD COMPRISE "ALL TILE BEING OFFERED FOR EACH ITEM.' THIS MEANS THAT CONTRACTOR WOULD NOT BE REQUIRED TO FURNISH ANY TILES WHICH WERE NOT INCLUDED ON THE BIDDER'S LIST OF COLORS OFFERED. IN OUR VIEW THE LIST OF COLORS OFFERED FURNISHED WITH THE BID IS AN INTEGRAL PART OF THE BID AND THE QUESTION WHETHER THE COLORS ON THE LIST MEET THE MINIMUM COLOR REQUIREMENTS OF THE INVITATION IS ONE WHICH RELATES TO THE RESPONSIVENESS OF A BID.

GSA'S REPORT TAKES THE POSITION THAT THE TERMS MARBLEIZED AND MOTTLED USED IN THE PURCHASE DESCRIPTION ARE CONSISTENT WITH THE DICTIONARY DEFINITIONS OF THESE TERMS. THE LETTER OF OCTOBER 24, 1968, FROM APACHE'S REPRESENTATIVE, URGES THAT THE TERMS MARBLEIZED AND MOTTLED CANNOT BE USED INTERCHANGEABLY AND THAT "THE GENERIC MEANING OF -MOTTLED,- WHICH MAY ALSO BE USED IN CONNECTION WITH WOOD, IS CONFINED, FOR THE PURPOSE OF THE INVITATION TO BID, TO THE NARROWER MEANING OF -SIMILAR TO THE IMITATION OF MARBLE.-"

THE STATUTES GOVERNING PROCUREMENT BY FORMAL ADVERTISING HAVE CONSISTENTLY BEEN INTERPRETED TO REQUIRE THAT SPECIFICATIONS BE STATED IN A CLEAR AND UNAMBIGUOUS MANNER AND IN TERMS PERMITTING THE BROADEST FIELD OF COMPETITION WITHIN THE GOVERNMENT'S ACTUAL NEEDS. 32 COMP. GEN. 384; 17 COMP. GEN. 789. IT HAS BEEN THE POSITION OF THIS OFFICE THAT THE DRAFTING OF PROPER SPECIFICATIONS MEETING THESE OBJECTIVES, AND THE FACTUAL DETERMINATION AS TO WHETHER THE SPECIFICATIONS ARE MET BY A PARTICULAR BID, ARE MATTERS PRIMARILY WITHIN THE PROVINCE OF THE CONTRACTING AGENCY. 38 COMP. GEN. 71.

GSA HAS TAKEN THE FOLLOWING POSITION WITH RESPECT TO THE WOODGRAIN TILES OFFERED BY KENTILE:

"* * * THE WOODGRAIN PATTERNS OFFERED BY KENTILE ARE MOTTLED, MEET THE DEFINITION SET FORTH ON PAGE 9 OF THE INVITATION AS WELL AS THOSE IN THE DICTIONARY OF MARBLEIZED AND MOTTLED, AND CLOSELY RESEMBLE SEVERAL TYPES OF MARBLE, SAMPLES OF WHICH ARE IN OUR POSSESSION. * * *"

IN B-160767, AUGUST 17, 1967, OUR OFFICE CONSIDERED A PROTEST BY KENTILE AGAINST THE AWARD OF A CONTRACT TO YOUR CONCERN FOR THE FEDERAL SUPPLY SCHEDULE REQUIREMENTS FOR "TILE, VINYL ASBESTOS. MARBLEIZED" FOR THE PERIOD MARCH 15, 1967, THROUGH MARCH 14, 1968.

THE INVITATION IN THAT CASE REQUIRED THAT BID SAMPLES MUST BE FURNISHED AS PART OF THE BID. THE SAMPLES WERE REQUIRED FOR THE PURPOSE OF DETERMINING COLOR AND APPEARANCE. WITH RESPECT TO THE FLOOR TILE IT WAS PROVIDED THAT BIDDERS MUST OFFER A COMPLETE LINE OF ALL STANDARD LINE COLORS, WHICH MUST BE AVAILABLE THROUGHOUT THE ENTIRE CONTRACT PERIOD. ANOTHER CLAUSE IN THE INVITATION STATED THAT BIDS FAILING TO OFFER THE DESIGNATED MINIMUM FOR ANY ITEM WOULD BE REJECTED FOR THAT ITEM.

KENTILE SUBMITTED SAMPLES OF TILE WITH ITS BID FROM ITS MARBLEIZED LINE OF TILE. GSA DETERMINED THAT KENTILE FAILED TO OFFER A COMPLETE STANDARD LINE OF MARBLEIZED VINYL ASBESTOS ILE; CONSEQUENTLY, KENTILE'S BID WAS DETERMINED TO BE NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION.

KENTILE'S ARGUMENT WAS THAT IN THE TILE INDUSTRY NEITHER CHIP, MARBLE, SPECIAL MARBLE, NOR STRIATED WOOD PATTERNS ARE CONSIDERED MARBLEIZED, AND THAT, THEREFORE, THE TILES INCLUDED WITH KENTILE'S BID WERE THE ONLY STANDARD TILE PATTERNS AND COLORS MANUFACTURED BY KENTILE THAT COULD BE CLASSIFIED AS MARBLEIZED.

IT WAS POINTED OUT IN OUR DECISION THAT KENTILE'S SALES REPRESENTATIVE, WITHOUT KNOWLEDGE OF GSA'S PROCUREMENT, HAD ADVISED ANOTHER INTERESTED PARTY THAT KENTILE DID IN FACT MANUFACTURE A TOTAL OF 48 DIFFERENT PATTERNS AND COLORS OF VINYL ASBESTOS TILE INCLUDING 3 WOODGRAIN COLORS.

THE CONCLUSION IN B-160767, WAS THAT KENTILE'S BID WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION SINCE KENTILE FAILED TO OFFER A COMPLETE STANDARD LINE OF MARBLEIZED VINYL ASBESTOS TILE. GSA FURNISHED OUR OFFICE WITH THE FOLLOWING INFORMATION IN A REPORT DATED APRIL 21, 1967, IN SUPPORT OF ITS DETERMINATION THAT KENTILE'S BID WAS NONRESPONSIVE:

"PRIOR TO PREPARATION OF THE INVITATION FOR BIDS FOR THE CURRENT PERIOD, GSA PERSONNEL WERE ADVISED BY MR. C. B. WHITTELSEY, MANAGING DIRECTOR, ASPHALT AND VINYL ASBESTOS TILE INSTITUTE, NEW YORK CITY, THAT A COMPLETE LINE OF ALL STANDARD LINE COLORS OF MARBLEIZED VINYL ASBESTOS FLOOR TILE WOULD INCLUDE ALL PATTERNS AND COLORS IN THE CHIP, MARBLE, SPECIAL MARBLE, AND STRIATED WOOD PATTERNS, AND THAT THE MEMBERS OF THE VINYL ASBESTOS FLOOR TILE INDUSTRY SO UNDERSTOOD.

"WITH THE EXCEPTION OF KENTILE, ALL THE BIDDERS SUBMITTED SAMPLES OF THE COMPLETE LINE OF ALL CHIP, MARBLE, SPECIAL MARBLE, AND STRIATED WOOD COLORS AND PATTERNS OF ALL BRANDS OF VINYL ASBESTOS FLOOR TILE WHICH THEY WERE OFFERING IN RESPONSE TO THE INVITATION FOR BIDS.

"ONLY KENTILE FAILED TO SUBMIT SAMPLES OF ITS CHIP, SPECIAL MARBLE, AND STRIATED WOOD PATTERNS. THESE SERIES CONSIST OF -ARCHITECTURAL- (CHIP), - AVANTI- AND -ARCHITECTURAL MARBLES' (SPECIAL MARBLE), AND WOODGRAIN- (STRIATED WOOD). "IT IS CLEAR FROM THE FOREGOING THAT THE MEMBERS OF THE VINYL ASBESTOS FLOOR TILE INDUSTRY GENERALLY REGARD MARBLEIZED TILE TO INCLUDE CHIP, MARBLE, SPECIAL MARBLE, AND STRIATED WOOD PATTERNS.'

THE ABOVE INDICATES THAT GSA HAS BEEN CONSISTENT IN ITS VIEW THAT A WOODGRAIN TYPE OF TILE FITS WITHIN THE TERM MARBLEIZED AS FAR AS FEDERAL SUPPLY SERVICE CONTRACTS ARE CONCERNED. KENTILE SEEMS TO HAVE HAD AMPLE PRECEDENT FOR BELIEVING THAT GSA WOULD ACCEPT ITS WOODGRAIN TILE AS COMPLYING WITH THE REQUIREMENTS FOR GROUP IV. IN THE CIRCUMSTANCES WE FIND NO BASIS FOR CONCLUDING THAT GSA ACTED IN AN ARBITRARY OR FRAUDULENT MANNER IN MAKING ITS DETERMINATION THAT KENTILE SUBMITTED A RESPONSIVE BID FOR GROUP IV. CONSEQUENTLY, IN ACCORDANCE WITH THE STANDARD RELATING TO THE FUNCTION OF THE PROCURING ACTIVITY TO DETERMINE WHETHER A BID MEETS THE REQUIREMENTS OF THE SPECIFICATIONS WE FIND NO BASIS FOR QUESTIONING THE VALIDITY OF THE AWARD MADE FOR GROUP IV.

IN B-160767, AUGUST 17, 1967, IT WAS INDICATED THAT THE TERMS MARBLEIZED AND MOTTLED COULD BE USED INTERCHANGEABLY. THERE WAS NOTHING IN THAT DECISION WHICH WOULD INDICATE THAT THE TERM MOTTLED WOULD NECESSARILY HAVE TO MODIFY THE TERM MARBLEIZED AS IS URGED BY APACHE IN THE LETTER OF OCTOBER 24, 1968.

THE LETTERS FROM PRIVATE INDUSTRY WOULD NOT BE A BASIS FOR RETROSPECTIVELY ESTABLISHING THAT GSA ACTED IN AN ARBITRARY OR CAPRICIOUS MANNER AT THE TIME OF ITS DETERMINATION THAT KENTILE'S BID WAS RESPONSIVE TO THE REQUIREMENTS OF GROUP IV. HOWEVER, THESE LETTERS HAVE BEEN BROUGHT TO THE ATTENTION OF GSA FOR SUCH ACTION AS MAY BE APPROPRIATE IN FUTURE PROCUREMENTS.

IN REGARD TO THE CONTENTION THAT THE 12-INCH BY 12-INCH VINYL ASBESTOS TILES OFFERED BY KENTILE UNDER GROUP III DO NOT MEET THE REQUIREMENTS OF THE PURCHASE DESCRIPTION THAT THE TILE BE "ANY STANDARD TILE (SOLD COMMERCIALLY AT THE SAME PRICE)," GSA ADVISES AS FOLLOWS:

"THE PURPOSE OF THE PHRASE WAS TO EXPLAIN THAT, WITH RESPECT TO PRICE, THE TERM -ANY STANDARD TILE- MEANT THE VARIOUS TILES IN A BIDDER'S STANDARD COMMERCIAL LINE WHICH WERE BEING SOLD COMMERCIALLY AT THE SAME PRICE. THE BIDS RECEIVED DO NOT REFLECT ANY CONFUSION ON THIS POINT.'

GSA ADVISES THAT THE PROVISION "SOLD COMMERCIALLY AT THE SAME PRICE" WAS INSERTED IN THE PURCHASE DESCRIPTION TO ADVISE BIDDERS THAT IT WAS NOT INTERESTED IN ANYTHING BUT A CONCERN'S STANDARD OR COMMERCIAL LINE OF TILE. IT WOULD BE UNREALISTIC TO CONSTRUE THIS PROVISION, AS URGED BY APACHE, AS PERMITTING BIDS FROM ONLY THOSE CONCERNS WHICH HAVE ONE PRICE FOR THE 12-INCH BY 12-INCH TILE REGARDLESS OF THE QUANTITY ORDERED. WHILE WE AGREE THAT GSA MIGHT HAVE CHOSEN MORE EXACT TERMINOLOGY TO EXPRESS ITS INTENT, IT HAS NOT BEEN ESTABLISHED THAT THE TERMINOLOGY USED WAS SO MISLEADING THAT FULL AND FREE COMPETITION WAS NOT OBTAINED. CONSEQUENTLY, THIS CONTENTION WOULD NOT CONSTITUTE A BASIS FOR QUESTIONING THE AWARD TO KENTILE FOR GROUP III. WE HAVE SUGGESTED TO GSA THAT THE PROVISION "ANY STANDARD TILE (SOLD COMMERCIALLY AT THE SAME PRICE)" BE REVISED TO MORE ACCURATELY REFLECT THE INTENT OF THE PROCURING ACTIVITY.

IN B-146326, AUGUST 3, 1961, 41 COMP. GEN. 76, CITED BY APACHE, IT WAS FOUND THAT IF A BIDDER DID NOT OFFER THE NAMED MAKE AND MODEL IN A BRAND NAME OR EQUAL PROCUREMENT, THE BIDDER WOULD HAVE TO GUESS AT CERTAIN DIMENSIONS AND TOLERANCES SINCE DRAWINGS OF THE ITEMS WERE NOT AVAILABLE AND BIDDERS WERE NOT PERMITTED TO DISASSEMBLE AND INSPECT CERTAIN MATERIAL ASPECTS OF THE MODELS. IT WAS CONCLUDED THAT THE ABOVE INVITATION WAS DEFECTIVE SINCE IT DID NOT PERMIT THE FULL AND FREE COMPETITION REQUIRED BY THE STATUTES. WE DO NOT FIND THAT THE INSTANT INVITATION WAS SO MISLEADING THAT THE FULL AND FREE COMPETITION REQUIRED BY THE STATUTES WAS NOT OBTAINED; CONSEQUENTLY, 41 COMP. GEN. 76, WOULD NOT CONSTITUTE A BASIS FOR QUESTIONING THE AWARD MADE.

APACHE HAS QUESTIONED WHETHER KENTILE'S ARCHITECTURAL SERIES, AVANTI, ARCHITECTURAL CRITERION, WOODGRAIN AND CORKTONE CATEGORIES OF TILECAN BE CONSIDERED AS MARBLEIZED OR MOTTLED UNDER GROUP III. A REVIEW OF B- 160767, AUGUST 17, 1967, AND GSA'S REPORT IN CONNECTION WITH THAT DECISION INDICATE THAT GSA HAS PREVIOUSLY TAKEN THE POSITION THAT THESE CATEGORIES OF TILE WOULD QUALIFY AS MARBLEIZED OR MOTTLED TILE AS FAR AS FEDERAL SUPPLY SERVICE CONTRACTS ARE CONCERNED. GSA'S POSITION IN THIS PROCUREMENT IS CONSISTENT WITH THE VIEW IT HAS TAKEN IN PRIOR PROCUREMENTS OF THESE ITEMS. IN THE CIRCUMSTANCES WE CANNOT SAY THAT GSA ACTED IN AN ARBITRARY OR CAPRICIOUS MANNER IN DETERMINING THAT KENTILE MET THE REQUIREMENTS FOR GROUP III.

ENOUGH TILES APPARENTLY HAVE BEEN OFFERED UNDER KENTILE'S ARCHITECTURAL SERIES, AVANTI, ARCHITECTURAL CRITERION, WOODGRAIN, AND CORKTONE, TO MAKE UP A MINIMUM OF 14 COLORS; THEREFORE, WE DO NOT FIND IT NECESSARY TO FURTHER CONSIDER THE CONTENTION THAT KENTILE'S MARBLEIZED CATEGORY OF TILE SHOULD NOT QUALIFY FOR CONSIDERATION UNDER GROUP III.

WHILE THE COLORS OF SOME OF THE DIFFERENT TYPES OF TILE OFFERED UNDER GROUP III MAY BE SOMEWHAT SIMILAR, WE DO NOT THINK THAT THIS ESTABLISHES THAT GSA ACTED IN AN ARBITRARY OR CAPRICIOUS MANNER IN MAKING ITS DETERMINATION THAT KENTILE'S BID WAS RESPONSIVE TO THE MINIMUM COLOR REQUIREMENTS OF GROUP III.

WITH RESPECT TO THE CONTENTION THAT THE REQUIREMENT UNDER GROUPS I AND II FOR BASIC GREEN WITH WHITE MARBLEIZING TYPE OF TILE MAKES THE PROCUREMENT RESTRICTIVE, GSA ADVISES THAT THE COLORS SPECIFIED UNDER THESE ITEMS HAVE BEEN MILITARY REQUIREMENTS FOR THE PAST FOUR YEARS; THAT PRIOR PROCUREMENTS WERE ALWAYS COMPETITIVE AND THAT ADEQUATE COMPETITION WAS OBTAINED IN THIS PROCUREMENT. GSA FURTHER ADVISES THAT "BIDS ON THE GROUP WERE OBTAINED FROM APACHE, KENTILE AND AMERICAN BILTRITE (AMTICO), AND APACHE OFFERED GREEN WITH WHITE MARBLEIZATION FROM FLINTKOTE AND AMERICAN BILTRITE ON GROUP I AND JOHNS-MANSVILLE ON GROUP II.' APACHE'S COMMENT WITH RESPECT TO GSA'S STATEMENT IS THAT ITS BIDS ON GROUPS I AND II WERE TECHNICALLY NONRESPONSIVE BECAUSE THIS COLOR WAS NOT SOLD COMMERCIALLY.

FPR 1-1.307-1 (B) PROHIBITS THE USE OF SPECIFICATIONS WHICH "SPECIFY A PRODUCT HAVING FEATURES WHICH ARE PECULIAR TO THE PRODUCT OF ONE MANUFACTURER, PRODUCER OR DISTRIBUTOR," UNLESS IT IS DETERMINED THE FEATURES ARE ESSENTIAL TO THE GOVERNMENT'S NEEDS.

IT SEEMS UNDISPUTED THAT GSA HAD AN ACTUAL REQUIREMENT FOR THE GREEN WITH WHITE MARBLEIZING TYPE OF TILE. IT CAN ONLY BE SPECULATED WHETHER THERE WOULD HAVE BEEN MORE COMPETITION FOR GROUPS I AND II IF THE REQUIREMENT FOR A TILE OF THE GREEN WITH WHITE MARBLEIZING TYPE HAD BEEN REMOVED FROM THE AGGREGATE UNDER GROUPS I AND II. IN THE CIRCUMSTANCES WE CANNOT SAY THAT THERE WAS SUCH A CLEAR-CUT VIOLATION OF FPR 1-1.307-1 (B) AS WOULD RENDER THE AWARD INVALID. GSA HAS ADVISED THAT IT WILL CONSIDER DELETING THE REQUIREMENT FOR THE GREEN WITH WHITE MARBLEIZING TYPE OF TILE FROM THE AGGREGATE GROUPS IN FUTURE PROCUREMENTS.

IN 38 COMP. GEN. 450, CITED BY APACHE, ONE OF THE CONTENTIONS MADE BY A PROTESTING BIDDER WAS THAT CERTAIN SWATCHES OF PRINTED DUCK MATERIAL WHICH WERE REQUIRED AS A BID SAMPLE WERE TOTALLY UNAVAILABLE. ON THE BASIS OF THE ASSUMPTION THAT THE PROTESTANT'S CONTENTION WAS CORRECT, IT WAS HELD THAT THE PROCUREMENT APPEARED TO BE SO RESTRICTIVE AS TO PREVENT THE FULL AND FREE COMPETITION CONSISTENT WITH THE LEGITIMATE NEEDS OF THE GOVERNMENT CONTEMPLATED BY THE PUBLIC PROCUREMENT STATUTES AND THAT ALL BIDS SHOULD BE REJECTED.

A GENERAL REFERENCE HAS BEEN MADE TO THE ABOVE DECISION IN CONNECTION WITH APACHE'S CONTENTION THAT THE GREEN WITH WHITE MARBLEIZING TYPE OF TILE MADE THE PROCUREMENT UNNECESSARILY RESTRICTIVE OF COMPETITION. GSA APPARENTLY HAD A LEGITIMATE REQUIREMENT FOR THE GREEN WITH WHITE MARBLEIZING TYPE OF TILE; THIS TYPE OF TILE WAS INCLUDED UNDER GROUPS I AND II IN GOOD FAITH AND IT CAN ONLY BE SPECULATED IF THERE WOULD HAVE BEEN MORE COMPETITION IF THIS TYPE OF TILE HAD NOT BEEN INCLUDED IN THE AGGREGATE GROUPS. IN THE INSTANT PROCUREMENT THERE WERE AT LEAST TWO SOURCES FOR THE GREEN WITH WHITE MARBLEIZING TYPE OF TILE WHILE IN THE ABOVE CASE THERE WAS AN UNDISPUTED CONTENTION THAT THE REQUIRED SAMPLES WERE TOTALLY UNAVAILABLE. IN THE CIRCUMSTANCES WE DO NOT FIND THAT 38 COMP. GEN. 450 REQUIRES A CONCLUSION THAT THE AWARDS UNDER GROUPS I AND II WERE INVALID.

WITH RESPECT TO APACHE'S CONTENTION THAT 11 WORKING DAYS BETWEEN THE ISSUANCE OF THE INVITATION AND BID OPENING WAS NOT ADEQUATE FOR APACHE TO PROPERLY PREPARE A BID, IT HAS NOT BEEN ESTABLISHED THAT THIS PERIOD WAS SO SHORT THAT GSA DID NOT OBTAIN THE FULL AND FREE COMPETITION CONTEMPLATED BY THE ADVERTISING STATUTES. THIS CONTENTION, THEREFORE, DOES NOT CONSTITUTE A BASIS FOR QUESTIONING THE AWARD MADE.

YOUR CONTENTION THAT MORE COMPETITION CAN BE OBTAINED FOR GROUPS III AND IV IF SEPARATE AGGREGATE GROUPS ARE ESTABLISHED FOR THE 9-INCH BY 9-INCH AND 12-INCH BY 12-INCH TILE REQUIREMENTS HAS BEEN BROUGHT TO THE ATTENTION OF GSA WHICH, OF COURSE, HAS THE PRIMARY RESPONSIBILITY IN THIS REGARD. WE HAVE FOUND NO EVIDENCE THAT THE DECISION TO SPLIT THE 9-INCH BY 9-INCH AND 12-INCH BY 12-INCH REQUIREMENTS FOR ASPHALT TILE INTO SEPARATE GROUPS UNDER GROUPS I AND II WAS MADE WITH THE VIEW OF FAVORING ANY PARTICULAR BIDDER.